Veterans' mental health cases get clearer guidance thanks to court ruling

Benefit of the doubt!  If you went over the audio recording of my tribunal my famous last words are of me begging VRAB to please give me the benefit of the doubt.  Imagine having to beg VRAB for the benefit of the doubt.  Now years later I am reading a court decision that emphasizes the importance of VRAB given the benefit of doubt, I fracking can not believe it.  
Medical evidence, doctor's and most importantly the injured soldier statement should be all that is needed to establish a link to service.  VRAB members I do not fracking like to be called a liar and have my doctor slandered.
The Secret is out VRAB thanks to social  media   and more and more are sharing their stories or displeasures about their fight and struggles with VAC online.
Honestly their needs to be a board of inquiry into what has happened to the Department of Veterans affairs.
PS WildThing,
Social media is a powerful tool with the reaches of many people, don't kid yourself.  IDK about you, but many people have little hand held devices and Facebook is a place people read and browse through. My Facebook page today advertised a group called base brats with over 4000 members that is a lot of voters or future leaders.  If I knew what the one veteran's voice would like to have happen then I can start sharing this message to others.  Sacred Obligation? Board of inquiry? VRAB?VAC?

same old song and dance we had this problem before and about 5-6 years ago they said much the same stuff and eventually they did in fact correct the issue by telling VRAB they must consider all medical evidence and interpret benefit of the doubt liberally . ( maybe not the exact words but verrrry close I bet ) .

oh I forgot the or elce . oops no I didn't forget the or else there was non no teeth at all .

kinda like the British cops or bobbies if you will before they decided to arm them .

STOP or ill yell STOP again .

WHAT A FRACKIN JOKE !!!

the GOC wants them to deny every claim possible by any means possible THATS IT THATS ALL !!!

SO the GOC will not punish them they are the goose that lays the golden egg and craps on us while they are at it or concurrently if you will .

BUT WE CAN AND SOMEDAY WILL!!!!

then and only then will they change VRAB to something that will save them more money because after the first VRAB member pays punitive damages for not following their own rules the rest will make their decisions fairly and thus be useless to the GOC.

ALWAYS QUESTION ATHORITY

propat

I certainly agree with that teen.....The MVA has to insure that Veterans be given the benefit of doubt an he has to take a long look at why so many decisions are not approved the first time around , he should look to see if there's a standard process - or practice that is being used to purposely deny benefits to ensure that the work they do is kept to a snail's pace resulting in keeping the circle of work available to them.

The Federal court ruling is indeed an important one....if the MVA is serious about addressing the benefit of doubt issue an is going to act vigorously on it , this would mean a direction from both the MVA an the Federal court , there should be no stone left
un - turned , direct action needs to be implemented on this an heads should role if these actions are not respected from VRAB - or DVA for that matter.

A monitoring process should be put in place to ensure that these directions are followed through.

teen actually no Canadian citizen is above the law IN CANADA . yes some Canadian citizens in particular positions across the world are not subject to the laws in those various  countries in witch they are serving Canada even they are still subject to CANADIAN law.

even appointed judges are subject to discipline by a higher court . just pointing that out by no means saying they are considered appointed judges under Canadian law because they are not . even if they were it would be hard for them to argue that the supreme court is not a higher court than VRAB.  

YES if they were in fact judges punishments would be limited to say the least. but they are not judges under the law .

these are appointed board members NO MORE NO LESS .

years ago I did some research now its been a long time so bear with me on the numbers as the may not be exact but the WILL be close.

as of im going to say 4 years ago there was a lot of these cases only I think 13 of these people had the energy and RESORSES to carry there fight to the supreme court through countless appeals by the GOC / VRAB/ DOJ .

how many won?????

every fracking one !!!!

why ???

ignoring medical evidence and failing to give benefit of the doubt !!!!

and since then up till today in fact the song remains the same .

the judges are sick to death of this crap but can do nothing as they can only make a decision on the case brought before them.

