This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits. Visit Stateside Legal (below) for assistance with legal issues.
NOTE: Letters in my Q&A columns are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.
Disability Benefits Available Under the Social Security Disability Insurance (SSDI) and Veterans Disability Compensation (VDC) Programs PDF Here
I am rated by the VA as 50% disabled. Part of that is due to a back injury received on active duty that has now been worsened by an injury on my civilian job. I applied for and received Social Security in six months. Someone told me that the VA has to acknowledge my Social Security disability and give me 100% disability due to unemployability. Another words that one federal agency must go along with another federal agencies findings. Are you aware of this and if so do you know where I can find this in writing? (Signed) Gulf war veteran
I'm sorry to tell you that "someone" told you wrong. There is no required or implied reciprocity between the VA & the SSA. The standards of how "disabled" is defined are different from one to the next. It becomes even more fun when you look at how different insurance agencies and work comp policies define it.
Having said that, if you proceed to apply for 100% disability with the VA and provide them with the rationale that the SSA used, it's likely that they will follow along. This is *IF* the SSA based their finding on only your service connected disability. VA won't consider anything else.
If you're denied by VA don't sweat it. You'll appeal and the appeal is much more likely to consider the SSA conclusion and award you your benefits.
I have three easy (I hope) questions for you. I am rated 90% service connected. I just received a letter from the VA stating I have been rated "Individual Unemployability." The letter states I am still 90% service connected but 100% for Individual Unemployability. It goes on to say "No examination will be scheduled in the future." First, does this mean Individual Unemployability is permanent? Second, will this entitle my wife and I to get military I.D. cards and third, will the Individual Unemployability rating stop when I turn 65?
Thank you for all your help and service.
I'll offer very brief answers and then I'd like for you to head over to http://www.vawatchdogtoday.org/TDIU.html to learn a lot more about your benefit. The TDIU benefit is generous and you should learn all you can to take full advantage of it.
So...to your questions, yes, yes and no. Again, there's much more so please study up a bit.
Also, don't forget that you may now be eligible for SSDI. Having the TDIU benefit doesn't guarantee that the Social Security Administration folks will award you the SSDI benefit but it does help. You should consider applying for SSDI soon. You may collect both benefits with no offset.
JIM: Karl, these are exciting times for Veterans as we gain the rights to have professional representation to our often troubled dealings with VBA. Please take a moment to tell us about yourself, your firm and your current practice of law.
KARL: My name is Karl Kazmierczak and I am a partner at the firm Kazmierczak & Kazmierczak, LLP. We are based out of New Jersey with a satellite office in New York as well. Currently, our practice focus’ exclusively on disability law, whether it is Social Security Disability, Long Term Disability, SSI, and Veterans Disability.
Prior to the new law coming into affect for Veterans, we focused on SSD and SSI. However, when we the announcement came that Veterans were going to be able to obtain legal representation, we made a major shift in our focus and began including Veterans disability as well. Since that decision was made, I have written two articles on Veteran Disability law, made a website providing free information regarding Veteran disability law, attended a seminar presented by NOVA (National Organization of Veterans Advocates) and applied to be accepted into the United States Court of Appeals for Veterans Claims. It is our intention to provide Veterans of this great nation the same representation we would provide to our residents. Simply stated, if a person is disabled, we try to help.
JIM: Some of my readers have objected to lawyers jumping in to the system saying that as lawyers have never been allowed to practice VBA law, they won't be familiar with how it all actually works. Their feeling is that Vets are better off using a VSO representative because of their hands on experience. How well do you think your work as a Social Security (and other) disability attorney will transfer to this new arena?
KARL: I believe that the cross over from Social Security Disability to Veterans Disability is the soundest move out there for both the Veteran’s sake as well as the attorney. Surprisingly, the two practices are similar yet there are some distinct differences. However, as you know, it is my job to know those differences and use the law to my client’s advantage.
Some of the similarities include:
The crux of each case is acquiring the medical records for the clients and presenting them properly and incorporating it into my theory of the case.
Both agencies are governmental nightmares and as it happens my staff is extremely experienced with dealing with those types.
Both types of cases require in-depth knowledge of medical conditions. This is critical for the client.
Both require knowledge of administrative hearings and federal court work. Yes, they are labeled differently, however, the procedures are essential the same.
In both cases, I work for the client. If he or she doesn’t win, neither do I.
An ancillary advantage to providing both SSDI and VA representation to claimants enables the client to pursue all the claims for disability (I.E. SSDI, VA and Long Term Disability) concurrently and with one attorney.
JIM: Could you please explain a contingency fee agreement? An argument against allowing lawyers into the mix has been that a lawyer will demand more and more money from a Vet and that in the end a Veteran may suffer massive losses of benefits money to an attorney who does little to earn it. How will a Vet pay you for your efforts?
