Frances D'aries v. ERIC KSHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7206
FRANCES D'ARIES,
Claimant-Appellee,
v.
ERIC K SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in
03-1974, Judge Lawrence B. Nagel.
ON MOTION
Before GAJARSA, FRIEDMAN, and LINN, Circuit Judges.
LINN, Circuit Judge.
ORDER
The Secretary of Veterans Affairs responds to the court's June 17, 2008 order
and requests that the court summarily reverse the judgment of the United States Court
of Appeals for Veterans Claims in D'Aries v. Nicholson, No. 03-1974.
On September 17, 2003, the Board of Veterans' Appeals denied Frances
D'Aries's 1999 claim for dependency and indemnity compensation (DIC), finding that
D'Aries's husband was not in receipt of or entitled to receive compensation for a totally
disabling service-connected disability for ten years prior to his death.

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On appeal, the Court of Appeals for Veterans Claims reversed the Board's
decision with respect to its conclusion that D'Aries was not entitled to DIC benefits
because her husband was not in receipt of or entitled to receive compensation for a
totally disabling service-connected disability for the ten years prior to his death.
Specifically, the Court of Appeals for Veterans Claims concluded that D'Aries was
entitled to benefits based on a "hypothetical entitlement theory" that was in force at the
time D'Aires filed her claim for benefits in 1998. In January of 2000, an amendment to
38 C.F.R. § 3.22 eliminated the application of a hypothetical entitlement theory. The
Secretary appealed.
This court stayed proceedings in this case pending disposition of Tarver v.
Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). In our opinion in Tarver, involving similar
facts as the present appeal, we held that the § 3.22 amendment should be applied
retroactively to bar the application of a hypothetical entitlement theory for claims filed
prior to the amendment's effective date.
In the present case, with respect to the use of the hypothetical entitlement theory,
it is clear that summary reversal is warranted and that D'Aries is not entitled to
dependency and indemnity compensation.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to summarily reverse is granted. The case is remanded for
further proceedings.
2006-7206 - 2 -

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(2) Each side shall bear its own costs.
FOR THE COURT
MAY - 5 2009
Date
cc: Michael A. Leonard, Esq.
Allison Kidd-Miller, Esq.
s20
/s/ Jan Horbalv
Jan Horbaly
Clerk U.Shilyier FOR
CI UIT
MAY -5 2009
JAN HORtma
CLERK
2006-7206 - 3 -

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