LEGAL ASSISTANCE FOR WARRIORS PROGRAM

OSDRI’s Legal Assistance for Warriors (LAW) program provides pro-bono representation to eligible veterans in initial applications for VA disability benefits, misdemeanor criminal matters before the Rhode Island Veteran Treatment Court, license restoration matters at the Rhode Island Traffic Tribunal / RI DMV and land lord tenant matters.

VA Disability Appeals and Social Security Disability matters are handled on a reduced fee contingency basis requiring no out of pocket expenses for the veteran.  OSDRI’s lawyers are experienced and accredited by the U.S. Department Veterans Affairs to represent veterans in the VA claims process.

OSDRI’s Legal Staff
About VA Disability Compensation
About Social Security Disability Compensation
About the Rhode Island Veteran Treatment Court

 

 

OSDRI’s LEGAL STAFF

Erik B. Wallin, Esquire

Executive Director & General Counsel

Captain, USAF (Fmr.)

Mr. Wallin serves as the full-time Executive Director and General Counsel for Operation Stand Down Rhode Island, Inc. A native Rhode Islander, after graduating from Roger Williams University School of Law in 1997, Mr. Wallin joined the United States Air Force and served as a Captain in the Department of the Judge Advocate General. He returned to Rhode Island and was appointed a Special Assistant Attorney General in the Rhode Island Department of Attorney General. Subsequently he opened his own law practice and also served on the Board of Directors of OSDRI. He assumed his current position with OSDRI in 2011. Mr. Wallin is admitted to practice law before the U.S. Court of Appeals for the Armed Forces and is a member of the bars of the Commonwealth of Massachusetts and the State of Rhode Island. In 2010 he was sworn in as a member of the bar of the United States Supreme Court.

401-383-4730 (office)
401-383-9107 (fax)
erikwallinesq@osdri.org

 

Dee DeQuattro, Esquire

Director of Development and Veteran Legal Services

Dee DeQuattro serves as the Director of Development and Veteran Legal Services. Ms. DeQuattro earned a B.A. in Communications and Political Science from Roger Williams University; an M.A. from Providence College; and a J.D. from the University of Massachusetts Law School in Dartmouth. She is licensed to practice law in Rhode Island, Massachusetts and is accredited by the U.S. Department of Veterans Affairs in the handling of disability claims. In addition to her responsibilities at OSDRI, Ms. DeQuattro is a Captain in the Rhode Island Army National Guard assigned to the Office of the Staff Judge Advocate. In 2016, Ms. DeQuattro founded the Boots on the Ground For Heroes Memorial and serves as the president of its board of directors.

Prior to joining OSDRI full-time, Ms. DeQuattro had a career in Rhode Island media spanning print, digital, radio and television. Her work earned the 2012 Associated Press Award: Best Website; and, 2009 and 2010 Associated Press Award – Best Talk Show.

800-861-8387 (office)
401-500-6031 (Media Inquiries Only)
401-383-9107 (fax)
deedequattroesq@osdri.org

 

Kailey L. Wildenhain, Esquire

Managing Attorney, Disability Division

Ms. Wildenhain is the Managing Attorney for the Disability Division at Operation Stand Down Rhode Island. Ms. Wildenhain graduated from Roger Williams University in 2010 with a B.A. in Legal Studies and Clinical Psychology, as well as a minor concentration in Philosophy. Ms. Wildenhain went on to attend Roger Williams University School of Law, where she graduated with a J.D. in 2013. She is licensed to practice law in the Commonwealth of Massachusetts, the Federal District of Massachusetts, and before the Administration for Veterans Affairs. She is an active member of the National Organization of Veterans’ Advocates (NOVA).

Ms. Wildenhain assumed her current position with OSDRI in 2019. Prior to joining OSDRI, Ms. Wildenhain was the managing attorney for the VA division at Rob Levine & Associates, where she established a division dedicated to helping veterans in their pursuit of disability compensation through the VA for injuries sustained during military service. She is the granddaughter of two Korean War Era Veterans, and her brother is a Chemical Biology and Radiology Nuclear Specialist for the Massachusetts Army National Guard.