KARL: In most cases lawyers will get paid on a contingency basis. The Department of Veterans Affairs has already stated that attorney’s fees must be reasonable. What is believed to be considered reasonable is 20% of past due benefits. The lawyer only gets paid in a contingency agreement if he wins the case. In this type of agreement the lawyer’s interest and the client’s interest are the same to win the case and getting as much past due benefits as the veteran is entitled to. The other obvious advantage to the veteran is that he or she does not have to put out any money to get help and does not have to worry that if they lose their case they will owe money to a lawyer.
JIM: When a Veteran makes the decision to retain a lawyer, how should the Vet choose his advocate? I know your firm is prepared to assist a Veteran who contacts you from almost anywhere but if a Vet seeks a local lawyer, should he just go to the yellow pages and hope for the best?
KARL: Presently, there are very few attorneys who actually practice VA law so it will be difficult for Veterans to go to the yellow pages and just look one up. Thankfully, for the veterans Veterans Disability law is governed by Federal Law and while that sounds technical it simply means that an attorney who is in New Jersey could just as easily represent the veteran in Oklahoma as he or she could represent someone in New Jersey. If someone however feels more comfortable with a local attorney there is an organization of veterans lawyers which I am a member called NOVA and one can find a listing of lawyers by state on there site or I can help by contacting one of the members near them.
Regarding how to choose an attorney, it is always my advice to go with the attorney who explains things to you and does not act like you are a burden on his or her time. Keep in mind when consulting an attorney – he or she works for you. You should not fear your attorney however, do give him or her deference when it comes to the law. The attorneys are educated in the subject and will do his or her best to represent you.
JIM: I'm aware of complex applications that have been circling back and forth for years. These seem caught up in an endless loop it and never reach a point of advancing to the Board of Veterans Appeals. The amount of paperwork and documentation is enormous. How will an attorney cope with even just a few of these time consuming cases landing on their desk?
KARL: I believe one of the reasons this happens is because the case may not be handled properly from early on in the process. I believe lawyers will help to make sure this does not happen as often by making sure the case is ready at each stage of the process. That being said when dealing with a bureaucracy like the VA there is sure to be problems such as this. I know from my years of experience dealing with the Social Security Administration that the key is to have a system in place that constantly checks to make sure all the cases are timely acted on. In my office we use state of the art computer programs that alert us to make sure timelines are met. Most lawyers and especially lawyers who have handled many Social Security cases have a lot of experience with large complex files and have developed office practices to handle this. Most importantly it takes a lot of hard work by the attorney and staff. I as most attorneys work long hours but it is a very rewarding job because I am able to help so many people who need it.
SSDI and VA Compensation
This information is provided courtesy of;
Karl Kazmierczak, Esq.
Can you get VA disability benefits and Social Security Disability benefits?
I have noticed in my practice that many veterans do not know they can get both Social Security disability and VA compensation benefits. There is not an offset between these two programs. This means you can get your entire benefit under VA Compensation and your entire benefit under Social Security Disability at the same time. It gets a little more complex when we start to talk about VA pension.
VA pension is a needs-based program for disabled veterans of wartime service. Veterans under the pension program can receive money up to the total pension amount. The VA will look at a veteran’s assets and countable income and if this is below the pension amount they will receive money to bring them up to the pension total amount. Income that does not count against the pension is welfare and other needs-based payments. These include supplemental security income (SSI), state welfare, general systems and home relief. The VA does count all family members income which can reduce or eliminate the veteran's pension. Social Security disability payments will count to reduce or eliminate pension amounts. This is because Social Security Disability unlike SSI is not a needs-based program. Workers compensation benefits paid either to the veteran or their spouse will count as income in calculating VA pension. It is also important to note here that even though VA pension is not offset by SSI payments, welfare or Medicaid these programs can count VA pension in determining eligibility for these programs. So unlike Social Security disability and VA compensation benefits, your amounts you get for SSI, Medicaid or welfare can be reduced or eliminated due to the income you receive from VA pension. So as you can see even though VA pensions are not offset by SSI payments, SSI payments are offset by VA pension benefits. This is done on the dollar for dollar basis.
So how will working affect my benefits? Service connection VA compensation benefits are usually not affected by employment. However, if the veteran has what they consider substantial gainful employment it may prevent benefits based on employability. Veteran’s pension benefits will be eliminated if the veteran is engaged in substantial gainful activity. This is because in order to get VA pension one must be totally disabled.
