NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-7116

MELTON JACKSON, JR., Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretar y of Veterans Affairs, Respondent-Appellee.

__________________ _________ DECIDED: March 1, 2005

__________________ _________ Before MICHEL, Chief Judge , ∗ GAJARSA, and LINN, Circuit Judges

. Opinion for the court filed by Circuit Judge Gajarsa. Dissent ing opinion filed by Circuit Judge Linn. PER CURIAM. Melton Jackson, Jr. appeals from the judgm ent of the United States Court of Appeals for Veterans Claims (“V eterans’ Court”) in favor of the government, dismissing Jackson’s contention that his service-connected schizophrenia is entitled to an effectivedate of November 1991, and affi rming the decision of the Bo ard of Veterans Appeals

∗ Paul R. Michel assumed the positi on of Chief Judge on December 25, 2004.setting the effective-date of the enti tlement at September 24, 1997. Jackson v. Principi , No. 01-1975, 2004 WL 1045921 (Vet. App. Apr. 16, 2004) (“ Jackson ”). Jackson gr ounds his argument of entitlement to a Nov e mber 1991 effective-date on the basis that equity prevents the gover nment from deeming his 1991 info rmal claim abandoned. His premise is that the gov ernment failed to provid e him sufficient notice of the claim abandonment prov isions in applicable federal regulations. The Veterans ’ Court determined that Jackson waived this ar gument. Becaus e we find jurisdiction established, and that the Veterans’ Court properly determined that Jackson waived his abandonment argument, we affirm

. I. Jackson s e rved on a c tive duty in the m ilitary from November 1973 to Jan u ary 1976. Jackson at *1. In 1981, he filed a fo rmal application to the Veteran’s Administration (“VA”) for disabilit y benefits, claiming a connection between a nervous conditio n and h i s military service. The VA d enie d his a pplic ation, obs erving that Jackson’s service record showed no connecti on between the claimed nervous condition and Jackson’s military service. Ja ckson did not appeal. In 1986, Jackson tried to reopen his 1981 c l aim using medical records spanning August 1975 to June 1985. At thi s point he cl aimed that his nervous condition included schizophrenia. In May 1987, the VA notified Ja ckson that it could no t reopen his claim, as there was still no evid enc e showing that his conditi on was incurred during, or aggravated by, his military serv ice

. Jackson did not appeal. In 1991, Jackson mailed letters to Pres ident George H. W. Bush and Senator Strom Thurmond, copies of whic h were forw arded to a VA regional office (“RO”). The

04-7116 - 2 -letters sought assistance in e s tablish i ng service-connected disab ility b enefits. In December 1991, the RO replied to Jacks on’s letter in the following terms: In 1981, you filed for service-connec tion for a paranoid reaction. This claim was denied as there was no indi cation, or not ation made in your service medical records, of treatment for a nervous condition. You were notified of that decision by letter of October 23, 1981. In the absence of a timely appeal, our decision becam e final. You may r eopen y o ur claim at any time by submitting new and material evidenc e s howing that these conditions were incurred in or aggravated by military service. ... [d escribing relevant ev idence] ... Upon rece ipt of such evidenc e, your claim will be carefu lly considered. The Dece mber 1991 letter made no mention of regu lations cont rollin g whether a claim is abandoned for lack of prosecution. That regulat ion, 38 C.F.R. § 3.158(a), provides in relevant part: [W]here evidence reques ted in c onnection with an original claim, a claim for increase or to reopen or for the purpose of determining c ontinued entitlement is not furnished wit hin 1 y ear after the date of request, the claim will be consider ed abandoned . After the ex pirati on of 1 year, further action will not be taken unless a new clai m is received. Should the right to benefits be finally est ablis hed, pension, com pensation, dependency and indemnity compensation, or monetary allowance under the provi s ions of 38 U.S.C. chapter 18 based on s u ch evidence shal l commence not earlier than the date of fili ng the new cla i m. 38 C.F.R. § 3.158(a) (emphasis added). There is no evidence J a ckson ever responded to the RO’s December 1991 letter. But Jackson kept writing. On September 24, 1997, the RO received a letter Jackson had sent to Senator Strom Thurmond, again s eeking assistance in p r osecuting his claim of service-connected s c hizophrenia . In October 1997, the RO denied this claim. Jackson appealed this denial. On May 1, 1999, a VA ex aminer reported Jackson’s il lness likely began while in the service. On May 20, 1999, t he RO gr anted Jacks on’s c l aim for service-connected

