United States Court of Appeals for the Federal Circuit 

2006-7023 

MARIA R. RODRIGUEZ, 

Claimant-Appellee, 

v. 

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, 

Respondent-Appellant. 

Kenneth M. Carpenter, Carpenter, Chartered, Topeka, Kansas, argued for 

claimant-appellee. 

Kyle E. Chadwick, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for the respondentappellent. With him on the brief was Peter D. Keisler, Acting Attorney General. Of 

counsel was Todd M. Hughes. Of counsel on the brief was Joshua S. Blume, Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

Appealed from: The United States Court of Appeals for Veterans Claims 

Chief Judge Jonathan R. Steinberg 
United States Court of Appeals for the Federal Circuit 2006-7023 

MARIA R. RODRIGUEZ, 

Claimant-Appellee. 

v. 

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, 

Respondent-Appellant. 

Appeal from the United States Court of Appeals for Veterans Claims in 03-1276, Judge 

Jonathan R. Steinberg. 

__________________________ 

 DECIDED: January 7, 2008 

__________________________ 

Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and KEELEY,* Chief

District Judge. 

KEELEY, Chief District Judge. 

 James B. Peake, M.D., Secretary of Veterans Affairs (“the Secretary”), appeals 

from a decision of the United States Court of Appeals for Veterans Claims (“Veterans 

Court”), permitting a survivor of a deceased veteran to proceed with a claim for 

dependency and indemnity compensation (“DIC”). Rodriguez v. Nicholson, 19 Vet. App. 

275 (2005). That decision overturned a ruling by the Board of Veterans’ Appeals (“the 

Board”) and held that application of 38 C.F.R. § 3.22, as amended in January 2000, to a 

DIC claim pending prior to the amendment, took away a substantial right. The Veterans 

 *

 Honorable Irene M. Keeley, Chief District Judge, United States District 

Court for the Northern District of West Virginia, sitting by designation. 
Court held that the Board’s application of amended § 3.22 to Appellee Maria R. 

Rodriguez’s (“Rodriguez”) case had an unlawful “retroactive effect.” Because amended 

§ 3.22 does not have an unlawful “retroactive effect,” we reverse. 

I. BACKGROUND 

 As we have done in similar cases, we find it useful to briefly review the statutes 

governing the award of DIC benefits to survivors of deceased veterans before 

discussing the facts of this particular case. 

 DIC is a monthly benefit paid to certain survivors, such as a spouse, of certain 

deceased veterans. 38 U.S.C. § 1311 (2000). A veteran’s surviving spouse may 

receive DIC benefits if the veteran died from a service-connected disability. 38 U.S.C. 

§ 1310 (2000). A veteran dies from a “service-connected” disability when the disability 

was a principal or a contributory cause of the death. 38 C.F.R. § 3.312(a) (1989). 

 Alternatively, if a veteran’s death is not “service-connected,” 38 U.S.C. § 1318 

provides that a surviving spouse may still receive DIC benefits if the veteran had 

received, or was entitled to receive, compensation at the time of his or her death for a 

service-connected disability that had been continuously rated totally (100%) disabling 

for a period of 10 or more years immediately preceding death. 38 U.S.C. § 1318(b) 

(2000).1

 

 In 1990, the General Counsel of the United States Department of Veterans 

Affairs (“the Department”) announced an interpretation of § 1318 that precluded 

 1

 The language of § 1318 at issue in this case reads: “A deceased veteran 

referred to in subsection (a) of this section is a veteran who dies, not as the result of the 

veteran's own willful misconduct, and who was in receipt of or entitled to receive . . . 

compensation at the time of death for a service-connected disability rated totally 

disabling if — (1) the disability was continuously rated totally disabling for a period of 10 

or more years immediately preceding death . . . .” 38 U.S.C. § 1318(b). 

2006-7023 2
survivors of veterans from bringing claims for DIC benefits using a “hypothetical 

entitlement” approach. VA Gen. Coun. Prec. 68-90 (July 18, 1990). Under this 

approach, if the survivor of a deceased veteran can prove that a veteran would have 

been entitled to receive compensation for a 100% disabling service-connected disability 

for ten years prior to death, then the survivor may claim DIC benefits under § 1318, 

even though the deceased veteran did not actually receive such compensation. A 

survivor could meet this evidentiary burden by showing, for example, that (1) the 

veteran actually was 100% disabled for ten or more years prior to death, but did not file 

a claim and, therefore, did not receive compensation for that period of time, or (2) the 

veteran actually did file a claim, but the claim was improperly denied by the Board. 

