November 2, 2011 - Appearance before the Senate Sub-Committee on Veterans Affairs

Opening Remarks given by John Larlee, Chair, Veterans Review and Appeal Board

Good afternoon Mister Chairman, Honourable Senators.

Thank you for the opportunity to speak to you today regarding the work of the Veterans Review and Appeal Board.

Canada has a long history of providing Veterans and their families with an independent appeal process for disability pension decisions – to ensure they receive the benefits they so rightly deserve.

The Veterans Review and Appeal Board fulfills this important function today.

The Board supports Veterans, members of the Canadian Forces and the RCMP, and their families, in obtaining benefits for service-related disabilities.

We carry out this mandate by offering two levels of appeal for disability decisions made by Veterans Affairs Canada. These decisions relate to Veterans' entitlement to disability benefits and to the assessment of medical impairment caused by their disabilities.

We also hear final appeals for War Veterans Allowance decisions.

Only ten-to-fifteen percent of the forty thousand decisions made by the Department each year, are appealed to our Board.

As an independent body, we have the authority to change a decision if the evidence supports it.

That said, our work is bound by the laws enacted by Parliament to govern the disability benefit program for Canada's Veterans.

Our appointed Board Members bring a cross-section of experience and education to their work. The Board's merit-based selection process states a preference for Members with military, medical, policing or legal backgrounds in recognition of the work we do and the people we serve.

The Veteran needs only to be "dissatisfied" with a disability decision to ask for a hearing before the Board. Each case heard by the Board is based on one individual's unique circumstances such as medical condition, type of service and supporting evidence.

The Board's appeal process is non-adversarial, meaning that no one argues against the Veteran. Board Members may ask questions to make sure they understand the Veteran's situation and its relationship to service.

At Board hearings, Veterans bring forward any new information related to their situation. They have access to free legal representation to make arguments in support of their application for disability benefits.

The Review hearing is the first level of redress at the Board. It is the only time in the process when applicants may appear and testify about the facts of their case. To make it easier for applicants to attend in person, our Members conduct Review hearings in more than 30 locations across Canada.

The oral testimony given by the Veteran at his Review hearing can have a significant effect on the outcome. This is new evidence that was not available to the departmental adjudicator.

For example, the Veteran may be able to explain confusion in his medical records or provide details about the circumstances of his injury that were not in the file.

At the Review hearing, the Veteran is given the last word.

Last year, the Board varied the Department's decision in fifty percent of its Review decisions. This high success rate is a reflection of the value of this level – namely, the opportunity to testify, to submit new information, to be represented and to have doubt resolved in the Veteran's favour.

In most cases, these varied decisions resulted in a financial boost to a Veteran's benefits.

If the applicant is not satisfied with his Review decision, he can appeal it.

The Appeal hearing is an entirely new proceeding heard by a different panel of Board Members.

The legislation does not allow appellants to testify in person again but they can submit written statements and other new information. The Appeal hearing is another opportunity for the representative to present arguments and evidence in support of the Veteran's application.

Last year, the Board varied the previous ruling in thirty-three percent of its Appeal decisions.

Many of these cases were successful because the Veteran was able to obtain a credible medical opinion linking his disability to his service. This is often missing at the Review level and is noted by Members in their Review decisions.

In every Review and Appeal case, our Board Members apply the rules of evidence found in Section 39 of our legislation.

They draw favourable inferences from the evidence provided by the Veteran. They accept uncontradicted evidence that they consider to be credible in the circumstances.

And, if they have any doubt about whether the case is made, they resolve it in favour of the Veteran.

Despite the many generous aspects of the legislation, some cases will not be successful. However, the door remains open for the Veteran to bring forward significant and relevant new evidence that may come to light at a later date.

If applicants have exhausted all their redress options at the Board and remain dissatisfied, they have the right to apply to the Federal Court of Canada for a judicial review of the decision.

We recognize that there are some misconceptions about the role of the Federal Court with respect to our decisions. The Federal Court is looking at individual cases and deciding whether the Board properly performed its function in making the decision.

For example, the Court may decide that the Board did not address relevant evidence in its decision. It may also decide that the Board made a reasonable decision and dismiss the application for judicial review.

Last year, thirteen of the Board's decisions were brought forward by Veterans for a review by the Federal Court. This represents less than two percent of the eleven hundred decisions that were eligible to be reviewed.

We also received thirteen rulings from the Court that were pending from previous years. Of these, the Court asked the Board to rehear nine applications and dismissed four.

If the Court rules that the Board made an error in the way we handled a case, it will tell us to rehear the case with specific directions. These might be that a different panel should conduct the new hearing or that the Board should perform a more careful analysis of a certain piece of evidence or point of law.

In some cases, the Board will rehear the case on its own merits and still be unable to vary the previous decision.

The reality is that the Board deals with the most complex and challenging cases. We do not see the cases that demonstrate a clear link between the disability and the service. We do not deal with the cases that fit easily into the assessment tables.

These straightforward cases are dealt with by the Department at first application or, increasingly, through a departmental review if the Veteran has new evidence.

Rising favourability rates at the Department means that the cases we see are more complex than ever before.

To deal with this increased complexity in our caseload, we have established an excellent professional development program for new Members.

This program combines classroom and practical teaching with ongoing guidance and support from staff in quality management and legal services roles.

Before new Members start hearing cases, they spend twelve weeks learning about the legislation, administrative law, the weighing of evidence, military issues, medical conditions, the conduct of hearings and decision-writing.

Thereafter, all Members participate in monthly teleconferences where we discuss legal and procedural issues.

We hold at least two training seminars each year led by medical, legal, military and lay experts. Members also receive feedback on their work through regular performance assessments.

All Board decisions are reviewed from a quality perspective.

I want to assure you that the Board's priority is to deliver an effective appeal program.

We are fortunate to have an excellent cadre of decision-makers. Today, there are twenty-four full-time Members including the Deputy Chair and myself as Chair.

We share a commitment to honour and to serve our Veterans by dealing fairly with their applications.

The most common applications to our Board deal with medical conditions involving the neck, the back, the knees and hearing loss.

About ninety percent of these applications are made by Canadian Forces members and Veterans as well as a small number from members of the RCMP. The remaining ten percent come from “traditional” Veterans whose numbers, sadly, are dwindling.

About three-quarters of our decisions deal with requests for new or higher levels of entitlement; the other quarter deal with requests for higher levels of assessment for entitled conditions.

We are acutely aware that our decisions have a significant impact on people's lives. Our Members have the difficult job of applying the law in the face of difficult and compelling human situations.

We take our role very seriously. Our Board Members and our staff are committed to serving applicants respectfully, effectively and efficiently.

From an operational perspective, we are driven to find ways to improve our program. Currently, we are working on posting decision-making resources on our Web site by early next year.

These will include common medical resources consulted by the Board as well as depersonalized decisions that determine a question of law of general public interest.

We are taking this approach because it will give interested parties greater access to our decisions and is realistic in terms of our budget.

We believe it is a cost-effective approach that will strike the right balance between openness in decision-making and individual privacy.

We are also reviewing the processes we use to conduct our operations. We hope this will result in improvements for our applicants and chart a course for the future.

Thank you for this opportunity to talk to you about the Board's role in supporting Veterans and their families in obtaining the benefits to which they are entitled.