Adjudicative Guidelines

The Board uses these adjudicative guidelines to promote consistency in decision-making. While these guidelines are helpful to Members because they clarify certain issues, they are not binding and do not interfere with the Member's role as an independent adjudicator. It is up to Members to decide whether a guideline is appropriate in a particular case.

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Appendix A - Resources Used by the Veterans Review and Appeal Board

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1. ADMINISTRATIVE DELAY/DIFFICULTY

• If there were delays in securing service or other records, or other administrative difficulties beyond the control of the Applicant/Appellant, the Board may make an additional award to the pensioner in an amount that reflects the length of the delay but not exceeding an amount equal to two years pension. This is in accordance with subsection 39(2) of the Pension Act.
• In one of the Board's Leading and Persuasvive decisons, it states that an Applicant's lack of knowledge of a change in legislation, when such knowledge is available in official sources, is not considered an “administrative difficulty beyond the control of the applicant” for purposes of making an additional award under subsection 39(2) or 56(2) of the Pension Act. It is obviously impossible to personally notify everyone who is or may be affected by a change in legislation.
• Delays flowing from a claimant's pursuit of his rights and remedies before the Federal Court constitute other administrative delays as foreseen in subsection 39(2) of the Pension Act. (Rivard v. Canada (Attorney General) 2003 FC 1490 affirmed by Rivard v. Canada (Attorney General) 2004 FCA 306).

  (See also Leclerc v. Canada (Attorney General) [1998] F.C.J. No. 152).

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2. ASSESSMENT DETERMINATION

2.1 Appeal of disability assessments under the 2006 Table of Disabilities

• Just as the effective date is an integral part of entitlement and assessment claims, the medical impairment rating, quality of life rating and partially contributing aspect (if applicable) are integral parts of a disability assessment, and cannot be dealt with separately. Therefore, if the Applicant/ Appellant is not satisfied with his/her disability assessment, the Advocate should be prepared to argue all three of these components.

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2.2 Assessment of conditions

• The assessment of any condition should be based on the medical examination as it exists at the time of examination, not on what it may be at some point in the future.

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2.3 Assessment of mechanical low back pain

• With respect to the assessment of mechanical low back pain, the Department uses Table 17.19 of the 2006 Table of Disabilities. The Partially Contributing Table is applied if there are other conditions present such as lumbar disc disease or osteoarthritis of the lumbar spine. The assessment is usually in the range of 0% to 15%, which is similar to the assessment in the Medical Advisory Service's medical directive dated March 25, 1998.

  The Department uses the 1998 medical directive to clarify the term “mechanical low back pain” and to assess the disability resulting from this condition under the 1995 Table of Disabilities. For purposes of Veterans Affairs Canada, this condition is considered a soft tissue condition only. It does not include neurological (sensory, motor or reflex) findings.

  The following is an excerpt from the 1998 medical directive:

  “Over the last several years the term “mechanical low back pain” has become popular as a medical diagnosis. At the present time mechanical low back pain comprises greater than 90% of cases of low back pain. This diagnosis remains basically a diagnosis of exclusion. The term mechanical low back pain is generally used to refer to low back pain of musculo-skeletal origin for which no specific diagnosis can be determined. Other names for this condition include low back pain syndrome; and in the past and even today patients with this disorder are often diagnosed or labelled as having chronic lumber strain or sprain.

  Mechanical low back pain is generally a self-limiting condition that responds well to conservative management such as rest and analgesics. The condition for the vast majority of patients is of short duration and complete recovery is the rule. One third of such patients get better within one week, by three weeks almost all of the remaining two thirds are better; 98% are better by 3 months. Unfortunately, many patients with this condition tend to have repetitive episodes. 80% of people will experience mechanical low back pain at some time in their lifetime. The predominate age group is 25-45 years and men and women are equally affected.

  Signs and symptoms of mechanical low back pain include the following:

  1. Onset of low back pain either suddenly after an injury or gradually usually over the next 24 hours.
  2. Pain generally at the level of the belt line and typically bilateral: pain may radiate to buttocks, and posterior thighs but does not go below knees. The pain in the back is generally worse than the pain in the legs.
  3. Pain is relieved by rest and made worse by back movement, sitting, standing, lifting, bending and twisting.
  4. Neurological examination is normal: normal reflexes, motor, sensory examinations.
  5. Straight leg raising may increase back pain but not pain in the lower extremity.
  6. There is decreased range of motion and tenderness to palpation, and spasm of the paralumbar musculature is common.
  7. Bowel and bladder function are not affected.

  Risk factors for the development of mechanical low back pain include: increasing age, smoking, obesity, sedentary lifestyle, psychological factors and vibration such as driving motor vehicles. Psychosocial factors may also play a role.

