STEADYING THE COURSE
Report of the Subcommittee on Veterans Affairs of the Standing Senate Committee on Social Affairs, Science and Technology
Chairman of the Subcommittee: The Honourable Orville H. Phillips
Deputy Chairman: The Honourable M. Lorne Bonnell
April 1997
PREFACE
PENSION ADJUDICATION
In discharge of its mandate to "examine and report upon the implementation by the Department of Veterans Affairs of measures to expedite the adjudication of pensions" the Subcommittee heard testimony from the Royal Canadian Legion (Legion) and the National Council of Veteran Associations (National Council) before leaving for Charlottetown, Prince Edward Island, and two days of intensive testimony from officials of the Department of Veterans Affairs (Department) and officials of the Veterans Review and Appeal Board (Board) and the Bureau of Pensions Advocates (Bureau). The following report presents its findings and recommendations about pension adjudication and about recommended amendments to the Pension Act and other veterans legislation.
RECOMMENDATIONS
The Subcommittee recommends:
1. That the Bureau of Pensions Advocates play a role in the training of new Pension Officers and instilling in new recruits the principle that their first loyalty must be to the veteran or other applicant.
2. That following completion of the First Level adjudication process, a lawyer of the Bureau of Pensions Advocates review the decision and inform the veteran or other applicant in writing of his/her opinion as to whether there are any valid grounds for appeal.
3. That the way in which entitlement and assessment of hearing loss claims are being adjudicated continue to be evaluated by the Department in conjunction with the Review and Appeal Board and veterans organizations.
4. That the Department and the veterans organizations agree on what constitutes a "current" audiogram for the purpose of determining entitlement and assessing the degree of hearing loss, and that, where entitlement can be granted and a hearing loss can be assessed on the basis of a stale-dated audiogram, the claim should proceed and the veteran receive a benefit based on this audiogram, notwithstanding the fact that a new audiogram has been ordered or recommended. On receipt of the new audiogram the veteran should receive the greater of the new and the previous assessment.
5. That the role of the Headquarters Medical Advisor remain under careful study and a specific report be made to the Minister and the Subcommittee regarding the current role being played by Headquarters Medical Advisors and that equal credence be given to the written assessment of family doctors and specialists as to assessments by departmental medical officials.
6. That in addition to the current definition, the Department develop a new definition of a "favourable decision" that takes into account each condition claimed, the average amount of awards, (globally and by disability) and the overall trends in the amount of awards, and that the Department study the decisions of the Review and Appeal levels of adjudication to ensure that applicants are not being forced to appeal low assessments made at the First Level.
7. That the Department of Veterans Affairs determine the reasons why in some instances veterans are receiving a lower rate of favourable rulings on their pension applications than members of the Regular Force and report the findings to the Subcommittee.
8. That Section 19(2) of the Pension Act be amended to eliminate the expression "trivial, frivolous or vexatious" and to make it clear that the purpose of the section is to prevent repeated attempts to argue the same or substantially the same issue without adducing new evidence.
9. That the Veterans Review and Appeal Board and the Bureau of Pensions Advocates take steps to encourage more veterans to rely on written submissions at the Review Level by bringing the option to the attention of veterans and by ensuring that it results in a faster decision.
10. That Section 36(1) of the Veterans Review and Appeal Board Act be amended to require the Chair to have regard for the convenience of the applicant when setting the place and time of the hearing.
11. That the Chairman of the Veterans Review and Appeal Board regularly inform the Subcommittee on Veterans Affairs about the progress being made in reducing turnaround times at both the Review and Appeal levels of the Board.
12. That it continue to monitor progress in implementing the measures to expedite the adjudication of pensions and that it submit a further report shortly after the two year implementation period expires in September 1997.
13. That Veterans Affairs Canada act as soon as possible to clarify Sections 48 and 49 of the Pension Act to ensure that surviving spouses are clearly entitled to benefit from any increase in the assessment of their deceased spouse's disability, regardless of whether the application is initiated before or after the death of the veteran and results in a revised assessment of less than 48% and that the amount of increase in the survivor's pension be made retroactive from the date of application or for a maximum of three years.
14. That Section 5(1) Overpayment of the Pension Act be amended to restore to veterans the right to have overpayment situations referred to a panel of the Veterans Review and Appeal Board from the beginning rather than to the Minister.
15. That Section 21(5) of the Pension Act dealing with consequential claims be amended to make it clear that there can be a consequential upon a consequential disability and to ensure that the assessment on the consequential disability is not limited to an equal or lesser amount of the initial disability.
16. That Section 109 of the Pension Act, which deals with access to documents, be amended to specify that anyone authorized by the veteran in writing, including a service officer of a veterans organization, is permitted to have direct access to documents relevant to a pension application no matter what Department or agency of government holds them, without having to go through Veterans Affairs Canada.
17. That the Veterans Review and Appeal Board Act be amended to require either the appointment of a Deputy Chair, or the designation of a Deputy Chair.
18. That veterans legislation be revised to eliminate the distinctions in status and benefits between uniformed veterans and civilians who serve abroad in close support of the armed forces in theatres of war or in Special Duty Areas, and that the full benefits of the Veterans Independence Program be extended to those civilians enumerated in Part XI of the Merchant Navy Veteran and Civilian War-Related Benefits Act.
