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What is the next course of action after the 1st and 2nd National appeal denial...

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Post by Unknown Soldier on Fri 31 May 2019, 22:36

Teentitan wrote:On a 1st level appeal you present your info to 2 person panel of VRAB members with your BPA.  There are designated places across Canada that the 2 VRAB members go to for the appeal hearing.

A 2nd level appeal is composed of 3 VRAB members in PEI.  The client/veteran can attend but if you live in say BC you have to pay your own way to attend and you are not allowed to speak.  Your 1st level appeal BPA hands over all the information they have to BPA lawyers only in PEI that will represent you.

1st level BPA are usually lawyers putting in their pro-bono time to get their on the job training.  They are supervised by a full time employee of BPA.

2nd level BPA are full time lawyers for the BPA and they represent you and present your appeal info.

I have never gone thru my VAC account for an appeal but I am guessing the same procedure is done as how I mentioned it above.
I’m not sure we are talking about the same thing, after my situation was denied by VAC I was told I had 60 days to file an appeal with the National 1st Level Appeals Unit. I did this on line because BPA cannot get involved, you simply open your complaint using the my vac account, there is no human interaction,and they denied my claim. I was then offered to file an appeal with the 2nd Level appeals Unit,which is the same process. These boards are a separate branch and nothing to do with VRAB, and l have no idea how many members are on it or who they are. Looking over the paperwork VAC is stamped all over it, so in hindsight I’d say that these two boards are not impartial, but are employees of VAC, so no wonder the procedure failed, the wolf is in the hen house.
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Post by Teentitan on Fri 31 May 2019, 22:17

On a 1st level appeal you present your info to 2 person panel of VRAB members with your BPA. There are designated places across Canada that the 2 VRAB members go to for the appeal hearing.

A 2nd level appeal is composed of 3 VRAB members in PEI. The client/veteran can attend but if you live in say BC you have to pay your own way to attend and you are not allowed to speak. Your 1st level appeal BPA hands over all the information they have to BPA lawyers only in PEI that will represent you.

1st level BPA are usually lawyers putting in their pro-bono time to get their on the job training. They are supervised by a full time employee of BPA.

2nd level BPA are full time lawyers for the BPA and they represent you and present your appeal info.

I have never gone thru my VAC account for an appeal but I am guessing the same procedure is done as how I mentioned it above.
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Post by Unknown Soldier on Fri 31 May 2019, 18:43

Teentitan wrote:UKS you are right the OVO does not have the power to overturn a VRAB decision BUT they might take another look at your file IF the OVO finds something VRAB missed or overlooked.  

VRAB is allowed to "correct" a mistake on a previous decision.

I know this whole process is very hard on one's health and life so I suggest you give the OVO a chance to look at your info.  Maybe there was a veteran before you with the same injury that the OVO can point out to VRAB.  The OVO has a database on VRAB decisions because VRAB has no such database for them to use in their decision making.

what is the difference between the “ boards” who are part of VRAB and this mysterious 1st and 2nd Level of appeal, I mean I can go on line and read a bio of the entire VRAB membership, but that is not who handled my case, instead it was forwarded through the myvac account to the 1st National review board, which sided with VAC , and so I appealed again to the 2nd Level of appeal, which also sided with VAC, but there is plenty of information about VRAB being impartial, but just who composes these other two boards, I mean, if they are composed of VAC employees then that’s a no win situation, they are not going to turn on each other.
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Post by Teentitan on Fri 31 May 2019, 15:28

UKS you are right the OVO does not have the power to overturn a VRAB decision BUT they might take another look at your file IF the OVO finds something VRAB missed or overlooked.

VRAB is allowed to "correct" a mistake on a previous decision.

I know this whole process is very hard on one's health and life so I suggest you give the OVO a chance to look at your info. Maybe there was a veteran before you with the same injury that the OVO can point out to VRAB. The OVO has a database on VRAB decisions because VRAB has no such database for them to use in their decision making.

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Post by Unknown Soldier on Fri 31 May 2019, 14:07

Teentitan wrote:why then does it say on their site to turn to the ombudsman only after you have exhausted all the other appeal process’ , I mean what’s the point then.?