Social Security Disability and SSI the Basics
On this webpage I will explain Social Security disability and supplemental security income. If you are attempting to get disability under both or one of these programs the definition of disability is the same. The Social Security Administration defines disability as:
"The inability to engage in any substantial gainful activity by reason of the medically determinable impairment, physical or mental (or combination of impairments), which can be expected to result in death, or which has lasted or can be expected to last for continuous period of not less than 12 months."
I will now discuss the two programs. I will start with Social Security disability insurance.
Social Security disability also called Title II, SSD I, SSD and DIB.
To be eligible for Social Security Disability Benefits you must have paid into the social security system by way of Social Security tax that you pay the government from your work earnings. You must have sufficient work credits to be considered fully insured. This means you must of worked and paid taxes long enough to have enough credits to be eligible. You must also have recent work credits. Although this can depend on the claimants age in most situations a claimant must of worked five out of the last 10 years to be fully insured and eligible for SSD. To be eligible to receive benefits you must be found disable while you are insured. If you have worked consistently than you would normally have five years from the date you last worked before your insured status runs out. The date your insured status runs out is called your date last insured or DLI. If you are found disabled your benefits start on the six month after the month in which SSA found you to be disabled or one-year prior to the date of your application whichever is less. If you are found disabled you are also entitled to Medicare benefits two years and six months from the date SSA found disabled or after you have been receiving benefits for a period of two years.
Supplemental security income benefits also called Title 16 and most commonly SSI.
SSI is a federal welfare program for the disabled and elderly and it is based on financial need. Unlike SSD, where the benefits are paid from social security trust fund, the payments for SSI come from general tax revenues. Therefore, eligibility for SSI is not based on work credits, instead to be eligible for SSI one must have limited income and resources. To be eligible for SSI one must both be financially eligible and 65 or older or blind or disabled. How SSA determines if you are disabled is the same for both SSD and SSI and will be explained later in this page. I will now discuss the financial eligibility for SSI. To be eligible for supplemental security income one must have resources that are less than $2000 for an individual and $3000 for a married couple. The home is excluded from the calculation of resources. The cash value of other assets which include things like life insurance and investments are counted as resources. One car per household is excluded from the calculation of resources. What SSA considers to be resources can start to get a little complex. Earned and unearned income in the household in which the claimant lives will be calculated in determining eligibility. I should also note here that if you have a claim for SSD and SSI the SSD payments will be counted as income and can reduce or eliminate SSI benefits. In most situations, one must be a citizen to be eligible for SSI. There are exceptions to this rule that are too numerous to discuss here but the information exceptions to this rule can be found on my website at http://www.ultimatedisabilityguide.com/ssi.html and the SSA website.
There is also child's SSI but since this is a website for veterans I will not discuss this program on this page.
The Social Security Disability and SSI five step process that determines if you are disabled.
Now that I have discussed the Social Security Administration's definition of disability and the two main programs for the disabled I will now explain how the decision-makers at SSA determines if you are disabled. They use a five step process to determine disability.
At step 1 of the process, SSA will determine whether you are considered working under their rules. This means you are working to an extent that they call substantial gainful activity or SGA. When SSA considers whether or not you are considered working at SGA level how they determine this will depend on whether you are an employee or self-employed. If you are an employee than substantial gainful activity will be found if you earn more than $980 gross a month for the year 2009. If you make less than $980 per month and then your work will probably be considered not SGA. Each year has a different SGA threshold so every year prior to 2009 the amount you can make is a little bit less each year you go back. If you are self-employed the rules can be quite complicated on what is and what is not SGA so you may need to seek legal advice if this pertains to you. If social security determines that you are working at SGA level then you will be found not disabled. If they find you are not working at SGA level then you proceed to the next step.
At step two, SSA will determine if you have a severe impairment. Social Security defines a severe impairment as: "an impairment, or combination of impairments, is considered severe if this significantly limits your physical and mental abilities to do basic work activities." An impairment will be considered severe if that impairment imposes more than mild limitation on one's ability to perform work related activities. The severe impairment must last for 12 consecutive months or be expected to result in death. If you are found to have a severe impairment you then move to the next step. If your impairment is found to be not severe then you are found not disabled.
At step three, SSA will determine if you have an impairment that meets or equals a listed impairment. The medical listing of impairments is grouped into categories. A copy of the medical listing of impairments can be found on the SSA website at http://www.socialsecurity.gov/disability/professionals/bluebook/listing-impairments.htm . The medical listings are set up to find someone disabled where their condition is considered so severe that it would prevent the individual from doing any gainful activity without consideration to their age, education or work experience. If one doesn't exactly meet a particular medical listing they can also be found disabled at this stage if they are found to equal a listed impairment. This means their condition is at least equal in severity and duration of the criteria of any listed impairment. To be found disabled at this stage of the process it takes a medical opinion that you meet or equal one of the listing impairments. If you are found to meet or equal listed impairment you are found disabled. If you are found not to meet or equal listed impairment you then move to step for the process.
