United States Court of Appeals 

for the Federal Circuit 

__________________________ 

KEITH A. ROBERTS, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7104 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in 05-2425, Chief Judge William P. 

Greene, Jr. 

_________________________ 

Decided: June 1, 2011 

_________________________ 

ROBERT P. WALSH, of Battle Creek, Michigan, argued 

for claimant-appellant. 

SCOTT D. AUSTIN, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were TONY WEST, 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of 

counsel on the brief were MICHAEL J. TIMINSKI, Deputy 
ROBERTS v. DVA 2

Assistant General Counsel, and MARTIE ADELMAN, Attorney, United States Department of Veterans Affairs, of 

Washington, DC. 

__________________________ 

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

O’MALLEY, Circuit Judge. 

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 
3 ROBERTS v. DVA

on either issue, we affirm.1 

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 

 1 We express no opinion on those portions of the 

opinion that the parties have not challenged on appeal. 

Specifically, we pass no judgment on the Veterans Court’s 

holding that severance of benefits based on fraud is not 

subject to a clear and unmistakable error (“CUE”) analysis under 38 C.F.R. § 3.105(d). See Roberts v. Shinseki, 23 

Vet.App. 416, 424-29 (2010). Roberts, through counsel, 

expressly disclaimed that he was appealing that ruling, 

both in his brief and at oral argument. See Appellant’s 

Br., pp. 37, 41 (stating that “§ 3.105(d) has no role in a 

benefits fraud case other than the implementation of the 

order from an ALJ or District Court under the PFCRA,” 

and “[w]hen benefits fraud is alleged, CUE is not available to the government, the allegation must be adjudicated under the PFCRA”); see also Oral Arg. at 11:12 – 

11:28 and 12:58 – 13:23, available at

http://www.cafc.uscourts.gov/oral-argumentrecordings/2010-7104/all (at oral argument, when asked 

whether he was appealing the Veterans Court’s holding 

that the CUE analysis does not apply in this case, Roberts’s counsel responded twice that CUE does not apply). 

For the same reasons, we do not address Roberts’s argument that there was not, in fact, any CUE in the Board’s 

original grant of benefits. Because the Veterans Court’s 

majority opinion did not address the propriety of the 

Board’s CUE finding, and because Roberts concedes that 

CUE does not apply to severance based on fraud, the 

Board’s CUE analysis is not properly before us. 
ROBERTS v. DVA 4

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 
5 ROBERTS v. DVA

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 
ROBERTS v. DVA 6

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 and that he has nightmares of the death of his 

friend.” Id. In 2002, Roberts requested reconsideration of 

his effective date. Ultimately, the RO changed his effective date to July 16, 1992, a date with which Roberts 

again disagreed.2

B. The OIG Investigation

In January 2004, Roberts complained by telephone to 

the VA Office of the Inspector General (“OIG”) that the 

 2 Around this time, Roberts also claimed service 

connection for other medical conditions secondary to his 

service-connected PTSD as well as for dysthymia and 

depression separate from PTSD. The RO denied these 

claims. Those decisions, and the Veterans Court’s decision to remand Roberts’s separate claim for dysthymia 

and depression, are not at issue on appeal. See infra, n.3. 
7 ROBERTS v. DVA

VA had mishandled his claim. Thereafter, in July 2004, 

the OIG investigated Roberts’s claim and issued a lengthy 

report, which found that Roberts’s statements about his 

presence at and involvement in the accident that caused 

Gary Holland’s death were not supported by the record. 

Specifically, the OIG found that the Navy Judge Advocate 

General (“JAG”) Corp report of the 1969 accident did not 

list Roberts’s name anywhere, and that Roberts was not 

mentioned in any of the nineteen witness statements 

about the accident. Several of the witnesses the OIG 

interviewed stated that Roberts worked in a different 

shop and was not present at the accident. Holland’s 

roommate reported that neither he nor Holland were 

friendly with Roberts. The OIG also interviewed Roberts 

in connection with its investigation, and reported that 

Roberts maintained his version of the events and “began 

to yell and curse” when confronted with evidence that 

contradicted his statements. JA 2554. The OIG provided 

the investigation report to the RO, the VA Secretary’s 

office, and the United States Attorney’s Office for the 

Eastern District of Wisconsin. 

