Rosinski v. Wilkie, 17-3293

CourtCourt of Appeals for Veteran Claims
Decision Date30 January 2020
Docket Number17-3293
PartiesDouglas J. Rosinski, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Douglas J. Rosinski, Appellant,

Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 17-3293

United States Court of Appeals For Veterans Claims

January 30, 2020

Argued January 17, 2019

On Appeal from the Board of Veterans' Appeals

Douglas J. Rosinski, pro se.

Nathan Paul Kirschner, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Carolyn F. Washington, Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.

Before BARTLEY, Chief Judge, and MEREDITH and TOTH, Judges.


TOTH, Judge:

This appeal requires the Court to revisit a question that it has examined in various contexts: whether VA is obligated to pay fees to an attorney (or non-attorney agent) who obtains an award of past-due benefits on behalf of a VA claimant who is otherwise limited under a separate law from receiving such benefits. The constant throughout these cases, discussed at length later, is 38 U.S.C. § 5904. It instructs VA, in cases where a fee agreement specifies direct payment by the Secretary to an attorney for representation before VA, to pay the attorney up to "20 percent of the total amount of any past-due benefits awarded on the basis of the claim." § 5904(d)(1). The variable here is 38 U.S.C. § 5304, which, operating in tandem with 10 U.S.C. § 1414, prohibits veterans who receive military retirement pay from also receiving disability compensation from VA unless the veteran either obtains a disability rating of 50 percent or greater or has waived military retirement pay.

The discrete question is whether section 5904 requires VA to pay fees to an attorney who obtains a disability rating of less than 50 percent for a veteran receiving military retirement pay- or, whether section 5304 forecloses such payments to attorneys. In Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007), the Federal Circuit held that 38 U.S.C. § 5313, a statutory limitation on payments to incarcerated veterans, did not alter VA's obligation to pay attorneys fees under section 5904(d)(1) because section 5313 did not purport to change the monthly compensation awarded on the basis of the veteran's claim but merely served as a withholding device for full payment of benefits otherwise lawfully established. Because Snyder's reasoning-as explained in subsequent cases-applies equally to section 5304, the Court reverses the Board's ruling and directs the Secretary to pay Mr. Rosinski the fees to which he is entitled under section 5904(d)(1).


The record presents a meandering procedural history involving several rulings from VA on both the veteran's disability claim as well as appellant Douglas Rosinski's derivative claim for payment of the 20 percent portion of past due benefits. (For simplicity, we'll refer to this payment as "attorneys fees" with the caution that our use of the term does not also refer to fees made to an attorney under separate provisions of law such as the Equal Access to Justice Act.) Although the focus ultimately centers on the attorneys fees, it's the sequence of rulings on the veteran's disability claim that serves as a catalyst for the derivative attorneys fees claim. We thus summarize these to the extent necessary to understand the respective rulings on Mr. Rosinksi's claim for attorneys fees.

Christopher Grall, a Coast Guard veteran, was receiving military retirement pay when he filed a claim for VA disability benefits for migraine headaches. He entered into a standard contingency fee agreement with attorney Douglas Rosinski to represent him before VA, whereby Mr. Rosinski would be paid directly by the Secretary 20 percent of any past-due benefits awarded on the basis of Mr. Grall's claim. Past-due benefits are generated when an initial (or increased) rating is awarded with a retroactive effective date and normally result in a lump sum payment to the veteran. When the veteran faces an impediment to payment following the award of a rating, past-due benefits comprise the total amount of benefits that are "unpaid" to the claimant due to the impediment. Gumpenberger v. Wilkie, 31 Vet.App. 33, 37 (2019).

On December 13, 2013, the VA regional office (RO) granted a 30 percent evaluation for Mr. Grall's service-connected migraine headaches, effective May 10, 2011. This rating brought Mr. Grall's combined disability rating to 40 percent. However, because Mr. Grall had been in receipt of military retirement pay during the relevant period, VA informed him that the agency was withholding past-due benefits because he had not yet waived his military retirement pay and did not obtain a rating of 50 percent or greater. For these reasons, VA ruled that it was prohibited under section 5304 from paying him the past-due benefits.

In connection with that ruling, VA issued a separate decision denying Mr. Rosinski attorneys fees because the increased evaluation did not result in any retroactive payment to the veteran. Mr. Rosinski filed a Notice of Disagreement (NOD) challenging the attorneys fees decision. VA issued a Statement of the Case (SOC) in January 2015, and Mr. Rosinski appealed the decision to the Board in February 2015.

