Social Security Disability benefits are predicated on whether or not you can perform Substantially Gainful Activity (SGA), so it makes sense that a disability blog should define that a bit better and provide examples.
Defining Substantially Gainful Activity (SGA)
Social Security bases their definition of disability on your ability to work (or perform tasks like working) that do or could, earn you more than the current monthly income threshold. If you make more than that threshold, you are not seen as warranting disability compensation benefits by the Social Security Administration. You can appeal these determinations.
This can be a bit of a tricky calculation, but here are the basics. If a wage or earnings are not made, the work is not gainful. However, if you do perform some form of activity for pay, then it is considered gainful as long as the expense of doing so is less than the income you receive.
Social Security Administration Definition of Gainful Activity
Work performed for pay or profit; or
Work of a nature generally performed for pay or profit; or
Work intended for profit, whether or not a profit is realized
It is possible you can perform activities that you might do on a regular basis that would require significant physical or mental abilities. These activities could be the basis for employment, as such the value of the activities could potentially factor into the income calculations of an SSI claim.
Example: HR Professional in Spokane
Jane has been an HR professional in Spokane for 20 years. Over the last 5 years, she’s had to reduce her hours significantly due to complications from diabetes. She’s now working about 10 hours per week, earning $15 per hour.
Wage Earnings: $150/week ($600/month)
Jane is unable to work more than this due to increasingly impactful complications. Her employer has made accommodations, including flexible scheduling, work from home, and other allowances. But due to her disabling condition(s) Jane is unable to increase her gainful activity.
The value of Jane’s gainful activity is $600 / month (minus certain expenses). Jane would be eligible for disability due to her inability to meet the SGA monthly income threshold, and her inability to perform supplementary and/or alternatives tasks that would otherwise be substantially gainful.
Example: Car Sales Professional in Spokane Valley
Alan is a car salesman in Spokane Valley. He had a heart attack 3 years ago and has only been able to work part-time since then. He makes about $500 per month working part-time sales.
Wage Earnings: $500/month
When Alan is not working at the car lot, he helps his sister with her home business by answering phones, filing papers, and responding to emails. He does this about 2 hours a day or so.
Non Earning Activity (2 hrs/day) = 40hrs/month
Although the activity Alan performs for his sister’s business is not paid, it is substantial activity that could potentially fetch a wage in the economy.
The Social Security Administration determined that in addition to the $500/month Alan was earning at the car lot, the value of his work demonstrated substantially gainful activity and thus he was not entitled to the disability benefits he sought.
For some, the concern about the cost of a great social security disability lawyer stops them from ever even picking up the phone to find out. We would all love to have the best disability attorney that money can buy, right! But, we all remember that line, “you get what you pay for…”
Would you believe though, that in the world of Social Security Disability Lawyers, that’s not how it works at all?
You Can Hire a World-Class Social Security Disability Lawyer
That’s, right. Whether they are a 5-Star, world-class Social Security Lawyer, or a brand new graduate from law school. We know you can afford them because as an industry, we all charge the same thing. And that’s been codified in law.
All Social Security Disability Lawyers Charge the Same Fees
Social Security Disability lawyers work on contingency. This is different than other types of law, or lawyers who you might hire on a retainer like basis. By this, we mean, many people often have a concept of lawyers being like an investment. You pay into them, sometimes a lot of money, and they’ll either save you money (in mitigated costs) or earn you money (in lawsuit $) in the long run.
This couldn’t be further from the truth with Social Security Disability Lawyers, and that’s probably a good thing. Remember, with SSI claims, claimants are in situations where they are asset restricted. Meaning, there is a maximum income and asset profile for these benefits. Even when talking about SSDI claims, most often claimants don’t have the personal assets to retain an attorney.
Fortunately, for the purposes of appealing a Social Security Disability claim, it costs you $0 to hire an attorney. Whether they are the best, the worst, or someone in-between… it costs the same.
The Best, The Worst, Someone In-Between
The fact that Social Security Disability lawyers earn a living on contingency of getting your claim awarded, puts you as the claimant, and the consumer in an advantageous position. You can shop around and find the right fit.
