Veterans board grants or improves benefits in 9 of 10 cases reviewed

CBC

4 hours ago

Current and past members of the board that oversees reviews and appeals of veterans benefits in Canada say a recent doubling in the rate of favourable decisions may be the result of managerial interference and a lax application of standards.
Nearly nine in 10 decisions by the Veterans Review and Appeal Board (VRAB) in the last year have awarded or increased benefits for a condition linked to military service, following a trend seen over the last decade. Benefits can be worth more than $450,000 in some cases.
The quasi-judicial body operates at arm's-length of Veterans Affairs Canada (VAC) and reviews its decisions.
Laurie Blakeman, a VRAB member who retired in February, said managerial tactics that sometimes alluded to the minister's office left her and some colleagues feeling less independent.
"Was there pressure to do something different based on what the minister had supposedly said? Yes, of course. That's exactly what was going on," Blakeman said.
Other sources who spoke with Radio-Canada pointed to a heavy and increasing workload for board members, templates that make it easier to write approvals than denials, and comments both direct and indirect from leadership as factors that encourage favourable decisions.
Another former board member said the nearly 90 per cent approval rate raises questions about stewardship of taxpayer funds.
"There's only two conclusions that you can make: The first one is that VAC is making a tremendous amount of mistakes in its decision-making, or that the board is granting a disproportionate number of favourable decisions," said the former board member who CBC is not identifying due to their concerns about future employment.
"I would call into question whether those decisions are correct, and if we're awarding benefits when no benefits should be paid," they said.
A current member of the board told Radio-Canada VRAB's chair and vice-chair have repeated the point that the board exists to render favourable decisions for veterans.
"Managers presented the burden of proof as an obstacle between veterans and their benefits when … it's a way of ensuring fairness," said the board member, who's concerned some appellants have been awarded "extras" as a result of going to the board.
CBC is not naming the current board member due to their fear of reprisal.
'Give or give more'
In February 2018, Veterans Affairs Canada changed its guidelines so recipients of partial entitlements would receive the next-highest level of compensation below a full award.
Following their appointment in July 2018, chair Christopher McNeil and vice-chair Jacques Bouchard told members they wanted the board to use that guideline in board decisions.
Blakeman and other former board members also said they recall McNeil and Bouchard referring to conversations with the minister.
The new guideline gave board members no leeway to assess lesser connections between military service and claimed injuries, limiting the discretion of members, Blakeman said.
"It was basically give or give more," she said. "There was pressure to grant and very little explanation about why you wouldn't grant."
It was around that time that the rate of favourable decisions begin to increase.
A spokesperson for VAC said the guideline change was meant to speed up decision-making and reduce the number of appeals seeking more compensation. However, the policy has been cited in applications to the VRAB and to justify larger payouts.
Several favourable decisions published on the Canadian Legal Information Institute website note: "It is not necessary to engage in an esoteric legal discussion on whether such a change constitutes an error or law or if it constitutes new evidence."
Valerie Moore, who retired from the board a year ago, disagreed with using the new VAC policy to justify reopening cases, and wrote dissents to that effect.
Moore said other board members also argued that the "new policy is not evidence," and therefore not grounds for appeal.
Blakeman said she's concerned that those decisions may be on shaky legal ground, given there was no regulatory change from the minister's office, nor any legislative change.
"There was nothing legal that underpinned those changes. Nothing," Blakeman said.
'Surrender of independence'
Former board member Terry Prowse filed a complaint with the Public Sector Integrity Commissioner in September 2019, alleging McNeil and Bouchard "undermine the independence and impartiality of Members of the Board on an ongoing basis."
Prowse, a 35-year veteran of the Canadian Armed Forces, said in October 2018 that McNeil and Bouchard presented arguments in favour of using the Veterans Affairs guideline in board decisions.
"Both stated, and have on several occasions since, that they met the Minister and/or Deputy Minister and this was the approach he preferred we take," the complaint said. According to Prowse, board members who didn't support that position wouldn't sit on the same panel.
