Leading and Persuasive Decisions

Representative: Dawn M. Francis
Decision No: 100002312943
Decision Type: Entitlement Reconsideration Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 6 October 2015

Summary

The Applicant had previously been denied a compassionate award under section 34 of Veterans Review and Appeal Board Act (VRAB Act) by a previous Panel in a decision from 3 December 2014. The Board determined that it would reconsider the 2014 decision pursuant to subsection 34(7), because the previous Panel had erred by interpreting section 34 to mean an Applicant must exhaust avenues of redress for every medical condition which had previously been the subject of an application for pension entitlement.

The Reconsideration Panel concluded that application for a compassionate award could proceed where the Board had found that the Applicant was unqualified to receive one of the awards or benefits referenced under subsection 34(1). This prerequisite was satisfied in the Applicant’s case since his application for a compassionate award was based on a claim for cervical disc disease where entitlement had previously been denied by an Appeal Panel under the Pension Act.

However, the Reconsideration Panel was unable conclude that the evidence and submissions made on the Applicant’s behalf established a “specially meritorious case” for a compassionate award under subsection 34(3) of the VRAB Act.

First, the Reconsideration Panel reviewed the wording of section 34 and concluded that since a compassionate award is a discretionary award that is intended to provide assistance on a compassionate basis, it is essential that the Applicant show that he or she requires assistance because he/she is in a state of need. The Reconsideration Panel also considered the comments of the Wood Committee Report which indicated that evidence of special circumstances should be present in a case, because economic or financial need alone is not sufficient grounds for approving an application for compassionate award.

Accordingly, there should be evidence of medical or financial need that exceeds the Applicant's ability to pay. There should also be some evidence of expenses in relation to necessities such as medication, food, housing or medical treatment that the Applicant is unable to satisfy.

The Panel also found that the applicant’s need for financial assistance should be related to the medical same condition, or the same set of circumstances for which statutory entitlement had been previously refused. This conclusion is supported by a reading of subsection 34(4) which limits the amount of the compassionate award to the amount to which the applicant would have been entitled to receive if the earlier claim for entitlement had not been refused. The Panel also found that the compassionate award is not intended to be a general assistance program or to replace other social programs or benefits that are generally available to Canadians. This is evident from the fact that a compassionate award is limited to veterans and contingent upon denial of an award or legislative benefit that is restricted to veterans, and is under the VRAB’s exclusive jurisdiction. Accordingly, there should be some connection between the circumstances have resulted in the applicant’s financial need, and service in the Forces or the RCMP.

The following questions will be relevant when in determining whether a compassionate award is merited under subsection 34(3):

• Is the applicant in need?
• Does income exceed expenses?
• What is the nature of the identified expenses?
• Is the applicant’s need related to a medical condition or a claim for entitlement, that had been previously denied?
• What proportion of the applicant’s expenses is specifically related to the need for medications, treatments and assistive devices associated with the previously claimed medical condition?
• Is there a relationship between the Applicant's service and the medical condition, or any other circumstances which are contributing to the applicant’s need?
• Does the applicant’s income deficit or financial need arise from expenses relating to the necessities of life, medications and other aids for the Applicant?

The Reconsideration Panel found that the circumstances of the Applicant’s case did not establish that he was in need as required by section 34 of the Act. The reason that the Applicant had requested a Compassionate Award was to have money to purchase a motor scooter for greater mobility, and a more reliable car, and to save money for future expenses. The Reconsideration Panel said that while these were items that the Applicant desired, they could not be characterized as needs. Although the Applicant had not provided all of the financial information that is required by the Board under section 34, he did provide enough information to show that he had a monthly surplus after his expenses. There was also no evidence of any exceptional medical expenses related to his neck condition or other health problems. The Board was therefore unable to grant a compassionate award under section 34.

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Representative:

Steven Woodman, BPA

Decision No:

100002386692

Decision Type:

Entitlement Appeal

Location of Hearing:

Charlottetown, Prince Edward Island

Date of Decision:

22 May 2015

Principle of law that the case stands for or establishes:

Section 72 of the Pension Act outlines the determinative factors for the award of an Exceptional Incapacity Allowance (EIA). A member of the forces who is in receipt of a pension in the amount set out in Class 1 of Schedule 1 (greater than 98%); and suffers from an exceptional incapacity that is a consequence of or caused in whole or in part by the disability for which the member is receiving a pension or disability award shall be awarded an EIA. The effective date of the award can be determined by establishing when the Applicant or Appellant satisfies both of these statutory requirements.