C. Severance of Benefits

On August 18, 2004, the RO sent Roberts a notification proposing to sever his benefits on the basis of fraud. 

The letter outlined the findings contained in the OIG 

report and informed Roberts that the RO found Roberts’s 

statements regarding Gary Holland’s death to be fraudulent. In response, Roberts submitted a statement requesting that the VA refrain from severing his benefits until 

the proposed severance can be appealed to the Board of 

Veterans Appeals. On November 10, 2004, the RO issued 

a decision severing Roberts’s benefits on the basis of 

fraud. 

Roberts appealed the RO’s decision to the Board, 
ROBERTS v. DVA 8

which affirmed the decision to sever benefits pursuant to 

a two-step inquiry. First, it found fraud on the basis of 

the OIG investigation, such that Roberts’s benefits were 

subject to severance even though they were in effect for 

more than 10 years. See 38 C.F.R. § 3.957 (benefits in 

effect for more than 10 years “will not be severed except 

upon a showing that the original grant was based on 

fraud . . .”). Next, under 38 C.F.R. § 3.105(d), the Board 

found that the government established that there was 

CUE in the original RO decision granting benefits. The 

Board also rejected Roberts’s argument that the VA 

should have considered his December 1969 shore patrol 

incident as a possible stressor before severing benefits. It 

found that “no additional stressors were in fact presented 

to the VA in connection with the veteran’s initial claim of 

entitlement to service connection for PTSD.” JA 931. It 

also noted that the May 1998 rating decision cited only 

the death of Gary Holland as a stressor, as did the March 

1998 examination report on which the rating decision was 

based. Id. 

On April 23, 2010, the Veterans Court issued an en 

banc decision with two separate opinions concurring in 

part and dissenting in part. See Roberts v. Shinseki, 23 

Vet.App. 416 (2010) (en banc). The majority affirmed the 

severance of benefits based on fraud but found that the 

CUE analysis of 38 C.F.R. § 3.105(d) does not apply to 

severance proceedings alleging fraud.3 Id. at 424-29. In 

 3 As noted above, this holding is not at issue on appeal, and we do not address it. See supra, n. 1. The 

majority also concluded that the Board erred in denying 

Roberts’s separate claim for dysthymia and depression. 

Roberts, 23 Vet.App. at 430-31. It remanded the matter 

for the Board to conduct that analysis and consider additional evidence from Roberts on this point. Id. at 430. On 

appeal, the Secretary does not challenge the Veterans 

Court’s decision to remand this aspect of the case. See 
9 ROBERTS v. DVA

the absence of any specific regulation governing severance 

based on fraud, the court found that general due process 

safeguards of 38 C.F.R. § 3.103 set out the applicable 

procedures. As it pertains to this appeal, the Veterans 

Court was unanimous in rejecting Roberts’s argument 

that the VA was required to refer allegations of fraud to 

an administrative law judge (“ALJ”) pursuant to the 

PFCRA. Id. at 424. The court found that, “under § 42 of 

the implementing regulation, no allegations of liability 

may be referred to an ALJ if the false claims or false 

statements resulted in a monetary gain of more than 

$150,000.” Id. (citing 38 C.F.R. § 42.6(a)(2) and 31 U.S.C. 

§ 3803(c)(1)). Because Roberts received over $320,000 in 

VA benefits, the Veterans Court found no error in not 

referring this case to an ALJ under the PFCRA. Id. The 

Veterans Court also upheld the Board’s determination 

that the VA was not required to consider evidence of 

alternate stressors before severing Roberts’s benefits, 

noting that Roberts failed to provide evidence of additional stressors within the 60-day period to do so. Roberts, 23 Vet.App. at 429-30. The court also noted that 

Roberts could pursue a separate claim based on any 

additional stressors, but that, in this case, “the Board did 

not adjudicate a claim for service connection for PTSD 

based on stressors other than the stressor found to be 

fraudulent (e.g., the shore patrol incident) and was not 

required to do so as part of the severance proceeding.” Id.

at 430, n.6 (emphasis in original). 

