This is a very good question. After all, experienced VA disability
attorneys usually charge a 20% contingent fee whereas Veterans Service Officers
(VSOs) provide representation for free.
There is no doubt that the vast majority of VSOs try their level best to
help disabled veterans. And many do a very fine job at it. However, in recent
years, the VA disability system has become more complex and adversarial. Due to
incompetency, needless formality and basic insensitivity, many VA regional
offices have become bureaucratic nightmares. Disabled veterans are asked to
submit more and more favorable evidence just to obtain their entitled benefits.
And, VA offices require ever greater understanding of the complexity of VA
statutes, regulations and court cases.
In general, attorneys have more legal sophistication than VSOs, as
attorneys, by definition, have a legal education. Beyond this, attorneys who
practice exclusively Veterans Disability law (like the attorneys of the Veterans
Law Group (VLG)) have a greater understanding of the workings of the VA
system. Moreover, attorneys are generally selective on the type of cases they take.
VSOs, on the other hand, must accept any and all cases which come their way.
This means that an attorney will give more time and attention to each individual
And finally — and this is very important – law firms have more
resources than VSOs in terms of staff support and funds to prosecute VA claims.
In most cases, medical evidence will decide the fate of claims. Typically, the VA
obtains their own medical examinations, and typically they are unfavorable to
disabled veterans. Law firms, such as the VLG, have the budget to pay for their
own private examinations (ranging from $800-$1,500) to rebut adverse VA
Many disabled veterans are in need of Social Security disability benefits, but the process for receiving those benefits can be complex, stressful, and confusing if they try to do it alone. A social security disability lawyer can help make the process faster, easier, and will effectively represent a veteran’s best interests to the Social Security Administration. However, many veterans do not utilize an attorney because they feel that they do not have the money to pay for one or they do not understand how a social security disability attorney is paid.
Almost every social security disability attorney operates on a contingency fee basis. The lawyer’s fee is contingent on you winning your social security disability claim. If the lawyer can not secure your benefits, then he or she does not collect a penny. If the attorney does help you win your case, the Social Security Administration will facilitate the payment of the fee to the lawyer.
The only exception to the contingency fee is that some attorneys may request that you pay a nominal fee up front for the costs of the case. This typically is no more than a couple of hundred dollars, but it covers the cost of securing medical records, copying, postage, travel, and long distance phone calls. Your lawyer should walk you through the expense agreement prior to signing on to the case so you know exactly what costs are being covered and how much it will be.
If an attorney secures your application or wins your appeal in which you are owed backpay benefits or past due benefits from the Social Security Administration, the attorney receives the lesser of 25% or $6,000 of the backpay benefits. If the appeals process progresses to the Appeals Council or Federal Court before the case is won, the attorney is paid a flat 25% fee of the past due benefits. If no backpay is awarded, the attorney does not collect a fee for the services rendered.
In addition, you do not have to worry about making payments to your attorney from the backpay. The Social Security Administration will take the lawyer’s fee directly out of your backpay before it sends your check. Everything is handled for you, so you do not have to worry about paying your attorney for his or her services.
A lawyer may also submit a fee petition to the Social Security Administration that contains an itemized list of activities for the case if expenses were not requested up front for the costs of the case. The Administration must review and approve the list of items before the lawyer is reimbursed, and the costs must all be reasonable and related to the case. An experienced disability benefits attorney will be able to review all of the costs and payment terms with you before you decide to hire a lawyer.
A common trait of veterans is that they work hard, push towards gaining their objectives, and never admit defeat. Unfortunately, sometimes that means that they overlook the severity of the challenges they are facing in maintaining gainful employment after discharge. Family members never want to disparage a veteran’s work efforts, but having one job after another and the bills start to pile up, it’s worth stepping back and evaluating whether difficulty in employment may be due to service-connected disabilities.
The inability to sustain substantially gainful employment is one of the eligibility requirements for getting a TDIU (total disability individual unemployability) finding.
Marginal employment is not be considered substantially gainful employment. What is “marginal employment”? There are two ways to determine whether a veteran’s employment is considered marginal, and not substantially gainful.
One way to evaluate employment is to look at annual income for several years. Marginal employment is deemed to exist when a veteran’s earned annual income is below the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold. These thresholds are published every year. For 2017, the amounts were $12,752 for those under age 65, and $11,756 for those age 65 and over, and are higher for families with dependents. If you don’t know what your (or your spouse’s) annual income is, an Earnings Report can be requested from the Social Security Administration.
Keep in mind that other VA disability benefits, or Social Security disability benefits, you may be already receiving are not taxable income and thus are not included in the taxable earnings used to decide the poverty thresholds.
The other means of evaluating employment for this purpose is to look at the specifics of a veteran’s place of employment. Marginal employment may also be held to exist, on a fact found basis when earned annual income exceeds the poverty threshold, but the employment is in a protected environment, such as a family business or sheltered workshop, that makes work accommodations for the veteran that would not otherwise be available. Consideration is given in all claims to the nature of the employment and the reason for termination.