Summary

An Entitlement Appeal Panel, pursuant to a Federal Court Consent Order, reconsidered an Appellant's application to vary the effective date of his Grade 2 Exceptional Incapacity Allowance (EIA).

In previous proceedings, EIA at Grade 2 had been awarded to the Appellant effective 29 October 2012. This date represented his date of application for his EIA claim. The Appellant argued that he suffered an Exceptional Incapacity as of 17 February 2009, which was the effective date that his various pensioned conditions reached the 98% threshold noted in Section 72 of the Pension Act.

On reconvening the matter, the Appeal Panel clarified the distinction between the effective date of the decision that establishes that a veteran has reached the 98% threshold and the date in which the Appellant was actually in receipt of a pension in the amount set out in Class 1 of Schedule I of the Pension Act. The word “receipt” was used in Section 72 and not “effective date” or “effective date of award” as are used in other sections of the Pension Act. As a matter of statutory interpretation, the Panel found that the specific word “receipt” was used on purpose, and should be taken to have the plain meaning of the word. The Panel determined that the Appellant was “in receipt” of a pension in the amount set out in Class 1 of Schedule I of the Pension Act on 25 March 2010.

With respect to the additional statutory requirement concerning suffering, the Panel determined through its examination of the medical evidence, that the earliest date on which the Appellant was suffering from an exceptional incapacity was March 2011. The evidence demonstrated that this was the time in which the physical symptoms leading to the testing for, and diagnosis of, his kidney cancer became apparent. The Panel extended the benefit of doubt to the Appellant and found that these symptoms would have affected his outlook and disposition.

Therefore, the Appeal Panel determined that the earliest date on which the Appellant satisfied both requirements set out in Section 72 of the Pension Act, was 01 March 2011. As a result, the Appeal Panel awarded a Grade 2 Exceptional Incapacity Allowance effective that date.

Representative:

Susan O'Keefe, BPA

Decision No:

100001804659

Decision Type:

Assessment Review

Location of Hearing:

St. John's, Newfoundland and Labrador

Date of Decision:

9 January 2013

In reviewing the Department's 2012 reassessment decision for Tinnitus, the Review Panel concluded that the Department had erred in failing to take into account the evidence which showed that a masking device had been recommended in 2009 by the Applicant's audiologist. Based on this evidence, the Review Panel determined that the Applicant's Medical Impairment Rating under Table 9.3 of the Veterans Affairs Canada Table of Disabilities should have been “10." This would mean that the Applicant's overall disability rating for Tinnitus should be increased from 6% to 11%.

The Panel also concluded that the evidence concerning the masking device had been available to the Department when it made its initial assessment decision in 2009 and should have resulted in an 11% disability assessment at that time. The Panel accepted the Advocate's argument that section 39 of the Pension Act applied to assessment decisions. Based on the reasoning of the Federal Court of Appeal in MacDonald, the Review Panel was satisfied that section 39 could permit a retroactive increase to correct an error made by the Department in an earlier assessment decision. The Review Panel granted an increase to 11% with three years of retroactivity under section 39(1)(b) of the Pension Act, to correct the error made by the Department in its previous assessment decision of 2009.

Representative:

Jacquie El-Chammas

Decision No:

100001779456

Decision Type:

Federal Court Order to Rehear - Entitlement Appeal

Location of Hearing:

Charlottetown, Prince Edward Island

Date of Decision:

9 August 2012

Principle of law that the case stands for or establishes:

Summary

Involves a case where the Federal Court ordered the Board to rehear the Appellant's claim for Multiple Sclerosis (MS) as a consequence of Post Traumatic Stress Disorder (PTSD). The VRAB had recently awarded the Appellant disability entitlement of 1/5th for PTSD based on his claim that stress caused by a delay in procuring an MRI that was required to diagnosis MS resulted in an aggravation/exacerbation of his MS. In his claim for MS, he alleged that this stress from PTSD also aggravated/exacerbated his MS.

