ROBERTS V. SHINSEKI–A MISCARRIAGE OF JUSTICE?


I was recently contacted by Mr. Roberts’ counsel who defended him in the actions that resulted in his loss of service connection of all his claims as well as incarceration. You may or may not have read my original write up on this seminal en banc CAVC case.

https://asknod.wordpress.com/2011/09/27/roberts-v-shinseki-2009-dumb-and-greedy/

When evidence begins to pile up like a snow drift at your front door, its time to investigate and see if there’s more than meets the eye. On first inspection, I made an assumption and did nothing more than write up the decision as it was presented by the CAVC. Following that, I  started seeing other articles on several Vet’s websites that implied Mr. Roberts was railroaded unjustly. I mistakenly reasoned that they would probably defend a Vet accused of child molestation. Most of the sites were vociferously defensive of Vets. I am now of a mind that an error of immense proportions may have been perpetrated. Mr. Roberts’ legal problems were widely disseminated in the mainstream media and many talking heads hypothesized that this would give pause to other Veterans who might file false claims. I unwittingly followed suit.

I could don sack cloth and pour ashes on my head. I could claim cognitive disorders due to cirrhosis or Interferon therapy. In short, I could claim a plethora of different reasons as to why I wrote what I did. Mr. Roberts found himself in the same set of circumstances when faced with being summarily stripped of his ratings. He proposed that he had other, equally compelling arguments that supported the reasons for his service connection. This may be why the injustice was permitted to be perpetrated.

I was sent an inordinate amount of information about Mr. Roberts by Mr. Walsh concerning the case and see a disturbing pattern of obfuscation, refusal to entertain alternate theories and a blind rush to judgement that granted the VA most all that they sought.

Over the years I have vociferously defended the CAVC as being the closest thing a Veteran has to real justice, with the possible exception of their propensity to continually chip away at rights accorded us under the CUE challenge. Thus I find it unconscionable that the Court would allow the VASEC to disenfranchise Mr. Roberts on one theory at his BVA adjudication and subsequently allow him to transfer his flag to a different regulation at the Court- all without so much as a “Hey. You can’t do that!”

The law is an ever-metamorphosing process that discovers new facets when held up to the light. Many Veterans rights have been gleaned from adjudications where the VASEC has gone overboard and engaged in mission creep. Newly extrapolated explanations for revelations from age old CFRs are his stock in trade. While the Court has held the line in most cases and simply refused to entertain his new theories, the Roberts case seems to be an anomaly. This concerned me enough to look more closely.

I have an ugly propensity to read the meat of a decision and all but ignore the dissents published at the end of them. My reasoning was that they were Monday morning quarterback assessments, sour grapes about being in an en banc minority or worse-endless drivel that would not change the outcome of the decision anyway. I stand corrected.

I have great respect for Judge Mary Schoelen. If you read her biography on the CAVC site, you will find she is the daughter of a career Naval Officer.

http://www.uscourts.cavc.gov/about//judges/JudgeSchoelen.cfm

My father was a career Air Force officer who retired as a Lt. General after thirty three years. Being a military brat and steeped in an austere military upbringing breeds familiarity with the Veterans plight. My father would go to the mat  for his fellow fighter pilots and disdain for political correctness prematurely ended his storied career. I ascribe much of my proclivity towards helping Veterans to his willingness to stand up and risk his career for others.

Similarly, Judge Lawrence B. Hagel is no stranger to this plight of Veterans as he was one, too. Not only that, he was a Vietnam Veteran which resonates more with me than any other accomplishment of his. His involvement in the hierarchy of the DAV also gives him a cachet that most do not bring to the bar. While I am no fan of VSOs, I make exception for this man due to his bona fides in the Vietnam debacle.

http://www.uscourts.cavc.gov/about//judges/JudgeHagel.cfm

Thus, when Mr. Walsh admonished me to read the dissent of Judge Hagel, with whom Judge Schoelen concurred, I naturally felt that they might contribute something more to the case than would be found in the body of the ruling. Oddly, the case was originally heard by a panel and both Hagel and Schoelen were members. Had this not proceeded as an en banc decision, I  question whether these words would be written.  En banc decisions are usually only provoked by some earth-moving decision that needs enunciation or clarification so as to be understood. Mr. Roberts’ case doesn’t meet this test.

The Court may have it wrong. I have no legal training, but a tenet of the early Court rings in my ears from the Gilbert v. Derwinski (1990)  decision:

“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

After reading the distinguished Judges’ dissent, I am left with that feeling. Mr. Roberts took his argument to the Federal Circuit and was similarly rebuffed.  What does this tell us? I surmise  Mr. Walsh’s contention that this was a put up job to warn all veterans    to mind their Ps & Qs or face the wrath of the VA may have some substance. If  Big Brother is watching, we would all be advised to keep in line and not make waves.

No one can deny that Mr. Roberts cut a swath through the VA compensation process over the years. His claims were finally eviscerated as being based on fraud and deceit. What was overlooked was a vast body of evidence that may have refuted or ameliorated the circumstances. Focusing myopically on one small part of a claim to the exclusion of all else and making it the predicate for the denial is strange for the Court. They pride themselves on looking behind every bush and under every rock for something-anything- to find common cause with the Veteran. Additionally, they are known to parse every statute and regulation for that small amount of wiggle room and accord it to the Vet. This is why I find something amiss when the Court allowed the VASEC to alter the reasons for his defense of his actions. Put another way, the Court allowed the VASEC free rein to espouse his migratory theory and similarly curtailed any logical rebuttal.

When you or I (or the VA) arrive in Court, we have a set of rules to follow. We base our arguments on what we feel are reasons our claim should be granted. These reasons are grounded in laws developed and tested by years of jurisprundence.  We also develop this theory at our BVA adjudication and simply take the same argument to the Court for vindication when we are unavailing. When we arrive, we cannot argue a new scenario predicated on a different theory from that which we began with.

VASEC did just this. When called out on the regulation [38 CFR §3.105(d)], he promptly changed his tune and switched to §3.103 to support his argument. Even if I were pro se, I don’t think I could swing that. There were peccadilloes such as Mr. Roberts having other documented stressors that would have corroborated his PTSD diagnosis, but strangely, they were left by the wayside. The Court reasoned that if he wished, he could march smartly down to the RO and file a NOD concerning these contentions. They did their best Pontius Pilate imitation and washed their hands of that business.

Justice often miscarries in the lower courts. It is the expectation of Vets that they will eventually make  their voice heard at the BVA or the Court. As the Court is not a trier of fact nor a Court of equity, we strive to get the evidence into the record before arriving and let the Judges read it. What happens when we are precluded from this and the record becomes woefully incomplete? When a Court-any court- becomes so engrossed in trying to make an example of a Veteran that they rearrange the judicial furniture at the crime scene to accord with their facts,  we are in deep doo doo.

Again, I am not a forensic leagle beagle. I call them as I see them. I called this wrong and offer this belated apology to Mr. And Mrs. Roberts. I find it unfortunate that he chose an alternate legal theory that implied he might be less than forthcoming in his original facts, but he did have the requisite evidence to support his contentions several times over. The fact that this was ignored leaves me with a queasy feeling. Even though I never subscribed to it before, Chicken Little’s admonitions may have substance.

I also wish to add Mrs. Roberts’ comment here which she posted in another area several days ago. As Mr. Walsh said: “Watch your 6”. I can only add my “Roger my six, over” to that.

Theadora Roberts says:

AskNod –

Take a good look at Mr.Roberts SMRs and you will find in its Dec 69 and Jan 70 entries his informal service connected claims for psyche disorders to include PTSD and his “REPORTED” ie “CLAIMED” Dec. 69 non combat sressor. When you read the CAVC’s decision, you will find that the EN BANC Court has conceded that Mr Roberts’ SMRs do so “REPORT” the Dec 69 “INCIDENT” ie “STRESSOR and that in VA’s March 1991 “Special Psych Exam Mr Roberts had REPORTED the Dec 69 Stressor and that VAs examiner had the determined the “REPORTED” Dec 69 stessor is “Corrobotated in {Mr. Roberts records and in a report of a brief psychiatric hospitalization” AS it is so first REPORTED and CORROBORATED in Mr Roberts’ SERVICE MEDICAL RECORDS

Roberts service medical records containing his service  connection claims first came before VA as of and for his May 1972 Service  Connection Claims which he had filed within one year of his Honorable separation from the U.S. Navy on Dec 21 1971. Those service connection claims in his SMRs have yet to be adjudicated by VA and became Formal Service  Connection claims as of his filing his initial VA form 21-525 on Feb 27 at RO Milwaukee.

One and only one of the veterans “REPORTED” non-combat stressors, Prior to mid 1995, was required to be “Corroborated” as having “Actually Occurred” ie “To come into the conscious mind ” of the veteran. There was not, and stiil not any requirement that the reported and unverified Feb 69 Holland stressor had to be corroborated, and there was not ever any law which required Mr Roberts and all veterans to corroborate their “physical proximity to”, “personnel participation in” and “first hand experience with” any of their Reported non combat stressors. see Cohen V Brown 1994.

Read all the evidences Mr. Walsh has sent to you then please set the record straight. VA’s employees of record are the ones who have commited, repeatedly the fraud in Mr. Roberts VA claim since May 1972.

I did as she asked and the evidence on its face supports her contentions. There really are not two different interpretations that would permit two equally well-grounded conclusions. The benefit of the doubt is not for application here as the evidence is not in “equipoise”. Keith Roberts, by any legal yardstick, got short shrift at the Court. File this one under S for Shoddy Justice.

I wish to add this as a post script:

I copy and paste a comment left on my original post concerning this Veteran (Mr. Roberts).
Jim Vincent says:
January 18, 2012 at 17:40
Please make it easier for others to find your apology and current standings on this case – like your response when asked my Keith Robert’s daughter to actually read the full facts of the matter.:
“Read all the evidences Mr. Walsh has sent to you then please set the record straight. VA’s employees of record are the ones who have commited, repeatedly the fraud in Mr. Roberts VA claim since May 1972.
I did as she asked and the evidence on its face supports her contentions. There really are not two different interpretations that would permit two equally well-grounded conclusions. The benefit of the doubt is not for application here as the evidence is not in “equipoise”. Keith Roberts, by any legal yardstick, got short shrift at the Court. File this one under S for Shoddy Justice.”
Others need to know that some people in the government did go out of their way to deprive this vet of not only his benefits but also of due process and of his liberty.

My answer to you, Mr Vincent :
I apologized above in a 2000 word synopsis of what I did wrong. It took me three days to digest the documents I received. Short of buying a front page spot in the New York Times, I am constrained to use this forum to express my mea culpas. To better illustrate your unhappiness with the quality of my apology, I have moved your comment here to amplify your displeasure.
I am ill with a terminal disease and have just so much time to devote to this page. Unbeknownst to you, I also help Veterans attain service connection for this insidious disease with what energy is left. I am not a candidate for a transplant, so my shelf life sticker is probably accurate. I have made as great an effort as possible to exonerate Mr. Roberts and atone for what was admittedly wrong. Perhaps you can give me a more concise accounting of how I can make it easier for others to find this apology. My current standings on this case are as printed above. As Mr. Roberts’ SSN is emblazoned all over the documents I received from Mr. Walsh, I hesitate to publish them here. I do not have the time or energy to redact them and provide them for readers’ edification. I have mailed personal apologies to Mr. Walsh and Theadora Roberts, who I assumed was his spouse. If she is his daughter, I extend my apology to her mother as well. Since I can only apologize to those who provide me an email, I extend my apology to you as it sounds as though you, too,  may be part of the extended family.
Comments are attached to each post by people visiting this site. Since WordPress will not specially modify the format of this forum, and I am not part of the well-heeled 1%, members are forced to click on the word “comment” either to read or post their own as you did.
I do not mean this to sound sarcastic. I know the opprobrium of public opinion far better than you-especially when the phrase HCV is spoken. I am not gay, nor am I a drug abuser. I came by this disease inadvertently after a through and through gunshot wound and subsequent transfusion to save my life. Since it happened during my employ with a civilian airline in Southeast Asia, I do not have the honor of wearing a Purple Heart. Nevertheless, the VA medical community treats me like a leper-or worse. I commiserate with Mr. Roberts re the stain on his record and for the unjustness of serving four years for a crime he is innocent of. Were he to ask me personally, I would apologize to him as well.
I believe most who frequent this site are well aware of my feelings about the VA. Additional diatribes in this comment section would be superfluous. Since I belong to the Church of England, any Acts of Contrition will have to be couched in Pater Noster format.

About asknod

VA claims blogger
This entry was posted in Complaints Department, Fed. Cir. & Supreme Ct., General Messages, Important CAVC/COVA Ruling, Tips and Tricks and tagged , , , , , , . Bookmark the permalink.

2 Responses to ROBERTS V. SHINSEKI–A MISCARRIAGE OF JUSTICE?

  1. asknod says:

    Thank you for your reply. My health is the least of my concerns. Veterans are, or more specifically, teaching them how to win. Mr. Roberts chose a VSO which was a fatal error. I point that out to Vets every day. He was lucky to have Mr. Walsh intercede. The damage might have been worse, although I’m not sure I see how. VA had an agenda and that was the problem. Roberts happened to be object of the proposition.

  2. Jim Vincent says:

    I think that your responses to Theadora Roberts and to me posted together do help followers to understand that Keith Roberts was railroaded by a few people in the VA who went WAY beyond what most would even believe possible to rob him of his benefits and his liberty.
    I am sorry for your terminal health condition. I can empathize, somewhat, with you. I am a survivor of two different diseases that were deemed terminal. I beat one with a successful stem cell transplant and the other through mostly unconventional means. I will keep on keeping on as long as the Lord lets me

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