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.

This 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.

I have a claim going now for SSDI and have not recieved a decision yet however after reading your blog I am very curious about your experience with VA disability and SSDI. I am 100% disabled and receive VA disability. How does or can this affect my SSDI claim?

Jonathan Ginsberg responds: Generally, a disability finding by the VA will be of great benefit in your Social Security case.  The Social Security law provides that judges must consider VA findings as evidence in your favor.  It has been my experience that any SSDI case that also has a 100% VA disaiblity finding has been a winner.  Even cases where the VA disability rating is less than 100% are usually approved.

Here is the link to a page that summarizes rules about Social Security earnings credits for veterans.  It appears to me that there is no single answer to this question – it appears that the years of service and the status of the serviceman or servicewoman determine how many credits are awarded.

Social Security has also published a booklet that summarizes the rules for calculating Social Security earnings credit for veterans of military service.  These rules include the following:

If you served in the military from 1940 through 1956, including attendance at a service academy, you did not pay Social Security taxes. However, SSA will credit you with $160 a month in earnings for military service from September 16, 1940, through December 31, 1956, if:

• You were honorably discharged after 90 or more days of service, or you were released because of a disability or injury received in the line of duty; or

• You are applying for survivors benefits based on a veteran’s work and the veteran died while on active duty.

You cannot receive these special credits if you are receiving a federal ­benefit based on the same years of service, unless you were on active duty after 1956. If you were on active duty after 1956, you can get the special credit for 1951 through 1956, even if you are receiving a military retirement based on service during that period.

If you served in the military from 1957 through 1977, you are credited with $300 in additional earnings for each calendar quarter in which you received active duty basic pay.

If you served in the military from 1978 through 2001, you are credited with an additional $100 in earnings, up to a maximum of $1,200 a year, for every $300 in active duty basic pay. After 2001, additional earnings are no longer credited.

If you began your service after September 7, 1980, and did not complete at least 24 months of active duty or your full tour, you may not be able to receive the additional earnings. Check with SSA for more information.

If you are dealing with this problem, do not hesitate to contact your Senator or U.S. Representative’s office for help.

[tag] Social Security earnings credit for veterans [/tag]