D. Criminal Prosecution

Contemporaneous with the VA’s proceedings to sever 

Roberts’s benefits, Roberts was indicted on five counts of 

 

Oral Arg. at 17:40–17:50, available at

http://www.cafc.uscourts.gov/oral-argumentrecordings/2010-7104/all. 
ROBERTS v. DVA 10

wire fraud, based on allegations that he “did knowingly 

devise and participate in a scheme to defraud the VA of 

compensation benefits,” and that, “[a]s a result, Roberts 

wrongfully obtained from the VA in excess of $320,000.” 

United States v. Roberts, Case No. 05cr118 (E.D. Wis. 

Sept. 13, 2005) (superseding indictment, ECF No. 32-2). 

A jury convicted Roberts on all five counts, and the district court sentenced Roberts to 48 months imprisonment 

and ordered restitution in the amount of $262,943.52. Id.

at ECF Nos. 150, 171. The Seventh Circuit affirmed, 

rejecting, among others, Roberts’s argument that the 

district court lacked jurisdiction because the Veterans 

Court possesses exclusive jurisdiction to review Board 

decisions. United States v. Roberts, 534 F.3d 560, 567-68 

(7th Cir. 2008). 

STANDARD OF REVIEW

Our review of Veterans Court decisions is limited by 

statute. Under 38 U.S.C. § 7292(a), we may review “the 

validity of a decision of the [Veterans] Court on a rule of 

law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual 

matter) that was relied on by the Court in making the 

decision.” Unless the appeal presents a constitutional 

issue, we “may not review (A) a challenge to a factual 

determination, or (B) a challenge to a law or regulation as 

applied to the facts of a particular case.” 38 U.S.C. § 

7292(d)(2). We review legal determinations by the Veterans Court under a de novo standard. See Arzio v. Shineski, 602 F.3d 1343, 1345 (Fed. Cir. 2010). 

The Veterans Court’s decision that the PFCRA does 

not require the VA to refer this matter to an ALJ is a 

decision involving a statutory interpretation and, thus, is 

within our jurisdiction to review. In addition, the question of whether the VA, in the context of a severance 
11 ROBERTS v. DVA

proceeding, must consider evidence of alternate stressors 

before severing benefits that were awarded on the basis of 

a single, fraudulent stressor, is a challenge to a rule of 

law that is also within our jurisdiction to review.4 

DISCUSSION

A. The PFCRA

The PFCRA was enacted in 1986 to allow administrative agencies to pursue remedies for false or fraudulent 

claims for benefits or payments. See 31 U.S.C. § 3802; 

Vermont Agency of Natural Res. v. United States ex rel. 

Stevens, 529 U.S. 765, 786, n.17 (2000); Orfanos v. Dep’t 

of Health & Human Servs., 896 F. Supp. 23, 24-25 (D.D.C. 

1995). The statute subjects violators to a civil penalty of 

$5,000 per claim and to an assessment, in lieu of damages, of up to twice the amount of such claim. 31 U.S.C. § 

3802(a)(1); 38 C.F.R. § 42.3(a). According to the VA’s 

implementing regulations, allegations of liability under 

the PFCRA are referred to the VA OIG, who conducts an 

investigation and reports to the VA General Counsel. 38 

C.F.R. § 42.4. If the General Counsel believes there is 

adequate evidence of liability, the General Counsel can 

only issue a complaint under this regulatory scheme after 

providing written notice to the Attorney General of its 

intentions and after receiving a statement of approval 

from the Attorney General. Id. at §§ 42.5, 42.6. After the 

General Counsel issues a complaint and receives an 

answer, the matter is referred to an ALJ for a hearing. 