19. That the long-term spouses of veterans with serious, service-related disabilities be entitled to a continuation of those Veterans Independence Program benefits necessary to maintain their independence following the death or permanent institutionalization of the veteran.
20. That the Pension Act be amended to recognize "Gulf War Syndrome - not yet determined" as a pensionable condition and that until this amendment has been passed into law, that Gulf War veterans in great distress with symptoms associated with the "Gulf War Syndrome" be considered for a compassionate award under Section 34 of the Pension Act.
21. That the Department of Veterans Affairs send the Subcommittee on Veterans Affairs the audited accounts of the benevolent funds it administers and that it furnish the Subcommittee with information about the policy it follows in managing the accounts of veterans.
INTRODUCTION
The Standing Senate Committee on Social Affairs, Science and Technology has submitted a number of major reports on the affairs of veterans: They Served, We Care <1> of 1981 was prepared by the Committee itself. Since 1985, however, the workload of the main Committee and the debt we owe our veterans has justified the formation of a Subcommittee on Veterans Affairs to monitor departmental activities, to provide veterans organizations with a national forum in which to outline the needs of veterans and to carry out in depth studies of issues of interest to veterans.
Over the years since 1981, there has been one constant complaint in the briefs and testimony of veterans organizations before the Subcommittee, one constant irritant in the relations between veterans on the one hand and the Department of Veterans Affairs and the quasi-judicial bodies associated with it on the other hand, and hence a common thread running through the reports presented to the Senate: concern about the pension process. As veterans have aged, the frustration and anger over the years it could take to fully adjudicate a pension claim have mounted. Repeated efforts to "fix" the system did not do away with backlogs of thousands of cases and waits of one to two years just to get a first level decision.
Like veterans, the Subcommitteewas delighted in June 1994 when the welcomed Secretary of State (Veterans), the Hon. Lawrence MacAulay's, formally commitmentcommitted of June 1994 the government to take steps that would "cut the existing turnaround times for pension applications and appeals almost in half." Like most of the veterans organizations, however, the Subcommittee was very skepticalsceptical of the means chosen to effect this promise. The Government proposed to delegate responsibility for first level decisions exclusively to the Department; to join the Bureau of Pensions Advocates to the Department and dedicate it exclusively to the preparation of appeals from first level decisions; and, to merge the Canadian Pension Commission and the Veterans Appeal Board into one appeal Body (the Veterans Review and Appeal Board). This skepticismscepticism was apparent in the Subcommittee report of October 1994, Keeping Faith: Into the Future <2> which reluctantly accepted the proposal.
The Subcommittee also attached five recommendations to its report on Bill C-67 which gave the proposal the force of law. These recommendations insisted that the power granted the Minister (the Secretary of State for Veterans Affairs) and a Review panel to unilaterally review and change one of their own decisions should not result in a loss of benefits to the applicant or veteran. A further recommendation made clear that, when necessary, appropriate or desirable, applicants should continue to have access to the lawyers of the Bureau of Pensions Advocates in all proceedings under the Pension Act, including the preparation of applications. Finally, it was agreed that the Subcommittee should monitor implementation of the new system of pension adjudication and the degree to which the government had honoured its commitment to halve the time it took to process a pension application.<3>
TheYour Committee does not want to suggest that there is no longer any reason to be concerned about the pension process, backlogs and excessively long turnaround times. It does want, however, to give the officials of the Department of Veterans Affairs in particular and the officials of the Veterans Review and Appeal Board and the Bureau of Pensions Advocates credit for the tremendous progress that has been made since 15 September 1995 (the date on which the reforms to the pension adjudication system took effect) in resolving many long-standing problems. A leaner, more efficient system has emerged at both the first level of adjudication and at the review-appeal level.
THE FIRST LEVEL OF ADJUDICATION
When the Subcommittee visited Charlottetown in 1994 prior to the preparation of its report, Keeping Faith: Into the Future, it took about 18 months to process an application, from the time an applicant walked into a District Office of Veterans Affairs Canada and asked for assistance until the first cheque was issued.<4> On its most recent visit the Subcommittee found that notwithstanding an increase in First Applications received, the Department had reduced the average time it takes to render a decision and, if the decision is favourable, to dispatch the first cheque to about 10 months. Since applications made a long time ago are still passing through the system, there is every reason to believe that the 'turnaround' time will continue to improve for new applications and that before the 15 September 1997 second anniversary of the implementation of the new system, it will have reached the promised 9 months or less. Just as importantly, the number of first applications pending (which is also referred to as the "backlog") has been systematically reduced from about 9,000 to 8,000.<5>
In 1994, a very high percentage of First Level adjudications was being overturned on appeal, largely because only 30% of decisions were at least partially favourable. This implied that the veteran or other applicant was not being given the 'benefit of the doubt' at the First Level, thus adding to the delay before a new or greater payment was received and creating unnecessary work and backlogs in the appeal process. As a result of the reforms, adjudicators are now rendering at least partially favourable decisions in about 50% of their decisions.<6> The First Level now includes provision for a departmental administrative review of adjudication decisions which can correct mistakes, grant entitlement or increase benefits in a limited number of cases without the necessity seeking a formal quasi-judicial review. Thus it can be said that at least some veterans are receiving better results as well as faster decisions from the First Level adjudication process.
