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

______________________ 

DOROTHY M. MOFFITT, of Victorville, California, pro 

se. 

ALLISON KIDD-MILLER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were STUART F.

DELERY, Assistant Attorney General, ROBERT E.

KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, JR.,

Assistant Director. Of counsel on the brief were DAVID J.
2 MOFFITT v. MCDONALD

BARRANS, Acting Assistant General Counsel, and 

RACHAEL T. BRANT, Attorney, United States Department 

of Veterans Affairs, of Washington, DC. 

______________________ 

Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.

O’MALLEY, Circuit Judge.

Dorothy M. Moffitt (“Mrs. 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 entitlement to enhanced dependency and indemnity compensation under 38 U.S.C. § 1311. Moffitt v. Shinseki, 26 Vet. 

App. 424 (2014). For the reasons explained below, we 

affirm. 

BACKGROUND

Mrs. Moffitt is the widow of Douglas A. Moffitt, a veteran of World War II. Mr. Moffitt served on active duty in 

the United States Army 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% disability rating, with special monthly compensation, effective 

March 1953. With the exception of a three-month period 

in 1958, during 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 compensable disability, the surviving spouse, children, and 

parents may qualify for dependency and indemnity compensation (“DIC”). 38 U.S.C. § 1310. If the veteran’s 

death is not service-connected, 38 U.S.C. § 1318 provides 
MOFFITT 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 veteran’s death. 38 U.S.C. § 1318(b). 

After Mr. Moffitt’s death, Mrs. Moffitt sought DIC 

benefits pursuant to 38 U.S.C. § 1151, which provides 

that, when a veteran suffers an additional disability or 

death as the result of VA hospitalization, medical or 

surgical 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 incurred during hospitalization at a VA facility, within the 

meaning of the pertinent laws and regulations.” Appendix (“A”) 40. Accordingly, the Board granted Mrs. Moffitt’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 individual 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 phlebitis on 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 on 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). 

 
4 MOFFITT v. MCDONALD

disability rating for “a period of at least eight years immediately preceding death.” 38 U.S.C. § 1311(a)(2).2 

According to Mrs. 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 Mrs. Moffitt a letter indicating that it 

was deferring consideration of her claim for enhanced DIC 

benefits “pending the completion of litigation 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 theory.” A “hypothetical entitlement” claim—like Mrs. Moffitt’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 entirety of the 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 enhanced [DIC] benefits pursuant to 38 U.S.C. § 1311.”). 

 
MOFFITT v. MCDONALD 5 

In the interim, the RO found no clear and unmistakable error (“CUE”) in the January 1980 rating decision that 

denied Mr. Moffitt benefits for a hernia and thrombophlebitis. The Board affirmed, and Mrs. Moffitt appealed that 

decision to the Veterans Court. In May 2002, Mrs. Moffitt—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 

hernia and thrombophlebitis should be deemed abandoned.” A46. 

The Board remanded Mrs. Moffitt’s claim for enhanced 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. Moffitt’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 establish 
6 MOFFITT v. MCDONALD

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, 

the 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 barring 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 his 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 entitlement to a disability rating, she was precluded from asserting it. 

Mrs. Moffitt appealed the Board’s decision to the Veterans Court. Because the VA had amended 38 C.F.R. 

§ 20.1106 and added 38 C.F.R. § 3.10 while Mrs. Moffitt’s 

claim was pending, the parties agreed that remand was 

necessary for the Board to consider and apply the retroactivity analysis set forth in Princess Cruises, Inc. v. United 

States, 397 F.3d 1358 (Fed. Cir. 2005). Accordingly, the 

Veterans Court remanded her claim for further adjudication. Moffitt v. Shinseki, No. 08-2894, 2010 WL 1337707, 

at *1 (Vet. App. Apr. 7, 2010). 

Applying the Princess Cruises factors on remand, the 

Board determined that application of the amended regulations to Mrs. Moffitt’s claim did not create an unlawful 
MOFFITT v. MCDONALD 7 

retroactive effect. Specifically, the Board compared Mrs. 

Moffitt’s § 1311(a)(1) claim to the § 1318 claim at issue in 

Rodriguez, and concluded that: (1) the changes in 38 

C.F.R. §§ 20.1106 and 3.103 were similar to the changes to 

38 C.F.R. § 3.22, which this court found not substantial in 

Rodriguez; (2) as was the case for the claimant in Rodriguez, Mrs. Moffitt filed her claim for enhanced DIC benefits prior to the change in the law, and there was no 

indication that she relied 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 hypothetical entitlement when she first filed her claim” because it 

was the “VA’s consistent policy to not allow this approach.” 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 includes 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). 

 
8 MOFFITT v. MCDONALD

Before the Veterans Court, Mrs. 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 threejudge panel of the Veterans Court found that this distinction was insufficient to warrant a different outcome, 

particularly since “it should have been apparent that 

when Mrs. Moffitt filed her claim in 1999, the hypothetical entitlement theory may no longer be permitted for 

section 1311 claims.” Id. at 432. Applying the Princess 

Cruises 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. 

Mrs. Moffitt timely appealed to this court. We have 

jurisdiction under 38 U.S.C. § 7292.

DISCUSSION

Our jurisdiction to review Veterans Court decisions is 

limited by statute. Pursuant to 38 U.S.C. § 7292(a), the 

court may review “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation 

. . . or any interpretation thereof (other than a determination as to a factual matter) that was 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 discretion, or otherwise not in accordance with law; (B) contrary 

to constitutional right, power, privilege, or immunity; 

(C) in excess of statutory jurisdiction, authority, or limita-
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 determinations de novo. Rodriguez v. Peake, 511 F.3d 1147, 

1152 (Fed. Cir. 2008). Accordingly, we review the “Veterans 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, Mrs. 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 jurisdiction. See 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 entitlement claims for enhanced DIC benefits under § 1311. 

