Veterans Affairs Committee on Feb. 14th, 2011

[The Chair, Conservative, Gary Schellenberger]

Welcome, everyone, to this the 39th meeting of the Standing Committee on Veterans Affairs, and, pursuant to Standing Order 108(2), a study of combat stress and its consequences on the mental health of veterans and their families.

Today our witnesses are here until 4:30. We have, from the Veterans Review and Appeal Board, Dr. John D. Larlee, chair, and Dale Sharkey, director general.

Thank you for coming in this afternoon.

It's good to see you again, Mr. Larlee. Begin your presentation, if you could, please.

[John D. Larlee, Chair, Veterans Review and Appeal Board]

Thank you, Mr. Chair.

Good afternoon, honourable committee members.

As the chair indicated, my name is John Larlee, and I am the chair of the Veterans Review and Appeal Board. With me today is Ms. Dale Sharkey, the director general for the board.

I am happy to be here today, and take part in your study of combat stress and its consequences on the mental health of veterans and their families. I hope my comments will contribute to your study by providing you with information on the types of decisions that veterans appeal before the board and the way we assist all our applicants.

While I know you are familiar with the board's program, I should make it very clear from the outset that we are not involved in providing health care programs and services to veterans who are suffering from operational stress injuries. It is the role of the Department of Veterans Affairs to respond to the needs of these veterans and their families.

That said, the board is committed to serving veterans by fulfilling the mandate given to it by Parliament in 1995. Our mandate is to provide them with an independent avenue of appeal for disability benefits decisions made by the department.

Our objective is to ensure that they receive fair and appropriate benefits for their service-related disabilities--primarily disability pensions and disability awards. To achieve this, the board's program provides veterans with every opportunity to establish their entitlement to disability benefits or to obtain an increase in the amount of their benefits.

I will focus a few of my remarks on the key aspects of our appeal program and then relate these to your area of interest here today.

At the board, veterans have the right to two levels of independent redress for their disability decisions: review and appeal. At their review hearing, they have the right to appear in person, along with any witnesses they choose, and provide oral testimony in support of their application.

If they remain dissatisfied after receiving the board's review decision, they can request an appeal hearing. The appeal hearing is an entirely new proceeding heard by a different panel of board members.

At both levels, veterans have the right to bring forward new evidence and be represented at no cost. The board's process is non-adversarial, which means that no one is arguing against the veteran.

The role of our board members is to consider all the evidence in order to decide whether it meets the requirements of the laws governing disability benefits for veterans. In doing so, they resolve doubt in favour of the veteran.

At the moment, the board is made up of 24 Canadians who bring a wide range of skills to their work. These members fulfill their role with a great sense of responsibility. This is inherent to the board's mandate towards those who have served and continue to serve their country.

Last year our members rendered 4,100 review decisions and 1,400 appeal decisions at the request of applicants.

When you consider that the department issues upwards of 40,000 decisions each year with appeal rights to the board, it is a small caseload.

The reality is that many veterans are satisfied at the departmental level and never bring their decisions forward to the board.

That said, the cases that do come forward represent a challenging workload because they tend to be less than straightforward. These cases benefit from additional time and effort spent by veterans and their representatives to obtain new evidence in support of a better outcome at the board.

While the most common applications made to the board deal with medical conditions involving the neck, the back, the knees, and hearing loss, we also hear a small number of reviews and appeals relating to mental health conditions. Of these, post-traumatic stress disorder and major depressive disorders are the most common. Over the last five years, we have seen a slight increase in these applications.

For example, in 2004-05 the board finalized 268 review and appeal decisions for PTSD and major depressive disorders, followed by 215 decisions in the following year. Since 2006 the numbers have fluctuated between 400 and 500 decisions annually. Last year the board finalized 432 decisions for these two medical conditions, which represents about 8% of the total decisions rendered by the board.

It is difficult to hone in on one specific reason for this slight increase over the last five years. The fact is that veterans need only be dissatisfied to bring forward an appeal, and they have the right to do so at any time, even if their decisions are quite old. It could be that more veterans are pursuing their redress options because of increased public awareness and acceptance of mental health conditions, as well as the supports available through the network of operational stress injury clinics. Most certainly, veterans today have access to more information about these disabilities to assist them in establishing the link to their service.

As the board deals with a relatively small number of cases related to mental health conditions, these numbers do not provide us with the basis for meaningful analysis.

That said, I can offer you a little more detail in the interest of contributing to your current study. As I said before, the board finalized 432 decisions last year relating to PTSD and major depressive disorders. While some of these cases were related to combat stress, others dealt with different service-related factors. Of the 432 decisions, about 60% were related to entitlement. That is where the veterans were seeking new or increased entitlement or retroactivity. About 40% dealt with requests for increased assessment of their already entitled disabilities. The favourability rates for these cases were slightly higher than our overall rates, but again, it is difficult to associate a trend with such a small sample.

