Evidence of meeting #45 for Veterans Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.
A recording is available from Parliament.
October 15th, 2012 / 3:30 p.m.
Conservative
The Chair Conservative Greg Kerr
Order, please.
Today we will continue our review and study of the Veterans Review and Appeal Board. We have witnesses from the Canadian Peacekeeping Veterans Association followed by those from the Royal Canadian Legion.
Welcome to all of you. We will start with the Canadian Peacekeeping Veterans Association, who will be splitting up their 10 minutes among them.
Please go ahead, whoever is starting.
Ray Kokkonen National President, Canadian Peacekeeping Veterans Association
Mr. Chair, committee members, ladies and gentlemen, my name is Ray Kokkonen. I'm the national president of the Canadian Peacekeeping Veterans Association. With me are two gentlemen: the patron of the Canadian Peacekeeping Veterans Association, retired Brigadier General Larry Gollner and retired Colonel John Eggenberger, vice-president of research for our organization.
The aim of this presentation is to provide insight into how Canada's veterans perceive the current Veterans Review and Appeal Board and why it is failing them.
We decided on a very low-tech approach, because we knew there were some heavy presenters here, such as the Legion and a few others. We thought we would keep it simple and within our capability, and we simply compiled all of the common issues and complaints we have heard from veterans over the years. In fact, we did a canvass when we got the invitation. We then classified them into categories, and we ended up with seven categories. We'll be getting into those a little further.
I'm not going to read our presentation. I invite you to look at what our organization is about—veterans, obligations, and service—and to pay particular attention to the Veterans Bill of Rights, which is on the second page, and particularly to the first statement. That is our case: that through all of these examples of issues and complaints, that is the one most often being violated. Larry will be giving an in-depth case study of that.
Then on the third page is our main presentation, and that's on the seven major issues or complaints that we have gained from veterans.
We are not going to read out those issues—that's why I invited everybody to look at them now—and we're not going to present a case study for each one. We're going to present one example that covers about four of those points.
I will now turn it over to Larry.
Brigadier-General Retired) Joseph Gollner (Patron, Canadian Peacekeeping Veterans Association
Mr. Chairman, members of the committee, ladies and gentlemen, my name is Larry Gollner.
The following occurred at a VRAB hearing and was reported by an experienced Legion and CPVA service officer. While we have no doubt that the conduct of this hearing was an anomaly, it was unacceptable and needs public airing. The veteran and his companions asked that we not disclose their personal information, and we have complied.
The opening line of the Veterans Bill of Rights is that veterans “be treated with respect, dignity, fairness and courtesy”. It also used to say “in a timely manner”, but that line seems to have been shortened of late.
In this case, the Veterans Affairs client, as was his right, was accompanied to the hearing on his PTSD condition by his doctor, a psychiatrist, and a service officer. You can judge whether he was treated with respect, dignity, fairness, and courtesy.
Here is what the veteran said about his hearing for a PTSD condition. I quote directly, and when I do so, I will say so. In other cases, I've paraphrased to keep the veteran's message but without his, shall I say, earthy language:
Throughout the hearing I was grilled—not spoken to, but grilled—by the board. I went to get up three times to leave, but my doctor and service officer pulled me back into the chair and told me to be quiet. The board chair stated, “Well, you could have a medical condition, not PTSD”, and began questioning me and making comments about my medical reports, at which point my doctor spoke up, stating that the chair was completely wrong in her conclusions on what type of medical condition I have and her understanding of my condition was not correct. Then he asked her about her medical background, and she answered, “None”, just what she had read up on, so she was trying to act like a medical doctor based on her own medical knowledge, and my application was going to be based on her not having any real medical training. She questioned me again and again about the death of my infant son, who died from a childhood ailment, but there was some discussion between the doctors on the cause. She said, “Well, what was it?” Did it ever happen, and just how many kids did I have die? Then she decided and said that it was the death of my son that caused my condition, if it even happened, or my imagination. Again my doctor spoke to her about the connections and events, correcting her on her conclusions reached on the medical conditions and detailed reports. I was treated like a criminal, shown no respect at all, nor did I have a fair chance to explain myself to the hearing. She had made up her mind.
He said that If his doctor and service officer hadn't been there, he would have either attacked them or told them where to go and left.
As I said, in fairness to the VRAB, this hearing was likely an anomaly, but this case is but one example that lives forever on the Internet. These cases have a serious impact on the VRAB's credibility in the veterans community writ large, because they take prominence over much of the good work that is done.