401-600-1236 (office)
401-383-9107 (fax)
kwildenhainesq@osdri.org

 

Kaylin M. Pelletier, Esquire

Staff Attorney

Kaylin M. Pelletier, Esq. serves as a Staff Attorney for Operation Stand Down Rhode Island.  Kaylin is a Rhode Island native and alumna of Johnson & Wales University (B.S. in Criminal Justice, Magna Cum Laude, May 2014) and Roger Williams University School of Law (J.D., Magna Cum Laude, December 2017).  She is admitted to practice law before the Rhode Island Supreme Court, Massachusetts Supreme Court, United States District Court for the District of Rhode Island, and is also accredited through the Board of Veteran’s Affairs.  For OSDRI, Kaylin provides free and low-cost legal services in a vast array of civil legal fields, but her primary focus is in that of disability law.  Kaylin helps veterans secure both VA service-connected disability benefits as well as federal social security disability benefits.  She is the granddaughter of an Air Force Veteran.

401-383-4730 (office)
401-383-9107 (fax)
kpelletieresq@osdri.org

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ABOUT VA DISABILITY COMPENSATION

What is VA Disability Compensation?

VA Disability Compensation is meant to compensate veterans for a disease, injury, or event incurred during active duty service that continues to impact his or her life today.

Am I Eligible For VA Disability Compensation?

In order to be eligible for VA disability compensation, you must have active military service that leads to a discharge under circumstances that are other than dishonorable.

Active military service includes full time duty in the Army, Navy, Marine Corps, Air Force, or Coast Guard. Members of the National Guard and Reserves may be eligible for VA disability compensation if they have an injury stemming from the period of time they were ordered to report for active duty or ordered to perform active duty training exercises. If you are not sure if you qualify for VA disability compensation, please contact us for more information.

What is “Service Connection”?

If a condition is “service connected”, the VA has conceded that the condition was incurred in or aggravated by active duty service.

Theories of Service Connection

There are several ways to service connect a condition. The main theories of service connection are:

  • Direct
  • Secondary
  • Presumptive
  • Chronicity
  • 38 U.S.C. 1151


Direct Service Connection

In general, in order to become service connected for a condition, you must provide evidence of three things:

  • a current diagnosis or persistent symptoms of a current disability;
  • a disease, injury, or event incurred in or aggravated by active duty service; and a “nexus”, or a link between the in-service disease, injury, or event and the current diagnosis or persistent symptoms of a current disability.

 

The condition does not need to be diagnosed in service in order to be deemed service connected. Many veterans suffer from symptoms for years before

The VA may compensate you for conditions that are secondary to or aggravated by a service-connected condition.

Presumptive Service Connection

Veterans who served during certain periods of time and in certain areas may qualify for presumptive service connection. This means the VA will waive the in service disease, injury, or event requirement as long as you can show you were stationed in a certain place at a certain time and you have one of the presumptive conditions.

Agent Orange Presumption

If you served in Vietnam during the Vietnam era, or along the Korean DMZ between April 1, 1968, and August 31, 1971, you may qualify for presumptive service connection. Other areas including Thailand and other coastal waterways have also been subject to this presumption. In order to qualify for the Agent Orange presumption, you must also have one of the following presumptive conditions:

  • AL AmyloidosisA rare disease caused when an abnormal protein, amyloid, enters tissues or organs
  • Chronic B-cell LeukemiasA type of cancer which affects white blood cells
  • Chloracne(or similar acneform disease) – A skin condition that occurs soon after exposure to chemicals and looks like common forms of acne seen in teenagers. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.
  • Diabetes Mellitus Type 2A disease characterized by high blood sugar levels resulting from the body’s inability to respond properly to the hormone insulin
  • Hodgkin’s DiseaseA malignant lymphoma (cancer) characterized by progressive enlargement of the lymph nodes, liver, and spleen, and by progressive anemia
  • Ischemic Heart DiseaseA disease characterized by a reduced supply of blood to the heart, that leads to chest pain
  • Multiple MyelomaA cancer of plasma cells, a type of white blood cell in bone marrow
  • Non-Hodgkin’s LymphomaA group of cancers that affect the lymph glands and other lymphatic tissue
  • Parkinson’s DiseaseA progressive disorder of the nervous system that affects muscle movement
  • Peripheral Neuropathy, Early-Onset A nervous system condition that causes numbness, tingling, and motor weakness. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of herbicide exposure.
  • Porphyria Cutanea TardaA disorder characterized by liver dysfunction and by thinning and blistering of the skin in sun-exposed areas. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.
  • Prostate CancerCancer of the prostate; one of the most common cancers among men
  • Respiratory Cancers(includes lung cancer) – Cancers of the lung, larynx, trachea, and bronchus
  • Soft Tissue Sarcomas(other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma) – A group of different types of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissues


Camp Lejeune Presumption

Effective March 14, 2017, the VA will provide presumptive service connection to veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutively or non-consecutively) between August 1, 1953 and December 31, 1987 who were exposed to toxic water and later developed one of eight presumptive diseases:

  • Kidney Cancer
  • Non-Hodgkin’s Lymphoma
  • Adult Leukemia
  • Liver Cancer
  • Bladder Cancer
  • Multiple Myeloma
  • Parkinson’s disease
  • Aplastic Anemia and other Myelodysplastic Syndromes


Chronicity & Continuity of Symptoms

Service connection may be established where a chronic disease is diagnosed in service and there are subsequent manifestations of the disease. The VA has a list of conditions that qualify as “chronic.”

If the condition diagnosed in service is not deemed “chronic,” you may still be able to establish service connection by showing that you have had consistent symptoms since service. Consistent treatment in service or since discharge is not a requirement to establish continuity of symptoms. Your statement and the statements of others may establish consistent symptoms, even if you haven’t treated with a physician consistently since you were discharged from service.

  • 38 U.S.C. 1151

 

A condition may be service connected and treated just like it was incurred in service if the condition was caused by hospital care, medical or surgical treatment, examination, or as the result of VA Vocational Rehab or Compensated Work Therapy Program. The injury must be related to the furnishing of medical services by a VA employee or at a VA Facility. The proximate cause of disability or death must have been the result of either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing hospital care, treatment, or examination, or (b) an event that was not reasonably foreseeable. The failure to provide medical treatment can also serve as the basis for an 1151 claim.

When Will I Start Receiving VA Disability Compensation Payments?

Generally, the effective date of an award of service connection is the date of the VA receives your claim that led to an award of benefits. However, if claim is received within 1 year of separation from service, your effective date will be the day following your discharge from service. There are a few exceptions to this rule. If you think the VA assigned the wrong effective date in your case, contact us for more information.

What if I Am Unemployed?

If you are unable to obtain or maintain substantially gainful employment because of one or more of your service connected conditions, you may qualify for Total Disability Based Upon Individual Unemployability (TDIU). While TDIU is an “implied” claim, meaning the VA should consider this as part of a claim for an increase where there is evidence of difficulty maintaining employment in the record, if this applies to you, you should complete a Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940).

Download VA Form 21-8940 (PDF)

What Is Convalescence?

The VA will award a temporary 100% rating evaluation if you undergo surgery for one or more of your service connected conditions. You may qualify for convalescent pay if:

  • you spent more than 21 days in a VA hospital or you were under hospital observation or other approved hospital for a service connected condition; or
  • you had surgery to treat a service connected condition that required a recovery time of at least 1 month and the surgery resulted in severe issues, such as:
    • surgical wounds that haven’t totally healed,
    • stumps or recent amputations,
    • being unable to move due to being put in splints or casts,
    • being unable to leave your house, or
    • having to use a wheelchair or crutches; or
  • you did not have surgery, but one or more major joints was immobilized by a cast.

This temporary 100% rating may continue for 1 to 3 months – depending on your unique case. You may be able to get an extension for up to 3 more months if your case is severe and requires additional time to recover. If you believe you may be eligible for convalescent pay, contact us for more information.

What is Special Monthly Compensation?

Special Monthly Compensation (SMC) is a form of supplemental compensation given for some especially serious or otherwise debilitating conditions.

SMC is an “implied claim.” This means that the VA should automatically award SMC if you qualify. You do not have to directly apply for Special Monthly Compensation (SMC).

What Types of Special Monthly Compensation Are There?