  Differential diagnosis for mechanical low back pain include the following:

  1. Lumbar disc disease: degenerative disc disease lumbar spine, osteoarthritis lumbar spine.
  2. Spinal stenosis
  3. Spondylolisthesis
  4. Fractures, including compression fractures.
  5. Ankylosing spondylitis and related inflammatory conditions.
  6. Infective conditions such as discitis or vertebral osteomyelitis.
  7. Rheumatoid arthritis
  8. Neoplasms either primary or metastatic
  9. Conditions causing referred pain; osteoarthritis of the hip, sacro-iliac joint disease, duodenal ulcer disease, chronic pancreatitis, irritable bowl syndrome, diverticulitis, pyelonephritis, prostatism, renal calculi, aortic aneurysm and vascular claudication.
  10. Gynaecological conditions: pregnancy, endometriosis, ovarian cysts, and pelvic inflammatory disease.

  Investigations are not generally indicated unless the symptoms persist beyond three months or the patient is in a high risk category: this includes a typical pain picture, onset beyond 50 years of age, non-mechanical nature of the back pain, presence of concomitant diseases that could cause or contribute to the development of back pain.

  General measures of treatment include initial short-term bed rest of 2-3 days followed by restricted activity for 3-6 weeks but resumption of activities of daily living as tolerated. The use of short term analgesics, anti-inflammatories and muscle relaxants, physical therapy and manipulation. Education is important as is a home exercise program.

  Prognosis in most patients is good with resumption of normal activities without residual symptoms. Prognosis, however may be adversely influenced by secondary gain issues.

  Pension Consideration:

  1. A diagnosis of mechanical low back pain is an acceptable diagnosis for pension purposes.
  2. Mechanical low back pain is usually initiated by trauma and appears within 24 hours of the trauma.
  3. The condition may become chronic and recurring.
  4. There is no relationship between mechanical low back pain and the development of lumbar disc disease. There is no medical reason for a favourable consequential relationship for lumbar disc disease as related to mechanical low back pain.
  5. Entitlement for mechanical low back pain does not include entitlement for lumbar disc disease.
  6. Any entitlement for lumbar disc disease already includes any disability due to mechanical low back pain.
  7. For pension purposes mechanical low back pain, chronic lumbar strain, chronic lumbar sprain, lumbago and low back pain syndrome will be considered one and the same condition.
  8. Mechanical low back pain is assessed similar to other soft tissue conditions: ie. In the nil to 10% range; rarely 15%.
  9. Mechanical low back pain is not caused by degenerative joint conditions of the lower limbs.
  10. Mechanical low back pain may be caused at lease in part by a real uncorrected leg length discrepancy of at least one inch (2.54 cm.), or a functional short leg. A lack of extension of the knee is 15 degrees will produce the equivalent of a one inch leg length discrepancy. Claims for mechanical low back pain consequential to conditions of the lower limbs causing a short leg problem could be considered minimally to mildly favourable depending on the degree of shortening and the presence of other conditions affecting the mechanical low back pain; eg. trauma and obesity.”

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2.4 Combined entitlement/assessment claims

• In cases of combined entitlement/assessment claims in the same document, two separate decisions should be prepared.

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2.5 Intractable pain

When adjudicating on assessment claims where intractable pain is argued, the Board should consider whether the usual modalities have been used for pain management:

• Has the individual attended a pain clinic (noting that some clients are waiting up to two years for an appointment)?
• Has the individual been referred to a pain clinic?
• Has the individual tried multiple types of medications - narcotics?
• Has the individual taken narcoleptics - pentins, i.e. Lyrica, Gabapentene and possibly neurolectics (which trick the brain into not recognizing the pain)?
• Has the individual taken a combination of drugs such as Elavil?
• Has the individual tried nerve blocks (epidurals or implants) which are used in cases of very severe pain?

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2.6 Jurisdictional issue surrounding assessment cases

• That as set out in Section 18 of the Veterans Review and Appeal Board (VRAB) Act, the Review Panel should be reviewing the Minister's decision and making a finding of fact as to the correctness of that decision at the time it was made. The applicant should have been informed by his/her advocate that medical evidence which shows the condition has deteriorated since the time of the Minister's decision should be submitted to the Minister for re-assessment.

  Similarly, Section 25 of the VRAB Act directs the Appeal Panel to review the decision of the Review Panel and determine whether the Panel's decision was correct.

  In either case, the Board may receive and consider new medical evidence relevant to the Applicant's condition at a time which is reasonably contemporaneous to the time period during which the Minister's assessment decision was made.

• In a case where there is 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 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 that to do so would be unfair.

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2.7 Surgical Scar

• A surgical scar is considered part of the disability assessment for a particular condition. For example, a client who has undergone surgery for an entitled knee condition will receive a rating from Table 17.11, which takes into account the surgical scar. The Table of Disabilities does not give a separate disability assessment for a surgical scar; however, in unusual cases where the surgical scar itself results in a disability (e.g. a keloided scar on the face), individual merit would apply and a disability assessment would be made for that scar.

  A surgical scar is to be distinguished from a traumatic, injury-induced scar (e.g. gunshot wounds, burns, etc.) where the scarring itself is a disability. Such a traumatic scar or injury may be repaired surgically. In this case the client's disability would be assessed using Table 22.7, 22.8 or 22.9.

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2.8 Table of Disabilites - assignment of ratings

• The Board respects that the 2006 Table of Disabilities is a statutory instrument and will follow the instructions in Chapter 1 which state: “The assignment of ratings between benchmark values contained in a table is not permitted”.

