Kenneth Dojaquez v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
KENNETH DOJAQUEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1045
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-1396, Judge Coral Wong Pi-
etsch.
______________________
Decided: August 27, 2024
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
I GOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY ; CHRISTA A. SHRIBER, J ONATHAN ELLIOTT
T AYLOR, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
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DOJAQUEZ v. MCDONOUGH 2
Before REYNA, HUGHES , and CUNNINGHAM , Circuit
Judges.
HUGHES , Circuit Judge.
Kenneth Dojaquez appeals the United States Court of
Appeals for Veterans Claims’ decision, which affirmed the
Board of Veterans’ Appeals’ decision concluding that
Mr. Dojaquez was not entitled to additional attorneys fees
under 38 U.S.C. § 5904(d)(3). Dojaquez v. McDonough,
2022 WL 2258085 (Vet. App. June 23, 2022), J.A. 1–7. On
appeal, Mr. Dojaquez contends that § 5904(d)(3) should be
interpreted so that he receives attorneys fees from the ef-
fective date of Mr. Dojaquez’s client’s increased disability
rating through April 26, 2019, the date the agency notified
Mr. Dojaquez’s client of its decision awarding past-due
benefits. The Board and the Veterans Court applied
§ 5904(d) and each concluded that Mr. Dojaquez was only
entitled to attorneys fees through March 2, 2019, the date
of the agency’s decision assigning an effective date. We af-
firm.
I
We begin by briefly discussing § 5904(d) before turning
to the facts giving rise to the present appeal.
A
Section 5904 of title 38 “concerns the terms and condi-
tions under which agents and attorneys may be recognized
and compensated for service to veterans who seek bene-
fits.” Snyder v. Nicholson, 489 F.3d 1213, 1216 (Fed. Cir.
2007); see also 38 U.S.C. § 5904(d). In particular,
§ 5904(d)(1) “limits the fee which an attorney can earn to
the past-due benefits awarded to the veteran, and further
limits the amount of the fee to no more than 20 percent of
the total past-due benefits awarded.” Snyder, 489 F.3d at
1216. This alleviated Congress’s concern that “attorneys
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DOJAQUEZ v. MCDONOUGH 3
would get rich at the veteran’s expense” by “carefully
limit[ing] the amounts that attorneys would be allowed to
receive.” Veterans’ Administration Adjudication Procedure
and Judicial Review Act Before the S. Comm. on Veterans’
Affs., 100th Cong. 170–76 (1988) (statement of Sen. John
Kerry).
Past-due benefits are defined by regulation, 38 C.F.R.
§ 14.636(h)(3), and constitute “any compensation not paid
to the claimant[1] in a given month,” Snyder, 489 F.3d at
1218 (cleaned up). Once there is a determination that a vet-
eran is entitled to past-due benefits, the agency can com-
pensate the veteran for the past-due benefits in a lump sum
and adjust the veteran’s ongoing recurring benefits pay-
ments accordingly.
Pursuant to a fee agreement between an attorney and
their client, the attorney can be paid by the Secretary di-
rectly from any awarded past-due benefits. See 38 U.S.C.
§ 5904(d)(2)(A), (3). In doing so, the Secretary withholds a
portion of the past-due benefits from the claimant. Id.
§ 5904(d)(3). However, the Secretary cannot withhold, to
pay a claimant’s attorney, any portion of the claimant’s re-
curring benefits, which are paid after “the date of the final
decision . . . making (or ordering the making of) the award.”
Id. In full, § 5904(d) provides:
(d) Payment of fees out of past-due benefits.--
(1) When a claimant and an agent or attorney have
entered into a fee agreement described in para-
graph (2), the total fee payable to the agent or at-
torney may not exceed 20 percent of the total
amount of any past-due benefits awarded on the
basis of the claim.
1 We use “claimant” and “veteran” interchangeably
throughout this opinion.
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DOJAQUEZ v. MCDONOUGH 4
(2)(A) A fee agreement referred to in paragraph (1)
is one under which the total amount of the fee pay-
able to the agent or attorney--
(i) is to be paid to the agent or attorney by the
Secretary directly from any past-due benefits
awarded on the basis of the claim; and
(ii) is contingent on whether or not the matter
is resolved in a manner favorable to the claim-
ant.
(3) To the extent that past-due benefits are
awarded in any proceeding before the Secretary,
the Board of Veterans’ Appeals, or the United
States Court of Appeals for Veterans Claims, the
Secretary may direct that payment of any fee to an
agent or attorney under a fee arrangement de-
scribed in paragraph (1) be made out of such past-
due benefits. In no event may the Secretary with-
hold for the purpose of such payment any portion
of benefits payable for a period after the date of the
final decision of the Secretary, the Board of Veter-
ans’ Appeals, or Court of Appeals for Veterans
Claims making (or ordering the making of) the
award.
