# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DOROTHY M. MOFFITT, Claimant

- Appellant,

v.

ROBERT A. MCDONALD, Secretary of Veterans Affairs , Respondent

- Appellee.

______________________

2014

- 7071

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 10

- 4078, Judge Lawrence B. Hagel, Judge William Greenberg, Judge William A. Moorman.

______________________

Decided: January 21, 2015

______________________

D OROTHY M. M OFFITT , of Victorville, California, pro

se.

A LLISON K IDD -M ILLER , Senior Trial Counsel, Co mmercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respon dent

- appellee. With her on the brief were S TUART F. D ELERY , Assistant Attorney General, R OBERT E. K IRSCHMAN , J R

. , Director, and M ARTIN F. H OCKEY , J R ., Assistant Director. Of counsel on the brief were D AVID J.MOFFITT v. MCDONALD 2

B ARRANS , Acting Assistant General Counsel, and R ACHAEL T. B RANT , Attorney, United States Department of Veterans Affairs, of Washington, DC.

______________________

Before L OURIE , M OORE , and O’M ALLEY , Circuit Judges.

O’M ALLEY , Circuit Judge.
Dorothy M. Moffitt (“ Mr s. Moffitt”) appeals pro se from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals (“Board”) decision that denied ent itlement to enhanced dependency and indemnity compe nsation under 38 U.S.C. § 1311. Moffitt v. Shinseki , 26 Vet. App. 424 (2014). For the reasons explained below, we affirm

. B ACKGROUND

Mr s. Moffitt is the widow of Douglas A. Moffitt, a ve teran of World War II. Mr. Moffitt served on active duty in the United Sta tes A rmy from July 1944 until May 1946

, when he was discharged as a result of injuries sustained during service. In 1946, Mr. Moffitt applied for disability benefits and the Department of Veterans Affair’s Regional Office (“RO”) awarded him a combined disability rating of 100%. In a subsequent rating decision, however, the RO reduced Mr. Moffitt’s benefits to a combined 60% disabi lity rating, with special monthly compensation, effective March 1953. With the exception of a three

- month period in 1958, d uring which Mr. Moffitt received a temporary disability rating of 100%, his combined rating remained at 60% until his death in 1982.

When a veteran dies from a service

- connected or co mpensable disability, the surviving spouse, children, and parents may q ualify for dependency and indemnity co mpensation (“DIC”). 38 U.S.C. § 1310. If the veteran’s death is not service

- connected, 38 U.S.C. § 1318 providesMOFFITT v. MCDONALD 3

that the surviving spouse and children may qualify for DIC if the veteran received, or was “entitled to receive,” benefits for a service

- connected disability that was rated totally disabling for the 10

- year period prior to the vete ran’s death. 38 U.S.C. § 1318(b).
After Mr. Moffitt’s death, Mr s. Moffitt sought DIC benefits pursuant to 38 U.S.C. § 1151, w hich provides that, when a veteran suffer s an additional disability or death as the result of VA hospitalization, medical or

sur gical treatment, or examination , disability or DIC benefits shall be awarded in the same manner as if such disability or death were service

- connected. In a June 1991 decision, the Board concluded that, “[w]ith the benefit of the doubt being resolved in the appellant’s favor, the veteran’s death was the result of injury i ncurred during hospitalization at a VA facility, within the

m eaning of the pertinent laws and regulations.” Appe ndix (“A”) 40. Accordingly, the Board granted Mrs. Mo ffitt’s claim for DIC benefits. 1 The Department of Veterans Affairs (“VA”) also posthumously granted Mr. Moffitt’s pending claim for total disability based on ind ividual unemployability (“TDIU” ) and assigned a 1979 effective date.
In July 1999, Mrs. Moffitt filed “a motion to revise a January 1980 rating decision that denied her husband’s benefits for post

- operative left inguinal hernia and phleb itis o n the basis of clear and unmistakable error.” Moffitt

, 26 Vet. App. at 426. A month later

— in August 1999

— Mrs. Moffitt applied for enhanced DIC benefits pursuant to 38 U.S.C. § 1311, which applies where the veteran “was entitled to receive” compensation o n the basis of a total

