Legal Meets Practical

As several news items from this last week are worthy of note, I’m not going to cover just one. In four hundred words or less, here are the top four items that affect our veterans:

• Supreme Court Judge Antonin Scalia passed away. Last week, the country was saddened to hear of the passing of Supreme Court Justice, Antonin Scalia, who was 79 years old. (Read what other Supreme Court Justices had to say about this great man here). While Scalia’s death is mourned by millions, it also raises the issue of how this affects Kingdomware, a decision long-awaited by the veteran business community that was set for oral argument this Monday (February 22). Long story short, as argument will be held in Scalia’s absence, this sets the stage for one of three options: a split decision, which means the opinion of the lower court will be affirmed (and the veterans lose); 5-3 in the veterans’ favor; or 3-5 in the VA’s favor.

• Congress sounds off on the lack of accountability for VA officials. In reaction to the Merit Systems Protection Board’s (MSPB) decision to overturn the removal of Albany Stratton VA Medical Center Director Linda Weiss, Rep. Jeff Miller, the eloquent and outspoken Chairman of the House Committee on Veterans’ Affairs issued a scathing statement. It’s worth a read if you’ve been following hot mess that is the VA’s relocation scandal.

• VA Secretary Robert McDonald grilled over Colorado Springs clinic’s woes. During a House budget hearing this month, the VA leader responded to calls for discipline for workers at the Fillmore Street facility in the wake of an Office of Inspector General report that found the clinic wasn’t delivering timely care and had falsified appointment days. Let’s hope this isn’t Phoenix all over again. . .

• VA Bosses Want to Cut Red Tape that Prevents Firings. Maybe it was just to save face, but in early February the VA proposed to Congress that the department be authorized to strip all senior executives and doctors of MSPB appeal rights. The agency-backed plan would convert VA senior executive service employees — the federal workforce’s top career bosses — to Title 38 employees, the classification of VA doctors. The plan would then authorize the firing of any Title 38 employee for cause, without appeal rights. While it has been incorporated into existing legislation for consideration, don’t hold your breath on this one – it might be a symbolic statement more than anything, given its (major) Constitutional issues.

That’s it and that’s all! Stay tuned for more next week. (And bonus points if you know what movie I’ve just referenced).

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Even though a Department of Veterans’ Affairs (VA) Office of Inspector General (OIG) report found that Kimberly Graves and Diana Rubens abused their positions as Senior Executive Service (SES) officials and manipulated the employment system for their own benefit, two separate judges have overturned each woman’s demotion and pay cut.

I’ve blogged about this before because it horrifies me – these two women, Kimberly Graves and Diana Rubens, are literally being paid a combined $400,000 for deplorable actions. In both cases, according to the VA’s OIG, Ms. Graves and Ms. Rubens effectively forced out other senior officials so they could take over their jobs – with hefty relocation expenses.

The embattled VA finally seemed to be doing something to hold these officials accountable – they demoted them and effected a pay cut, citing poor judgement and creating a perception of impropriety. It would have been great if they could have been publicly fired, but hey – Government jobs are protected by the U.S. Constitution.

The VA also forwarded its OIG report to the U.S. Attorney’s Office for possible criminal charges. That office declined to prosecute and returned the report to the VA for any disciplinary action.

Now, however, both women have been vindicated (a word they do not deserve) by two separate judges at the Merit Systems Protection Board, which examines disciplinary action taken against Government employees. This means that these women felt entitled to protest their pay cut, which in and of itself is insulting to tax payers.

Both judges stated that technically, neither Ms. Graves or Ms. Rubens violated any laws. They also put a lot of stock in the fact that they acted under the blessing and consent of higher-up officials (one of whom resigned over this scandal). As written by the judge in Ms. Kimberly Graves’s proceeding, “It was not something Ms. Graves hid from them as far as her involvement with [her predecessor’s] reassignment. . . They not only endorsed the actions when they happened, but they continue to endorse the actions.”

Also, it mattered greatly that these higher-ups, including Acting VA Under Secretary for Benefits, Danny Pummill, had not been disciplined by the VA. As noted by the judge in one proceeding, “If Ms. Graves is going to be disciplined for failure to exercise sound judgement by creating the appearance of impropriety, then it would only be reasonable if any other [SES] members … involved in the same situation were disciplined as well.”

