August 28, 2014

Discover How Disabled Veterans Can Optimize Social Security Disability Benefits

Utah Social Security and Veterans Disability Attorney

Joel Ban

Attorney Joel Ban, a Utah lawyer who handles both Social Security disability and Veterans Disability claims recently posted a concise and informative article on his blog describing the similarities and differences between the two programs.  Joel points out that a VA disability rating of 70% or higher can help your Social Security claim – this confirms my experience that Social Security judges will give weight to VA disability findings.

Joel was kind enough to give me permission to reprint his article in its entirety, which I have done below.

VA Disabiltiy and Social Security DisabilityThis article is an overview of the highlights of the major topics for Veterans who have both Veterans Disability claims as well as Social Security Disability claims. A lot of Veterans may have both Social Security and Veterans Disability Claims going on either at the same time or may have received one benefit before applying for the other. VA compensation, aka service connected disability is not based on income so you can definitely receive VA compensation and Social Security Disability (SSDI) at the same time. There is also VA pension which is a needs based program, very similar to Supplemental Security Income (SSI). VA pension will be paid to Veterans if they have very little or no income and are disabled based on non service disabilities. It is possible to receive SSI and VA pension at the same time. Based on your circumstances its best to qualify for both VA compensation and Social Security Disability since they generally are the more generous benefits, however its important to be aware of these other needs based programs.

Major Differences between the Programs

Major differences between Social Security Disability and Veterans Disability is that you don’t need a total disability in order to be eligible for VA compensation. In fact, most Veterans who receive VA compensation do not receive a total disability rating. Veterans can receive a compensable rating as low as the 10% level and can have a rating as low as 0%. In many cases it makes sense to go for a 0% rating even though its not compensable. The reason for this is that it will mean that the Veteran at least has a service connected disability that will likely deteriorate into a more serious problem and later morph into a compensable disability. Many Veterans have trouble proving service connection but with a 0% rating the Veteran will have already crossed this hurdle. Social Security Disability, conversely does not compensate claimants based on a partial loss of employability. You are either disabled or not disabled under this program.

Another major difference between the two programs is the treating physician rule. In Social Security law once it has been established that a claimant’s physician is a “treating physician” that medical professional’s opinion is given deference. This can be the difference between winning and losing a SSD claim. However, in VA law it can be difficult to get a treating physician to give a positive opinion, especially if the Doctor works for the VA, but even if they do the opinion is not given deferential weight since the VA may consider that physician biased and is not given any special weight. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001). This case explained that the treating physician rule conflicts with an important VA principle that decisions be based on the entire file so as not to give any particular evidence extra weight.

Does getting benefits in one Program help get Benefits under the other?

So the question becomes does having one benefit make one’s case for the other any better? Overall, the answer is yes, but it depends. If you are the recipient of a very high VA rating (70% or higher) than your chances for success on your Social Security Disability claim are quite high. This is because another federal agency has already found that you are either incapable of work or you are at a level where full time work would be very difficult. One advantage many Veterans with high disability ratings is that while VA only considers service connected disabilities the SSA will consider all impairments whether they are service related or not.

Because of the similarity between a VA finding of unemployability and what it means to be disabled under the social security disability program, it is the rule in four circuits that such VA disability ratings are entitled to “great weight.” See McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); and De Loatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983). One circuit court has said that VA disability ratings were entitled to “substantial weight.” Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985). SSR 06-3p says that the decision and the evidence used to make the decision “may provide insight into the individual’s mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules.

