The Veterans Review and Appeal Board has been advised by a parliamentary committee to review the way it handles benefit of the doubt in appeals of disability benefit rulings.
“One of the possible reasons why VRAB lost the trust and respect of some veterans [is that some] feel that they are not getting the benefit of the doubt with regard to the evidence they present,” says the report, Restoring Confidence In The Veterans Review And Appeal Board, from the House of Commons Standing Committee on Veterans Affairs.
The VRAB handles reviews and appeals by veterans, Canadian Forces and RCMP members and their families of decisions on disability benefits under the Pension Act and the New Veterans Charter. The Veterans Review and Appeal Board Act stipulates that in doing so it should draw every reasonable inference in favour of the applicant, accept credible uncontradicted evidence presented by the appellant and give the applicant the benefit of the doubt whether a case has been established.
One of the committee’s 13 recommendations calls for the board to interpret the benefit of the doubt “as it was intended” in the Veterans Review and Appeal Board Act and “clearly explain how this was done in all of its decisions.” Since its creation in 1995, VRAB has made more than 119,000 decisions.
Prior to writing the report, the committee heard evidence from Veterans Affairs Canada, the Bureau of Pension Advocates, Veterans Ombudsman Guy Parent, VRAB Chairman John Larlee, the Council of Administrative Tribunals, the RCMP and four veterans groups, including The Royal Canadian Legion, which represents veterans in VRAB appeals.
The veterans groups called to give evidence to the committee all raised benefit of the doubt as an issue. Veterans are regularly not given benefit of the doubt and medical notes and statements from the applicant are often dismissed, said Ronald Griffis, national president of the Canadian Association of Veterans in United Nations Peacekeeping.
“The most misunderstood part of the process is the application of the concept of ‘benefit of the doubt,’” said the Legion’s Dominion Command Service Bureau Director Andrea Siew. The Act “granted very liberal rules; however, over time, this has become a very legal interpretation. [It] has evolved to a workers’ compensation insurance approach rather than a social safety net approach.”
The VRAB’s adjudicative guidelines, which detail requirements for medical evidence, are “very restrictive,” said Siew. “Not only is the burden of proof on the veteran, but the evidence requirements are so complex and so restrictive that many veterans can’t obtain the type of evidence that is required. They don’t have access to the medical professional and specialists or can’t afford to obtain the necessary reports” and consequently decide not to appeal. “The benefit-of-the-doubt clause needs to be reviewed in the context of its original intent and liberal spirit,” she said.
Educating VAC adjudicators and VRAB members “is critical, even more so given than military service and the documentation of such service often creates difficulties,” said Veterans Ombudsman Guy Parent. If legislation were more liberally interpreted in the application process “I believe we would not be seeing the problems…at the back end of the process.”
The committee recommends the VRAB and VAC continue reaching out to veterans to explain evidence requirements for appeals.
Six of VRAB’s 24 members have military or RCMP experience and veterans told the committee they would like to see that proportion increased. The board uses a selection screening process designed for the federal public service, which “creates an artificial barrier” to those with RCMP or military experience, said Siew.
The committee report recommends that training ensures VRAB members and staff are more familiar with military and police culture. It also recommends VRAB review its processes, policies, and hiring and management practices to ensure board members’ independence and that evidence requirements are “consistent with the practices of the quasi-judicial tribunal industry standards.”
It also recommended VAC think about how to reduce the number of its decisions that are overturned by the VRAB. It is estimated that VRAB reviews between 10 and 15 per cent of VAC’s decisions each year and modifies about half of them. In 2011-12, VRAB ruled favourably in half of its 3,636 review decisions and 29 per cent of its 1,072 appeal decisions, the report says.
The committee also recommended VRAB publish on its website decisions it reviews a second time or that are sent to the Federal Court of Canada, and that VRAB report annually to Parliament.