So what was going on?  Well, English was seeking a higher evaluation for his service connected knee condition.  The VA had provided a few examinations during the period from 2008 to 2010, but the physicians at those medical examinations did not diagnose instability of the knee; it is important to kind of put out there that instability can generally be tested for during examination.  Since there was no objective evidence, the VA denied the claim. English appealed this denial.

When English got to his BVA hearing, the board looked at the complaints of instability and that they would put “emphasis” on the objective medical evidence in the record.  The problem was, however, that BVA failed to provided analysis and on why they gave such emphasis.  BVA seemed to put forward that only objective evidence would satisfy the requirement of instability under DC 5257.     This was not found to be the case.  The Court kindly scolded the Board for “consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law.”

The Court then proceeded to reverse the Boards decision and remand the case back with a finding that “objective medical evidence isn’t required to establish lateral knee instability under [diagnostic code 5257].”   The Court reasoned that regulation itself did not require objective evidence and BVA could not just read that evidence standard into the statute.  If it was supposed to be there, then Congress could have put it there.

Alright, so now we know that objective evidence of instability is not required.  Does this mean that we can or should just go out and claim the instability supported by lay evidence? Well, you could – but there are problems.

The Court took time to point out that BVA had the ability to determine whether or not there was competent evidence of the instability.  It’s very likely that any adjudicator could find that the objective medical evidence of record, testing, and examination from the physician would be of greater probative value.   This would essentially just negate the value of the lay testimony and the examiner’s findings would probably stand.

Taking it all in, the decision was decent.  To me, it gives more credence and insight to taking in non-objective evidence.  Most of the diagnostic codes do not dictate what type of evidence, so what someone might be competent to report could be a little more useful.   Unfortunately, I wouldn’t expect too many people to utilize this in their decision making.

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Attorneys don’t just get paid for doing nothing. They only get paid when they win! Once a claim is granted, the compensation that they receive is (normally) paid to them by the VA. That is, however, dependent on the proper paperwork being filed when it is required. Failure to follow those rules creates problems. This is exactly the situation that veteran disability attorney Sean Ravin found himself in here in Ravin v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1468.

Ravin signed onto a Veteran’s claim in the early part of December 2009. Come early spring, Ravin finally got to mailing his fee agreement to the VA regional office. The problem: it was a few months late. The Regional office told him so, but Ravin took this all the way to the Court of Appeals for Veterans Claims.

In ruling against Ravin, the Court laid out that regulations and their meaning were “plain as day.” File your paperwork on time–the VA will directly pay you when you win. If you do not file your paperwork on time, then you will be the one responsible for collecting any monies owed.

Although his client won, Ravin seemingly misunderstood that he could not get paid for his work. To me, it appears that Ravin believed that the direct pay agreement was the only method in which he could receive monetary compensation for his well-earned victory. It wasn’t that Ravin could not get paid, but rather it was just that the VA would not be one the writing the check. If Ravin wanted to get paid, he would need to go and ask for payment directly from the Veteran.

Getting your paperwork and agreements filed should be fairly straightforward and a standard process. This was just kind of an oops and probably a small oversight. There is always a lot of stuff going on in these claims, so it’s no surprise there was a tiny mistake.

Some individuals may assume that they might get to keep an extra 20% (the standard fee) since the paperwork was not filed. Such an assumption would be unwise. When services are rendered and you benefit from them, you are very, very likely to be required to pay for the benefit you received. After all, it was a contract and you won. Everyone should be happy anyways.

So, ultimately, what was the lesson learned from this case? File timely.

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