 With this background, we now turn to the facts of the case at hand. 

 Rodriguez is the widow of Feliz Estremremera-Acevedo, a veteran who served 

three years with the Army National Guard, and then served on active duty in the U.S. 

Army for twenty years. Mr. Estremremera-Acevedo concluded his service in 1974. In 

1975, he applied to the Department for a determination of “service-connection” for a 

variety of physical ailments. The Department determined that three of his conditions, 

including diabetes mellitus, were service-related and listed them as 10% disabling. 

 By 1991, Mr. Estremremera-Acevedo’s diabetes had worsened and, as a result, 

his left leg was amputated below the knee. In 1992, the Veteran Affairs Regional Office 

(“VARO”) raised Mr. Estremremera-Acevedo’s disability rating to 100%, effective from 

April 22, 1991. Two years later, the VARO ruled on two additional claims by Mr. 

Estremremera-Acevedo. First, the VARO declined to increase his disability ratings for 

various other ailments, and second, it refused to assign an earlier effective date for the 

2006-7023 3
100% disability rating for his diabetes. Mr. Estremremera-Acevedo ultimately died from 

complications associated with liver cancer in August 1996. 

 In September 1996, Rodriguez filed a claim seeking DIC benefits under both 

38 U.S.C. § 1310 and § 1318. At that time, we had not yet interpreted the “entitled to 

receive” language of § 1318. For approximately six years prior to the time Rodriguez 

filed her claim, however, the Department had been refusing to recognize claims using 

the “hypothetical entitlement” approach. 

 In November 1996, the VARO found that Mr. Estremremera-Acevedo’s death 

was not service-related, and that he had only been listed as 100% disabled for five 

years prior to his death. It thus concluded that Rodriguez had failed to meet either of 

the conditions required to be eligible for DIC. Rodriguez appealed these findings to the 

Board. 

 While Rodriguez’s appeal was pending before the Board, the Veterans Court 

issued several decisions interpreting § 1318 and its implementing regulation, § 3.22. 

These decisions interpreted the “entitled to receive” language to permit a DIC claimant 

to pursue a “hypothetical entitlement” approach. Green v. Brown, 10 Vet. App. 111 

(1997); Carpenter v. West, 11 Vet. App. 140 (1998); Wingo v. West, 11 Vet. App. 307 

(1998). 

 In Green, the Veterans Court held that a surviving spouse could use any 

evidence available at the time of applying for DIC to “attempt to demonstrate that the 

veteran hypothetically would have been entitled to receive a different decision” on a 

prior benefits claim, and that the “different decision” would have resulted in the veteran’s 

receiving a 100% disability rating for at least ten years prior to death. 10 Vet. App. at 

2006-7023 4
118; accord Carpenter, 11 Vet. App. at 146-47. Similarly, in Wingo, the Veterans Court 

held that a surviving spouse could argue “hypothetical entitlement” where the 

Department of Defense had rated a veteran 100% disabled more than ten years prior to 

his death, but the veteran had only applied for benefits one month before his death. 11 

Vet. App. at 309-12. 

 In July 1998, the Board remanded Rodriguez’s claims for additional development 

and re-adjudication. In January 2000, the Secretary promulgated a final rule amending 

§ 3.22 to preclude reading a “hypothetical entitlement” approach into § 1318. See 65 

Fed. Reg. 3388 (Jan. 21, 2000). The amendment defined “entitled to receive” to mean 

that the deceased veteran had actually been rated 100% disabled for at least ten years 

prior to death, but, for one of several enumerated reasons,2

 was not receiving 

compensation. 38 C.F.R. § 3.22.3 

 2

 The amended text of 38 C.F.R. § 3.22 reads as follows: 

(a) Even though a veteran died of non-service-connected causes, VA will pay death 

benefits to the surviving spouse or children in the same manner as if the veteran's 

death were service-connected, if: 

(1) The veteran's death was not the result of his or her own willful misconduct, 

and 

(2) At the time of death, the veteran was receiving, or was entitled to receive, 

compensation for service-connected disability that was: 

(i) Rated by VA as totally disabling for a continuous period of at least 10 

years immediately preceding death; or 

(ii) Rated by VA as totally disabling continuously since the veteran's release 

from active duty and for at least 5 years immediately preceding death. 