Thank you.
National President, Canadian Peacekeeping Veterans Association
Thank you.
Although we will not make any technical recommendations about procedures and organizational change or anything like that, our vice-president of research has some ideas we'd like to pass on.
Colonel Retired) John Eggenberger (Vice-President, Research, Canadian Peacekeeping Veterans Association
One of the difficulties for any organization that we're part of when dealing with individuals is how best to compress and collate all this information so that you can make sense out of it and adjust policies, procedures, and rules to better express what the wish is to be.
Right now, we have a database that comes from Veterans Affairs Canada. It's theirs and it's confidential, but databases are databases, and they all adhere to the same principles. Our thought is to make sure that the information on the database is properly entered, and after that, properly manoeuvred by appropriate statistical analysis. I'm absolutely sure, at least in my own case, that all of this data is properly handled and protected, but I think a revisit now and again wouldn't hurt.
Thank you.
National President, Canadian Peacekeeping Veterans Association
In my opening remarks I think I forgot to mention that John has a Ph.D. in personnel applied research.
I'm now going to switch to reading directly from the last page.
Conclusions: When the foregoing perceptions held by veterans are compared with the Veterans Bill of Rights, it is clear that the first article, the foundation statement, is not being respected or practised by the VRAB. It is difficult to believe that VRAB can properly serve our veterans when our veterans have little, if any, faith in the current VRAB structure, modus operandi, attitudes, or ability to meet its legislated responsibilities.
In terms of recommendations, we simply ask that this committee, with its mandate, proven competency, and genuine concern for the welfare of Canada’s veterans, vigorously pursue the necessary steps required to bring about essential changes to the VRAB that will enable it to meet its obligation to serve our veterans fairly, with dignity, and with the courtesy that they so rightly deserve, and in accord with the spirit of Canada's existing veterans' legislation.
In this context I would like to recognize Ron Griffis of the Canadian Association of Veterans in United Nations Peacekeeping, who will later be presenting a very in-depth paper about this, and say that we are very supportive and that we applaud what he has done.
In conclusion, the CPVA is very grateful for this opportunity to present the views of veterans on VRAB to this committee. The CPVA also commends and thanks the committee for all its caring, dedicated, responsible, and extremely important and valuable work on behalf of veterans.
Thank you.
Conservative
The Chair Conservative Greg Kerr
Thank you very much, Mr. Kokkonen, Mr. Eggenberger, and Mr. Gollner. You will get a chance for questions and answers in a few minutes.
We'll now turn to the Legion. Ms. Andrea Siew is here to give her presentation.
Please go ahead, Ms. Siew.
Andrea Siew Director, Service Bureau, Royal Canadian Legion
Thank you, Mr. Chair.
I don't know how I ended up in the middle of you three. I guess it's a bit of an honour.
I did bring copies of my presentations. Unfortunately, due to the untimely death of our translator, they're only available in English. I notice you have copies of theirs.
I'll begin my presentation.
Good afternoon. It's a great pleasure—
Conservative
The Chair Conservative Greg Kerr
Excuse me.
If there's unanimous consent, we could pass out the English copies, if you want. It's up to the committee.
Is everyone in agreement? You'd like to have them for information?
Director, Service Bureau, Royal Canadian Legion
Yes, I have given them to the clerk.
Director, Service Bureau, Royal Canadian Legion
Thank you.
Good afternoon. It is a great pleasure to appear in front of your committee. I am pleased to be able to speak to you this afternoon on behalf of our dominion president of the Royal Canadian Legion, Mr. Gordon Moore, and our over 330,000 members and their families. The Royal Canadian Legion is well situated to provide advice regarding recommendations that could improve the current Veterans Review and Appeal Board.
The Legion is the only veteran service organization that assists veterans and their families with representation to the board. We have been assisting veterans since 1926 through our legislative mandate in both the Pension Act and the new Veterans Charter. Our 22 professional service officers located across the country provide free representation for veterans who are not satisfied with the decisions about their claims for disability benefits from Veterans Affairs. Please note that you do not have to be a Legion member to avail yourself of our services. Our national service officer network provides representation at all three levels of the Veterans Review and Appeal Board: the review, the appeal, and the request for reconsideration. Through the legislation, the Legion has access to service health records and departmental files to provide a comprehensive, yet independent, representation at no cost. Last year, our service officers presented 265 reviews, 85 appeals, and 15 requests for reconsideration. As director of the service bureau, I have sat on about 150 cases before the board.