The members of the Subcommittee carefully examined the witnesses from the Legion, and the National Council<7> as well as the departmental officials about the experience of veterans and other applicants with the new system. The Subcommittee had expressed great reservations about the withdrawal of the independent lawyers of the Bureau of Pensions Advocates from the First Level adjudication process and their replacement by departmental officials called Pension Officers in counselling applicants and the preparation of their application. No evidence of veteran discontent with the change was uncovered, perhaps in part because many of the current Pension Officers formerly worked as para-legal staff with the Bureau. The department has also responded to a recommendation of the Subcommittee and provided for continuing association of Bureau lawyers as advisors through the Resource Centre. While tThe Subcommittee was re-assured by its findings, it believes, however, that as Bureau para-legals retire or move on to other responsibilities, there is a risk that young pension officers may not have the same degree of independence or the same loyalty to the veteran.
The Subcommitteetherefore recommends
that the Bureau of Pensions Advocates play a role in the training of new Pension Officers and instilling in new recruits the principle that their first loyalty must be to the veteran or other applicant.
The Subcommittee is also concerned that veterans be properly informed, not only about their right to appeal to the Veterans Review and Appeal Board, but also about whether or not there are good grounds for such an appeal. In the old system this was not a problem because veterans had access to the lawyers of the Bureau right from the beginning. As already noted, to-day the mandate of the Bureau is basically restricted to the Review and Appeal level. Since passivity tends to increase with age, at age 75 the average veteran may be too inclined to accept the verdict at the First Level, particularly if the verdict is partially favourable, rather than aggressively press a formal appeal. This gives rise to a very great concern: Who is formally responsible for evaluating the First Level decision of the Department and advising the veteran or applicant on whether or not it would be worthwhile to launch an appeal?
The Subcommittee believes that this responsibility should belong to the Bureau and consequently recommends
that following completion of the First Level adjudication process, a lawyer of the Bureau of Pensions Advocates review the decision and inform the veteran or other applicant in writing of his/her opinion as to whether there are any valid grounds for appeal.
The Subcommittee found that the Legion, supported by the National Council of Veteran Associations, is very concerned that some of the changes in the adjudication process and their manner of implementation are driven by financial concerns about the amount of compensation that will be paid to pension recipients. The Legion in fact has an informal study showing that of 100 applicants who were given a favourable decision under the old system, 29 would have been denied compensation for hearing loss if the new system had been used to evaluate their claims. This suggests that the current hearing loss policy is inadequate and that the Department has violated its own credo of "no veteran will receive less" by adopting the new hearing loss guidelines.The Subcommittee was pleased to hear the The Deputy Minister say testified that the Department was "not being driven by cost savings in the new pension process or in how we apply our policy" and to hear that the Department, the Review and Appeal Board and the Bureau of Pensions Advocates were already re-evaluating the way in which hearing loss claims are being adjudicated and would be holding talks with the veterans organizationsorganizations to pinpoint the source of the problem.<8>
The Subcommittee recommends that
the way in which entitlement and assessment of hearing loss claims are being adjudicated continue to be evaluated by the Department in conjunction with the Review and Appeal Board and veterans organizations.organizations
Assessment of the degree of hearing disability is determined, according to the Deputy Minister, "almost entirely on current audiograms.", which is as it should be. Members of the Subcommittee, however, were upset to learned that there was no firm standard of what constituted a "current" audiogram, and that the Department only tried "to have an audiogram less than two years old."<9> Since the passage of two years might bring a very significant change in the hearing of a veteran aged 75 years and more, the Subcommittee did not think that this was an adequate standard for more than determination of entitlement and a preliminary assessment of the degree of hearing impairment. Members of the Subcommittee do not want the lack of a more current audiogram to sidetrack an application or delay the issuance of a first cheque.
The Subcommittee recommends that
tthe Department and the veterans organizationsorganizations agree on what constitutes a "current" audiogram for the purpose of determining entitlement and assessing the degree of hearing loss,
and that,
where entitlement can be granted and a hearing loss can be assessed on the basis of a stale-dated audiogram, the claim should proceed and the veteran receive a benefit based on this audiogram, notwithstanding the fact that a new audiogram has been ordered or recommended. On receipt of the new audiogram the veteran should receive the greater of the new and the previous assessment.
In its brief to the Subcommittee, the National Council of Veteran Associations expressed concern about the continued role of Headquarters Medical Advisors in the adjudicative/appeal process. The role of these officials in the new process was not clear and the Council had evidence that Headquarters Medical Advisors, in some cases, would still overrule recommendations of the District Pensions Medical Examiner or evidence provided by the veteran's attending physician or specialist. On various occasions members of the Subcommittee have also criticiseddecried the intervention of the Headquarters Medical Advisors and they discussed this issue at length with the Deputy Minister and his officials. The Deputy Minister recalled that he had already expressed the opinion that he "would be dismayed if one of our local medical advisors overturned the opinion of a recognizedrecognized specialist in his field." The Subcommittee was also assured repeatedly that adjudicators did "not discuss a community physician's position with any medical advisor in head office." The adjudicators and the adjudicators alone were responsible for deciding the issues of entitlement and assessment. In about 20% of cases, however, adjudicators asked to consult with one of the four remaining hHeadquarters Medical Advisors, almost always about an issue of assessment as opposed to an issue of entitlement. Although the Headquarters Medical Advisor might make a recommendation, the final decision remained with the adjudicator.<10>
Despite these reassurances, the members of the Subcommittee continue to have doubts and reservations about the role of hHeadquarters Medical Advisors. The last thing that would be desirable would be a reversion to the old process in which Headquarters Medical Advisors could overrule the findings of the a Senior District Medical Officer, the veteran's physician or the opinion of a specialist. In fact, the members of the Subcommittee believe that the written assessment of family doctors and specialists should be given equal credence in determining awards to assessments by departmental medical officials.