1 The Board granted Mrs. Moffitt’s claim for DIC benefits under 38 U.S.C. § 351, which was redesignated as 38 U.S.C. § 1151

. See Pub. L. No. 102

- 83, § 5(a) , 105 Stat. 378, 406 (Aug. 6, 1991).MOFFITT v. MCDONALD 4

disability rating for “a period of at least eight years i mmediately preceding death.” 38 U.S.C. § 1311(a)(2). 2 According to M r s. Moffitt, her husband “should have been rated at [] 100% [disabled] for 10 or more years [prior to his death].” Moffitt , 26 Vet. App. at 426 (alteration in original).

The RO sent M r s. Moffitt a letter indicating that it was deferring consideration of her claim for enhanced DIC benefits “pending the completion of litig ation in the case of Hix v. West .” Id . (citing Hix v. West , 12 Vet

. App. 138 (1999)). The issue in Hix was whether the “entitled to receive” language in § 1311 permits an award of enhanced DIC benefits based on a “hypothetical entitlement the ory.” A “hypothetical entitlement” claim

— like M rs. Mo ffitt’s

— is a new claim that “would permit the Board to adjudicate a claim for DIC benefits on a hypothetical basis, ‘without regard to claim filing or claim dispositions during the veteran’s lifetime.’” Kernea v. Shinseki , 724 F.3d 1374, 1377 (Fed. Cir. 2013) (quoting Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs , 314 F.3d 1373, 1377 (Fed. Cir. 2003) (“ NOVA II ”)). “In other words, the Board could make a ‘ de novo determination of the veteran’s disability, upon the en tirety of t he record including any new evidence presented by the surviving spouse.’” Id . (quoting Hix v. Gober , 225 F.3d 1377, 1380

- 81 (Fed. Cir. 2000)).

2 Although the record reveals that Mrs. Moffitt’s August 1999 filing requested DIC benefits under 38 U.S.C. § 1318 , subsequent documents clarify that she was seeking enhanced DIC benefits under 38 U.S.C. § 1311. See Moffitt v. Shinseki , No. 08

- 2894, 2010 WL 1337707, at *1 (Vet. App. Apr. 7, 2010) (“Ms. Dorothy M. Moffitt moves pro se for the remand of an August 11, 2008, decision of the [Board] that denied entitlement to e nhanced [DIC] benefits pursuant to 38 U.S.C. § 1311.”).MOFFITT v. MCDONALD 5

In the interim, the RO found no clear and unmistak able error (“CUE”) in the January 1980 rating decision that d enied Mr. Moffitt benefits for a hernia and thrombophl ebitis. The Board affirmed , and Mrs. Moffitt appealed that decision to the Veterans Court. In May 2002, Mrs. Mo ffitt

— who was represented by counsel

— entered into a joint motion for partial remand for the Board to consider her still

- pending claim for enhanced DIC benefits. In the motion, the parties agreed that “the denial of entitlement to accrued benefits on the basis of CUE in a January 18, 1980 rating decision that denied service connection for a he rnia and thrombophlebitis should be deemed aba ndoned.” A46.

The Board remanded Mrs. Moffitt’s claim for e nhanced DIC benefits to the RO. In an April 2004 rating decision, the RO denied her claim on the merits, finding that the evidence of record failed to show that Mr. Moffitt became totally disabled eight years or more before his death. Mrs. Moffitt appealed that decision to the Board.
In an August 2008 decision, the Board denied Mrs. Moffitt’s claim for enhanced DIC benefits , finding that the VA ’s regulations, which were amended while Mrs. Mo ffitt’s claim was pending, precluded her hypothetical entitlement theory

. Specifically , “38 C.F.R. § 20.1106 was amended to clarify that, as with decisions under 38 U.S.C. 1318, decisions under 38 U.S.C. 1311(a)(2) will be decided taking into consideration prior dispositions made during the veteran’s lifetime of issues involved in the survivor’s claim.” A61. And, in 2005, the VA promulgated 38 C.F.R. § 3. 10(f), which defined the phrase “entitled to receive” in § 1311(a)(2) to preclude hypothetical entitlement. See Dependency and Indemnity Compensation: Surviving Spouse’s Rate, 70 Fed. Reg. 72211, 72212 (Dec. 2, 2005).
The Board explained that, while Mrs. Moffitt’s claim was pending, this court upheld VA regulations barring use of the hypothetical entitlement theory to establishMOFFITT v. MCDONALD 6

entitlement to DIC benefits under either § 1311 or § 1318. See NOVA II , 314 F.3d at 1378

- 80 ( holding that the VA could construe “entitled to receive” in § 1311 and § 1318 to preclude hypothetical entitlement claims). For example,
t he Board cited this court’s decision in Rodriguez v. Peake

, 511 F.3d 1147, 1156 (Fed. Cir. 2008), where we held that an amendment to 38 C.F.R. § 3.22 ba rring hypothetical entitlement as a basis for DIC benefits under section § 1318 could be applied to claims filed prior to the amendment.
Given this precedent, the Board concluded that “the Courts have held that ‘hypothetical entitlement’ as an additional basis for establishing eligibility to enhanced DIC benefits is prohibited regardless of when the claim is filed.” A63. Although the Board recognized that the VA’s regulations permit enhanced DIC benefits where the deceased veteran filed a claim during h is lifetime and would have received total disability compensation for at least eight years before death but for CUE, Mrs. Moffitt did not allege CUE with respect to any prior decision. Because Mrs. Moffitt’s claim for increased DIC benefits was based solely on hypothetical entitlemen t to a disabi lity rating, she was precluded from asserting it

. Mrs. Moffitt appealed the Board’s decision to the Ve terans Court. Because the VA had amended 38 C.F.R. § 20.1106 and added 38 C.F.R. § 3.10 while Mrs. Moffit t’s claim was pending, the parties agreed that remand was necessary for the Board to consider and apply the retroactivity analysis set fort h in Princess Cruises, Inc. v. United States , 397 F.3d 1358 (Fed. Cir. 2005). Accordingly, the Veterans Court remand ed her claim for further adjudic ation. Moffitt v. Shinseki , No. 08

- 2894, 2010 WL 1337707, at *1 (Vet. App. Apr. 7, 2010).
Applying the Princess Cruise s factors on reman d, the Board determined that application of the amended reg ulations to Mrs. Moffitt’s claim did not create an unlawfulMOFFITT v. MCDONALD 7

retroactive effect. Specifically, t he Board compared Mrs. Moffitt’s § 1311(a)(1) claim to the § 1318 claim at issue in Rodriguez , and concluded that: (1) the c hanges in 38 C.F.R. § § 20.1106 and 3.10 3 were similar to the ch anges to 38 C.F.R. § 3.22, which this court found not substantial in Rodriguez ; (2) as was the case for the claimant in Rodr iguez , Mrs. Moffitt filed her claim for enhanced DIC ben efits prior to the change in the law

, and there was no indication that she r elied on the prior law or would have acted differently if the law had not changed; and (3) Mrs. Moffitt “could not have relied on the theory of hypothe tical entitlement when she first filed her claim” because it was the “ VA’s c onsistent policy to not allow this a pproach .” In re Moffitt , No. 06

- 24 327, 2010 BVA LEXIS 49605 , at * 17

- 20 (Bd. Vet. App. Nov. 23, 2010) (“2010 Board Decision” ). Because her claim was based on a hypothetical entitlement theory, the Board concluded that Mrs. Moffitt was not entitled to enhanced DIC benefits. Id . at * 21

- 22. Mrs. Moffitt appealed this decision to the Veterans Court.
In June 2013, the Veterans Court stayed proceedings in Mrs. Moffitt’s appeal pending resolution of this court’s decision in Kernea v. Shinseki , 724 F.3d 1374 (Fed. Cir. 2013)

. In Kernea , we held that § 3.10(f)(3) can apply retroactively to prohibit § 1311 claims based on a theory of hypothetical entitlement. Id . at 1381

- 82. Shortly thereafter, the Veterans Court lifted the stay and the parties filed supplemental briefing on the effect this court’s decision in Kernea had on Mrs. Moffitt’s appeal.