(b) For purposes of this section, "entitled to receive" means that at the time of death, 

the veteran had service-connected disability rated totally disabling by VA but was 

not receiving compensation because: 

(1) VA was paying the compensation to the veteran's dependents; 

(2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to 

offset an indebtedness of the veteran; 

(3) The veteran had applied for compensation but had not received total 

disability compensation due solely to clear and unmistakable error in a VA 

2006-7023 5
In October 2002, the VARO again denied Rodriguez’s claims, and in December 

2002, the Board affirmed the VARO’s decision that Mr. Estremremera-Acevedo’s death 

was not related to a service-connected disability. The Board deferred consideration of 

Rodriguez’s § 1318 claim, however, pursuant to a stay issued by this Court in National 

Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 

1365, 1380 (Fed. Cir. 2001) (“NOVA I”). 

In NOVA I, we held that the phrase “entitled to receive,” as used in § 1318, is 

ambiguous. Id. at 1377. We deferred deciding whether the Secretary’s 2000 

amendment to § 3.22 was valid, however, in order to give the Department an 

opportunity to explain why it had interpreted the same phrase differently in another 

regulation.4

 Id. at 1380. In reaching this result, we agreed with the Department that the 

 

decision concerning the issue of service connection, disability evaluation, or 

effective date; 

(4) The veteran had not waived retired or retirement pay in order to receive 

compensation; 

(5) VA was withholding payments under the provisions of 10 U.S.C. §1174(h)(2); 

(6) VA was withholding payments because the veteran's whereabouts was 

unknown, but the veteran was otherwise entitled to continued payments 

based on a total service-connected disability rating; or 

(7) VA was withholding payments under 38 U.S.C. § 5308 but determines that 

benefits were payable under 38 U.S.C. § 5309. 

3

 Because Mr. Estremremera-Acevedo had not been rated 100% disabled 

for ten years prior to his death, none of the enumerated exceptions under this 

amendment apply to Rodriguez’s claim. 

 

4

 In a third NOVA decision, we summarized the issue as follows: “Since 

both sections 1311(a)(2) and 1318 have identical ‘entitled to receive’ language, it 

appeared that both should be interpreted in the same way. It was also clear that a 

veteran was ‘entitled to receive’ payments within the meaning of the statute if CUE 

[clear and unmistakable error] had occurred, but it was unclear whether the discovery of 

new and material evidence could lead to a finding that the ‘entitled to receive’ 

requirement was met.” Nat’l Org. of Veterans' Advocates, Inc. v. Sec’y of Veterans 

Affairs, 476 F.3d 872, 874 (Fed. Cir. 2007). 

2006-7023 6
amendment to § 3.22 was interpretive rather than substantive, which alleviated the 

notice and comment period requirements that otherwise would have attached under the 

Administrative Procedures Act. Id. at 1377. 

In January 2003, in National Organization of Veterans’ Advocates, Inc., v. 

Secretary of Veterans Affairs, 314 F.3d 1373, 1380 (Fed. Cir. 2003) (“NOVA II”), we 

found that, in attempting to comply with NOVA I, the Department had decided to 

continue to interpret the language of § 3.22 as “excluding new claims filed 

posthumously by a veteran’s survivor, that is, claims where no claim had been filed 

during the veteran’s life or the claim had been denied and was not subject to 

reopening.” Finding it reasonable, we deferred to the Department’s interpretation, thus 

upholding the Department’s decision to interpret “entitled to receive” as barring the 

“hypothetical entitlement” approach. Id. We remanded the case on the ground that the 

Department had failed to bring its interpretation of § 1311 into conformity with its 

interpretation of § 1318, but we lifted the stay on claims such as Rodriguez’s § 1318 

claim. Id. at 1381-82. 

