Date: 19980811
Docket: T-347-97
BETWEEN:
DELBERT R. WEARE
Applicant
- and-
ATTORNEY-GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of a decision of the Veterans Review and Appeal Board (the "Board") dated January 23, 1997. By originating notice of motion dated March 3, 1997, the applicant seeks an order that the decision of the Board be quashed and that it be directed to grant the applicant a disability pension benefit pursuant to the Pension Act, R.S.C. 1985, c.P-6, as amended.
Background
[2] The applicant, born January 19, 1941, served with the Regular Force of the Canadian armed forces from October 14, 1958 to December 24, 1959. In December 1958, the applicant fell some 35 feet to the ground from a rope during a training exercise at Gagetown military base, injuring his feet. He was placed on light duty, but between January to April, 1959, he was required to spend more time than usual on the rifle range as he was having difficulties qualifying as an ordinary rifleman. Ear protectors were not available. The applicant was given a medical examination before his release from the armed forces in December 1959, which release was not apparently related to any injuries stemming from service. During that examination he reports the examining officer became exasperated with him. At the time, the applicant was 18 years of age.
[3] Following his discharge, the applicant commenced trade school. While he was an apprentice in motor vehicle repair, the applicant is said to have experienced pain in his lumbar spine while lifting heavy items. He ultimately worked as a mechanic. In 1970, the applicant suffered a knee injury from a collision with an engine block and this knee was operated upon twice, once in 1971 and again in 1988.
[4] In 1986, the applicant learned that pensions were available for peace time veterans of the Forces. Following his application, the Entitlement Board provided the applicant with a 3/5 pension for the portion of the primary condition of bilateral pes planus, a foot condition, stemming from the 1958 fall.
[5] In 1994, the applicant sought a pension entitlement for the conditions of osteoarthritis in his right knee, in his left knee, and in his lumbar spine, and also for hearing loss. His application for pension entitlement for these conditions was denied, first by the Canadian Pension Commission on October 11, 1994, and then by the Entitlement Review Panel on February 15, 1996. The matter was appealed to the Board, where the applicant argued that the injuries to the his knees and lower back were attributable to his fall in 1958 and that his hearing loss stemmed from his extensive rifle firing in early months of 1959, without ear protection.
[6] The Board did not concur with the applicant that the knee injuries were attributable to the applicant's military service. They noted that the cause could just as well be the workplace accident that took place in 1970, when the applicant walked into an engine block. Further, the Board was unable to conclude that any part of the applicant's hearing loss was attributable to firing weapons on the firing range in early 1959 or that the applicant's service was a causative factor of his hearing loss. The spinal injury was said by the applicant either to be attributable directly to the Regular Force service or that it was consequential upon the already pensioned condition of bilateral pes planus. However, the Board found that the medical evidence was insufficient to support the conclusion that the condition pertaining to the lumbar spine was attributable to the Regular Force service or that there was any linkage between the spinal condition and the already pensioned condition of bilateral pes planus.
Arguments of the parties
[7] As I understand the applicant, the core elements of his arguments contest the conclusions of the Board which were based upon contradictory evidence of any linkage between his ailments and his military service. He urges that the Board did not properly apply statutory provisions obliging the Board to draw inferences in his favour. The applicant also expresses concern with the quality of the medical exam given to him in 1959, at the time of his discharge. Moreover, it is urged that omission in his records on discharge of any reference to his medical conditions ought not to be accepted as proof of their non-existence at the time, particularly in light of his sworn testimony and the reasonable expectation that falling 35 feet, as he did, would adversely affect his knees and his spine.
[8] The respondent objects to much of the evidence adduced by the applicant, urging that this material and many of the facts alleged were never before the Board and thus are not available to be considered by the Court in this review. The relevance of the pre-discharge medical examination in 1959 is challenged by the Crown in relation to this review. The respondent urges that the applicant has failed to demonstrate any reviewable error on the part of the Board. It is also submitted that the Board was aware of its statutory duties, and conducted its proceedings and decision-making in accordance with its statutory obligation.