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3. BENEFIT OF DOUBT

• Members have an obligation to apply the rules of evidence provided in section 39 of the Veterans Review and Appeal Board Act, which reads as follows:

In all proceedings under this Act, the Board shall

• (a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
• (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
• (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.

(See also: Wannamaker v. Canada (Attorney General) 2007 FCA 126 at par. 29; Cramb v. Canada (Attorney General) 2006 FC 638 at par. 26; Comeau v. Canada (Attorney General) 2005 FC 1648 at par. 22 affirmed by Comeau v. Canada (Attorney General) 2007 FCA 68; Schut v. Canada (Attorney General) 2003 FC 1323 at par. 21; Elliot v. Canada (Attorney General) 2003 FCS 298 at par. 44; Wood [2001] F.C.J. No. 52 at par. 22; King v. Canada (Attorney General) [2001] F.C.J. No. 850 at par. 39; Hunt v. Canada (Minister of Veterans Affairs) [1998] F.C.J. No. 377 at par. 5 affirmed by Hunt v. Canada (Minister of Veterans Affairs) [1999] F.C.J. No. 1601 at par. 5).

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4. CONSIDERATION OF A REVIEW PANEL DECISION BY AN APPEAL PANEL

• Members at the Appeal level should carefully consider the reasons given at the Review level. Although the appeal provisions of the VRAB Act invest the Board with the right to judge each matter on a de novo basis, an Appeal Panel should give deference to the Review Panel's assessment and evaluation of testimony, where the Appeal Panel has determined that the Review Panel's conclusions on that evidence are reasonable. As with every decision of the Board, clear and cogent reasons should be given by the Appeal Panel for affirming, varying or reversing the previous decision.

(See also: Matchee v. Canada (Attorney General) [1999] F.C.J. No. 1 at par. 71; McTague v. Canada (Attorney General) (T.D.) [1999] F.C.J. No. 1559 at par. 55; Ellis-Don Ltd. V. Ontario (Labour relations Board), 2001 SCC 4; Dunsmuir v. New Brunswick 2008 SCC 9 at par. 163).

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5. CONSISTENCY IN DECISION-MAKING

• Consistency is a goal for which the Board has always strived. It is an accepted principle that persons who present with similar fact situations should expect to be treated in a similar manner no matter where in the country the case is presented. To do anything else would be an injustice.

• In IWA v. Consolidated-Bathurst Packaging Ltd., the Supreme Court of Canada confirmed that administrative tribunals are justified in taking measures to encourage institutional coherence and to avoid conflicting results in similar cases.

  Leading and Persuasive decisions are used by the Board to foster institutional coherence and quality in its decisions, and to ensure consistency in the Board's treatment of cases which involve similar facts and issues.

  The application of a Leading and Persuasive decision is not mandatory. However, members are expected to apply the principles established in a Leading and Persuasive decision to cases involving similar facts and issues, or to provide a clear and reasoned explanation as to why they found the facts and issues in their case to be distinct from those which had been dealt with in the Leading and Persuasive decision. This approach will promote consistency and efficiency in decision-making, by making use of quality work done by colleagues within the Board.

• The resources listed in Appendix A may be used by the Board to achieve consistency in decision making and assessing the credibility of evidence.
  
  In cases where an internet or online article is submitted as medical evidence, the following checklist should also be used in assessing its credibility:

  1. Has the full article been submitted?
  2. Has the name of the author and qualifications been provided?
  3. Has the date and time of publishing been established?
  4. Has the source of the article been identified (website address)?

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6. DEPENDENT AND SURVIVOR BENEFITS

6.1 Dependent child

• In cases where a pensioner is applying for additional pension on behalf of a child, the Board will decide if the pensioner has a parental relationship with the child and an obligation to maintain the child. If so, the matter should generally be referred back to the Department to gather the financial information needed to calculate the amount of additional pension payable on behalf of the child.

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6.2 Survivor pensions

• It is appropriate, in determining an Applicant's right to be maintained under ss 47(3) of the Pension Act, to take the circumstances and facts of each case into account, including the length of marriage, the relationship of the parties after the marriage, their subsequent relationships and the number of years which have elapsed between the end of the marriage and the date of the Veteran's death. Where a former spouse or former common-law partner of a deceased veteran is seeking support under subsection 47(3) in relation to a marriage which has long since ended, the mere fact that the former spouse or partner may have once been entitled to spousal support for a period of time after the marriage ended, would not alone be a proper basis upon which to award a pension under this subsection. In such a case, unless it could be shown that the entitlement to support would have resulted in an ongoing right to support from the date of the marriage breakdown and continuing up to a reasonable period of time prior to the death of the Veteran, then it would not appear to be a proper case for the exercise of discretionary authority under subsection 47(3).
• In one of the Board's Leading and Persuasive Decisions, it states it was not proven that the deceased Veteran intended to return to live with the common-law partner he had been separated from since their break-up in October 1996. The deceased Veteran had agreed to collaborate in the payment of joint debt incurred during their common-law relationship from 1972 to 1996, but based on the records, no action was taken by the Veteran to return to live in the same home as the separated common-law partner. The Panel therefore came to the conclusion that the separated common-law partner did not qualify for a survivor pension under subsection 45(1) of the Pension Act because she was not living with the deceased pensioner, and was not being maintained by him at the time of his death and for a reasonable time before. Also, the Panel was of the opinion that a survivor's pension was not indicated under subsection 47(3) of the Act on the grounds that there was no opinion duly signed by a Family Law specialist in a given jurisdiction indicating that the separated common-law partner would have been entitled to alimony, support or maintenance had he/she applied for it under due process of law in any jurisdiction in Canada where applicable.