  • SMC(k) Loss of Use of a Creative Organ – if your service connected condition makes another body part unable to function any better than it would if it were amputated and a prosthetic device used, you may be eligible for supplemental compensation from the VA. Many service connected conditions require medications that may cause erectile dysfunction, a condition subject to supplemental compensation under SMC(k).
  • SMC(l) Aid & Attendance– if your service connected conditions are so severe that you require regular supervision by another person, you may be eligible for supplemental compensation from the VA. You may ask someone to complete an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) or A Request for Nursing Home Information in Connection with Claim for Aid and Attendance (VA Form 21-0779) to submit as evidence of the need for regular Aid & Attendance.

 

Download VA Form 21-2680 (PDF) – family member or home nurse

Download VA Form 21-0779 (PDF) – nursing home facility

  • SMC(s) Housebound or 160% + – if your service connected conditions are so severe that you are permanently bedridden, you may be eligible for supplemental compensation from the VA. If you have one or more service connected conditions that add up to 100% combined (including TDIU), and additional service connected conditions that add up to 60%, you may be eligible for supplemental compensation from the VA. The additional disability or disabilities evaluated as 60% or more disabling, must be separate and distinct from the single disability evaluated as totally disabling, and involve separate anatomical segments or body systems.
  • SMC(t) Traumatic Brain Injury – if you have chronic symptoms caused by a traumatic brain injury (TBI), you may be eligible for supplemental compensation from the VA if you require Aid & Attendance (as described above), and you would need constant institutional care without in-home Aid & Attendance.

 

If any of these conditions apply to your situation and you are not receiving supplemental compensation, or you are not sure if you are eligible for SMC, contact us for more information.

Types of Common Conditions:

  • Post-Traumatic Stress Disorder (PTSD)
  • Traumatic Brain Injury (TBI)
  • Hearing Loss & Tinnitus
  • Gulf War Syndrome
  • Other Environmental Exposures


Types of Claims:

  • Original Claim – if you are applying for VA disability compensation for the first time, you will need to file a VA Form 21-526 Application for Disability Compensation.
  • Initial Claim – if you want to file a claim for a new condition or if you want to apply for an increased rating evaluation for a service connected condition, you will need to file a VA Form 21-526 Application for Disability Compensation.
  • Supplemental Claim – if you filed a claim for a certain condition and you were previously denied. To file a Supplemental Claim, you will need to file a VA Form 20-0995. In order to re-opena previously denied claim, you must also provide “new and relevant evidence,” or evidence not previously submitted that tends to prove or disprove an element of the claim.


I Received a Decision – Now What?

In the new appeals tracking system, called the Appeals Modernization Act, enacted in February 2019, you now have a few options to appeal the VA’s decision within 1 year and still preserve the effective date of your initial application:

  • Supplemental claim – if you have new evidence you want the VA to consider, you can file a Supplemental Claim by submitting a VA Form 20-0995 within 1 year of the VA’s decision. VA’s goal for completing Supplemental Claims is 125 days.

 

Download VA Form 20-0995: Supplemental Claim (PDF)

  • Higher level review – if you want someone else to look at the evidence in support of your claim and make another decision, you can file a Higher Level Review Election by submitting a VA Form 20-0996 within 1 year of the VA’s decision. VA’s goal for completing Higher Level Review Claims is 125 days.

 

Download VA Form 20-0996: Higher-Level Review (PDF)

  • Notice of Disagreement – if you want the Board of Veterans’ Appeals in Washington D.C. to review your case, you can file a Notice of Disagreement by submitting a VA Form 10182. VA’s goal for responding to a Notice of Disagreement is 365 days. The Board will take longer to decide your appeal if you submit new evidence or request a hearing in your Notice of Disagreement.

 

Download VA Form 10182: Board Appeal (PDF)

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ABOUT SOCIAL SECURITY DISABILITY COMPENSATION

Social Security Disability (SSD) – What is it?

Social Security Disability is compensation a person receives when they are totally, permanently disabled, and are unable to work on a sustained, full-time basis.

Types of Social Security Disability

There are multiple things a person can mean when they say, “I am on Social Security.” There are also multiple social security disability programs a person can qualify for based on their individual circumstances. These are the main programs:

  • Social Security Disability Insurance (SSDI)
  • Supplemental Security Income (SSI)
  • Disabled Adult Child (DAC) Benefits
  • Disabled Widow’s Benefits (DWB)
  • Retirement/Social Security Benefits (once an individual attains a certain age)

The two most common types of benefits are SSI & SSDI.

