Kriner v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: March 31, 2022
• Docket: 21-2076
• Status: Unpublished

Opinion

Case: 21-2076 Document: 31 Page: 1 Filed: 03/31/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

HARRIET H. KRINER, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2021-2076 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 20-774, Judge Scott Laurer. ______________________

Decided: March 31, 2022 ______________________

HARRIET H. KRINER, Taneytown, MD, pro se.

ANDREW JAMES HUNTER, Civil Division, Commercial Litigation Branch, United States Department of Justice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ Case: 21-2076 Document: 31 Page: 2 Filed: 03/31/2022

Before MOORE, Chief Judge, TARANTO and HUGHES, Circuit Judges. PER CURIAM. Harriet H. Kriner, the surviving spouse of Army vet- eran Delbert Kriner, sought accrued benefits and burial benefits from the Department of Veterans Affairs (VA) fol- lowing Mr. Kriner’s death. VA’s agency of original jurisdic- tion denied the claims, and the Board of Veterans’ Appeals agreed. The Board denied the claim for accrued benefits because it determined that Mr. Kriner had no pending claim with VA on the date of his death, and it denied the claim for burial benefits because it determined that Mr. Kriner had not been found to have any service-connected disability at the time of his death and did not meet any cri- teria for non-service-connected burial benefits. The Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board’s ruling. Kriner v. McDonough, No. 20-0774, 2021 WL 751539 (Vet. App. Feb. 26, 2021); Appx. 2–14. Mrs. Kriner appeals. We vacate the Veterans Court’s decision regarding the claim for accrued benefits and re- mand for further consideration. We affirm the Veterans Court’s decision regarding the claim for burial benefits. I We recite the background facts based on the factual findings and premises set forth by the Board and the Vet- erans Court, which we lack jurisdiction to question in this case. Mr. Kriner served in the United States Army from May 1954 to May 1957. In 1992, he was awarded a non- service-connected pension based on his financial need and wartime service, pursuant to 38 U.S.C. § 1521. Kriner, 2021 WL 751539, at *1; Appx. 57. In 2001, his pension rate was increased based on his need for aid and attendance. Appx. 54–56. The statute provides for reduction of such a pension by the veteran’s annual income. See 38 U.S.C. Case: 21-2076 Document: 31 Page: 3 Filed: 03/31/2022

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§ 1521(b)–(d). In May 2010, VA discovered that Mr. Kriner had unreported income and proposed an adjustment of the pension. Appx. 45. VA sought eligibility information and financial statements from Mr. Kriner and notified him that the pension would be terminated if he did not reply in 60 days. Mr. Kriner did not respond within that time, and VA terminated the pension in July 2010, effective retroactively to January 2007. Id. It assessed a debt of $80,895 against Mr. Kriner, based on payments it had made to him that it now determined he should not have received. Mr. Kriner sought both a reinstatement of his pension and a waiver of the debt. In December 2010, he provided the requested financial statements to VA, but the state- ments omitted certain information. VA denied the waiver request in August 2011, and Mr. Kriner paid the debt in full. Appx. 44–47. Mr. Kriner did not appeal VA’s denial of the waiver request. As to the reinstatement request, VA requested additional financial information, Appx. 51–53, but Mr. Kriner did not submit the requested information and VA subsequently denied reinstatement, Appx. 48–50. Between 2011 and 2015, Mr. Kriner made at least four additional submissions to VA seeking reinstatement of his pension. Each time, VA denied reinstatement due to Mr. Kriner’s failure to submit required information. See Appx. 42–43; Appx. 39–41; Appx. 35–38; Appx. 33–34. On March 23, 2015, Mr. Kriner submitted a letter to VA asking it to repay the $80,895 sum as well as his “service connected pension and aid and attendance plus aggravation.” Appx. 32. VA received this letter on March 26, and sent Mr. Kriner a response in October 2015, acknowledging that it received Mr. Kriner’s correspondence “indicating that [he] would like to file a claim,” but explaining that “VA regula- tions now require all claims to be submitted on a standard- ized form.” Appx. 29–31; see 38 C.F.R. § 3.155 (2015). Mr. Kriner passed away in January 2016—which, we note, was less than a year after his March 2015 letter. Case: 21-2076 Document: 31 Page: 4 Filed: 03/31/2022