The Court returned the matter to the Board with specific instructions that the Panel should seek Independent Medical Advice (IMA) with respect to six specific questions surrounding the Appellant's case. The resulting IMA reviewed medical literature and advised that the medical literature neither supported the conclusion that PTSD, or stress, would be the sole or entire cause of MS, nor did it support the conclusion that it contributed to the onset, progression, or permanent worsening of the symptoms and disability from the MS.

Given the credible and objective IMA, and the medical evidence on file, the Panel concluded that there was no basis upon which a consequential award for MS could be made based on the Appellant's PTSD/stress.

Representative: Mary Ann Burke-Matheson, BPA
Decision No: 100001718315
Decision Type: Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 11 July 2012

Principle of law that the case stands for or establishes:

In the event that generic medical information has been omitted from the Board's SOC, it can be introduced at the hearing, provided that the advocate is provided with an adjournment that will enable them to review the material. This is consistent with the Board's obligations of procedural fairness under section 40 of the VRAB Act.

Summary

Upon reviewing the VRAB SOC prior to the hearing, the appeal panel discovered that a generic medical information package concerning the etiology of the claimed condition of Obstructive Sleep Apnea (“OSA”) had been omitted from the Board's SOC. The Panel noted the omission at the hearing and indicated to the advocate that the panel would be considering generic medical information concerning the causes of OSA from the Mayo Clinic in making its decision. Although the Panel stated that it would provide the advocate with an adjournment to review the newly introduced material, the advocate objected that to introduce the information at the hearing would compromise procedural fairness and be inconsistent with the Board's obligations under section 40 of the VRAB Act.

In its decision, the appeal Panel observed that section 40 of the VRAB Act directs that the Board conduct its hearings in the most expeditious and informal manner that the interests of fairness will allow. The interests of fairness under section 40 of the VRAB Act have several aspects. The most obvious is that the appellant must always be given an opportunity to make submissions on all issues that are relevant to their decision. Another aspect is that the Board must promote the consistent and predictable application of similar principles in similar cases, throughout its body of decisions. In order to facilitate this, the Board must ensure that its panels have consistent access to reliable and objective medical information concerning the disability or medical condition that is before them. It is for this reason that the Board now includes generic medical information from reliable sources in the VRAB's SOCs, if there is no suitable VAC EEG on the condition or disability. Ideally such information is provided in the pre-hearing package SOC sent to the appellant and their representatives.

The Appeal Panel concluded that it is consistent with the Board's obligations under section 40 to introduce generic medical information at the hearing in cases where generic medical information is inadvertently omitted from the Board's SOC at the pre-hearing stage of the process, if the advocate is offered an adjournment for the purpose of reviewing the material. This point was already confirmed by the Federal Court decision in the Deschênes case, where the Federal Court concluded that the Board was entitled to consult medical information from external sources, provided that the appellant be given an opportunity to address any medical issues that are raised or identified as a result, before a decision is issued.

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Representative:

Daniel Assh, BPA

Decision No:

100001746169

Decision Type:

Entitlement Review

Location of Hearing:

Teleconference/Videoconference

Date of Decision:

27 March 2012

Principle of Law Established

It is reasonable for the Department of Veterans Affairs to consider benefits that may be available from other VAC programs such as VIP, or provincial programs, when determining whether the Veteran is “in need of attendance” within the words of section 38 of the Pension Act. However, it is always necessary to consider the circumstances of each case when doing so. Here it was not reasonable for the Department to deny Attendance Allowance on the basis that the Veteran's needs could be met by a provincial program when the Veteran had already encountered problems in using the program and it appeared that it may be unsuitable to meet his needs.

Summary

The issue in this case was whether the Department could refuse Attendance Allowance under section 38 of the Pension Act on the basis that the Veteran's need for attendance could be met by the province of Alberta's Home program, and topped-up by VIP benefits.

The Veteran required significant personal care due to Alzheimer's disease and other disabilities which left him totally disabled. Provincial Home Care services for the province of Alberta had already been involved in the Veteran's care, but withdrew those services due to concerns for employee safety. The Veteran's family then hired a personal care worker to care for him at home, using their own funds. The Department denied the claim for Attendance Allowance on the basis that the Veteran's need for attendance could be met through the provincial program, as supplemented by the VAC VIP program.