The Subcommittee recommends that
the role of the Headquarters Medical Advisor remain under careful study and a specific report be made to the Minister and the Subcommittee regarding the current role being played by Headquarters Medical Advisors and that equal credence be given to the written assessment of family doctors and specialists as to assessments by departmental medical officials.
For the sake of continuity, the Subcommittee agrees that the Department should continue to define turnaround times as the time from the date on which an applicant approaches the Department with a claim until the time a cheque is issued, and to define a "favourable decision" as a decision, any element of which is favourable to the applicant. It is also very pleased notes that "favourable decisions" have increased from 30% of claims to 52% at the First Level of adjudication in just ten and a half months, thus sparing more applicants the necessity of appealing the decision and reducing the workload of the Review and Appeal Levels There is, however, a concern that the First Level adjudication may be granting entitlement and/or a minimal level of assessment or re-assessment more routinely. This would result in the appearance of a higher rate of favourable decisions, but would not result in higher average awards to applicants. The Subcommittee was very pleased to have notes the Deputy Minister's assurance that the amount of awards, after the implementation of the new system, was better (that is, more generous) than before.<11>
Nevertheless, oOn its next visit to Charlottetown, the Subcommittee would like to have available more sophisticated statistics on favourable decisions. The present compilation of statistics does not have separate categories for veterans of the World Wars and Korean War, for veterans of the special duty areas, and for serving personnel; it does not take into consideration that pension applications may contain more than one application and that each should be reported separately; it does not monitor the average amount of award globally and by disability claimed; and does not indicate whether or not cost savings are being realised by overall reductions in the amount of awards.
The Subcommittee recommends that,
in addition to the current definition, the Department develop a new definition of a "favourable decision" that takes into account each condition claimed, the average amount of the awards, (globally and by disability) or and the overall trends in the amount of awards, amount of the increase in the award,
and that
the Department study the decisions of the Review and Appeal levels of adjudication to ensure that applicants are not being forced to appeal"stingy" low assessments made at the First Level.
In its 1994 report, Keeping Faith: Into the Future, the Subcommittee expressed surprise and concern over the apparent reluctance of the Department of Veterans Affairs and the independent adjudication bodies to accept psychological disorders such as Post-Traumatic Stress Disorder as service related, debilitating and pensionable. Reviewing the "favourable decisions" at the First Level with Departmental officials, members of the Subcommittee were pleased to noted that there was a relatively high rate of favourable decisions for claims from veterans for Post-Traumatic Stress Syndrome and Psychoneurosis, and that there was a willingness to diagnose thisese disturbances among members of the Regular Force. But members of the Subcommittee were concerned to discover that Regular Force members were receiving a higher rate of favourable rulings for spinal conditions and arthritis than veterans of the World Wars and Korea, and virtually the same rate of favourable rulings for hearing loss.<12> The concern arises because it seems that Regular Force members may be getting the benefit of today's greater ability to correlate injury with service while, veterans are disadvantaged by the less highly developed medical assessments and recording procedures of fifty years ago, or are not being given the benefit of the doubt.
The Subcommittee recommends that the Department of Veterans Affairs determine the reasons why in some instances veterans are receiving a lower rate of favourable rulings on their pension applications than members of the Regular Force and report the findings to the Subcommittee.
In his concluding remarks to the members of the Subcommittee, the Deputy Minister restated the continuing commitment of the Department to set firm and comprehensive standards of service to its clientele. Significant progress had been made in reducing turnaround times to process first applications. Overall, average turnaround times were already down to 9.9 months, and the turnaround time for claims initiated since implementation of the First Level reforms on 15 September 1995 dropped to 6.9 months in November of 1996, so there was the expectation of continued improvement as "stale-dated" dossiers were completed and no longer served to increase average turnaround times. The department intends to make additional refinements in the First Level process that should further reduce processing time. These include an improved standard format for submission of claims, the comprehensive training of new adjudicators and the addition of resources as needed, the development of a single document to inform clients of a decision rather than a separate decision document, a covering letter, and a payment information document, and the adoption of parts of the Australian an electronic system which stores rules relating to adjudication to assist the Department if it will help to improve the consistency, fairness and timeliness of the Canadian system.<13>
THE REVIEW AND APPEAL LEVELS OF ADJUDICATION
The Veterans Review and Appeal Board is an independentindependant tribunal which spends almost all its time hearing reviews and appeals of First Level decisions about entitlement and assessment. The Board currently has 30 members (including the Chairman), who are organisedorganized into two levels, the Review level and the Appeal level. Twelve members are stationed across the country, essentially to hear cases at the Review level, while the remaining 17 (and the Chairman) are based in Charlottetown and sit on either Review panels or concentrate on deciding appeals from the Review Level. There is a formal service agreement between the Chairman of the Board and the Deputy Minister of the Department which sets out how the Veterans Services Branch and the Bureau of Pensions Advocates will work in collaboration with the Board to support the Review hearings that take place across the country.