3 Although the Board’s decision cites 38 C.F.R. § 3.5(e), that section was removed and replaced with new 38 C.F.R. § 3.10, which includ es the “entitled to receive” language at issue in this appeal in § 3.10(f)(3). See Dependency and Indemnity Compensation: Surviving Spouse’s Rate, 70 Fed. Reg. 72211, 72212 (Dec. 2, 2005).MOFFITT v. MCDONALD 8

Befo re the Veterans Court, M r s. Moffitt argued

, through counsel

, that her case is distinguishable from Kernea , because she filed her claim in August 1999, before the VA took steps to prohibit use of the hypothetical entitlement theory, whereas the claimant in Kernea filed her claim in June 2003, after the VA began “taking steps to overturn hypothetical entitlement for claims under section 1311(a)(2).” Moffitt , 26 Vet. App. at 427. A three

judge panel of the Veterans Court found that this distin ction was insufficient to warrant a different outcome

, particularly since “it should have been apparent that when Mrs. Moffitt filed her claim in 1999, th e hypothe tical entitlement theory may no longer be permitted for section 1311 claims

. ” Id . at 432. Applying th e Princess Cruise s factors, as we did in Kernea , the Veterans Court found that the amendment to § 20.1106 and promulgation of § 3.10(f)(3) could be applied retroactively to bar Mrs. Moffitt’s theory of entitlement. Accordingly, the Veterans Court affirmed the Board’s 2010 decision denying Mrs. Moffitt’s claim for increased DIC benefits.

Mr s. Moffitt timely appealed to this court. We have jurisdiction under 38 U.S.C. § 7292.

D ISCUSSION Our jurisdiction to review Veterans Court decisions is limited by stat ute. Pursuant to 38 U.S.C. § 7292(a), the court may review “the validity of a decision of the [Vete rans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determin ation as to a factual matter) that wa s relied on by the [Veterans] Court in making the decision.” In doing so, we must decide “all relevant questions of law” and set aside any regulation or interpretation relied on by the Veterans Court that is “(A) arbitrary, capricious, an abuse of discr et ion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limit a-MOFFITT v. MCDONALD 9

tions, or in violation of a statutory right; or (D) without observance of procedure required by law.” Id . at (d)(1).

This court reviews the Veterans Court’s legal dete rminations de novo. Rodriguez v. Peake , 511 F.3d 1147, 1152 (Fed. Cir. 2008). Accordingly, we review the “ Vete rans Court’s legal determinations regarding the validity of a law or any interpretation thereof” without deference. Id

. Absent a constitutional issue, however, we may not review factual determinations or the application of a law or regulation to the facts of a particular case. 38 U.S.C. § 7292(d)(2).
On appeal, M r s. Moffitt argues that the Veterans Court erred when it reviewed the documents she sent in support of her enhanced DIC claim. She asks this court to “review ALL documentation that is available to review the severe war wounds that the veteran . . . sustained on the battlefield.” Informal Br. 2. These assertions, which appear to relate only to factual issues underlying Mrs. Moffitt’s claim, are outside the scope of this court’s juri sdiction. S ee 38 U.S.C. § 7292(d)(2).
In her Informal Reply Brief, however, Mrs. Moffitt challenges the Veterans Court’s retroactive application of the amended VA regulations barring hypothetical ent itlement claims for enhanced DIC benefits under § 1311. Specifica lly, she argues that she filed her claim for e nhanced DIC benefits in August 1999

— before the VA amended its regulations in 2005

— and that, “when a claim is filed some years before a law is passed, it should be valid and honored while awaiting the passage of a law.” Informal Reply 1. 4

4 Although Mrs. Moffitt did not specifically raise this argument in her opening brief on appeal, she was represented by counsel in the proceedings before the Veterans Court and her counsel challenged the retroa c-MOFFITT v. MCDONALD 10

In response, the Secretary argues that, “[t]o the e xtent Mrs. Moffitt challenges the Veterans Court’s holding that the Princess Cruises factors weigh in favor of appl ying the amended VA regulations barring hypothetical entitl ement claims for enhanced DIC under section 1311, and to the extent the Court determines that such a cha llenge falls within its jurisdiction,” we should affirm. Sec’ y Informal Br. 10. According to the Secretary, the VA’s amended regulations barring hypot hetical entitlement claims are not unlawfully retroactive.