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7. DIAGNOSES

7.1 Clinical audiologist

• A clinical audiologist, for the purposes of making diagnoses, should be defined as one who holds a MSc and is a member of the Canadian Professional Association of Audiologists. These persons would normally be designated as MSc Aud(C).

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7.2 Request for current medical diagnosis

• The Board is to take a firm stand and request a current medical diagnosis of a permanent disability whenever possible.

  (See also MacNeill v. Canada [1998] F.C.J. No. 1115.)

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8. DISSENTING OPINIONS

• Dissenting opinions do not change the ultimate outcome of Board decisions, but may be valuable tools - in exceptional circumstances - for allowing members to explore issues they feel are important.

  While they are rare, the inclusion of dissenting opinions may assist the Board, advocates, the department, and claimants themselves in understanding issues that may be evolving in the Board's approach to a specific subject.

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9. EFFECTIVE DATE DETERMINATION

9.1 Effective Date - Appeal Rights

• Because the effective date of entitlement or increase in assessment is an integral part of the adjudication at each level, it should not be dealt with separately. For this reason, at the time of a Review or Appeal Hearing, an Applicant's/Appellant's representative must include an argument with respect to an effective date in both entitlement and assessment cases and, where applicable, with respect to an award under subsection 39(2) of the Pension Act.
• Once a favourable or partially favourable decision regarding pension entitlement/increase in assessment (including effective date) is made, Applicants/Appellants who are not satisfied with the effective date of pension entitlement/increase in assessment have the right to appeal to a Review or Appeal Panel of the Board.

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9.2 Effective date of assessment

• In a case where there is 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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9.3 Effective date of disability award

• According to section 53 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act, “A disability award under section 45, 47 or 48 becomes payable whenever, in the opinion of the Minister, the disability has stabilized”. There is no provision in this Act for paying these benefits retroactively. Therefore, a disability award, or an increase in disability award (including assessments), may only be awarded effective from the date of the decision.

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9.4 Effective date of pension entitlement

• According to subsection 39(1) of the Pension Act, the effective date of pension entitlement (as well as the initial assessment) is the date the application for pension was first made to the Department or a date three years prior to the date of the decision awarding entitlement, whichever is the later date. Generally, the date at the top right hand corner of the “Application for Disability Pension” is considered the first application date. For claims submitted by the Royal Canadian Legion, the date the application is “stamped” received by the Department is used.
• The effective date for Royal Canadian Legion or any other Veterans' organization (i.e., War Amps of Canada) applications will be the same as every other application to the Department (date of contact with the Department).
• When the VRAB is correcting a decision of the Minister or the VRAB that should have been retroactive to three years from the date of the initial decision, subsection 39(1) of the Pension Act will be used to award the entitlement effective three years prior to the date of the decision awarding entitlement.
• The Advocate is to always inform the Board in advance that he/she will be presenting an argument for retroactivity. The Docket should include a copy of the CSDN Client Notes and Client Events so the Panel can confirm the arguments made at the hearing, rather than afterwards.
• The Board cannot legally deem the date of application for two distinct conditions to be interchangeable. For example, in one of the Board's Leading and Persuasive Decisions, it states the proper effective date of the claimed condition of schizo-affective disorder was deemed to be the date on which the Applicant first made application for this condition, not the date on which the Applicant earlier applied for the separate and distinct condition of pschizophreniform disorder.
• 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. For example, in one of the Board's Leading and Persuasive Decisions, it states the Applicant'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 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 was the first duly made application for the claimed condition, and it would not be fair to take the date of the later (2000) application as the proper effective date.

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9.5 Effective date to be canvassed at the time of the hearing

• Because the effective date of entitlement or increase in assessment is an integral part of the adjudication at each level, it should not be dealt with separately. For this reason, at the time of a Review or Appeal Hearing, an Applicant's/Appellant's representative must include an argument with respect to effective date in both entitlement and assessment cases and, where applicable, with respect to an additional award under subsection 39(2) of the Pension Act. In the event that they do not, members should raise these issues at each hearing.

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10. ENTITLEMENT DETERMINATION

10.1 Combined Entitlement/Assessment Claims

• In cases of combined entitlement/assessment claims in the same document, two separate decisions should be prepared.

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10.2 Disability resulting from lack of due care

• A disability resulting from an injury that occurred because of an Appellant's lack of due care is not pensionable. For example, in one of the Board's Leading and Persuasive Decisions, it states 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 found that the fall and resulting disability did not arise out of the Appellant's military service because 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 a icy surface were the factors which caused his accidental fall.