if you name the members for punitive damages in the initial law suit in the lower courts and carry it to the supreme court and the initial merits of your case are successful id not only speculate that the judges will grant the punitive damages as it probably something they have been chomping at the bit to do for a long time after being spit in the face by VRAB for countless years im guessing the damages would be between 50 and 100% of each offending members salary .

if they decide that VRAB has ALL the rights and privileges of an appointed judge they can recommend outright dismissal ( just making a point as they are not judges)  

now there has only been 5 Canadian superior court judges to have ever been recommended for dismissed in the history of this country to my knowledge but maybe more so it doesn't happen  that often but not one VRAB member !!!!

ya know why ????

because they are not judges !!!!

ya see the reoccurring theme here ????

always question authority

propat

As great an idea it is to sue for punitive damages you can't. VRAB is a quas-judicial court so they are protected the same as any judge in Canada.

I just hope O'Toole comes thru and has a "serious" discussion with Mr. Larlee and all membes of VRAB.

Appointing more nurses and military to VRAB positions is not enough. They need to follow the #1 rule when dealing with veterans....Benefit of the Doubt.

That is what the OVO report on VRAB was all about.

Scott Thompson,
The Government of Canada can use bill C-51 to investigate who is speaking up against their government, but I am pretty sure that all they will find at the end of their investigation will be a legitimately pissed off Veteran with plenty of paperwork and evidence demonstrating how cruel of a democracy that we Canadian live in at the hand of the almighty politician. Especially the Veterans who have suffered injuries mentally or physically while serving and who are now being treated as modern burdens.

Orange crush ! Oh haven't you heard! The money saved by slashing and gutting the Vac budget was given out in Harpers new extended "I give you cash for kids as long as you vote for me" benefit. When I look at these Harper bribes I just have to say" I'm not saying never, but just not now , Steve s just not ready, but he's got a nice haircut!

In fact, the law governing veterans' benefits says the government must be generous and give ex-soldiers the benefit of the doubt when it comes to whether their injury was caused by military service.

VRAB can give you the benefit of the doubt alright, but also withhold 1/5 all the way to 4/5.  A Veteran who is assessed at 60% and is awarded 1/5, that 60% now becomes .02*60= 12%.  You are living with a disability assessed at 60% but 12% is what you are awarded.  

Reading VRAB's decisions and how they are suppose to give you the benefit of doubt, more like VRAB is looking for every little detail that will work against you to build a case to deny, withhold or delay your file.  Great tactic!

I hate fracking waking up in the morning and my head is already fighting a battle with a department who are supposed to be funded to assist Veterans.  

To add to my problem the applications and reassessments were never processed  as recommended  by the OVO.  I now have to wait a few more months since someone forgot to press the send key on their computer.  This is miserable and not being able to do anything about it sucks.  I am hoping that the phone call I placed to the OVO yesterday will sort out this frack up.  
Deny me VRAB?VAC, go ahead! but I will find another way around your denial because in my heart  I know what has happened, and ultimately the decision granted by VRAB/VAC are not legitimate. Let my peers be the judges, not civilians who have no business judging me nor my fellow soldiers. No FRACKING business!!!!!!!!

"Clearer guidance..." I am reminded of how the wheels of justice move slowly.

I was halfway down the last article when it sounded familiar. Silly me, sure enough a law firm. Not a bad thing, a necessary evil at worst.

I wonder what Guy Parent thinks of this ruling OFF the record?  

Propat, I understand when you say " unless VRAB members that make the decisions in these cases and are named in the suit for punitive damages THEY WILL NOT CHANGE.

Here is hopefully a bit of my read of it and less of a rant. From the Fasken link... "  Her application was denied by the Minister and twice by the VRAB for failing to demonstrate that the military service factors were the prevalent source of the major depression. " So, the clearer guidance should be used not just by vrab but by initial applications to said minister (vac).  
"The Federal Court of Appeal held that the less deferential standard of correctness is to be applied to an interpretation of the statutory language of paragraph 21(2)(a)."

