How The Decision Is Made

By Sharon Adams

Once you have submitted your application, including medical documents and a Quality of Life questionnaire, all the information collected is sent to Charlottetown and assigned to an adjudicator.

The adjudicator will review the material to determine two things: whether or not you are entitled to disability benefits and if so, the compensation you should receive.

“There is nothing personal about this decision,” said Legion Service Officer Gerry Finlay in Edmonton. “It’s all based on the supportive evidence presented in your medical and service records and detailed on your application form.”

The adjudicator will consult VAC Eligibility Guidelines (online at http://www.veterans.gc.ca/eng/services/after-injury/disability-benefits/benefits-determined/entitlement-eligibilityguidelines/az-intro) for the condition on which your claim is based as well as the Table of Disabilities (online at http://www.veterans.gc.ca/eng/services/disability-benefits/benefits-determined/table-of-disabilities) to identify level of impairment.

Gaining entitlement is the first step. The documents you provide need to show that you have a diagnosed disability or medical condition and that it is related to or aggravated by your service.

“Adjudicators consider everything that has been submitted by the applicant,” said Colleen Soltermann of Veterans Affairs Canada. They also consider Canadian Armed Forces and RCMP service health records. “The key message is you need to have a medical diagnosis and we need to be able to prove it’s service related. That’s why we need the full picture—the completed application form, medical records, service records, witness statements.”

Once it has been decided that you are entitled to benefits, the adjudicator will examine your medical history, and taking into consideration such things as congenital conditions, injuries prior to service and life after release, assign an entitlement rating. This reflects the percentage of disability that is attributable to your service, and ranges from 1 to 5. This figure will be used later to determine the amount of your disability pension or award.

In determining the amount of compensation, the adjudicator will consider the seriousness of the medical condition and how much it has affected your quality of life.

The diagnosis will show what part of the body has been medically affected. “Your medical records have to show that your condition is chronic and that you have had the problem for at least six months, for most conditions,” said Finlay.

The adjudicator will consult the Table of Disabilities to ensure the condition meets VAC’s eligibility criteria for that condition, said Soltermann. The link to service is made not just through examination of your service history and military medical records, but to your description on the application form of your duties and how they contributed to the disability or condition.

“Even if there is no financial benefit attached at first, we consider entitlement a major victory,” said Finlay. You are now entitled for the rest of your life to benefits for the condition, which includes treatment, therapy, medications and assistive equipment. It also opens the door to other VAC programs, like the Veterans Independence Program. And your condition can be reassessed every two years, which may lead to granting of, or an increase of, financial benefits.

Next the adjudicator will determine your disability assessment, which will be used to determine the amount of your pension or disability award.

The adjudicator will determine a medical impairment rating using a chart that assigns a rating to the loss of function for your disability.  You can check out this chart yourself by going into the online Table of Disabilities and clicking on the heading that corresponds to the claimed disability. For instance, the chart for loss of knee function assigns a four per cent rating for daily pain with movement when there is normal range of motion, and 26 per cent for an unstable knee that has lost 10 degrees of extension and can’t flex more than 90 degrees. It will also be determined if and how much a separate medical impairment contributes to the disability.

The adjudicator will assign a quality of life level of 1 to 3 that reflects whether your life is mildly, moderately or severely affected by the disability or health condition. That rating is cross-referenced with the degree of medical impairment to come up with a quality of life rating from 1 to 20.

The medical impairment rating is added to the quality of life rating, and the resulting number is multiplied by the entitlement rating to determine the percentage of the maximum pension or disability award you’re entitled to for each disability or condition.

“If you have a total assessment of 15 per cent for one condition and 25 per cent for another, they will be added together and you will get 40 per cent in total,” said Soltermann.

Monthly pensions are awarded for assessments of five per cent or higher for those covered under the Pension Act. A single payment will be given for pensions assessed at four per cent or less. Additional amounts are paid for spouses and dependent children.

The maximum disability award was $298,580 in 2013. The award can be paid in annual instalments, a lump sum or a combination of the two. The disability award calculator at www.veterans.gc.ca/eng/services/disability-benefits/disability-award/da-calc can help determine which payment method is best for you. One payment is made for disability awards of under five per cent.