38 U.S.C. § 5904(d) (emphasis added).2
On appeal, Mr. Dojaquez focuses on the proper inter-
pretation of § 5904(d)(3) and, more particularly, on how
“the date of the final decision . . . making (or ordering the
2 Section 5904(d) is implemented in 38 C.F.R.
§ 14.636(h), which is titled, “Payment of fees by Depart-
ment of Veterans Affairs directly to an agent or attorney
from past-due benefits.” Mr. Dojaquez does not challenge
38 C.F.R. § 14.636(h)(3), and we do not consider it further.
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DOJAQUEZ v. MCDONOUGH 5
making of) the award” should be understood. Appellant’s
Br. 16–24.
B
Claimant Billy Wayne Slaughter served in the U.S.
Navy from August 1985 to August 1995. In 2008,
Mr. Slaughter was awarded a 10% disability rating, effec-
tive August 31, 2007, for service-connected right ulnar
nerve entrapment. In 2013, the agency continued
Mr. Slaughter’s 10% disability rating, and Mr. Slaughter
appealed to the Board of Veterans’ Appeals. Pursuant to
§ 5904, Mr. Slaughter entered into a contingency fee agree-
ment with Mr. Dojaquez, and Mr. Dojaquez represented
Mr. Slaughter before the Board. Mr. Slaughter’s appeal
was successful, and the Board determined, in a decision
dated December 18, 2018, that Mr. Slaughter was entitled
to a 40% disability rating for his right ulnar nerve entrap-
ment. The agency then implemented the 40% rating in a
decision dated March 2, 2019, and assigned Mr. Slaugh-
ter’s right ulnar nerve entrapment an August 1, 2012, ef-
fective date. Because of the increased disability rating,
Mr. Slaughter was entitled to benefits over and above what
he had been receiving in his recurring benefits payments.
The benefits that Mr. Slaughter was entitled to but had not
yet received are “past-due” benefits.
The agency did not notify Mr. Slaughter of its March 2,
2019, decision assigning an effective date until April 26,
2019, the date of a letter from the agency. On that same
day, the agency sent a letter to Mr. Dojaquez stating that
Mr. Slaughter was owed $13,191.96 in past-due benefits,
and that $2,638.39 (or 20%) of that amount would be paid
directly to Mr. Dojaquez pursuant to their contingency fee
agreement. The agency calculated the past-due benefits
amount, $13,191.96, based on how much Mr. Slaughter
should have been “paid from the [August 1, 2012] effective
date of the award to the date of the rating decision
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DOJAQUEZ v. MCDONOUGH 6
awarding the benefit” on March 2, 2019. J.A. 2 (quoting
J.A. 147–48).
Mr. Dojaquez challenged the agency’s use of March 2,
2019, as the endpoint for the attorneys fees calculation, ar-
guing that the endpoint should be April 26, 2019, when
Mr. Slaughter was notified of the March 2, 2019, award de-
cision. The Board rejected Mr. Dojaquez’s argument, rely-
ing on § 5904(d)(3), and Mr. Dojaquez appealed to the
Veterans Court, which affirmed. The Veterans Court con-
cluded it “need not reach [Mr. Dojaquez’s § 5904(d)(3)] ar-
guments because this appeal can be decided based on
[§] 5904(d)(1) and established caselaw.” J.A. 4–5.
Mr. Dojaquez timely appealed to this court, continuing to
argue he should have been paid more for his representation
of Mr. Slaughter.
II
Our jurisdiction to review a decision of the Veterans
Court is limited by 38 U.S.C. § 7292. Under subsection
(d)(1) of § 7292, we will “hold unlawful and set aside any
regulation or any interpretation thereof (other than a de-
termination as to a factual matter) that was relied upon”
in the Veterans Court’s decision that is “(A) arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law; (B) contrary to constitutional right, power,
privilege, or immunity; (C) in excess of statutory jurisdic-
tion, authority, or limitations, or in violation of a statutory
right; or (D) without observance of procedure required by
law.” 38 U.S.C. § 7292. We have jurisdiction to review, on
appeal, the proper interpretation of a statute that the Vet-
erans Court “ignored or silently rejected.” Linville v. West,
165 F.3d 1382, 1384–85 (Fed. Cir. 1999); see also Slaughter
v. McDonough, 29 F.4th 1351, 1356 (Fed. Cir. 2022) (same).