This court has identified three factors a court is to consider in determining whether a regulation should be given retroactive effect: (1) “the nature and extent of the change of the law”; (2) “t he degree of connection between the operation of the new rule and a relevant past event”; and (3) “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Princess Cruises , 397 F.3d at 1364 (quoting Landgraf v. USI Film Pro ds. , 511 U.S. 244, 270 (1994)).
As noted, in Kernea

, we found that all three factors weighed in favor of applying § 3.10(f)(3) retroactively to prohibit the claimant’s hypothetical entitlement claim under § 1311(a)(2). 724 F.3d at 1382. According to the Secretary

, the Veterans Court in this case properly co ncluded that application of the Princess Cruises factors results in the same outcome as i n Kernea

. For the re asons explained below, we agree.

A. Nature and Extent of the Change in the Law

The fir st Princess Cruises factor is “the nature and e xtent of the change of the law.” 397 F.3d at 1364 (internal

tive application of the VA’s amended regulations. Mrs. Moffitt is pro se in this appeal, and we construe her submissions liberally as a challenge to the retroactive application of the revised regulations.MOFFITT v. MCDONALD 11

quotation and citation omitted). Although Mrs. Moffitt is correct that the revised regulations prohibiting hypothe tical entitlement were not in effect when she filed her claim for enhanced DIC benefits in 1999 , we agree with the Secretary that the VA’s amendment to § 20.1106 and promulgation of § 3.10 “merely codified VA’s long

standing opposition to the hypothetical entitlement theory.” Sec’y Infor mal Br. 12.
Congress created enhanced DIC benefits as part of the Veterans’ Benefits Act of 1992 for survivors of veterans who were in receipt of or were “entitled to receive” ben efits for a service

- connected disability that was rated totally disabling fo r at least eight years before death

. Pub. L. No. 102

- 568, § 102(a)(2), 106 Stat. 4320, 4321

- 22 (Oct. 29, 1992). By that time

, the VA General Counsel had issued a precedential opinion interpret ing “entitled to receive” in a similar statute

— 38 U.S.C. § 1318

— as the “actual receipt of total disability benefits for a minimum period of 10 years, not [merely] entitlement thereto.” Moffitt , 26 Vet. App. at 431 (quoting VA Gen. Coun. Prec. 68

- 90 (July 18, 1990) (alteration in o riginal) ) . In that report, the “VA gave no indication that it would provide de novo review of a veteran’s previously denied claims to see if she or he hypothetically would be entitled to a total disability rating.” Id

. In 1992

— roughly nine months before Congress amended § 1311 to include enhanced DIC benefits

— the VA promulgated 38 C

. F.R. § 20.1106, which provided that : Except with respect to benefits under the prov isions of 38 U.S.C. 1318 . . . , issues i n volved in a survivor’s claim for death ben e fits w ill be decided without regard to any prior disposition of those i ssues during the veteran’s lifetime.

38 C.F.R. § 20.1106 (1992). In our 2000 decision in Hix

, we found that, because § 20.1106 specifically excludedMOFFITT v. MCDONALD 12

§ 1318

— but not § 1311

— hypothetical entitl ement c laims were permitted under § 131 1, but not under § 1318. 225 F.3d at 1380

- 81 (“We affirm the ruling of the Court of Appeals for Veterans Claims that the ‘entitled to receive’ provision of § 1311(a)(2) requires de novo determination of the veteran’s disability, upon the entirety of the record including any new evidence presented by the surviving spouse.”). 5
In 2001, the VA proposed an amend ment to § 20.1106
to: make VA’s position clear that entitlement to ben efits under either 38 U.S.C. 1318 or 38 U.S.C. 1311 must be based on the determ i nations made during the veteran’s lifetime, or challenges to such dec isions on the basis of clear and unmistakable error, rather than on de novo posthumous determin ations as to whether the veteran hypothetically coul d have been entitled to certain benefits if he or she had applied for them during his or her lifetime.
Board of Veterans’ Appeals Rules of Practice: Claim for Death Benefits by Survivor, 66 Fed. Reg. 65,861, 65,861 (Dec. 21, 2001)