Good question UKS (Unknown Soldier)

While the OVO tracks recurring problems they learn not only how VRAB works but thinks.  That said the OVO may see something VRAB missed in their decision process and then they can guide you going forward.

Though the OVO does not have the authority to overturn a decision they can "discuss" your case with VRAB.  In other words they can grab the ear of VRAB and have a chat which might be helpful for you.

I know that VRAB has a bad habit of forgetting to look at the issue from the veterans point of view.  VRAB also forgets that they are a quasi-judicial system NOT a court of law and therefore they act like they are judges sitting on the bench and look too deep at evidence without looking at the health circumstances the veteran is in.  

For example during a 1st level appeal a VRAB judge was questioning me on why I had so many physical checkups?   I told him it's SOP (had to explain what SOP meant to him) to have a pre and post deployment physicals.  He then repeated the question of why so many then?  I asked him if he checked my UER (another term I had to explain to him)?  He said what does that have to do with all the physicals I have had.  My answer was I have done a lot of deployments in my career so if he has a problem with too many physicals on soldiers then to take it up with DND to change the SOP's on pre and post deployment physicals.
It's incidents like that the OVO wants to know so they can educate VRAB on the SOP's of the DND.  So go ahead and give the info to the OVO and tell them you give them permission to ask for the tapes from your appeal hearing.  The OVO councilor may hear something of value that was totally missed by the VRAB personnel.[/quote] ————————————————————thanks for replying, but again, if VAC and 2 appeal boards denied me, and then the ombudsman looks at the information and says “hey what about this evidence” , or “ hey try and see it from the vets side”, if VAC were to listen, that would mean they would overturn their decision, which people here are saying the ombudsman doesn’t have the power to influence. In stead it feels like all the ombudsman can do is point out to VAC how much they screwed over a vet, and then VAC looks at it and says “ wow, come to think of it, we really did, okay, next time we have a veteran in a similar situation, we’ll handle it differently”. That would still leave me sol, and make me even madder if a I read the following year of a vet with the same case as mine only this time VAC treated them right.
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Post by Teentitan on Fri 31 May 2019, 11:26

why then does it say on their site to turn to the ombudsman only after you have exhausted all the other appeal process’ , I mean what’s the point then.?[/quote]

Good question UKS (Unknown Soldier)

While the OVO tracks recurring problems they learn not only how VRAB works but thinks.  That said the OVO may see something VRAB missed in their decision process and then they can guide you going forward.

Though the OVO does not have the authority to overturn a decision they can "discuss" your case with VRAB.  In other words they can grab the ear of VRAB and have a chat which might be helpful for you.

I know that VRAB has a bad habit of forgetting to look at the issue from the veterans point of view.  VRAB also forgets that they are a quasi-judicial system NOT a court of law and therefore they act like they are judges sitting on the bench and look too deep at evidence without looking at the health circumstances the veteran is in.  

For example during a 1st level appeal a VRAB judge was questioning me on why I had so many physical checkups?   I told him it's SOP (had to explain what SOP meant to him) to have a pre and post deployment physicals.  He then repeated the question of why so many then?  I asked him if he checked my UER (another term I had to explain to him)?  He said what does that have to do with all the physicals I have had.  My answer was I have done a lot of deployments in my career so if he has a problem with too many physicals on soldiers then to take it up with DND to change the SOP's on pre and post deployment physicals.

It's incidents like that the OVO wants to know so they can educate VRAB on the SOP's of the DND.  So go ahead and give the info to the OVO and tell them you give them permission to ask for the tapes from your appeal hearing.  The OVO councilor may hear something of value that was totally missed by the VRAB personnel.
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Post by Unknown Soldier on Thu 30 May 2019, 21:41

Teentitan wrote:The Ombudsman does not have the authority or power to overturn a VRAB decision.  It is outside of his mandate because it is NOT an independent organization.  They fall under the VAC umbrella as a department.

The OVO was created to track and research recurring problems ONLY.  They write reports with suggestions to VAC and GoC.  