[9] The applicant, it is said, was unable to marshal before the Board sufficient credible evidence to establish a nexus between his present complaints and his military service in 1958 and 1959. While the Board is required by statute to draw every reasonable inference in favour of the applicant, this statutory duty does not raise a mere possibility to the level of established fact. The evidence presented by the applicant was sparse and was, in every significant respect, questioned by the opinions received from the Pensions Medical Advisory Directorate. In the result, the conclusions of the Board are said to be supportable on the evidence before it.
Analysis
[10] With respect to Mr. Weare, it is settled law that upon application for judicial review, the only evidence the Court may take into account, in considering whether the administrative decision-maker erred, is that evidence that was before the decision-maker. On an application for judicial review, the merits of that decision may not be re-argued in reliance upon new evidence not before the decision-maker. For this reason, I am unable to take into account, in rendering this decision, any of the evidence relied upon by the applicant dated after the Board's decision, including various letters between medical specialists said to support the applicant's case. I note only, on this point, that pursuant to s-s.32(1) of the Veterans Review and Appeal Board Act, S.C. 1995, c.18 (the "Act"), the Board retains jurisdiction to re-consider its decision on the basis of new evidence adduced by the applicant. This sub-section reads:
| 32.(1) Notwithstanding section 31, an appeal panel may, on its own motion, reconsider a decision made by it under subsection 29(1) or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may do so on application if the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law or if new evidence is presented to the appeal panel. |
32. (1) Par dérogation à l'article 31, le comité d'appel peut, de son propre chef, réexaminer une décision rendue en vertu du paragraphe 29(1) ou du présent article et soit la confirmer, soit l'annuler ou la modifier s'il constate que les conclusions sur les faits ou l'interprétation du droit étaient erronées; il peut aussi le faire sur demande si l'auteur de la demande allègue que les conclusions sur les faits ou l'interprétation du droit étaient erronées ou si de nouveaux éléments de preuve lui sont présentés. |
[11] In my view, the sole issue in this case is whether the Board's weighing of the evidence that was before it, regarding the causation of the applicant's ailments, was patently unreasonable, taking into account the various statutory obligations on the Board. I begin by reviewing these obligations.
[12] The Veterans Review and Appeal Board (the "VRAB" or the "Board") was created by Parliament in 1995 by the Veterans Review and Appeal Board Act. Replacing the former Veterans Appeal Board, the former Pension Review Board and the former War Veterans Allowance Board, the Veterans Review and Appeal Board now acts as the sole review and appeal authority for veterans' pensions.
[13] Pursuant to section 39 of the Act, when credible evidence is presented during a proceeding, the Board has a duty to consider and to weigh the evidence, drawing every reasonable inference in the applicant's favour. Mr. Justice Teitelbaum, in Mackay v. Canada (Attorney General)1, held that ss. 3 and 39 of the Act create liberal and purposive guidelines for claims for veterans' pensions in light of the nation's great moral debt to those who have served this country. These sections read as follows:
| 3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled. ... 39. In all proceedings under this Act, the Board shall
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3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge. ... 39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve:
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[14] Under section 38 of the Act, the Board may seek independent medical opinions regarding any matter before the Board. Mr. Justice Heald, in Moar v. Canada (Attorney General)2, commenting on a similar provision, s-s.10(3) of the former, and now repealed Veterans Appeal Board Act, and its significance for the deference to be accorded by the Court to the Board"s decision, had this to say:
| The issue in this case clearly involves medical matters. Section 10(3) of the Veterans Appeal Board Act empowers the Board to obtain independent medical opinions relating to any matter before the Board. On this basis I conclude that the Board is not to be afforded the deference usually given to tribunals of a specialized nature because of their particular expertise. |
[15] That decision must be read in light of Tonner v. Canada3, a decision of the Federal Court of Appeal, which held that the privative clause found in the former Veterans Appeal Board Act entitled that Board to deference. A similar clause is now found in s.31 of the present Act. I conclude that the Court is to defer to a decision of the VRAB, other than one concerning jurisdiction of the Board, unless it is patently unreasonable.4
[16] Heald J., in Moar, also considered the importance of then s-s.10(5) of the Veterans Appeal Board Act, a provision similar to s.39 of the current Act. His Lordship wrote as follows:
| Subsection 10(5)(b) supra is particularly germane to the issues on this record since it mandates the Appeal Board to "... accept any uncontradicted evidence presented to it by the appellant that it considers to be credible in the circumstances ..." |
[17] Like former s-s.10(5), s.39 of the current Act is to be read in conjunction with subsection 21(3) of the Pension Act.5 Sub-section 21(3) of the Pension Act creates a presumption that an ailment arises from military service if the injury causing the ailment was incurred in the course of such service. It reads as follows:
| 21.(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of
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21.(3) Pour l'application du paragraphe (2), une blessure ou maladie " ou son aggravation " est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours:
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[18] The Federal Court of Appeal"s decision in Chenier v. Canada6, discussing s.108 of the Pension Act, which was virtually identical in every material respect to s.39 of the current Act, is authority for the proposition that the Board must draw every reasonable inference in favour of the applicant. The Board fails in the exercise its jurisdiction when it summarily arrives at the conclusion that the member was not engaged in an activity giving rise to a pension without "expressly dealing with the evidence from which an inference favourable to the Applicant might have been drawn." Moar, also, suggests that where no contradicting evidence is available, the Board errs where it rejects the applicant's medical evidence and that this error goes to jurisdiction.
