NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

WILLIAM F. MORRIS,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2016-1573

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 14-2862, Judge Lawrence B. 

Hagel.

______________________ 

Decided: June 14, 2016 

______________________ 

WILLIAM F. MORRIS, Pulaski, TN, pro se.

ANAND RAVI SAMBHWANI, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent-appellee. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., CLAUDIA BURKE; Y. KEN LEE, JONATHAN 

KRISCH, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
2 MORRIS v. MCDONALD

 

______________________ 

Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.

PER CURIAM. 

William F. Morris seeks review of the decision of the 

United States Court of Appeals for Veterans Claims 

(Veterans Court), dismissing for lack of jurisdiction his 

request for the Veterans Administration (VA) to return an 

overpayment in the amount of $8,857, and affirming a 

decision of the Board of Veterans’ Appeals (Board), which 

had denied his claim for an earlier effective date for total 

disability based on individual unemployability (TDIU). 

Morris v. McDonald, No. 14-2862, 2016 WL 147901 (Vet. 

App. Jan. 13, 2016). We find that the Veterans Court 

properly determined that it lacked jurisdiction over the 

overpayment issue. We dismiss Mr. Morris’ remaining 

arguments for lack of jurisdiction, and to the extent that 

his appeal makes out a constitutional claim over which we 

would have jurisdiction, we reject that claim.

BACKGROUND

Mr. Morris served on active duty in the U.S. Army 

from October 1966 to September 1969. He first sought a 

TDIU claim in an October 1989 personal hearing. At that 

time, the VA had determined that Mr. Morris had serviceconnected disabilities from a right thigh gunshot wound, 

with muscle damage, and post-traumatic stress disorder 

(PTSD), with a 70 percent combined rating. In March 

1990, the VA regional office (RO) denied his TDIU claim, 

and he appealed to the Board. In May 1991, the Board 

affirmed the March 1990 rating decision, and Mr. Morris 

appealed to the Veterans Court, which affirmed the 

Board’s decision in August 1992. Mr. Morris did not 

appeal this decision. Although he later attempted to 

reopen the May 1991 Board decision based on clear and 

unmistakable error (CUE), the Board denied his request, 
MORRIS v. MCDONALD 3

and we affirmed. Morris v. Nicholson, 122 F. App’x 473, 

476 (Fed. Cir. 2005).

On July 28, 1993, Mr. Morris requested an increased 

rating for PTSD, stating that he had “lost another job.” 

Although the RO and the Board initially denied his claim 

throughout several successive proceedings, the Board 

eventually granted Mr. Morris TDIU in July 2000, and in 

May 2001, the RO assigned his effective date for TDIU of 

July 28, 1993. Mr. Morris submitted a Notice of Disagreement, requesting an earlier effective date for TDIU of 

October 1989. In February 2007, the RO denied Mr.

Morris’ request for the earlier effective date, and the 

Board affirmed in January 2012. In June 2013, the 

Veterans Court vacated the January 2012 Board decision 

and remanded on the issue of an earlier effective date 

because the Board had failed to consider Mr. Morris’ 

service-connected PTSD. In August 2014, the Board 

found that the VA received Mr. Morris’ claim for increased rating for PTSD in July 1993, and “[n]o evidence 

has been presented which shows that [Mr. Morris] was 

unemployable as a result of service-connected disability 

within the one year period prior to July [] 1993.” Morris, 

2016 WL 147901, at *3. In January 2016, the Veterans 

Court affirmed, noting that the Board found no evidence 

of a worsening of his TDIU within the one year period 

prior to July 1993. Mr. Morris appeals this decision.

Meanwhile, the VA discovered an overpayment issue 

because Mr. Morris had been receiving a dependency 

allowance for his daughter, who was over the age of 18 

and simultaneously receiving Chapter 35 educational 

benefits. In September 2003, the RO sent Mr. Morris a 

letter notifying him of the overpayment issue, and Mr. 