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10.3 Disability resulting from medical misadventure, malpractice, inadequate medical care

• In its Interpretation Ruling (I-25) dated June 20, 1978, the Board held that where a disability results from adverse complications or “medical misadventure”, the disability is pensionable if it is a result of inadequate medical care, inadequate medical attention, inadequate medical management or omission to take remedial action or some other form of negligence.

  In its discussion of the matter, the Board made a distinction between members of the Canadian Forces and members of the Royal Canadian Mounted Police (RCMP).

  With respect to members of the Canadian Forces, if a serviceman is being treated for a service-related disability, any complications are to be considered as part and parcel of the service-related disability and therefore the matter becomes one of assessment.

  However, if a disability is not service-related but flows from an act of negligence, the disability that results from the act of negligence is a separate entity from the original disability. Therefore, the act of negligence may create a new disability or contribute to the aggravation of the disability under treatment.

  The mere fact of “misadventure” or “medical misadventure” is not sufficient to grant pension if the doctor or hospital was not, at the same time, negligent, since medicine is not an exact science and most treatments, particularly surgical interventions, involve an element of risk. Thus, if treatment is given in an orothodox manner with reasonable care and competence, the medical misadventure cannot be said to be entirely unforeseen and is part of the risk involved. On the other hand, if the disability from medical misadventure arose from inadequate medical care, inadequate medical attention, inadequate medical management or omission to take remedial action, it is pensionable. The mere fact that the treatment is not successful does not bring it within the provisions of subsection 21(2) of the Pension Act. The common denominator in all pensionable medical misadventures is the involvement of an element of negligence.

  In summary, disability or death resulting from negligence of or inadequate medical care provided by Canadian Forces service or service-authorized personnel, or from medical misadventure, is pensionable under subsection 21(2) of the Pension Act.

  Insofar as the RCMP is concerned, if the condition or injury being treated did not itself arise out of RCMP service, there can be no pension granted since RCMP officers are normally treated by their own doctors and not by the RCMP.

  The RCMP have no control over the treatment of RCMP officers. Any disability that results from medical misadventure, inadequate care, or negligence cannot, therefore, be said to be directly to RCMP service. Therefore, in cases adjudicated under the RCMP Superannuation Act or the RCMP Pension Continuation Act, disability or death that results from negligence, or inadequate care or medical misadventure, is not pensionable under subsection 21(2) of the Pension Act.

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10.4 Disability resulting from medical treatment

• For a claim of “medical mismanagement” to be made, there must be some evidence 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 condition at that time. For example, in one of the Board's Leading and Persuasive Decisions, it states there was no evidence 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. The Board denied pension entitlement.

  (See also Gannon v. Canada (Attorney General) 2006 FC 600 at par. 19).

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10.5 Evidence of permanent disability

• To award any degree of entitlement, there must be evidence of a current (permanent) disability today.

  (See also MacNeill v. Canada [1998] F.C.J. No. 1115.)

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10.6 Jurisdiction to rule on a condition not yet considered by the Minister

• When an applicant requests a ruling to change the name of the claimed condition to one not yet considered by the Minister, the Board's preferred approach is that the claim be handled through the Departmental Review process. Should the Panel be asked to make this ruling, the following questions should be taken into account:

  1. Has the Advocate asked for a ruling on this condition?
  2. Did the applicant request the diagnosis at the time of the application?
  3. Why was this not handled as a Departmental Review?
  4. Does the new condition more accurately define the disability described by the applicant at the time of application or has the nature of the applicant's disability changed over time?
  5. How close in nature are the two conditions?
  6. Are they both caused by the same service factors which were considered by the Department?
  7. How is each condition affected by non-service factors?
  8. How certain is the Panel that the newly diagnosed condition existed and was the source of the applicant's disability at the time of the application?
  9. Was there an initial mis-diagnosis?
  10. Does one condition underlie and cause the other or are they separate and distinct coexisting disabilities?
  11. Are they both disabilities or is one merely a benign diagnosed condition?
  12. How much time has passed between the initial application and the new diagnosis?

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10.7 Partial awards

• Members should consider the following terminology for partial contribution and/or aggravation: minor (1/5); moderate (2/5); major (3/5); and severe (4/5).
• Subsection 21(2.1) of the Pension Act applies to both subsections 21(1) and 21(2) of the Act.

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10.8 Presumptive clauses - application of subsection 21(3) of the Pension Act

• Subsection 21(2) and paragraph 21(3)(f) of the Pension Act are interpreted to mean 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. For example, in one of the Board's Leading and Persuasive Decisions, it states the Panel concluded that it could not accept the Applicant's personal car repairs to be included in the furtherance of military duties and obligations, even though the Applicant contended that the practice of having private cars repaired at the Base auto club was a customary practice that was accepted and used by all members of the Base.
• The Federal Courts have indicated that the presumptions in subsection 21(3) of the Pension Act are triggered only after the causal link between the alleged disability and the service is established. The onus is on the Applicant to demonstrate the causal link. Only after that causal link is established will it become necessary to consider the provisions of subsection 21(3). Elliot v. Canada (Attorney General), 2003 FCA 298 Lunn v. Canada (Attorney General), 2010 FC 122.