04-7116 - 3 -schizophrenia at a 100% disability rating, effective September 24, 1997. Jackson appealed that decis ion to the Bo ard of Veterans Appeals (“B oard”), arguing his c l aim is entitled to an earlier effective-date. On August 2, 2001, th e Board rejected Jackson’s appeal. It noted the RO’s 1981 and 1987 denials were final, and t hat Jackson had not r eplied to the RO’s 1991 denial. Mentioning Jackson’s 1991 and 1997 letters, the Bo ard stated that “even if such letters may be construed to be informal claims under 38 C.F.R. § 3.155, the fact remains that nexus opinion relating the ve teran’s schiz ophrenia to his service was not received until May 1999.” In re Jackson , No. 99-23 875A, at 12 (B d. Ve t. App. Aug. 2, 2001). The Board concluded Jac kson’s entitlement “a rose” on M a y 1, 1999 , the date of his VA medical examination, and was entitled to an effective date no earlier than September 24, 1997, the date of his reopened claim. Id. Jackson appealed. Before the Veterans’ Court, Jackson made a series of arguments. First, in his opening brief, Jackson argued his November 1991 let t er was “a valid informal claim” that required the VA to forward him a fo rmal applic ation under 38 C.F.R

. § 3.155(a) before the “one-year filing require ment of a formal claim” could ru n. In its op position the government correctly observed, as the Vete rans’ Court found, that there was no s u ch requirement regarding a formal application. Jackson , 2004 WL 1045921 at *4. The government further argued that t he December 1991 RO letter satisfied all VA n o tice obligations. In reply, Jackson argued the RO ’s December 1991 letter did not satisfy the VA’s notice obligations because “[t]he letter gav e the impression that [Jackson’s] claim remained indefinitely viable so long as new and material evidence were ultimately submitted.” Therefore, Jackson argued, the government could not apply the

04-7116 - 4 -abandonment provisions of Rule 3.158(a) to the Dec e mber 1991 denial letter. Jackson characterizes this argument from his reply br ief to the Veterans’ Court as the “equitable estoppel” argument in this appeal. The Veterans’ Court rejected this c ontention, deeming Ja ckson’s equitable argument waived. The Court declines to address [J ackson’ s notice argument] because it was raised for the first time in his reply brief. See Costantino v. West , 12 Vet. App. 517, 521 (1999) ; Henderson v. West , 12 Vet. App. 11, 18-19 (1998) ; Carbino v. Gober , 10 Vet. App. 507, 511 (1997) , aff' d, 168 F.3d 32, 34 (Fed. Cir. 1999). However, the Cour t notes that the appellant has not cited any authority to support his asse rtion that VA was required to notify him that his claim would be deem ed abandoned if he failed to submit additional evidenc e within one y ear; nor has he articulated how § 3.158(a) would be obviated by any such failure to notify. See [ Morris v. Derwinski , 1 Vet. App. 260, 265 (1991) (holding that claimants are deemed to have knowledge of requirements of § 3. 158(a) and that “abandonment pursuant to 38 C.F.R. § 3.158(a) cannot be set aside or waived on grounds of alleged ignorance of regulatory requirement s”)]. Jackson , 2004 WL 1045921, at *4. 1 The Veterans’ Court affirm ed the Board’s decision. With this appeal Jack son asks the court to determine that the VA is “estopped from considering the November 1991 informa l claim as abando ned in light of the VA’s failure to advise Mr. Jackson of the one-year abandonment provision a nd in view of its misleading correspondence of December 1991.” Our jurisdiction is controlled by 38 U.S.C. § 7292.
II. Section 7292 provides, in relevant part, After a dec ision of the United Stat es Court of Appeals f o r Veterans Claims is entered in a case, any par ty to the case may obtain a

1 The Veter ans’ Court adopted this parenthetical desc r iption of Morris from its opinion, Jackson , 2004 WL 1045921, at *3. That is , the Veterans’ Court expressly relied on the due process holding of Morris

. 04-7116 - 5 -review of the decis ion with respect to the validity of a decis ion of the Court [1] on a rule of law or [2 ] of any statute or regulation ... or any interpretation thereof (other t han a deter mination as to a factual matter) that was relied on by the Court in making the decision. 38 U.S.C. § 729 2(a) (2000), amended by Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 2832. The statute further provides that this court “may not review (A) a challenge to a factual det ermination, or (B) a challenge to a law or regulation as applied to the facts of a particu lar case,” except to the extent that an appeal “presents” a constitutional iss ue. Id

. § 7292(d)(2). Section 7292 provides th is court jurisdiction to review whether the Veterans’ Court applied the co rrect legal standard for waiver.
III. It is a general rule of appellate procedure that an appellant waives issues or arguments raised for the first time in a reply brief. See Carbino v. West , 168 F.3d 32, 34 (Fed. Cir. 1999); Becton Dick i nson & Co. v. C.R. Ba rd, Inc. , 922 F.2d 792, 800 (Fed. Cir. 1990); accord 16A C.A. Wright, A.R. Miller, and E.H. Cooper, Federal Practice and Procedure § 3974.3 (3d ed. 1999) (“[I] t is clearly settled that the appellant cannot rais e new issues in a reply brief; it can only resp ond to arguments raised for the first time in the appellee’s brief.”), & n. 3 (collecting cas e s) (“ Feder al Practice & Procedure ”). The textual bas is for the rule is typically taken as Fed. R. App. P. 28(a); in Carbino v. Gober , 10 Vet. App. 507, 511 (1997), the Veterans’ C ourt rooted this analysi s in its Rule of Practice 28(a)(3) (requiring a s t atement of issues in the opening brief), analogous to Fed. R. App. P. 28(a)(5) and Fe d. Cir. R. 28(a)(6). This rule furthers the basic purpose of the appellate system by forcing the appellant to raise all his arguments in a manner amenable t o adversarial testing.