WHO does the interpretation of that PA paragraph? Every level of vac to me. Are they perfect? Of course not! But when I sense the benefit of the doubt re-interpreted as the doubt of the benefit I don't feel very good.
Might as well just re-interpret the English language to ones benefit.

Perhaps in time the FCA's clearer guidance will need a stronger " stick ".
Meanwhile I don't know who's worse, vrab or the senate because it's a tie for 1st place.

Cheers, pinger.

I think this is big news......and not just for mental health. It appears that the Federal Court Of Appeal (and I am sure the Federal Court as well) is tired of seeing the same thing come back in front of them after they sent it back and are now doing something about it!!!

This is what us veterans have been saying for quite some time.......the courts are getting tired of VAC and VRAB not doing their job properly. They need to logically apply inference or the benefit of doubt in favour of the veteran, regardless what the claim is for.

VRAB needs to be held accountable.......I agreed with propat, that until someone cleans house in VRAB, not much will change, but I think it is awesome some people are finally having their eyes opened.

A shame our colleagues have to stress and spend money only to fight and fight to try and get what they deserve. It sickens me that this shameful government doesn't give a rats behind about sending us anywhere to represent Canada and even less when we come back.........

Not sure how long of a wait before this will come into effect?

ABC!!

VRAB is VRAB unless VRAB members that make the decisions in these cases and are named in the suit for punitive damages THEY WILL NOT CHANGE !!!!! no one should ever sue the GOC for vets benefits without doing this .

there are countless cases like this and every time the GOC looses no one gets punished and VRAB carries right the frack on like nothing happened .

yup the GOC can and may some day get rid of VRAB or at least make it follow its own rules but to date on this issue they have done S.F.A.

so until that day comes if ever once again its up to us to do the job the GOC is either unwilling or just to inept to do.

propat

trooper i agree, this is a very important decision for all veterans claiming physical or mental benefits.Here is more information if your eyes don't glaze over..........

http://www.fasken.com/disability-pension-benefit-veterans/

Federal Court of Appeal Clarifies Test for Veterans’ Entitlement to Disability Pension Benefit

In the recent decision Anne Cole v Attorney General of Canada (2015 FCA 119, Ryer J.A., concurring reasons by Gauthier J.A.), the Federal Court of Appeal clarified part of the test for establishing a veteran's entitlement to a disability pension. The case also confirmed that entitlement decisions of the Veterans Review and Appeal Board (the "VRAB") that engage discrete points of law are to be reviewed by the courts on the less deferential correctness standard. Paragraph 21(2)(a) of the Pension Act states that for military service in peace time, if a veteran suffers a "disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded…" Where there are both military and non-military direct causes of a condition, we know now that a veteran need only show that the military service factors were a significant, not primary, cause in order to satisfy that portion of the test for entitlement.

This decision holds significant precedential value for the VRAB and Federal Court, as there were differing approaches being taken at both levels. It will also be particularly helpful for veterans making applications in relation to mental health illnesses as the causes of these illnesses are rarely one-dimensional and straightforward.

Context
After twenty-one years of service in the Canadian Forces ("CF"), Ms. Cole was medically discharged, suffering from mental health illnesses: major depression and chronic dysthymia (a form of chronic, mild depression).

She applied for a disability pension for the claimed condition of major depression pursuant to paragraph 21(2)(a) of the Pension Act, on the basis that certain administrative and operational decisions taken by the CF affecting her had causally contributed to the major depression. Her application was denied by the Minister and twice by the VRAB for failing to demonstrate that the military service factors were the prevalent source of the major depression. Rather, personal factors, such as a family history of depression, were held to be the major contributing causes. On judicial review of the VRAB's decision, the Federal Court found that the VRAB had made no reviewable error in requiring Ms. Cole to demonstrate that military service factors were the primary cause of the disability.

On appeal, the Federal Court of Appeal found that Ms. Cole's claimed condition of major depression could be directly connected to both military and non-military (i.e.: personal) factors. The military factors included the loss of deployment opportunities. The personal factors included personality traits like suffering from chronic dysthymia. The question then was, where both military and non-military factors were present, what is the extent of the causal connection an applicant must demonstrate between the military service factors and the condition such that it can be said to be "directly connected with" military service?

