Updated - "Despotism is a plan alone, without law and without rule, leading all its will and caprices," wrote Montesquieu, an Enlightenment political philosopher preceding the American Revolution.
The wrongfully convicted Navy veteran,
Keith Roberts, is the victim of caprice and an orchestrated scheme to criminally target this veteran for fraud though Roberts' Claims file or C-file abundantly documents his claim for disability benefits for his diagnosed PTSD condition.
A legal argument advanced by Roberts concerns the U.S. Dept of Veterans Affairs and U.S. Dept of Justice's disregard of laws and rules that govern the conduct of federal agencies towards citizens applying for services and benefits, such as military veterans.
Laws and rules in place guide the adjudication of claims, though these legal processes are superseded by the caprice of men and women, in Roberts case.
Like 100,000s of veterans, Roberts engaged in the convoluted process of the
VA bureaucracy seeking disability benefits in what is supposed to be a
non-adversarial process under the
Veterans' Judicial Review Act (1988) that empowers veterans the right to judicial review of decisions involving their benefits under the exclusive authority of the legislatively created VA adjudication procedures.
Roberts’ benefits claim — related to his PTSD that was diagnosed as occurring because of the in-service stressor event of witnessing and trying to prevent his friend (Airman Gary Holland) from being crushed to death by a C-54 airplane while stationed at a Naval air base in Naples, Italy in 1969, and an unrelated assault by the Navy Shore Patrol — was granted at
the 100 percent disability level in May 1999.
But Roberts became a target when the VA and U.S. DoJ hatched their plan to probe and prosecute Roberts, as indicated in emails obtained by Roberts' attorney, Bob Walsh.
Former VA General Counsel attorney and VA national Director of Compensation and Pension Services, Renee L. Szybala, authored the VA’s response to a Robert's letter to the VA, and, evidence suggests, engineered the 2005-06 prosecution of Roberts by U.S. Atty Biskupic.
As Roberts’
attorney Robert Walsh states in his CAVC (U.S. Court of Appeals for Veterans Claims) Supplemental brief filed in July 2007: "Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of
Veterans' Appeals) or this Court (the CAVC)."
Szybala, who moved on from her position as VA Director of Compensation and Pension Services, was responsible for managing the network of VA Regional Offices across the country.
In an e-mail of January 27, 2005 from Debi Bevins, Special Assistant to the (VA) Secretary Jim Nicholson, Bevins asked Szybala: "Is there any truth to what Keith Roberts alleges in this e-mail?" referring to Roberts’ allegations of fraud and violations of his due process rights, and Roberts' declarations of his rightful entitlement pertaining to his experiencing what the VA calls "stressors."
In the same e-mail, Bevins asks: "Have we heard any news on the prosecution of Keith Roberts?"
Szybala replies in part in an e-mail dated January 27, 2005 that: "Of course not (there is no truth to Roberts’ allegations). But he (Roberts) may be confused and believe it. I have known of and been dealing with Mr. Roberts’ complaints for several years now, dating to my time at OGC (
VA Office of the General Counsel) as explained in the message below. … In the interest of full disclosure, I also have a letter on this case from the
American Legion, dated October 15, 2004 (asking for Vasil’s report), to which I have not yet responded. The fraud for which Mr. Roberts’ service connection was severed was uncovered, investigated, and reported by the OIG (Office of the Inspector General). To respond to the
Legion’s letter, we need to confer with the OIG and have had trouble connecting. When we do we’ll ask them the question about the prosecution, too. My guess is, however, that this case would not interest a U.S. Attorney … ."
Several points made in this and subsequent e-mails obtained by the defense and not presented at the criminal trial by a young attorney (though successfully made part of the record of appeal at CAVC (U.S. Court of Appeals for Veterans Claims) after efforts by Roberts' subsequent atty, Robert
Walsh) are critical and raise questions about the propriety of the prosecution instigated by the VA.
No testimony or evidence was presented at Roberts’ trial pertaining to Ms. Szybala’s statement that Szybala had been dealing with Roberts’ allegations and complaints for several years and that Szybala stated that "… he (Roberts) may be confused and believe it."
This is significant because if Roberts believed the VA claim that he was pursuing and Szybala assumed Roberts’ believed his claim, this discredits the principal allegation of the government’s criminal case that Roberts devised a "scheme" to formulate misrepresentations with the intent of defrauding the VA, the alleged crime for which Roberts was imprisoned for almost four years.
