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TDIU: VA Must Consider Relevant Social Security Disability Decision In VA Unemployability Claims

Social Security Disability decision can be relevant to VA Unemployability

When a veteran wins a Social Security Disability claim, it will be relevant in their VA Unemployability claim if the decision based on the veteran’s service connected disabilities.  The key is why Social Security found the veteran disabled.  VA cannot consider disabilities that are not service connected in claims for Total Disability based on Individual Unemployability (TDIU).  Social Security rules require it to look at all of a person’s conditions together, not just disabilities that are connected to military service.  If a veteran’s service connected disabilities are the reason why (or a least one of the key reasons why) they are found disabled from Social Security, the Social Security decision is certainly relevant to their VA TDIU claim.

VA must get relevant Social Security Disability records

The law states that VA “shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. § 5103A(a)(1). This applies to “a duty to assist in gathering [S]ocial [S]ecurity [Administration] records when put on notice that the veteran is receiving [S]ocial [S]ecurity benefits.” Clarkson v. Brown, 4 Vet.App. 565, 567–68 (1993). The courts recognize that it is impossible for VA to determine the relevance of documents identified by a claimant without first examining them. Moore v. Shinseki, 555 F.3d 1369, 1375 (Fed.Cir.2009). However, VA does not have to get SSA records in every case just to rule out whether they apply or not.

The key for the courts is that the veteran alleges that the Social Security decision or records are related to their VA Unemployability claim.  VA has to get SSA records “]a]s long as a reasonable possibility exists that the records are relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified records.”  Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).

This rule has been employed for years.  For example, in a case before the Veterans Court, Quartuccio v. Principi, 16 Vet.App. 183, 187–88 (2002), VA was ordered to obtain Social Security records when SSA determined the veteran disabled because of paranoid schizophrenia, the same condition the veteran claimed to be the cause of unemployability in their VA claim. Veterans just need to remember to tell VA that the Social Security decision was related to their service connected disabilities.

VA’s view of when it has to get Social Security Disability Records

The sections of VA’s online M21-1 Adjudication Procedures Manual related to Individual Unemployability titled When to Obtain SSA Records in IU Claims found at Section IV.ii.2.F.2.i explains VA’s interpretation of when it needs to get a veteran’s Social Security Disability file as follows:

IV.ii.2.F.2.i.  When to Obtain SSA Records in IU Claims
Obtain and consider complete copies of the Social Security Administration (SSA) decision (awards and denials) and any supporting medical records when

  • evidence of record is insufficient to award IU, and
  • the Veteran’s claims folder shows that the Veteran has been examined or awarded disability benefits by SSA.

Notes:

  • Although decisions by SSA regarding a Veteran’s unemployability are not controlling for VA determinations, SSA’s record may indicate the level of impairment of the Veteran’s SC disability.
  • When reviewing SSA records, pay close attention to what disability resulted in an award of SSA benefits, and whether that disability is one for which SC been awarded.
  • Regional offices (ROs) are not required to request SSA records when a Veteran fails to return the VA Form 21-8940.

References:  For more information on

  • requesting information from SSA, see M21-1, Part III, Subpart iii,  3.A, and
  • the effect of SSA decisions regarding unemployability on VA determinations, see Murincsak v. Derwinski, 2 Vet.App. 363 (1992).

VA is not bound by Social Security’s decision, but use it to prove TDIU

Just because Social Security found you disabled does not mean that VA has to automatically declare you totally disabled also.  There is no law that requires VA to follow Social Security’s lead.  In fact, our practice sees more claims where VA is trying to distinguish or downplay the Social Security Disability decision.

If you have a claim for Individual Unemployability and were found disabled by Social Security, you must be sure to inform VA as soon as you can that your Social Security case involves your service connected VA disabilities.  Even if VA has not rated your conditions yet, we recommend that you advise VA that the Social Security claim involves the same conditions.  Certainly, once you receive a decision from Social Security Disability, you should send it to the VA to trigger their duty to include it in your investigation.

If you are looking for a Veterans Disability Lawyer to handle a denied Individual Unemployability claim, call us toll free nationwide at (866) 282-5260 or use our online contact form to schedule an appointment with one of our VA Disability Attorneys.  We handle TDIU cases all over the country for vets just like you.

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    The VA rated me IU in 2005. Im on also on Social Security disability. Im 80% VA disabled and was asked if I would drop my appeal if I was rated 100% IU. In which I did. Now VA secretary Shulkin wants to take away IU if we are on social security. If that happens Vietnam Veterans will hurt the most and suicide in veterans will be more then 22 a day. ???? Is there anyway a veteran on IU can be protected from this action being taken by VA Secretary?

    If the President’s budget proposal passes and TDIU is taken away for vets over 65, no. You need to write a letter to your Congressman explaining the game that VA has played with you and other veterans. It is very common for VA to talk a veteran into dropping their other claims in exchange for an award of TDIU. Make your voice heard, and keep beating the drum until Congress listens and rejects this horrendous idea to take away benefits you deserve.

