“Hi, Mr. Lawyer. My name is Mr. Smith. I’m a disabled veteran and get a disability check from the VA. Social Security denied my disability claim. How could they do that?”
“Well, Mr. Smith, they don’t have to consider VA decisions, so it isn’t relevant to your Social Security disability claim.”
“But Mr. Lawyer, if you just give the judge my rating decision, they will see I’m disabled.”
“Mr. Smith, since the judge can’t consider the VA’s decision, I’m not going to submit anything related to your VA disability to the Social Security Administration.”
While this might seem like an easy answer to give the client, it’s dead wrong. Social Security practitioners cannot effectively represent a disabled veteran without understanding the interplay between Social Security disability and veterans’ disability. At the Social Security hearing level, practitioners have an opportunity to persuade an administrative law judge and should use every piece of evidence available. More importantly, Veterans Affairs (VA) disability claims generate important evidence that tells the veteran’s whole story.
Practitioners may be familiar with the Veterans Health Administration (VHA), which provides medical treatment to veterans, but many are unfamiliar with the decisions and medical records generated by the Veterans Benefits Administration (VBA) and Board of Veterans Appeals (BVA) when adjudicating claims for VA disability benefits.
VA MEDICAL SOURCE STATEMENTS
At first, it can seem like Social Security regulations work against you when representing a disabled veteran. Decisions made by the Department of Veterans Affairs are not binding on the Social Security Administration (SSA) and SSA determinations will not provide any analysis of the VA’s decisions about whether a veteran is disabled, blind, employable, or entitled to any VA benefits.1 While non-binding, SSA must nevertheless “consider all the supporting evidence underlying” the VA’s decision in accordance with 20 CFR 404.1513(a)(1)-(4).2
The last sentence in 20 CFR 404.1504 of the Social Security regulations is incredibly important — SSA must consider all the supporting evidence underlying the VA disability decision. Like SSA consultative medical examinations, the VA obtains compensation and pension examinations (C&P exams) which are usually accompanied by a disability benefits questionnaire (DBQ). C&P exams and DBQs are reports containing “medical evidence” and “medical opinions” as defined by 20 CFR 404.1513. Thus, SSA must consider C&P exams and DBQs using the same rules that apply to all medical evidence and medical opinions.
The most common mistake made in representing disabled veterans is not submitting C&P exams and DBQs to the Social Security Administration. Instead, practitioners should submit C&P exams and DBQs, include 20 CFR 404.1504 in their briefing, and cite the C&P exams and DBQs in the record in the same manner as they would any other medical opinion.
UNDERSTANDING VA DECISIONS
VA adjudications are set forth in rating decisions issued by the VBA and board decisions by the veterans’ law judges of the BVA. Both are inherently persuasive in Social Security appeals despite SSA regulations stating they are not binding and cannot be analyzed by an administrative law judge. Understanding VA decisions and explaining them to the administrative law judge may help the judge better understand the veteran’s disability.
Veterans can make claims for two main benefits that fall under the catchall term “VA disability.” The first is a disability connected to a claim for service, meaning their current disability resulted from their service. These are compensation claims and veterans receive compensation benefits.3 The second claim is for disabilities not related to service for veterans who meet certain financial need requirements. These are disability pension claims and veterans receive disability pension benefits — not to be confused with military pension retirement benefits.4
The VA reviews disabilities for causation in service-connected claims and degree of disability in both types of claims.5 Veterans can submit claims for disability at any time and usually receive several rating decisions.6 Rating decisions have important information about the veteran’s service including dates and branch of service, combat service, and exposures to chemical, physical, and environmental hazards. Veterans who disagree with their rating decision can appeal to the BVA and receive a board decision from a veterans’ law judge.7
Veterans with multiple disabilities are issued a combined rating. VA math is, in a word, unique: a 40% disability combined with a 20% disability does not equal a 60% disability. Instead, it is a 52% disability, which is rounded down to 50%.8
Understanding the methodology behind the VA’s algorithms is less important, but it is important not to let a low combined rating stop you from investigating further. When reviewing board decisions and rating decisions, focus on the disabilities and ratings assigned to each. VA ratings, which are like the Social Security Administration listing of impairments, are determined using the degree of functional impairment caused, diagnoses, treatment plans, diagnostic imaging, labs, and testing.9 Understanding the ratings helps practitioners argue the severity of an impairment and its functional limitations.