In June 2003, the Board affirmed the VARO’s decision to deny Rodriguez’s 

§ 1318 DIC claim. In making this decision, the Board relied on the amended version of 

§ 3.22 that barred a claimant’s use of the “hypothetical entitlement” approach. On a 

separate issue, the Board also found that the Department had complied with its notice 

obligations under the Veterans Claims Assistance Act of 2000 (“VCAA”). The VCAA 

requires that the Department advise claimants of any information that the claimant will 

need to provide the Department in order to substantiate the claim. Pub. L. No. 106-475, 

2006-7023 7
§ 3(a), 114 Stat. 2096, 2096-97 (2000). The Department must also make reasonable 

efforts to assist the claimant in obtaining relevant records. Id.

 Rodriguez appealed the Board’s decision to the Veterans Court, which in August 

2005 reversed the Board’s decision and remanded the case to the Board. In doing so, 

the Veterans Court held that the Board had acted unlawfully when it retroactively 

applied the amended version of § 3.22 to Rodriguez’s DIC claim, because the 

amendment to § 3.22 had removed a substantive right that existed at the time the claim 

was filed. The Veterans Court further held that the Board should analyze Rodriguez’s 

claim under Green, Carpenter, and Wingo, the line of cases that permit a DIC claimant 

to allege “hypothetical entitlement” when applying for benefits. 

On the VCAA issue, the Veterans Court ruled that the Department had not met 

its duty under the VCAA of advising Rodriguez of the evidence necessary to 

substantiate her DIC claim under § 1318, using the hypothetical entitlement theory. The 

Veterans Court found that such failure would have the “natural effect” of prejudicing 

Rodriguez, which therefore shifted the burden to the Department to show that its failure 

to advise Rodriguez had not actually caused her prejudice. Ultimately, the Veterans 

Court found that the Department had failed to establish that it had no documents under 

its control relevant to Rodriguez’s § 1318 claim, and, therefore, had not met its burden. 

This appeal followed. We have jurisdiction pursuant to 38 U.S.C. § 7292(d). 

II. DISCUSSION 

A. 

We may review a decision by the Veterans Court with respect to the validity of 

“any statute or regulation . . . or any interpretation thereof (other than a determination as 

2006-7023 8
to a factual matter) that was relied on by the [Veterans] Court in making the decision.” 

38 U.S.C. § 7292(a) (2000). 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 limitations, or in violation of a statutory right; or (D) without 

observance of procedure required by law.” Id. at (d)(1). 

We review the Veterans Court’s legal determinations de novo. See Dittrich v. 

West, 163 F.3d 1349, 1351 (Fed. Cir. 1998) (citing Prenzler v. Derwinski, 928 F.2d 392, 

393 (Fed. Cir. 1991)). Therefore, we review, without deference, the Veterans Court’s 

legal determinations regarding the validity of a law or any interpretation thereof. 

Bingham v. Nicholson, 421 F.3d 1346, 1348 (Fed. Cir. 2005). We may not review 

factual determinations or the application of law to fact. 38 U.S.C. § 7292(d)(2). 

B. 

The Secretary argues that applying amended § 3.22 to Rodriguez’s DIC claim did 

not create an unlawful retroactive effect because it did not retrospectively diminish any 

of her rights to benefits. The Secretary alleges that the Veterans Court erred by not 

using the three-part test outlined by this Court in Princess Cruises v. United States, 397 

F.3d 1358 (Fed. Cir. 2005). According to the Secretary, under the Princess Cruises

test, the amended regulation does not have an impermissible retroactive effect. 

In Landgraf v. USI Film Products, 511 U.S. 244, 246, 265 (1994), the seminal 

case regarding the retroactive application of a statute, the United States Supreme Court 

recognized that “retroactivity is not favored in the law” and “the presumption against 

2006-7023 9
retroactive legislation is deeply rooted in our jurisprudence.” At the same time, “[a] 

statute does not operate ‘retrospectively’ merely because it is applied in a case arising 

from conduct antedating the statute’s enactment or upsets expectations based in prior 

law.” Id. at 269 (internal citations omitted). Therefore, in analyzing whether a particular 

statute should be applied to a case that originated before the statute was passed, a 

court “must ask whether the new provision attaches new legal consequences to events 

completed before its enactment.” Id. at 269-70. 

