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VA Counsel Unilaterally Declares Law Protecting Vets 'Obsolete' in Gov Brief

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Message Michael Leon

Via MAL Contends

Can an attorney from the U.S. Department of Veterans Affairs (VA) declare a federal regulation obsolete because it interferes with the VA denying benefits to a veteran?


Yet this is what attorney Carolyn F. Washington, VA deputy assistant general counsel, proposes in the VA response brief opposing U.S. Navy veteran Airman Keith Roberts (1969-71). [Case is presently before the U.S. Court of Appeals for Veterans Claims (CAVC) (docket 05-2425)].

VA Attacks Veteran

The VA will go to any length, spend 1,000s of hours, and whatever money it takes to deny Keith Roberts the PTSD disability benefits that he deserves.

In Roberts’ extraordinary case, this veteran has been forced to fight his legal battles simultaneously against the VA and DoJ in two different courts on the same dispute.

As stated in his CAVC brief, Roberts notes: “The (VA) Secretary has caused a criminal prosecution in Federal District Court to be initiated against (Roberts) while he was still before (CAVC) litigating the same facts, transactions and occurrences. The VA regulation for initiating criminal charges against a veteran was not followed, 38 C.F.R. § 14.561."

This VA regulation, Title 38 § 14.561 reads: “Before a submission is made to the U.S, Attorney in cases involving personnel or claims, the … Regional Counsel at the regional office, hospital or center, if the file is in the regional office or other field facility, will first ascertain that necessary administrative or adjudicatory … action has been taken.”

In Roberts’ case, the VA regional counsel made no such determination of adjudicatory action; and in fact, top VA officials plotted to prevent such an analysis from taking place by engineering a prosecution by U.S. Atty Stephen Biskupic in the middle of the VA claim process, using the denial of VA benefits as evidence in the Grand Jury hearing and criminal trial.

Echoing the former attorney general Alberto Gonzales who decided that the Geneva Convention (which like federal regulations have the force of U.S. law on the land) is “obsolete” and “quaint,” the VA’s attorney (a political hack from a bottom-tier law school) argues in response to Roberts’ CAVC brief that the VA Office of Inspector General (OIG) personnel and the VA police, are “responsible for notifying the DOJ or the USA (US Atty) of possible criminal matters. … The authority and duty to refer criminal cases is vested in the VA police and the OIG. … it could be argued that, as it relates to criminal prosecutions, section 14.561 is obsolete.”

The VA police authority and role has been to tend to often-disturbed and violent veterans seeking medical and psychological assistance on VA property after coming home from service. The VA police have never been charged with investigating benefit claims, much less referring claim cases in the middle of VA adjudication to the US Atty’s office.

It should be noted that the US Atty’s office never put forth this argument made by the VA that would undoubtedly be shredded to pieces by the Court of Appeals for the Seventh Circuit’s panel, slated to hear oral arguments in the Roberts’ criminal trial—plotted and pushed on the US Atty’s office by top VA bureaucrats.

But these top VA bureaucrats did not include the regional counsel, and Roberts never received a written statement and a statement of the evidence supporting the charges, as required by Title 38 Code of Federal Regulations, Section 3.905 (b) Fraud.

Maybe the VA’s attorney will declare that this federal above regulation is also obsolete and quaint.
Legal questions and legal comments can be e-mailed to Robert Walsh at
Media on Keith Roberts
- Wisconsin Public Radio News (May 10)
- The Lee Rayburn show (June 29)
- Keith Roberts' Atty. on the Lee Rayburn show (June 6)
- WORT Radio - A Public Affair (May 25; begins at one minute, nine seconds)
Update: PTSD Resources




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Michael Leon is a writer living in Madison, Wisconsin. His writing has appeared nationally in The Progressive, In These Times, and CounterPunch. He can be reached at
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