Feature:   Oma Khadr Again

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Issue No: 201783




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Oma Khadr Again

By Perry Gray, Chief Editor VVi

VVi 30 Sep 2017 db

Dear Minister,

The prime minister says he wants Canadians to stay outraged about his government's controversial settlement with former Guantanamo Bay inmate Omar Khadr. I agree and I remain outraged, particularly given the unfair "justice system" employed by your department. When will Veteans get a fair deal?

Michel Doiron Assistant Deputy Minister of Service Delivery stated to the House committee in March 2017 the following:

“We've changed in the last three years, giving the benefit of the doubt to the veteran now. We've changed that. When I arrived a little bit more than three years ago, you had to prove it was caused by service. You had to give us your CF 98 that said you had been injured. We've now moved on that. Do we always get it right? No, but I think we've gone a long way, so that now, if you're in certain trades, if your knees are gone and you're an infantry person and you've served 25 years and you come to us, it would be a yes. You may not have blown your knee in one jump, but over 25 years of humping who knows how many miles, the joints are gone.

We're working on that, but there are still some “no” letters that go out, and they're traumatic for the individuals.”

In my opinion, every assessment should be reviewed because your department has not acted in good faith. The benefit of the doubt is always supposed to be given, not some of the time. When will YOU ensure that your policies are fair and just?

No Day in Court Part 4

Democracy is two wolves and a lamb voting on what to have for dinner. Liberty is a well armed lamb contesting the vote.

Omar Khadr had his day in court. This is a right denied to many Veterans based on the unfair operations of Veterans Affairs and the Veterans Review and Appeal Board (VRAB). In fact the methodology of appeals is generally biased in favour of VAC.

The overall VAC attitude is summarised well in the words of a former deputy minister, Jack Stagg:

“What we found in the pension system was it was a kind of perverse system, in effect, because we had quite a large number.... We took a number of files between 1998 and 2002 and looked to see how many people were coming back to us for additional pensions. People were making this their life's work. We had people coming back anywhere from 9 to 17 or 18 times, looking to boost a pension...We try, of course, in Veterans Affairs, to be fair and to judge rationally how sick or how disabled someone is from the services they rendered for Canada. They will tell us they are sicker than what we believe or what they can prove, and it becomes a kind of adversarial battle.”

What Mr Stagg failed to mention is the laughably low starting point for disabilities assessments made by VAC adjudicators. These are often below 20% regardless of the nature and severity of the Veterans’ disabilities. Even worse Veterans have to continually prove that they should continue to receive VAC support for the rest of their lives.

It is worth remembering that his statement was made before the New Veterans Charter was enacted. The situation has deteriorated since 2006 when the NVC joined older legislation that must be navigated when dealing with VAC.

VAC unilaterally decides the extent of disabilities and what benefits will provided. The assessment is based on a VAC adjudicator’s interpretation of the pertinent medical conditions. Much of this decision making is influenced by information provided by medical practitioners and related specialists. None of the people involved are using universally recognised standards in terms of definitions or even terminology. For example, common words like acute, chronic and severe are not characterised by the same definition and as most words have two or more definitions, there is a lot of diversity. Regardless, VAC is supposed to give the benefit of doubt to the Veteran. This is a crucial detail that is often not apparent to Veterans and rarely fully rationalised by VAC.

The assessment is not provided to the Veteran or explained in detail in terms of the exact process used to make the final decision. The Veteran and family members are often excluded when it comes to proving the veracity of the assessment. Basically, the VAC adjudicator has no contact with the Veteran.

Another important fact often not considered is that there is a lack of standardisation in making assessments. VAC should be reviewing all assessments so that every assessment is the same in terms of calculations when disability and severity are comparable.

In other words, there should be an obvious and predictable trend in how calculations are made. The reality is that this is not true. Veteran A will be treated differently from Veteran B even if they share similar conditions and levels of disability. Their assessments are based on the practices employed by different adjudicators and not some properly managed methodology.

One systemic problem that VAC seems unable to solve is the time required to process a claim. For example, in 1993, an average of 542 days was needed for a positive process and an average of 385 days for a negative one. At times, VAC has rejected up to 80% of first time applications.

VAC was more likely to show a preference for dealing with war-time Veterans than serving the needs of the CAF. This perception was reflected in the widespread opinion of CAF applicants, who believed that they had to provide proof beyond a reasonable doubt.

Among CAF personnel this was known as deflect, defer, delay, deny…and ultimately die.

The next step in the process requires the Veteran to accept or reject the assessment. If it is the second option, then VAC begins the adversarial battle mentioned above.