Do you think you or your veteran spouse may not have substantially gainful employment and may be eligible for TDIU benefits? Veterans Law Group has helped thousands of other veteran families just like yours and are happy to help.
We know that veterans joined the military because they wanted to serve their country, not because they wanted to navigate bureaucratic mazes to claim benefits to which they are entitled. Trying to figure out both Social Security and VA benefits at the same time can be particularly daunting.
Let’s simplify things a bit. Yes, a veteran can receive both VA service-connected disability benefits and Social Security benefits. However, it is important to note that receipt of one does not guarantee receipt of the other and a veteran generally cannot receive both a VA pension (different from disability benefits) and Social Security at the same time. VA pension differs from VA service connected disability by whether the disability was caused or aggravated by military service. VA pension was designed to help veterans that have a non-service connected disability and are struggling financially because of the disability.
It’s important to understand that sometimes a veteran may have received a Social Security disability award that lists multiple grounds, for example, PTSD and a back injury. When Social Security makes those awards, they are not factoring any service-connected factors that the VA would look at to determine TDIU. In this situation, sometimes the VA will deny TDIU to a veteran in this example because the VA shows that only the PTSD is service-connected, but the back injury is not. That doesn’t necessarily end the issue, however. If you can present evidence to the VA that the veteran is unemployable solely because of service-connected reasons (for example, maybe the veteran was having violent outbursts at work as a result of their PTSD, but could have worked through the back injury issue), the VA may then approve TDIU.
If you have been denied TDIU because of an apparent conflict between a Social Security award and a VA TDIU claim, you owe it to yourself to get another opinion on whether you may be eligible.
After veterans are discharged from active duty it sometimes takes awhile to reintegrate into civilian life and a suitable civilian job. Bumps in the road are expected, of course, but sometimes it seems impossible to maintain steady work, sometimes because of symptoms from service-connected disabilities interfering with expected work responsibilities. One example are individuals that suffer from PTSD, who miss too many days of work because of anxiety attacks or depression.
At a certain point, it may be necessary to look into whether a veteran is eligible for TDIU (total disability individual unemployability) benefits. This is not to say that the veteran will give up trying to work, but acknowledging that perhaps he or she isn’t able to maintain substantially gainful employment through no fault of their own, and needs to look into accessing disability benefits that were part of the deal when they signed up for the military.
One of the eligibility requirements for TDIU is a showing that the veteran cannot sustain substantially gainful employment. One of the most direct means of showing this to the VA is by producing income records for the past several years showing the veteran’s income during relevant years.
Getting a printout of Social Security earnings records is a straightforward process. The form that you need to file with the Social Security Administration office is the SS-3288 Consent to Release Information form. This can be accessed at www.ssa.gov or by visiting a Social Security office. Request and review these records to see the real picture of the veteran’s income over the years since discharge (you might be surprised) and then compare them against the annual poverty level numbers (available from the U.S. Department of the Census).
Get this earning record before you complete the VA Form 21-8940 which is the TDIU application.
Do you need help determining whether you or your veteran spouse might be eligible for TDIU benefits? Veterans Law Group is ready to help you, just as it has for thousands of other veteran families. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
Veterans are hard-working and try to overcome every obstacle; it’s just part of the personality of those who volunteered to serve their country in the military. Over and over again we find that even veterans with various disabilities try their best to hold down a solid job after leaving the service, even if it’s only part-time. Part-time work doesn’t always pay the bills, though, so it’s always a good idea to see if you are getting all of the disability benefits you may be entitled to receive from the VA.
A veteran generally can still work when receiving VA disability payments for less than a 100% disability rating. However, typically in order to receive individual unemployability or a 100 percent schedule rating for certain disabilities, a veteran cannot work full time or make over a certain amount of money per year (generally anything above the poverty line). This depends on each individual case.
Working part-time, though, is sometimes more a result of your disabilities than you originally realized. Look back at your work history for the years since your separation from the military. Have you ever been able to hold down a full-time job? Is the reason you are working part-time a result of ongoing symptoms of your physical or mental disability interfering with your employment? Have you been sick, anxious, depressed, resulting in missed days at work and eventual termination from job after job? Maybe your situation is worth a closer look.
Total Disability Individual Unemployability (TDIU) is a theory for getting a 100% disability rating if certain conditions are met. The most straightforward method is by showing 1) you have one service-connected disability with a 60% or more disability rating, or have two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability. If you satisfy these two conditions, then you will be entitled to a 100% disability rating.
If you have questions about your possible eligibility for TDIU or if you are not able to work due to a disability incurred in service, please reach out to us at Veterans Law Group. Our one and only job is to provide legal help for veterans and their families in their quest for VA disability benefits.
To get started, simply fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.