Here’s a hypothetical. Robbers are scavenging your home, and they scatter when police arrive. Two of seven are caught. The police say, “Oh, well – I guess we’ll let these two go. It’s not fair to these robbers that the others got away. And since they’re already holding your jewelry, we’ll let them keep it.”

Here, not only are Kimberly Graves and Diana Rubens not being punished because higher-ups in the food chain were ignored in the disciplinary process, but they’re being allowed to keep the money. Ms. Rubens’s judge also ruled that she’ll receive interest on the back pay found “owed” to her (due to the demotion). Meanwhile, veterans wait years for a decision on their entitlement to service-connected disability compensation, and they don’t get interest or penalties.

Another horrifying twist in the continuing VA saga.

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Barry Coates, the U.S. veteran who in 2014 became the human face of the U.S. Department of Veterans Affairs (VA) scandal over delays in care, died on Saturday of the cancer that could have been treated had the VA given him the care he requested. He was only 46.

After CNN featured him prominently in a CNN investigation, Mr. Coates became the “face” of the scandals regarding delays and wait time manipulations at VA medical centers. These scandals resulted in the resignation of VA Secretary Eric Shinseki and a law that provided $16 billion to overhaul the VA.

After spending nearly a year complaining to his doctors of pain, Mr. Coates was able to get a colonoscopy at a VA medical center. Doctors discovered a cancerous tumor the size of a baseball. By then he had Stage 4 cancer, and it was too late to save his life.

From his first interview, Mr. Coates, an articulate man from rural South Carolina, spoke eloquently about how veterans should be treated better, and deserved more after all the sacrifices they had made for their country.

“Due to the inadequate and lack of follow-up care I received through the VA system, I stand before you terminally ill today,” Mr. Coates told members of the House Committee on Veterans’ Affairs in April of 2014.

The lawmakers who heard him testify were shaken by his description, and about the numerous deaths of other veterans outlined in CNN’s investigation.

“This is an outrage! This is an American disaster!” Rep. Jackie Walorski, an Indiana Republican, nearly screamed, her voice quavering, during that congressional hearing. “My dad was a veteran. He died of colon cancer,” she said, crying softly. “This is so personal to me.”

Mr. Coates remained friendly and kind, was never hostile, and even kept his humor as his illness progressed. Speaking with his down-home and polite country manner, the Army veteran had a remarkable ability to touch many people with his story.

Mr. Coates’s family said he died Saturday from the cancer that had been left untreated by the VA for so long. After his time in the national spotlight, Mr. Coates continued to rail against the VA and fight for veterans to get better treatment, continuing to speak with reporters and helping them understand the VA crisis and scandal as it unfolded.

Mr. Coates’s story is tragic not only because it shows how the VA is failing – indeed, refusing – to serve, the very veterans it is established to protect; but because so many other veterans share a similar story. They deserve better, but how many stories like this will have to be splashed across the CNN’s webpages to effect actual change?

Or will there never be enough, because the VA is not capable of the systematic overhaul needed to adequately serve our nation’s veterans?

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For those who have been watching the Presidential debates (or gleaning the information from the hilarious Saturday Night Live skits – special kudos to Larry David and whomever plays Ben Carson), you might have noticed the lack of emphasis on veteran issues.

To address this, a news site for veterans, Task & Purpose, recently used the Iraq and Afghanistan Veterans of America organization’s annual 11-point policy agenda as a benchmark to rate the 2016 candidates’ platforms and comments about the most pressing issues facing veterans. These comprehensive policy areas, and which candidates have spoken up, are as follows:

• Combatting suicide among troops and veterans. Hillary Clinton is the only candidate with a proposed policy to combat this issue.
• Improving care and services for female veterans. Candidates Jeb Bush, Clinton, Mike Huckabee, and Marco Rubio have made positive comments about the integration of women into the military and include plans to provide services for them.
• Protecting veterans’ legacy. Only Bush and Rubio have fleshed out some ideas regarding the preservation of the all-volunteer force through the funding of advanced technology and supporting nonprofit organizations.
• Modernizing the government to work for today’s veterans. Trump intends to “make the VA great again.” Clinton plans to create a number of bureaucratic entities to examine the VA and hold it accountable. Ben Carson, who once worked as a doctor in a VA hospital, believes the VA should be merged with the Defense Department. (As a side note, if Ben Carson is elected President, I will move to Canada).
• Defending veteran and and military education benefits and programs. Many of the candidates support protecting education benefits from for-profit universities. Some, like Clinton and Bernie Sanders, hope to expand the use of Post-9/11 G.I. Bill benefits. Sanders’ platform, however, contains few concrete policy plans.
• Employing the new greatest generation. Clinton supports expansion of the G.I. Bill without real specification. Rubio wants to be the president that advocates for vocational training to be covered by the G.I. Bill. Bush also hopes to expand G.I. Bill money to include small business loans.
• Investing in the health care of tomorrow. A number of Republican candidates are pushing for the privatization of military health care. Carly Fiorina suggested the use of texting apps to streamline VA processes. Rand Paul has been outspoken on his views about legalizing marijuana to treat post-traumatic stress disorder.
• Supporting military families. O’Malley and Rubio suggest tax relief for military families. Chris Christie has made comments that he hopes to create a support network for them. Clinton intends to increase flexibility in relocation and education benefits, though doesn’t specify a policy plan to do so.
• Ending veteran homelessness. Very few candidates have mentioned this. This might, however, be because the VA’s plan to end veteran homelessness by the end of the year 2015 has resulted in no more homeless veterans, as promised. (Wait, it didn’t? But the VA said it would!).
• Promoting equality for all troops and veterans. There are a number of Republican candidates who would like to reinstate the “Don’t Ask, Don’t Tell” policy. Ted Cruz does not believe the military should be a social experiment. On the other hand, Bush, Clinton, O’Malley, and Rubio support a diverse, all-volunteer force.
• Honoring the services and sacrifices of veterans and their families. As with the homelessness issue, there has not been significant commentary on this.

While this information does make me feel more secure in the candidate I’m supporting, I also know that words are words. We need a President who can take action to protect our veterans, but which one would that be? If you have an opinion, please weigh in below.

To access Task & Purpose’s study, as well as its complete infographic, click here.

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As announced yesterday, the U.S. Department of Veterans Affairs (“VA”) is finally treating all of America’s married veterans the same regardless of where they married or where they currently live. This includes same-sex married couples.

Until now, some veterans in same-sex marriages living in states refusing to honor the U.S. Supreme Court’s 2015 verdict in Obergefell v. Hodges were not receiving equal access to military benefits for themselves or their spouses.

What was the holding in Obergefell? In Obergefell, which reflected the consolidation of six lower-court cases, the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Prior to Obergefell, thirty-six states already issued marriage licenses to same-sex couples.

A new guidance policy issued by the VA ensures that all married veteran couples will be recognized as equally entitled to seek benefits. This policy may be accessed here. It notes that while it is in the process of updating its forms to account for same-sex marriages, it advises these couples that in the interim they may use the existing forms.

The VA also issued internal guidance to its employees, which provides the legal background and analysis regarding same-sex spouses’ entitlement to VA benefits. It may be accessed here.

As a result of these recent changes, LGBTI rights group Lambda Legal announced it was ending litigation against the VA, declaring victory. Lama Legal had commenced litigation in federal court toward the end of the VA ceasing its “discriminatory policies,” and the group is satisfied this has been accomplished.

“We are very pleased that now, nationwide, gay and lesbian veterans who have served their country and risked the ultimate sacrifice for their nation – all while facing discrimination against them – will have access to deserved and long-awaited benefits,” said Susan Sommer, Director of Constitutional Litigation at Lambda Legal.

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Following a 13-day trial, in December of 2015 a jury convicted two individuals – Ricky Anthony Lanier, and his wife Katrina Reshina Lanier, 43 –  both of LaGrange, N.C., of conspiracy to commit wire fraud, wire fraud, and major fraud against the United States.