Since all of the firms cost the same, you get to figure out which one you’d rather work with. Don’t take too long though, as your claim/appeal is very depended on making sure many things are done in the proper order and within their respective deadlines.
So, How Much Will A Social Security Disability Lawyer Cost Me, and When?
We don’t want to mislead you in believing representation won’t have a fee. It will, if we win. But being that the fee is contingent upon a successful outcome, it will fall within a range depending on your claim. That range, however, is capped at $6,000.
So, let’s start with that cap. The most you’ll ever pay for Social Security Disability representation, if successful on your appeal, is $6,000. And that $6,000 will most likely be deducted from your bulk payment award.
But…What if My Back Payment is Less than $6,000?
That’s an excellent question. The cap as discussed above is in reality a maximum fee. You would not be paying that unless you had a back payment greater than ~$24,000. This is because the fee for all claims is 25% of the back payment award with the cap being $6,000.
Break it Down for Me
Scenario #1: Let’s say you are awarded on appeal for 18 months of back-payment for an SSI Claim. Your award will be in the ~$18k. The fees charged for your claim will be based on 25% of your award. $4,500 (out of the award – not out of pocket)
Scenario #2: Your claim is awarded on appeal and you will be getting approximately $5k in back payment. The representation fees will be based on 25% of your award: 25% of $5k = $1,250 (out of the award – not out of pocket)
Scenario #3: Your claim is awarded on appeal and you will be receiving about ~$80k in back payment. The representation fees will be based on 25% of your award but they will be capped at $6,000. Attorney’s fees = $6,000 (out of the award – not out of pocket)
If you’re wondering why Social Security denied your disability when your doctor soundly believed that your ailments were disabled…you’re not alone! That may offer some relief, but now that you’ve been denied (or were denied some time ago), you need to get ready to take another look at your application for social security disability.
Whether you’re re-applying for disability or filing an appeal with a disability appeal lawyer, you probably want to know what led to the miscommunication or outright disconnect between your doctor and the Social Security Administration.
To help you with this, we compiled the most common reasons we have noticed that Social Security denied claims against doctors’ opinions – for our social security disability appeal clients in Spokane, WA.
Your Doctor Didn’t know How to Communicate your Disability to Social Security
This reason is so common that we should write a whole article for the purpose of talking to doctors about how to communicate with Social Security (and the VA). The point here is that in almost every case doctors practice medicine, not law. And while your disability is a medical condition, the benefit – and process of obtaining it – is a very legal process.
Imagine you’re taking your car into a shop because it is misfiring.
You have someone that’s willing to pay for the repairs, but they need to know how it’s misfiring so they give you a form that says, “please describe what’s wrong with the car.”
You show up to the shop and ask the mechanic to fill out the form, and without context, the mechanic looks at the form and examines the car. On the form the mechanic accurately describes what’s wrong with the car:
“The car’s tires are 40% worn, they need to be rotated. The car needs an oil change. Windshield wipers need to be replaced. Rear window is cracked. Electrical issues – radio doesn’t work. Transmission needs service. Car Idles rough.”
Technically the mechanic answered the questions. But when you turn the form back in to get the repair $, your benefactor says, “I looked at the mechanics response, the problems with the car are generally superficial and are what you can expect from a 20 year old car, there’s no mention of a misfire, I’m denying your repair”
“Why,” you wonder? The reason, without context the mechanic had no idea what to focus their report on. They didn’t necessarily know that you needed to have that one item assessed. They didn’t know how their report would play into the overall discussion. Had they known they might have written something to the effect of:
“vehicle has wear and tear in a number of places, however, there is a critical misfiring causing a rough idle and imminent breakdown.”
Both statements are true – but in one the mechanic didn’t have context, and in the second one the mechanic knew the context.
This happens more often than you can believe! And it’s not only Social Security disability that this occurs in, VA claim denials are famous for this situation. A doctor will describe a constellation of issues, but not focus on the issue that is material to your disability claim. As such, it can create predictably poor results.