    As expected my orthopedic claim was denied.
    The orthopedist who did my surgery did not mention the service connection and the two other orthopedists that I saw simply copied his report.
    When I tried to explain the service connection to the VA C & P orthopedist he cut me off and refused to listen.
    On the other hand, my PTSD claim was rated at 50%.
    Several other claims were denied, including the one for unemployability, which was denied because I am not at a 60% threshold.
    So should I try to get the PTSD claim rerated at 60%, or have the orthopedic or other claims reconsidered?
    Also, should I ask for reconsideration, file an appeal, file a new claim, or are there other options for obtaining the 60% rating needed to reconsider the claim for unemployability?
    Thank You in advance ~

    I do not know enough about your situation to be able to give you specific advice on your claims. Pursuing all of those claims may be the best bet, but I would need more info. Please feel free to call Nadia in my office at (866) 282-5260, and she can get some more info from you and schedule a call. John Tucker

    Hi I want to ask you do I qualify for tdiu I’m at 60 percent, but I have a unofficial letter from Dav saying I’m at 80 percent , I have not receive the official letter as of yet. Worked my job as a manager for 31 but my service connected right knee and right ankle and now service connected bilateral hips, left knee and back , with my right knee being rated the highest at 50 percent. My next question is should I wait until I get official letter from va to apply for tdiu and if I do apply will the va try to reduce my rate thank you very much.

    You sure may be if you have significant problems with standing, sitting, walking, and pain. Unfortunately, without reviewing your medical records and vocational information, no attorney could provide you with an opinion. You should apply for TDIU as soon as you think you are unemployable, and be sure to tell VA about all of your limitations and restrictions. See this video for more info: What Is VA Individual Unemployability? Also, be sure to talk about your restrictions and limitations that keep you from working when you file your From 21-8940 – see this article for more on that: Talking About Your Limitations Is Crucial to Winning Disability Claims. If you get a denial on it, give us a call to help you with your appeal at (866) 282-5260. Good luck!

    I have a pending claim for increase of PTSD and TDIU, I was recently approved for SSDI back to 2015 at the ADJ level!(It was based on PTSD) It was a great victory! My question is that if I have a pending claim for IU will VA go back to my 2015 date, like SS did or will they award based on my file date (which I listed the 2015 date as my disabled date) They are currently gathering evidence from SSA

    VA regulations only allow them to pay your VA service-connected compensation retroactively to the day you filed your VA claim for benefits. Currently, VA has a bad habit of only paying that back to the day your filed your Form 21-8940, when the law says they had to consider it as part of your initial claim (in your case, for PTSD). If that happens, it can be a little convoluted. If you had appealed your earlier ruling on your PTSD on the basis that the award was not high enough and that appeal is still open, you have a shot at getting the effective date set at your last application for benefits related to the PTSD. I would need to see the history of your claim streams to give you a more definite answer. If VA approves your TDIU, but only pays you back to the date you filed your 8940 form, then please call us to discuss whether you can get an earlier effective date at (866) 282-5260.

    I, filed for TDIU . I am 70% PTSD and have not been able to work for 5 years. The VA is waiting for information from Social security where the awarded me benefits for PTSD stating cant function . Should I send my decision letter to VA in support of claim? What are they looking for..Social Security has not sent
    the VA any infor in 3 months.
    Many Thanks

    Unless your Social Security decision is based on conditions on other than your PTSD (i.e. it is only based on your PTSD), you should certainly send it to VA. Good luck!

    During a Mid East deployment in 1990 I incurred a back and shoulder injury for which I sought medical attention from a flight surgeon in Germany. Records were never transferred to my main station and I have no idea if any exists. I am currently on SSDI. Can you provide me with your opinion on the merits of this potential claim? Thank you

    I generally do not like to talk specific claims on the website, because of privacy reasons. However, I am happy to give you some general guidance. To prove service connection, you typically must have medical evidence or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). So, your starting point is having a current problem (and typically be treating for it, because it is limiting you). Your question does not discuss this, so I cannot tell you if you have a decent claim or not just on that fact alone, but let’s assume you are treating for your shoulder problem, because you have active symptoms.

    The question then becomes whether you can prove what happened to you in service. Your should write to any possible location where you were treated and try to obtain the records of the flight surgeon. You can write to the branch of service also and make a privacy request for your records. Whether you can get those or not, you could also have anyone you served with who knew you were injured or treated write a letter detailing what they knew about your injury or your treatment. This will corroborate your story and any records you are able to get.

    To prove the connection between the in-serve injury and your current condition, you can show a chain of medical treatment or have a doctor review all of your records and give you the nexus opinion explaining how and why they are connected.

    Good luck with your claim!

    What if the situation were reversed? Say a Veteran is rated 70% but paid at 100% TDIU and files an SSDI claim? Would the outcome of the SSA Claim have any effect on the current award the Veteran is receiving?