Sentencing is set for June 2016, in U.S. District Court. Ricky Lanier faces a possible sentence of up to 60 years in prison and $1 million in fines; while Katrina Lanier faces a possible sentence of up to 50 years in prison and $750,000 in fines. The Laniers agreed to forfeit their interests in approximately $170,000 in funds seized from bank accounts as well as five houses purchased with proceeds of the fraud.

According to the evidence presented at trial, the Laniers conspired from November 2005 to April 2013 to defraud the United States government through a scheme to fraudulently obtain federal contracts intended to be awarded to businesses lawfully participating in the Department of Veterans Affairs’ (VA) Service-Disabled Veteran-Owned Small Business (SDVOSB) program and the Small Business Administration’s (SBA) 8(a) Business Development program.

Ricky Lanier, who had previously owned and operated an 8(a) business receiving government contracts, became ineligible to participate in the 8(a) program after that business graduated from the 8(a) program in 2008. Lanier used a friend and service-disabled veteran as the purported owner of Kylee Construction, representing that the friend was involved in the daily management of the business, even while the friend was working for a government contractor in Afghanistan.

Also, the Laniers used a business owned by Ricky Lanier’s college roommate, JMR Investments, as a front to obtain construction contracts from the National Park Service and other federal agencies under the 8(a) program, misrepresenting the friend’s involvement in the management and operation of the business. The scheme involved sub-contracting out all or almost all of the work on the contracts in violation of program requirements.

As a result of the false representations, Kylee Construction was awarded over $5 million in government contracts and JMR Investments was awarded over $9 million in government contracts, to include contracts for construction at the VA Medical Center at Mountain Home, Tenn., and in the Great Smoky Mountains National Park. The Laniers received almost $2 million in financial benefit from the scheme, using accounts of the shell companies for payment of personal expenses.

Nancy Harr, Acting U.S. Attorney for the Eastern District of Tennessee said, “The integrity of the Service-Disabled Veteran-Owned Small Business program is vital to its continued success. The U.S. Attorney’s Office will aggressively pursue and prosecute those who attempt to defraud that federal program and therefore the United States.”

How sad! Imagine how many tax dollars were spent pursuing prosecution, as well as how many years spent by the relevant investigating bodies. And think of this – while this is framed as an example of justice, many fraudulent companies slip through the cracks. It’s generally only when a contracting officer smells something rotten that a company falls under scrutiny; after all, a call to the VA’s Office of Inspector General hotline alleging procurement fraud does not often result in criminal prosecution.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s blog on veterans issues at: https://legalmeetspractical.com. Remember to click the link to activate your subscription!

Also, to my faithful readers, I do apologize that I missed a week of blogging! I’m also a professional writer, and I needed the time last week to complete edits to my debut novel and create my website. I’ll catch up on other January items next week.

Happy New Year!

At the beginning of this New Year, as we finish the last of the leftover cookies and turkey, we also make resolutions we know we’re not going to keep. (Why are we kidding ourselves?).

We also make resolutions we can keep. One of mine is to be less negative regarding our U.S. Department of Veterans Affairs, and more proactive in effecting change. I don’t enjoy writing negative blogs, but I do want veterans to be aware of issues that affect them. Even though I’m not going to stop writing blogs on issues that matter (which may be inherently scandalous), I’m also going to do everything I can to effect positive change.

To that end, the long-awaited comments to the proposed regulations affecting the VA’s VetBiz verification program are due next Tuesday, the 5th. These govern how the VA processes applications for firms seeking verification as veteran-owned small businesses, meaning they can bid on VA set-aside work. After careful research and based on my own experiences, I submitted my own comments today.

If you have experience with the CVE’s VetBiz Verification Program and want to do the same, go to www.Regulations.gov and search by the keyword “RIN 2900-AO63” or “VA Veteran-Owned Small Business (VOSB) Verification Guidelines. From there, you will be able to either comment directly on the webpage or upload a file. Don’t just sit around complaining about the VA – do what you can to change it. This is one opportunity.

Also, Legal Meets Practical’s quarterly newsletter is now available. Access it here to read the details on the following items:

• Coming Soon: The Kingdomware Decision!
• Bid Protest Decisions That Can Save You Money
• House Bill Shames VA For Letting Officials Keep Stolen Money
• Three Big Changes to VetBiz Verification
• Certain Disabilities to Be Presumed Service-Connected for Camp Lejeune Vets
• SBA Seeks Comments on New WOSB Certification Program.

