Disability

When you’re talking about disability, the big dogs are the Social Security Administration and the Veteran’s Administration. Each of these administrations have their own rules regarding how to file, where to file, how to appeal, what substantiates disability and how they compensate for it.

Under the VA system, an applicant files their initial application for benefits with the Regional VA Office for their home address. In the Social Security system, applications can be filed in person at a District Office or, if you are seeking disability benefits and have worked enough to earn what Social Security calls ‘Substantial Gainful Employment’ for each of twenty out of the last forty quarter years, you can apply for benefits on-line. If you don’t have the required earnings and work history, you are not eligible for Social Security Disability, which is an insurance program for which you pay by way of payroll deductions. Don’t despair though, as you may still be eligible for Supplemental Security Income or SSI, based upon the fact that you meet the Social Security definition of Disabled. The SSI program is a safety net program open to those individuals who meet the extremely low income and asset requirements, as well as being disabled. Veterans receiving VA Disability benefits will generally not qualify for Disability under the SSI program, due to income restrictions and must have the necessary earnings and work history to qualify for Social Security Disability Insurance.

In the VA system, disability is looked at as a reduction in the veteran’s ability to earn a living, while in the Social Security System, disability is the inability to perform any job that exists in significant numbers in the US economy, for eight (8) hours a day, five (5) days per week. In the VA system, one can be partially disabled, totally disabled or unemployable. In the Social Security system, disability is an all or nothing proposition. You are either disabled or you’re able to work. You get the full benefit of whichever Social Security program you qualify under, or you get no benefit at all.

In both the VA and SSA, a claimant is allowed to provide evidence, be it medical records, affidavits, witnesses, claimant testimony or anything else the claimant feels would help his or her case. The VA has the stricter duty to assist a claimant in obtaining evidence but both Administrations have rules requiring a level of assistance from Administration personnel.

Both Administrations have their own procedures for appealing unfavorable decisions. In the VA, unfavorable decisions are appealed up through the various levels of the VA until reaching the Final Agency Decision, at which time the case can be appealed to the Court of Appeals for Veterans Claims. For Social Security cases the initial decision on a claim is usually made within 60-90 days. If unfavorable, this decision can be appealed by requesting a reconsideration of the decision within 60 days of the issuance of the decision on your Request for consideration. If the Request for Reconsideration is still unfavorable, an appeal can be made again by requesting a hearing before an Administrative Law Judge or ALJ, within 60 days of the issuance of the decision. If the decision is still not favorable, appeal can be made to the Appeals Council of the Social Security Administration, which will review your case for errors. The decision of the Appeals Council is the “Final Agency Decision” and only after this decision, can you resort to the Courts for assistance. Appeal from the Appeals Council is to the Federal District Court servicing your area.

Within both systems, there are over a thousand pages of rules and regulations and I cannot fully explain all of the ins and outs of how a case is pursued in this short article, but I will say this. The incidence of denial of claims at the first few levels of each process is very high and leads to frustration on the part of many qualified Claimants, who simply give up despite the validity of their claims. Wading through all the unfamiliar rules and regulations can be a very daunting task for the uninitiated Claimant. It is for this reason that so many disability claimants seek the assistance of an attorney. The VA has only in the last few years, allowed attorneys to represent Claimants in the critical early stages of their claims. It is hoped that qualified attorneys will be better able to represent the interests of the claimants and reduce the time between application and final decision.

I have argued many Social Security cases all the way through the Federal District Courts for the Western, Central and Eastern Districts of North Carolina and currently have at least one case pending on remand from the Court of Appeals for Veteran’s Claims in Washington, D.C.

Should you find yourself suffering from illness or injury to the extent that it affects your ability to complete a work week, I would be more than happy to assist you in evaluating your case for possible filing of a claim.

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