It is also important to understand that the board's overall favourability rates are directly related to the individual cases brought forward in any given year. For the last number of years, the board has taken steps to ensure that our hearings and our decision-making meet the needs of the veterans who are appealing decisions related to mental health conditions.

Our members understand that the opportunity for veterans to appear in person at the review hearing can be daunting or difficult for some veterans. After all, the issues at hand are often sensitive in nature and are tied emotionally to the veteran's personal experiences. For this reason, our members make every effort to put applicants at ease and conduct the hearings as informally as possible.

Most often, review hearings take place in a boardroom setting, with two board members sitting across the table from the veteran and his or her representative. The board encourages applicants to bring along family members or other supports to their hearing, including peer counsellors from the operational stress injury social support program. We also work with representatives to accommodate any special needs related to the timing or conduct of the hearing.

At the board we provide our members with targeted and ongoing training from medical experts to support them in making fair and well-reasoned decisions for veterans with mental health conditions. For example, our members have received training on operational stress injuries from the psychiatrists and psychologists at Ste. Anne's Hospital in Quebec. Our members also attend regular training and awareness sessions from members of the Canadian Forces and the RCMP about the working conditions and challenges they face in carrying out their duties. In fact, we will soon be attending a session led by the RCMP about mental health issues faced by their members.

To conclude, I must add that we are aware that veterans would rather obtain the desired result from the department than submit their claim to the board. That said, the goal of the system as a whole is to make sure that they receive fair and appropriate compensation for their service-related disabilities as soon as possible.

In fact, it is a good thing that veterans have many opportunities to appeal a decision if they are dissatisfied and to bring forward new evidence. At the board, we are committed to making the process as efficient and as effective as possible for those who choose to exercise their right to appeal.

Thank you, Mr. Chair.

[The Chair, Conservative, Gary Schellenberger]

Thank you for that presentation.

Our first questioner is Ms. Sgro, please.

[Judy Sgro, Liberal, York West, ON]

Thank you very much, Mr. Larlee.

It's nice to see both of you before the committee again.

I'd like to ask you about Bill C-55 and a few other things, but we're supposed to be sticking to mental health and PTSD, so I'm going to try to stay there. Somebody else may ask some of those questions.

Of the 432 people in 2010 that you referred to, were all 432 suffering with PTSD, or mental health stresses?

[John D. Larlee]

I believe I said 60% were PTSD, and 40% other...?

[Dale Sharkey, Director General, Veterans Review and Appeal Board]

I have those numbers right here.

At review, 183 of the claims were PTSD, and at appeal, 57 of the claims were PTSD. We can add those numbers up: it's 240, if my math is correct.

[Judy Sgro, Liberal, York West, ON]

Of the 432?

[Dale Sharkey]

Yes; 240 claims were PTSD, and the rest were major depressive disorder.

[Judy Sgro, Liberal, York West, ON]

Okay.

The board members who are listening to the appeal being done, do they have any first-hand experience? Are any of them former members who possibly have themselves suffered PTSD who are making the decisions?

[John D. Larlee]

We have members on the board who are former military. I think we have five military, and one of those military also has medical training. With respect to any knowledge of conditions of anyone, that would be a privacy matter and I wouldn't be able to obtain that information.

[Judy Sgro, Liberal, York West, ON]

With regard to the training, though, of the various board members, how you deal with the issues of PTSD or mental health things in particular?

[John D. Larlee]

As I said in my statement, we have continuing professional development. During the year we have at least two conferences, and at each conference we have specialists address us with respect to different medical issues, as well as other issues related to administrative tribunals. As recently as a year ago, we were at Ste. Anne's Hospital in Montreal, where psychiatrists and psychologists from the hospital addressed us with respect to mental health conditions, including PTSD.

[Judy Sgro, Liberal, York West, ON]

When you have a veteran who's already receiving, to one degree or another, a disability payment for a previous injury or so on--because we're hearing how PTSD can develop 20 years later--and who then applies for a change in their monthly disability, how is that looked upon if it's 20 years later? What kind of evidence does the individual need?

[John D. Larlee]

One of the nice advantages of the act is that there's no limitation, so at any time a veteran, or military forces member, or RCMP member can ask for a review and even an appeal of that review at any time. There's no time limit.

Keep in mind that their first application is always to the department, and ours is an appeal process, or a process of redress, so one of the advantages of the legislation is that there is no time limit.

[Judy Sgro, Liberal, York West, ON]

What kind of evidence would the individual have to provide to be able to confirm the fact that he was suffering from PTSD? Would one medical doctor's opinion be sufficient, or would you be asking for a lot more information to back up the claim?