[In fact, the government in the person of Barbra Nehls of the Milwaukee VA Regional office wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits. This is a material misrepresentation of VA procedure: The determination of PTSD-related benefits relies upon medical evidence (such as being diagnosed by five different medical professionals that a vet has PTSD) and the existence of an in-service stressor (such as the reality that a man was crushed to death by a C-54 aircraft while an Airman was on duty), per 38 CFR (Code of Federal Regulations) 3.304(f). All a veteran has to achieve in first-person testimony is corroboration, not verification. The Code defines
Post Traumatic Stress Disorder as Service connection for post-traumatic stress disorder; (PTSD) requires medical evidence diagnosing the condition in accordance with 38
CFR 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor occurred (38 CFR 3.304(f))].
Officials from the Milwaukee Regional Office and Special Agent Raymond Vasil’s Inspector General’s (OIG) office were included in the series of e-mails including one e-mail from the OIG's Vasil dated January 27, 2005, stating: "The U.S. Attorney is interested in prosecuting. He is not 100% yet and wanted me to interview any additional persons I could
find that were present when the original accident happened in 1969 … ."
Commander Robert Don Hathaway (USN) and officer-in-charge was present when the original accident happened, and was
not interviewed by the Inspector General’s (OIG) office.
Seems they wouldn't have liked what Comd Hathaway had to say. After a four-hour deposition conducted in early 2019 by atty Walsh,
Hathaway's April 2019 affidavit is an exoneration of Keith Roberts from the ludicrous indictment that Roberts lied about his role trying to save his friend from being crushed to death.
Everyone near the C-54 acted to save a man being crushed to death, some more effectively than others.
The engineering of the prosecution evident from the e-mails and the rushed, extraordinary prosecution itself were challenged in Roberts’ supplemental brief filed at the
U.S. Court of Appeals for Veterans Claims (CAVC) in July 2007.
"As detailed in the brief, the conduct of the (VA) Secretary has been contrary to law, in bad faith, highly adversarial. There is an inference of impropriety by any number of senior officials in the U.S. Department of Veterans Affairs," reads the brief filed by
attorney Robert Walsh.
And it bears repeating from the brief: "Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC)."
Two VA e-mails include.
A reader following this story may have noted the jumping back and forth between Roberts' VA claim and Roberts' fight against his criminal prosecution.
Reads Roberts’ Court of Appeals for Veterans claims (CAVC) July 2007 brief:
The referral of this case directly from the VA OIG’s Chicago office to the U.S. Attorney for the Eastern District of Wisconsin for criminal proceedings is contrary to law, justice, equity, and fair play.
When the Court rules to restore the benefits of the Appellant, we shall have arrived at an absurd 'Alice in Wonderland' result. A veteran will sit in prison for accepting the wire transfer of funds to which he was legally entitled. … This extraordinary rendition of a veteran from a VA administrative dispute directly into Federal District Court on criminal charges is unprecedented.
We are here; it is Alice in Wonderland.
Keith Roberts is now back to receiving 70 percent of his 100 percent VA benefits, and his new start date is two years earlier than it had been awarded previously.
Perhaps Keith Roberts can have 70 percent of his days in prison back?
Roberts' next step is to get this 2006 criminal conviction vacated or overturned.
Veterans' advocates estimate there have been some 5,000 cases where the VA Office of Inspector General (OIG) or other VA officials have targeted veterans with criminal prosecutions while the VA is still adjudicating claims.
One problem is the OIG does not probe VA employees who ignore the law and regulations to target innocent veterans. Rather, the OIG is simply a hammer used to pound veterans into submission.
But Roberts and his attorney, Bob Walsh, will not give up as they push for full benefits restoration as prelude to vindication and exoneration.
Other attorneys in the
Court of Appeals for Veterans Claims bar agreee a time of reckoning is upon us.
Kisor v. Wilkie 139 S.Ct. 2400 (2019), and
Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) may provide the legal precedent to end the abuse of veterans accused of benefits fraud.
Walsh's March 4, 2019 letter to U.S. Department of Veterans Affairs General Counsel, Mr. James M. Byrne is reproduced below.
--
March 4, 2019
U.S. Department of Veterans Affairs
Mr. James M. Byrne
General Counsel
810 Vermont A venue, N. W.
Washington, D.C. 20420
Re: Demand for a Hearing in accordance with
38 C.F.R. §§ 42.1-42.47 (1988)
Keith A. Roberts, VA Claim Number C 28 353 461
Dear Mr. Byrne:
In 2005 I was asked to assist Mr. Keith A. Roberts in the adjudication of the allegation of benefits fraud made against him by employees of the U.S. Department of Veterans Affairs Office of Inspector General. Fourteen years later a final agency decision has still not been made in that dispute.
By a letter dated October 15, 2004, Mr. Phillip R. Wilkerson of the
American Legion wrote to the Director of the Compensation and Pension Service
of the Veterans Benefits Administration demanding a hearing regarding the
benefits fraud allegations made against him in accordance with
38 C.F.R. §§ 42.1-
42.47 (1988). (Exhibit 1.) That hearing has never been provided.
During the pendency of his recent appeal before the U.S. Court of Appeals
for Veterans Claims in docket 16-1219 a motion to intervene as amicus curia was
filed on behalf of Veterans for Due Process, Inc., (Mr. Philip Cushman). (Exhibit
2
Congressional mandated due process protections set forth in 38 C.F.R. §§ 42.1-
42.47 and the unlawful policy of the Veterans Administration (now U.S.
Department of Veterans Affairs) to circumvent them since 1986 is highly relevant
to this demand.
Keith A. Roberts,
38 C.F.R. §§ 42.1-42.47
In 1986 Congress completed an extensive effort aimed at improving
contract and benefits fraud adjudications by the federal government. See United
States. Cong. Senate. Committee on the Judiciary. Overview of False Claims and
Fraud Legislation. Hearing, Jun. 17, 1986. 99th Cong. 2nd Sess. Washington:
GPO, 1987. A copy of the legislative history is attached. (Exhibit 3.)
The Congressional effort was to end the Balkanized procedures found
throughout the federal government so as to protect the rights of those accused of
benefits fraud and also to protect the interests of the taxpayers.
The Veterans Administration promulgated regulations in accordance with
the 1986 legislation. The regulations were amended in 1988 to reflect the creation
of the U.S. Department of Veterans Affairs, and have not been amended since.
See
38 C.F.R. §§ 42.1-42.47 (1988).
In 2005 I made requests to your agency under the Freedom of Information
Act (FOIA). The responses supported my conclusion that the U.S. Department of
Veterans Affairs has never complied with the regulations for benefits fraud
adjudications. The Veterans Benefits Administration and the Office ofinspector
General make use of an ad hoc system which deprives veterans and other
beneficiaries of proper notice, a meaningful opportunity to be heard, and any
opportunity to confront evidence being used against them. Not only is the current
procedure devoid of fundamental fairness and due process, but unfounded
allegations of benefits fraud are placed in the veterans benefits claims file.
Thousands of employees of the Veterans Benefits Administration can lawfully
access the computerized claims file. The response to a recent FOIA request dated
August 10, 2018, indicates that since May 11, 1988, 4,163 VA benefits fraud cases
had been referred to the U.S. Department of Justice. These cases have been
referred by the U.S. Department of Veterans Affairs Office of Inspector General
(VA OIG) directly to United States Attorneys around the country. (Exhibits 4.)
A response from your office confirms that the due process protections found in 38
C.F.R. §§ 42.1-42.47 have never been afforded to any of these veterans accused of
benefits fraud.
Page 2 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
One of the most troubling aspects of my involvement in the adjudication of
benefits fraud allegations by your agency has been the litigation position adopted
by your office. In Roberts v. Shinseki, 23 Vet.App. 416 (20 1 0), counsel for the
Secretary argued in supplemental briefing that your office had no role to play in
the adjudication of benefits fraud matters. During oral argument before the three
judge panel and later the en bane Court the position of the Secretary was that the
Office of General Counsel had no role to play in the adjudication ofbenefits fraud.
Counsel further stated that the reference to claims in 38 C.F.R. § 14.561 only
referred to claims by or against contractors. Since the agency had over 1 million
active claims for disability benefits pending at that time I found that position to be
rather remarkable. The ad hoc process employed by the VA OIG is devoid of due
process, fundamental fairness, and any reasonable degree of competence.
Veterans are denied access to the procedural due process afforded the recipients of
other federal benefits accused of fraud. The review of fraud allegations by your
office found in the regulations along with the preparation of a detailed complaint
to be served on the accused would have resulted in hundreds of the cases referred
to the United States Attorneys for prosecution being resolved administratively.
The recent case of U.S. v. Monkemeyer, 2:17-cr-10-PLM, U.S. District
Court for the Western District of Michigan, is illustrative of the hazards inherent
with the current "sand lot" procedures used to process benefits fraud allegations
by your agency. Mr. Monkemeyer was accused of altering his DD-214 by
employees of the VA Regional Office (RO) in Detroit, Michigan. His benefits
claims had been adjudicated by employees of the RO in West Virginia. His
unemployability determination was made by the Maine RO. Several years later he
was accused of benefits fraud. His disability compensation benefits were severed
and that decision is pending review by the BV A. He was indicted for theft of
government property under 18 U.S.C. § 641. After months of motions, discovery
and investigation a three day jury trial was held in 2018. Mr. Monkemeyer was
acquitted. His disability benefits have not been restored, nor had the damage to
his reputation. In addition, the unfounded allegations against him can still be
found in his VA benefits file. The economic harm to the taxpayers and Mr.
