           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 05-2425

KEITH A. ROBERTS,                                              APPELLANT ,

                V.


JAMES B. PEAKE , M.D.,
SECRETARY OF VETERANS AFFAIRS,                                 APPELLEE.


               Before GREENE, Chief Judge, and HAGEL and SCHOELEN, Judges.

                                             ORDER

        Veteran Keith A. Roberts appeals, through counsel, an August 26, 2005, decision of the
Board of Veterans' Appeals (Board) that determined that a May 1998 VA regional office decision
that had awarded service connection for post-traumatic stress disorder (PTSD) with dysthymia and
depression was based upon fraudulent evidence and was therefore the product of clear and
unmistakable error. As a result, the Board concluded that severance of service connection was
proper and denied entitlement to service connection on a secondary basis for several other
conditions.

        Mr. Roberts argues for reversal of the Board's determination that he committed fraud.
Alternatively, he argues that the Board erred by failing to provide an adequate statement of reasons
or bases for its conclusion that his claimed stressors were fabricated, and by relying on an inadequate
medical examination. Mr. Roberts also contends that the Secretary breached his 38 U.S.C. § 5103A
duty to assist by failing to obtain shore patrol reports or otherwise attempt to corroborate Mr.
Roberts' claimed PTSD stressors. Lastly, he urges the Court to vacate the remainder of the Board
decision because the matters are inextricably intertwined with the severance of service connection
issue.

         Mr. Roberts' original attorney, Christine M. Cote, withdrew as his counsel. Subsequently,
attorney Robert P. Walsh filed an appearance as counsel for Mr. Roberts. Mr. Roberts, through new
counsel and with the Court's permission, filed a supplemental brief in which he addresses, inter alia,
the fundamental questions of due process and the manner in which the Secretary must proceed in
benefits claims disputes where an allegation of fraud is made against a beneficiary. The Secretary
filed a supplemental brief in response, and on January 31, 2008, the case was submitted to the current
panel of judges. On February 12, 2008, Mr. Roberts filed an opposed motion for oral argument.

        To develop this matter fully, the Court requires supplemental memoranda of law from the
parties addressing the following:
               1. Whether in making the determination that severance of service connection
               is warranted, VA must consider all alternative bases for establishing service
               connection for the claimed disability that are raised either by the claimant or
               by the record before the agency? As part of this inquiry, the parties should
               discuss what, if any, effect Mr. Roberts' response (see R. at 1356) to the
               rating decision proposing severance of service connection has on any VA
               responsibility in this regard.

               2. If it is determined that VA must consider all alternative bases for
               establishing service connection, is the Secretary obligated under 38 U.S.C.
               § 5103A to assist the claimant in developing evidence in support of those
               bases?

               3. Whether the instructions to the VA examiner who conducted the
               November 2004 examination upon which a VA regional office and the Board
               relied to conclude that Mr. Roberts did not suffer from PTSD were
               impermissibly suggestive, or otherwise prevented the examiner from
               evaluating "all accumulated evidence" as required by 38 C.F.R. § 3.105(d)?


               4. What effect, if any, Mr. Roberts' February 2005 decision to cancel a
               scheduled VA medical examination (see R. at 1577-80) has on any of VA's
               duties related to assisting the claimant or ensuring that VA possesses
               adequate evidence to make a decision on the claim.

        The Court also seeks clarification from Mr. Roberts whether, given the change in counsel and
the supplemental brief filed by attorney Walsh, he has abandoned any arguments made in the original
brief in this case. The parties' memoranda of law should be no longer than 15 pages in length.

        Furthermore, because the Court believes that oral argument will materially assist in the
disposition of this appeal, the Clerk of the Court will set the matter for oral argument in Washington.
D.C. after the responses of the parties have been received and as soon as the business of the Court
permits. Cf. Winslow v. Brown, 8 Vet.App. 469, 471 (1996) (denying motion for oral argument
where Court does not believe it will materially assist the disposition of the appeal).

       Upon consideration of the foregoing, it is

       ORDERED that, not later than 30 days after the date of this order, each party shall file with
the Court, and serve on one another, a supplemental memorandum of law addressing the above
questions. It is further

        ORDERED that the appellant's February 12, 2008, motion for oral argument is granted in
part. The Clerk of the Court will set the matter for oral argument in Washington, D.C. as soon as
the business of the Court permits.

DATED:         July 8, 2008                            PER CURIAM.

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Copies to:

Robert P. Walsh, Esq.

VA General Counsel (027)




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