When it began operations in September 1995 the Review and Appeal Board inherited a significant workload or backlog of cases that were awaiting decision. At the Review level the workload represented about nine months work, and at the Appeal level, it represented 13 months work. The turnaround times at both levels have been heavily influenced by the priority given to expediting cases that have been awaiting decisions for a long time. Progress at the Review level has also been influenced by the urgent need to reduce the relatively larger workload at the Appeal level. All this is to say that turnaround times do not show the dramatic improvements witnessed at the First level. Rather they remained relatively constant over the 11 month period (January-November 1996 inclusive) for which complete statistics were available when the Subcommittee visited Charlottetown in January.<14>
A. Reviews
During the period January to November 1996 inclusive the Board received 8,384 requests for Reviews and adjudicated 8,381 Reviews. Average turnaround times remained stubbornly high at just under 12 months due to the large number of old cases being completed, rather than closer to the objective of six months. Officials of the Board assured the Subcommittee that the backlog of long-standing cases was almost out of the system and when this turning point was reached, turnaround times would decrease rapidly.<15>
The Board has introduced a number of policies to speed up the flow of cases. They discovered that referral to a Review panel was not the most appropriate step to take for many of the incoming requests for a Review and in April 1996 instituted a screening process. Between April and the end of the year approximately 1,500 requests for a Review involving an assessment were subjected to a "triage" by a panel of special advisors. Five hundred and thirty-five cases were affected. In 196 cases it was found that requests for Review of an assessment were not accompanied by an up-to-date medical examination or did not have complete medical information. These could be quickly directed back to the first level for an examination and an assessment. In 103 cases it was found that the outcome would almost certainly be favourable, perhaps because two doctors disagreed on the level of assessment. Since Review panels will invariably support the higher assessment, these applicants could be advised to opt for a much speedier hearing by a one-member panel under Section 19(1) of the Act. In 236 cases the application was rejected because it adduced no evidence of a change in the degree of disability to support the request for a review and hence was found to be "trivial, frivolous, or vexatious" under Section 19(2) of the Act.<16>
The rejection of applications under Section 19(2) is controversial for two reasons: the offensiveness of the expression "trivial, frivolous or vexatious," and its potential use to administratively reject challenges to existing hearing loss policy and to interpretations of the Act in this regard. The expression is offensive even applied, as intended, to an application for a review rather than, as sometimes misunderstood, to the veteran's condition or even to the veteran himself or herself. In the eyes of the veteran or applicant the request for a Review obviously has merit, otherwise they would not have submitted it. This is even more true when the submission has the support of the Service Bureau of a major veterans' organizationorganization.
According to the Legion, Section 19(2) has been invoked in excess of 100 times to deny a forum to applicants in hearing loss claims where the applicant wishes to challenge current hearing loss policy or to argue a more favourable interpretation of existing evidence and of the provisions of the Act.<17> At the same time it must be noted that the Chair, in exercising his/her power under Section 19(2), is evaluating the opinion of the special advisors making the triage that, given the evidence of the audiogram submitted, the Act offers no basis for changing the assessment.<18> The Subcommittee is aware that this "cut and dried" interpretation is disputed as is the hearing loss policy based on it.
In the opinion of the Subcommittee, Section 19(2) should not be used by the Board to avoid challenges to policy or to its interpretation of the Act. Substitution of a two person panel for the Chair sitting alone, as proposed by the Legion, however, would only extend the triage process which saved the Review level up to 18 weeks of hearings between April and the end of December last year. To ensure that the issue of the quality of decisions rendered and the rights of veterans are respected, as well as the need for more timely Review decisions,
The Subcommittee Recommends that
Section 19(2) of the Pension Act be amended to eliminate the expression "trivial, frivolous or vexatious" and to make it clear that the purpose of the section is to prevent repeated attempts to argue the same or substantially the same issue without adducing new evidence.
The Subcommittee believes that the adjudication of applications at the review level could be speeded up if more veterans chose to submit their case in writing rather than to appear in person. The stress and strain of preparing for an oral hearing is particularly great for veterans who are 75 and older and who may be suffering from a number of disabilities. In many cases, a written submission might improve the veteran's chances of getting a favourable decision. A greater emphasis on written submissions would also help to make the members of Review panels use their time more efficiently by reducing the amount of time they must devote to travel.
The Subcommittee recommends that the Veterans Review and Appeal Board and the Bureau of Pensions Advocates take steps to encourage more veterans to rely on written submissions at the Review Level by bringing the option to the attention of veterans and by ensuring that it results in a faster decision.
At the same time, the Subcommittee believes that those veterans who decide to appear and give testimony in person are entitled to know that their convenience must be taken into consideration in setting the place and time of the hearing.
The Subcommittee recommends that Section 36(1) of the Veterans Review and Appeal Board Act be amended to require the Chair to have regard for the convenience of the applicant when setting the place and time of the hearing.
B. Appeals
The Appeal level is the final level of appeal in the pension adjudication process. The three member Appeal tribunals sit almost exclusively in Charlottetown. Unlike the Review level at which the applicant is welcome to appear and give oral evidence, no oral evidence is permitted at the Appeal level. The advocate or the applicant, however, may bring forward any new information at their disposal bearing on the case.
