Vet Imprisoned for Seeking Benefits

Navy Airman, Keith Roberts (1970)

Update: Anyone needing further information on this justice-still-denied case, contact attorney Bob Walsh.

Update: In a unanimous July 2008 opinion (07-1546) a three-member panel for the Court of Appeals for the Seventh Circuit affirmed the controversial conviction on wire fraud of Wisconsin Navy veteran, Keith Roberts.

Reads the opinion in part: "The record might also have supported a jury determination that Mr. Roberts sincerely believed that his statements were true and that he had no intention to defraud the Government," reads the opinion by Justice Kenneth Ripple. But Ripple notes of the guilty verdict, that, "It is beyond our authority to disturb such a finding on appeal."

Since the Roberts' indictment by the Bush-Cheney's DoJ, the VA's PTSD rules have been revised (in July 2010) under President Obama's administration in such a manner that targeting Roberts would have been virtually impossible, even by a corrupt U.S. Attorney.

At present, this injustice remains. One honorably discharged, innocent Navy airman from northern Wisconsin saw his service to his country repaid with $100,000s in fines and almost four years in federal prison.

Update: See also Scott Horton's analysis at Harper's Magazine.

By Michael Leon

Madison, Wisconsin—Since March 2007, Airman Keith Roberts has been imprisoned, serving the first few months of a four-year sentence for five counts of federal wire fraud.

Keith Roberts filed for disability benefits in 1999 after being diagnosed with post-traumatic stress disorder (PTSD) by private and public medical health professionals.

Though not nearly as horrific as many, Roberts’ Vietnam-era service (1968-74) affected him badly, and includes an incident in which he was assaulted by the Navy Shore Patrol in 1969, and he witnessed a fellow airman killed in a gruesome aircraft accident, also in 1969, at Naples, Italy where he was stationed.

Roberts jumped through all of the hoops that the U.S. Department of Veteran Affairs (VA) makes claimants jump through, and was granted service-connected benefits for his diagnosed PTSD in 1999 retroactive to 1993 (later revised to1992), and received over $300,000 in benefits.

Roberts and his wife believed that after a paperwork-endurance ordeal in finding all supporting documents that the VA had finally come through and honored his service, and affirmed his medical condition after the long benefits application process.

The VA

As a Marine Corp Times piece notes of the benefits process (Kelly Kennedy, April 5, 2007), “’The … disability retirement system stacks the deck against injured soldiers by forcing them to prove they have post-traumatic stress disorder …,’ said an Army lawyer who helps soldiers appeal their claims.”

Worse than a stacked deck, the VA was headed (and still is) by Jim Nicholson, former Republican National Committee Chair (1997-2000) who sports a resume devoid of experience in veterans' advocacy and seems openly hostile to disability compensation, an appearance Nicholson tries to deflect in public statements.

"The amount of dollars involved (in veteran compensation) is huge and the lives involved are important," Nicholson said. "Our number one goal is to take care of those veterans who are deserving," referring to a 2005 VA Inspector General’s report on veterans’ compensation.

As Keith Roberts was battling the VA, he had no idea that a confluence of political and bureaucratic forces allied with Secretary Nicholson were about to make his previous ordeal seem a walk in the park by comparison.

Roberts collided with the US government’s determination to deceive and treat this veteran like a criminal.

VA Turns Against Roberts
Roberts’ wife, Deloris, said her family is “devastated.”

But they maintain reams of paper documents which appear to sustain their narrative of events in which a vet became a victim of a hostile bureaucracy and an overzealous prosecutor.

In November of 2003, Roberts said he contacted the VA Office of Inspector General (OIG) in Illinois by phone, complaining that Roberts had come to believe that the VA was committing fraud in the handling of his benefits claims, according to Roberts’ sworn deposition.

The reason behind Roberts’ call to the VA is not clear, but he had reportedly become somewhat paranoid, a symptom associated with PTSD.

Roberts spoke to Special Agent Raymond Vasil at the VA OIG who assured Roberts that Vasil would look into the alleged fraud, according to the sworn deposition. Roberts took Vasil’s assurance at face value.

Accusing the VA of committing fraud turned out to be a bad move for Roberts’ navigation through the VA bureaucracy, which a veteran’s advocate called a “culture of denial of veterans’ claims, where denying claims gets bureaucrats promoted.”

The veteran’s advocate spoke on background, out of concern for the political sensitivity of the topic.

After his phone conversation with Roberts, Special Agent Vasil and his assistant Joe Cossairt seized Roberts’ VA claims file from the regional VA office in Milwaukee, according to a document in Roberts’ VA file dated Dec. 12, 2003.