Thanks for following, and best of luck to your business in 2016!

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Federal prosecutors have declined to hold two senior VA executives accountable for allegedly abusing the agency’s relocation program to the tune of a combined $400,000.

Perhaps banking on the chance that everyone would be preoccupied with last-minute holiday shopping, the day before Christmas Eve, the U.S. Attorney’s Office for the District of Columbia announced that it was declining a referral from the VA’s Office of Inspector General (OIG) to prosecute VA executives Diana Rubens (Philadelphia) and Kimberly Graves (St. Paul).

Prosecutors will not take aim against the two senior VA executives the OIG concluded inappropriately misused their offices for personal gain by participating personally and substantially in creating vacancies and volunteering for these positions. Not only did the two women reap a windfall of almost $400,000 in relocation expenses, but the positions came with no pay decrease despite a sharp decline in job responsibilities.

As a slap on the wrist for this activity, in November the VA assigned the women to lower-level positions within the Veterans Benefits Administration that come with a pay cut. The VA recently, however, determined that in administering this “punishment,” its failure to provide all the evidence against them compromised Ruben’s and Grave’s due process rights. As such, it is now “redoing” these already woefully inadequate administrative actions.

By the way – the VA is not seeking recoupment of the $400,000 paid in relocation expenses, on the grounds that the monies were approved by higher-up VA officials. This is despite public outcry, the many scandals plaguing the agency, and the recent House Veteran Committee roasting of Rubens and Graves (hearings during which both women pled the fifth).

According to VA Deputy Secretary Sloan Gibson in a hearing before the House Veterans Affairs Committee, Graves and Rubens were “only guilty of using bad judgment in the relocations.” In his words of infinite wisdom, “in my opinion, the evidence collected by the IG does not support one violation of law. Not one violation of rule. Not even one violation of regulation related to relocation expenses.”

Clearly, Gibson is smarter than the OIG officials who compiled the September report analyzing the relocation scandal (that prompted Under Secretary of Benefits, Alison Hickey, to resign). Why have the OIG when this genius is available to police the VA’s ethics himself?

“Mr. Gibson, I think your statement is pretty damn inconsistent,” Rep. Jeff Miller, the Veterans Affairs chairman fired back during the hearing. “We’re all educated enough to know the definition of accountability but you and the secretary have decided to change that definition.”

Last summer, although the VA itself was keeping her on the payroll, the VA employee involved in the elf on a shelf scandal resigned based on public pressure. Maybe due process protection of government workers make them bulletproof, but in a war against corruption, there are other ways to bring down the bad guys.

To that end, I want to point out that in general, email addresses for VA employees all follow the same format: first name, period, last name, @va.gov. Just sayin.’

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On December 9, the House Committee on Veterans’ Affairs held a hearing to address a recent scandal plaguing the VA – the VA’s failure to hold senior executives accountable for abusing the agency’s relocation program.

While my blogs are never cut-and-paste from other articles, this week I want to pass along Chairman Jeffrey Miller’s comments on the relocation scandal and the VA’s handling of it, as I believe they clearly and eloquently capture what many of us are thinking. They also contain facts I have not seen in other articles on this subject.

On November 20, following the VA’s announcement that the senior executives would not be fired and the VA would not seek recoupment of the $400,000 they allegedly fraudulently obtained from the relocation program, Mr. Miller released this statement:

“For those wondering whether VA is committed to real accountability for corrupt employees, VA leaders answered that question today with a resounding ‘no.’ When presented with the same set of facts regarding Diana Rubens’ and Kimberly Graves’ conduct, VA’s inspector general made criminal referrals to the Department of Justice, while VA leaders went out of their way to allow Rubens and Graves to stay on the department’s payroll and preserve their retirements. Rubens and Graves clearly should have been fired. The fact that VA leaders refused to do so gives me no hope the department will do the right thing and take steps to recover the more than $400,000 taxpayer dollars Rubens and Graves fraudulently obtained. To add insult to taxpayers’ injury, VA rewarded Graves with a bonus of more than $8,000 just this year and department officials don’t even support commonsense legislation that would allow VA to recoup it. Because of the department’s failure to adequately hold employees accountable in this and many other situations, VA is being forced to tolerate corruption, malfeasance and incompetence within its ranks. As a result it remains under the shadow of perpetual scandal. The millions of American veterans who depend on VA and the hundreds of thousands of VA employees who are dedicated professionals deserve better than this broken status quo. But until VA leaders make a commitment to supporting real accountability – something they have refused to do thus far – efforts to reform VA are doomed to fail.”

