Topics: Veterans Affairs

Watchdog: Vets Affairs chairman Miller calls for top VA official's ouster

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Photo - Veterans Affairs Secretary Eric Shinseki is scheduled to appear at 9 a.m. Sunday on CNN's "State of the Union" program, hosted by Candy Crowley. It will be Shinseki's first national TV interview in four years. His appearance comes as demands are intensifying in Congress for action against a long-standing disability claims backlog, including the ouster of the top VA executive in charge of the program. (AP Photo)
Veterans Affairs Secretary Eric Shinseki is scheduled to appear at 9 a.m. Sunday on CNN's "State of the Union" program, hosted by Candy Crowley. It will be Shinseki's first national TV interview in four years. His appearance comes as demands are intensifying in Congress for action against a long-standing disability claims backlog, including the ouster of the top VA executive in charge of the program. (AP Photo)
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Failure to fix the long waits veterans face when seeking disability benefits earned through military service warrants the removal of the top Department of Veterans Affairs executive directly responsible, according to the chairman of the House committee overseeing the agency.

The call from Rep. Jeff Miller, R-Fla., for the ouster of Allison Hickey, VA's under secretary for benefits, comes as officials there face possible sanctions for deliberately misleading a federal court about an illegal rule that makes it harder for veterans to prove they are entitled to benefits.

Miller is chairman of the House Committee on Veterans' Affairs.

VA Secretary Eric Shinseki is scheduled to appear Sunday on CNN's "State of the Union" program in his first national television interview in four years. He is certain to be questioned about the VA's claims backlog, Miller's call for Hickey's removal and the federal court case.

"VA's disability benefits backlog problem is getting worse, not better, and veterans are suffering as a result," Miller told The Washington Examiner.

"That is why I believe a new under secretary for benefits would be best suited to help VA formulate a realistic plan for eliminating the department's disability benefits backlog and to tell Congress what they need to get the job done. America's veterans and America's taxpayers deserve nothing less."

Miller's ire is directed at Hickey, who told the Florida Republican's committee earlier this week that the agency is on track to meet its goal of processing all disability and pension claims within 125 days with 98 percent accuracy by 2015.

More than 1 million veterans have cases pending at VA, including about 250,000 appeals. It takes an average of 279 days for an initial rating, a figure that has gotten progressively worse in recent years. Accuracy rates have been flat for the last five years, at about 86 percent.

The Washington Examiner's recent series -- "Making America's Heroes Wait" -- detailed how VA officials have manipulated the department's benefits claims processing system and data to make it appear that more claims are being processed faster than they really are.

In the court ruling issued Thursday, the three-judge panel found VA officials repeatedly made false claims that the agency abandoned a rule that relieved appeals hearing officers of the duty to assist veterans in making their cases.

But even after admitting the rule was illegal, VA officials continued to apply it. The judges rejected assertions that VA did not intentionally violate its commitment to scrap the rule.

The result was many veterans who were entitled to benefits had their cases improperly rejected by the VA appeals board, the court held.

"The unwarranted denial of benefits means real-world consequences to veterans," the unanimous opinion from the U.S. Court of Appeals for the Federal Circuit states.

"Promises of hypothetical relief do not pay for food or provide needed medical care. Additionally, VA's conduct and written communications refute its assertions that its violations were unintentional. VA was well aware of its commitment and intentionally elected not to fulfill it."

VA is required by law to assist veterans in proving their claims, both at the regional offices that make initial rating decisions and at the Board of Veterans' Appeals.

In August 2011, VA issued a new rule that eliminated some of its obligations in the appeals process. The National Organization of Veterans' Advocates sued, claiming the change was illegal.

VA officials admitted in March 2012 that NOVA was right. The department's lawyers got three delays in the case by stating VA had stopped using the illegal rule, but needed time to have the official change published in the Federal Register.

NOVA was able to prove the agency broke its pledge and reneged on its promise to fix improperly decided cases. In March 2012 alone, 60 cases were identified in which the rule may have been improperly used.

The appeals court gave VA 60 days to explain why unspecified sanctions should not be imposed against the agency or "responsible officials."

Miller blasted the VA as "shameful" for concocting rules that make it tougher for veterans to receive benefits they earned, and for misleading the appeals court.

"It appears VA's laziness and dishonesty may have compromised the claims process for an untold number of veterans -- a shameful situation for which VA must be held accountable," Miller said today.

"I sincerely hope the U.S. Court of Appeals for the Federal Circuit takes whatever steps are necessary to ensure that veterans' claim appeals have all of the procedural protections to which they are entitled."

David Hobson, executive director of NOVA, said the group's priorities now are to ensure improperly decided cases are corrected, and to identify other veterans harmed by the illegal rule.

Steven Keller, acting chairman of the Board of Veterans Appeals, said he doesn't know whether hearing officers continued to improperly use the repealed rule, but they shouldn't have.

Regarding representations made in court, Keller said those came from agency lawyers who did not consult with the board about assurances made during settlement negotiations.

Mark Flatten is a member of The Washington Examiner's Watchdog investigative reporting team. He can be reached at mflatten@washingtonexaminer.com

Read the complete appeals court ruling

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