To determine whether the application of a new statute would have retroactive 

effect, the Supreme Court has suggested that “the familiar considerations of fair notice, 

reasonable reliance, and settled expectations offer sound guidance.” Id. at 270. In 

addition, courts should consider three factors, specifically (1) whether it would impair 

rights possessed by a party when he acted, (2) whether it would increase a party’s 

liability for past conduct, or (3) whether it would impose new duties with respect to 

already completed transactions. Id. at 280. If the statute is found to have a retroactive 

effect, then “our traditional presumption teaches that it does not govern absent clear 

congressional intent favoring such a result.” Id.

In Princess Cruises, we applied the holding in Landgraf to retroactive application 

of rules and regulations and recognized that “Landgraf explicitly requires the court to 

consider ‘the nature and extent of the change in the law,’ not merely whether a change 

has occurred.” Id. at 1362-63 (emphasis in original) (quoting Landgraf, 511 U.S. at 270). 

To that end, we created a three-part test encompassing the factors laid out in Landgraf: 

(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 

2006-7023 10
considerations of fair notice, reasonable reliance, and settled expectations.” Id. (quoting 

Landgraf, 511 U.S. at 270). If, under this test, a rule or regulation appears to have a 

retroactive effect, then the rule or regulation cannot be applied to cases pending at the 

time of its promulgation. 

We do not know why the Veterans Court did not apply the Princess Cruises test 

to the facts here, but we agree with the Secretary that application of the test is 

appropriate in this case. The Veterans Court issued its decision in August 2005, after 

Princess Cruises was decided in February 2005; thus the test was available to the 

Veterans Court at the time of its ruling. We therefore proceed to analyze whether 

§ 3.22 has a retroactive effect under the three-part Princess Cruises test. 

 1. The Nature and Extent of the Change of the Law 

In its 2005 decision, the Veterans Court found that the nature and extent of the 

change in the law was substantial. We agree with the Veterans Court that, during the 

years after Green was issued but before NOVA I stayed the cases, Rodriguez and 

others like her had a cognizable claim for DIC benefits under the “hypothetical 

entitlement” approach. Consequently, many claimants who would have had a claim for 

DIC benefits under the Green interpretation of § 1318 no longer have a claim due to the 

amendment of § 3.22. Our analysis, however, cannot end there. 

The Secretary asserts that the 2000 amendment to § 3.22 was neither an 

unforeseeable nor a fundamental change in law. Essentially, the Secretary argues that, 

from 1990 until the Veterans Court issued its opinion in Green in 1997, the Department 

interpreted both § 1318 and its implementing regulation, § 3.22, as precluding the 

“hypothetical entitlement” approach. In support of this, the Secretary points out that the 

2006-7023 11
General Counsel for the Department officially announced this interpretation in 1990. 

Then, when the Veterans Court’s decisions in Green and its progeny breathed life into 

the “hypothetical entitlement” theory, the Secretary responded by amending § 3.22 to 

clarify that § 1318 could not be read to allow “hypothetical entitlement” claims. 

In addition, the Secretary points to our decisions in NOVA I and NOVA II, holding 

that the language of § 1318 is ambiguous with regard to whether it allows “hypothetical 

entitlement” claims. The Secretary cites National Cable & Telecommunications 

Association v. Brand X Internet Services, 545 U.S. 967, 981-83 (2005), for the 

proposition that courts owe deference to an agency’s reasonable regulatory 

interpretation of an ambiguous statute, even where a court has previously adopted a 

different interpretation. Because Rodriguez should have expected that deference would 

be shown to the Secretary’s interpretation of the ambiguous “entitled to receive” 

language, the Secretary contends that the 2000 amendment cannot be considered a 

sharp or unexpected change in law. 

According to Rodriguez, however, the 2000 amendment did not reaffirm the 

Department’s settled position because the Department’s position was only settled within 

the private recesses of its institutional mind. She argues that the pre-1997 

interpretation of § 1318 was sufficiently unclear to allow the Green interpretation by the 

Veterans Court. Thus, the Department’s position only became clear in 2000 when it 

amended § 3.22. 

We agree with the Secretary that, from 1990 until Green was decided in 1997, 

the Department’s interpretation of the “entitled to receive” language of §§ 1318 and 3.22 

2006-7023 12
clearly precluded DIC claims using the “hypothetical entitlement” approach. While the 

statutory language remained ambiguous, the Secretary’s interpretation did not. 