On March 27, 2004 Special Agent Vasil and Cossairt met with Roberts at his home in Gillett, (Oconto County), Wisconsin, according to Roberts’ affidavit, and asked a string of questions that made it clear to Roberts the focus of their questions pertained to the 1969 aircraft accident at Naples, and not the alleged VA fraud.

The VA’s Vasil reportedly insisted on a subsequent May 31, 2004 interview to be conducted at the Oconto County Sheriff’s office.

At the May 31, 2004 interview, according to Roberts’ deposition, Vasil became immediately abusive to Roberts by making a snide remark that “they brought all their paperwork,” after Roberts had carried in his large file and supporting evidence.

At the meeting, Vasil asserted that Roberts’ 1969 hospitalization after his Shore Patrol incidence was not a valid stressor for the purpose of diagnosing PTSD, though Vasil has no formal authority to issue such a determination, and Roberts had already been diagnosed by medical professionals on this very point.
Vasil called Roberts “nothing but a drunk,” and reportedly, said the documents Roberts had in possession (a Feb. 6, 1969, “Special Enlisted Personnel Performance Evaluation” pertaining to the death of his fellow airman on Feb. 4, 1969 and consistent with Roberts’ said role at the scene) meant “nothing” to Vasil.

Subsequently, after several months of complex machinations through the VA bureaucracy, Roberts’ benefits were severed in November 2004.

While Roberts was appealing the decision through the VA channels and was set to appeal to the VA Appeals Court—the US Court of Appeals for Veteran’s Claims in Washington D.C.—empowered by federal statute to hear the case, the United States Department of Justice, in the office of the US Atty for the Eastern District of Wisconsin, Steven Biskupic, indicted Roberts in April 2005 on six counts of mail fraud.

In September 2005, a superseding indictment changed the charges to five counts of wire fraud.

No investigative agent from the Treasury Department, Secret Service or FBI investigated the allegations of federal mail or wire fraud against Roberts.

Only the VA’s Special Agent Vasil conducted an investigation. Though his position title is “special agent,” Vasil has no formal law enforcement training or benefit adjudication experience.

Said one hostile veteran advocate, “A cop Vasil is not, just an idiot with a badge.”

In one exchange from Vasil’s Grand Jury testimony indicating his knowledge of the VA benefits process, upon which the indictment is predicated, Vasil appears weak on his familiarity with VA processes:

Question: “Is that part of your training that you have to know the basics of how these programs work?”

Vasil’s Answer: “Yeah. I was briefly kind of instructed when I was hired, and then just while working for them, you have to learn it to investigate the cases.”

But Biskupic’s office took Roberts to trial, secured a conviction, and this Vietnam-era veteran has been locked up since March.

According to Deloris Roberts, at the trial Roberts’ attorney was both unable and apparently disinclined to present any of the exculpatory evidence in Roberts’ files to prove his innocence, legal representation that has been criticized by those working with Roberts now.

Biskupic’s office says that Roberts “fabricated” his version of events pertaining to the death of his fellow airman.

Why US Atty Biskupic?
A phone call to the press offices of the US Atty for the Eastern District of Wisconsin on this story was unreturned.

US Atty Biskupic has recently taken heavy criticism for stretching federal statues to bring federal prosecutions in public corruption cases (one already infamous case tossed out of an appellate court in April and described as composed of evidence that is “beyond thin”) and voter fraud cases (similarly criticized by observers).

With the extraordinary federal indictment and trial of Roberts while the VA issue of Roberts’ alleged “fraud” was and is still pending administrative action before the VA, and as of August 30, 2005 pending adjudicative action before the US Court of Appeals for Veteran’s Claims in D.C. (which has exclusive jurisdiction over VA claims, per United States Code), Biskupic appears to be responding to the Bush administration’s hostility to PTSD claims.

In other words, Congress gave the responsibility for the adjudication of VA claims to the Secretary of Veterans Affairs, not the Attorney General of the United States.

In its press release noting the sentencing of Roberts, Biskupic’s office quotes John W. Brooks, the Special Agent-in-Charge at the VA’s Office of the Inspector General (OIG) in Chicago. “The VA Office of the Inspector General is mindful that fraudulent claims which take money from deserving veterans cannot be tolerated. …,“ said Brooks, sounding a lot like VA Secretary Nicholson and one American Enterprise Institute scholar, Dr. Sally Satel

Rightwing Health Care

In the administration where rightwing think tanks supply the intellectual essence for such government policy as health care and the Iraq war, the veterans’ benefits bureaucracy also apparently takes its cue from the right.