The Legion believes that the Veterans Review and Appeal Board does have a critical role to play in ensuring that all veterans and their families receive the benefits they are entitled to as related to their injuries attributable to their service to Canada. However, the government does have an obligation to ensure that veterans have access to a fair and transparent adjudication process. Our veterans have been injured in service to our country; they deserve to be treated fairly and with respect, and they must trust the process.
The VRAB provides an independent avenue of appeal for disability benefit decisions made by Veterans Affairs. The fact that half of the cases reviewed at the board's review level and a further one-third at the appeal level are varied in favour of applicants attests to the need for an independent administrative tribunal that the veterans can turn to when they are dissatisfied with decisions. Specifically, in the 2010-11 period, the VRAB issued approximately 3,500 review decisions, about 50% of which were varied, and 974 appeal decisions, about 33% of which were varied. This high ratio of decisions that are varied by the VRAB cannot be looked at in isolation of the department or the first application.
Why is the variance ratio so high? The application process is not complex, but it is not as simple as saying that I was injured during my service. It's an evidence-based system that requires proof that the injury or disability arose out of, or was directly connected to, service, and the onus is on the veteran to show how that the injury or disability is related to their service and the performance of their duties.
The burden of proof is very high. There may be an incomplete diagnosis or an incorrect diagnosis. Medical information such as X-ray reports, CT scans, pulmonary function tests, physical fitness tests, your unit employment record, accident reports, boards of inquiry, witness statements, etc., are all required, especially in complex cases that go before the board. The Legion is concerned that more and more veterans are being encouraged to submit applications online or at Service Canada outlets. I'm not sure that this is going to improve the situation.
How will they be counselled or assisted with ensuring a complete application package? This is not a passport application package in which an error or a piece of missed information simply results in the package being returned. An unfavourable or incomplete decision creates a negative atmosphere and an untrusting environment. The approach or culture that “if you are injured, we will look after you” seems to have disappeared. The burden of proof is too high.
The most misunderstood part of the process is the application of the concept "benefit of the doubt". Section 39 of the VRAB Act regarding rules of evidence granted very liberal rules; however, over time this has become a very legal interpretation. The spirit of the legislation has evolved to a workers' compensation insurance approach rather than a social safety net approach.
The legislation states:
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
What was the intended spirit of this legislation? Is it liberally interpreted by the VRAB? What are the evidence requirements? What is meant by “every reasonable inference in favour of the applicant”? What does "uncontradicted" mean? Who determines what credible evidence is? The board's own adjudicative guidelines describe in detail the requirement for medical evidence to be considered credible, relevant, and reasonable. It's very instructive and restrictive. Not only is the burden of proof on the veteran, but the evidence requirements are so complex and so restrictive that many veterans can't obtain the type of evidence that is required. They don't have access to the medical professionals and specialists or can't afford to obtain the necessary reports and, therefore, will decline to proceed to appeal when advised of the evidence requirements. The benefit of the doubt clause needs to be reviewed in the context of its original intent and liberal spirit.
The Legion has advocated for several years the importance of the composition of board members with relevant military and operational experience. It's important that members understand the exigencies of service. There are currently 24 members on the board, and according to section 4 of the VRAB Act, there could be no more than 29 members. There are six with military or RCMP experience.
While the board should be balanced, the composition of the VRAB should accurately represent the experience of our veterans. Should the majority of the VRAB members be non-veterans? Do they have the experiential knowledge to review the evidence of complex cases and render a fair and compassionate decision?
The selection process for the board creates an artificial barrier and limits the selection of board members with the necessary and relevant operational experience. The use of the Simulation for the Selection of Executives screening process or tool, or SELEX, which was designed to assess candidates for entry-level executive positions in the federal public service, is a barrier to many Canadian Forces members and veterans who may not be familiar with the leadership competencies of the federal public service; may not have worked at a strategic level and, therefore, not have the competencies, skills, and knowledge to function at the director level; and may not be able to perform well in a simulated environment.
While it is understood that the board members' pay scale and classification are at the executive level, the duties of the board members are not consistent with those of other executives in the public service. The duties of the board members are unique and distinct. The selection criteria should more accurately assess the relevant experience, skills, knowledge, and competencies necessary to fulfill their duties and responsibilities as a board member.
The Office of the Veterans Ombudsman's March 2012 report, entitled "Veterans' Right to Fair Adjudication", recommended that decision letters must provide sufficient reasons in support of a decision and provide access to all of the relevant evidence considered by the board in making its decision. The report further recommends that the publishing of all decisions would increase the board's transparency and enable veterans who are preparing appeals to be aware of the evidence requirements similar to their own. Posting all decisions is full transparency.