 4 Although it is unclear, Roberts appears to challenge the underlying determination that he committed 

fraud. The question of whether Roberts’s statements 

were fraudulent, however, is a factual question over 

which we lack jurisdiction. See 38 U.S.C. § 7292(d)(2); 

Flores v. Nicholson, 19 Vet.App. 516, 522 (2005) (findings 

of fraud are factual questions). 
ROBERTS v. DVA 12

38 C.F.R. § 42.11. 

The PFCRA is a “sister scheme” to the False Claims 

Act (“FCA”) and is “designed to operate in tandem with 

the FCA.” Stevens, 529 U.S. at 786, n.17. The legislative 

history of the PFCRA indicates that it was intended to 

address “small-dollar cases” of fraud against the government because, in such cases, the “cost of litigation generally exceeds the amount recovered, thus making it 

economically impractical for the Justice Department to go 

to court.” See H.R. Rep. No. 99-1012, at 257-59 (1986) 

(Conf. Rep.), reprinted in 1986 U.S.C.C.A.N. 3868, 3902-

04. Consistent with that purpose, the PFCRA does not 

apply to allegations of liability where the fraudulent 

claims at issue are for more than $150,000. 31 U.S.C. § 

3803(c)(1); 38 C.F.R. 

§ 42.6(a)(2). The legislative history refers to this figure as 

a “jurisdictional cap.” H.R. Rep. No. 99-1012, at 259. 

Roberts’s fundamental argument on appeal is that the 

PFCRA is “controlling law,” such that “[o]nce an allegation of fraud has been made the PFCRA must be followed.” Appellant’s Br., pp. 5, 40, 49. He contends that 

VA employees “may not conduct fraud adjudications,” 

because such adjudications are quasi-criminal in nature, 

are unsuitable for ex parte adjudication, and are inconsistent with the VA’s veteran-friendly claims process.5 Id. 

 5 Notably, Roberts’s position before this court directly contradicts his position during his criminal proceeding. In that proceeding, Roberts moved to dismiss the 

indictment, arguing that the VA was the appropriate 

agency to make determinations about veterans benefits 

because of its “specialized knowledge, expertise and 

connection with the regulation of Veterans’ Benefits.” 

United States v. Roberts, Case No. 05cr118 (E.D. Wis. 

May 9, 2006) (Motion to Dismiss the Indictment on 

Grounds of Violation of Separation of Powers Doctrine, 
13 ROBERTS v. DVA

Roberts contends that, if the VA referred this matter to an 

ALJ pursuant to the PFCRA, Roberts would have had 

“proper notice, a neutral forum, and due process as provided by the Fifth and Sixth Amendments of the Constitution.” Reply Br., p. 1. In effect, Roberts argues that the 

VA’s only course of action to sever his benefits because of 

fraud was through the PFCRA, and because the VA did 

not follow that course, it improperly severed Roberts’s 

benefits and violated his constitutional rights. 

There are several reasons why Roberts’s position is 

without merit. Most significantly, the PFCRA is not an 

exclusive remedy. The remedies it provides are “in addition to any other remedy that may be prescribed by law.” 

31 U.S.C. § 3802(a)(1). Even if the VA were required to 

act pursuant to the PFCRA, that would have no effect on 

the VA’s ability to sever Roberts’s benefits. 

The Veterans Court also correctly concluded that the 

jurisdictional cap in the PFCRA precluded the VA from 

pursuing a complaint under that statute. Roberts, 23 

Vet.App. at 424. The PFCRA does not apply when more 

than $150,000 “is requested or demanded in violation of 

[31 U.S.C. § 3802]” in a fraudulent claim or a group of 

related fraudulent claims. 31 U.S.C. § 3803(c)(1); 38 

C.F.R. § 42.6(a)(2). As indicated above, the legislative 

history expressly refers to this restriction as a “jurisdictional cap.” H.R. Rep. No. 99-1012, at 259. Here, the 

record clearly reflects that Roberts’s fraudulent claims 

exceeded the $150,000 jurisdictional threshold of the 

PFCRA. Indeed, Roberts appears to concede as much. 