  1. Social Security Disability Insurance (SSDI) (Title II): a payroll tax-funded, federal insurance program of the United States government. It is managed by the Social Security Administration and is designed to provide income supplements to people who are physically restricted in their ability to be employed because of a notable disability. A person, essentially, pays premiums from their paycheck to qualify for benefits.
    • Proving total disability and being awarded social security disability benefits, essentially, allows a person to access their full federal retirement (Social Security) amount before they attain the required age to receive those funds.
  1. Supplemental Security Income (SSI) (Title XVI): a United States means-tested federal welfare program that provides cash assistance to individuals residing in the United States who are either aged 65 or older, blind, or disabled.
    • The amount of money a person makes under Title XVI is a set, standard amount determined by the federal government, and is usually less than what a person would make if they collected under Title II.
    • Disabled children typically collect under Title XVI and their parents will receive the standard benefit amount set by the federal government.

There are a few other major differences between SSI & SSDI regarding eligibility, retroactive benefits, and medical insurance coverage under the two programs:

Social Security Disability Insurance (SSDI) Supplemental Security Income (SSI)
For individuals with substantial work history For individuals without substantial work history and with low income and low resources
Possible 12-Month retroactivity (back pay) from application date NO retroactivity (back pay) before application date
5-Month waiting period before benefits begin NO waiting period; benefits paid as of month after application is filed
Medicare coverage included, but 2-Year waiting period (possible Part D prescription plan) Medicare coverage included, NO waiting period (prescription coverage included)
Family benefits available Family benefits NOT available

 

Who qualifies to collect Social Security Disability (SSD) benefits?

Each person who is disabled is typically entitled to SSD benefits. However, not only does a person need to prove their disability, the person must first be eligible for the entitlement.

Eligibility

A person’s eligibility for entitlement to benefits depends on which program they are applying for: SSDI or SSI.

SSDI

Social Security Disability Insurance (SSDI) eligibility is based on a person’s work history, and whether they have earned enough work credits to qualify for the insurance coverage. As explained above, a person, essentially, pays a premium from their paycheck to qualify for benefits.

Work credits are the “building blocks” the Social Security Administration uses to find out whether a person has the minimum amount of covered work to qualify for benefits. For most people, the minimum number of credits required to qualify for SSDI is forty (40) work credits (10 years of work) over their lifetime, and ten (10) of those credits need to have been earned in the previous five (5) years. This number is adjusted/lowered slightly for people below the early retirement age (62).

Like any other insurance program, the disability insurance can expire if a person stops paying their premium (stops working). Roughly five (5) years after somebody stops working their insurance will expire. The date their insurance expires is referred to as their Date Last Insured (DLI). If somebody’s DLI is in the past, it means the person would need to prove they were disabled prior to their date last insured. This can be a challenge if their DLI is multiple years ago or they were not being treated at the time of their DLI. This issue is also one of the reasons it may be necessary to hire a Social Security Disability Attorney who can assist in proving disability prior to the DLI.

Because SSDI eligibility is based on a person’s work history, their current income, assets, and financial picture is not something the Social Security Administration (SSA) considers when determining a person’s eligibility to collect SSDI benefits. If the person has earned enough work credits and is still insured, they are eligible for the entitlement and simply need to prove they are disabled.

SSI

Unlike SSDI, Supplemental Security Income (SSI) eligibility is based on a person’s financial situation and need, not how much they have worked. SSI is popular for younger people who have not had the opportunity to earn the requisite credits necessary to be eligible for SSDI, for those individuals who were sickly most of their life, or for people who took other paths in life and have not spent much time in the work force. Whether a person has had one job, or ten, they may be eligible for SSI if they can prove their financial need.

Supplement Security Income is a needs-based program. This means that in order to be eligible for the entitlement, you must be of low income and low assets, resulting in a need for financial assistance from the federal government. SSA characterizes low income and low assets under the following criteria:

  • Assets
    • $2,000 liquid assets for an individual
    • $3,000 liquid assets for a couple
  • Income
    • $771/month income for an individual
    • $1,157/month income for a couple

If the person has low income and low assets as defined above, they are eligible for the entitlement and simply need to prove they are disabled.