04-7116 - 6 -The rule has well-recogni zed exc eptions. In Netword, LLC v. Centraal Corp. , 242 F.3d 1347 (Fed. Cir. 2001), this c ourt explained that “[w]hen a po tentially material issue or argument in defense of the judgment is raised for the first time in the appellee’s brief, fundamental fairness requires t hat the appellant be permitt ed to respond” to avoid a waiver. 242 F.3d at 1356. The commentators agree. See 16A Federal Practice & Procedure § 3974.3 (explainin g t he reply is proper where the opponent “has introduced a new iss ue or bas is for upholding the deci sion below”) (quoting Michael E. Tigar, Federal Appeals: Jurisdiction and Practice 356 (2d ed. 1993)); 5 Am . Jur. 2d Appellate Review § 561 (recognizing court’ s discretion, when required by t he interests of justice, to consider issues raised fo r the first time in r eply). The Veterans’ Court found Jackson’s es toppel argument waived. Jackson argues the Netword exception applies because not unt il its opposition brief did the government contend the VA sati sfied all its notice obligati ons. Consequently, Jackson argues, fundamental fairness requires he be allowed to respond. We hold that the Veterans’ Court applied the correct rule of waiv er and we affirm its judgment Each party will bear its own cost.

04-7116 - 7 -NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-7116 MELTON JACKSON, JR., Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretar y of Veterans Affairs, Respondent-Appellee.

LINN, Circuit Judge , dissenting. The Court of Appeals for Ve terans Claims (“Veterans’ Cour t”) refused to consider Jackson’s estoppel argument presented for the firs t time in his reply brief, holding that it had been waived. 1 Jackson v. Principi , No. 01-1975, slip op. at 3 (Vet. App. Apr. 16, 2004). I agree that this court has jurisdic tion to hear Jackson’s appeal. However, I disagree with the conclusion reached by the ma jority that the Veterans’ Court correctly applied the waiver rule in this case. I therefore respectfully dissent. Before the Board, Jackson argued that he was entitled to an ea rlier effective date of his prior award of compensat ion, claiming both the benefit of earlie r claims to reopen

1 The majority reports that the Ve terans’ Court both he ld this argument waived and rejected it on the merits. Ante at 5 & n.1. I believ e the court’s explicit statement that it “decline[d] to address” the point makes clear that the argument was not addressed on the merits, notwit hstanding the citation to Morris . To the extent that the Veterans’ Court did in fact reach the argum ent on the merits, it w ould not be waived and would be before us for review.and an earlier date of ent itlement. The Board did not c onsider whether Jackson’s 1991 letter constituted an informal claim and did not determine whether that informal claim, if it existed, had been abandoned. Rather, the Board dec i ded the case on the entitlement issue, remarking that “the effecti v e date of an award of compensat ion bas ed on a c l aim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is la ter .” In re Jackson , No. 99-23 875A, slip op. at 12 (Bd. Vet. App. Aug. 2, 2001). Specifically, the Board determined that “the veteran’s entitlement to service connection for schizo phrenia arose no earlier than the date of this medical op inio n wh ich first links the veteran’s schizoph renia to h i s military se rvice, that is, May 1, 1999.” Id. As to the 1991 letter, among ot her letters, the Board remarked that “even if such letters may be constr ued to be informal claims under 38 C.F.R. § 3.155, the fact remains that nexus opinion relating the ve teran’s schizop hrenia to his service was not received until M a y 1999.” Id. Thus, the Board did not cons ider whether the 1991 letter consti tuted an informal claim, nor did it consider whether such a claim had been abandoned. The Board’s decision wa s based on the date of entitlement. As this court explained in Netword, LLC v. Centraal Corp. , 242 F.3d 1347, 1356 (Fed. Cir. 2001), “When a potentially material issue or argument in def ense of th e judgment is raised for the first time in the appellee’s brief, fundament al fairness requires that the appellant be permitt ed to respond, lest the appe llate court deem the point conceded.” The Board never ruled on the e ffect of the November 1991 letter as an informal claim, and J a ckson had no reason to antic ipate t he abandonment argument, even when asserting the pendency of his 1991 cla i m. Thus, fundamental fairness requires that Jackson be permitte d to respond to the ne w issue.

04-7116 2Because I would reverse the Veterans’ Court’ s interpretation of th e waiver rule to preclude c onsideration of the equitable est oppel argument in this case, I would remand the case to the Veterans’ Court to consi der Jackson’s equitable estoppel contention in the first instance. I express no view as to whether suc h an argument is tenable against the government or, if so, whet her it has any application to the facts of this case.

04-7116 3