. The amendment, which be came effective in May 2002, provided that : “[e]xcept with respect to benefits under the provisions of 38 U.S.C. § 1311(a)(2)

, [and] 1318, . . . issues involved in a survivor’s claim for death benefits will be decided without regard to any prior dispositio n of those issues during the veteran’s lifetime.” Board of Veterans’ Appeals Rules of Practice: Claim for

5 As the Secretary explains, § 20.1106 did not refer to § 1311, “which, at that time, did not contain the same ‘entitled to receive’ provision found in secti on 1318, but instead tied DIC payments to a vet eran’s military rank.” Sec’ y Informal Br. 13 (citing 38 U.S.C. § 1311(a) (1991)).MOFFITT v. MCDONALD 13

Death Benefits by Survivor, 67 Fed. Reg. 16,309, 16,317 (Apr. 5, 2002) (emphasis added).
On appeal, this court held that the VA reasonably
construe d “entitled to receive” in § 1311 and § 1318 to exclude “new claims filed posthumously by a veteran’s survivor, that is, claims where no claim had been denied and was not subject to reopening.” NOVA II , 314 F.3d at 1380. We remanded , however, for further rulemaking proceedings so that the VA could harmonize the impl ementing regulations for § 1311(a)(2) and § 1318. Id . at 1381.

Th is court’s remand in NOVA II prompted the VA to promulgate 38 C.F.R. § 3.10(f)(3), which interpreted the phrase “entitled to receive” in § 1311(a)(2) to prohib it hypothetical entitlement claims. See Kernea , 724 F.3d at 1380. Specifically, § 3.10(f)(3) defines “entitled to receive” as used in § 1311(a)(2) to mean “that the veteran filed a claim for disability compensation during his or her lifetime and” either: (1) “would have received total disability compensation for [the eight years prior to death] but for [CUE] . . . in a decision on a claim filed during the vete ran’s lifetime;” or (2) “service department records . . . provid e[] a basis for reopening a claim finally decided during the veteran’s lifetime” and retroactively awarding a total disability rating for the eight years prior to death. 38 C.F.R. § 3.10(f)(3)( i- ii).
Section 3.10 became effective December 2, 2005, and applies to new claims filed after that date, as well as claims like Mrs. Moffitt’s, which were pending before the VA prior to the effective date of the rule. See 70 Fed. Reg. at 72,212. This court subse quently affirmed § 3.10 as a reasonable interpretation of statutory authority. See Nat’ l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs , 476 F.3d 872, 87 6-7 7 (Fed. Cir. 2007) (“NOVA III”) (finding that the VA’s regulations implementing bot hMOFFITT v. MCDONALD 14

§ 1311 and § 1318

— 38 C.F.R. § 3.10(f)(3) and 38 C.F.R. § 3.22(b), respectively

— were reasonable).
As the Veterans Court explained, we have consiste n tly held that the VA’s amended regulations barring hyp othetical entitlement claims c an be applied retroact ively to claims filed before the regulatory amendments took effect. See Rodriguez , 511 F.3d at 1156 (holding that the amen ded version of 38 C.F.R. § 3.22 “ ma y be applied to claims for DIC benefits filed by survivors before the amendment took effect”); Tar ver v. Shinseki , 557 F.3d 1371, 13 74

- 77 (Fed. Cir. 2009) ( finding that 38 C.F.R. § 3.22 applies retroactively to previous ly

- filed DIC claims).
Relevant to this appeal , we recently found that 38 C.F.R. § 3.10(f)(3) applied retroactively to bar a claim for enhanced DIC benefits under § 1311(a)(2) based on the hypothetical entitlement theory. Kernea , 724 F.3d at 1379