The Review panel concluded that the Department's decision erred in law because it was based on the VIP program policy, rather than on the relevant criteria under section 38 of the Pension Act and Article 38 of the Veterans Affairs Pension Policy Manual. Furthermore, the decision was unreasonable given the circumstances of the case, since the Provincial Home Care program had already proven unsuitable to meet the Veteran's needs.

Representative:

Lise Cormier, BPA

Decision No:

100001676107

Decision Type:

Entitlement Review

Location of Hearing:

Bathurst, New Brunswick

Date of Decision:

15 September 2011

A case involving an application for a low back condition under 21(2) Regular Force service where the client also had eligible service under 21(1) Active Force service. The Applicant's testimony and medical records on file indicate that he had an unexplained onset of severe back pain while serving in the Active Force in 1945. The Veteran's credible testimony is corroborated by the independent objective contemporaneous evidence in the medical file, which reference his back pain's onset in 1945. As the back pain originated while serving in the Active Force, the 24/7 insurance principle applies. That is, any injury or disease which has its onset during service in the Active Force is automatically covered for pension entitlement regardless of the cause of the disease and or/injury.

The Review Panel exercised its jurisdictional discretion to consider and make a determination on degenerative disc disease lumbar spine (operated) pursuant to subsection 21(1) of the Pension Act - Active Force service and granted full entitlement.

Representative:

Daniele Hart, BPA

Decision No:

100001645580

Decision Type:

Entitlement Review

Location of Hearing:

Halifax, Nova Scotia

Date of Decision:

7 June 2011

A decision involving a claim for Wegener's Granulomatosis (autoimmune disease) based on exposure to Agent Orange while stationed in CFB Gagetown. There was no evidence on file to establish that the Applicant was directly exposed to Agent Orange while stationed in CFB Gagetown. Independent studies suggest that without direct exposure to Agent Orange there is no long term health risk.

Current medical literature indicates that the cause of Wegener's Granulomatosis is unknown and that the condition is rare. Even if the Applicant had been exposed to Agent Orange, there is no medical evidence to support his condition was caused or triggered by exposure to herbicide related chemicals such as Agent Orange. A submitted medical opinion by a family physician could not conclusively establish a link between Agent Orange exposure and Wegener's Granulomatosis.

In the absence of credible, clinical, or objective evidence to support that any service factors caused, led to the development of, or aggravated, the Applicant's Wegener's Granulomatosis, the panel was unable to award disability entitlement for the Applicant's condition.

Representative:

Marilyn MacKinnon, BPA

Decision No:

100001639574

Decision Type:

Entitlement Appeal

Location of Hearing:

Charlottetown, Prince Edward Island

Date of Decision:

8 August 2011

The appeal consolidated and heard combined appeals from two different review decisions. The appeal was consolidated because both review decisions dealt with the same issues and evidence concerning the Appellant's claim for entitlement to pensions for chronic fatigue syndrome and Fibromyalgia.

In a 22 April 2008 Entitlement Review decision, a Review Panel granted a partial pension award of two-fifths for chronic fatigue syndrome and fibromyalgia under subsection 21(2) of the Pension Act, on the basis that RCMP service caused a moderate aggravation of the symptoms. The Review panel withheld 3/5ths because the underlying cause of chronic fatigue syndrome and fibromyalgia were not known, and because the evidence suggested that a part of the Appellant's symptoms of chronic fatigue syndrome and fibromyalgia were consequentially aggravated by the Appellant's already pensioned condition of PTSD.

The Appellant then subsequently sought a ruling for both of the claimed conditions under subsection 21(5) from the Minister. The Minister's adjudicator refused to make a determination on the basis that the Department had no jurisdiction because the review panel in 2008 had already determined issues concerning the consequential entitlement in its 2008 Entitlement Review decision. The Appellant then sought a review of the adjudicator's decision concerning the 21(5) consequential aspect of her entitlement. In a decision dated 13 July 2010, the review panel concluded that neither it, nor the Department had any jurisdiction to entertain the issue of consequential entitlement because the 2008 review panel appeared to have determined those issues already. The review panel concluded that the jurisdictional issues could only be addressed by an appeal panel, through a consolidated appeal from both the 2008 and 2010 review panel decisions under 21(2) and 21(5).