Reply Br., p. 14. That the jurisdictional threshold was 

exceeded is confirmed by the results of Roberts’s criminal 

proceeding, in which Roberts was ordered to pay over 

 

ECF No. 103, p. 5). Here, Roberts argues the opposite – 

that the VA is incapable of making such determinations. 
ROBERTS v. DVA 14

$260,000 in restitution. Thus, putting aside whether the 

PFCRA was the required procedure, it clearly was not 

available given the amount of penalties and assessments 

at issue. 

Roberts contends that the $150,000 amount is not jurisdictional, citing Orfanos v. Department of Health & 

Human Services, 896 F. Supp. 23 (D. D.C. 1995). In that 

case, however, the petitioner fraudulently obtained only 

$13,400 in violation of the statute, far below the jurisdictional cap. Id. at 25. Although the district court affirmed 

an award of $196,800 under the PFCRA, the vast majority 

of that was based on an assessment of $170,000 in penalties and an additional $13,400 as a result of double damages, amounts which are not considered for purposes of 

the jurisdictional limit. That case, therefore, did not 

implicate the PFCRA’s jurisdictional cap and does not 

support Roberts’s argument.

Finally, even if the amount at issue was less than 

$150,000, there is nothing in the relevant statutory or 

regulatory language that compels the VA to act pursuant 

to the PFCRA in lieu of utilizing its own procedures. 

Roberts’s assertion that the VA is not permitted to act on 

matters relating to fraud is inconsistent with the statutes 

and regulations that specifically refer to severance of 

service connection based on fraud. See, e.g., 38 U.S.C. § 

1159 (service connection for disability or death in effect 

for ten or more years shall not be severed “except upon a 

showing that the original grant of connection was based 

on fraud”); 31 C.F.R. § 3.957 (same).

To the extent Roberts challenges the VA’s ability to 

recoup benefits through avenues other than the PFCRA 

(as distinct from severing them), that argument is without merit. The Government has several mechanisms at 

its disposal to recover benefits resulting from fraudulent 
15 ROBERTS v. DVA

claims, and the PFCRA specifically contemplates parallel 

criminal proceedings. See 31 U.S.C. § 3803(b)(3) (providing that a proceeding under the PFCRA shall be stayed if 

the Attorney General believes it “may adversely affect any 

pending or potential criminal or civil action” (emphasis 

added)); 38 C.F.R. § 42.4 (contemplating deferring a 

report to a reviewing official “to avoid interference with a 

criminal investigation or prosecution”). Indeed, the very 

purpose of requiring agencies to obtain approval from the 

Attorney General before instituting an administrative 

proceeding under the PFCRA is to permit the Attorney 

General to pursue an action at his election. See H.R. Rep. 

No. 99-1012, at 258 (“This procedure ensures that the 

[Justice] Department will have an opportunity to review 

the charges and elect, if it so chooses, to litigate in federal 

court”). In this case, the Government instituted a criminal proceeding, and Roberts concedes that there is a valid 

and enforceable criminal restitution order in place.6 

Moreover, the VA’s severance of benefits based on 

fraud does not improperly displace other mechanisms to 

recoup benefits because severance simply cuts off benefits 

prospectively, it does not result in the automatic recovery 

of past payments. While it is true that the effective date 

of a “discontinuance or reduction” of benefits based on an 

act of commission or omission by the payee is the effective 

date of the award, 38 U.S.C. § 5112(b)(9); 38 C.F.R. § 

3.500(b)(1), that only establishes that there has been an 

overpayment of benefits. The Government can recoup 

that overpayment through several avenues, including 

through a criminal proceeding, the PFCRA, if applicable, 

or the FCA. Here, the Government pursued a criminal 

proceeding, which, as discussed above, is entirely com-

 6 See Oral Arg. at 5:35-5:45, available at 

http://www.cafc.uscourts.gov/oral-argumentrecordings/2010-7104/all. 
ROBERTS v. DVA 16

patible with the PFCRA. 

