NOTE: This disposition is nonprecedential.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 represented
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: 1 Filed: 03/31/2022
2 KRINER v. MCDONOUGH
Before MOORE, Chief Judge, TARANTO and HUGHES,
Circuit Judges.
PER CURIAM.
Harriet H. Kriner, the surviving spouse of Army veteran
Delbert Kriner, sought accrued benefits and burial
benefits from the Department of Veterans Affairs (VA) following
Mr. Kriner’s death. VA’s agency of original jurisdiction
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 criteria
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 remand
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 Veterans
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 nonservice-
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: 2 Filed: 03/31/2022
KRINER v. MCDONOUGH 3
§ 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 statements
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 regulations
now require all claims to be submitted on a standardized
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: 3 Filed: 03/31/2022
4 KRINER v. MCDONOUGH
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 disability
and was not receiving compensation from VA. Appx.
24–25.
Mrs. Kriner appealed to the Veterans Court, which affirmed
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, explaining
that his request for waiver was finally adjudicated
in 2011, his informal applications for reinstatement submitted
between 2011 and 2015 were subsequently abandoned,
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 affirmed
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 Veterans
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 validity
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: 4 Filed: 03/31/2022
KRINER v. MCDONOUGH 5
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 provides,
as relevant here, that
periodic monetary benefits . . . under laws administered
by the Secretary to which an individual was
entitled at death under existing ratings or decisions
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 having
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 accrued
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 existing
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: 5 Filed: 03/31/2022
6 KRINER v. MCDONOUGH
argued in the proceedings on review here, and argues before
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 January
Kriner, 2021 WL 751539, at *3–7.
The Veterans Court affirmed the Board’s determinations
as to each of Mr. Kriner’s submissions filed with VA
from 2010 to 2015. The rulings on three sets of those submissions
raise no question within our limited jurisdiction.
First, the Veterans Court explained that Mr. Kriner’s October
2010 request for waiver of the debt was finally adjudicated
in 2011 and there was no record evidence of an
appeal. Kriner, 2021 WL 751539, at *5. Second, the Veterans
Court explained that Mr. Kriner’s various applications
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 (citing
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 pending
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 benefits
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 purposes
of 38 U.S.C. § 5121.
Case: 21-2076 Document: 31 Page: 6 Filed: 03/31/2022
KRINER v. MCDONOUGH 7
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 “pension
and aid and attendance” to which he asserted entitlement;
and VA received the letter on March 26, 2015. Appx.
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 regulations
on the filing of claims that took effect March 24, 2015,
applied to the correspondence that was mailed one day earlier
(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 requesting
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 conclusion—
that VA regulations effective March 24, 2015, govern
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 publication
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: 7 Filed: 03/31/2022
8 KRINER v. MCDONOUGH
(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 received,
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 regulations
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 followed
within one year by the filing of a “complete claim”
(which must be submitted on the application form prescribed
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 submission
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 proceeding
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 “intent
to file a claim” (even one that still could have matured
Case: 21-2076 Document: 31 Page: 8 Filed: 03/31/2022
KRINER v. MCDONOUGH 9
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 review.
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 supply
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 sufficed
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. Section
5121 does not expressly refer to a “claim,” but, as relevant
here, requires only that the veteran was “entitled at
Case: 21-2076 Document: 31 Page: 9 Filed: 03/31/2022
10 KRINER v. MCDONOUGH
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) (“evidence
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 Secretary
could pay.
The foregoing considerations raise questions about the
Veterans Court’s legal conclusion regarding the insufficiency,
for purposes of § 5121, of an “intent to file a claim”
that qualifies under the governing regulation and was submitted
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 issue
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 submission
was actually a qualifying “intent to file a claim” under
the regulation. Kriner, 2021 WL 751539, at *5. The pertinent
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: 10 Filed: 03/31/2022
KRINER v. MCDONOUGH 11
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 intent
to file. If Mr. Kriner’s March 2015 submission did not
qualify as an intent to file under the regulation, the premise
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 without
having to resolve the legal issue we have discussed.
We vacate the Veterans Court’s decision regarding accrued
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 requiring
its consideration on remand in this case.
Case: 21-2076 Document: 31 Page: 11 Filed: 03/31/2022
12 KRINER v. MCDONOUGH
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 explained,
Mr. Kriner had received no determination of service-
connected disability at his death, service connection
was not required for or determined in awarding the pension
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 nonservice-
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 Secretary”).
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 ultimately
granted. Kriner, 2021 WL 751539, at *7. We see
no legal question within our jurisdiction raised by that ruling.
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: 12 Filed: 03/31/2022
KRINER v. MCDONOUGH 13
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 interpreted
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 various
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 constitutional
argument. See Johnson v. Shinseki, 340 F. App’x
649, 651 (Fed. Cir. 2009) (holding that allegations of violations
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: 13 Filed: 03/31/2022
14 KRINER v. MCDONOUGH
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
Case: 21-2076 Document: 31 Page: 14 Filed: 03/31/2022
Veteranclaims's Blog 