As for mailing hard copies of info to the OVO ask them if they need/want it.

The MVA does have the power to step in at anytime if ONLY he/she thinks or feels a veteran is being wronged.  
We can provide assistance by...

Reviewing and addressing your complaints if you believe that you have not been treated fairly by VAC;

We do not have the authority to...
Intervene until a Veteran has exhausted all recourse mechanisms unless there are compelling circumstances;
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Post by Unknown Soldier on Thu 30 May 2019, 21:31

Teentitan wrote:The Ombudsman does not have the authority or power to overturn a VRAB decision.  It is outside of his mandate because it is NOT an independent organization.  They fall under the VAC umbrella as a department.

The OVO was created to track and research recurring problems ONLY.  They write reports with suggestions to VAC and GoC.  

As for mailing hard copies of info to the OVO ask them if they need/want it.

The MVA does have the power to step in at anytime if ONLY he/she thinks or feels a veteran is being wronged.  
why then does it say on their site to turn to the ombudsman only after you have exhausted all the other appeal process’ , I mean what’s the point then.?
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Post by Teentitan on Thu 30 May 2019, 17:56

The Ombudsman does not have the authority or power to overturn a VRAB decision. It is outside of his mandate because it is NOT an independent organization. They fall under the VAC umbrella as a department.

The OVO was created to track and research recurring problems ONLY. They write reports with suggestions to VAC and GoC.

As for mailing hard copies of info to the OVO ask them if they need/want it.

The MVA does have the power to step in at anytime if ONLY he/she thinks or feels a veteran is being wronged.
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Post by propat on Thu 30 May 2019, 17:20

hey buds well he does not have a lot of power but he has helped a lot of people with some things so worth a shot cant hurt to ask. as far as overturning a VRAB decision not really sure he can do that . I know the MVA can get involved early on but after VRAB makes its first decision or once its referred to VRAB im not even sure he can have it overturned .

haven't been through that particular proses so im hoping you get a more positive response from someone who has .

good luck buds

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Post by Unknown Soldier on Thu 30 May 2019, 17:00

Teentitan wrote:Unknown Soldier you set forward a court case with Your Name v Attorney General of Canada as they are the ones that represent any government department in the courts.

Yes propat I agreed with what you wrote but not explaining what you have to do to get to the point where you want to sue the GoC/VAC can be misleading.  I wanted to explain what has to be done first.  My case took 18 months and my lawyer said it usually averages 2 years.  So to sue the government for punitive damages could probably take about 10 years after going thru all the proper legal procedures.

Look how long it took a class action lawsuit to go thru the courts for the SISIP lawsuit and the cost of legal fees.

It's this kind of intimidation by VAC, GoC that is motivating advocates to get rid of VRAB and go with the peer medical review.  We all had to go thru a peer review to be medically released from the military so why can't it be used to appeal declined applications with VAC?
thanks for all the information from you both, but right now I’m only in the process of submitting everything to the ombudsman, I notice online there is a drop down window to explain your situation but can you also mail them hard copy stuff, I.e medical diagnosis etc. And does the ombudsman really have the power to overturn a decision that was denied by vac, denied by the 1st Level of appeal, and denied by the 2nd Level of appeal, I mean has that ever happened to anyone else here.?
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Post by propat on Thu 30 May 2019, 16:40

hey teen ya I just intended to throw a little 4 or 5 word post to add to newfs very good list of options I thought had one missing . should I have explained all the plusses minuses pitfalls different legal options look for pro bono , that legal assistance org set up after the SISIP law suit , class action what not .

yup perhaps didn't really think it was necessary until all else failed and he was actually considering it but ya sure its always good to get all the info and early is much better than late .

as far as naming the respondent however not sure the AG is correct you normally have to sue the ones that wronged you not their legal representatives . you can throw in the GOC if you wish as they are responsible for VRAB but first and foremost you would want to be naming VRAB then add to that as law allows and you see fit .

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Post by Teentitan on Thu 30 May 2019, 15:40

Unknown Soldier you set forward a court case with Your Name v Attorney General of Canada as they are the ones that represent any government department in the courts.