  The following steps will enable panels of the Board to follow correctly the Federal Courts' directions regarding subsection 21(3):

  1. Is there credible medical evidence to establish that the applicant suffers or suffered from an injury or disease, or an aggravation thereof (i.e. is there a diagnosis of the claimed condition)?
  2. If so, is there credible medical evidence to establish that there is a disability from which the applicant continues to suffer?
  3. If so, is there credible medical evidence to establish that the disability is a result of the claimed condition or aggravation thereof?
  4. If so, is there evidence to establish the required relationship between the injury or disease, or an aggravation thereof, and the service (i.e. was the injury or disease or aggravation thereof one that arose out of or was directly connected with the service)?
  5. If not, has the applicant claimed one of the presumptions in subsection 21(3) of the Pension Act?
  6. If so, does one of the presumptions apply to the applicant?
  7. If so, is there any evidence to the contrary to rebut the presumption?

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10.9 What is a disability for the purpose of granting entitlement?

• To grant entitlement, the members must be satisfied that the signs and/or symptoms of the disability are generally expected to persist, despite medical attention, although they may wax and wane. For some conditions, the EEGs state that chronicity, as defined therein, is an additional factor to be taken into account.

  It is important to keep in mind that in the context of the above guideline, “signs” and “symptoms” are both medical terms with different medical meanings. Signs are whatever a physician can objectively observe or measure (e.g. low blood pressure reading). Symptoms are subjective evidence of a disease experienced by the patient (e.g. dizziness). While most medical conditions have both signs and symptoms, some have only signs (e.g. hypertension) and others only symptoms (e.g. fibromyalgia).

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11. EVIDENCE

11.1 Corroboration of testimonial evidence

• In light of the requirement set out in section 3 of the Award Regulations for applicants to submit any documentation necessary to substantiate their claims, the Board, where reasonable, prefers corroboration of any testimony that is capable of being supported by documents or credible testimony, such as: a CF98 report, prescription receipts, witness' testimony, etc.

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11.2 Evaluating evidence

• In assessing the reliability of an expert opinion, one of the most relevant factors in the assessment of credibility and reliability of 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.

  (See also: Bradley v. Canada (Attorney General) 2004 FC 996 at par. 23; Schut v. Canada (Attorney General) 2003 FC 1323 at par. 47).

• The most important factors in weighing or assessing the credibility of evidence are:
  • 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 and medical consensus as established through scientific study of the relevant condition.

• The resources listed in Appendix A may also be used by the Board in assessing the credibility of evidence.

  In cases where internet or online article is submitted as medical evidence, the following checklist should be used in assessing its credibility:

  1. Has the full article been submitted?
  2. Has the name of the author and qualifications been provided?
  3. Has the date and time of publishing been established?
  4. Has the source of the article been identified (website address)?

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11.3 Evidence of permanent disability

• To award any degree of entitlement, there must be evidence of a current (permanent) disability today.

  (See also MacNeill v. Canada [1998] F.C.J. No. 1115).

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11.4 Evidence of statistical correlation between various factors and disease

• It should be considered that evidence of a statistical correlation between various factors and disease is only one factor and normally would only give rise to a mere possibility rather than a probability. The credibility of the statistical study, and the relevance of that study to the applicant's particular circumstances should be evaluated.

  Statistical evidence should be weighed along with other evidence, applying the same analysis that one would apply to any other evidence.

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11.5 Handling of Irrelevant Documents

• Members have the right to acknowledge evidence that is submitted but do not have to accept it as an exhibit or attachment if it is found to be irrelevant. To this end, the Bureau of Pensions Advocates should be advised to highlight relevant portions of huge exhibits and indicate what was sent to the doctor for an opinion i.e., the entire Head Office file or service documents, but do not need to physically attach them to the submission.

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11.6 Stress in the workplace

• Because there are many sources of stress in any person's life which may potentially cause a stress-related psychiatric disease, attention must be given to the question of whether there was evidence of service-related stress. When service-related stress is assessed objectively in light of all the other stresses and stressful events, or pre-existing psychiatric complaints which were unrelated to service, it must be determined whether this was a significant factor in the development of the psychiatric condition.
• A review of all the medical studies and evidence on the issue of the possibility of a relationship between chronic stress and coronary artery disease reveals that there is no evidence that chronic stress is a reliable predictor of coronary artery disease. Thus there is no factual or circumstantial evidence to reasonably support the inference that there is some correlation between chronic psychological stress and coronary disease.

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11.7 Telephone evidence

• In some cases, Applicants may be unable to attend their review hearing in person due to reasons of illness, or remote location and travel difficulties, for example. In such exceptional circumstances, Applicants may request a review hearing by teleconference and waive their right to personal appearance with the consent of the panel.
  
  In a teleconference review hearing, testimony or evidence may be given by telephone. This evidence must be heard by all parties simultaneously. Pre-recorded testimony is not acceptable.

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12. FEDERAL COURT DECISIONS - RELEVANCE

• With respect to the introduction of Federal Court decisions at the Review level, the Advocate should be questioned as to the exact relevance of the decision to the case in question.