Unfortunately, if you are disabled under SSA rules, the VA may not give this decision as much weight since its not usually clear whether this decision is based on service connected or non service disabilities. Most Veterans have a wide array of both types of disabilities and so the VA will be quick to attribute total disability to a host of non service disabilities. They usually are required to make specific findings on what disabilities prevent employability. In this case it may become important for a Veteran to hire a Vocational Expert to support their total disability claim so they can specifically attribute unemployability to service related disabilities. However, it is definitely recommended that the VA be provided with the entire SSD file and decision even though the VA has a duty to request it since this could provide key evidence for your VA claim. Brown v. Derwinski, 2 Vet. App. 444, 448 (1992); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

Other Important Things to Know

In the Veterans Disability program although as mentioned above a Social Security Disability decision is given no special deference the VA will be required to consider SSD records. Under 38 C.F.R. § 3.159(c) the VA lists the Social Security Administration as one of the agencies from which they are required to obtain relevant records. See Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996) (“As part of the Secretary’s obligation to review a thorough and complete record, VA is required to obtain evidence from the Social Security Administration, including any decisions by the administrative law judge, and give that evidence appropriate consideration and weight;” citing Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). The SSD file is especially critical in VA claims for total disability for individual unemployability. Since both situations require consideration of whether the claimant or Veteran can work the SSD file is especially relevant. Under the VA Duty to Assist the VA will have violated that duty when they fail to request the SSD file. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VA violated the duty to assist by failing to obtain Social Security records when it had actual notice that vet was receiving Social Security benefits).

A Social Security claims for survivor benefits based on the death of a Veteran also constitutes a VA claim for death benefits. They are said to be received by the VA at the same time they are received by the SSA.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. Thank you for your informative article. I am 100% unemployable for 4 different conditions. I do have a lawyer but only have 9 weeks left for unemployment. So I don’t want to lose my home waiting for a decision, that would kill my wife. Any suggestions?

  2. Joseph Pearl says:

    As an attorney in Bakersfield CA and specializing in social security disability your article is a benefit to my practice. Keep the articles coming!

    Joseph S. Pearl
    Bakersfield Disability Attorney

  3. Willard McDowell says:

    I was awarded SSDI last year for VA serviced connected disabilities I filed for 100% unemployibility and i was denied by the VA,They sent me a letter saying i could still work but Social Security Vocational Expert said i couldn’t work anymore.I filed with the VA in Jan 2010 i got my denial letter May 2011. I have filed an appeal i was told that could take 1-3 yrs. I have a 70% disability rating I also had the physican who had been treating me for over 5 yrs work me a letter of unemployability he stated that in his medical opinion i could not seek gainful employment.When i read the denial letter from the VA the doctor’s letter was not listed as part of the medical evidence

  4. Miguel A. Briseno says:

    I had been searching the web for several days, to find exactly what I was looking for in your article.
    Would love to have your assessment in applying for SSDI. I’m 90% disabled S/C by VA and have IU at 100% rate, with more than 50% of my disability from several musculoskeletal conditions. I feel insecure about applying for SSDI. Please use my email address above with your reply.
    Thank you.

  5. Landra LeBlanc says:

    My husband is 58 and recieves 100% Va Disability. Has been working for 15 years while drawing VA Disability. Recently he has had a stroke that is hendering his ability to drive back and forth to work. It has also cause more deminiatia. He is considering applying for SSI but doesn’t know how this will affect the amount he recieves for VA Disability. He has heard you cannot draw both. Could you explain how this works , can you draw from both VA Disability and Social Sercurity Disability? Thank You Landra

  6. Iam 53 yrs old and receive social security disability and 40% VA disability.I have a claim undergoing the appeals process for an increase in va percentage .Will va disability compensation amount, effect social security compensation amount and at what dollar amount?

  7. i only get 40% service connected and i am only 32 years of age and was denied ssi because of age. my family is hurting and i dont know what to do. i have been waiting going on three years now on a hearing for ssi.

  8. ROBERT MONTROY says:

    @Landra LeBlanc: I’M RECEIVEING BOTH WITH NO REDUCTION ON EITHER ONE ,100% UI GRANTED IN 2011 RETRO FROM 2010 !GOOD LUCK

  9. My husband was granted 100% disabled by the VA in 1976 at the age of 19. In 1984, Social Security found him disabled but was short 3 quarters and not given SSDI. He went to a number of attorneys who said it was too complicated. Shouldn’t this man be getting SSDI?

