If you have been found 100% disabled by Department of Veterans Affairs, this will help your Social Security Disability case

If you are applying for Social Security and you have already been found 100% disabled by the VA, this finding must be given “substantial weight” by the Social Security Administration and the Judge hearing your case, according to a finding by the Fourth Circuit Court of Appeals in the case of Bird v. Commissioner of Social Security Administration, 699 F. 3d 337 (2012).

Moreover, if you can show that your medical condition was equally severe prior to the date you were granted 100% disability by the VA, you can use the VA finding to obtain SSA benefits based on an earlier date.  The Circuit Court found that the “effective date [of the VA pension] merely reflected the date that Bird applied for VA benefits, which was a date unrelated to the onset of his” medical conditions, 699 F. 3d at 344.  In other words, if you were found 100% disabled and unemployable by the VA on December 31, 2012, this may only reflect the date you applied for benefits.  Therefore, you can use the VA finding but argue that the date of the VA finding was arbitrary based on your application date and that you were disabled by SSA standards prior to December 31, 2012.

There is another hugely important finding issued by the Circuit Court in this case.  The Court stated that, if you do not have medical evidence until a certain date, you can use lay testimony to prove an earlier date of disability.  You can also try to show that your illness was progressive and severe earlier than the date of a medical report and the Judge will have to consider your proof.

So, suppose you do not have medical insurance before January 1, 2013.  As a result, you could not go to the doctor until after 1/1/13.  Judges generally try to tell you that you cannot be found disabled until after you have medical proof from doctors’ exams.  If you started seeing doctors after 1/1/13, they will want to find you disabled  after 1/1/13.  However, according to the Bird case, if you can show, through testimony from friends and family that you were sick prior to the time you starting seeing a doctor, a Judge has to consider that testimony.  And, if you have a condition that would not have suddenly occurred, the Judge will have to consider that it may have been severe and disabling before the medical records in evidence.  For example, Mr. Bird, in his case used witness testimony to show that his Post Traumatic Stress Disorder was severe even before he sought medical treatment.  His PTSD resulted from events he saw while serving as a Marine in Vietnam.  Mr. Bird’s witnesses testified that his PTSD became disabling in 2001, even though there was no medical evidence until 2006.

The reason that the date of the onset of your disability is so important is that it may affect the type of benefits you receive and when you become eligible for Medicare coverage.

Here is a link to the full Bird opinion:

http://www.ca4.uscourts.gov/opinions/Published/111645.p.pdf

OR

http://scholar.google.com/scholar_case?case=10951766908040294480&q=bird+v.+astrue+%26+circuit+court+2012&hl=en&as_sdt=2,21&as_vis=1