That is one Sally Satel, a rightwing psychiatrist and resident scholar at the Bush-friendly American Enterprise Institute (AEI).

Dr. Satel bemoans the rising veterans’ benefits costs associated with PTSD and what she derides as a culture of trauma and therapy.

In a New York Times op ed piece (March 1, 2006) representative of her work on the topic, Satel notes that the VA is now paying compensation for PTSD at an annual cost of $4.3 billion, a figure expected to rise.

This figure, $4.3 billion, is equal to the cost of our occupying Iraq for approximately 16 days, according to the National Priorities Project.

Heightened awareness has led to more veterans seeking care and benefits from the VA, much to the consternation of Dr, Satel and the Bush administration who appear to retain a special animus for Vietnam-era vets seeking benefits:

“(I)t's … very likely that some of the veteran baby boomers who have filed claims in recent years did so not out of medical need but out of a desire for financial security in their retirement years. Indeed, 40 percent of last year's claimants had been out of the military for 35 to 49 years.”In any case, the rush of applications for long-term disability entitlements reflects the extent to which the culture of the Department of Veterans Affairs since Vietnam has become fixated on post-traumatic stress disorder.

“ … Only in rare instances should veterans be eligible for lifetime disability; and perhaps there should be a deadline of years after service by which claims must be submitted.”

“The inspector general's office found that for one-quarter of Vietnam veterans claiming post-traumatic stress, the department could not confirm any incidents of traumatic stress. A study in a leading psychiatric journal last year could not verify such history in 59 percent.

“ ... With a new generation of soldiers returning from Iraq and Afghanistan, the Veterans Affairs Department needs to look at post-traumatic stress disorder in a new way: the department must regard it as an acute but treatable condition. Only in rare instances should veterans be eligible for lifetime disability; and perhaps there should be a deadline of years after service by which claims must be submitted.
- Dr. Sally Satel, New York Times op ed (March 1, 2006)
And sneering in the Wall Street Journal (May 2, 2003), Dr. Satel writes:

- “At first PTSD could be diagnosed only in the context of mortal threats. Gradually, however, trauma was defined downward. By the time the manual was updated in 1994, one could qualify for PTSD simply by learning of the death of a loved one or watching the 9/11 terrorist attacks on television.”
Satel also writes in the Weekly Standard and is widely quoted in the mainstream media, and has been published widely including her books One Nation Under Therapy and PC, M.D. How Political Correctness is Corrupting Medicine.

Keith Roberts’ battle with the VA could not have been timed worse for him.

But veterans’ groups have also elevated their criticism of the VA’s treatment of PTSD-related benefits process.

“So the brave men and women who have served in Vietnam, Afghanistan, and Iraq are honest enough to put themselves in danger in the defense of the United States, yet their sworn personal hearing testimony concerning the stressors they experienced in Vietnam, Afghanistan, or Iraq is not. Something is seriously wrong here,” writes the Paralyzed Veterans of America in their Service Officers Appeals Report (SOAR, 2004, Volume 8, Number 4).

But the AEI’s Dr. Satel’s ethos on disability benefits has permeated the VA under Nicholson.

In August 2005, the VA announced plans to review 72,000 PTSD cases with a 100 percent disability rating like Roberts’.

But a torrent of criticism by veterans’ groups and Democrats forced the administration to back down.

On August 10, 2005 Sen. Barrack Obama (D-IL) blasted the administration in a letter to VA Secretary Nicholson.

“In order to truly create fairness in the claims system, the VA should concentrate its efforts on reviewing denials of PTSD claims,” said Obama. “Without accessing why some PTSD claims are denied, it will be impossible to fully understand how the VA’s PTSD rating system can be improved.

“The process of gathering evidence to prove PTSD disability is extremely time-consuming,” said Obama. “It requires the compilation of medical records, military service records, and testimonies from other veterans who can attest to a person’s combat exposure. I cannot fathom why the VA would require veterans to go through this emotionally painful process a second time.”

Said Deloris Roberts, “The process itself took a huge toll on us. But to get arrested and imprisoned?”

The politics of the VA going after 72,000 veterans became too hot to handle for the VA in 2005.

But by then, Roberts had already been indicted several months earlier.

On Nov. 10, 2005, the VA announced that there would “no across-the-board review of PTSD cases.”

Just days later, Cheryl Reed of the Chicago Sun Times, broke a story detailing how the VA planned to implement a PTSD restructuring anyway, despite its announcement six days earlier.