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13. HEARING LOSS (NOISE-INDUCED)

13.1 Board's position on Department's Hearing Loss Policy

• The Board accepts the Department's policy on hearing loss as an appropriate response to the Nelson decision and that with this policy, partial entitlement can now be awarded where it would not have been possible without it.

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13.2 Documents that comprise the Department's Hearing Loss Policy

• The Department's policy on hearing loss consists of the following documents:
  • Hearing Loss Policy - Amended 20 February 2012;
  • Entitlement Eligibility Guidelines - Hearing Loss - April 2006 - Modified February 2012; and
  • Hearing Loss Claims Approach Document - February 2012

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13.3 Requirements for hearing loss decisions

• All hearing loss decisions of the Board must:
  • address the issue of whether there is a current disabling hearing loss;
  • include an analysis and application of the Department's policy on hearing loss to each factor of the case, with a view to ensuring all Applicants' hearing loss claims are treated consistently; and
  • include evidence of a qualified expert to support any arguments submitted regarding the validity of audiometric examinations.

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13.4 Use of the Discussion Paper on Hearing Loss as an adjudicative tool

• Dr. John Rutka's Discussion Paper on Hearing Loss prepared for the Board can provide useful guidance in adjudicating on hearing loss claims.

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14. MEDICAL OPINIONS

14.1 Request for independent medical opinion

• If members desire an independent medical opinion (IMO), they should initiate the IMO process. If it is determined that an IMO is warranted, the Legal Services Unit will make the arrangements to obtain the opinion.

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14.2 Requirement for medical opinion to make causal link between disability and service

• A medical opinion is not always be required to make this causal link. The Department's Entitlement Eligibility Guidelines, and other expressions of entitlement principles made by the Department from time to time (i.e. Australian Korean Veterans Cancer Study, Agent Orange/IMO entitlement guidelines), allow adjudicators to review a claimant's documented service history and make presumptions as to a link in the absence of specific medical opinions on causation.

  The guidelines are designed to be a doorway to entitlement, and not a doorway blocking entitlement. No guideline should be used as sole reason to deny an entitlement award; however, when a claim is not supported by the inferences the guidelines can bring to bear, any medical opinion in support of an award must contain credible reasons for the claimed medical-causal link and address why the guidelines are not relevant or applicable in the individual circumstances of the case.

  In addition to the official guidelines used by the Department, it has been the long standing practice of the Board and the Bureau to rely on credible and peer-reviewed medical texts such as the Merck Manual on Diagnosis and Therapy. A medical opinion prepared in recognition of an established consensus will have the highest degree of evidentiary weight.

  To be of substantive value, the medical opinion must be both objective and credible according to the Board's guidelines on Evaluating the Credibility of Medical Evidence. Medical opinions not meeting the guidelines on credibility and persuasiveness reduce the Board's ability to rely on them, and limits the possible success of the claim.

  A medical opinion should only come from a medical person. In assigning weight to medical evidence, the degree of expertise of the author is relevant. Information from a specialist in the appropriate field of medicine would usually attract the most weight, followed by information from general practitioners.

  Other health care providers, such as podiatrists, chiropractors and physiotherapists, may provide useful information to the Board, subject to the understanding that they are not medical doctors.

  (See also: Hunt v. Canada (Minister of Veterans Affairs) [1998] F.C.J. No. 377 at par. 9; MacDonald v. Canada (Attorney General) 2008 FC 796 at par. 18).

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14.3 Soliciting medical letters

• The Board expects when medical letters are offered into evidence, that the soliciting letter and the supporting documentation, if any, be provided to the Board. Where that soliciting letter is not provided to the Board, the Board may take that into account when assigning weight to the evidence.

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15. OVERPAYMENT CLAIMS

• All overpayment claims brought forward by the BPA should be processed through the Triage Unit and the Deputy Chair should deal with them on a case-by-case basis. Members should also be aware of the jurisdictional issues, i.e. section 84 of the Pension Act specifically excludes the Board from hearing “overpayment” appeals, and any cases of this nature should be referred back to the Department.

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16. RECONSIDERATION HEARINGS

16.1 Application of diligence principle in reconsideration applications

• In its Interpretation Ruling (I-1) released on February 1, 2005, the Board concluded that the diligence principle of the test described in the MacKay Federal Court decision is applicable to reconsideration applications because it is consistent with the intent and spirit of the legislation and ultimately is in the best interests of appellants. The application of the principle of diligence recognizes that the proper time for gathering all relevant evidence and preparing an applicant's case in a complete and thorough manner is before a review hearing takes place. The application of the diligence principle allows for the reasonable assumption that any evidentiary gaps or shortcomings at that “review” stage will have been addressed by the final hearing before the Board, which is termed the “appeal” stage.

  The application of the diligence principle by the Board ultimately works to the advantage of the appellant and failures to obtain evidence necessary to establish a case are neither in the interests of the appellant nor of the administrative system as a whole. The Board recognizes that any pension or benefit to which the appellant is entitled should be awarded as early in the appeal process as possible, therefore it is incumbent upon the system to ensure the appellant's best possible case is put forward at the earliest possible time.