Therefore, we may review the proper interpretation of
§ 5904(d)(3) even though the Veterans Court declined to
address it.
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DOJAQUEZ v. MCDONOUGH 7
We review questions of law, such as the validity of a
statute or regulation, or an interpretation thereof, de novo.
38 U.S.C. § 7292(c); see also Mayfield v. Nicholson, 499
F.3d 1317, 1321 (Fed. Cir. 2007).
III
On appeal, Mr. Dojaquez advances his own statutory
interpretation of “the date of the final decision of the Sec-
retary, the Board of Veterans’ Appeals, or Court of Appeals
for Veterans Claims making (or ordering the making of) the
award,” as that phrase is used in 38 U.S.C. § 5904(d)(3).
Mr. Dojaquez argues that “the only reasonable interpreta-
tion of § 5904(d)(3)” is one where “the date of the final de-
cision” is the date “when Mr. Slaughter was actually
informed of [the] VA’s award of past-due benefits,” or, in
this case, April 26, 2019, rather than March 2, 2019, the
date of the agency’s rating decision assigning an effective
date. Appellant’s Br. 11.
We reject Mr. Dojaquez’s interpretation of § 5904(d)(3)
and hold that the end date for the past-due benefits calcu-
lation under § 5904(d)(1) and Snyder is also “the date of the
final decision” referenced in § 5904(d)(3)’s second sentence.
Therefore, “the date of the final decision” relevant here was
March 2, 2019, and Mr. Dojaquez received the correct
amount of attorneys fees under § 5904(d).
First, we will examine the plain language of
§ 5904(d)(3) and the structure and text of § 5904(d) as a
whole. Then, we will turn to Mr. Dojaquez’s specific argu-
ments in support of his interpretation of § 5904(d)(3).
A
“In statutory construction, we begin ‘with the language
of the statute.’” Kingdomware Techs., Inc. v. United States,
579 U.S. 162, 171 (2016) (quoting Barnhart v. Sigman Coal
Co., 534 U.S. 438, 450 (2002)). We also look to “the statute’s
structure, canons of statutory construction, and legislative
history.” Perlick v. Dep’t of Veterans Affs., 104 F.4th 1326,
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DOJAQUEZ v. MCDONOUGH 8
1329–30 (Fed. Cir. 2024) (internal quotation marks and ci-
tation omitted). “If the statutory language is unambiguous
and ‘the statutory scheme is coherent and consistent’ . . .
‘[t]he inquiry ceases.’” Kingdomware Techs., 579 U.S. at
171 (quoting Barnhart, 534 U.S. at 450). We conclude that
the meaning of § 5904(d)(3), when read in context, is un-
ambiguous.
We begin with the first sentence of § 5904(d)(3), which
provides that “past-due benefits” can be “awarded in any
proceeding before the Secretary, the Board of Veterans’ Ap-
peals, or the United States Court of Appeals for Veterans
Claims,” and that “the Secretary may direct that payment
of” “any fee” to the claimant’s counsel. 38 U.S.C.
§ 5904(d)(3); see also Ravin v. Wilkie, 956 F.3d 1346, 1350
(Fed. Cir. 2020) (interpreting “may” as permissive). “[A]ny
fee,” as used in subsection (d)(3), refers to the attorneys
fees calculated pursuant to subsection (d)(1). For its part,
§ 5904(d)(1) limits the “total fee payable” to the attorney to,
at most, “20 percent of the total amount of any past-due
benefits awarded on the basis of the claim.” Subsection
(d)(2)(A) then explains that “the total amount of the fee
payable” to the claimant’s attorney, which is capped at 20%
of a claimant’s past-due benefits, can be paid “directly from
any past-due benefits awarded on the basis of the claim.”
Reading all subsections of § 5904(d) together, a claimant’s
attorney can only receive, at most, 20% of the claimant’s
past-due benefits under a contingency fee agreement gov-
erned by § 5904(d)(3), and those attorneys fees can be paid
directly out of the claimant’s past-due benefits.
The second sentence of § 5904(d)(3) explains that the
Secretary cannot withhold attorneys fees from any of the
claimant’s benefits that are “payable for a period after the
date of the final decision of the Secretary, the Board of Vet-
erans’ Appeals, or Court of Appeals for Veterans Claims.”
This ensures that a claimant’s recurring benefits pay-
ments, which already account for the additional benefits
afforded in “the final decision . . . making (or ordering the
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DOJAQUEZ v. MCDONOUGH 9
making of) the award,” cannot be used to pay attorneys
fees.
