Citations:

Sections 809(a) and (b) of the Social Security Act

BASIC (04-00)

A. Policy - Levels of Administrative Review

Under the Act, an individual who is dissatisfied with an initial determination or decision with respect to Special Veterans Benefits (SVB) may request further review. This is called an appeal. The appeal consists of several levels of administrative review that must be requested within certain time periods, subject to good cause extension, and at the proper level. The levels of administrative review are reconsideration, Administrative Law Judge (ALJ) hearing, and Appeals Council (AC) review. If the individual is still dissatisfied, he or she may request judicial review, which is done by filing an action in Federal court.

If the individual does not request review within the time period, he or she may lose the right of further review and the right to judicial review unless he or she can show good cause for failure to make a timely request for review.

1. Reconsideration

Reconsideration is the first step in the administrative review process for individuals who disagree with the initial determination involving an SVB claim or posteligibility (PE) issue.

Reconsideration of initial determinations involving SVB claims issues consists of a case review only. Reconsideration of initial determinations involving SVB PE issues may consist of a case review, an informal conference or a formal conference. (Conferences are conducted only in the United States.) See VB 02502.000 for a full discussion of the SVB reconsideration review. (See GN 03102.100 and SI 04020.010 for a discussion of the reconsideration process for initial determinations of Retirement and Survivors Insurance (RSI) and SSI eligibility.)

2. Hearing

In most cases, a hearing by an ALJ is the next level of appeal after we have made a reconsideration determination. There are exceptions to this general rule. (See VB 02503.000 for more information.)

3. Appeals Council

If the claimant disagrees with either the hearing decision or the dismissal of a hearing request, he or she may ask the Appeals Council (AC) to review the action. The AC may dismiss or deny the request for review, or it may grant the request and either issue a decision or remand the case to an ALJ. The AC may also review a hearing decision (within 60 days of the hearing decision or dismissal) on its own motion. The AC has final review authority for SSA.

4. Expedited Appeals Process (EAP)

A claimant may request EAP but only after appealing at least through the reconsideration step. EAP may be used in those cases in which the claimant does not dispute SSA's findings of fact and its application and interpretation of the SVB legislation. Rather, he or she challenges the constitutionality of the law underlying the determination. SSA, and all parties to the determination, must agree to using EAP.

5. Federal Court Review

The AC review completes the administrative review process. If a claimant is dissatisfied with the final decision, he or she may request judicial review, which is done by filing a civil action in a Federal district court.

B. Policy - Issues Before the Administrative Law Judge

1. General

An ALJ will consider all issues that were brought out but not decided entirely in the claimant's favor in an initial, reconsidered, or revised determination. An ALJ will also consider an issue(s) previously decided in the claimant's favor if evidence presented before or during the hearing causes the ALJ to question the favorable determination and the ALJ notifies the claimant that the issue(s) will be considered at the hearing.

2. Notice of Issues

The ALJ will send notice of the hearing to the claimant and representative at least 20 days before the hearing, unless the claimant has waived the right to a 20-day notice. The Notice of Hearing will include an appropriate statement of all issues to be decided. See VB 02503.000 ff.

3. New Issue Before a Hearing

The ALJ may consider a new issue at the hearing even though it arose after the hearing request and even though it has not been considered in an initial or reconsidered determination. The ALJ will notify all parties to the hearing about the new issues to be decided.

4. Disposition of Hearing Request

The ALJ will complete action on a request for hearing by issuing a written decision, except when the ALJ dismisses the request for hearing. The written decision will give the findings of fact and reasons for the decision. The decision must be based on evidence offered at the hearing or otherwise included in the record.

If the ALJ makes a favorable decision on at least one issue but there is insufficient evidence in the record to make a finding on some other issue, the ALJ will state in the decision that a finding on that issue is not being made, and that the claim will be returned to the appropriate office for a determination on that issue.

The FO then sends a notice on those issues that were not considered by the ALJ in the hearing decision. The notice of determination that the FO sends after considering those issues will provide the claimant with the right to request review as the next level of appeal.

C. Policy - Nature of the Process

Administrative review is conducted in an informal, nonadversarial manner. The claimant may be represented by an attorney or nonattorney, or appear without representation. At each step of the appeals process, the claimant may present any information that he or she believes may be helpful in the case.

A claimant who has been denied benefits at both the initial determination level and at reconsideration may request a hearing before an ALJ. The claimant may request an oral hearing or may request that the ALJ issue a decision based on the record. At the hearing, the claimant and witnesses, if any, give testimony under oath or affirmation, and the testimony is recorded verbatim. The ALJ inquires fully into the issues, receives into evidence the testimony and relevant documents, and provides the claimant and/or the claimant's representative the opportunity to present arguments and examine witnesses. If additional evidence is necessary, the ALJ may request assistance from other components of SSA. After the hearing and upon completion of the record, the ALJ issues a written decision.

Upon receipt of a claimant's request for review of a hearing decision, the Appeals Council (AC) considers the evidence of record, as well any new and material evidence submitted to it if the evidence relates to the period on or before the date of the ALJ hearing decision.

The AC may limit the issues it considers when it grants a claimant's request for review. The AC will notify the claimant and all other parties of the issues it will review.

D. Definitions

1. Administrative Finality

Administrative Finality is the concept that a determination or decision becomes final and binding when rendered, unless it is timely appealed or later reopened and revised. This term is used throughout the appeals subchapters. Generally, the rules in SI 04070.000 on reopening SSI determinations or decisions will apply in SVB cases. (See VB 02507.000 for specific instructions on reopening SVB determinations.)

2. Decision

A decision means the written notice of a formal action at or above the hearing level.

3. Res Judicata

Res Judicata is a rule which provides that once an issue is decided, it does not need to be decided again. If there is no basis for reopening an administratively final action, the doctrine of res judicata may apply. In order for res judicata to apply, the previous determination or decision must involve the same facts, same issue, the same parties and the same adjudication period. (See GN 03101.060 for a discussion of res judicata.)

4. Vacate

To vacate means to set aside the previous action. For example, the Appeals Council may vacate a hearing decision and remand (return) the case to an ALJ for a new hearing decision. The Appeals Council may also grant or review a case on its own motion and dismiss a case for any reason an ALJ could have dismissed the case.