It was at the Appeal level that the largest backlog was inherited in September 1995 and priority has been given to reducing it. Thus At the Appeal Level, 2,517 appeals were received in the 12 months between December 1995 and the end of November 1996, and 2,822 were adjudicated. The monthly average of cases heard was 235, which represents an increase in productivity of about 25% over the previous average of 180 per month. Once again, however, because so many of the cases being decided had been in the system for long periods of time, the average turnaround time actually increased throughout the eleven months (January - November), from 8.7 months to 12.2 months. Despite this apparently poor result, the Subcommittee was assured that as these stale-dated dossiers were adjudicated, turnaround times would begin to tumble.<19>
The Subcommittee recommends that the Chairman of the Veterans Review and Appeal Board regularly inform the Subcommittee on Veterans Affairs about the progress being made in reducing turnaround times at both the Review and Appeal levels of the Board.
A major purpose of the creation of a single Veterans Review and Appeal Board out of the previous two organizationsorganizations was to eliminate the growing backlog of cases awaiting adjudication. Commendable progress has been made in achieving this objective. On 15 September 1995 when the new Board began operating, its backlog (referred to as workload in its presentation) totalledtotaled 8,325 cases, 6,044 at the Review level and 2,281 at the Appeal level. By the end of November, its backlogworkload had dropped to 4,832 cases, 3,433 at the Review level and 1,399 at the Appeal level. This reduction leaves the Board in a position to make relatively quick gains in turnaround times even under the existing service standards.<20>
The Veterans Review and Appeal Board is in the process of implementing a case management system. This involves negotiating agreements with Board members, support staff, the Bureau of Pensions Advocates, and the Department to ensure that they agree to the standards adopted. Basically, case management policy is simple. It states that the whole Review level process must take no longer than six months, and the Appeal level process no more than four months. At the Review level this means that from the time an applicant files with the Board, three months are allotted for the preparation of a final submission. From the time the Board sets a date for the hearing, it has one month to hear the case, dictate a decision and subject it to quality control, finally, the pay office has one month in which to complete pay action. At the Appeal level a maximum of only two months will elapse between filing and the date of the hearing, one month between the hearing and completion of the decision, and one month for pay action.<21>
While members of the Subcommittee welcome the adoption of firm standards of timeliness in handling Reviews and Appeals, they are concerned that if the system is too rigid and demanding, the quality of the decisions might suffer. This concern is particularly acute with regard to the preparation of cases for submission. The Chairman of the Review and Appeal Board frankly admitted that "there will be some nudging and pushing of the legal representatives, the advocates...."<22> The Chief Pensions Advocate admitted that he had concerns as well. In some circumstances Bureau advocates might be able to influence a situation they could not control. For example, while medical specialists tended to be tardy in submitting their reports when there was no reason for promptness, when told that the veteran had to be ready to submit a claim within three months, or by a certain date, they were much more prone to be prompt. Nevertheless, there were circumstances and delays in the preparation of a case over which the Bureau of Pensions Advocates would have no control: for example, sometimes appointments with medical specialists had to be booked months in advance. Since turnaround times are calculated from the date of first contact to the date an applicant is informed of a negative decision or a cheque is ready for issue, there has to be some way of allowing for unavoidable delay in the submission of a case that will not reflect unfavourably on turnaround times.
The new case management policy of the Board is now in draft form and should be in a more final form once most of the cases two years old and older have been cleared away, sometime in March or April.
The Subcommittee notes the promise of the Chairman of the Veterans Review and Appeal Board to send the Subcommittee a copy of the case management policy once it is in final form.
Throughout the hearings in Charlottetown the Members of the Subcommittee were struck by the determination of the officials from the Department, from the Bureau of Pensions Advocates and from the Review and Appeal Board to improve service to veterans and their survivors by fully co-operating with each other to implement the reforms to the pension adjudication process. The Subcommittee believes that the hard work of all concerned has already led to substantial progress in resolving the problems of bottlenecks and backlogs in the pension adjudication system. While there is still some way to go to ensure veterans and their survivors of pension adjudications that give them the benefit of the doubt and are both prompt and of high quality at every level, the members of the Subcommittee believe this objective is within sight.
The Subcommittee recommends that it continue to monitor progress in implementing the measures to expedite the adjudication of pensions and that it submit a further report shortly after the two year implementation period expires in September 1997.
AMENDMENTS TO THE VETERANS LEGISLATION
The Department is in the process of preparing a number of proposals for inclusion in a "housekeeping" Bill to amend veterans legislation. To be considered a "housekeeping" measure, proposed amendments must not have a budgetary impact, that is, their costs must be negligible. The following are some measures that the Subcommittee believes should be included.
During its meeting with representatives of the Royal Canadian Legion, members of the Subcommittee were very upset to learned of a glaring inconsistency in the treatment of proportionate widows pensions under Sections 48 and 49 of the Pension Act. As the Act is now interpreted by the Department, a widow or widower whose late spouse did not make an application under the Pension Act prior to death is free to step into the shoes of the spouse as though the latter were still alive to initiate a claim or to seek a re-assessment of a condition existing at the time of the veteran's death. In the case of a new claim, the surviving spouse is entitled to a full or proportionate spouse's pension depending on the level of assessment. This principle does not hold, however, in the case of a re-assessment.