One prominent example is a VA mental health disability rating of 70% for post-traumatic stress disorder.10 Like the SSA, the VA groups mental health impairments together under one rating based on overlapping symptoms. Social Security practitioners may notice that VA rating language for mental health conditions sounds a lot like the SSA mental health listings:
A veteran will be rated at 70% disabled for PTSD (or any other mental health condition) if it is found they have “[o] ccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.”11
An administrative law judge in a Social Security Administration case cannot adopt a decision made under this criterion. However, explaining that the VA found the veteran’s PTSD on its own to be 70% disabling based on the above criterion is incredibly helpful to your SSA listings and residual functional capacity (RFC) arguments. The VA rating is based on a C&P exam and DBQ, which includes an in-person exam, records review, and a physician’s opinion that the PTSD meets this rating definition based on diagnostic criteria, symptoms, and functional ability.12 The C&P exam and DBQ should both have medical opinions regarding functional ability supported by a review of medical records and objective examination findings which should be evaluated by an administrative law judge in accordance with 20 CFR 404.1527. Failing to submit the C&P exam and DBQ used create the PTSD rating (or any C&P exam and DBQ) to the SSA would be a mistake. An administrative law judge’s failure to consider a medical opinion contained in a C&P exam and DBQ is grounds for an appeal.
TOTAL DISABILITY BASED ON INDIVIDUAL UNEMPLOYABILITY
Another important VA disability that Social Security practitioners must understand is total disability based on individual unemployability (TDIU). Veterans not rated as 100% disabled can still receive 100% disability benefits if they meet the TDIU criteria. Total disability ratings may be assigned when a veteran is unable to secure or maintain a substantially gainful occupation.13 Marginal employment — defined employment below the poverty threshold — is not a substantially gainful occupation.14 Marginal employment may also be found if the veteran works in a protected environment like a family business or sheltered workshop even if their earnings rise above the poverty level.15
The TDIU rules, regulations, and guidance from the M21-1, VA Adjudications Procedures Manual16 closely follow steps 3-5 of SSA’s five-step sequential disability evaluation right down to subsidized work and RFC.17 A TDIU decision is also based on a C&P exam and DBQ that must be considered by an administrative law judge if it is in the record; therefore, consider submitting the TDIU C&P exam, DBQ, and rating decision to the Social Security Administration as persuasive evidence of the veteran’s disability.
OBTAINING VA EVIDENCE
Rating decisions, board decisions, and C&P exams and DBQs can be difficult to obtain. For example, C&P exams are rarely conducted by Veterans Health Administration providers; the VA switched to a contracted C&P system, and more recent C&P exams and accompanying DBQs are seldom included in VHA treatment records.
There are reasons for not having clients obtain their own evidence but in this case, the most effective way to get rating decisions, board decisions, and C&P exams and DBQs is for the veteran to request them from their veterans’ service officer, veterans’ attorney, or directly from the VA. The veteran may have some, but likely not all, of these documents. For example, veterans rarely receive copies of their C&P exams and DBQs. The VA also re-rates disabilities and issues new rating decisions — ratings can stay the same, increase, or decrease. Requesting these records from the VA is the only way to ensure you have complete and accurate evidence.
Similar to how Social Security practitioners can access the SSA electronic claims folder using the Electronic Records Express,18 veterans’ service officers and veterans’ attorneys often have access to the VA’s electronic claims folder through the Veterans Benefits Management System.19 Veterans can also request records directly from the VA by using Form 20-10206 for a Freedom of Information Act or Privacy Act request.20 On Form 20-10206, it’s important to check the correct boxes in section III; in section IV, write “all rating decisions, board decisions, compensation and pension examinations, and disability benefits questionnaires.” Given its complex nature, it may be prudent to help the veteran complete and submit the form.
Form 20-10206 also allows a third party to request a veteran’s records (sections II and IX). To do so, the veteran must include VA Form 21-0845 (Authorization to Disclose Personal Information to Third Party) and VA Form 10-5345 (Request for and Authorization to Release Health Information). In the box labeled “Other” write “all rating decisions, board decisions, compensation and pension examinations and disability benefits questionnaires.”
Section III of Form 20-10206 also has a box to check for Service Treatment Records/Military Treatment Records. If the veteran received medical treatment while still in service, those records will not be at their current VHA medical facility, but they may be in their VA claims file. If those treatment records pertain to the period of disability for the veteran’s Social Security claim, practitioners should obtain them as well. Practitioners and the Social Security Administration can get these records directly from the treatment provider or use Form 20-10206 to request them from the VA claims folder.
Section III also has a check box for Vocational Rehabilitation and Employment Records. If the veteran has received vocational rehabilitation services or is receiving TDIU benefits, check this box for these records.
Processing time for these records varies. Consequently, practitioners are encouraged to submit requests as soon as they accept representation. It is not recommended to request a client’s entire VA claims folder — it increases processing time and generates needless documents.
CONCLUSION
Representing disabled veterans is very rewarding. They have been among my favorite and most grateful clients. Obtaining Veterans Administration records is challenging, but necessary due to their evidentiary value. Though rating decisions and board decisions are not binding for the Social Security Administration, do not assume they have no persuasive value and do not ignore this important source of evidence. The SSA must consider compensation and pension examinations and disability benefits questionnaires. Using this evidence to tell the veteran’s story can tip the scales toward a favorable decision in their Social Security claim. This advice will not guarantee success, but at least you will have told the disabled veteran’s full story.