FREQUENTLY ASKED QUESTIONS

WHAT WILL MY APPEAL COST ME?

There is no hourly charge to you for legal services. If Attorney Andrew J McKeown obtains a retroactive award for you, he receives a percentage of that award.  That is known as a contingency fee. If Andrew prevails before the Court, VA must pay his legal fees under the law. This does not come from your benefits. If Andrew does not prevail, then he will not receive any compensation. The only cost you face is the Court filing fee of $50, which can be waived if that presents a financial hardship.

HOW DO I HIRE AN ACCREDITED ATTORNEY?

This requires that you enter into a written agreement (referred to as “Power of Attorney”) between yourself and Attorney Andrew J McKeown. The agreement will provide the terms of that representation and inform you as to the basis for payment of legal fees and costs. Please note, Attorney Andrew J McKeown operates under traditional contingency fee agreements.  Essentially this means if he doesn’t win your case, he does NOT get paid.

WHY SHOULD I BE REPRESENTED BY AN ACCREDITED ATTORNEY?

Veteran’s law is a very complex and ever-changing area of law that very few legal practitioners are willing to undertake. Pursuit of your appeal without experienced legal counsel severely reduces your prospects for success before the Court.  Over 75% of all cases resolved at Court in 2008 were represented by legal counsel.

HOW MUCH IS MY CASE WORTH?

Veterans can receive retroactive awards ranging from tens of thousands of dollars to hundreds of thousands. These awards are tax-free. The value of your case depends on the facts. However, currently, a 100% rating of service connected disability entitles the veteran to $34,956/year without dependents or additional entitlements.

DO YOU PROVIDE UPDATES TO CLIENTS?

Attorney Andrew J McKeown will provide periodic updates on the appeal that generally corresponds with documents received or submitted to the Court.  It is to be expected that extensions may be obtained by Attorney McKeown in the proceedings before the Court.  Given the large number of cases on appeal, short delays are often necessary to assemble records in any given appeal.

DO YOU RESPOND TO EMAILS FROM CLIENTS?

Attorney Andrew J McKeown prefers emails from clients. This allows Andrew to respond in a timely fashion and have the necessary information available to answer your questions.  Feel free to email anytime.

DO YOU WANT ME TO SEND MY ORIGINAL DOCUMENTS?

No!  Please do not send any documents unless asked to. Attorney Andrew J McKeown asks that you scan and email documents so he can put the digital records in your file on his server.  In the event that Andrew does ask you to send in documents, do NOT send the originals.

CAN I GET BOTH SOCIAL SECURITY BENEFITS AND VA BENEFITS?

Yes. However, this applies only to Social Security Disability (SSD) benefits and VA compensation benefits. It does not apply to Social Security Insurance (SSI) or VA pension benefits. SSI and VA pension benefits are income and asset tested and cannot generally be combined with other benefits.

CAN I BE EMPLOYED AND RECEIVE VA DISABILITY PAYMENTS?

You CAN be employed AND receive monthly VA Compensation disability payments. This remains true even if the Veteran recipient is getting paid at the 100% level.  Please note, the sole exception to this is if the Veteran is receiving monthly payments at the 100% due to TDIU and in some cases mental conditions rated at the 100% rate.

ARE MY SERVICE-CONNECTED DISABILITY PAYMENTS TAXABLE?

These payments are tax-free.

DOES MY ATTORNEY NEED TO BE IN WASHINGTON, D.C.? 

It is important to remember that the US Court of Appeals for Veterans Claims is unique in conducting business through pleadings filed electronically and in its use of telephone conferences. Therefore your attorney doesn’t need to be from Washington, D.C.

WHAT IS THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS?

It is a special court with exclusive jurisdiction to hear appeals arising from an unfavorable decision by the Board of Veterans’ Appeals.  This Court has limited jurisdiction.  It reviews the processes followed by VA in the prior adjudication of your claim and determines if it was according to law. The Court will not consider evidence that was not before the Board when the decision was rendered.  When error is uncovered, the Court remands, or sends a matter back, to VA for correction of errors.  A remand, therefore, is the remedy to expect from the Court.

WHAT IS THE PROCESS AT COURT?