Your Doctor (or you) Didn’t Get Your records to Social Security Fast Enough
At every step of the Disability Application and Disability Appeal process you are under a ticking clock. You have timelines you have to hit, and the system will not wait for you. From the SSA’s (Social Security Administration) perspective, they have tens of thousands of cases to assess and to keep the process moving forward they have to decide or decline by a standard deadline date.
A side note to this reason is that if you missed timelines as a result of a disability of yours, that would be something you’d want to be documented in your reconsideration/appeal. You might also want to get help in filing those, as you don’t want to have the same problems at that point. If your doctor missed timelines, that’s going to be something that needs to be addressed too. A great advocate or local disability lawyer is great for this.
Your Doctor Never Even Met You
Be honest.. did you show up to your doctor appointment(s)? Did you know you had doctor appointments? Were you aware that the SSA might try to get ahold of medical records for the care you received (or sought to receive) on your conditions? In some cases, applicants have a pattern of not showing up to doctor appointments, even critical doctors appointments set by SSA for the purpose of evaluating your disability.
This is common enough of a problem that we had to cover it. It also means that you probably need some additional help when you file your new application or appeal. If you need someone to remind you, provide you transportation, give you motivation and a helping hand – reach out to them and ask for help. We don’t mind providing reminders either!
You Gave Your Doctor Confusing Information
This is in the same arena as the mechanic story above. If you’re not clear about why you are seeing your doctor, they may not be clear about what you are needing.
Also, confusing statements that appear to contradict your claims occur very often in medical records. Consider the simple question, “how are you today?”
Do you even think before answering this question? Most people don’t – it’s become a salutation like, “hi” and “hey.” You probably get asked some variation of this question at least 4-5 times a day without giving it a second thought. Here’s the issue…
If you’re filing a claim for Social Security Disability, there is likely some aspect of your health that is not “fine” – “good” – or “grand.” And you need to be deliberate, honest, and accurate in answering that question and others like it when speaking to a doctor, or a judge.
Your Doctor Isn’t Necessarily an Expert in Your Ailments
We use terms like “doctor” or “lawyer” in generic ways. However, like lawyers, most doctors have specialties. For instance, a dermatologist has a different specialty than a neurologist. There’s a lot the two will have in common, including a great understanding of medicine. However, one is far more prepared to give testimony on skin issues whereas another is better for brain issues.
A general practice physician may not be able to provide enough information to declare the limits of your abilities or disabilities if they’re very specific. Ideally, a specialist can provide a more thorough diagnosis and prognosis. If your only medical testimony is from a doctor who doesn’t specialize in your challenges, you may be reliant upon the judgment of an adjudicator at the SSA.
On That Note…
You probably want to work with someone who knows disability and disability law if you’re in a situation where you have already been denied benefits. A social security lawyer is different than a family law lawyer, or a tax lawyer, etc. In this manner, a social security lawyer in Spokane is different than one halfway across the country! If you’re going to consult a lawyer, make sure they have experience in Social Security Law, and that they are actuallylocated nearby.
If you’re looking for a Social Security Lawyer in Spokane, WA or northern Idaho here’s a checklist of five things to consider.
Are they actually located in Spokane?
Are they Connected to the Community of Spokane?
Do they Help You to Understand Your Social Security Claim?
Are they an Expert
Are they Approachable?
Are they actually located in Spokane?
These are perfectly legitimate question to ask any lawyer your considering working with. Where are you located? Can I visit you if I have questions? Can we schedule a time to discuss my case?
It may surprise you to discover that some law firms that advertise in the Spokane area are not from Spokane at all. In fact, they only rent an office space, just to have a local address. Shocking, but we covered these types of misdirection in another article, here.
Are they Connected to the Community of Spokane?
One of the biggest benefits to working with a local Social Security lawyer is that you benefit from the connections they’ve made in their work. It’s very common that someone seeking the help of a Social Security lawyer has other support needs that are a natural handoff to someone who has a robust local network. An excellent local law firm will have a list of, or at least referrals to, other excellent firms and resources available at request.
Do they Help You to Understand Your Social Security Claim?
It’s very important that you consider the commitment a local law firm places in helping you to understand your Social Security claim. The process of appealing SSI & SSDI denials can be confusing, and it can be frustrating. A great blog & newsletter might seem small when you’re first looking into representation, but these will be the first places you look when you want to know more about something like a reconsideration denial.
