The Social Security Administration (SSA) and the Department of Veterans Affairs (VA) have programs that pay disability benefits to eligible persons.
Both the Social Security and VA programs serve the same governmental purpose of providing benefits to individuals who cannot work because of a severe disability.
Indeed, the SSA and VA’s disability programs both:
Despite these similarities, there are critical differences between the disability programs administered by the SSA and the VA that all disabled veterans and wounded warriors should know.
And that is why I wrote this article – to answer some of the most common questions veterans ask about the interaction between Social Security disability insurance benefits and VA disability compensation.
These disability benefits can be a critical source of financial support for wounded warriors and their families.
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Many of our disability law firm’s clients receive both – and we can help you determine your eligibility for these programs.
Please keep reading to learn more.
And contact us today if you or a family member needs help applying for Social Security Disability or presenting your case at a disability hearing before an administrative law judge.
We help disabled veterans in Virginia, Maryland, West Virginia, and North Carolina get the benefits they deserve.
And we are ready to prosecute your disability claim.
Yes, disabled military veterans can collect disability benefits through the SSA and the VA simultaneously, even if they become disabled during military service.
And many of your fellow veterans do get both types of benefits.
In addition, you can receive concurrent payments from VA disability, SSDI, and Department of Defense (DOD) retirement. Indeed, the U.S. Government Accountability Office (GAO) found that more than 59,000 individuals received payments from all three sources in 2013.
The SSA and the VA and their administrative law judges (ALJs) use separate criteria and processes and offer different benefits to disabled persons.
Let’s compare the SSDI and VA disability programs in several categories:
To receive service-connected VA disability compensation, you must show that your military service caused your disabling condition or worsened it if it was preexisting.
In contrast, the SSA does not care what caused the disabling medical impairments, so long as alcohol or drug use is not a material factor.
The amount of time spent in active military service does not matter when seeking VA disability compensation.
You are eligible for VA disability benefits if your disability resulted from injuries or diseases incurred during or made worse by active military service.
In contrast, you must have earned a specific number of work credits to qualify for SSDI.
You earn work credits by working and paying payroll taxes, also called FICA (Federal Insurance Contributions Act) taxes.
Your age, education, or non-military work history do not affect your VA disability compensation benefits eligibility.
But age plays a critical role in Social Security disability claims. Indeed, under the Social Security Act, it is easier to prove you are disabled when you turn 50, 55, or 60.
In addition, along with your age and residual functional capacity assessment (RFC), your education level and the mental and physical demands of your past work determine whether the SSA finds you disabled under its Medical-Vocational Guidelines (the Grid Rules).
Partial disability payments are available through the VA.
The VA rates the degree of disability resulting from each injury or condition you have separately, ranging from 10 to 100 percent in 10 percent increments.
If you have multiple conditions causing disability, the VA uses a unique formula for combining the level of impairment for each injury or illness into a single disability rating.
The amount of VA disability compensation you receive depends on your total degree of disability.
In addition, your VA rating may change over time if your disability worsens.
In contrast, Social Security disability is all-or-nothing. Partial disability payments are not available.
Generally, you can work full-time and collect VA disability compensation benefits, with no limit on how much you can earn.
But there is an exception to this rule.
You cannot receive Total Disability and Individual Unemployment (TDIU) benefits through the VA and work.
If you qualify for TDIU, you can receive compensation at the VA’s 100 percent disability rate even though your combined ratings do not equal 100 percent.
In contrast, in most cases, you cannot earn above the substantial gainful activity (SGA) level and continue to receive Social Security disability insurance benefits.
VA disability compensation is tax-free.
In contrast, SSDI payments are taxable if your family’s yearly income exceeds a specific amount.
Veterans are eligible for medical benefits coverage under the military’s Tricare program.
All SSDI recipients are eligible for Medicare after receiving twenty-four months of SSDI payments.
But Tricare becomes the secondary payer to Medicare if you are a disabled veteran or wounded warrior who qualifies for SSDI.
In this situation, Medicare becomes your primary provider.
No.
A disability decision by another entity does not bind the Social Security Administration, even a VA disability compensation rating of 100 percent.
Code of Federal Regulations Section 404.1504 addresses disability decisions by other governmental agencies and nongovernmental entities.
This code section explains, in part:
Other governmental agencies and nongovernmental entities – such as the Department of Veterans Affairs, the Department of Defense, the Department of Labor, the Office of Personnel Management, State agencies, and private insurers – make disability, blindness, employability, Medicaid, workers compensation, and other benefits decisions for their own programs using their own rules.
Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules.
An ALJ, therefore, does not have to follow the VA’s disability determination.
In the past decade, several federal judicial opinions have addressed the weight an ALJ must give to a VA disability rating in a Social Security disability claim.
Let’s look at the development of this case law.
A VA disability rating’s evidentiary significance in your SSA disability claim depends on where you live.
The federal court system has jurisdiction over appeals from federal administrative agencies such as the Social Security Administration.
There are twelve regional circuits within the federal judiciary system, each with a United States court of appeals.
The court of appeals hears appeals from the decisions of federal district courts in its circuit.
Our disability law firm handles Social Security claims in Virginia, Maryland, North Carolina, and West Virginia, which means judicial precedent from the U.S. Court of Appeals for the Fourth Circuit governs ALJ hearings.