Entitlement

Even if a person is eligible for Social Security Disability benefits, they will still only be entitled to those benefits because of their total, permanent disability. The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. In order to be entitled to disability benefits, one must be permanently and total disabled—that is, they are not able to achieve Substantial Gainful Activity (SGA) because of a severe impairment that hinders their ability to work. A person who is earning more than a certain monthly amount is ordinarily considered to be engaging in SGA. The amount of money considered SGA changes each year based on inflation and the cost of living in the current economy, and is determined by the federal government. Substantial Gainful Activity for the FY 2019 is $2,040 per month for individuals who are blind, and $1,220 per month for individuals who are not blind. If an individual’s earned income is greater than that year’s substantial gainful activity amount, they are not entitled to disability benefits and will automatically be denied.

How does the Social Security Administration determine if a person is disabled?

The Social Security Administration (SSA) engages in a 5-Step sequential evaluation process to determine if a person is totally, permanently disabled and is entitled to some type of disability benefit. The steps are:

  1. Has the claimant been working?
  2. Does the claimant have a severe, medically determinable impairment?
  3. Does the claimant meet or equal a listed impairment?
  4. Is the claimant capable of performing their past relevant work?
  5. If the claimant has no past relevant work, or is incapable of performing their past relevant work, are they capable of doing other work available in the national economy?

Question 1 goes to eligibility. If the claimant is working, SSA will want to know if they are achieving SGA. If they are not, they will move on to Step 2. If the person is achieving SGA, they will be denied.

Question 2 considers whether the person has a severe impairment, or combination of impairments, that significantly limits the individual’s physical and mental ability and, as a result, interferes with the individual’s ability to perform basic work activities. The impairment must have more than a minimal impact on the ability to sustain employment, otherwise it is not severe.

Question 3 considers whether the person’s impairment meets one of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The Code of Federal Regulations contains a list of impairments considered severe enough to prevent an individual from doing any gainful activity. The listings contain impairments physical and mental, and cover each major body part, organ, or function. If the person has a listed impairment and meets the severity level outlined in the Code of Federal Regulation, they will be approved for disability benefits.

Question 4 considers whether the person could return to a job they have done in the past. They make this determination by comparing the individual’s current Residual Function Capacity (RFC) and Mental Residual Function Capacity (MRFC) with the RFC and MRFC required for the job they once performed. The RFC and MRFC required for individual jobs is based on the Dictionary of Occupation Titles (DOT), which lists the physical exertional level and mental capacity needed for thousands of different jobs available in the country. When comparing to jobs the claimant has done in the past, SSA looks at the person’s previous 15 years of work history.

Question 5 is a catch-all. If the Social Security Disability Examiner assigned to an individual case reaches Step 5, their job is to determine whether the individual can do any job listed in the DOT to the level of substantial gainful activity. If there is a job in the national economy that the individual can perform to the level of SGA, they will be denied disability benefits. If there are no jobs in the national economy that the individual can perform to the level of SGA, they will be approved and begin receiving disability benefits.

What is the SSD application process and how long does it take?

The Social Security Disability application process is known for being long and frustrating. It can take years to win disability benefits if the person does not know what evidence to provide, what legal arguments to make, or how to prove disability. The basic process consists of “levels.”

Initial

A person first starts with the initial application (Initial). The initial application can be filed in-person at the local Social Security Office, over the phone, or online. It typically takes three to six months to get a decision after an initial application is filed. At the initial level, the Social Security Administration (SSA) will assign a disability examiner from the local Social Security Office (Disability Determination Service-DDS) to review the case. The examiner will get the person’s medical records, employment records, and review the case to determine if the person is disabled under the 5-step evaluation process described above. If a person is denied at the initial level, they have sixty (60) days from the date of the decision to appeal to the next level. The average national rate of approval for initial disability claims is 36 percent.

To file an initial application, you can use the Social Security Administration’s Form SSA-16.

Reconsideration

After a person is denied at the initial level, they appeal for Reconsideration. The reconsideration level allows the claimant to have the case reviewed by a different DDS examiner, and see if the first examiner made a mistake in making their decision. New evidence can be submitted, and will be reviewed by the new examiner, but unfortunately, the majority of cases result in the same decision being made at reconsideration as was made at the initial level. If a person is denied at the reconsideration level, they again have sixty (60) days from the date of the decision to appeal to the next level. The average national rate of approval for reconsideration disability claims is 14 percent.