"The surrender of independence and judgment that I have seen is unacceptable," Prowse wrote.
The public sector integrity commissioner declined to investigate, saying "the actions complained of would not amount to wrongdoing within the meaning of the Act," and that the chair was acting "within his broad powers" under the law.
Prowse declined Radio-Canada's request for an interview.
Beyond 'benefit of the doubt'
Moore, a lawyer by training, was also concerned that during her five years on the board she saw several applications where medical opinions didn't meet the standard of the Federal Court.
Medical opinions are supposed to be provided by qualified professionals, name the condition and link it to particular activities of military service, Moore said.
Section 39 of the Veterans Review and Appeal Board Act guides members to draw the most favourable conclusions for the applicant from the evidence and circumstances in cases of uncertainty, often referred to as the "benefit of the doubt" clause.
"Even applying [the] benefit of the doubt and every reasonable inference, if the evidence fell short from my perspective, then I felt duty-bound that I could not agree to grant the benefit because I was there to do a proper job," Moore said.
"Medical conditions are proven to be connected to service by medical evidence, not by speculation, somebody's surmise or hunch."
Veterans Affairs Canada provides free legal representation from the Bureau of Pensions Advocates to help with applications and gathering medical evidence.
In a November 2023 decision, a veteran with Type 2 diabetes argued the condition was caused by post-traumatic stress disorder (PTSD). Moore dissented, explaining that linking the two "was not based on medical evidence and was purely speculative."
VAC's assessment, the decision and her dissent all accept that PTSD could permanently aggravate the condition "to a minimal degree." VAC had granted the lowest level of partial entitlement.
The board's decision in favour cited the new Veterans Affairs policy and increased the entitlement.
"When you get a lot of cases where that's happening … that's where you know you're kind of swimming against the tide," Moore said.
Tom Jarmyn, McNeil's predecessor as chair of VRAB, said the new partial entitlement guidelines shouldn't be used to reopen cases, nor should they be entered as evidence.
"There's no reference in the statute to the adjudicative environment. The obligation is to apply the statute to the facts and the decision," Jarmyn said.
Jarmyn said he never received direction from the minister, and if he had that would have been "wrong." Jarmyn himself receives a benefit for an injury related to his 18 years of military service, and said he understands the importance of flexibility in the face of long waits to see specialists, for example.
"The benefit of the doubt clause … isn't an invitation to ignore the law," he said. However, he added the increase in favourable decisions by the board does raise questions.
"I'm not aware of anything that has changed which would justify that statistical occurrence."
Board defends decisions
In a statement on behalf of the board and its leadership, the VRAB said "significant changes in VAC policy that benefit Veterans" are addressed under the board's authority to reconsider cases, "and the resulting decisions speak for themselves."
The board said its favourability rate includes roughly one-third of cases where an "already-entitled condition" was eligible for an increased assessment.
"These decisions are based on medical evidence presented to the Board," it said.
The VRAB said it has a robust quality assurance program to ensure decisions are consistent with its legislated mandate, prior decisions and Federal Court jurisprudence.
"The Board speaks through its decisions and does not comment on individual cases."
The minister at the time of the guideline change, Seamus O'Regan, did not respond to Radio-Canada's requests. The office of current Veterans Affairs Minister Jill McKnight declined a request for an interview, deferring to the department's written response.
Veterans Affairs Canada noted VRAB operates separately from the department, and said it respects the board's decisions "as they are binding and for the betterment of veterans' wellbeing."
The statement also noted VAC "may also [choose] to adjust benefit criteria or policies that are referenced in VRAB decisions to improve guidance for decision-makers for future claims."
The Royal Canadian Legion described the increase in favourable decisions as "good news for our Veterans. They deserve to receive what they are entitled to receive."
"In my experience, I have not seen cases of partial entitlement being applied without acceptable evidence," said Carolyn Hughes, the Legion's director of veterans services, in a statement.
Hughes said it's important to reopen files so there aren't two classes of veterans based on when they applied, and that the system must "based on sufficient evidence, err on the side of the veteran" to ensure timely benefits and treatment.