Remember, you have the right to appeal any of these decisions.

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Still Not Satisfied? 

By Sharon Adams

Although your first application for disability benefits from Veterans Affairs Canada may be rejected, “no” may not be the final word. Veterans have the right to appeal VAC decisions about entitlement and assessment.

Veterans Affairs Canada will send you a letter telling you whether or not you have been granted a disability pension or award. The letter will tell you what records, medical reports and VAC guidelines and policies were reviewed, and explain the reasons for the decision.

“Basically, they tell you why they refuse you,” said Ray McInnis, a Royal Canadian Legion service officer in Ottawa. “And that gives you another kick at the can.”

Some people don’t take that second kick because they mistakenly believe the first answer from the department is the final answer. Others may have been worn out by the application process and don’t have the energy to go on, or don’t want to deal with a government department.

Still others who applied long ago may not realize that there have been policy changes since they first applied for benefits. For instance, eligibility for hearing loss benefits changed in 2007, and many veterans who were turned down for benefits prior to that have successfully appealed under the new policy, said McInnis.

Can’t make up your mind whether to appeal or not? You can get help making the decision from a Legion command service officer or the Bureau of Pensions Advocates (BPA). “Come to one of us and we’ll deal with it,” said McInnis. “There is no time limit on when you can appeal, so you can take your time to think about it.”

The first step may be requesting a departmental review from VAC, which allows you to bring new evidence or point out errors of fact or law. The new evidence may persuade the department to confirm, amend or rescind the initial decision. And the evidence must be new, not a restatement of information already submitted.

Most unsuccessful initial applications are due to lack of a medical diagnosis of the disability or condition, or failure to link the condition to military service. Filling in those gaps can provide new evidence for VAC to consider, such as a doctor’s report confirming a diagnosis or a statement from a witness who was there when you were first injured.

Although there are more levels of appeal, it makes sense to ensure your case is as strong as possible to increase the likelihood of a favourable decision in the departmental review. Veterans covered by the New Veterans Charter are limited to one departmental review per condition; veterans covered under the Pension Act may request more than one departmental review for each disability or condition, but each review takes time and energy, and each negative reply takes an emotional toll.

After VAC reaches a decision after the departmental review, you will receive a letter telling you whether your application has been successful and how the decision was reached. It encourages recipients to seek advice from the Legion or BPA. If you are unsatisfied with that decision you have the right to ask for a review hearing with the Veterans Review and Appeal Board.

A VRAB review hearing is the only time you get to tell your story face-to-face to the people making the decision about your case. VRAB is an independent appeal tribunal that reviews VAC disability benefit decisions.

There is no fee for reviews and your expenses will be paid to attend hearings.

Hearings usually take place before two VRAB members, and you may bring with you representatives, witnesses, family members or friends. If it’s impossible for you to appear in person, arrangements can be made for you, your representatives or witnesses to take part by teleconference.

This is not as formal as a court hearing. Your representative presents your case to board members. You will be given the opportunity to tell your story. Board members may ask questions to clarify facts and issues.

The VRAB members make a decision after considering all the evidence and the testimony they’ve heard and usually provide a written decision about six weeks after the hearing.

If you are unsatisfied with the decision after the review hearing, you may decide to proceed to a VRAB appeal hearing. These hearings are held in Charlottetown or Ottawa, or by teleconference, before three VRAB members who were not involved in the review hearing. You may attend this hearing at your own expense. This hearing provides you an opportunity to submit new information and further support your case. You will not be able to speak during the hearing, but you can submit written statements if you have anything to add to what you said at the review hearing.

The panel will consider written statements and documents filed prior to the hearing and listen to oral arguments from your representative before making a decision. The appeal panel will generally provide a written decision within six weeks. Appeal decisions are final and binding.

If there is significant and relevant new evidence, or an error in law or fact, you may ask VRAB to reconsider the matter, but reconsideration hearings are not by right.

If you are still unsatisfied, you can apply to the Federal Court of Canada for a judicial review of VRAB’s decision, but you have only 30 days from the date you received VRAB’s decision. You will want a lawyer to represent you and fees are your responsibility.

If the Federal Court determines VRAB has erred, the case can be referred back to VRAB for re-hearing. ♦