[19] Yet, the Board may reject the applicant's medical evidence when it has before it contradictory medical evidence, as noted by Mr. Justice Cullen in Re Hornby7. Further, ss.3 and 39 of the Act do not mean that whatever submission is made by a veteran, that submission must automatically be accepted by the members of the Board. The evidence must be credible and must be reasonable.8 Finally, there is an obligation on the veteran to present evidence suggesting a causal link between service in the Forces and the ailment of which he or she complains. In the words of Madame Justice Reed in Hall v. Canada (Attorney General)9:
| While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arose out of or in connection with his military service; that is, the causal linkage must be established. |
[20] In the case at bar, having examined the record that was before the Board, while there is little doubt the applicant suffers from knee and hearing ailments, I can find little if any evidence offered by the applicant demonstrating a causal link between his military service and these ailments. On the other hand, the report prepared by the Medical Advisory Directorate indicates that the hearing loss is not attributable to military service and that there is no evidence supporting a conclusion that the knee problems originated from service in the armed forces.
[21] On this basis, it is my view that it cannot be said that the Board came to a patently unreasonable finding or that it failed to weigh medical evidence in a proper fashion in relation to the claims by Mr. Weare in regard to his knees and his hearing. In the absence of any evidence of causality presented by the applicant, it is not open to the Board to conclude that such causality exists where medical reports it has requested suggest otherwise. In these circumstances, the Board cannot simply infer that ailments developing many years after Mr. Weare's discharge from the services were caused by his fall while in training in 1958.
[22] With respect to the back problems, there is a letter from a Dr. Côté dated December 4, 1995 pointing to a possible causal linkage between the foot injuries attributable to military service and the applicant's growing back problems. The key passages of this letter reads as follows:
| ...it is my medical opinion that any pre-existing medical condition of the lower limbs will contribute to the development and speed the development of osteoarthritis of the lumbar spine. In particular, his bilateral foot problem consisting of excessive hind foot valgus, excessive rear and mid foot pronation and mild fore foot varus results in a pes planus gait pattern. This physical abnormality, which apparently has occurred as a result of the fall he sustained while in the Armed Service, could certainly contribute to increased mechanical stress on the lumbar spine resulting in increased osteoarthritis development. It is therefore my medical opinion that his foot problems could certainly be contributing to his back problem. |
[23] This opinion is directly contradicted by the report prepared by the Medical Advisory Directorate, which reads:
| There is no record of Osteoarthritis of the Lumbar Spine during his entire period of Regular Force Service. At his Release Medical on 27 November 1959, he denied any injury and on examination, the spine was recorded as negative. |
| The medical evidence available does not support the conclusion that Osteoarthritis of the Lumbar Spine is directly connected with Regular Force Service. |
| The Ex-Serviceman in pensioned for Pes Planus. Medical opinion is that foot conditions such as Pes Planus are not considered to aggravate Osteoarthritis of the Lumbar Spine. |
| The medical evidence available does not support the conclusion that Osteoarthritis of the Lumbar Spine is consequential to the pensioned condition of Bilateral Pes Planus. |
| He was examined by the Senior District Medical Officer on 24 September 1990. No shortening of one leg as compared with the other was recorded. |
| Medical opinion is that an altered gait per se in the absence of any shortening does not contribute in any significant manner to degenerative changes in the Lumbosacral Spine. |