The Fourth Circuit addressed the precise weight the SSA must give to a VA disability rating in Bird v. Commissioner of Social Security Administration.
In Bird, the Fourth Circuit held that the SSA must give substantial weight to a VA disability rating unless the ALJ can explain why the VA rating deserves less weight. It reasoned that the SSA and VA disability programs share closely related purposes and evaluation methodologies; therefore, a decision by one government agency is highly relevant to the conclusion the other must reach.
Other circuits have addressed the weight to give a disability determination made by the VA.
For example, similar to the Fourth Circuit, the Third Circuit and Ninth Circuit have held that the SSA must give great or substantial weight to a VA disability determination.
In contrast, the Second Circuit has held that the disability determination of other agencies, including state agencies, is entitled to only “some weight.”
In 2017, the Social Security Administration published “Revisions to Rules Regarding the Evaluation of Medical Evidence.”
These new rules amended specific regulations.
The amendments stated that, for disability claims filed after March 27, 2017, the SSA “will not provide any analysis in [its] determination or decision about a decision made by any other” agency or entity about your disability status, employability, or entitlement to benefits.
In addition, the SSA rescinded Social Security Ruling (SSR) 06-03p, which stated that “evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.”
These changes to the rules and regulations have resulted in some ALJs ignoring 100% VA disability ratings. Indeed, I have reviewed several ALJ denial decisions that did not mention the VA rating anywhere.
But, as I discuss in the next section, some federal courts have held that existing case law (also called judicial precedent) mandating that the SSA gives significant weight to VA disability determinations overrides this code section.
Fortunately, two federal district courts in the Fourth Circuit have issued decisions that claimants and disability representatives can use to combat this treatment of favorable VA disability determinations.
For example, in Rose v. Saul, No. 7:19-CV-91, 2020 WL 4740479 (E.D.N.C. Aug. 14, 2020), the federal district court held the SSA’s new regulations do not supersede the Fourth Circuit’s decision in Bird. And therefore, the ALJ committed a reversible error by failing to give substantial weight to that claimant’s 100% VA rating.
More recently, judges adopted the Rose court’s rationale in Rogers v. Saul, Civil Action 3:20-CV-00206-RJC-DSC (W.D. N.C. Jan. 13, 2022) and Lucksavage v. Commissioner of Social Security, Civil Action No. 1:21-CV-00342-DSC (W.D. N.C. July 22, 2022).
Rose, therefore, remains good law as of the Fall of 2022.
The federal case law helps those of you with high VA disability ratings.
But it does not guarantee the SSA will allow your disability claim.
An ALJ may give less than substantial weight to the VA’s disability finding if the ALJ has “persuasive, specific, valid reasons for doing so that are supported by the record.”
In Woods v. Berryhill, the Fourth Circuit provided an example of how an ALJ could justify giving less than substantial weight to a VA disability rating:
For example, an ALJ could explain which aspects of the prior agency decision he finds not credible and why, describe why he finds other evidence more credible, and discuss the effect of any new evidence made available after [the other agency] issued its decision.
With this language in mind, I recommend analyzing an ALJ denial closely to ensure the ALJ adequately explained their reasoning.
In my experience, the higher your VA disability percentage rating, the better your chance of getting approved for SSDI.
Indeed, a 100 percent VA disability rating is a good sign you will get approved for Social Security disability.
Official statistics are hard to come by.
But data from a 2008 GAO document indicates that a higher VA disability rating correlates with receiving SSA disability benefits.
For example:
In contrast:
Many SSDI recipients also receive workers compensation benefits, including temporary total disability payments or compensation for permanent partial disability.
Depending on how much workers comp pays, the SSDI payments might be offset (reduced) by the amount of workers comp received. And the only way to reduce or eliminate the offset is to settle your workers compensation case and include the appropriate proration language.
In contrast, Social Security disability insurance and VA disability compensation do not offset each other.
You can receive the full SSDI and VA benefit amounts.
Yes.
You can receive military pay while on active duty status and still receive SSDI benefits because the actual work activity is the controlling factor, not the paid amount.
Generally, you must show proof of treatment at a military facility while working light duty (or in a designated therapy program).
The SSA may also look at whether you would remain employed in a civilian workplace and how much you would earn in the private sector with the light-duty role provided by the military.
Yes, the SSA will expedite the processing of your disability claim if you are a disabled veteran with a U.S. Department of Veterans Affairs Compensation rating of 100 percent Permanent & Total.
But you must identify yourself as a disabled veteran with a 100 percent VA rating when you apply for SSDI benefits (here is a list of local Social Security offices near you) and submit a copy of your Veterans Affairs notification rating verifying your 100 percent rating.
If you do, the SSA will treat your SSDI claim as a high-priority workload, speeding up the process.
The most commonly awarded VA disability claims include:
These conditions may also help you prove eligibility for SSDI benefits.
It doesn’t matter whether you are a wounded warrior, a veteran with a VA compensation rating of 100% permanent and total (P&T), or a military veteran with a lower disability rating, we can help you qualify for SSDI.
Call now for help navigating the process and winning your SSDI hearing: (757) 810-5614 or (804) 251-1620.
We have helped Army, Navy, Marine, and Air Force Veterans get the disability benefits they deserve.
And we want to help you get approved for SSDI.