A consolidated appeal panel proceeded before an appeal panel in 2011. The appeal panel confirmed the two-fifths aggravation pension, but corrected and varied the basis of pension entitlement from subsection 21(2) to subsection 21(5) of the Pension Act. While the evidence did not establish an aggravation by RCMP service under 21(2) because service had not permanently worsened the Appellant's claimed conditions, the evidence did establish that the symptoms of the claimed conditions had been permanently exacerbated and aggravated by the Appellant's permanent disability of PTSD under subsection 21(5) of the Pension Act.

Representative:

Mark Gallant, BPA

Decision No:

100001530486

Decision Type:

Entitlement Appeal

Location of Hearing:

Charlottetown, Prince Edward Island

Date of Decision:

3 February 2011

An Infantry soldier's Entitlement Appeal of a previous Panel's decisions for his Pes Planus conditions (bilateral), which awarded a pension of two-fifths for both the right and left foot based on the fact that only a minor potion of these disabilities were related to the Applicant's military service, did not result in a higher degree of entitlement for these conditions.

However, in processing the Entitlement Appeal for his pes planus conditions, the Appeal Panel noted that the client was diagnosed with bilateral plantar fasciitis and that on two occasions the Applicant attempted to pursue claims for these conditions. These claims were never formally ruled upon by the Department and were withdrawn because the Minister indicated that any disability resulting from his plantar fasciitis would be reflected in the entitlement for his pes planus.

The Departmental Entitlement Eligibility Guideline for plantar fasciitis is based on pension considerations distinct from those which apply to pes planus and may potentially result in a different conclusion on the issue of causal connection to military service. The panel concluded that the Department erred when it determined that the Appellant was not entitled to a decision for plantar fasciitis, and, as a result, referred the matter to Minister pursuant to paragraph 85(1)(a) of the Pension Act indicting that the Applicant is entitled to a ruling by the Minister for plantar fasciitis and that neither the Board, nor the Minister have made a determination in this regard.

Representative:

Anthony Sweet, BPA

Decision No:

100001565912

Decision Type:

Entitlement Review

Location of Hearing:

Halifax, Nova Scotia

Date of Decision:

6 January 2011

A Hearing Loss decision in which a diagnostic standard for diagnosing a disabling hearing, a lesser degree of hearing, and normal hearing loss is defined. A thorough review of VAC's Entitlement Eligibility Guidelines and entitlement criteria is included in the decision and is applied to the Applicant's case.

The Applicant, who at discharge from military service, did not have a disabling hearing loss as defined by the Entitlement Eligibility Guidelines, was granted partial entitlement by the Minister on a one-fifth basis for a lesser degree of hearing noted on his discharge audiogram that could have been caused by noise exposure during his military service. The panel, after reviewing all evidence on file, including new evidence submitted with the review, concluded that there were no grounds to increase the Applicant's level of pension entitlement and therefore affirmed the Minister's decision.

Representative:

Barbara Cowel, BPA

Decision No:

100001524868

Decision Type:

Entitlement Review

Location of Hearing:

Ottawa, Ontario

Date of Decision:

28 October 2010

Panel found favourably for the surviving common law partner by applying a broad and liberal approach to statutory interpretation.

Representative: Eric Marinacci, BPA
Decision No: 100001493711
Decision Type: Entitlement Review
Location of Hearing: Toronto, Ontario
Date of Decision: 5 March 2010

The question to be answered under paragraph 34(1)(a) and subsection 34(3) is whether the adult child is dependent on their veteran parent because the child's infirmity is of such significance that the child is unable to provide for their necessities of life and remains within the charge and is the legal responsibility of the parent.

There are four statutory requirements which must be satisfied in order to establish entitlement to an additional pension for or in respect of a child who is over the age of 18 (ie, an adult child) on the basis of the child's infirmity, under section 34 of the Pension Act.

The four criteria on which evidence is required can be:

1. the child is unable to provide for the child's own maintenance;
2. because of an infirmity that occurred before the age of 21;
3. and the infirmity incapacitates the child from earning a livelihood;
4. finally, the child must be legally entitled to be maintained by his or her veteran parent

In this case, the Panel referred the matter back to the Minister under section 21 of the Veterans Review and Appeal Act for a reconsideration under section 82 of the Pension Act.