In a not so subtle way, a firm that commits to educating their clients is a firm that will be committed to bringing them along every step of the way. So…take a look at that blog & newsletter. See if it helps you understand your situation? Does the firm demonstrate awareness, understanding and expertise in the way they break down the things you don’t know?
Are they an Expert & Are they Approachable?
Ok, this is a two-part criteria, but you’re aiming to find someone that is both of these at once. An expert that is unapproachable is not going to help you understand your claim. And an approachable novice is a novice nonetheless.
They say there’s no substitute for experience, and it takes time, commitment, and success to gain that experience.
As for approachability, take a look at the videos on the lawyer’s website. Look at their social media pages, and check out the reviews. You’ll get a “gut” sense pretty quickly about whether that lawyer is someone you can relate to, trust, and share your story with.
How Lilac City Law Stacks Up to this Criteria
Now that you’ve seen our list, take a deeper look at our firm.
If you’re in the process of applying for Social Security Disability, or if you’ve already applied and are looking to get a bit more help for an appeal – then the following criteria can help you select the best Social Security lawyer for your case.
Work With Someone That Makes You Comfortable
The first and maybe most important factor in picking a Social Security Lawyer is overcoming the initial fear factor of reaching out for help.
Let’s be honest, most of the time the first person called is the attorney with the commercial on TV or that website that shows up on the top of Google. However, as we’ve learned in our firm, a lot of clients gravitate towards representatives that can understand them. For instance, if you’re seeking to claim PTSD and already apprehensive about reaching out for help, getting someone on the other end of the phone that has an imposing persona very easily could lead to trouble at many points during the claims process.
A Social Security claim or appeal can be complex, it’s very important that you have confidence in your lawyer, but also that you have the impression that you can communicate with them or their office without worrying about how they might view, judge, or aggravate your impairments.
Be careful to choose a lawyer that doesn’t intimidate you in any way. You’re going through a tough enough process, keep the barriers to your relationship low and the trust factor high.
Trust w/ Your Social Security Lawyer
The things that generate trust vary widely from one person to the next. However, there are some basic principals that everyone can rely upon when determining if a given Social Security Lawyer is trustworthy.
Ratings & Reviews
Avvo is a great tool for getting straight-forward ratings and reviews of attorneys. They have a proprietary ratings system and review system that they claim can’t be gamed. This is very important, and as you can imagine, review and rating stuffing is common and sadly something that erodes confidence in any rating system.
In addition to Avvo, Google provides a great system for getting reviews of all sorts of lawyers, including disability lawyers. If you do a search for disability lawyers near you, or for a specific disability lawyer, you will likely see their Google ratings & reviews pop-up next to their listing. This is a bit more crowd-sourced than Avvo but is a very valuable tool for both selecting a great disability lawyer, and for reviewing them after you’ve worked with them. Here is an example of ratings and reviews using Google.
The internet has been around for a while at this point. As have digital cameras. The old saying “a picture is worth a thousand words” is just as true today as when it was coined. In fact, it might even be truer today than ever. Consider how a picture helps to establish rapport and trust.
You want a disability lawyer that shows you they know what they’re doing. They are respectable and respected. And they will be the best champion for your fight, right? That’s why every attorney, doctor, consultant, author, etc. has a professional picture of themselves somewhere on their website. But one of the biggest problems is that pictures can (and are) staged. However, an authentic video is much harder to fake.
Check out the prospective disability attorney’s Facebook and YouTube channels. First off, do they even have social media at all? And on those channels, see if they have videos sharing insights, talking to clients, answering questions. Sometimes these videos will also be on the lawyer’s website or blog as well.
Watching how the lawyer answers questions will give you a lot more than a picture – at least in helping you to build an idea of who they are and how they communicate.
Ask yourself, “is this someone that can communicate my challenges, is this someone I can communicate my challenges to?”
A short video will usually give you an enormous amount of insight into answering those questions.