After his death, Mrs. Kriner submitted a new application for service-connected disability compensation and applied for accrued benefits and burial benefits. VA denied the claims. Mrs. Kriner appealed to the Board, which affirmed VA’s denial. Appx. 20–26. The Board determined that Mrs. Kriner was not eligible for accrued benefits because Mr. Kriner did not have a pending claim on the date of his death. Appx. 22–24. And the Board determined that Mrs. Kriner was not eligible for burial benefits because Mr. Kriner did not die at a VA facility and, at the time of his death, had no finding of service-connection for any disabil- ity and was not receiving compensation from VA. Appx. 24–25. Mrs. Kriner appealed to the Veterans Court, which af- firmed the Board’s decision. Kriner, 2021 WL 751539, at *8. The Veterans Court agreed with the Board that Mr. Kriner had no pending claim on the date of his death, ex- plaining that his request for waiver was finally adjudicated in 2011, his informal applications for reinstatement sub- mitted between 2011 and 2015 were subsequently aban- doned, his March 2015 submission did not meet the regulatory requirements of a claim, and Mrs. Kriner’s new application for disability compensation was filed after Mr. Kriner’s death. Id. at *3–7. The Veterans Court also af- firmed the Board’s ruling that Mrs. Kriner was not eligible for burial benefits, approving the Board’s rationale. Id. at *7–8. After unsuccessfully seeking reconsideration, Mrs. Kriner timely appealed. II This court’s jurisdiction to review decisions of the Vet- erans Court, defined by 38 U.S.C. § 7292, is limited. We have jurisdiction to decide an appeal insofar as it presents a challenge to a Veterans Court’s decision regarding a rule of law, including a decision about the interpretation or va- lidity of any statute or regulation. Id. § 7292(a), (d)(1). We do not have jurisdiction to review a challenge to a factual Case: 21-2076 Document: 31 Page: 5 Filed: 03/31/2022

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determination or a challenge to the application of a law or regulation to the facts of a particular case, except to the extent that an appeal presents a constitutional issue. Id. § 7292(d)(2). A The pertinent statute governing accrued benefits pro- vides, as relevant here, that periodic monetary benefits . . . under laws admin- istered by the Secretary to which an individual was entitled at death under existing ratings or deci- sions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as “accrued benefits”) and due and unpaid, shall, upon the death of such individual be paid . . . [u]pon the death of a veteran, to . . . [t]he veteran’s spouse. 38 U.S.C. § 5121(a). Although that provision does not itself make an express reference to the deceased veteran’s hav- ing a claim to the benefits at issue on file at the time of death, in Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998), we held that § 5121 must be read together with 38 U.S.C. § 5101(a), which provides that a “specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.” We held: “Reading sections 5101 and 5121 together compels the conclusion that, in order for a surviving spouse to be entitled to ac- crued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision.” Jones, 136 F.3d at 1299. We declared this “the plain meaning of the statutory provisions at issue.” Id. at 1299 n.2. It is undisputed that Mr. Kriner had no relevant exist- ing rating or decision for the benefits now at issue in Mrs. Kriner’s claim for accrued benefits. But Mrs. Kriner Case: 21-2076 Document: 31 Page: 6 Filed: 03/31/2022

argued in the proceedings on review here, and argues be- fore us, that she is entitled to accrued benefits based on an unadjudicated claim she alleges Mr. Kriner had on file at the time of Mr. Kriner’s death. Appellant’s Inf. Br. at 68. The Veterans Court rejected that premise, concluding (based on the Board’s findings of fact) that Mr. Kriner had no pending claim for benefits on or before his death in Jan- uary 2016. Kriner, 2021 WL 751539, at *3–7. The Veterans Court affirmed the Board’s determina- tions as to each of Mr. Kriner’s submissions filed with VA from 2010 to 2015. The rulings on three sets of those sub- missions raise no question within our limited jurisdiction. First, the Veterans Court explained that Mr. Kriner’s Oc- tober 2010 request for waiver of the debt was finally adju- dicated in 2011 and there was no record evidence of an appeal. Kriner, 2021 WL 751539, at *5. Second, the Vet- erans Court explained that Mr. Kriner’s various applica- tions for reinstatement of his pension submitted to VA between 2011 and 2014 were informal claims that were abandoned because VA did not receive, within one year, a formal application on the required forms. Id. at *5–6 (cit- ing 38 C.F.R. § 3.155(a) (2014); id. § 3.158(a) (2020)). Third, the Veterans Court explained that the application for service-connected disability that Mrs. Kriner filed was received after Mr. Kriner’s death, and thus was not pend- ing on or before the date of his death. Id. at *7. Those determinations raise no issue of interpretation of a statute or regulation or other rule of law, but concern at most the application of (non-constitutional) legal rules to the facts of this case, which we lack jurisdiction to review. What remains to be considered, as to the accrued ben- efits issue, is the Veterans Court’s treatment of Mr. Kriner’s March 2015 letter to VA. We liberally construe Mrs. Kriner’s brief as presenting challenges to two legal conclusions the Veterans Court reached in holding that the March 2015 submission was legally insufficient for pur- poses of 38 U.S.C. § 5121. Case: 21-2076 Document: 31 Page: 7 Filed: 03/31/2022