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Representative: Aidan Sheridan, BPA
Decision No: 100001226829
Decision Type: Federal Court Order to Rehear - Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 13 November 2007

The Appellant arrived, in uniform, at the RCMP Detachment parking lot approximately 15-20 minutes before her scheduled work time. While exiting her personal vehicle in the parking lot she slipped on the ice or snow in the parking lot and hit her head/neck on the running board of her truck. The Board awarded a full pension. In arriving at her worksite early, the Appellant was complying with a requirement imposed by the RCMP. The Appellant was in uniform, indicating some degree of readiness for service. The accident occurred at a location under the control of the RCMP. These factors, combined, indicate the RCMP was exercising a degree of control over the Appellant. Although not a sufficient basis upon which to find the accident arose out of service, the Board noted that the Appellant's activities were reasonably incidental to RCMP service.

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Representative: Aidan Sheridan, BPA
Decision No: 100000697954
Decision Type: Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 9 February 2004

The claim was for coronary artery disease which, it was argued, was caused or aggravated by occupational stress from military service. The Board decided that, although acute stress may cause myocardial infarction, the infarction is not itself a permanent disease or disability. It is a manifestation or symptom of the underlying disease or disability, which is coronary artery disease. Therefore the Board must decide if the coronary artery disease is pensionable.

With regard to paragraph 21(3)(f) of the Pension Act, the Board decided that, even if a myocardial infarction was incurred in the course of one of the service-related activities described in that paragraph, the known medical evidence concerning coronary artery disease would be capable of rebutting the presumption raised by that paragraph. Therefore, under subsection 21(2) of the Pension Act, the claimant would have to adduce sufficient evidence to establish a causal connection between the requirements of his service and the coronary artery disease.

The Board considered the evidence presented by the claimant and found that there was no evidence of unexpected stress from work, that is, nothing outside the realm of the usual difficulties and challenges of the military service.

Despite medical reports that appeared to emphasize the role of stress in the development of coronary artery disease, the Board could find no credible evidence to reasonably support the inference that there is a correlation between chronic psychological stress and coronary artery disease. The medical evidence fails to indicate that service-related occupational stress may make a direct, significant and medically discernible contribution to the progression or permanent worsening of coronary artery disease. The Veterans Affairs Canada Table of Disabilities Guidelines state that careful studies of the effects varied conditions such as fatigue, change of climate, respiratory disease, or psychiatric illness, indicate such conditions have no influence on the course of degenerative changes in the arteries, that is, arteriosclerosis, atherosclerosis and coronary artery disease. The Guidelines have not been rebutted or contradicted by the evidence on the file nor by any recent medical studies.

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Representative: Daniel Assh, BPA
Decision No: 100000570588
Decision Type: Entitlement Review
Location of Hearing: Nanaimo, British Columbia
Date of Decision: 23 July 2003

For a claim of "medical mismanagement" to be made, you must give proof that the medical treatment provided to the Applicant was unorthodox, or not in accordance with accepted standards of medical care for medical professionals treating this type of condition at that time. There was no evidence to show that the medical treatment provided to the Applicant by the medical professionals at the Veterans Hospital in 1962 was negligent, or fell below the acceptable standard of care, and that this negligence caused the Applicant to contract Hepatitis C. Therefore, pension entitlement was not proven.

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Representative: Jane Michael, BPA
Decision No: 100000560297
Decision Type: Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 25 June 2003

The claimant suffered an eye injury while on duty and in uniform and on his military base working in the base auto club on his own vehicle. He argued that his injury should be pensioned because it was the fault of the mechanic who was also on duty at the relevant time and contends that the practice of having private cars repaired at the club was a customary practice, which was accepted and used by all members of the Base. The panel in its decision stated that its interpretation of the provisions of subsection 21(2) and paragraph 21(3)(f) is that the activities foreseen by paragraph 21(3)(f) are for the furtherance of military duties and obligations. The activities are meant to be military activities carried out in the context of military undertakings.