The new PTSD plan was released in a low, low-profile manner in a press release through Sen. Larry Craig (R-ID), then Chairman of the Senate Committee on Veterans’ Affairs. The release states that:

“The Department of Veterans Affairs announced today that it has contracted with the Institute of Medicine (IOM) on a two-pronged approach to the examination of PTSD.”

And a fact sheet notes: “(The IOM) … will review the utility and objectiveness of the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV), and will comment on the validity of current screening instruments and their predictive capacity for accurate diagnoses.”

The IOM will also, “ … will review the literature on compensation practices for PTSD…and how changes in the frequency and intensity of symptoms affect compensation practices for PTSD; assessing how compensation practices and reevaluation requirements for PTSD compare with other chronic conditions which have periods of remission and return of symptoms; and reviewing strategies used to support recovery and return to function in patients with PTSD.”

No VA press conference, just a quiet, low-key way to implement the AEI’s views on PTSD, while denying that this is what is happening.

Conclusion
A politicized US Atty Stephen Biskupic, a secretive VA run by Jim Nicholson, and mean-spirited bureaucrats like Special Agent Vasil add up to big trouble for Airman Keith Roberts.

In a letter to US Rep. Tammy Baldwin (D-Madison, Wis), who sits on the House Committee on the Judiciary which plans to ask Biskupic to testify and answer questions on his public corruption and voting rights prosecutions, Deloris Roberts writes:

“Why they decided to abuse and then imprison my mentally and physically ill husband is beyond my comprehension. Keith is a good man who served honorably, and now he has been sentenced to spend 48 months in federal prison for a crime that was impossible for him to have committed.

“The Secretary’s (Board of Veterans' Appeals) BVA states on page 25 of it(s) denial decision that ‘the only other evidence in support of the claim was the veteran’s own unverified statements which are inadequate to establish service connection for PTSD as a matter of law.’ So how can Mr. Biskupic charge him with Wire Fraud for giving fraudulent statements when (the) VA can’t use the non-combat Veteran’s statements to grant a service connected benefit?”

Next Steps
Keith Roberts’ case continues to be adjudicated while he waits behind bars.

Two cases await to be played out:

- U.S. v. Roberts, E.D. of Wisconsin federal court, docket 05-CR-118. U.S. Court of Appeals for the 7th Circuit, 07-1546, 03/12/07.

- Roberts v. Nicholson, U.S. Court of Appeals for Veterans Claims, 05-2425, fully briefed and pending assignment of a judge.

“Roberts is a test case. If the VA gets away with this, they’ll plan B (get mean with) and intimidate a lot more vets,” said a Vietnam veteran advocate.

In the meantime, several questions remain to be asked of the controversial US Atty Biskupic:

- What transpired between the first indictment and the superseding indictment?

- Why were only the VA Special Agents (with no formal law enforcement experience) used to investigate the alleged crimes in the mail fraud and wired fraud indictment?

- Why did the US Atty step in prior to the exhausting of the administrative law remedies, when Roberts’ case was still being adjudicated? What was the rush?

- Does this extraordinary prosecution represent another abdication of prosecutorial discretion by US Atty Biskupic, in favor of achieving the political ends of the politicized Bush DoJ?

The Roberts family, friends, and a lot of vets are looking for answers.

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- This piece underwent minor editing since its posting. -

Update: From the AP
Senior VA Officials Get Big Bonuses
Associated Press May 03, 2007
WASHINGTON - Months after a politically embarrassing $1 billion shortfall that put veterans' health care in peril, Veterans Affairs officials involved in the foul-up got hefty bonuses ranging up to $33,000.

"The list of bonuses to senior career officials at the Veterans Affairs Department in 2006, obtained by The Associated Press, documents a generous package of more than $3.8 million in payments by a financially strapped agency straining to help care for thousands of injured veterans returning home from Iraq and Afghanistan.

"Among those receiving payments were a deputy assistant secretary and several regional directors who crafted the VA's flawed budget for 2005 based on misleading accounting. They received performance payments up to $33,000 each, a figure equal to about 20 percent of their annual salaries."

Seems like the VA dose not want to pay too much money to the vets who served, but rather to the VA crats who deny claims to the vets.

Update:

Cases to Adjudicated

• - U.S. v. Roberts, E.D. of Wisconsin federal court, docket 05-CR-118. U.S. Court of Appeals for the 7th Circuit, 07-1546, 03/12/07.
• - U.S. Court of Appeals for Veterans Claims (CAVC) docket number 05-2425;
• - VA Board of Veterans Appeals docket number 03-04 265.