Specifically, she argues that she filed her claim for enhanced 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 retroac-

 
10 MOFFITT v. MCDONALD

In response, the Secretary argues that, “[t]o the extent Mrs. Moffitt challenges the Veterans Court’s holding 

that the Princess Cruises factors weigh in favor of applying the amended VA regulations barring hypothetical 

entitlement claims for enhanced DIC under section 1311,

and to the extent the Court determines that such a challenge falls within its jurisdiction,” we should affirm. Sec’y 

Informal Br. 10. According to the Secretary, the VA’s 

amended regulations barring hypothetical 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) “the 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 Prods., 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 concluded that application of the Princess Cruises factors 

results in the same outcome as in Kernea. For the reasons explained below, we agree. 

A. Nature and Extent of the Change in the Law

The first Princess Cruises factor is “the nature and extent 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 hypothetical 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 longstanding opposition to the hypothetical entitlement 

theory.” Sec’y Informal 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” benefits for a service-connected disability that was rated 

totally disabling for 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 interpreting “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 original)). 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 provisions of 38 U.S.C. 1318 . . . , issues involved in a 

survivor’s claim for death benefits will be decided 

without regard to any prior disposition of those issues 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 excluded 
12 MOFFITT v. MCDONALD

§ 1318—but not § 1311—hypothetical entitlement claims 

were permitted under § 1311, 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 amendment to § 20.1106 

to: 

make VA’s position clear that entitlement to benefits under either 38 U.S.C. 1318 or 38 U.S.C. 1311 

must be based on the determinations made during 

the veteran’s lifetime, or challenges to such decisions on the basis of clear and unmistakable error,

rather than on de novo posthumous determinations as to whether the veteran hypothetically 

could 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 became 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 

disposition 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 section 1318, but 

instead tied DIC payments to a veteran’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 

construed “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 implementing regulations for § 1311(a)(2) and § 1318. Id. at 

1381. 

This 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 prohibit

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 veteran’s lifetime;” or (2) “service department records . . . 

provide[] 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 subsequently 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, 876-77 (Fed. Cir. 2007) (“NOVA 

III”) (finding that the VA’s regulations implementing both 
14 MOFFITT v. MCDONALD

§ 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 consistently held that the VA’s amended regulations barring hypothetical entitlement claims can be applied retroactively to 

claims filed before the regulatory amendments took effect. 

See Rodriguez, 511 F.3d at 1156 (holding that the amended version of 38 C.F.R. § 3.22 “may be applied to claims 

for DIC benefits filed by survivors before the amendment 

took effect”); Tarver v. Shinseki, 557 F.3d 1371, 1374-77 

(Fed. Cir. 2009) (finding that 38 C.F.R. § 3.22 applies 

retroactively to previously-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 hypothetical 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 change 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] amendment.” 511 F.3d at 1153. The 

“analysis, however, cannot end there.” Id. Instead, in 

both Tarver and Rodriguez, we found the regulatory 

amendments at issue insignificant because they “merely 

reinstated the [VA’s] earlier interpretation” of the phrase 
MOFFITT v. MCDONALD 15 

“entitled to receive” 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 lifetime, coupled with the VA’s regulatory amendments, support the Veterans Court’s conclusion that the “Secretary has consistently disfavored 

hypothetical entitlement.” Id. And, as the Secretary 

argues, “[a]lthough the hypothetical entitlement theory 

was cognizable for a brief period of time following Hix, 

that interpretation was not well settled, not of long standing, and was never expressly endorsed or adopted by VA.” 

Sec’y Informal Br. 18. Accordingly, the first Princess 

Cruises factor weighs in favor of 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 past 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.3d 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 she 
16 MOFFITT v. MCDONALD

would have done differently had she known the effect of 

the 2000 amendment when she filed her claim.’” 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 survivor’s right to raise a collateral challenge to the agency’s initial assessment of the disability.” 

Id. at 1376. We explained that “[c]oncerns about retroactivity are at their nadir when the rule change in question 

is directed only to the scope of collateral 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. Kernea’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 because 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 amended rule 

[3.10(f)(3)] cannot be attributed to the change 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 in 
MOFFITT 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 432. Both claims were filed well before 

Congress enacted § 1311(a)(2), before this court’s decision 

in Hix, and before the VA promulgated § 3.10(f)(3). 

Accordingly, as was the case in Kernea, Mr. Moffitt’s 

“failure to conform his conduct to the requirements” of 

amended rules 20.1106 and 3.10(f)(3) “cannot be attributed 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 because 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 Notice, Reasonable Reliance, 

and Settled Expectations

Finally, the third Princess Cruises factor requires consideration of “familiar considerations of fair notice, reasonable reliance, and settled expectations.” 397 F.3d at 

1366. Although this court has declined 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 no longer 

an available theory of recovery. Moffitt, 26 Vet. App. at 

432. We agree with the Veterans Court that “it should 
18 MOFFITT v. MCDONALD

have been apparent . . . when Mrs. Moffitt filed her claim 

in 1999 [that] the hypothetical entitlement theory may no 

longer be permitted 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 unreasonable.” Tarver, 557 

F.3d at 1376. We agree with the Veterans Court that 

Mrs. Moffitt’s claim was filed against this same background. We therefore conclude that the third factor 

weighs in favor of retroactive application.

CONCLUSION

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 entitlement claim. Accordingly, the judgment of the Veterans 

Court is affirmed.

AFFIRMED

COSTS

Each party shall bear its own costs.