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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