While Mr. Rosinski's appeal of the denial of attorneys fees was pending, VA on June 2, 2015, increased Mr. Grall's disability rating for migraine headaches to 50 percent, effective May 10, 2011. This ruling brought Mr. Grall's combined rating to 60 percent; and because he cleared the 50 percent threshold spelled out by sections 5304 and 1414, VA awarded the veteran past-due benefits. In addition to awarding benefits to Mr. Grall, the RO also found that Mr. Rosinski was entitled to attorneys fees in the amount of $3, 549. This amount reflected the fee for Mr. Rosinski's efforts in increasing Mr. Grall's evaluation from 30% to 50% for the period of May 10, 2011, until June 2, 2015.

The payment of attorneys fees didn't settle the matter; it merely shifted the terms of the dispute, as Mr. Rosinski now challenged the methodology under which VA tabulated the respective awards. Those tabulations run roughly as follows: Once Mr. Grall was awarded a 60 percent disability rating with an effective date of May 10, 2011, he became eligible for a total amount of back pay of $32, 499. VA ruled, however, that because Mr. Grall had received military retirement pay in the amount of $14, 745 during that time, those benefits were not owed to the veteran because they had already been paid out. R at 372, 387. Instead, VA paid Mr. Grall $17, 754, which represented the difference in these amounts-$32, 499 less $14, 745 that Mr. Grall had received in military retirement pay. Likewise, VA calculated Mr. Rosinski's attorneys fees at 20 percent of the reduced amount paid to Mr. Grall after discounting the retirement pay. After the dust settled, Mr. Rosinski claimed that he should have been paid 20 percent of $32, 499 (the total award), rather than 20 percent of $17, 754 (the reduced amount).

In January 2016, the Board denied Mr. Rosinski's appeal of the original RO decision. It found the matter to be moot because Mr. Rosinski was paid $3, 549 in attorneys fees and so there was no longer a case or controversy.

Mr. Rosinski appealed to this Court, which vacated the Board's decision because the Board provided an inadequate statement of reasons or bases for finding that the June 2015 RO decision rendered moot the appeal of the January 2015 decision.

On September 18, 2017, the Board affirmed the payment of $3, 549 in attorneys fees. It ruled that VA paid all past-due benefits owed to Mr. Grall when it paid him $17, 745 and that no other retroactive benefits were due to the veteran. For this reason, there was no basis for eligibility for payment of additional attorneys fees related to the claim. The Board based this ruling on the grounds that section 5904 did not "authorize VA to pay attorneys fees 'as if' a veterans claim resulted in an award of retroactive VA benefits payments where a veteran does not, in fact, receive a retroactive payment of VA benefits." R. at 13. The Board also distinguished this situation from that of Snyder, as that case involved a withholding of benefits from an incarcerated veteran who was otherwise entitled to such benefits; by contrast, this situation differed because Mr. Grall was not entitled to a cash payment of benefits under section 5304. Additionally, the Board ruled that VA was prevented from paying attorneys fees under its own regulation, 38 C.F.R. § 14.636(h)(1), which establishes that no cash payment will be made to veterans unless there is a corresponding waiver in retirement pay. The Board thus denied Mr. Rosinski's appeal.


This case marks the fourth in a line of attorneys fees decisions examining VA's obligations to pay attorneys fees under section 5904. The first and most significant of these cases is Snyder, in which the Federal Circuit defined various terms within section 5904 and examined whether VA's obligation to pay attorneys fees was countermanded by a separate statute, section 5313, which limited the monthly compensation payments that an incarcerated veteran could receive on a successful claim. 489 F.3d 1213. The next two decisions, Jackson v. McDonald, 635 Fed.Appx. 858 (Fed. Cir. 2015), and Gumpenberger v. Wilkie, 31 Vet.App. 33 (2019), refined Snyder's interpretation of section 5904 and applied it to other scenarios.

Framed in the most general terms, the question on appeal is whether Snyder's reasoning applies equally to section 5304 and obligates VA to pay attorneys fees even where the veteran receives a rating below fifty percent and hasn't waived retirement pay. Insofar as this question involves interpretation of section 5904, our task is made easier by the fact that Snyder already set out what various terms mean, with Jackson and Gumpenberger providing an assist. The more difficult part of our analysis arises when we analyze section 5304 to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT