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Keith A. Roberts v. Eric K. Shinseki

June 1, 2011

KEITH A. ROBERTS, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in 05-2425, Chief Judge William P. Greene, Jr.

The opinion of the court was delivered by: O'malley, Circuit Judge.

Before GAJARSA, PROST, and O'MALLEY, Circuit Judges.

This appeal involves the severance of a veteran's service-connected benefits based on a finding of fraud. Specifically, a Department of Veterans' Affairs ("VA") regional office ("RO") severed veteran Keith A. Roberts's benefits for post-traumatic stress disorder ("PTSD") after an investigation revealed that Roberts provided fraudulent statements in connection with his claim. Those fraudulent statements related to the sole in-service stressor the RO identified when awarding benefits in 1998. As it relates to this appeal, the Board of Veterans' Appeals ("Board") found that the severance was proper, and the United States Court of Appeals for Veterans Claims ("Veterans Court"), sitting en banc, affirmed. See Roberts v. Shineski, 23 Vet.App. 416 (2010) (en banc).

Because Roberts, represented by counsel, challenges only discrete aspects of the Veterans Court decision, the issues on appeal are narrow. The first is whether the VA and the Board erred by severing Roberts's benefits in accordance with the VA's regulations rather than pursuant to the procedures set forth in the Program Fraud Civil Remedies Act of 1986 ("PFCRA"), 31 U.S.C. § 3801 et seq. The second is whether the VA was required to review Roberts's medical records for alternate stressors before severing his benefits, when the only stressor cited in his ratings decision, and the underlying PTSD examination, was found to be fraudulent. Because the Veterans Court correctly decided that the Board did not err in its decision on either issue, we affirm.*fn1

BACKGROUND

Roberts served on active duty in the United States Navy from March 1968 to December 1971, spending the majority of his service stationed at a Naval Air Facility in Naples, Italy. During a March 1991 psychiatric examination at a VA medical center, Roberts reported that he witnessed the death of a friend, Gary Holland, in an accident at an airplane hangar while they were stationed together in Naples. The accident occurred on February 4, 1969. According to the medical report, Roberts indicated that part of a plane fell on and crushed Holland, and that Roberts "was arrested for damaging the plane while trying to extricate his friend." Joint Appendix ("JA") 1062. The examiner noted that "nothing appears in the service records about this incident." Id.

Roberts also reported during the same examination that, in a separate incident on December 13, 1969, he was "arrested, placed in a straight jacket and restraints by shore patrol." Id. Roberts's clinical records corroborate that incident, indicating that, after having a few drinks, Roberts became annoyed when shore patrol asked him questions and for identification, fled and fell into a ditch, and then became "combative and assaultive" when taken to the dispensary. JA 969. The examiner diagnosed Roberts as having dysthymia with irritability and mixed personality disorder with antisocial and borderline features.

A. Roberts's Award of Disability Benefits

In August 1993, Roberts submitted a claim for disability compensation for an acute personality disorder, which he amended in February 1994 to include service connection for PTSD. In support of his claim, he submitted a letter to the RO in which he detailed the events of the death of his "very good friend" Gary Holland in 1969. JA 1185-86. In the letter, Roberts reported that Holland was working on a plane when Holland's coat became entangled on a safety pin on the plane, releasing the safety pin and causing a piece of the plane to fall on and crush Holland. Roberts went on to write the following:

I proceeded to sound the alarm, ran over to the plane to assess the situation at which time I found Gary still conscious and coherent. I informed him I would get him out and then proceeded to run next door to the Ground Support Unit, informed a chief petty officer of the situation and ordered him to bring a cherry picker to the front of the hanger [sic] to lift the plane.

As I was returning to the hanger [sic] I confronted my 1st class superior and informed him to place a ladder at the rear hatch of the plane and load men into the tail section to relieve the front[.] I then proceeded to the front of the plane and instructed the [ground support engineering] chief to puncture the radome of the plane to lift it up[.] [A]t this time a [lieutenant commander] who informed me he was the safety officer ordered me to stop [and] when I refused, he had me placed on arrest by a Marine guard[.] The [lieutenant commander] then proceeded to have air bags placed under the plane to lift it (this took approx 10-12 minutes, my method would have taken only a few minutes). The [lieutenant commander] stated that it was more important to save the plane than it was to save the man. When the plane had risen enough [. . .], I broke away from the guard and I and another shipmate proceeded under the plane and extradited [sic] Gary to an awaiting corpsman who gave Gary a shot of Adren[a]lin[e] in the heart and revived him. He was then transported by chopper to the NATO Hospital where he passed away the next day (brain dead).

I have always believed Gary would have lived had I not be[en] thwarted in my rescue attempts.

JA 1185-86. In March 1998, Roberts underwent a VA PTSD examination and again reported the death of Gary Holland as a traumatic stressor. The examiner diagnosed Roberts with, among other things, chronic PTSD.

A few months later, in May 1998, the RO awarded Roberts a 50% disability rating for service-connected PTSD, effective August 4, 1993. The Rating Decision cited only one stressor to support its determination that Roberts's PTSD was directly related to military service -- Roberts's presence at and role in the accident that caused Gary Holland's death. JA 1285-91. Roberts disagreed with the disability rating, and, in May 1999, the VA awarded him a 100% disability rating for PTSD with dysthymia and depression, effective August 4, 1993. The Rating Decision noted that "[t]he veteran reported that he thinks about the traumatic event of his friend's death three to four times each month at the minimum and when he is reminded of the event he can think of the events weekly or more." JA 1308. Roberts also stated that "he is preoccupied with the trauma for six to seven days at a time," and he reported "increased problems with anger control ...


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