Yes propat I agreed with what you wrote but not explaining what you have to do to get to the point where you want to sue the GoC/VAC can be misleading.  I wanted to explain what has to be done first.  My case took 18 months and my lawyer said it usually averages 2 years.  So to sue the government for punitive damages could probably take about 10 years after going thru all the proper legal procedures.

Look how long it took a class action lawsuit to go thru the courts for the SISIP lawsuit and the cost of legal fees.

It's this kind of intimidation by VAC, GoC that is motivating advocates to get rid of VRAB and go with the peer medical review. We all had to go thru a peer review to be medically released from the military so why can't it be used to appeal declined applications with VAC?
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Post by propat on Thu 30 May 2019, 14:40

most people don't and most of those for good reason . tort law was designed for those that have actually been wronged and have exhausted all other options, as it should be .

VRAB is who you would sue . and ya know id sue the actual board members themselves as well while I was at it say for one years salary the ones from your 1st and second hearings . I mean WTF right . did a very shallow dive on that a while back and found no president either way so it may be open law .
do a deep dive on that if no president then set one , one way or another why not . again all as a last resort and ONLY if its worth it TO YOU .

in the end only you know if its worth it and whatever YOU decide is the right decision .

JMO

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Post by Unknown Soldier on Thu 30 May 2019, 14:05

Teentitan wrote:propat I made the statement from experience.  I am one of the 65% of that Ombudsman report.  In conversation with the lawyer I had to hire I said I just want to sue them for malice and her flat answer was "waste of money".

I asked her why and she told me if you are standing at the bottom of a ladder you cannot just jump to the top of the ladder and sue.  You have to take it one rung at a time because this is Canada not the United States where they sue if you fart into a windstorm and someone smells it and they feel they were offended or done wrong.

The first rung of the ladder is to legally prove that VRAB's denial was wrong and the goal is to get the court to order VRAB to redo the appeal process.  There is your first $20K legal bill.

Second rung, if the court agrees with your case, is to do the appeal process all over again with VRAB.  If VRAB acknowledges their mistake and favors your application with VAC then you get compensation from VAC.  Case closed.

Third rung  if the court sides with VRAB you can appeal the provincial court decision and prove they were wrong in not ordering VRAB to redo your initial application.  There is another $20k in legal fees.

Fourth rung if your appeal to provincial court is successful you go thru the VRAB hearings again.  Win you get compensation from VAC case closed.  

Lose the second round of appeals with VRAB you can either go thru the provincial court system again to prove VRAB wrong (which has happened) OR file a claim with the Canadian Charter of Rights court that you are being discriminated against your disability by VAC/VRAB/Provincial court.

Win that one and you still have to go thru the application process with VAC again.  But you can sue for legal fees and punitive damages in civil court and yes there is more legal fees to be paid out of pocket.

The reason VRAB is wrong 65% of the time, as discovered by the OVO, is because VRAB is a "quasi-legal court system" NOT a real court of law.  This is why VRAB was created to protect VAC and the GoC from lawsuits from denied claims from veterans and to create a massive financial road block for injured vets

If a veteran wants to just sue for punitive damages go ahead but be prepared to defend yourself as to why you did not climb the ladder and jumped right to the top.  I couldn't even imagine what the price tag is for legal fees on that one?  Or how long it would take.

That is why the OVO did the report on VRAB to begin with.  The goal by the OVO was to have the legal/court ladder removed for veterans and to seek another avenue of appeal after the 2nd level of appeal with VRAB was a failure for veterans.  

What should be done is a medical peer review instead of a legal procedure when it comes to injuries of Canadian Forces Personnel.

So to sum up there is a legal avenue veterans have to follow because VRAB is what I stated a quasi-legal court system.  

So not to scare the bejeezers out of you Unknown Soldier contact the OVO FIRST and see what they have for a recommendation for what you should do.
I`ll probably never sue if the ombudsman can`t help me, but even if I were to go that route, doesn`t the court need your opponent`s name, who do you blame, can it be just VAC as a whole, or do you sight, your cM, a Dr, a psychiatrist etc?
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