Lucia S. Devillena v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7055
LUCIA S. DEVILLENA,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in
04-0896, Judge William P. Greene, Jr.
ON MOTION
Before GAJARSA, FRIEDMAN, and LINN, Circuit Judges.
LINN, Circuit Judge.
ORDER
The Secretary of Veterans Affairs responds to the court's June 18, 2008 order
and requests that the court summarily reverse the judgment of the United States Court
of Appeals for Veterans Claims in DeVillena v. Nicholson, No. 04-0896. The Secretary
states that Lucia S. DeVillena does not oppose.
On February 11, 2004, the Board of Veterans' Appeals denied DeVillena's 1998
claim for dependency and indemnity compensation (DIC), finding that the cause of
DeVillena's husband's death was not related to his military service, and that he was not

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in receipt of or entitled to receive compensation for a totally disabling service-connected
disability for ten years prior to his death.
On appeal, the Court of Appeals for Veterans Claims reversed the Board's
decision with respect to its conclusion that DeVillena 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 DeVillena was
entitled to benefits based on a "hypothetical entitlement theory" that was in force at the
time DeVillena 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 virtually
identical 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 DeVillena 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.
2007-7055 - 2 -

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(2) Each side shall bear its own costs.
FOR THE COURT
MAY - 5 2009 /s/ Jan Horbaly
Date
cc: Michael R. Viterna, Esq.
Allison Kidd-Miller, Esq.
s20
Jan Horbaly
Clerk
ulaindkAFIEST"R
MAY - 5 2009
JAY HORMLY
CLERK
2007-7055 - 3 -

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