- 82

. As noted, before the Veterans Court, Mrs. Moffitt argued that her case is distinguishable from Kernea because she filed her claim for enhanced DIC benefits in August 1999, before the VA took steps to prohibit the use of hypothet ical entitlement . In contrast, by the time Ms. Kernea filed her claim in 2003, “the VA had amended § 20.1106 to explicitly refer to § 1311 and thereby bring the interpretation of § 1311(a)(2) in line with that of § 1318.” Kernea

, 724 F.3d at 1379. As we recognized in Tarver , however, the timing of a surviving spouse’s DIC claim “is irrelevant to the first Princess Cruises factor

— the nature and extent of the chan ge in the law.” Tarver , 557 F.3d at 1375. And in Rodriguez , we acknowledged that “many claimants who would have had a claim for DIC benefits” under precedent accepting the hypothetical entitlement theory “no longer have a claim due to the [VA’s] amendmen t.” 511 F.3d at 1153. The “analysis, however, cannot end there.” Id . Instead, i n both Tarver and Rodriguez , we found the regulatory

a mendments at issue insignificant because they “merely reinstated the [VA’s] earlier interpretation ” of the phraseMOFFITT v. MCDONALD 15

“entitled to re cei ve” in § 1318. Tarver , 557 F.3d at 1375 (citing Rodriguez , 511 F.3d at 1154).
We agree with the Veterans Court that the VA’ s amendment to § 20.1106 and promulgation of § 3.10 (f)(3) merely “reiterate VA’s long

- standing opposition to the use of hypothetical entitlement. ” Moffitt , 26 Vet. App. at 431 (internal quotation and citation omitted) . The 1990 VA General Counsel opinion, which interpreted “entitled to receive” as requiring the “actual receipt” of benefits during a veteran’s lifet ime, coupled with the VA’ s regul atory amendments, support the Veterans Court’s concl usion that the “Secretary has consistently disfavored hypothetical entitlement.” Id

. A nd, a s the Secretary argues, “[a]lthough the hypothetical entitlement theory

was cog nizable for a brief period of time following Hix

, that interpretation was not well settled, not of long stan ding, and was never expressly endorsed or adopted by VA.” Sec’y Informal Br. 18. Accordingly, the first Princess Cruises factor weighs in favo r o f applying amended § 20.1106 and § 3.10 (f)(4) to Mrs. Moffitt’s claim

. B. Connection with Past Events

The second Princess Cruises factor is “the degree of connection between the operation of the new rule and a relevant p ast event.” 397 F.3d at 1365 . To determine “whether the statute or regulation at issue has a significant nexus to relevant past events, we have frequently looked to whether the rule affects ‘primary conduct,’ i.e., the conduct that gave rise to the suit or claim at issue.” Tarver , 557 F.3d at 1375 (quoting Rodriguez , 511 F.3d at 1155). In Tarver and Rodriguez , we found that the amendment of 38 C.F.R. § 3.22 to preclude hypothetical entitlement claims under § 1318 did not have a significant connection to past events. See Tarver , 557 F.3 d at 1375

- 76; Rodriguez , 511 F.3d at 1155.

In Tarver , we explained that, “[l]ike the claimant in Rodriguez , Mrs. Tarver is ‘unable to point to anything sheMOFFITT v. MCDONALD 16

would have done differently had she known the effect of the 2000 amendment when she filed her clai m.’” Tarver

, 557 F.3d at 1375 (quoting Rodriguez , 511 F.3d at 1155). Although the amendment at issue in Tarver “changed the legal standards from those that were applicable when Mrs. Tarver’s claim was filed,” the change “related only to the scope of a su rvivor’s right to raise a collateral cha llenge to the agency’s initial assessment of the disabil ity. ” Id . at 1376. We explained that “[c]oncerns about retroa ctivity are at their na dir when the rule change in question is directed only to the scope of coll ateral review of a prior adjudication. ” Id . (citations omitted). Ultimately we concluded that, “even assuming that the second factor provides some support for Mrs. Tarver, the countervailing Princess Cruises factors weigh[ed] heavily against finding that according the regulation retroactive effect would be improper.” Id . (citation omitted).
Likewise, in Kernea , we found that there was “nothing Ms. Kernea could have done differently had she known the effect of the 2005 amendment when she filed her claim.” 724 F.3d at 1381. There, the relevant conduct “took place in the 1960s

