Kriner: A New Form Driven VA World Allowed

Kriner v. McDonough, Case Number 20-0774, decided October 25, 2023 involves what constitutes an intent to file. 

This was a remand from the Federal Circuit, which remanded since the Veterans Court did not support a legal conclusion that a March 2015 submission by the deceased veteran, if an ITF, could not change into accrued benefits for the surviving spouse. 

The Court noted: “the question for the Court is whether Mr. Kriner’s March 2015 submission to VA is an intent to file a claim—a question the Court didn’t explicitly answer in February 2021.  Appellant argues that the March 2015 submission is an intent to file.6 She also contends that she can substitute into the intent to file to then perfect a claim for benefits. The Secretary disagrees and points the Court to VA’s rationale behind creating the intent to file rules explained in the Federal Register.  To resolve the dispute, we must analyze VA’s intent-to-file regulation—38 C.F.R. § 3.155. The Court determines that the Board didn’t err when it reviewed the March 2015 submission and concluded that Mr. Kriner didn’t submit an intent to file and didn’t have a claim pending at the time of his death.”  Id. at *2.

This is an interesting question because it argued the veteran filed a letter that should be read as an ITF and then when he died, his wife filed a request for DIC and accrued benefits, she argued she wanted her deceased husband’s accrued benefits.  The Board denied and looked at the letter and said it was not an ITF but a request to reinstate non-service connected pension benefits.  The Court affirmed the Board decisions and found the letter was an informal communication and not a claim for benefits.  It also stated it was at best an ITF, but since it did not have the necessary form requirements and form, he died without a pending claim.  The Federal Circuit heard and remanded for a determination of whether the letter was a qualifying ITF.

The surviving spouse argued the form complied with the ITF rules, whereas the Court determined section 3.155(b)(1)  must file an ITF in one of the three enumerated methods: (1) Saved electronic application; (2) Written intent on a prescribed intent to file a claim form; or (3) Oral intent communicated to designated VA personnel and recorded in writing.  Id. at *15.  The Court then determined the veteran’s letter did not fall within an enumerated method of filing an ITF—essentially, it was not on the proper form.

This case demonstrates that the VA with the Veterans Court’s agreement is now incredibly form driven and being transformed from one focused on the veteran and instead one focused on the four-corners of a piece of paper—the right piece of paper at that.

Judge Jaquith’s concurrence writes in support of a non-form driven VA.  I hope it serves as a template for the appeal to the Federal Circuit.

Decision by Judge Laurer and joined in by the Toth.  Concurrence by Judge Jaquith. 

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Terry: More than One Administrative Review within 1 Year is Allowed

Terry v. McDonough, Case Number 20-7251, decided October 19, 2023 involves whether a veteran can file more than one administrative review request in response to and within one year of an AOJ decision provided the requests are not pending concurrently.

The Court held that “subsection 5104C(a) plainly provides that a claimant may file more than one administrative review request within 1 year of an initial AOJ decision on a claim, provided that such an administrative review request is not pending concurrently with another administrative review request.”  Id. at *2.  As a result, the Board erred when it construed the NOD as an appeal from a decision from a supplemental claim as opposed to the underlying AOJ decision.

Factually, the veteran had a long-standing claim before the VA and opted into the AMA and requested a HLR decision.  On April 16, 2019, a RO decision denied service connection for the issues.  In June 2019, the veteran filed a supplemental claim and attached documents to the form.  In September 2019, in a supplemental claim decision, the RO notified the veteran his claim remained denied because no new and relevant evidence had been submitted.  On April, 14 2019 the veteran filed a NMOD seeking review of the issues and identifying the April 16, 2019 decision as the one he sought review of.  In a June 2020 decision, the Board found the claim was denied because their was no new and relevant evidence, the April 16, 2019 RO decision had become final because it was not appealed.

The VA argued the law only allowed one administrative review request in response to a decision and that the subsequent review (in this case a NOD) could only be from the most recent agency decision.

The Court concluded: “Ultimately, when we read subsection 5104C(a) as a whole, we see that Congress provided that a claimant is able to select a second administrative review option with respect to a decision on the claim, so long as the 1-year period from that decision has not run and the second administrative review option does not run concurrently with the first administrative review option.”  Id. at *15.