On December 3, following the VA’s announcement that it botched the disciplinary process for the senior executives by failing to provide them with all the information regarding their punishment during the notice period (requiring the process to start over), Mr. Miller released this statement:

“It seems VA’s incompetence knows no bounds. After VA Dep. Sec. Sloan Gibson repeatedly expressed concerns that our committee’s legitimate oversight efforts could jeopardize these disciplinary proceedings, VA seems to have sabotaged this case all on its own. This is yet another example that proves VA is nowhere near as focused on accountability as it should be. By now, it’s clear to nearly every objective observer that VA’s top officials don’t know how to properly discipline employees. What remains unclear, however, is whether they are even interested in doing so. Yet until VA leaders make a commitment to supporting real accountability – something they have refused to do thus far – efforts to reform the department are doomed to fail. This is an absolutely egregious mistake, and right now it’s incumbent upon VA leaders to do two things: explain to taxpayers, veterans and Congress who will be held accountable for this failure and outline its plan for finally getting serious about accountability at the department.”

Miller is right about everything but one thing: the VA is not incompetent. It is so beyond incompetent, it needs a new word for “incompetent.” (Suggestions welcome!). Know, however, that I am referring to the VA as the bureaucratic monster that it is – many of the folks I work with who are employed by the VA are helpful, hard-working, and genuinely care about helping veterans. It is only a shame that these are the ones who are strangled by red tape.

Access the hearing and a wealth of other information here.

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Despite the U.S. Department of Veterans’ Affairs (“VA”) vigorous campaign against veterans who erroneously receive benefits (whether through wrongdoing or not), two VA officials who allegedly defrauded the agency of $400,000 will walk away with the taxpayer money they took after receiving demotions and unspecified pay cuts as punishment.

Diane Rubens and Kimberly Graves were both accused of manipulating a VA program meant to relocate agency employees who transfer long distances to take jobs within the VA. Rubens fraudulently netted more than $274,000 and Graves more than $129,000, according to a VA Inspector General Report (the “Report”). That same Report recommended that the VA’s Deputy Secretary consult with the Office of General Counsel to determine whether a bill of collection should be issued to recoup the monies paid for relocation expenses.

The VA claims, however, that it cannot recover these funds due to a “lack of legal authority.” As such, it will not pursue recoupment.

In a November 23 letter to VA Secretary Robert McDonald that crackles with rage, Jeff Miller, the Chairman of the House Committee on Veterans’ Affairs, blasted the VA’s failure to hold these employees accountable. As he stated: “[The] VA aggressively pursues the recoupment of overpayment of benefits to veterans, survivors, and other beneficiaries even when the overpayments are due to the VA’s own error. I am sure you can appreciate the lunacy of a policy that is stricter on veteran beneficiaries of earned benefits compared to corrupt government officials who unjustly enrich themselves at taxpayer expense. It must not stand.”

The letter asked the VA to reconsider its legal position, and to issue a response by no later than November 30.  As it appears the VA has not responded, today (December 1), Congressman Miller introduced a House bill that would give the VA Secretary the authority to recoup relocation expenses from employees. Miller’s bill (H.R. 4138) would require the department to provide notice to employees of decisions to recoup relocation expenses, and give employees the opportunity to appeal the recoupment to a third party before having to repay the money.

At the very least, this bill is further public shaming of an agency caught in one scandal after another. The VA won’t respond to a letter? Introduce a bill that gets press and public support.

Perhaps the bill will prompt the VA to reconsider its legal position, but probably not. Such action assumes a semblance of reason, logic, and accountability on behalf of the VA, and those have never been its strong points.

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