Date: 20060825
Docket: T-388-05
Citation: 2006
FC 1029
Montréal, Quebec, August 25, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
CHERYLYNN HUNT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms.
Cherylynn Hunt, a captain in the Canadian Armed Forces (CF), seeks judicial
review of two decisions
of the Veterans Review and Appeal Board of Canada (Board) which found that the three
distinct physical conditions for which she sought a pension were not
pensionable to the extent that she considered they should be.
I. The Decisions
[2]
In its
decision No. 100000851403 (the ’403 decision), the Board confirmed the decision
of the Assessment Review Panel (ARP) which had increased the Minister’s
combined assessment of the applicant’s lumbar disc disease and osteoarthritis
lumbar spine from 5% to 10%, effective May 4, 2004 (the date of the new
medical evidence upon which the ARP based this increase). The applicant had contended
that the ARP failed to appreciate that the May 4, 2004 medical evidence was not
the first evidence of her constant pain; it was just a clarification of the
nature of her pain. She had also submitted to the Board that the basis of her
appeal to the ARP had been misunderstood because she never argued that her
lower back condition had worsened. In fact, she was simply saying that her
condition should have been assessed at 10% from the date of entitlement in 2002.
[3]
The Board indicates
that it was not convinced that the ARP was correct in raising the assessment
level by 5% because the applicant was pregnant at the time of the hearing
“which situation would almost certainly increase the pain from her lumbar disc
disease particularly during the latter period of her pregnancy.” In its brief decision,
the Board also notes that the applicant’s complaint relates primarily to pain. Considering
the criteria mentioned in Table 1 of Article 19.04 of the Veterans Affairs
Canada Table of Disability, it found that:
While her “symptoms” could have been
placed in the 20% to 30% range at the time of the Review hearing, “medication
would be no higher than the 10% level because, at that time, she was
taking “only Tylenol because of her pregnancy.” There are no adverse findings
in the categories of posture, straight leg raising, reflexes, wasting, toe and
heel walking or back brace, and “range of motion” is close to full, with a 20
degree loss of extension as the only adverse measurement. With those findings,
the Board would have kept the assessment level at 5% with the suggestion that a
new Pension Medical Examination be conducted at some time after the
Appellant’s condition was stabilized, post-pregnancy.
(my emphasis)
The Board concludes that the ARP inferred from the report of
May 4, 2004, that there was a worsening in her condition and, based on that
finding, it was correct in setting the retroactivity date as May 4, 2004. On
that basis, the decision was affirmed.
[4]
In its
decision No. 100000866640 (the ’640 decision), the Board dealt with two
conditions: chondromalacia patella in the right and left knees, and dermatitis
on the right and left hands.
[5]
With
respect to the knee condition, it confirmed the ARP’s decision that, based on
the medical evidence on file, the applicant’s condition could not be related to
her military service, particularly because there was no indication of
service-related trauma to her knees.
[6]
The Board
considered the applicant’s latest letter, which referred to a factual summary
indicating that her condition was first diagnosed in 1984 and resulted from the
exigencies of her service, particularly during basic training, recruit training
and the period when she was a first-year cadet. The applicant also submitted to
the Board that further deterioration of her knee condition arose from repetitive
micro-trauma in the first four or five years of service (phase II and III of
her training).
[7]
The Board
noted that the applicant presented no new medical evidence that would relate the
claimed condition to cumulative joint trauma sufficient to be causative and it
affirmed the ARP’s decision.
[8]
With
respect to the dermatitis, the ARP had assessed that one-fifth of her condition
was service-related. This was an increase from the decision of the Minister, who
had found the condition not pensionable.
[9]
It is not
disputed that this condition is precipitated or aggravated by stress. But,
contrary to the position taken by the applicant, the ARP found that the major
problem (or stress factor) appeared to be her difficulty becoming pregnant
(fertility issues). It expressly states that it gave the applicant the benefit
of the doubt when awarding her one-fifth because, in its view, the numerous
moves and other service-related issues listed by the applicant in exhibit ER-H5
had a minimal impact on her condition. The ARP expressly refers to Dr.
Christensen’s report of March 8, 2004. This report refers not only to the
frequent moves of the applicant, but also to “other stressful events over the
last four to six years.”
[10]
The Board
expressed some doubt as to whether the events described by the applicant in her
statement (ER-H5) were indeed related to her military service, but it found
that the ARP was entitled to give her the benefit of the slightest reasonable
doubt and had done so. It thus affirmed the decision.
[11]
The Court
notes that the Board has agreed to reassess the applicant’s pension request
with respect to her knee condition, but that this reassessment has been stayed until
a decision is rendered on this application.
[12]
For the
reasons given hereinafter, the Court finds that the ’403 decision must be set
aside and that the ’640 decision contains no reviewable error.