The Court also considered the VA’s fear of simultaneous actions with respect to the same underlying request for benefits, “[i]n other words, the Secretary appears to be concerned that Mr. Terry could conceivably file administrative reviews of both the April 2019 HLR decision on the merits and the September 2019 decision that new and relevant evidence had not been submitted in connection with the supplemental claim.”  Id. at *14.  The Court noted that “subsection 5104C(a)(2)(A), …  prevents claimants from taking simultaneous actions "with respect to the same claim or same issue within the claim."  A "claim" is a request for "a determination of entitlement or evidencing a belief in entitlement, to a specific benefit." 38 C.F.R. § 3.1(p).”  Id.

The VA also argued the Court’s interpretation could lead to inequity among veterans who receive a quick HLR decision and those for whom an HLR decision takes more than one year.  Incredibly, the Secretary argued to the Court that “he would be encouraged to delay rendering decisions in response to actions take under subsection (a) until" the 1-year period following an AOJ decision had expired.”  Id. at *14-15.  The Court noted this incredible self-serving argument by the Secretary and stated “The Secretary's suggestion that VA would intentionally delay adjudicating thousands of requests for administrative review under the AMA simply to avoid the uncommon instance in which an administrative review is adjudicated within a year of an initial AOJ decision is stunning.….  It is difficult to comprehend that under a uniquely pro-claimant system, or indeed any system of adjudication, an agency would arbitrarily delay adjudication in order to avoid an outcome that Congress has expressly provided for by statute.”  Id. at *15.

This is an important decision that helps round out the contours of the AMA.  It also demonstrates that the VA actually wrote in a brief it would likely delay decisions unnecessarily in order to avoid the application of this rule.  This demonstrates the depravity of the VA, to do it silently is one thing—to write that you are going to do it is incredible.  I hope the Veterans Court remembers this is how the Secretary behaves.

Decision by Judge Pietsch and joined by Judges Greenberg and Allen. 

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Kernz: The Veteran's Court Eviscerates the Concept of Jurisdiction

Kernz v. McDonough, Case Number 20-2365, decided October 4, 2023 involves whether a Board letter constituted an appealable decision over which the Court had jurisdiction. 

The veteran filed an NOD from a 2016 decision.  A December 2019 SOC continued the denial.  The veteran then opted into the AMA in January 2020 with a VA Form 10182.  The Board informed him in a letter that his 10182 was not timely.  The veteran filed an appeal with the CAVC, which led to the Board to send the veteran a letter saying the prior rejection as untimely was an error and his appeal was being docketed.  However, the veteran argued under Cerullo, the Board could not take away jurisdiction from the Court once the Court had jurisdiction.  The Secretary filed a motion to dismiss and the veteran sought class certification.

The en banc court in a split decision dismissed the appeal as moot and denied the request for class certification. 

The Court found the case was moot because he received the relief he sought (docketing of his appeal).  The Court declined to decide whether the letter was an appealable decision.  The Court declined to apply Cerullo noting the Board erred when it failed to seek permission to take corrective action because the action was prejudicial as it gave the veteran all that he sought. 

Dissents by Chief Judge Bartley and Judge Greenberg and Jaquith focused the case away from mootness but the Board overstepping its jurisdiction and acting in disregard of the veteran’s exercise of his right to judicial review. 

This decision illustrates the depths the VA will go to avoid a class action.  It is clear that the Board for some time was improperly rejecting valid notices of disagreements and the veteran sought to serve as a class action to force the Board to address that practice.  The VA disregarded the Court and simply mooted the case by taking an action that at least three judges agree the Board did not have authority to undertake.  The result is that now the Court has given permission to the VA to solve any hard appeal by simply going back to the Board to “fix” the error.  Whether the Court realizes it or not, it is working to make itself meaningless.  I can only hope this case is appealed to the Federal Circuit and that they understand the VA cannot be trusted to unilaterally decide when the Courts have jurisdiction over a case.

The case was heard by an en banc court and the opinion written by Judge Allen.  Judge Jaquith’s dissent, which would have granted class action is powerful and should serve as a template for appealing to the Federal Circuit.

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