Surviving spouses who can show that the assessment is or should have been greater than 48%, obtain the benefit of the increase payable as a survivor benefit. Where the survivor cannot show that the deceased recipient's assessment should have been, or should be increased, to 48% or more, no increase in assessment has been permitted. In practical terms, this interpretation of the Act has denied increased income to a number of survivors. For example, a widow whose deceased husband was in receipt of a 5% pension for hearing loss, would be denied an increase in her survivor's pension even where an audiogram taken before his death establishes that her late husband would have been entitled to 10% or 15% had he lived and sought a re-assessment.<23>
According to the testimony of the Legion, the inflexibility of the provisions has led some decision makers to award assessment increases larger than the case merits in order to push a deserving applicant over the 48% threshold. Other deserving applicants have seen a justified and reasonable request for a higher assessment turned down.<24> At the meetings of the Subcommittee, the Deputy Minister noted that he was very familiar with the problem occasioned by the wording of the legislation.
According to the Veterans Review and Appeal Board, since the 8 June 1988 opinion of the Veterans Appeal Board (Interpretation I-37) they have been interpreting the Act in such a way as to permit the award of a proportionate increase in assessment even in cases where the case is initiated after the death of the veteran and the increase does not result in a disability assessed at 48% or more. Although applicants appear to be eventually winning these increases in proportionate assessment, and hence increased survivors benefits, they must request a review of the First Level decision of the Department and wait additional months for a favourable decision. This unnecessary step can be eliminated without any additional expenditure.
The Subcommittee recommends that
Veterans Affairs Canada act as soon as possible to clarify Sections 48 and 49 of the Pension Act to ensure that surviving spouses are clearly entitled to benefit from any increase in the assessment of their deceased spouse's disability, regardless of whether the application is initiated before or after the death of the veteran and results in a revised assessment of less than 48%
and that
the amount of increase in the survivor's pension be made retroactive for three years or from the date of application or for a maximum of three years.
The Committee wishes to support inclusion of a number of other "housekeeping" measures in the proposed "omnibus" amending Bill.
The Subcommittee recommends that Section 5(1) Overpayment of the Pension Act be amended to restore to veterans the right to have overpayment situations referred to a panel of the Veterans Review and Appeal Board from the beginning rather than to the Minister.
The Subcommittee recommends that Section 21(5) of the Pension Act dealing with consequential claims be amended to make it clear that there can be a consequential upon a consequential disability and to ensure that the assessment on the consequential disability is not limited to an equal or lesser amount of the initial disability.
The Subcommittee recommends that Section 109 of the Pension Act, which deals with access to documents, be amended to specify that anyone authorized by the veteran in writing, including a service officer of a veterans organization, is permitted to have direct access to documents relevant to a pension application no matter what Department or agency of government holds them, without having to go through Veterans Affairs Canada.
The Subcommittee recommends that the Veterans Review and Appeal Board Act be amended to require either the appointment of a Deputy Chair, or the designation of a Deputy Chair.
OTHER ISSUES
A number of other issues arose as the Subcommittee discharged its mandate. The Subcommittee is convinced that it is wrong in an era of total war and of peace keeping or peace making operations to make artificial distinctions between uniformed and non-uniformed veterans who serve together in theatres of war or areas of conflict.
The Subcommittee recommends that veterans legislation be revised to eliminate the distinctions in status and benefits between uniformed veterans and civilians who serve abroad in close support of the armed forces in theatres of war or in Special Duty Areas, and that the full benefits of the Veterans Independence Program be extended to those civilians enumerated in Part XI of the Merchant Navy Veteran and Civilian War-Related Benefits Act.
Many spouses have spent the last fifty years of their lives looking after veterans who were disabled during World War 2 and the Korean War. New consideration must be given to the contribution these women, and almost all of them are women, have made to the discharge of the tremendous debt Canada owes her veterans. Increasingly, they are facing their own old age with disabilities that may have arisen, at least in part, as a result of their long years of looking after their husbands. They are entitled to something more than a survivors benefit for the rest of their lives. The Subcommittee believes that following the death or permanent institutionalization of veterans with serious disabilities, their long-term spouses should be eligible for an extension of those Veterans Independence Program benefits necessary to allow them to maintain their own independence.
The Subcommittee recommends that the long-term spouses of veterans with serious, service-related disabilities be entitled to a continuation of those Veterans Independence Program benefits necessary to maintain their independence following the death or permanent institutionalization of the veteran.
For some time now the members of the Subcommittee have been concerned about the plight of many of the veterans of the Gulf War, some of whom have been forced onto welfare following their discharge from the armed forces with conditions associated with the "Gulf War Syndrome." According to the testimony of the Deputy Minister, the Department has received 172 applications for disability pension from veterans of the Gulf War. Of these 85 have received favourable decisions, 35 have been turned down and the remaining 52 are still in the process of adjudication. As of 15 January 1997 23 veterans with conditions thought to be part of the "Gulf War Syndrome" had been awarded pension entitlement.<25> Nevertheless "Gulf War Syndrome" itself is not considered a disability. The members of the Subcommittee believe that more should be done for these veterans.