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As noted above, on March 23, 2015, Mr. Kriner sent a letter to VA asking it to repay the $80,895 sum he had paid back to VA and also to pay him unpaid amounts of the “pen- sion and aid and attendance” to which he asserted entitle- ment; and VA received the letter on March 26, 2015. Appx. 32. VA responded to Mr. Kriner and explained that, under VA regulations effective March 24, 2015, all claims had to be submitted on a standard form. Appx. 29–31; see 38 C.F.R. § 3.155 (2015). Mr. Kriner passed away within one year of his March 2015 submission, without making any additional filings to VA. The Veterans Court relied on two legal conclusions in holding that Mr. Kriner’s informal correspondence received by VA on March 26, 2015 did not suffice for purposes of 38 U.S.C. § 5121, as applied together with 38 U.S.C. § 5101 in Jones. First, the Veterans Court determined that regula- tions on the filing of claims that took effect March 24, 2015, applied to the correspondence that was mailed one day ear- lier (March 23, 2015) but not received by VA until March 26, 2015. Kriner, 2021 WL 751539, at *4 (citing 38 C.F.R. § 3.155(a) (2015)). Second, it determined that (a) under those regulations, Mr. Kriner’s correspondence was “at most, an intent to file a claim” and (b) such an intent-to-file submission was insufficient because a veteran had to have on file at death a “claim,” on “a standardized form request- ing a VA benefit,” in order for a surviving spouse later to obtain accrued benefits. Id. at *5. We see no legal error in the Veterans Court’s first con- clusion—that VA regulations effective March 24, 2015, gov- ern a submission received by VA on March 26, 2015, even if the submission was allegedly mailed before that date. The Federal Register publication explaining the final rule explains that the regulation applies “only with respect to claims and appeals filed 180 days” after the date of publi- cation of the final rule, which was September 25, 2014— making the effective date March 24, 2015. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 Case: 21-2076 Document: 31 Page: 8 Filed: 03/31/2022

(Sept. 25, 2014) (emphasis added). We have been shown no legal error in the Veterans Court’s conclusion that, for this purpose, a claim is properly viewed as “filed” when re- ceived, as VA regulations provide in related contexts. See Kriner, 2021 WL 751539, at *4–5 (citing 38 C.F.R. § 3.155(a) (2014) (formal claim received within one year of VA’s mailing of formal application form is “considered filed as of the date of receipt of the informal claim”); 38 C.F.R. § 3.155(d)(1) (2015) (complete claim received within one year of intent to file is “considered filed as of the date of receipt of the intent to file a claim”)). We thus affirm the Veterans Court’s ruling that the new, intent-to-file regula- tions applied to Mr. Kriner’s submission, received after March 24, 2015. We next consider the Veterans Court’s conclusion that an “intent to file a claim” under 38 C.F.R. § 3.155(b) (2015), even if submitted less than one year before a veteran’s death, is insufficient to provide a basis for a surviving spouse to seek accrued benefits. Importantly, submission of an “intent to file a claim” under the regulation, if fol- lowed within one year by the filing of a “complete claim” (which must be submitted on the application form pre- scribed by the Secretary, 38 C.F.R. § 3.155(b) (2015); 38 C.F.R. § 3.1(p) (2015)), means that any benefits awarded on the claim can have an effective date as early as the sub- mission of the “intent to file a claim,” 38 C.F.R. § 3.155(d)(1) (2015). Here, the Veterans Court assumed that Mr. Kriner’s March 2015 submission was an “intent to file a claim.” Kriner, 2021 WL 751539, at *5 (stating that submission was “at most, an intent to file a claim,” and pro- ceeding on the premise that it was an intent to file a claim). One year had not elapsed after that date when Mr. Kriner died in January 2016. Accordingly, in holding the March 2015 submission legally insufficient for Mrs. Kriner to seek accrued benefits, the Veterans Court necessarily concluded that only a pending “complete claim,” not a qualifying “in- tent to file a claim” (even one that still could have matured Case: 21-2076 Document: 31 Page: 9 Filed: 03/31/2022