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Representative: Shannon Hill, BPA
Decision No: 100000524935
Decision Type: Entitlement Review
Location of Hearing: Nanaimo, British Columbia
Date of Decision: March 12, 2003

If a pensioner dies without having applied for attendance allowance, his dependants cannot apply for the allowance (Pension Act 48(3))

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Representative: Jane Michael, BPA
Decision No: 100000513636
Decision Type: Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 7 January 2003

The Appellant attempted to link non-traumatic RCMP duties to a degenerative condition of the spine which, according to the departmental medical guidelines, is associated with traumatic injuries and constitutional factors and occurs in a very high percentage of the population. In Veterans Review and Appeal Board Decision # 6671744 (25 October 1999) the Board set out its expectations with regard to “medical” evidence in light of its duty to weigh or assess the credibility of the evidence it admits. There are three important factors: The qualifications of the expert providing the evidence; the accuracy and completeness of the information the expert has access to in order to render the opinion; the persuasiveness of the expert's conclusion which is determined by whether or not the conclusion flows logically from the facts; the degree to which the expert explored all the relevant factors and whether or not the opinion could be accepted as reflecting the general medical consensus as established through scientific study of the relevant condition.

Ultimately the Board members, not the physician, must decide if the provisions of the Pension Act permit an award and the extent of the award. The Board defers to medical experts in medical matters including diagnosis and the identifying of causation factors. But in applying the physician's findings of fact and conclusions regarding the causation of a claimed condition to the wording of the Pension Act, the Board cannot simply delegate its decision to the physician expert but rather must weigh the evidence carefully in view of the legislative provisions to determine the ultimate pension entitlement decision. Physicians as individuals bring varying degrees of both conscientious medical investigation and patient advocacy to their report writing. Questions that confront the Board in almost every case are: What factors has the physician considered in making a diagnosis and attribution of cause? And, to what degree is he or she operating as an advocate for a patient as opposed to an independent medical expert?

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Representative: Sylvia E. Kissin, BPA
Decision No: 100000436798
Decision Type: Entitlement Review
Location of Hearing: Toronto, Ontario
Date of Decision: 11 December 2002

A widow remarried and her survivor’s pension was discontinued. In 1989 the Pension Act was amended to allow for the pension to be resumed, on application. She claimed she should have been advised of her right to resume the pension, which she did not apply for until 2001, and that she should be paid an amount under subsection 56(2) of the Pension Act. The panel could not find that a lack of knowledge was beyond the control of any applicant when such knowledge is available in official sources. It noted that at any time there is a change in legislation so as to make provisions more generous than they were before, there will always be individuals who will be affected by such change. It is for this reason that publication of information in official documents such as the Canada Gazette has been, for generations, considered by courts and other judicial and quasi-judicial bodies as being official notification to those who may be concerned. It is obviously impossible to personally notify everyone who is or may be affected by a change of legislation. Therefore, the panel could not find that the lack of knowledge, on the part of the applicant, of the increased benefits available in 1989 by the change of legislation was an administrative matter beyond her control, upon which to invoke the provisions of subsection 56(2) of the Pension Act.

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Representative: Lois Kit, BPA

Decision No: 100000472666

Decision Type: Entitlement Appeal

Location of Hearing: Teleconference between Charlottetown, Prince Edward Island and London, Ontario

Date of Decision: 10 December 2002

________________________________________________________

The Board rejected a claim for a psychiatric condition because the claimant was already pensioned for another condition based on the same symptoms and causative events. The Board noted that there is no authority in subsection 21(2) of the Pension Act, nor in any other section of the Pension Act, for providing more than one pension for the same type of symptoms. The Pension Act does not pension diagnoses, symptoms, injuries or conditions. It pensions disability. “Disability” is defined in section 3 of the Pension Act as the “loss or lessening of the power to will and to do any normal mental or physical act.” In this case, the Board has not been provided with any evidence to show that the latest pension claim is based on a new and distinct disability which has further lessened the appellant’s power to will and to do any normal mental or physical act.

In assessing the reliability of an expert opinion, one of the most relevant factors in the assessment of credibility and reliability of the evidence, is the factual basis for the opinion. When the facts relied upon by the medical expert in rendering an opinion come directly from the interested party, and the facts relied upon by the medical expert are inconsistent with those accepted by the finder of fact, the evidence may be given less weight.

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Representative: Jane Michael, BPA
Decision No: 100000446174
Decision Type: Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: October 29, 2002

In order to raise the inference that there are grounds in the facts and circumstances of this case upon which the Minister could exercise discretion under subsection 47(3) of the Pension Act, there must be some evidence which suggests that the appellant would have had a legally enforceable right to spousal support in the period between the breakdown of the marriage and the veteran’s death. The legally enforceable right to make a claim for support under due process of law, which is referred to in subsection 47(3) of the Pension Act, may exist upon marriage breakdown, but does not necessarily continue indefinitely.