| The medical evidence available does not support the conclusion that Osteoarthritis of the Lumbar Spine is consequential to the allegedly pensionable conditions of Osteoarthritis of the Right Knee and Osteoarthritis of the Left Knee. |
| There is insufficient evidence on file to make an assessment. |
[24] The Board is entitled to accept evidence which it considers the most cogent as long as it considers the special rules enunciated by s.39 of the present Act and does not employ defective reasoning in evaluating the evidence.10 With respect, I am not persuaded that the Board made any such errors in this case in weighing the competing evidence. In its decision, the Board indicated that
| In accordance with section 3 and section 39 of the Veterans Review and Appeal Board Act, the Board has liberally interpreted and weighed all of the evidence, resolving any doubt in favour of the Appellant |
In coming to its conclusion regarding the lumbar spine injury, the Board examined the December 4, 1995 letter from Dr. Côté and held as follows:
| The Panel has reviewed the evidence tendered in support of the claimed condition and has taken the Appellant's testimony and statement into full consideration. Unfortunately, the Panel in its collective wisdom finds that the medical evidence is insufficient to support the conclusion that the condition pertaining to the lumbar spine is attributable to his Regular Force service and therefore will be denied under subsection 21(2). The Panel, as well, based on medical support, finds that there is no linkage whatsoever between the claimed condition of the lumbar spine and the already pensioned condition of bilateral pes planus and therefore is unable to find any consequential relationship to rule under 21(5) of the Pension Act. |
[25] I am not persuaded that the Board's conclusion with respect to the applicant's spinal ailment was patently unreasonable. Moreover, I am not persuaded that the VRAB erred in the manner of its application of the special rules established by the Act.
[26] I note that in his written submissions, the applicant urged that the officer filling out the medical report prepared on his discharge in 1959 was biased is some way against him and that as a consequence, the medical report, and the absence of any mention of his injuries in it, should be treated warily. While the circumstances surrounding the production of this report may go to its weight, in an application for judicial review of the VRAB decision, for the Court to conclude that the Board gave this report undue weight, the applicant must present evidence that was before the Board supporting the view that this report was improperly considered. The certified record of the material before the Board contains no indication that any evidence regarding bias or unfairness on the part of the examining medical officer was before the Board, or that this point was even raised before the Board. There is no basis for this Court to conclude that the VRAB erred in its treatment of that medical report, rendered nearly 40 years ago. In any event, that report was one among others and there is no basis for considering it as more significant than others in the Board's decision.
[27] For these reasons, I am not persuaded that there is any basis for the Court to intervene and set aside the decision of the Board. An order issues dismissing this application for judicial review.
[28] That order is, of course, without prejudice to any right Mr. Weare may have to invite the Board to reconsider his case in light of any new evidence that would support his claim to entitlement.
W. Andrew MacKay
Judge
OTTAWA, Ontario
August 11, 1998.
__________________2 (1995), 103 F.T.R. 314 at 316.
3 (June 12, 1996), Court File No. A-263-95, [1996] F.C.J. No. 825 (F.C.A.).
4 See MacLeod v. Canada (Veterans Review and Appeal Board) (April 3, 1998), Court File No. T-2863-96, [1998] F.C.J. No. 428 (F.C.T.D.); Henderson v. Canada (Attorney General) (January 13, 1998), Court File No. T-29-97, [1998] F.C.J. No. 85 (F.C.T.D.).
5 See Hunt v. Canada (Minister of Veterans Affairs) , (March 20, 1998), Court File No. T-217-97, [1998] F.C.J. No. 377 (F.C.T.D.).
6 (1991), 136 N.R. 377 (F.C.A.).
8 See Tonner v. Canada (Minister of Veterans Affairs) (1995), 94 F.T.R. 146, affirmed supra (F.C.A.), dealing with the Veterans Appeal Board.
9 (June 22, 1998), Court File No. T-2267-97, [1998] F.C.J. No. 890 (F.C.T.D.).