Roberts also contends that the VA violated his Fifth 

and Sixth Amendment rights by failing to refer the matter to an ALJ pursuant to the PFCRA. Specifically, he 

asserts that he “was denied a copy of the OIG report, a 

full statement of the allegations against him, and the 

opportunity to challenge them.” Appellant’s Br., p. 6. To 

the extent this argument reiterates his contention that 

the VA was required to act pursuant to the PFCRA, we 

reject it for the reasons stated above. 

We do not see any other support for Roberts’s contention that his constitutional rights were violated. In 

August 2004, the VA provided notice to Roberts of its 

proposed severance of his service connection with a cover 

sheet explaining his rights to submit evidence within 

sixty days, to request a personal hearing, and to legal 

representation. The notice referred to the OIG investigation (about which Roberts was aware because he was 

interviewed in connection with that investigation), included five paragraphs detailing the findings of the investigation, and the reasons why the VA found Roberts’s 

prior statements regarding Holland’s death to be fraudulent. On appeal, the Board conducted a hearing in June 

2005, at which Roberts and his wife testified and during 

which he was represented by counsel. The Veterans 

Court correctly concluded that these procedures satisfied 

the VA’s procedural due process safeguards.7 See 38 

C.F.R. § 3.103 (“Every claimant has the right to written 

 7 As noted above, Roberts also was convicted of 

fraud in a criminal proceeding in federal district court 

under a much higher “beyond a reasonable doubt” standard and with the benefit of the accompanying constitutional safeguards inherent in such a proceeding. His 

conviction was affirmed on appeal by the Seventh Circuit. 

United States v. Roberts, 534 F.3d 560 (7th Cir. 2008). 
17 ROBERTS v. DVA

notice of the decision made on his or her claim, the right 

to a hearing, and the right of representation”). Accepting 

Roberts’s position on this point would require this court to 

find that the VA’s procedural safeguards, even when 

followed faithfully, do not satisfy the requirements of 

constitutional due process. We find no justification for 

such a conclusion. 

B. Consideration of Other Stressors 

Roberts also argues that the Board erred in failing to 

consider additional stressors, such as the December 1969 

shore patrol incident described above, before severing his 

benefits based on fraud. The Board rejected this argument, finding that: (1) no additional stressors were 

presented to the VA in Roberts’s initial claim of service 

connection for PTSD; (2) the May 1998 rating decision 

cited only the death of Gary Holland as a stressor; and (3) 

the March 1998 examination report on which the rating 

decision was based cited only Gary Holland’s death as a 

stressor. The Board also observed that “it appears that 

the veteran raised the purported additional stressors only 

after service connection for PTSD was granted and the 

veteran’s role in the Gary H. incident was being questioned, evidently in an effort to shore up a claim which 

was in the process of falling apart.” JA 931. The Veterans Court upheld the Board’s determination, noting that 

Roberts could pursue a separate claim based on any 

additional stressors, but that the Board here did not 

adjudicate a claim for service connection on stressors 

other than the one found to be fraudulent. Accordingly, it 

held that the Board was not required to consider other 

stressors “as part of the severance proceeding.” Roberts, 

23 Vet.App. at 430, n.6. 

We agree with the Veterans Court. Roberts presented 

only one stressor as part of his initial claim, which the 
ROBERTS v. DVA 18

Board ultimately determined to be fraudulent. Under 

those circumstances, the Board did not err in severing 

Roberts’s benefits before considering other potential 

stressors.8 

CONCLUSION

For the reasons stated above, the decision of the Veterans 

Court is affirmed. 

COSTS

Each party shall bear its own costs. 

AFFIRMED 

 8 We also have considered Roberts’s other arguments and find them to be without merit or so perfunctory 

as to be insufficient to raise an argument on appeal.