Morris requested a waiver from recovery of the overpayment. After several proceedings before the RO and the 

Board, in January 2012, the Board denied his request for 

waiver, finding that although both Mr. Morris and the VA 

were both at fault for the overpayment, there was no 
4 MORRIS v. MCDONALD

indication that return of the overpayment would result in 

financial hardship, the original purpose of the overpayment (educational assistance) was no longer applicable, 

failure to make restitution would result in unfair gain, 

and there was no evidence that Mr. Morris relied on the 

overpayment to his detriment. The Veterans Court 

affirmed in June 2013, denying Mr. Morris’ request to 

waive recovery of the overpayment in the amount of 

$8,857. 

In its June 2013 decision, the Veterans Court reviewed both the earlier effective date issue and the overpayment issue, but it remanded to the Board only on the 

earlier effective date issue. However, rather than wait for 

the Board to complete its review of the earlier effective 

date issue on remand, Mr. Morris elected to appeal immediately the Veterans Court’s ruling on the overpayment 

issue, and we affirmed in December 2013. Morris v. 

Shinseki, 549 F. App’x 973, 976 (Fed. Cir. 2013). Mr. 

Morris later attempted to reopen the Board’s January 

2012 decision on the overpayment issue based on CUE, 

but the Board dismissed his claim in August 2014, finding 

that its January 2012 decision was subsumed by the

decisions of the Veterans Court and the Federal Circuit. 

The Board noted that any challenge would have to be 

done through a motion for extraordinary relief from the 

Veterans Court. 

Subsequently, when the earlier effective date issue returned to the Veterans Court in January 2016, Mr. Morris 

also presented argument on the overpayment issue in his 

reply brief to the Veterans Court. The Veterans Court 

declined to address the overpayment issue because it was 

not properly on appeal and it was improperly raised for 

the first time in his reply brief. Mr. Morris now seeks 

reversal of the Veterans Court on both the overpayment 

issue and the denial of an earlier effective date. Mr. 

Morris contends that the VA should return the overpayment of $8,857 because the benefit-of-the-doubt rule 
MORRIS v. MCDONALD 5

should favor the veteran when both the VA and the 

veteran are at fault. As for the denial of the earlier 

effective date, he argues that the Veterans Court did not

consider his increase in PTSD rating to 70% and an 

attorney letter describing the loss of another job. 

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited. We have jurisdiction “to review and 

decide any challenge to the validity of any statute or 

regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent 

presented and necessary to a decision.” 38 U.S.C. 

§ 7292(c). Except when a veteran brings a constitutional 

challenge, we lack jurisdiction to review any “challenge to 

a factual determination” or any “challenge to a law or 

regulation as applied to the facts of a particular case.” 38 

U.S.C. § 7292(d)(2).

Mr. Morris asserts that his appeal falls under our jurisdiction because it (1) addresses the validity or interpretation of a statute or regulation and (2) raises a 

constitutional challenge.

We first consider whether Mr. Morris’ appeal addresses any determination by the Veterans Court on the validity or interpretation of a statute or regulation. Mr. Morris 

asserts that his appeal challenges the validity or interpretation of 38 U.S.C. § 5107(b) because he seeks return of 

the overpayment based on the benefit-of-the-doubt rule. 

Section 5107(b) directs that the VA shall give the benefit

of the doubt to the veteran when there is “an approximate 

balance of positive and negative evidence regarding any 

issue material to the determination of a matter.” Mr. 

Morris contends that the Veterans Court erred by not 

considering his request to return the overpayment. The 

Veterans Court applied its own jurisdictional statute, 38 

U.S.C. § 7252(a), to find that it lacked jurisdiction to 

review the overpayment issue because this issue was not 
6 MORRIS v. MCDONALD

properly on appeal. Morris, 2016 WL 147901, at *4. We 

find that the Veterans Court correctly found that it lacked

jurisdiction under § 7252(a) because the Board decision on 

review before the Veterans Court did not cover the overpayment issue, which we note was already decided by the 

RO, the Board, the Veterans Court, and this court in the 

previous proceeding. See Morris, 549 F. App’x at 975. We 

affirm the Veterans Court’s finding of lack of jurisdiction 

over the overpayment issue. See Andre v. Principi, 301 

F.3d 1354, 1363–64 (Fed. Cir. 2002).

