Legal Meets Practical

I’m thrilled to report a positive development in veteran disability claims! Hats off to the Social Security Administration (SSA) for giving our veterans a place in the front of the line. That’s where they should be.

Beginning March 17, the SSA will immediately begin fast-tracking paperwork for veterans who are rated 100 percent disabled by the United States Department of Veterans Affairs (VA).

Under the new process, the SSA will treat these veterans’ applications as high priority and issue expedited decisions just as it does for disability claims filed by troop members who become disabled for any reason while on active duty.

“We have reached another milestone for those who have sacrificed so much for our country and this process ensures they will get the benefits they need quickly,” Carolyn W. Colvin, acting Social Security commissioner, said in a statement released Tuesday afternoon by the White House.

The decision by the SSA does not affect the disability claims backlog that the VA has been dealing with for years, as these claims are processed separately and by different entities. Rather, it is for veterans who are applying for SSA benefits in addition to VA disability compensation.

Expediting Social Security disability claims processing for veterans does not guarantee approval for SSA disability benefits; however, a 100% rating from the VA is powerful evidence that a veteran meets the SSA’s eligibility requirements. SSA disability benefit applicants must show that they suffer from a disability that prevents them from working, and that the disability is expected to last a year or more.

A claim before the SSA may also be simplified for a veteran who previously applied for disability compensation benefits through the VA. Not only are the processes similar, but the veteran’s VA claims file will already contain medical records directly relevant to proving an SSA claim (And helpful tip – under statute, a veteran is entitled to one free copy of his VA file. Just know that it may take months for it to arrive once requested).

It is up to the veteran, not the VA, to inform the SSA that he qualifies for the expedited processing. The veteran must inform the SSA that he has a permanent and total VA disability rating of 100 percent. He must also provide proof of the rating (such as by including a copy of the rating letter).

Access the SSA’s page on this process here. To learn more about applying for SSA benefits and to start your application online, go to: http://www.ssa.gov/pgm/disability.htm.

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For those of you who may be unfamiliar with it, the VetBiz Vendor Information Pages (VIP) is a listing of companies that have been verified by the Department of Veterans Affairs’ (VA’s) Center for Verification and Evaluation (CVE) as veteran-owned and veteran-controlled. Businesses listed in the VetBiz VIP are eligible for set-asides conducted by the VA, and any company that has run the VetBiz gauntlet (especially multi-member companies) can testify that it is a rigorous process.

As businesses listed in the VetBiz Vendor Information Pages (VIP) know, as part of the process, a good deal of personal information needs to be uploaded to an electronic portal for review by the CVE – from individual tax returns to the company’s operating agreement or bylaws. One logs into the portal with a user name and password.

But how safe is this portal? There are two inquiries here – how safe is the portal in terms of security, and how safe is the portal in terms of the protection of personal information?

Let’s look at security first. After the SAM scare last year, where it was possible to view the extremely sensitive information of companies after following a series of steps (I have free credit reporting for a year as a consequence of this, as I was identified as “high risk” for identity fraud), the Government should be cognizant of potential security breaches.

As it relates to VetBiz VIP, I’m curious to know what measures are taken to make sure this highly personal and/or confidential information is sufficiently protected. Is it encrypted on the VA’s side? How can it be accessed by VA personnel? I am not an IT professional by any means, but it would give businesses peace of mind if the CVE would share how it protects the information it receives. It also alarms me that CVE does not have a process in place to kick back documentation submitted by the veteran that contains non-redacted social security numbers.

Also related to security is the information requested. Unlike the Small Business Administration’s assessment of an 8(a) Business Development application, the CVE does not examine whether an individual is economically disadvantaged. If this is so, why request an entire individual tax return? If this practice was eliminated, and the CVE instead requested a letter from the individual’s CPA summarizing from where the individual received income, this would allow the CVE to check for affiliation issues (the purpose for requesting tax returns) while protecting the veteran’s personal information.

I have no expectation that changes in the required documentation will be implemented, however. I know of one VetBiz Verification Assistance Counselor who has repeatedly told the CVE that certain documents are inapplicable depending on the type of business. It has been years and no change has been made.

Now let’s talk personal information. The CVE requests information including how much money an individual makes (tax returns), corporate documents (company operation), resumes, bank signature cards and cancelled checks, and copies of contract signature pages. If they exist, you must upload these documents to be considered; the CVE does not make exceptions.