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Representative: Katharine Roney, RCL DOM
Decision No: 100000470005
Decision Type: Entitlement Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 5 September 2002

The appellant was returning to his ship, which was in dry-dock. There was freezing rain at the time. He went up the gang-plank and slipped and fell to the deck below. The Board ruled that his injuries were not pensionable. It found that the fall and any resulting disability did not arise out of the Appellant's military service as he had been drinking and did not exercise due care. More specifically, the available evidence makes it clear that the weather, the appellant's inebriation, his repeated refusal of assistance to board the ship and his lack of care in failing to ensure his footing was secure on an icy surface were the factors which caused his accidental fall.

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Representative: Nancy Kao, BPA
Decision No: 100000374268
Decision Type: Entitlement Review
Location of Hearing: Edmonton, Alberta
Date of Decision: 20 August 2002

The Board cannot legally deem the date of application for two distinct conditions to be interchangeable. The proper effective date for the two-fifths pension which this Board awarded in relation to the claimed and diagnosed condition under subsection 39(1) of the Pension Act is the date on which the Applicant first made application for that particular condition, not the date on which he applied for another condition which had previously been ruled to be not pensionable.

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Representative: Aidan Sheridan, BPA
Decision No: 100000313992
Decision Type: Assessment Appeal
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 6 March 2002

In a case where there is a significant discrepancy between the application date and the date on which medical evidence indicated a deterioration in the medical condition, it would not be reasonable to award a pension increase retroactive to a date which significantly predates the actual request for reassessment. This would effectively circumvent the scheme for applications in reassessment matters established under the Pension Act. Relying on the date of complaint for establishing the effective date of an assessment increase, is reasonable unless there is evidence of some exceptional or compelling circumstances which suggest that to do so would be unfair.

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Representative: Gaëtan Paquette, BPA
Decision No: 100000330861
Decision Type: Entitlement Appeal - Retroactivity
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 28 February 2002

The appellant and her Advocate had identified the documents required to pursue a pension claim. They had taken all reasonable steps to obtain them. Delays arose from the failure on the part of two bureaucracies, one in the private sector, the other within the health care system, to respond to the request for medical documents. The delay was not caused by the appellant or her Advocate, nor did it arise out of the normal delays as the case wound its way through the adjudicative processes provided for under Veterans Affairs legislation. Therefore the panel awarded an additional two years under subsection 56(2).

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Representative: Charles J. Keliher, BPA
Decision No: 100000095170
Decision Type: Entitlement Appeal - RETROACTIVITY
Location of Hearing: Charlottetown, Prince Edward Island
Date of Decision: 16 January 2002

While section 39 of the Pension Act requires that an effective date for pension payment be based on the date an application was first made, by necessary implication this could only occur where the first contact initiated an application process which was properly followed through by the applicant and resulted in a completed and “duly made” application for the award in question. The applicant must respect the Minister's requirements for making an application, in order to rely on the date of first contact under Article 39 of the Pension Policy Manual. In this case, the appellant's 2000 application, upon which his claim was later accepted, did not vary factually from his 1997 application. There was sufficient information on the 1997 application form to draw an inference that the 1997 application was duly made. That, together with the fact that the Department appeared to have treated the 1997 application form as a duly made application, led the panel to conclude that the 1997 application form was the first duly made application for the claimed condition. Given that the evidence indicated the Minister`s staff had not exercised its discretion in a manner consistent with the Pension Act and its own policies in declaring the 1997 application “withdrawn”, it would not be fair to take the later application as the proper effective date.

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Representative: Eric Marinacci, BPA
Decision No: 6671744
Decision Type: Entitlement Review
Location of Hearing: Kingston, Ontario
Date of Decision: 25 October 1999

The panel set out its view of what would constitute a credible medical report: The facts or history are accurate and complete, that is, they are the same facts that are apparent from the other evidence. The conclusion makes sense in that it flows logically from the facts. The expert provides a reasonable explanation of how he or she has drawn the conclusion from the facts. In addition, the opinion, when presented as evidence, should be accompanied by a description of the expert's qualifications and any correspondence or communication by which the opinion was elicited.

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