Furthermore, in NOVA I, we found that § 3.22 was an “interpretive rule” rather 

than a “substantive rule.” In reaching this conclusion, we cited Paralyzed Veterans of 

America v. West, 138 F.3d 1434 (Fed. Cir. 1998), for the proposition that “substantive 

rules are those that effect a change in existing law or policy or which affect individual 

rights and obligations.” NOVA I, 260 F.3d at 1375 (internal quotations omitted). 

Interpretive rules, on the other hand, “clarify or explain existing law or regulation,” and a 

rule may still be interpretive even though it has consequences for the rights of the 

parties. Id. at 1375-76. Thus, in NOVA I, we held that the amendment to § 3.22 did “no 

more than interpret the requirements of § 1318” and clarify the agency’s earlier 

interpretation of that statute. Id. at 1377. 

In keeping with our decision in NOVA I, we find here that, in amending § 3.22, 

the Secretary was merely clarifying the Department’s earlier interpretation of § 1318, 

and, thus, the nature and extent of the change to the law was not substantial. 

2. The Degree of Connection Between the Operation of the New Rule 

and a Relevant Past Event 

In laying out the second factor of the Princess Cruises test, we stated that “not 

only must a new rule effect a significant change in the law, but this change must also 

have a significant connection with past events.” 397 F.3d at 1365-66. In Princess 

Cruises, a new U.S. Customs rule required that certain data be collected, and created 

an evidentiary presumption to be applied when that data was not available. Id. at 1360. 

The cruise line had failed to collect the relevant data from trips that had occurred prior to 

the new rule. Id. This Court found that the new law had a significant connection with 

2006-7023 13
past events, because the cruise line would never be able to rebut the evidentiary 

presumption established by the new rule. Id. at 1366. 

Here, in contrast, § 3.22 does not meaningfully alter the consequences of 

relevant past events. The Secretary asserts that § 3.22 governs prospective entitlement 

to DIC, and that the application of a new provision that only authorizes or affects the 

propriety of prospective relief is not retroactive. See Landgraf, 511 U.S. at 275. In 

addition, the Secretary maintains that application of amended § 3.22 does not increase 

the evidentiary burden on Rodriguez, but merely narrows the scope of what is 

admissible. Finally, the Secretary argues that there is no relevant connection between 

the filing of Rodriguez’s claim and the operation of § 3.22. He points out that Rodriguez 

filed her claim before Green and its progeny were decided, and that Rodriguez therefore 

could not have relied on the state of the law as it was after Green permitted the 

“hypothetical entitlement” approach. 

Rodriguez asserts that the 2000 amendment of § 3.22 occurred solely as a result 

of Green and its progeny, and thus is connected to past events. Unlike the plaintiff in 

Princess Cruises, however, Rodriguez is unable to point to anything she would have 

done differently had she known the effect of the 2000 amendment when she filed her 

claim. 

We agree with the Secretary that there is no significant connection to past events 

in this case. Rodriguez did not rely to her detriment on the prior state of the law. When 

she originally filed her claim, Green and its progeny had not yet been decided. 

Although Rodriguez was entitled to the benefit of those cases after they were issued, 

she did not act differently because of those cases. While those holdings may have 

2006-7023 14
injected new hope into her case, merely continuing to pursue a claim does not 

constitute a significant connection to past events under the Princess Cruises test.5

 

3. Familiar Considerations of Fair Notice, Reasonable Reliance, and 

Settled Expectations 

The third factor is whether the new rule upsets the familiar considerations of fair 

notice, reasonable reliance, and settled expectations. We have yet to determine how 

much weight to give this factor. In Princess Cruises, we noted that the Fourth Circuit 

has required that, in order to establish that a rule would have an impermissible 

retroactive effect, the party advancing that theory needs to show “objectively reasonable 

reliance,” as opposed to subjective reliance, on the prior state of the law. 397 F.3d at 

1366 (citing Olatunji v. Ashcroft, 387 F.3d 383, 396 (4th Cir. 2004)). We also noted that 

the D.C. Circuit “appears to view ‘the familiar considerations’ as akin to a tiebreaker in 

close cases.” Id. (citing Marrie v. SEC, 374 F.3d 1196, 1207 (D.C. Cir. 2004)). In 

Princess Cruises, however, we declined to decide how this Court would weigh this 

factor because we found that all three factors in Princess Cruises pointed in favor of 

finding a retroactive effect. Id. Similarly, here, because we find that all three factors 

favor the same position, we need not decide how much weight to afford the third prong 

of the test. 