Lastly, the Legion is concerned about moving towards the use of video conferencing technology for VRAB review hearings. At a board review hearing, veterans have the right to bring forward new evidence, tell their story, and be represented by lawyers from the Bureau of Pensions Advocates or Legion service officers. This is the only time that veterans can present their case to the board. The board can look directly into the eyes of the veteran and the veteran can look directly into the eyes of board members. These members are making a decision that will have a lifelong impact on the quality of life of our veterans and that is at the heart of the social contract between the government and the sacrifice our veterans make to this country.
Yes, there is a cost for hearings in person and time delays with scheduling. However, if these hearings reinforce the trust and transparency in the adjudication process, then let's ensure that the board has the necessary resources to continue hearings across the country. This is the only opportunity for a veteran to be face to face with the adjudicator to tell his or her story, and this is important.
In summary, the Veterans Review and Appeal Board does have a critical role to play to ensure that all veterans and their families receive the benefits to which they are entitled. However, the government has an obligation to ensure that veterans have access to a fair and transparent adjudication process. Our veterans have been injured in service to our country. They deserve to be treated fairly and with respect, and they must trust the process.
Thank you.
Conservative
The Chair Conservative Greg Kerr
Thank you very much.
We'll now turn to the opposition and ask Mr. Stoffer to start. You have five minutes, please.
NDP
Peter Stoffer NDP Sackville—Eastern Shore, NS
Thank you, Mr. Chairman.
I'd like to thank each and every one of you, not only for your service but for being here with us today.
I want to read this from the bottom of page 3:
A Veteran's quote: “I congratulate the VRAB on their ability to do what the enemies of the country could not do and that is to completely destroy the morale of the Veterans who have returned from combat.”
Two quotes by a Veteran and former Board member: “In its present form the Board is extremely dysfunctional: the main problem is that members have little idea of the circumstances of service.” and, “Excuse me, what is the purpose of the Board, to grant pensions or to save the Government money?”
That's quite a strong statement to say.
You fine folks have the opportunity periodically to meet with the deputy minister, the gerontological society, and various groups to discuss with the Department of Veterans Affairs your concerns on a regular basis. Am I correct?
Director, Service Bureau, Royal Canadian Legion
Are you addressing the question to me?
National President, Canadian Peacekeeping Veterans Association
Yes, in fact each veterans organization has a member on the stakeholders committee, which is, at the moment anyway, chaired by the deputy minister. Of course those other committees, now past, have had members from most of the organizations.
NDP
Peter Stoffer NDP Sackville—Eastern Shore, NS
When we hear statements like this, and obviously your concerns for veterans....This question is for both of you here.
Obviously the new deputy minister is fairly new, so she'll take time to fill in, but when you get an opportunity to speak to her or the minister in this regard, what is the response from them when you mention these very serious allegations towards the Veterans Review and Appeal Board? These are quite serious. You're absolutely correct that the bill of rights says dignity, fairness, respect, etc. From those two quotes, obviously in those particular cases that didn't happen.
When you get a chance to speak to them, what is the response from the department when you mention these issues to them?
National President, Canadian Peacekeeping Veterans Association
I think I should start out by saying that there seems to have been a growth of complaints more recently. Although these matters have been mentioned at various meetings—the stakeholders meeting, for instance—it never became a major issue at that time. There really has not been much of an opportunity to respond to anything, in my experience, but this thing has really taken on a life of its own recently.
Director, Service Bureau, Royal Canadian Legion
I just wanted to respond to your first two questions, Peter.
Our Legion president meets with John Larlee, the chair of the board, at least annually. I have a once-a-month teleconference with Ms. Dale Sharkey, the director general, and I raise very specific issues.
When a veteran identifies at a board hearing, or particularly at a review hearing, that they have concerns with the presentation, all the hearings at the review level are recorded, and we ask that they go back and review the hearings.
NDP
Peter Stoffer NDP Sackville—Eastern Shore, NS
Okay. Very good.
If you could make, say, one recommendation to the committee—my time's just about up—that we could recommend to the government in order to enhance or protect.... If you could eliminate VRAB, or protect it, or keep the status quo, or could change it, what's the number one recommendation that you would bring in right now in order to assist us to assist the government?
National President, Canadian Peacekeeping Veterans Association
Mine would be to change the required aspects of VRAB and deal with those. We've listed the major complaints.