When seeking insight into a disability lawyer’s persona don’t forget to look at the extras on their website. Blogs, especially, will tell you how committed they are to sharing information with you.
Is their website a bunch of short questions with hooks at the end of each one? If so, how does that help you, as a potential client, to understand the processes involved in your claim? Alternatively, do they have a wealth of information about all aspects of your claim, and questions you hadn’t even thought to ask yet in their blog or newsletter? Six months from now when you’re wondering what your chances are of succeeding, this might be exactly what you need to keep your spirits high.
A blog may not be what you initially thought of when thinking, “how do I pick a Social Security lawyer,” but now that you’re in the search, take a look around and see who’s keeping their clients and future clients informed and who’s just fishing for the next client.
Would you rather be a big fish in a small pond or a small fish in a big pond? Think about this for a moment.. this is something that can help you to identify what type of disability lawyer or disability law firm to work with.
One might argue that a huge firm with many thousands of cases is big because they are good. They certainly have the advertising budget to portray that success. However, the continued existence of many hundreds, or even thousands, of community disability lawyers fly in the face of that sentiment. At the end of the day, you can deal with one bureaucracy (huge firm) to fight another one (SSA), or you can work with a personalized firm who remembers your name when you call.
It comes back to that question, big fish or small fish? The small fish sometimes has a hard time being heard.
In response to the big fish/small fish question, you do, at some, point want to consider how responsive your disability lawyer will be to your unique needs. Hint, they have to recognize that you indeed do have unique needs in the first place.
Like a Dr. Office, it’s probably not reasonable that the attorney can stop immediately talking to one patient (client) to take a call from another. That’s why staff and client liaisons exist. However, it is reasonable and should be necessary, to have an attorney that is available to talk, within a reasonable amount of time.
Can you call the firm and get a response from the attorney in a reasonable amount of time? Can you schedule a time to actually come into the firm and talk to the lawyer that’s representing you? Not everyone can…
Being able to communicate, even briefly, is something you’re going to want to do as a disability hearing approaches.
During the course of your claim (or appeal), there will be curveballs thrown your way. Whether those curveballs originate from within the claim itself or they happen to come from directions yet unseen, you want someone on your side that “knows someone.”
One of the best things about working with an experienced and established disability lawyer is that you’re also working with their network. A good lawyer doesn’t gain experience by being an island unto themselves. They often work with partners in similar fiends to increase the effectiveness of their own services.
To you, the client or future client, this means – that when that curveball arrives you can ask for referrals, assistance, resource information, and things like this. Or rather, you should be able to. Unfortunately, this also relies on the idea that your disability lawyer is local, which as we know from previous discussions, is just not always the case.
You bet it does! Though it comes down to the severity and how PTSD presents on a daily basis. We’ve covered the chances of you getting a successful claim through the initial filing process before, and I suspect that some of the reason this question gets asked is that it seems mental health challenges are often mischaracterized in disability reports. To assess the situation from a wholistic perspective consider the following five questions.
How are you sleeping?
If the answer is anything other than, “I get a decent amount of sleep” .. then, you, me, and everyone (SSI/SSDI) needs to know why?
Are you having nightmares, insomnia, lack of consistency, where are you sleeping? Do you need special equipment to sleep? A fan for white noise, the TV turned on, a CPAP machine.
Bottom line, if PTSD is causing trouble sleeping or being made worse by lack of sleep, it has an impact on your health and employability in many different areas.
What motivates you?
It seems a basic question, but this is something that cuts straight to the heart of PTSD and other mental health challenges.
Are you distant, non connected, ambivalent towards goals? Are you hyper focused on a certain subject?
Any of these could be “normal” in the right circumstances, but experiencing PTSD can change the balance of “normal” for anyone.
What do you do for recreation?
This doesn’t necessarily mean, “what do you do for fun,” but you can think about it like that.
If you can’t really answer this question then ask yourself what did you do in the past for recreation? Did you find it enjoyable or fun then? Do you do it now, and if you do, do you get enjoyment from it?
Many times with PTSD a fear of social engagement, or triggers, will cause people to stop doing activities they once found enjoyable. If you can’t engage in recreation, or other enjoyable activity, there’s almost certainly an impact to your ability to work. Clearly, a lot to your story needs to be told.