Even if Mr. Morris’ arguments on the overpayment issue before the Veterans Court could be construed as an 

appeal of the Board’s denial of his claim for CUE and a 

motion for extraordinary relief, we lack jurisdiction over 

that challenge because the Veterans Court “simply applied the jurisprudential rule that ‘an issue not raised by 

an appellant in its opening brief . . . is waived.’” Id. at

1363 (quoting Becton Dickinson & Co. v. C.R. Bard, Inc., 

922 F.2d 792, 800 (Fed. Cir. 1990)). “[A]ll that transpired 

in the Veterans Court” was that Mr. Morris did “not 

brief[] the CUE claims that had been decided by the BVA 

and the court then applying the abandonment rule.” Id. 

The Veterans Court’s application of the abandonment rule 

to find waiver of an issue is not a claim within our jurisdiction. See id. at 1363–64.

Mr. Morris also appeals under 38 C.F.R. § 3.400(o)(2), 

which provides that an effective date can be awarded for 

up to one year before the date of a claim for increased 

compensation. The Veterans Court found that “an increase in a veteran’s service-connected disability must 

have occurred during the one year prior to the date of the 

veteran’s claim in order to receive the benefit of an earlier 

effective date.” See Gaston v. Shinseki, 605 F.3d 979, 984 

(Fed. Cir. 2010). Again, Mr. Morris does not challenge the 

validity or interpretation of this regulation, but the Veterans Court’s application of the regulation to the facts of 
MORRIS v. MCDONALD 7

his case because he contends that his increased PTSD 

rating of 70% and an attorney letter describing the loss of 

Mr. Morris’ job merits an earlier effective date. We lack 

jurisdiction over such a challenge.

Second, we consider Mr. Morris’ contention that his 

appeal involves a constitutional challenge based on due 

process for both the overpayment issue and the earlier 

effective date. To the extent that we have jurisdiction 

over this challenge, we find that Mr. Morris’ claims lack 

merit because he received notice and a fair opportunity to 

be heard. “Due process of law has been interpreted to 

include notice and a fair opportunity to be heard.” Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). 

On the overpayment issue, the RO denied Mr. Morris’ 

request for a waiver in October 2008, the Board affirmed 

in January 2012, and the Veterans Court affirmed in 

June 2013. In December 2013, we affirmed, holding that 

Mr. Morris received fair notice and an opportunity to be 

heard because he had been given several opportunities to 

challenge the overpayment issue before the VA, the 

Board, and the Veterans Court. Morris, 549 F. App’x at 

975. As we noted then, “[w]hatever due process requires, 

it requires no more than that.” Id.

On the denial of his request for an earlier effective 

date for TDIU, Mr. Morris does not dispute that the RO, 

the Board, and the Veterans Court adjudicated his claim. 

He also does not argue that he was denied notice or an

opportunity to be heard, but instead alleges that the 

Veterans Court failed to consider certain evidence in 

ruling against him. Mr. Morris is really arguing the 

merits of his claim rather than raising a separate constitutional contention. His “characterization of that question as constitutional in nature does not confer upon us 

jurisdiction that we otherwise lack.” Helfer v. West, 174 

F.3d 1332, 1335 (Fed. Cir. 1999). We see no violation of 

any constitutional principle in the record below.
8 MORRIS v. MCDONALD

CONCLUSION

We find that the Veterans Court properly found that 

it lacked jurisdiction to decide the overpayment issue. As 

for Mr. Morris’ remaining arguments, we lack jurisdiction 

to consider his challenges to the Veterans Court’s rulings 

on abandonment and an earlier effective date. To the 

extent that Mr. Morris raises a constitutional claim over 

which we would have jurisdiction, we reject this claim.

AFFIRMED

COSTS

No Costs.