    Yes, but it depends on the federal Circuit where you claim is pending. Here is something from a brief I recently filed in a case in the 11th Circuit (which covers Alabama, Florida, & Georgia):

    Because of the similarity between the VA assessment method for determining unemployability and the process employed in the Social Security disability program, the Social Security Commissioner must give great weight to the unemployability decision of the VA. Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984).

    An award of Individual Unemployability by the VA requires that the claimant show an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b) (“[A]ll veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.”). This is essentially the same standard as the one used by Social Security. In determining whether a claimant is unable to secure or follow a substantially gainful occupation, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). When making this determination, VA may not consider non-service-connected disabilities or advancing age. 38 C.F.R. § § 3.341, 4.19 (2014); see also Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). Similar to SSA, when the VA conducts an Unemployability analysis, it must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991); see also Friscia v. Brown, 7 Vet.App. 294, 295-97 (1994).

    As to the outcome of the SSA claim, VA could use it either way (as either proof or lack of proof of total disability). If there is a Social Security approval, it does not impact the amount of VA benefits someone gets – the vet can get both.

    I’ve had a TDIU Claim in since July of 2018. All the VA records requests do not include any Recirds from SSA. I am receiving SSDI. I am 80% VA Rated. I alone filed for TDIU and included on my TDIU Claim form 21-8940 that I am receiving SSDI due to my VA disabilities. I also requested a COMPLETE and UNREDACTED copy of my VA C-FILE.. That’s been 4 months and nothing yet how do I get TDIU??? Is the VA Taking IU away from those of us receiving SSDI?also, HOW do I get the ACTUAL reason for my SSDI. I have copies of what I filed but never received anything stating WHAT Social Security determines was my disability. I called SSA and the people said dont you know what your own disability is? I tried to explain and they said I should’ve kept copies of my filing.. I did but I want to know EXACTLY what SSA determined..

    Lots of great questions. VA has no organized plan to take away TDIU from SSD recipients. However, they will often state that they are not bound by what Social Security does and that SSA regulations do not apply to them. Those are true statements. However, receiving SSD is proof of your inability to engage in “substantial gainful activity.”

    As far as the “actual reason” for why SSA approved your Social Security Disability, you may never know if your claim got approved before it went to a hearing. They have a code sheet that will be in their file, but it often only lists the diagnosis you have, not why you are really disabled.

    As for how long VA is taking, it is not uncommon for Rating Decisions to take well over a year to be issued, though VA is getting faster. On getting your Claim file, we find it takes about 8 to 10 months to get a full copy of a C-file on CD from the National Personnel Records Center.

    Sorry it is taking so long, but keep fighting! If they do not approve you, give us a call at (866) 282-5260. We handle TDIU cases all over the country. Good luck!

    I am receiving 100% permanent and total disability from VA. Social Security recently denied my claim for ssdi at the hearing level. Will the Social Security denial cause a reduction to my VA 100% p&t rating?

    By itself, the Social Security denial will not automatically impact your VA rating. If your ratings are for schedular benefits (in other words, they are percentage ratings, not Individual Unemployability), the Social Security denial will have nothing to do with your VA rating. If you are receiving Individual Unemployability, it is conceivable that VA could use that as proof that you could work, but that is very uncommon, in part because they do not automatically share data between the agencies. Keep in mind, you can appeal your Social Security decision to the next level or you can file a new Social Security disability claim. I encourage you to talk to a Social Security disability attorney in your area for advice on that.

    Hello, I was wondering if you could be entitled to individual unemployability if you were granted SSDI base on service connected bilateral ankle fusions which was only rated at ten percent due to rating error? Is it possible not to be rated at 60 percent or more and still get granted individual unemployability?
    In the final stages of ramp appeal for increases and UI. Thank you

    A Social Security disability approval under those circumstances would be excellent evidence to use in your Individual Unemployability claim. The approval by SSD does not automatically entitle you to TDIU, but you should certainly submit it at his evidence if the SSD decision was based entirely on your service connected ankle conditions. Without reading the SSD decision, I cannot tell you if that is the case, but if you are certain that it was based only on your ankle conditions, than it may should help you. Keep in mind that Social Security disability can be granted to different ways – 1. Vocationally (by proving your symptoms prevent you from working ), or 2. based on something called a “medical listing,” which is an automatic approval for disability based on a set of symptoms or test results for a given condition. VA law does not contain a similar concept, so depending on how Social Security approved your claim, it may not be as helpful to you as you might initially think.

    VA must consider any veteran whose service connected conditions prevent them from working. Read subsection (b) of 38 CFR section 4.16 here: https://www.law.cornell.edu/cfr/text/38/4.16. Even when you do not meet the schedular requirements of 4.16(a), VA still has to consider whether you are unemployable if you can prove that your service connected conditions prevent you from securing and following an occupation.

    Good luck!

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