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into a timely complete claim), would have entitled Mrs. Kriner to seek accrued benefits under 38 U.S.C. § 5121. That legal conclusion is within our jurisdiction to re- view. Unlike with the effective-date legal issue, however, we do not affirm the Veterans Court’s conclusion. Instead, we explain why the Veterans Court’s opinion does not sup- ply a sufficient basis for that legal conclusion, but we stop short of deciding the legal issue, which calls for further analysis than has been provided and which might not have to be decided in this case. First, although the Veterans Court relied on our 1998 decision in Jones, that decision does not resolve the issue. In that case, we did not have before us, and did not decide, an issue as to whether particular submissions that fall short of a complete claim sufficed for purposes of § 5121. We did not address the “intent to file” regime of 2015, and we did not address even the sufficiency of “informal claims” under the prior filing regime, 38 C.F.R. § 3.155 (2014). As to the latter, we note, the Veterans Court seems to have assumed that an “informal claim” would in fact have suf- ficed for § 5121 purposes. See Kriner, 2021 WL 751539, at *6 (explaining that “the veteran had no pending informal claim” for reinstatement because his submissions to VA prior to March 2015 were abandoned). Second, we have been pointed to no VA regulation that answers the present question. Neither the Veterans Court’s opinion nor the Secretary’s brief in this court cites any regulation that even directly declares the requirement we held in Jones to be required by the plain language of 38 U.S.C. §§ 5121(a), 5101(a), let alone further defines what constitutes a sufficient submission for § 5121 purposes. Third, if we look at the two statutes interpreted in Jones, it is, at a minimum, not clear that the answer to the question now before us is dictated by those statutes. Sec- tion 5121 does not expressly refer to a “claim,” but, as rele- vant here, requires only that the veteran was “entitled at Case: 21-2076 Document: 31 Page: 10 Filed: 03/31/2022

death” to certain benefits or that “evidence in the file at date of death” entitled the veteran to those benefits. 38 U.S.C. § 5121(a); see also 38 C.F.R. § 3.1000(d)(4) (“evi- dence in the file at date of death” defined as “evidence in VA’s possession on or before the date of the beneficiary’s death . . . in support of a claim for VA benefits pending on the date of death” (emphasis added)). Section 5101, which is the source of the Jones “claim” holding, addresses only the time at which benefits are distributed by the Secretary: it requires that a specific claim “must be filed in order for benefits to be paid or furnished.” 38 U.S.C. § 5101(a)(1) (emphasis added). That requirement does not demand that, for § 5121 purposes, the veteran had to have on file something more than a submission that, at the time of death, still was legally eligible to mature into a complete claim that, if successful, would provide benefits back to the time of the submission—which, under § 5101, the Secre- tary could pay. The foregoing considerations raise questions about the Veterans Court’s legal conclusion regarding the insuffi- ciency, for purposes of § 5121, of an “intent to file a claim” that qualifies under the governing regulation and was sub- mitted less than one year before the veteran’s death. We do not go further, however, and resolve the issue. We think that more analysis than has yet been presented is needed to resolve the issue, including more analysis of the “intent to file a claim” regime adopted in the 2015 regulations. That is one reason for a remand of the accrued-benefits is- sue in this case. A second reason is that the legal issue just discussed may not have to be resolved in order to decide Mrs. Kriner’s case (against her). The Veterans Court merely assumed, but did not decide, that Mr. Kriner’s March 2015 submis- sion was actually a qualifying “intent to file a claim” under the regulation. Kriner, 2021 WL 751539, at *5. The perti- nent regulation provides for an intent to file a claim to be submitted in one of three ways: a saved electronic Case: 21-2076 Document: 31 Page: 11 Filed: 03/31/2022

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application; a written submission on a form prescribed by the Secretary; or an oral communication to designated VA personnel that is recorded in writing. 38 C.F.R. § 3.155(b)(1)(i)–(iii) (2015); see also Veterans Just. Grp., LLC v. Sec’y of Veterans Affs., 818 F.3d 1336, 1351–52 (Fed. Cir. 2016) (discussing the three methods of submitting an intent to file). The Veterans Court described Mr. Kriner’s March 2015 submission as an “informal communication,” Kriner, 2021 WL 751539, at *4, but it did not determine that Mr. Kriner’s submission comes within any of the three regulatory categories. Nor did the Veterans Court decide that the three methods recited in 38 C.F.R. § 3.155(b)(1) are the only proper methods for submitting a qualifying in- tent to file. If Mr. Kriner’s March 2015 submission did not qualify as an intent to file under the regulation, the prem- ise of the Veterans Court’s legal conclusion (concerning the insufficiency for § 5121 of a qualifying intent to file a claim) would not be satisfied in this case. In that event, Mrs. Kriner’s accrued-benefits claim might be held to fail with- out having to resolve the legal issue we have discussed. We vacate the Veterans Court’s decision regarding ac- crued benefits, and we remand for further proceedings. We leave it to the Veterans Court to decide what issues need and should be addressed. 1 B Mrs. Kriner additionally alleges that she is entitled to burial benefits. Appellant’s Inf. Br. at 19. Veterans are eligible for burial and funeral expenses when a veteran dies as the result of a service-connected disability, 38

