Lavon F. Yandle v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7114
LAVON F. YANDLE
Claimant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellant.
Appeal from the United States Court of Appeals for Veterans Claims in
05-559, Chief Judge William P. Greene, Jr.
ON MOTION
Before MICHEL, Chief Judge LOURIE and BRYSON Circuit Judges.
PER CURIAM
ORDER
The Secretary of Veterans Affairs responds to the court's June 18, 2008 order
and requests that the court consider the appeal on the merits and reverse the judgment
of the United States Court of Appeals for Veterans Claims in Yandle v. Nicholson No.
05-559. Lavon F. Yandle has not responded.
On January 27, 2005, the Board of Veterans' Appeals denied Yandle's 1999
claim for dependency and indemnity compensation (DIC), finding that the cause of
Yandle's husband's death was not related to his military service, and that he was not in

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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 Yandle 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 Yandle was
entitled to benefits based on a "hypothetical entitlement theory" that was in force at the
time Yandle filed her claim for benefits in 1999. 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 Yandle is not entitled to
dependency and indemnity compensation.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to reverse is granted. The case is remanded for further
proceedings.
2007-7114 -2-

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(2) Each side shall bear its own costs.
FOR THE COURT
JUL 0 2 2009 /s/ Jan Horbalv
Jan Horbaly
Clerk
Date
cc: Lavon F. Yandle
Kyle E. Chadwick, Esq.
ILED
U.S. COURT
F
OF APPEALS FOR
THE FEDERAL CIRCUIT
s20 JUL 0 2 2009
JAN HORSidi
CLERK
2007-7114 - 3 -

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