To appeal an initial denial to the Reconsideration level, you can use the Social Security Administration’s Form SSA-561.

Hearing

After a person has been denied at the reconsideration level, they can appeal for their case to be heard at the Hearing level by a Social Security Administrative Law Judge (ALJ). A social security disability hearing is the claimant’s opportunity to go before a Judge and plead their case. It is the best chance a person has to win disability benefits, with national approval rates of approximately sixty-two-percent (62%) at hearing. However, these hearings can go poorly if the claimant does not understand the hearing process or understand what the judge is looking for in terms of evidence and information. There is a core group of people at every disability hearing: the claimant, the Administrative Law Judge, the hearing monitor, and a vocational expert. An attorney will also be in the room helping the claimant through the hearing process if they have hired a disability attorney. Additionally, the ALJ can order that a medical expert be present.

Each person in the disability hearing has a specific role. The hearing monitor is just that—a person who records and monitors the hearing, creating a detailed and exact record of everything that is said during the hearing. The claimant’s role is to answer the ALJ’s questions completely and honestly, and explain to the judge why it is they are not capable of working to the level of SGA. The attorney’s role is to make legal arguments to the judge, and explain to the judge why it is the claimant is disabled and unable to work to the level of SGA, or why the claimant meets a listing in Step 3. The judge’s role is to be a neutral fact-finder and apply the social security rules and regulations to the specific case, and determine whether the claimant is disabled under social security’s standards. This, however, is not typically the feeling a claimant gets in the hearing. It is commonplace for the ALJ to begin asking the claimant questions and often take on the role of an opposing attorney, arguing and questioning claimants on behalf of the opposing party—the Social Security Administration. A disability attorney can be beneficial in this situation. The vocational expert is the “job expert” in the hearing. They review the claimant’s work history and classify the physical exertional level and mental capacity required for the claimant’s previous jobs in terms of the Dictionary of Occupational Titles (DOT). They then answer hypothetical questions posed by the judge and assist the judge in finding jobs within the DOT that the claimant is capable of doing despite the limitations they have because of their disabilities. Lastly—if a medical expert is present—their role is to summarize the claimant’s medical records in a way that is easy for everybody to understand. They then offer their expert medical opinion and testify as to whether the claimant is disabled under the social security rules and regulations.

Throughout the hearing, the ALJ is gathering factual information that he can use when applying the social security rules and regulations to see if the claimant meets SSA’s definition of disabled. The judge will look for medical and vocational evidence that the claimant is unable to work to the level of SGA, and will consider medical records, medical opinion evidence, vocation evidence, work history reports from employers, claimant statements, family and friend statements, and consultative exam reports, among other things, to make this determination. After the hearing, it usually takes four to eight weeks to get a written decision from the judge in the mail. The entire hearing process takes anywhere from eight to fourteen months, about one year on average.

To appeal a reconsideration denial to the Hearing level, you can use the Social Security Administration’s Form SSA-501.

Post-Hearing

A claimant can appeal an unfavorable decision from an ALJ to the Appeals Council (AC) in Virginia. Every appeal from a disability hearing in the entire country goes to the same office, which yields a slow turn-around for decisions from the Appeals Council. Typically, a decision from the AC takes a minimum of one year, and up to several years. No new evidence can be submitted to the AC, and the Appeals Council will only look for legal errors made by the Judge. This means that the Appeals Council will not overturn a Judge’s decisions simply because they disagree with it. The decision will only be overturned if the Judge made a legal error in making his or her decision, and it needs to be corrected either with a new hearing or with a reversed, fully favorable decision. Nationally, about seventy-two-percent (72%) of cases are denied at the Appeals Council. Approximately twenty-two percent (22%) of cases are remanded to the same ALJ for a new hearing to be conducted. Additionally, about three–percent (3%) of cases result in the AC issuing a favorable decision, and about three-percent (3%) of cases are dismissed for failing to appeal within the sixty-day deadline. Essentially, getting an ALJ’s decision overturned is rare, and typically results in an additional denial.

While it is not required that a claimant be represented throughout this process, it is highly advised given the complicated law that needs to be applied and the level of sophistication needed to properly conduct a productive hearing.

How do Veteran’s Service-Connected Disability Benefits affect Social Security Disability?