1 No issue has been raised in this court about the meaning and significance of 38 C.F.R. § 3.155(a) (2015), concerning a ”request for an application form for benefits.” We note this provision without either foreclosing or requir- ing its consideration on remand in this case. Case: 21-2076 Document: 31 Page: 12 Filed: 03/31/2022

U.S.C. § 2307, which may be presumed if the veteran was rated totally disabled for a service-connected disability at death, see 38 C.F.R. § 3.1704(b). As the Veterans Court ex- plained, Mr. Kriner had received no determination of ser- vice-connected disability at his death, service connection was not required for or determined in awarding the pen- sion he had received from 1992 to 2007, and there was no evidence that he died of a service-connected disability. Kriner, 2021 WL 751539, at *7. Mrs. Kriner’s challenge to those factual findings, see Appellant’s Inf. Br. at 71, is not within our jurisdiction, see Dolor v. Principi, 123 F. App’x 988, 990 (Fed. Cir. 2005) (explaining that a determination that a veteran’s death is not service-connected is a factual finding we cannot review). Congress has also provided for VA payment of burial and funeral expenses for a veteran whose death was non- service-connected when the veteran, on the date of death, 1) was receiving VA pension or disability compensation, 2) would have been receiving compensation but for receipt of retired pay, or 3) had certain pending “claims” on the date of death, accompanied by evidence “sufficient to grant” the claim or that “results in the grant” of the claim. 38 C.F.R. § 3.1705(b); see 38 C.F.R. § 3.1(p) (requiring “claim” to be “submitted on an application form prescribed by the Secre- tary”). Mrs. Kriner argues that Mr. Kriner satisfied the third criteria. But the Veterans Court affirmed the Board’s factual determination that there was no evidence that Mr. Kriner had a pending claim for benefits that was ulti- mately granted. Kriner, 2021 WL 751539, at *7. We see no legal question within our jurisdiction raised by that rul- ing. Finally, VA will pay burial and funeral expenses for non-service-connected death when a veteran “died while hospitalized by VA,” 38 C.F.R. § 3.1706, including when a veteran “[w]as properly admitted to a VA facility,” id. § 3.1706(b)(1). The Veterans Court affirmed the Board’s undisputed factual finding that Mr. Kriner died at a Case: 21-2076 Document: 31 Page: 13 Filed: 03/31/2022

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private facility. Kriner, 2021 WL 751539, at *8. Mrs. Kriner alleges, however, that Mr. Kriner was turned away from a VA facility before his death. The Veterans Court did not determine whether that fact was true or supported, because it determined that Mr. Kriner would not fall within the regulation’s coverage regardless. We liberally construe Mrs. Kriner’s brief as presenting a legal argument that 38 C.F.R. § 3.1706 should be inter- preted to authorize burial benefits when a veteran was turned away from a VA facility prior to his death. There is no basis for that interpretation in the text of the regulation, under which a veteran is treated as “hospitalized by VA” only in narrowly defined circumstances, such as when a veteran is “properly admitted to a VA facility,” “transferred or admitted” to certain facilities under the authority of var- ious statutes, or on authorized or unauthorized absences from VA facilities for less than 96 or 24 hours, respectively. 38 C.F.R. § 3.1706(b). Mrs. Kriner’s reading does not fit the regulation. Thus, we affirm the court’s determination that Mrs. Kriner was not entitled to burial benefits. C Mrs. Kriner argues that VA violated Mr. Kriner’s Fourth Amendment rights by conducting a warrantless search without probable cause. Appellant’s Inf. Br. at 4–8. But that argument has no relation to her benefits claims. This court accordingly lacks jurisdiction over this constitu- tional argument. See Johnson v. Shinseki, 340 F. App’x 649, 651 (Fed. Cir. 2009) (holding that allegations of viola- tions of constitutional rights unrelated to the benefits claims at issue were not genuine constitutional issues that would invoke this court’s jurisdiction). III For the foregoing reasons, we affirm the Veterans Court’s decision as to burial benefits, vacate its decision as Case: 21-2076 Document: 31 Page: 14 Filed: 03/31/2022

to accrued benefits, and remand for further proceedings consistent with this opinion. The parties shall bear their own costs. AFFIRMED IN PART, VACATED IN PART, AND REMANDED