How do you cope?
Let’s start by dismissing coping as good or bad. Everyone copes with challenges everyday. Being able to identify and put into perspective the level of coping is key in making a compelling description of how PTSD impacts your life.
Coping can almost be anything, some people cope through working out, for instance. But if you’re working out 12 hours a day and your marriage fell apart, and your finances are a mess – it’s obviously become more of a hinderance to your overall state of being than it has a help. The same can be true for alcohol, drugs, excessive sleep, risk taking behaviors, isolation, aggression, social media, eating, the list is endless.
So how are you coping with challenges brought on by PTSD?
Do you have a diagnosis?
Do you believe you have PTSD but you haven’t received a diagnosis? Do you believe you were misdiagnosed? In your opinion did an examiner not ask the right questions to be able to adequately determine if you experience PTSD, and perhaps the level of impairment you might have?
Sometimes this can all be placed in the fact that you might not have PTSD…per a clinical definition. That doesn’t mean though, that you aren’t experiencing clinical anxiety, depression, intrusive memory or hallucinations, ADD, or any number of other symptoms that in themselves are diagnosable mental health conditions.
Sometimes, we focus on labeling too much and not enough on the challenges presented by what we’re experiencing. If we expand the label outwards a little, there may be similar diagnosis that would better match the conditions you might be experiencing.
The Last Question: How Can you Best Tell this Story?
The surprising thing most people don’t know about “ local ” Social Security disability law firms.
Imagine you want to go to school. You go online, and see there’s a local campus in your city. After some searching you can’t find the hours the campus is open, so you give them a call. They answer quickly and are very friendly. They get your info and send you all your application papers. You fill them out and return them in the pre-stamped envelope provided to you. All is great.
Well it seems great, but now you have a question. You want to know if you can meet with your instructor before class starts. You aren’t sure about the class you’re going to be taking. So you call.
The nice person on the other side of the phone says they’ll have the instructor call you back. But you don’t want a call back, you want to meet with them. You’d like the ability to sit down face to face with them, if possible, before class starts.
It’s only at this point, after much insistence on your part, that you find out from the school that the instructor doesn’t actually live in the area. In fact, the school itself is in another state. All of your work is going to be done remotely, and you might never even talk to the instructor until your final test date. They (the instructor) will fly in a couple hours before your test, answer any questions you have, then give you the test. Don’t worry though, you can always talk to the someone from the school – over the phone, of course..
Maybe this scenario is a little silly, there’s almost no industry where this actually happens. Well “almost” is the key word. Let’s take this story and change a few things around. And in so doing, reveal the secret implied in the title of this article.
The Big Secret..
Instead of a school, let’s say you’re looking for a disability attorney. And instead of an education, let’s say you want to successfully appeal a denial of your disability claim.
In this revised story, you have a disability denial and you called a disability lawyer in Spokane. You signed up to work with them, and when you had a question about your disability claim you called the local office. Only through your insistence to meet with your social security lawyer did you find out they didn’t actually have an office in Spokane. Nor in Idaho, or anywhere in the Inland Empire.
The Spokane Disability Lawyer you found online actually only has a rented space, with a rented receptionist. Guess what? The boss will never be in.
With the exception of an occasional phone call, you’ll have a completely virtual experience with your disability attorney.
At this point you should know that all disability lawyers charge the same amount. It’s set by law. So if cost is thrown out of your decision tree, what would be the big reason for going with an out of state attorney vs one close to home.
We take a lot of pride in being part of this community. As your actual “local” disability attorney we have all the knowledge and experience of the out of town firms with the added benefit of being here for you anytime you have a question.
Give us a call, or stop by and find out why when you work with us, there’s no surprises.
Most people look at military discharges as a two way street. Either your career went one way and you received and Honorable Discharge, or it went another way and you received a Dishonorable Discharge. In reality, there are many different discharge characterizations and each of them entitles you to a slightly different mix of benefits or resources.
It would help to first cover the types of discharges and the reasons you might have received these discharge characterizations. To begin, discharges are broken up into Administrative and Punitive.