To be clear, an attorneys fees award is circumscribed
by the amount of the past-due benefits a claimant receives.
38 U.S.C. § 5904(d)(1). Further, an attorney is disallowed
from having her fees paid from a claimant’s recurring ben-
efits payments. 38 U.S.C. § 5904(d)(3). Attorneys fees can
be paid directly out of the claimant’s past-due benefits. 38
U.S.C. § 5904(d)(1), (2). Read together, we conclude that
the most logical reading of the plain language of the statute
is that the end date for the past-due benefits calculation,
as laid out in § 5904(d)(1), is also “the date of the final de-
cision” referenced in § 5904(d)(3)’s second sentence.
Helpfully, we previously interpreted § 5904(d)(1) in
Snyder, resolving the meaning of “past-due benefits” and
indicating which end date should be used to calculate past-
due benefits. 489 F.3d at 1217–18. In Snyder, we were
tasked with interpreting the “total amount of any past-due
benefits awarded on the basis of the claim,” as used in
§ 5904(d)(1). Id. at 1217. We concluded that “the ‘total
amount of any past-due benefits awarded on the basis of
the claim’ is the sum of each month’s unpaid compensa-
tion—as determined by the claimant’s disability rating—
beginning on the effective date and continuing through the
date of the award.” Id. at 1218. In Snyder, the date of the
award was in July 2002, when the agency “con-
cluded . . . that [the veteran’s] claim for service connection
should have been approved at a disability rating of 70 per-
cent effective July 25, 1994.” Id. at 1214–15; id. at 1218
(“[I]t is undeniable that the VA awarded [the veteran] dis-
ability compensation at the 70 percent rating level in July
2002.”). The agency did not notify the veteran of its July
2002 decision until January 2003, when the veteran re-
ceived a letter explaining the veteran’s total award
amount. Id. at 1215; see also id. at 1218 (noting “the VA
letter announcement in January 2003 of [the July 2002]
award”). Therefore, under Snyder and § 5904(d)(1), past-
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DOJAQUEZ v. MCDONOUGH 10
due benefits accrue from the effective date until the award
decision. See also, e.g., Jackson v. McDonald, 635 F. App’x
858, 860–63 (Fed. Cir. 2015) (non-precedential) (applying
Snyder); Rosinski v. Wilkie, 32 Vet. App. 264, 267–71
(2020) (same). Snyder’s interpretation of § 5904(d)(1) fur-
ther support our conclusion that the “date of the final deci-
sion . . . making (or ordering the making of) the award,” as
used in § 5904(d)(3), is the date of the agency decision, not
the date that decision was communicated to the claimant.
If, instead, the date of “the final decision” under sub-
section (d)(3) differed from the end date for the past-due
benefits calculation, an attorney could end up receiving
more than 20% of the claimant’s past-due benefits award
contrary to subsection (d)(1) and/or receiving a portion of
the claimant’s recurring benefits payments contrary to
subsection (d)(3). As the Veterans Court explained:
Presumably, and nothing in the record indicates
otherwise, Mr. Slaughter began receiving his re-
curring VA benefits payments at that rate from the
date of the March 2019 decision. Allowing
Mr. Dojaquez to obtain attorney fees based on the
amount of money paid to Mr. Slaughter from
March 2, 2019, through April 26, 2019, would per-
mit him to receive fees from Mr. Slaughter’s recur-
ring benefits payments, which by definition are not
past-due benefits.[3]
3 On appeal, Mr. Dojaquez argues, without citation
to record evidence, that “Mr. Slaughter did not receive pay-
ment from VA of his award of past-due benefits on March
2, 2019”; instead, “[h]e received his payment of his past-due
compensation benefits after receiving VA’s April 26, 2019
notice letter.” Appellant’s Br. 4. The Government responds
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DOJAQUEZ v. MCDONOUGH 11
J.A. 6 n.3. Indeed, Mr. Dojaquez contends he is entitled to
an “additional fee,” Appellant’s Br. 9, despite conceding
that he is not challenging the amount of Mr. Slaughter’s
past-due benefits or the end date for the past-due benefits
calculation, Appellants Br. 12 (“Mr. Dojaquez’s argument
is not that Mr. Slaughter’s past-due benefits should be cal-
culated using the date on which the Board actually mailed
the underlying Board decision awarding benefits.”).