Recently, the CVE sent out this mass email to select businesses listed in the VetBiz VIP. I say “select” because I know of some businesses who received this, others did not. However, there is no reason why some businesses would be distinguished from others:

A VetBiz Verification Assistance Counselor I know promptly submitted an inquiry to the CVE, asking it for input especially as to the wording of the first sentence. After two weeks, he is still waiting for a response.

In practice, the fact that information is subject to FOIA requests will likely not impact businesses. The government cannot give out information that is “a trade secret or confidential commercial or financial information obtained from a person.” But the fact that the request can be made is unneverving.

At this point, I have not heard of information being misused or compromised via the VetBiz VIP or the electronic portal for submission. At the same time, however, these concerns are real, and I hope the CVE is cognizant of the need to address them.

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by Sarah Schauerte

In general, my blog addresses timely issues. However, this week I can’t resist covering a veterans issue that most people don’t know too much about – TDIU, or Total Disability Based on Individual Unemployability. I want this information out there, for veterans and family members struggling with their claims for disability compensation before the U.S. Department of Veterans Affairs (VA).

What is a TDIU Claim? 

As an every veteran with a disability rating knows, getting a 100% “schedular” disability rating is hard to do. A 100% “schedular” rating is achieved when a veteran’s disability ratings add up to 100%. But in VA Land, a 70% rating plus a 40% rating doesn’t equal 110% – it equals 80% because of how ratings are calculated. (See a helpful ratings calculator here).

In some cases, even if a veteran does not have a rating that adds up to 100%, he suffers from a disability that makes it impossible for him to work. In that case, the VA may assign a 100% rating because the veteran is totally disabled based on his individual unemployability (hence the term, “TDIU”).  The VA must first find the veteran suffers from an impairment that makes it impossible for him to maintain a substantially gainful occupation. Also, the veteran must have one service-connected disability that is at least 60%, or a total disability rating of at least 70%, with one rating as 40% or more.

Proving TDIU is very, very difficult; and a lot of this boils down to insufficiency of the evidence. The veteran should present solid evidence of his service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.

This is a subjective assessment, and it depends on individual facts and circumstances. For example,  if the veteran is an IT programmer and suffers from terrible service-connected migraines that prevent him from doing his job or being retrained to perform similar work for which he is qualified, he might be TDIU. However, if the veteran is a manual laborer who is affected less by the migraines (to where he can still work), the VA might hold that he is not TDIU.

The VA has prepared a webpage that discusses the general requirements to prove a TDIU claim, which can be accessed here. Also, the regulation that spells out these requirements, 38 CFR 4.16, is here.

How to Make a TDIU Claim

A veteran may make a TDIU claim in one of two ways: 1) by claiming it in conjunction with an original service-connection claim; or 2) with a claim for increased evaluation.

If, in connection with a claim for increased compensation, the evidence of record shows evidence of unemployability, and the veteran meets the schedular criteria for TDIU, then the evidence reasonably raises a TDIU claim (which the VA must explore) even if the veteran doesn’t specifically state it himself. However, the veteran is far better off to raise the argument himself, rather than rely on the VA to make it.

If a veteran makes a claim for TDIU, he must complete a VA Form 21-8940. In doing so, a veteran with multiple service-connected disabilities must specify at least one disability as the reason for his unemployability.

The VA’s Process for Evaluating TDIU Claims

The VA will then follow the administrative procedures in place for processing a TDIU claim. These include sending VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) to the former employer(s) listed on the form for which the veteran worked during his last year of employment. The VA may also request either condition-specific Disability Benefits Questionnaires (DBQs) or a general medical DBQ when the VA determines that examinations are needed to decide the claim.

I highly encourage you to take a look at  the Fast Letter issued by the Director to all VA Regional Offices which revises and clarifies the VA procedures relating to claims for TDIU, which was issued on June 17, 2013. This is available here: VA Fast Letter 13-13. 

In general, keep in mind that while the VA has the duty to assist veterans applying for disability benefits (which includes TDIU), you as the veteran are your best advocate! Do your research before embarking on a TDIU claim, keep copies of everything sent to the VA, and make sure that you have built as solid a case as possible for your claim. This may include: submitting lay witness statements of co-workers who can offer personal observations of the effects of your disability on job performance, submitting medical evidence and opinions from doctors relating to your inability to work, and by timely responding to any VA requests for more information.

When you act as your own advocate, you increase your chances of receiving the benefits to which you are entitled.

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