An administrative discharge is “run of the mill.” It is a standard discharge that didn’t require any additional actions, other than your fulfillment of your initial service contract requirements. Within the scope of Administrative Discharges are…
An honorable discharge is the most common type of discharge among Veterans. Simply put, a Veteran with an Honorable discharge fulfilled all the terms of their contract in an honorable manner. They showed up, met their physical and mental requirements, and their service record isn’t populated by a lot of misconduct. Service members with an Honorable Discharge are eligible for most/all Veterans benefits through the VA and shouldn’t have restrictions in receiving service connected disability compensation and Social Security disability if they rate either or both.
A General discharge is also known as General Under Honorable Conditions. This is what you would receive if for some reason you were not able to complete the terms of your original service contract. Having to leave service for a hardship, family reasons (pregnancy), inability to serve (but not misconduct or medical), and other similar reasons are the usual backgrounds of those who received this type of discharge. A General discharge qualifies Veterans for most benefits; however, some education benefits can be a challenge with this type of discharge. Most important to what we do at Lilac City Law, you can receive full service connected compensation and Social Security, if you qualify, with a General discharge.
Other than Honorable
Other than Honorable Discharges are also known as OTH’s and General under Other than Honorable Conditions discharges. They may also be referred to as Undesirable discharges. These are tricky in that it can be very dependent upon when someone served as to whether their conduct would have rated an OTH vs a Bad Conduct Discharge. We’ll cover Bad Conduct Discharges in a moment. The reasons a Veteran may have received an OTH always come down to some sort of misconduct. Most often the misconduct was not so severe that it warranted a Court Martial – and thus a punitive discharge. However, it’s common that Veterans will take a ‘plea’ deal in a Court Martial in exchange for an OTH. OTH’s are common for service members with patterns of misconduct: minor assault, substance abuse, domestic violence, attendance, failure to adapt, etc.
If you are a Veteran with an OTH, you might be able to receive service connected compensation for a disabling injury or illness. However, the VA determines that on a case by case basis. And YES you do get a right to appeal their decision if they determine the facts of your situation incorrectly. If you are not entitled to compensation, and your injury is service related, you are still entitled to limited health care for those service connected conditions through the Veterans Health Administration. You may also be entitled to Social Security and disability benefits.
Lilac City Law advocates on behalf of the disabled in their claims for for Social Security Disability and SSI
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Punitive discharges differ from administrative in that the only way to have received a punitive discharge is to have been convicted in a special or general court martial. We won’t go into the weeds on different types of courts martial; however, it is important to remember that a court martial was part of the process for receiving these discharges. As such, they can be understood and viewed as analogous to and through the lens of their civilian counterpart convictions
(misdemeanor = BCD / felony = Dishonorable).
Bad Conduct Discharge
Bad conduct discharges are also known as BCD’s and by various slang terms, e.g. “Big Chicken Dinner.” To receive a BCD a service member must have committed misconduct warranting either a Special or General Court martial.
BCD’s are usually received for misdemeanor type misconduct. Assault, theft, desertion/dereliction, etc.
If a former service member has a BCD from a Special Court Martial they still may receive health care support for a service connected medical condition as long as that medical condition was not the result of the action that warranted the BCD in the first place. Also, the condition can not be the result of something that occurred while being held for the Court Martial or while being AWOL (absent without leave). A former service member with a BCD may still receive Social Security and disability compensation from the SSA if they are eligible for these benefits.
A Dishonorable Discharge is by far the least common type of discharge from military service (less than 1%). It can only be the result of a general court martial, which you can equate to the civilian equivalent of a jury trial. Dishonorable discharges are the result of misconduct that goes beyond the scope of OTH and BCD. Generally speaking, we’re talking about felony type misconduct. Conspiracy, Fraud, Murder, Rape, Espionage, Drug Trafficking, etc.
A former service member with a Dishonorable Discharge is not going to be able to access benefits from the VA or most Veterans benefits programs. However, they may still be eligible for Social Security benefits if they meet certain requirements.