At step four, SSA will determine if your impairment prevents you from performing your past relevant work. In other words, if the limitations caused by your medical condition both exertional and non-exertional would prevent you from performing the requirements of your past relevant work. SSA considers the work you did in the prior 15 years as past relevant work. To make this determination and a determination at the next step the decision-maker will decide what your residual functional capacity is. This is defined as "the most a claimant can physically or mentally do despite his or her limitations". So in a nutshell, SSA will look at the requirements of your past work and compare it to your residual functional capacity to determine if you can perform any of your past work. When determining someone's residual functional capacity there exertional limitations are classified as sedentary, light, medium, heavy, or very heavy. There are also non-exertional limitations which are considered which include but are not limited to environmental limitations and mental limitations. If it is found that you cannot perform your past relevant work then you proceed to step five. If you it is found that you can perform your past work than you are found not disabled.
At step five, SSA will determine whether or not you can do other work existing in significant numbers in the regional and national economy based on your residual functional capacity. Your age education and past relevant work experience are all very important at this stage in the process. To determine whether or not there is significant number of jobs SSA will refer to the medical vocational guidelines also commonly called the GRIDS. For a full explanation of the GRIDS and how they are used you can visit my webpage at http://www.ultimatedisabilityguide.com/grid_rules.html . The GRID rules will look at your age, education and past work experience and your residual functional capacity and compare it to a chart that will direct the finding of disabled or not disabled. However, often times especially when one has non-exertional impairments they will not fit neatly into this chart. A vocational expert is often used as an expert witness to help determine what if any jobs and the number of those jobs an individual with your residual functional capacity could perform. So if after this evaluation the decision-maker decides there is a significant number of other jobs you could perform then you will be found not disabled. If SSA finds there is not a significant number of jobs you could perform or the GRID chart shows you are disabled then he will be found disabled.
The above is a quick summary of the five step process but if you want to give yourself the best chance to win your case you should research not only how SSA determines if you are disabled but what you can do to make your case stronger. I have authored a comprehensive website on Social Security disability and SSI which includes many helpful tips and strategies to win your case depending on your particular medical conditions. To continue your research feel free to read my comprehensive website at http://www.ultimatedisabilityguide.com/index.html . I will also in the future write from time to time addressing specific subjects on Social Security disability and VA compensation here on Jim Strickland's website.
CW4 Gordon Eatley
I am a (fee for service company) Social Security Disability Representative representing a Veteran and need the fee agreement and rules on non attorneys. Especially what do I need to have them recognize me as his POA. Got any help for me on this?
When the law changed to allow lawyers to represent Veterans to the VA and charge a fee, hardly any attention was paid to the fact that “agents” may now also charge a similar fee. Much like the Social Security Disability Insurance (SSDI) process, Vets may choose to apply on their own, use a Veterans Service Organization Service Officer, retain an agent representative or retain an attorney. The agent and/or attorney may only enter a fee agreement with the Veteran after a claim has been denied and a Notice of Disagreement (NOD) is being filed.
To begin your accreditation process, write to;
Department of Veterans Affairs
Office of the General Council
Washington, D.C. 20420
Request a VA Form 21a, "Application for Accreditation as a Claims Agent". When you return the completed form and your basic eligibility is determined (a reference check and presumably an FBI scan to ensure you're of good character) an examination will be sent to the VA Regional Council closest to you. You are then responsible for scheduling a time with the Regional Counsel to take the exam.
The completed exam is returned to the General Council's office for grading and you'll be notified of the results. The test consists of 25 true-false and multiple choice questions and you're allowed 90 minutes. It is a closed book exam. If you have a disability or disabilities that may require an accommodation, you should notify the General Council's office as well as the Regional Council's office in writing to ensure that they can assist with your needs.
I don't represent Veterans directly but rather serve as a coach with a do-it-yourself style. Thus, I've not challenged the test nor do I charge for my services...I don't accept donations nor any remuneration whatever. However, my understanding of the exam is that it's pretty basic. I do know that there was a move afoot to require attorneys to take the exam as they are now joining our soirée, although I don't believe that will happen.
Finally, I interpret the regs as saying the fee schedule for an agent is the same as an attorney...20% of the retroactive payment is the "maximum reasonable" fee. I believe there is a script/contract provided by VBA that will assign the fee to be payable by the VA or by the Veteran upon award. Unlike the SSA-SSDI fee structure, I don't think there is a $$$ cap...it's simply 20%. There are some discussions ongoing of overall processes so you'll be informed up-to-the-minute after you begin your application.