I am a veteran and an attorney. A large part of my practice involves representing clients who are attempting to gain benefits for disability from the Social Security Administration. Many of these clients are former servicemembers who served in Desert Storm, Iraqi Freedom and Afghanistan.
I see veterans with disability ratings from the VA of 70, 80 100%. You would think that a soldier with a rating from the VA, which uses a rating system similar to that employed by social security, would have an easier time obtaining benefits – NOT SO. Their task is as difficult as any other person requesting benefits.
Take for instance the case of a soldier from Desert Storm, who after going in to Kuwait, had to sleep, work and eat under the falling cloud of the ash from the burning oil wells. Most likely the effects of this exposure were a large part of his 100% disability rating from the VA. Rodewald vs Astrue, 2008 CV05911
In hopes of getting a little more money to support himself and his family, he applied for social security disability benefits in Minnesota. His case took over 5 years to reach a resolution. It was heard by an administrative law judge, appealed in to Federal Court returned to the administrative law judge and back to Federal Court for, unfortunately, a loss.
The soldier’s VA rating was one of the main issues in the case. Does the judge have to consider the VA rating in deciding of whether or not to award disability benefits? If the judge is to consider the VA determination, how much weight does he have to give to that agencies determination?
You would think getting benefits for someone with such a VA rating would be a walk in the woods - two federal agencies, both tasked with determining whether a person is disabled, both using a similar disability critieria, both programs substantially similar in how each determines disability.
The Court on the issue --” Claimant asserts that the ALJ improperly differentiated between the two approaches assessing disability. Claimant argues that both programs “focus on an initial determination of whether or not the claimant is disabled. The major difference between the two programs is that there are percentages if disability under DIB (social security)….Claimant thus urges this Court to adopt the standard employed by the Ninth Circuit (amongst others), requiring the ALJ to “’ordinarily give great weight to the VA determination of disability.”’
"…The Eighth Circuit has ruled that “findings of disability by other federal agencies, even though they are not binding on the ALJ, are entitled to some weight and must be considered in the ALJ’s decision.”
I find the issue as a good example of how complex the law can be. A veteran may have an easier time obtaining social security benefits in the ninth, seventh and other districts rather then in the eighth district.
Once again the issue of the weight to be given to a determination of the VA has arisen in a social security disability case. The attorney in the case argued that the Administrative Law Judge failed to reference the VA disability finding or explain why the VA determination was not given any weight by the judge was reversible error. The court noted that it was error for the judge to virtually ignore the VA determination, it was harmless error based on other evidence in the case. In the case, the VA rating was I believe 60%.
The case is on appeal, but consider can a 60% rating by the VA ever be consider of such little weight/importance, that if overlooked the overlooking of such evidence was harmless error, of no effect on the final judgment?
The Eighth Circuit has previously held (1998, Morrison v. Apfel) the ALJs are required to consider disability determinations from other government agencies, i.e. VA. If the VA, even using a combination of service and non-service connected disabilities, makes a finding on employ ability (the veteran is entitled to unemployability), it is hard to argue that omitting consideration of such evidence is not a serious error.
Looking around the regulations that government social security disability determinations, I found SSR 06-3p. It provide that:
"However, we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered."g
Again the question, can ignoring a disability rating by the VA ever not be an error?
Once again the issue of the weight to be given to a determination of the VA has arisen in a social security disability case. The attorney in the case argued that the Administrative Law Judge failed to reference the VA disability finding or explain why the VA determination was not given any weight by the judge was reversible error. The court noted that it was error for the judge to virtually ignore the VA determination, it was harmless error based on other evidence in the case. In the case, the VA rating was I believe 60%.
The case is on appeal, but consider can a 60% rating by the VA ever be consider of such little weight/importance, that if overlooked the overlooking of such evidence was harmless error, of no effect on the final judgment?
The Eighth Circuit has previously held (1998, Morrison v. Apfel) the ALJs are required to consider disability determinations from other government agencies, i.e. VA. If the VA, even using a combination of service and non-service connected disabilities, makes a finding on employ ability (the veteran is entitled to unemployability), it is hard to argue that omitting consideration of such evidence is not a serious error.
Looking around the regulations that government social security disability determinations, I found SSR 06-3p. It provide that:
"However, we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 404.1512(b)(5) and 416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered."g
Again the question, can ignoring a disability rating by the VA ever not be an error?
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