  The application of the principle of diligence with respect to applications for reconsideration respects the intent of section 31 of the Veterans Review and Appeal Board Act which states that decisions of an appeal panel are final and binding. However, the principle of due diligence also leaves the Board with discretion to re-open and reconsider a decision where an appeal panel determines that the circumstances of a particular case may merit a reconsideration, based on the presentation of new evidence.

  Therefore, the Board concluded that in any application for reconsideration of a decision based on new evidence pursuant to subsection 32(1) or section 111 of the Veterans Review and Appeal Board Act, the Board will determine whether to reconsider a decision using several criteria including the principle of due diligence. In applying the due diligence principle, the Board will decide whether to admit the new evidence after considering whether such evidence could have been placed before the Board's final appeal hearing was held and the final decision rendered. In any reconsideration application based on the presentation of new evidence, the Board will expect to receive submissions from the appellant (or his or her legal representative) addressing the reason the evidence was not presented by or at the time of the final appeal hearing.

  The Board will also analyze new evidence presented on any reconsideration application pursuant to subsection 32(1) or section 111 of the Veterans Review and Appeal Board Act using several other criteria. These will include whether or not the submitted evidence is relevant and credible, and whether or not it is of sufficient significance to alter the final appeal decision.

  Subsequent to this decision, the Board established the following Reconsideration Screening Guidelines:

  1. Review the application for an error of law.
  2. Review the application for an error in fact.
  3. Review the application with respect to new evidence:
     • The evidence should generally not be admitted if, by due diligence, it could have been adduced earlier; and
     • The evidence must be relevant in the sense that it bears upon the decisive or potentially decisive issue in the adjudication; and
     • The evidence must be credible in the sense that it is reasonably capable of belief; and
     • It must be such that if believed, it could reasonably, when taken with other evidence adduced earlier, be expected to affect the result.

  It should be noted that new evidence may meet one or all of these elements, however, all elements should be weighed when a determination is made.

  In Chief Pensions Advocate v. Canada, the issue before the Court was whether the Board may consider the principle of ‘due diligence' in deciding whether to exercise its discretion to reconsider an appeal decision in accordance with subsection 32(1) and section 111 of the VRAB Act. The Court answered yes, provided that the Board's discretion be exercised in a manner that conforms with the broad purpose of the Act and respects the intent and meaning of sections 3 and 39 of the Act. Therefore, the Board should not give disproportionate weight to due diligence. (Chief Pensions Advocate v. Canada (Attorney General), 2007 FCA 298 affirming Chief Pensions Advocate v. Canada (Attorney General) 2006 FC 1317)

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16.2 Members who sit on a reconsideration hearing

• The original members who sat on an Appeal Hearing will sit on the Reconsideration Hearing if they are still in office, except in special circumstances as stated in section 7 of the Veterans Review and Appeal Board Act.

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Appendix A

RESOURCES USED BY THE VETERANS REVIEW AND APPEAL BOARD

The Board must frequently examine, interpret and evaluate evidence. The Board must assess the credibility of the evidence presented by applicants and appellants. The resources listed below assist the Board in accomplishing these tasks.

Main tools and resources

Annotated Pension Act

Interpretation Decisions of the Board and its predecessors

Federal Court decisions

Leading and Persuasive decisions

Table of Disabilities

Medical Guidelines

Entitlement Eligibility Guidelines

VRAB Adjudicative Guidelines

Discussion papers

The objective of the two discussion papers below is to provide general information on medical issues. Their aim is to present a balanced view of the current medical knowledge on a particular topic. They have been prepared by experts selected by the Board. They are not peer reviewed. They are updated from time to time to keep up with the evolving knowledge of the topic they address.

Hearing Loss (Prepared by Dr. John Rutka - December 2011)

Orthopaedic Handbook (Prepared by Dr. William D. Stanish - March 2011)

External reference books and documents

AMA Guides to the Evaluation of Permanent Impairment (English)

The Compendium of Pharmaceuticals and Specialties (bilingual)

Dorland's Illustrated Medical Dictionary (English)

Harrison's Principles of Internal Medicine (English)

Diagnostic and Statistical Manual of Mental Disorders - DSM-IV-TR (bilingual)

Le Larousse médical (French)

Merck Manual (bilingual)

Noise and Military Service: Implications for Hearing Loss and Tinnitus, National Academies Press (English)

Pathologie médicale de l'appareil locomoteur (French)

Taber's Cyclopedic Medical Dictionary (English)

Textbook of Cancer Epidemiology (English)

Other documents

Agent Orange Studies (bilingual)

Cancer Incidence Study 2003 Australia Veterans of the Korean War (English)

Health Study 2005 Australian Veterans of the Korean War (English)

Mortality Study 2003 Australian Veterans of the Korean War (English)

Statements of Principles, Australia, Department of Veterans Affairs (English)

Medical sites

Health on the Net Foundation (bilingual)

Mayo Clinic (English)

Medline Plus (English)

Merck Manual of Diagnosis and Therapy (English)

The New England Journal of Medicine (English)

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Date modified:

2013-06-12