The presence of non-military factors did not automatically frustrate the claim. The Court held that it is sufficient to show that military service factors were a significant, or not insignificant, factor. This finally put to rest the more onerous "primary cause" test that had been applied by the decision-makers below in this case and in many others for years.

Standard of Review
The Federal Court of Appeal held that the less deferential standard of correctness is to be applied to an interpretation of the statutory language of paragraph 21(2)(a). While the reasonableness standard of review is appropriate for assessing questions of mixed fact and law such as whether the evidence establishes that the causal standard is met, the interpretation of the legal standard of causation is a question sufficiently discrete to be analysed separately, and one which must be done correctly.

A few reasons supported this finding. Notably, the Court of Appeal found that discerning the standard of causation intended by Parliament in the phrase "arose out of or directly connected with" has implications in other areas of law so the Court, and not a tribunal like the VRAB, should determine its meaning.

As the Federal Court had applied the incorrect standard of reasonableness, the Federal Court of Appeal reviewed the VRAB's decision anew, but also found that on either standard of review, the decisions below could not stand.  

Process for Assessing Entitlement to a Disability Pension Benefit
In attempting to dispel confusion about and end the conflation of the terms in paragraph 21(2)(a) of the Pension Act, the Federal Court of Appeal clearly laid out a four-step process for establishing entitlement. An applicant must:

1.demonstrate that he or she has a claimed condition—an injury or disease, or an aggravation thereof;
2.demonstrate that the claimed condition "arose out of or was directly connected with" his or her service as a member of the CF;
3.establish that he or she suffers from a "disability" (a defined term in the Pension Act); and,
4.establish that the disability resulted from a military service-related claimed condition.

The VRAB need not proceed through the test in this order, but in the most logical fashion for the circumstances of a particular case. Failure to establish any step would invalidate a claim.

Steps 1 and 3 involve factual determinations. Identifying the existence of the claimed condition in step 1 should not be conflated with the "disability" in step 3. In both steps 2 and 4, the VRAB must apply the correct causal connection imported by the Pension Act to the facts.

Causal Connection Intended by Phrase "Directly Connected With"
At issue in this case was the VRAB's treatment of step 2. It was common ground that Ms. Cole suffered from the claimed condition of major depression, but the VRAB was not convinced that  it "arose out of or was directly connected with" her military service because the evidence did not establish that the military service was the "primary cause."

As indicated above, the Court of Appeal found that the evidence actually established that there were two direct causes of the major depression: military factors and non-military factors. The question for the Court of Appeal then became, where there are two (or more) direct factual connections, does "directly connected with" require the applicant to show that military service was the "primary" cause, or some other causal connection?

The proper approach is not to assess which of the two direct causes is the "larger" one, as would be required in the "primary cause" or "but-for" interpretation. On the primary cause test, if personal factors were 51% or more responsible for the condition, it would mean that military service factors were only 49% responsible and would defeat the claim.

Such an outcome would be incongruous with the purpose of the legislation. Parliament's intention was that the Pension Act and Veterans Review and Appeal Board Act should facilitate, rather than impede, the awarding of pensions to disabled veterans, given their sacrifice and service to the country. In light of this, the primary cause test is both incorrect and unreasonable. Thus, while it would be insufficient for pension entitlement if military factors were merely 1% directly responsible for the claimed condition, an applicant must establish only "a significant causal connection" between the claimed condition and military service.

What is a "significant" cause"? The Federal Court of Appeal described a sufficiently significant cause as one that is "less than primary" and is "not insignificant." The term cannot be defined with mathematical precision and need not be. Whether military factors exist and are a significant causal connection is a question for the VRAB to assess in any given case.

Mental Health Context
The Cole decision will be of particular interest for veterans bringing applications in relation to claimed mental health illnesses. The decision indicates an awareness of the complexity of assessing causality in cases of mental illness. For example, Gauthier J.A. made the following comment: "considering the number of multiple etiology diseases, particularly psychological and emotional disease where there is no reasonable scientific method of apportioning precisely degrees of causation, it is not possible to read into paragraph 21(2)(a) that compensation is only available if the service-related factors are the primary cause of the disease."