There is a major difference between the theoretical appeal system and its practical application. The starting point is supposedly a departmental review. If the departmental phase is unsatisfactory, then the Veteran can appeal to VRAB.

During this process, a Veteran can use the services of the lawyers employed by the Bureau of Pension Advocates (BPA). The service is free (except to taxpayers, who must pay the VAC budget), but hardly impartial. At the end of the day the lawyers are employed by VAC.

“If you seek assistance from BPA, you will be treated the same as if you were hiring a private lawyer to represent you. The solicitor-client relationship between you and your lawyer ensures that your confidentiality will be fully respected.”

This statement is more propaganda spouted by VAC.

VAC continues to reduce the operations of BPA such as assisting Veterans in completing the multitude of VAC forms. One reason for the many changes was that there were not enough lawyers to handle the workload. This is obvious from the fact that of the 14 BPA offices some had only one lawyer (information from VAC website).

The actual process does not follow the theory. VAC will often omit departmental reviews forcing Veterans to deal with VRAB. The board is not like a typical legal court in that Veterans have a limited role. The first and the only opportunity that most applicants have to communicate with VRAB is a review hearing. “It is the only time in the process when applicants may appear before the decision-makers to provide oral evidence and tell their story.” An applicant may appear at their own expense for the second type of hearing, an appeal, but they may not address the board. "The legislation does not permit oral testimony at this level". The legal right to appear may exist, but the right to appear is essentially meaningless.

Like the VAC adjudicators, VRAB “…members examine, interpret and evaluate medical evidence presented by applicants. Members are also required to assess the credibility of this evidence.”

Again the fate of the Veteran is in the hands of people, who often lack any reasonable qualifications for making such life changing decisions.

VRAB likes to portray itself as a responsible body by providing a fair and effective appeal process, but it will only change a VAC decision if the evidence supports it.

The evidence must be collected by the Veteran. VAC may claim that BPA will provide support throughout this process, but the onus is still on the Veteran to prove that a change is warranted…and then hope that the BPA lawyer can persuade the board.
Fun fact, in 2016-17, VRAB ruled favourably in 42% of Review decisions and 26% of Appeal decisions. These are statistics that should not be publicised as positive achievements. They are more like warnings to Veterans - do not bring us your complaints!
If the Veteran remains dissatisfied, then the final phase is taking the appeal to a federal court. This may cost $25,000 or more.

How many Veterans have gone to court? The answer is very few.

Another fun fact, in 2016-17, 17 Veterans requested a judicial review. The courts issued nine decisions (pending from applications made in previous years). Of these, seven upheld VRAB's decision, while the other two returned the Veterans to the VRAB for a new hearing.

Between the trauma experienced dealing with VAC and VRAB, many Veterans cannot go on and the potential financial burden is more than many are willing to consider. It may take decades before even the most stubborn Veteran is too exhausted or depressed to continue.

The government has to recognise that many Veterans have to cope with physical and mental pain related to their medical conditions. It is not surprising that they do not desire to increase their pain and suffering, after all most people are not masochists.

Ironically, departmental reviews and VRAB were established to reduce expenses. Given that the government forecast that the Omar Khadr case could cost as much as $40 million, it seems reasonable that finding a cheaper solution is a good idea.

But is it fair to Veterans? No because the current system marginalises the person with the greatest stake, the Veteran, who is not a participant for much of the experience.

What no one considers in the bigger picture is why both VAC and VRAB deny the majority of claims.

Most Veterans apply to VAC because they expect to be released from the CAF for medical reasons. Thus it seems logical that applying to VAC is a good option. Therefore many are shocked and then angered by VAC’s rejection of their applications.

Should the Veteran be held accountable?

In my opinion, no.

The government has repeatedly failed to support Veterans despite having two departments supposedly concerned with their welfare. DND would wash its hands of Veterans much like Pontius Pilate did while condemning Jesus. VAC in the role of the Jewish priests then judges Veterans based on documentation provided by DND.

DND claims that injured Veterans will not fall through the cracks by retaining them longer. It is unclear how effective this policy will be. There are about 5,000 releases per year and many are because of medical conditions. The big challenge is ensuring that Veterans are stable and secure once the transition is complete. Given that it may take years for Veterans to adapt to a new life, how long can DND afford to retain them?

This challenge is even more daunting given the problems arising from VAC and VRAB appeals. Jack Stagg was correct that many cases last for decades.

Perry Gray is a Regular Force veteran, serving as the Chief Editor of VVi. Perry has been with VVi for 16 years.
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