Monkemeyer have been significant. The personal damage to Mr. Monkemeyer has
been even more egregious. Had Mr. Monkemeyer been afforded his due process
rights under 38 C.F.R. §§ 42.1-42.47 much of the harm could have been avoided.
Page 3 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
The United States Supreme Court raised the standard for fraud pleading in
civil matters in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). Mr. Roberts
was deprived of any meaningful notice of the allegations against him. The VA
refused to provide Mr. Roberts or his American Legion representative a copy of
the report of the VA OIG which made allegations of benefits fraud against him.
That report had been placed in his benefits claims file. Both he and his American
Legion representatives were also denied access to his VA benefits claims file at
his hearing in Washington D.C. before the Board of Veterans Appeals (BVA) in
2005. It has since been determined that his appeal was adjudicated using an
incomplete photocopy of his claims file as the original was in the possession of the
employees of the VA OIG Chicago office.
As a former staff attorney for your agency I find the adjudication of a quasicriminal
allegation in what was intended by Congress to be a non-adversarial and
claimant friendly benefits system to an affront to logic and contrary to common
sense. As discussed in the amicus curia brief attached, an allegation of benefits
fraud should be closely held. Such an allegation is the province of the Office of
Inspector General and the Office of General Counsel. Unfounded allegations of
fraud have no place in a veterans benefits claims file. With the new national work
queue hundreds if not thousands of employees of the Veterans Benefits
Administration can access a file and review allegations that may or may not have
any basis in fact.
In the event a veteran is found innocent of any wrongdoing there is no
process or procedure available to remove fraud allegations from a benefits file.
Such allegations and related evidence should be restricted to files maintained by
your office and the Office of Inspector General in accordance with the procedures
mandated by 38 C.F.R. §§ 42.1-42.47. This is the exact issue now confronting
Mr. Monkemeyer. How do you un-ring a bell?
Some insight into the convoluted and unlawful procedures now being
followed by the VA OIG are set forth in the affidavit of Mr. Roberts dated March
9, 2007. (Exhibit 5.)
Page 4 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
Since 1986 veterans and their family members accused of benefits fraud by
your agency have been deprived of due process of law that the recipients of
benefits administered by other departments of the government are routinely
afforded. In many cases veterans and other beneficiaries have been subjected to
premature criminal prosecutions and federal collection efforts without ever having
been afforded notice and an opportunity to be heard as mandated by the
Administrative Procedures Act 5 U.S.C. §§ 551-559, 701-706, 1305,3105, 3344,
4301(2)(E), 5335(a)(B), 5372, and 7521.
In this case Renee Szybala, then the director of compensation and pension
service of the Veterans Benefits Administration, was actively participating in the
effort to have Mr. Roberts indicted. At the same time she was assuring both Mr.
Roberts and his American Legion representative that his appeal was being
processed. Documents obtained in criminal discovery indicate that she had
authored the response to a letter sent by Mr. Roberts to then Secretary of Veterans
Affairs Principi concerning the loss of his benefits and the allegations against him.
Even more disconcerting is the questionable practice of employees of the
Office of Inspector General taking cases where allegations of benefits fraud are
being actively adjudicated by the Veterans Benefits Administration directly to
United States Attorneys for prosecution. The absurd outcome from this practice is
that a federal criminal conviction is obtained, a sentence served, damages
specified by the trial court are being collected, and then years later the benefits in
question are restored. That is what has happened in this case. Mr. Roberts has
had 30 percent of his benefits restored. And that decision is on appeal. So after
more than a decade a final agency decision as to benefits and damages has never
been issued.
Page 5 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
We demand that the disability benefits of Mr. Roberts be restored in full. In
the alternative we request that a proper review of the file be made by your office
and that a complaint issue and proceedings before an administrative law judge be
convened in accordance with 38 C.F.R. §§ 42.1-42.47.
Sincerely, ~
PI'~
Robert P. Walsh
Enclosures: Exhibit 1., Letter, American Legion, Philip B. Wilkerson, to Renee
Szybala, Director of Compensation and Pension Service, October 15, 2004, 6
pages; Exhibit 2., Motion and Brief Amicus of Phillip Cushman, Roberts v.
Wilkie, CAVC 16-1219, motion to intervene denied by order dated October 27,
2017, 57 pages; Exhibit 3., United States. Cong. Senate Committee on the
Judiciary. Overview of False Claims and Fraud Legislation. Hearing, Jun. 17,
1986. 99th Cong. 2nd Sess. Washington: GPO, 1987, 176 pages; Exhibit 4.,
Freedom of Information Act response, August 10, 2018, 3 pages; Exhibit 5.,
Affidavit of Mr. Keith A. Roberts, March 9, 2007, 12 pages.
Page 6 of 6
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