— decades before § 1311(a)(2) was even enacted

— when [Ms. Kernea’s] husband filed his disability claims.” Id

. We recognized that “Ms. K ernea’s husband might have filed his disability claim ‘earlier or prosecuted it more vigorously in the first instance ,’

. . . if he had known that hypothetical entitlement claims would be disallowed.” Id . (quoting Tarver , 557 F.3d at 1375). But b ecause he filed his claims “decades before Congress enacted § 1311(a)(2), before this court decided Hix , and before the VA promulgated § 3.10(f)(3), his failure to conform his conduct to the requirements of amend ed rule [3.10(f)(3)] cannot be attributed to the cha nge in the law occasioned by that rule.” Id . (alteration in original) (internal quotation and citation omitted).
Applying our reasoning in Kernea , the Veterans Court noted that the relevant conduct here “ took place either inMOFFITT v. MCDONALD 17

1946 when Mr. Moffitt filed his initial claim for benefits or 1979 when he filed his request for a total disability rating based on individual unemployability.” Moffitt , 26 Vet. App. at 43 2. Both claims were filed well before Congress enacted § 1311(a)(2), before this court’s decis ion in Hix

, and before the VA promulgated § 3.10(f)(3). Accordingly, as was the case in Kernea

, Mr. Moffitt’s “failure to co nform his conduct to the requirements” of amended rules 20.1106 and 3.10(f)(3) “cannot be attribu ted to the change in the law occasioned by” those rules. Id

. (quoting Kernea , 724 F.3d at 1381 ).

We see no reason to disturb the Veterans Court’s analysis. Even assuming, as in Tarver , that “the second factor provides some support” for Mrs. Moffitt beca use the amended regulations “changed the legal standards from those that were applicable ” when her claim was filed, 557 F.3d at 1376, the remaining Princess Cruises factors weigh in favor of applying revised § 20 .1106 and § 3.10 retroactively.

C. Fair Noti ce, Reasonable Reliance, and Settled Expectations
Finally, the third Princess Cruises factor requires co nsideration of “familiar considerations of fair notice, re asonable reliance, and settled expectations.” 397 F.3d at 1366. Although this court has dec lined to determine how much weight to give this factor, we have noted that the Court of Appeals for the District of Columbia Circuit appears to view it “as akin to a tiebreaker in close cases.” Princess Cruises , 397 F.3d at 1366 (citing Marrie v. SEC

, 374 F.3d 1196, 1207 (D.C. Cir. 2004)).
Before the Veterans Court, Mrs. Moffitt argued that, because she filed her claim before the VA took any “public steps” to “disallow hypothetical entitlement,” she did not have notice that hypothetical entitlement was n o longer

a n available theory of recovery

. Moffitt , 26 Vet. App. at 432. We agree with the Veterans Court tha t “it shouldMOFFITT v. MCDONALD 18

have been apparent . . . when Mrs. Moffitt filed her claim in 1999 [that] the hypothetical entitlement theory may no longer be permit ted for section 1311 claims.” Id

. As previously discussed in the context of the first Princess Cruises factor, the Secretary has disfavored hypothetical entitlement since at least the 1990 VA General Counsel Opinion, and appealed the Veterans Court’s decision in Hix

. Id . Mrs. Moffitt’s claims were specifically stayed pending resolution of that litigation

. In Tarver , we found that the VA had an “unwavering opposition to hypothetical entitlement claims ” such that “any expectation that the statutory interpretation . . . was not subject to change through administrative action would have been objectively unre asonable.” Tarver , 557 F.3d at 1376. We agree with the Veterans Court that Mrs. Moffitt’s claim was filed against this same bac kground. We therefore conclude that the third factor weighs in favor of retroactive application.

C ONCLUSION For the foregoing reasons, we find that , on balance, the Princess Cruises factors weigh in favor of applying the amendment to § 20.1106 and promulgation of § 3.10(f)(3) retroactively to bar Mrs. Moffitt’s hypothetical entitl ement claim. Accordingly, the j udgment of the Veterans Court is affirmed.

AFFIRMED

C OSTS Each party shall bear its own costs.