In applying the third factor, the Secretary emphasizes, as did we in NOVA I, that 

the phrase “entitled to receive” in § 1318(b) is ambiguous. He argues that, because 

deference is owed to the Secretary’s interpretation of ambiguous statutes, Rodriguez 

could not have reasonably relied on a construction of § 1318(b) by the Veterans Court 

 5

 We need not decide in this case whether the result would be different if 

Rodriguez had filed her claim after Green was decided. 

2006-7023 15
that conflicted with the VA’s own announced interpretation. Moreover, Rodriguez had 

fair notice of the Department’s position, given that, before Green, the Department had 

consistently refused to recognize this interpretation, and, after Green, in both Carpenter

and Wingo, the Department continued to oppose the Veterans Court’s interpretation of 

the “hypothetical entitlement” approach. 

Rodriguez claims she did not, in fact, have fair notice of the change in the law. 

She asserts that the amendment to § 3.22 was a new statement of law, not merely a 

clarification, and that, regardless of what the Department intended the interpretation of 

§ 1318 to be, Green and its progeny represented a legitimate interpretation of the 

statute. Had the Department’s interpretation of the statute been as settled as the 

Secretary claims, Rodriguez concludes, the Veterans Court would never have decided 

the Green line of cases as it did. 

Rodriguez correctly points out that the Department did not appeal Green,

Carpenter, or Wingo to this Court, thereby potentially creating the impression that the 

Department was accepting those cases as valid interpretations of the law. This possible 

impression, however, is insufficient to refute the Secretary’s evidence that Rodriguez 

had fair notice of the Department’s interpretation of the “entitled to receive” language. 

At the time Rodriguez filed her claim, the Department precluded the “hypothetical 

entitlement” approach. After Green, the Secretary continued to oppose the approach in 

other cases, including Carpenter and Wingo. Given this history, we agree that 

Rodriguez had fair notice of the Department’s interpretation beginning the day she filed 

her claim. 

2006-7023 16
Furthermore, Rodriguez can hardly argue that she had “settled expectations” 

regarding the law, given the multiple changes to the interpretation of the statute that 

occurred while her claim was pending. As for reasonable reliance, Rodriguez could not 

have relied on the “hypothetical entitlement” approach when she first filed her claim, 

because she filed her claim pre-Green. While Rodriguez may have relied on the 

Veterans Court’s decisions after they were issued, she did not change her position 

based on such reliance. Thus, we find that the third Princess Cruises factor also weighs 

heavily in favor of the Secretary. 

Because all three Princess Cruises factors indicate that applying the amended 

version of § 3.22 to Rodriguez’s DIC claim does not create an unlawful retroactive 

effect, we reverse the decision of the Veterans Court on this issue. In doing so, we hold 

that 38 C.F.R. § 3.22, as amended by the Secretary in 2000, does not have a 

retroactive effect and may be applied to claims for DIC benefits filed by survivors before 

the amendment took effect. 

C. 

 In briefing this appeal, the Secretary raised a second issue, questioning whether 

the Veterans Court had correctly interpreted the rule of prejudicial error when it found 

that the Department’s failure to notify Rodriguez of information necessary to 

substantiate her claim pursuant to 38 C.F.R. § 3.159(b) was automatically prejudicial. 

During oral argument, however, the Secretary conceded that we settled this issue in 

2006-7023 17
2006-7023 18

Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), and Simmons v. Nicholson, 487 

F.3d 892 (Fed. Cir. 2007).6

 We therefore need not address it again here. 

III. CONCLUSION 

 For the reasons stated above, we reverse. 

REVERSED. 

 6

 In Sanders and Simmons, we held that the VA’s failure to provide notice 

pursuant to § 5103(a) automatically creates a presumption of prejudice, and thus the 

burden of persuasion shifts to the VA to show that the failure to provide information 

under § 5103(a) did not actually result in prejudicial error.