Uncharacterized and other Discharges
There are a number of discharges that don’t fit the scope described here. For instance there are a whole classification of discharges known as uncharacterized because they don’t fit the molds above. These would be fraudulent enlistment, entry level separation, and similar situations. Generally speaking these are case-by-case basis situations and are best covered in consultation with Lilac City Law (contact us here).
Also missed in this discussion are Reserve and National Guard discharges. This will be a distinction we’ll cover in a future article. For now, what you need to remember is that it is also a case by case situation; however, the basics are.. If an injury occurred the Reservist or National Guardsman were on duty, or on their way to or from duty, they may be eligible for service connected benefits.
Hopefully this has been helpful. If you’ve found it to be, please consider sharing this article with someone who could benefit from it.
Lilac City Law advocates on behalf Veterans in appeals for Service Connected Disability Benefits
You might have seen the Shared article we placed on Facebook earlier this month regarding the upcoming changes to the Social Security Administration medical Listings for neurological, respiratory and mental health impairments. The new Neurological Impairment listing updates became effective 9/29/16 and new Respiratory Impairment listings on October 7, 2016. The new Mental Health updates won’t become effective until January 2017. That said, really important changes have already occurred under the Neurological and Respiratory updates.
How these new Medical Listings Apply to You
For example, SSA has really broken down neurological conditions and diseases. Whereas certain disorders, like seizure related disorders, were all more generally lumped together, now different types of seizure activity are spelled out. The Disabled Individual claiming eligibility for SSA benefits has the burden to prove that their impairments preclude all substantial work. One of the ways to do this is by providing medical evidence demonstrating that the condition, like epilepsy, meets or equals these medical Listings. A keen eye to detail must be used when analyzing neurology and radiology records. A person with significant limitations due to their neurological disorder may be denied if the decision-maker is not paying close attention to these records in light of the new medical Listings.
Are you the type of person that likes to figure out how everything works? The type of person that seeks to try to first figure things out on your own? If so, you are not alone. A lot of (future) clients tend to work through the disability process on their own.. at first. You will likely have a better chance of success with a disability lawyer on your side up-front, but finding one that will help is difficult. Often, the initial claim is left to go its own way and the results are more or less predictable. It’s not your fault though, the system is not setup to make disability claims easy to obtain. If you’re like the majority, at some point you’ll ask your self, “when should I contact a disability attorney” or “when is it too late to hire a disability attorney?”
Let me try to answer that for you.
When you should Contact a Disability Attorney
As early as you can. You should not wait for a denial to contact an experienced disability lawyer. The risk in waiting for a denial is that when you are denied, you begin racking up due dates. The most important one being your appeal to the denial. If you want more direction on this, you should read, Your To-Do List for Social Security. If you wait too long to hire a disability attorney, you risk being too late to hire a disability attorney at all, at least on your appeal.
When It’s too late to Hire a Disability Attorney
Of course, attorneys exist because things aren’t perfect. You are navigating an imperfect system (Social Security) for a tough benefit to obtain (disability). Timelines get missed, mail gets lost, communication breaks down..so when is it too late to contact and retain a disability attorney?
If you want to know when it’s too late for your claim.. the answer is if your appeal period has lapsed. If you’re in the situation where the points made above don’t apply because you’ve already missed your timeliness, you’re probably already too late.
Even if you are past your appeal period though, you should still contact an experienced disability lawyer. There may be aspects of your claim that changes the situation or extraordinary circumstances that can salvage a claim. Alternatively, there may be a better route to pursue should you seek to go back again for another go-round.
When It’s Too Late…but It’s Not Too Late for Round 2..
Obviously seeking an appeal to a disability denial is the best course of action. But there are a lot of reasons why you might not be able to do this anymore. One reason often cited by clients is the “You Have to Apply Three Times” myth.
Whatever the reason, should your claim be beyond salvaging, you can apply again. A lot of successful claimants have applied several times. You wouldn’t be the first, and shouldn’t shy away from doing this if you need to.
The facts are that you cannot work because of an illness or injury, and you rate SSI or SSDI. You may just need a little extra help making the Social Security Administration understand this.
Lilac City Law advocates on behalf of the disabled in their claims for Social Security Disability and SSI
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