Main takeaways
Where there are two or more direct causes of a claimed condition, the applicant must show that military service factors were a significant cause in order to satisfy step 2 of the test.
Sections 2 and 3 of the Pension Act and Veterans Review and Appeal Board Act, which contain Parliament's intended purposive mandate for the statutes, is of considerable assistance in interpreting the legal standard of causation in paragraph 21(2)(a) of the Pension Act.
The interpretation of the phrase "arose out of or directly connected with" is an extricable question of law that must be decided correctly.
The Federal Court of Appeal cautioned against conflating the various elements of the paragraph 21(2)(a). For instance, the "claimed condition" is not the "disability", "arose out of" is not "directly connected to." The VRAB would be wise to precisely identify what steps of the test they are addressing in any given claim.



Cheer's

As always 6608 thanks for that......where can a Canadian Veteran find justice, fairness , equality , respect , understanding , action , hope , satisfaction , sense of being listen too , help ......an so on.....the answer could very well be within our own Federal Courts.

Here is a link to the article..............

http://www.cjme.com/content/vets-mental-health-cases-get-clearer-rules

OTTAWA - The Federal Court of Appeal has handed down a judgment that will force Veterans Affairs and its independent appeal board to take more care in deciding on the mental health claims of ex-soldiers.

In a recently released decision, the justices overturned a lower ruling and rejected arguments from the Veterans Review and Appeal Board in the case of Anne Cole, a former officer discharged because she suffered from depression.

She applied for a disability benefit saying her military service was the cause of her mental health issues, but the Veterans Department, the appeal board and even the Federal Court rejected her claim, saying that her condition was not primarily related to military service.

But in a ruling that surprised many observers, the Federal Court of Appeal sided with Cole and said she should only have had to demonstrate that her illness "arose out of or was directly connected with" her time in uniform.

The wording is key because both the department and review board have insisted, particularly in mental health cases, that a veteran point to one traumatic incident or series of incidents that caused their depression or post-traumatic stress disorder.

The legislation does not stipulate a level or degree to which the cause of an illness must be justified, the appeal court said. In fact, the law governing veterans' benefits says the government must be generous and give ex-soldiers the benefit of the doubt when it comes to whether their injury was caused by military service.

The May 5th ruling, which has yet to be posted online, has been circulating in the veterans' community.

It sets out a four-part guideline for the federal government and the tribunal to follow to decide claims.

The ruling should make both the department and the independent board think twice about rejecting claims, said Stephen Aker, one of Cole's lawyers.

"It'll be helpful to veterans. How helpful? It depends on the individual circumstances of their cases," said Aker.

What it does not mean is that the federal government will be forced into approving a flood of mental health claims that might otherwise have been rejected, he said.

A military law expert, retired colonel Michel Drapeau, agrees and said it should lead "fairer, faster, more efficient and more effective adjudication of disability claims," particularly for post-traumatic stress.

"This lowers the bar most significantly for injured veterans," he said.

The question, Aker said, is how closely both the department and the review board will follow the decision. In the past, justices rendered a decision favourable to an ex-soldier on a specific point of law only to see the same issues land back in front of them.

A spokesman for Veterans Affairs Minister Erin O'Toole pledged that the department would review its policies and practises in order to align them with the court's decision.

Martin Magnan said there is no intention to appeal the decision.

"The Government of Canada welcomes the Federal Court of Appeal decision and applauds the court's clarification of the test for establishing a veteran's entitlement to a disability pension," Magnan said in an email.

"This Federal Court ruling provides Veterans Affairs Canada with the opportunity to re-evaluate its interpretation and application of legislation to ensure veterans receive all of the benefits to which they are entitled."

He statement did not set out a timeline for the review, but Magnan did say the department "is committed to applying the 'benefit of the doubt' in its adjudicating procedures."


Cheer's