How a veteran’s service connection affects his/her social security disability benefit eligibility depends on the program they are attempting to collect social security disability benefits from.

SSDI Eligibility

A veteran’s service-connected disability benefits does not affect the veteran’s social security benefits because the eligibility criteria for the SSDI program are based on work history and not financial resources and income. A veteran is able to collect veteran’s benefits at the 100% rating ($3,000+), and collect SSDI benefits for him/herself and their dependent children.

SSI Eligibility

A veteran’s service-connected disability benefits could make them ineligible for SSI benefit eligibility. This is because the Supplemental Security Income program is based on financial income and resources. A veteran that has a fifty-percent (50%) or higher disability rating will not be eligible for the SSI program because they will have financial resources above the income guidelines discussed above. Additionally, a veteran with many dependents (spouse, kids, and parents), may be ineligible for SSI even at the forty-percent (40%) rating.

Disability Entitlement

Many people believe that if they are service-connected through the VA they will automatically receive social security disability benefits. Additionally, many people believe that is they are collecting TDIU through the VA; they will be approved for social security disability benefits. This is not true. The VA and SSA are two completely different programs, and proving disability for SSA is completely separate from proving disability for the VA. Even if a veteran is considered disabled and service-connected through the Veterans Administration, they must convince SSA they are disabled as well, and SSA does not consider their VA status.

If you believe you are eligible for Social Security Disability benefits and would like assistance proving disability, please contact an Operation Stand Down Rhode Island Social Security Disability attorney at (401) 383-4730.

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ABOUT THE RHODE ISLAND VETERAN TREATMENT COURT

“NO SOLDIER LEFT BEHIND”

The first Veterans Court in New England opened its doors for referrals in the District Court in April 2011. The designated calendar, which was initially part of a pilot program funded through a SAMHSA (Federal Department of Substance Abuse and Mental Health Services) grant, was designed to direct veterans, diagnosed with trauma related disorders, into a court program which integrates support and treatment plans with the judicial process. It is intended to divert the offenders away from incarceration while providing appropriate rehabilitative alternatives.  For more information on programs related to the SAMSHA grant that are on the District Court Pretrial Services webpage, please click here.

Recent statistics indicate close to 1.7 million Americans have served in Iraq or Afghanistan. While a significant number, nationwide this is less than one-half of 1% of our national population. Rhode Island has given more than its fair share to those statistics. The call back of our own National Guard is the 2nd highest in the entire United States. As of September 30, 2010, the number of veterans living in Rhode Island who served in the Gulf Wars is three (3) times the national per capita average.

Most of these veterans, amazingly, return home and successfully reintegrate into the fabric of society. There is, however, and increasing number of individuals who are not able to successfully do so. Studies now indicate that one (1) in three (3) returning will exhibit some symptoms of mental illness. Of course, not all of them will wind up in the criminal justice system.

The Rhode Island District Court is in a unique position to take on the responsibilities of a Veterans Treatment Court as a designated calendar to which these veterans can be referred. The District Court is the threshold to our Rhode Island criminal justice system. Defendants charged with misdemeanors and felonies first appear in District Court for an arraignment. The District Court sets bail at the arraignment, sets the conditions of bail, and through the Pretrial Services Unit, the court monitors the compliance of those conditions. The District Court has an extensive collaborative network for referrals for substance, alcohol, and other behavioral issues. In excess of 40,000 new criminal cases are processed each year in the District Court.

Mission: As a problem solving court, the mission of the Veterans Treatment Court is to successfully rehabilitate participants, on a case-by-case basis, by providing the tools and skills necessary to address veterans’ unique challenges to reintegrate successfully into society and to maintain a productive and law abiding lifestyle within the community.

Goals of the Veterans Treatment Court:

  • Reduce criminal recidivism.
  • Recognize and treat unseen/invisible injuries resulting from combat or other trauma/service-related conditions.
  • Facilitate productive reintegration into community.
  • Increase compliance with court ordered conditions.
  • Successfully address behavioral health issues.
  • Promote accountability.
  • Balance needs and expectations of maintaining a safe society with appropriate treatment and rehabilitation.

 

https://www.courts.ri.gov/Courts/districtcourt/Pages/VeteransTreatmentCourt.aspx

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