The Subcommittee recommends that the Pension Act be amended to recognize "Gulf War Syndrome - not yet determined" as a pensionable condition and that until this amendment has been passed into law, that Gulf War veterans in great distress with symptoms associated with the "Gulf War Syndrome" be considered for a compassionate award under Section 34 of the Pension Act.
In the future the Subcommittee intends to study the way in which the Department of Veterans Affairs has discharged its responsibility for the benevolent funds it administers and to the veterans whose pensions and benefits are held in trust.
The Subcommittee recommends that the Department of Veterans Affairs send the Subcommittee on Veterans Affairs the audited accounts of the benevolent funds it administers and that it furnish the Subcommittee with information about the policy it follows in managing the accounts of veterans.
APPENDIX
List of Witnesses
Name of Witness - Issue - Date
Mr. Ralph Annis 01 97/01/20
Chairman, Veterans Service Committee
Royal Canadian Legion
Ms. Danita Chisholm 01 97/01/20
Director of Communications
National Council of Veteran Associations in Canada
Mr. Brian Forbes 01 97/01/20
Honorary Secretary General
National Council of Veteran Associations in Canada
Mr. Ted Keast 01 97/01/20
Assistant Director, Service Bureau
Royal Canadian Legion
Ms. Faye Lavell 01 97/01/20
Director, National Service Bureau
National Council of Veteran Associations in Canada
Mr. Jim Rycroft 01 97/01/20
Director, Service Bureau
Royal Canadian Legion
The Subcommittee travelled to Charlottetown, P.E.I., and held in camera meetings on January 22 and 23, 1997, with officials from the Department of Veterans Affairs.
The following officials were heard:
Mr. J.D. Nicholson
Deputy Minister, Veterans Affairs Canada
Mr. Brian Chambers
Chair, Veterans Review and Appeal Board
Mr. Simon Coakeley
Chief Pensions Advocate, Bureau of Pensions Advocates
Ms. Bunty Albert
A/Director, Legislation and Policy, Benefits Division
Mr. Robert T. Bentley
Director, Pensions Services, Benefits Division
Ms. Doris Boulet
Director General, Benefits Division
Mr. Bernard Butler
Legal Counsel, Resource Centre, Benefits Division
Mr. Del Carrothers
Deputy Director General
Portfolio Executive Services
Ms. Brenda MacCormack
Manager, Pension Adjudication, Benefits Division
Ms. Leslie MacLean
Acting Executive Director, Veterans Review and Appeal Board
Mr. Darragh Mogan
Director General, Health Care Division
Ms. Karen Rowell
Chief of Operations, Veterans Review and Appeal Board
Mr. Dennis Wallace
Assistant Deputy Minister, Veterans Services
ENDNOTES
<1>Standing Senate Committee on Health, Welfare and Science, They Served, We Care, Minister of Supply and Services, 1981.
<2>The Subcommittee on Veterans Affairs of the Standing Senate Committee on Social Affairs, Science and Technology, Keeping Faith: Into the Future, October 1994. The quotation from the Hon. Lawrence MacAulay is from p. 46.
<3>Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, Ninth Report of the Committee (Bill C-67) , Issue No. 20.
<4>Keeping Faith: Into the Future, p. 50.
<5>Veterans Affairs Canada Presentation dated 22 January 1997, to the fact-finding in camera meetings of the Subcommittee held in Charlottetown, P.E.I., p. 54-55.
<6>Ibid., p. 70.
<7>Proceedings of the Subcommittee on Veterans Affairs of the Standing Senate Committee on Social Affairs, Science and Technology, January 20, 1997, Issue No. 1. Hereafter cited as Proceedings.
<8> Transcript of the fact-finding in camera meetings in Charlottetown, P.E.I., 22 January 1997, Mr. Nicholson, Deputy Minister, Department of Veterans Affairs, p. 35. Hereafter cited as Transcript....
<9>9 Ibid., p. 39-40.
<10>National Council of Veteran Associations, Submission to the Senate Subcommittee on Veterans Affairs, 20 January 1997, p. 5-6, and Transcript... , Mr. Nicholson, 22 January 1997, p. 36-37.
<11>Transcript..., p. 29.
<12>Veterans Affairs Canada Presentation, p. 73-75.
<13>Transcript..., Mr. Nicholson, 23 January 1997, p. 32-35.
<14>Transcript..., Ms. Leslie MacLean, Acting Executive Director, Veterans Review and Appeal Board, 22 January 1997, p. 7-8.
<15>Ibid., p. 7.
<16>Ibid., p. 5-6.
<17>The Royal Canadian Legion, Briefing to the Senate Subcommittee on Veterans Affairs, 20 January 1997, p. 12.
<18>Telephone conversation with John Brehaut, Special Advisor, Veterans Review and Appeal Board, 26 February 1997.
<19>Transcript..., Ms. Leslie MacLean, p. 8.
<20>Ibid., and Veterans Review and Appeal Board, January 1997, tables entitled "VRAB Workload (15 September 1995)" and "VRAB Workload (November 1996)."
<21>Transcript..., Mr. Brian Chambers, Chair, Veterans Review and Appeal Board, 23 January 1997, p. 27-28.
<22>Ibid., p. 30.
<23>Proceedings , 20 January 1997, Issue No. 1, p. 14.
<24>Ibid.
<25>Transcript..., Mr. David Nicholson, 23 January 1997, p. 42.