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

Tucker Law Group
December 2, 2016

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) 233-5044 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.