  10. John Worstell says:

    Hi Im a retired Navy vetwho is currently 70% disabled I have filed a claim to have my percentage increased to 100% IU.They have made the decision.Right now Im waiting for the letter to come. My question is when you called them why can’t they give an idea where
    its heading after all its my claim and my body.

  11. John, I don’t handle VA claims but SSA has the same type of bureaucracy. The people who handle the incoming calls are given specific instructions about what they can and cannot tell callers. Apparently the VA does not allow telephone clerks to reveal this information. Realize as well that the VA and SSA have to be very concerned about privacy issues – how can they be sure that you are who you say you are when you call.

  12. If a person is only 3 quarters short, there are a couple of options. Keep in mind as well that you need around $1,000 of gross earnings to earn 1 quarter of coverage and you can earn the maximum 4 quarters of coverage all in the same month. In other words if your husband was able to work (or generated self-employment) income of around $4,000 in a month or two, he would have his needed quarters of coverage.

  13. Donna C. says:

    I receive 100% disability from the VA. The amount of by benefits is 2873.00. My question is can I receive ssdi along with my disablility from the VA? Also, who can I contact here in Rockland County in New York to have this answer in writing?

  14. Yes, I believe you can collect both. You can try to contact the Social Security office in Rockland, or perhaps contact Senator Schumer or Gillibrand’s office for the Social Security liason.

  15. Douglas Level says:

    I am a 90% Disabled Veteran. I receive VA compensation and SSDI. SSA said
    I could not earn any type of income. Is that correct?

  16. I am 70% Service connected with PTSD . I also get 100% IU. I’m from TN and have applied for social security in the past. I just got my 100% about 6 months ago but applied 10 years ago. They only retro paid me for two years. I applied 10 years ago. I also applied for social securityabout 6 years ago.

  17. ROBERT VANN WILSON says:

    I APPLIED FOR SSI YEARS AGO BUT WAS DENIED THE VA GAVE ME 100% SERVICE CONNCTED UNEMPLOYABLE ON1 ONE ISSUE AND DIFFERENT % FOR OTHER ISSUES WHEN THE SS DENIED ME I WAS CONFUSED STILL AM MY BRAIN DON’T WORK LIKE IT SHOULD I HAVE GOOD DAYS AND BAD ONES I HAVE BEEN HOMLESS BEEN IN AND OUT OF JAIL HAULED POT,ETC NEVER DID ANY DRUGS THEY TREATED ME BETTER THAN THE GOV I AM ALOT WORST NOW MY HEALTH IS SCREWED UP IMMUNE SUSTEM GONE PLATELETS COUNT FAR TO LOW HEP-C 100% ITS NOT IF ITS WHEN I HAVE TO HAVE A LIVER TRANSPLANT HIGH FREQ HEARING LOSS IN BOTH EARS PDSD SO BAD HAVE TO GO TO MENTAL HEALTH AT THE VA BEEN BAKER ACTED BY THE VA NERVE DAMAGE IN R ARM ALL SERVICE CONNECTED IF THERE IS A PROBLEM I DON;Y WANT TO HEAR ABOUT IT ITS TO STRESSFULL AND IT AINT GOOD FOR ME TO BE THAT WAY I’M NOT THKEING ANYMORE TEST I’VE BEEN DOWN THAT ROAD AND I NOT DOING IT AGAIN WHY MY WIFR MARRIED I DON’T KNOW BUT SHE GOT ME IN THE VA AND IS WRITENIG THIS

  18. paul walker says:

    Iam 64 started collecting social security at 62 {1249 a mth. Ijust got rated 100%perm.dis. NAM ptsd should i file for ssdi is it more money than the ss payment. Any info would be great. Thanks Paul

  19. Rickey A Davis says:

    I am a 56 year old man with a 30 present disabled trow va. I Have applied for my ssi And got turn down I have a lawer now and appealed it.About too lose everthing I own. But thay don,t care

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