Mr. Dojaquez also does not argue that he did not receive
20% of Mr. Slaughter’s past-due benefits. Cf. Cox v. West,
12 Vet. App. 522, 523 (1999) (“[I]t is generally in a veteran’s
interest to have an earlier termination date for past-due
benefits so that less money is withheld from [her] benefits
for attorney fees.”). Mr. Dojaquez makes no meaningful at-
tempt to explain how he would not receive more than 20%
of Mr. Slaughter’s past-due benefits under his proposed in-
terpretation.
We conclude that § 5904(d)(3)’s reference to “the date
of the final decision . . . making (or ordering the making of)
the award,” read in conjunction with § 5904(d)(1) and (2),
refers to March 2, 2019, the date of agency decision assign-
ing an effective date, not April 26, 2019, the date of the let-
ter notifying Mr. Slaughter of the agency’s earlier decision.
We need go no further, as “the statutory language provides
a clear answer.” Ravin, 956 F.3d at 1350 (citing Hughes
Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)). There-
fore, we find no error in the Veterans Court’s
that this factual argument was not raised before the Vet-
erans Court. Appellee’s Br. 21 n.5; see also J.A. 6 n.3.
Regardless of whether this argument was properly
raised, we lack jurisdiction to resolve such factual disputes
under these circumstances. See, e.g., 38 U.S.C.
§ 7292(d)(2)(B); see also Prinkey v. Shinseki, 735 F.3d 1375,
1381–82 (Fed. Cir. 2013).
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DOJAQUEZ v. MCDONOUGH 12
determination that the Board properly calculated
Mr. Dojaquez’s attorneys fees under § 5904(d)(3) and we af-
firm.
B
Mr. Dojaquez makes a number of arguments in support
of his interpretation of § 5904(d)(3), all of which we reject.
Largely, Mr. Dojaquez attempts to conflate notice of a final
decision and the final decision itself. For example,
Mr. Dojaquez emphasizes that “[n]either Mr. Slaughter
nor Mr. Dojaquez knew that VA had awarded past due ben-
efits until the date of VA’s notice and not the date of VA’s
decision.” Appellant’s Br. 12; see also id. at 11, 14, 21. But
nothing in the language of § 5904(d) requires notice, and
the award of past-due benefits in a rating decision from the
agency is separate from notice of the decision awarding
benefits. Therefore, this argument does not alter our inter-
pretation of § 5904(d)(3).
Mr. Dojaquez next turns to two regulations to support
his interpretation. First, Mr. Dojaquez relies on 38 C.F.R.
§ 3.104(a), which provides that an agency decision “is bind-
ing on all VA field offices . . . at the time VA issues written
notification in accordance with 38 U.S.C. [§] 5104,” to ar-
gue the agency’s decision is not final prior to notification.
Appellant’s Br. 20–21. But this regulation plainly does not
address what a “final decision” is, and to the extent it con-
flicts with the statute, the language of § 5904(d) governs.
See, e.g., RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012) (“It is a commonplace of
statutory construction that the specific governs the gen-
eral.” (cleaned up and citation omitted)). Second,
Mr. Dojaquez turns to 38 C.F.R. § 3.160(d), but this regu-
lation only addresses when a claim is “finally adjudicated”
and not what constitutes a “final decision.” Appellant’s Br.
22. And, as Mr. Dojaquez admits, id. at 22–23, “[f]inality is
variously defined; like many legal terms, its precise mean-
ing depends on context,” Clay v. United States, 537 U.S.
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DOJAQUEZ v. MCDONOUGH 13
522, 527 (2003). Therefore, we see no tension between our
interpretation of § 5904(d)(3) and 38 C.F.R. § 3.160(d) or 38
C.F.R. § 3.104(a).
Finally, Mr. Dojaquez contends that § 5904(d)(1) and
Snyder do “not answer the question presented,” Appellant’s
Br. 9, arguing that “[a]ll that was at issue in Snyder was
whether § 5904(d)(1) meant what it said,” Appellant’s Re-
ply Br. 9–10. We disagree with Mr. Dojaquez’s attempt to
read Snyder so narrowly and to interpret the statute such
that there is tension between § 5904(d)(1), (2), and (3). As
addressed in section III.A., our interpretation harmonizes
each provision of § 5904(d), and we decline to adopt
Mr. Dojaquez’s strained interpretation of § 5904(d)(3).
IV
We have considered Mr. Dojaquez’s additional argu-
ments and find them unpersuasive. Because “the date of
the final decision . . . making (or ordering the making of)
the award” as used in § 5904(d)(3) was March 2, 2019, the
date of the agency decision assigning an effective date, and
not the date Mr. Slaughter received notice of the decision,
we affirm.
AFFIRMED
COSTS
No costs.
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