The initial part of your appeal will involve establishing the official Record to be considered by the Court.  After the Record has been filed, a conference will be scheduled with the VA attorney to discuss errors noted in the prior litigation of your claim in an attempt to have your case remanded at its earliest opportunity.  If VA does not concede to error, Attorney Andrew J McKeown will be required to submit a brief that outlines the legal bases for error.  The VA then would have 60 days to respond with its brief.  Once the matter gets assigned to a judge, we can expect another 9 – 12 months for a decision.

HOW LONG WILL MY CASE TAKE IN COURT?

The VA ROs, BVA and Court have a substantial backlog of cases. It takes many months just to get the record ready. Do not be surprised if it takes over a year for a decision.  Attorney Andrew J McKeown goal is to keep your case on track and get your appeal back to VA for correction of errors at the earliest opportunity and press for a favorable decision. He does this through telephone negotiations with the VA attorneys in an attempt to shorten the appeal period.

HOW DO I GET AN EARLIER EFFECTIVE DATE FOR MY DISABILITY?

VA assigns an effective date as the date on which the granted claim was filed. There are some important exceptions to this rule.  One exception involves CUE claims and another involves a claim which is granted based on newly discovered service department records.  If a claim for service connection has been denied for years and is then granted when new unit records are discovered, the regulations require that the VA consider an effective date back to the time when the first claim was filed.

CAN I REOPEN AN OLD CLAIM?

Veterans’ disability claims, once decided and not appealed, become final and binding.  There are two basic ways in which a finally decided claim determination may be challenged. The first is by the use of Clear & Unmistakable Error (CUE).  The other process is reopening a finally decided claim by the use of “new and material evidence”.  Generally, this type of evidence is submitted when a Veteran is trying to reopen a denial of “service connection” for a claimed disability.  New and material evidence is a high legal threshold, though certainly not impossible.  If the VA determines the evidence is both “new” and “material”, the VA will reopen the claim.  That is not to say it will eventually grant the claim. It is just that the veteran is given the chance to once again prove the merits of his or her claim.

If the Veteran is seeking to increase the amount of a disability rating percentage, the remedy is to file a claim seeking to increase the disability percentage. The Veteran in this case is not reopening the claim.  Nevertheless, these types of claims are also routinely and erroneously denied by the VA, thus in the event of a disagreement, the same appeal process applies.

WHAT IS CUE?

CUE stands for Clear and Unmistakable Error. CUE is a legal argument that a VA decision was wrong. If the claim is successful, benefits are paid by the VA all the way back to when the denied claim was filed.

The required legal proof is very high for a CUE claim.  It is not enough to show that the VA decision was wrong. The veteran is required to show that the regulations and facts which were in the Case File at the time of the prior decision could lead only to one conclusion and the VA got the wrong conclusion. The court is very strict about CUE claims and, while these claims do get granted, they are not granted very often.

WHAT IS TDIU?

TDIU stands for Total Disability based on Individual Unemployability.  It is also called IU and Unemployability. TDIU is based on a regulation that allows veterans who have less than a 100% schedular rating to receive 100% disability pay where the veteran’s service connected disability causes a total inability to work.  In order to qualify for this rating, the veteran must have one service connected of 60% or a combination of ratings totaling 70% with one of the included ratings being at least 40%.  Once these rating qualifications are met, the veteran is entitled to the benefit if he or she can show that the service-connected disability has caused a total inability to work.

HOW DOES THE VA COMBINE DISABILITY PERCENTAGES TO DETERMINE THE OVERALL PERCENTAGE RATE I AM PAID AT?

Your final percentage rate of payment is determined by Department of VA Disability Combined Ratings Table found in 38 CFR 4.25 and the corresponding Bilateral Factor computations found in 38 CFR 4.26. In short, the VA does not simply add all of your disability percentages together (i.e. 50% + 50% DOES NOT =100%), rather there is a specific chart found in 38 CFR 4.25 that instructs the VA how percentages are combined.  This process is widely referred to as “VA Math.”

Attorney Andrew J McKeown has a partner website, www.VetCalc.com, that has developed a smartphone app that combines these percentages and provides estimated monthly payments in seconds.  Specifically, VetCalc provides a raw combined disability rating with bilateral factor calculations; rounds the raw combined disability percentage “up” or “down” and calculates an estimated monthly compensation benefit payment based on a user’s unique dependency inputs. vetcalc-hshpic

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