[John D. Larlee]

With respect to the information required, it would be whatever credible evidence could be brought forward by the individual. It could be medical evidence. The representative of the applicant could bring forward whatever material would support it. It could be oral testimony or witnesses, and the determination is made on review and on appeal of that evidence. Keep in mind that we're looking at a previous decision made by the department.

[Judy Sgro, Liberal, York West, ON]

I met the wife of a veteran at one point, who had had something else, not PTSD. Her husband had died, and she was making a claim to the department. She had to have two witnesses. She had a witness to say that her husband was at this particular location when this other issue was being dealt with. But she needed two witnesses, and no one else was alive. It always struck me that you have to go out and get two witnesses. Just how much do you ask them to do? I realize you have to be satisfied that the person is totally legitimate, but I would hope that there would be some flexibility in dealing with these cases.

[John D. Larlee]

Inasmuch as I can't comment on specific cases, in general the evidence that can be brought forward is treated in the best light. As our legislation provides, we make inferences as much as possible, and we take the evidence in the best light in support of the veteran or the forces member's claim.

I think the board and its membership are committed and dedicated to making sure that veterans have every opportunity to put forward the evidence necessary in support of a favourable decision.

[The Chair, Conservative, Gary Schellenberger]

Okay, thank you very much.

We move on now to Mr. Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Thank you, Mr. Chair.

Good afternoon, Mr. Larlee.

You startled me earlier when you said that your members receive medical training. How can this medical training help the board members in deciding whether a person suffers from post traumatic stress?

[John D. Larlee]

First, the training of all board members is very intensive. Right at the outset, when they are appointed to the board, they get 12 weeks of training.

This includes training with respect to medical issues, as well as the legislation, as well as decision-writing. Therefore, the initial training permits the tribunal member to assess medical issues and adjudicate in a quasi-judicial tribunal.

In addition, as I've stated, we also have ongoing training with respect to such issues as mental health matters, as we did in our sessions and our week-long conference in Montreal with the experts from Ste. Anne's Hospital. In 2007, 2008, and 2009 we were addressed by doctors who are experts in psychiatry, Dr. Don Richardson and Dr. Greg Prodaniuk. Again, we were addressed by Dr. Richardson in 2009 and 2010 at Ste. Anne's Hospital.

So as a tribunal, in order to review previous decisions made with respect to medical issues, including those regarding PTSD and major depressive disorders, I believe our members are well equipped to make those rulings. We do our utmost to make them efficiently and provide decisions that are well reasoned. We do our utmost, based on the evidence, to assist the veterans and the members who come before us.

[Robert Vincent, Bloc, Shefford, QC]

That's a great answer, but I can tell you that this is not what happens in practice. I don't buy the fact that a person with some medical training can be a doctor all of a sudden, and can be handed a case to determine whether or not a patient has post-traumatic stress based on the medical data available to them. Even if these people completed their medical training, they wouldn't be doctors. They cannot give a diagnosis, because they are not doctors. The only person who can make a diagnosis is a doctor.

Once a diagnosis of post-traumatic stress is established by a doctor, either by the attending physician or by the Canadian Forces doctor, I assume that the board members are bound by that diagnosis. If they are not bound by the attending physician's diagnosis, I suppose they go by the decision of the Canadian Forces doctor. If there is a difference between the two diagnoses, if the doctors don't agree, and, for example, the attending physician gives a post-traumatic stress diagnosis whereas the Canadian Forces doctor doesn't, the case has to go to another board. The kind of board that we should have should be made up of doctors, not members with just some medical training, because they don't have the proper training for giving a diagnosis or making a decision.

If that's how your board members reach a decision on a post-traumatic stress diagnosis, I have a real problem with it. They cannot make decisions like that. I speak from experience, since I have worked for 20 years on the CSST board, where they deal with pretty much the same things. We can in fact compare post-traumatic stress cases to accidents that occur in factories. It could be someone whose hand got caught in a machine and was cut off, and other workers were there when it happened. We've experienced cases like that, we've heard of them. The only people able to give a diagnosis and make a decision are doctors, the ones who have the paper to prove it.

You are telling me about cases where, though there is no medical documentation, family members testify to what the people went through. Your legislation should stipulate that medical proof is needed to establish the cause and effect relationship between the diagnosis and the person's condition. It is unthinkable that the testimony of family members would be enough to change the board's decision. At the time of the administrative review decision, meaning the first review after the request, what does your board do to establish the medical relationship if there is no medical paperwork?

[John D. Larlee]

First, I had no intention of convincing you that the training of our members...

[Robert Vincent, Bloc, Shefford, QC]

No, but this is about making sure that the people who appear before the board get a real decision at least, a fair decision. The decision has to be made by people who are capable of making it, not some people with training, but people who are able to make those decisions. And based on what you are telling me about how your board works, I seriously doubt that they are able to do so, unless I missed something in your presentation.

[The Chair, Conservative, Gary Schellenberger]

You have about one minute to respond. I know it was a very long question.