II. Issues
A. The ’403 Decision
[13]
The
applicant submits that the Board made a reviewable error by considering that
her pregnancy had an undue impact on the ARP assessment of her lower back
condition. As a result, the Board never properly considered the most favourable
interpretation of the less recent medical evidence in her file. It also failed
to explain why she was not to be given the benefit of the doubt in that
respect.
[14]
The
respondent indicates that the Board is presumed to have reviewed all the
arguments and the evidence presented to it and that its decision is based on a
reasonable interpretation of the evidence on file. He says that given the standard
of review applicable to this finding, the Court should not intervene.
B. The ’640 Decision
[15]
The
applicant submits that the Board failed to consider recorded events during her
military service which would have resulted in major trauma to her right and left
knees. Because of this, the Board never gave her the benefit of the doubt to
which she is entitled.
[16]
According
to the respondent, there was contrary evidence on file which the Board had the
duty to assess. Particularly, the applicable Medical Guidelines contradicted
the theory that the condition could result or be aggravated by repetitive micro-trauma.
Also, there was no evidence that whatever blow was recorded in the applicant’s
file resulted in the kind of trauma that could medically account for her condition.
[17]
In respect
of her dermatitis, basically, the applicant contests the weight given by the
ARP and the Board to the various stress factors in her life at the relevant
time. She agrees that the only medical evidence on file is that of Dr. Ringwald
(page 151) and Dr. Christensen (page 90). She claims that the Board’s decision
was adversely tainted by its view that the various moves imposed on her and her
husband during the relevant period were not service-related.
[18]
The
respondent submits that, in light of the absence of medical or psychological
evidence assessing the relative importance of the stress factors in the
applicant’s life, the ARP and the Board were entitled to weigh those factors as
they saw fit. It is evident that they gave the applicant the benefit of the
doubt and that, regardless of other comments made by the Board, in the end, the
Board agreed that travelling for military service was service-related and it awarded
a pension on that basis.
III. Analysis
[19]
The relevant
statutory provisions of the Pension Act, R.S.C. 1985, c. P-6, are
reproduced in Annex I.
[20]
Because
they are particularly relevant to the issues raised, the following provisions
of the Veterans Review and Appeal Board Act, 1995, c. 18 (the Act), are
reproduced:
|
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.
…
31. A decision of the majority of members of an
appeal panel is a decision of the Board and is final and binding.
…
39. In all proceedings under this Act, the Board
shall
(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; and
(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.
|
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.
…
31. La décision de la majorité des membres du comité d’appel vaut décision
du Tribunal; elle est définitive et exécutoire.
…
39. Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les
règles suivantes en matière de preuve :
a) il tire des circonstances
et des éléments de preuve qui lui sont présentés les conclusions les plus
favorables possible à celui-ci;
b) il accepte tout élément
de preuve non contredit que lui présente celui-ci et qui lui semble
vraisemblable en l’occurrence;
c) il tranche en sa faveur
toute incertitude quant au bien-fondé de la demande.
|
[21]
In Frye
v. Canada (Attorney General), 2005 FCA 264 at para. 11 and
12, the Federal Court of Appeal endorsed the pragmatic and functional analysis
of Justice John M. Evans in McTague v. Canada (Attorney General), [2000] 1 F.C. 647. It found
that a Board’s decision on whether an injury arose out of, or was directly
connected with, military service for the purposes of paragraph 21(2)(a) of the Pension
Act was reviewable on a standard of reasonableness simpliciter.
Purely factual issues which include, according to McTague, above,
“the Board’s weighting or interpretation of often conflicting or inconclusive
medical evidence and determining from it whether the claimant’s disability was
in fact caused or aggravated by military service” are subject to the standard
of patent unreasonableness. When the Board’s interpretation of legislation is
in issue, its findings are to be reviewed on a standard of correctness.
[22]
Obviously,
the Board is bound to abide by the duty imposed upon it by the Act,
particularly sections 3 and 39. As noted by Justice Andrew MacKay in Wood v.
Canada (Attorney General), [2001] F.C.J. No. 52 (QL) at
para. 24, those sections do not, however, relieve an applicant of the burden of
proving that his or her condition arose out of or in connection with military
service. The applicant must still establish on a balance of probabilities, with
the evidence considered in the best light possible, that his or her disability
is service-related. This civil standard must be read in concert with the
entitling provision of paragraph 21(2)(a) of the Pension Act.
[23]
The
appropriate circumstances for applying section 39 were described by the Federal
Court of Appeal in Elliott v. Canada (Attorney General), 2003 FCA 298 at para. 46,
where Justice Marc Nadon said that “if the direction to draw every reasonable
inference is to have meaning, it must be applied in cases where an inference
would not be drawn on a balance of probabilities. A reasonable inference is
therefore one that is not necessarily probable but must nevertheless be more
than a mere possibility.”
[24]
In another
decision of Justice Nadon, in King v. Canada (Veterans Review and Appeal
Board), 2001 FCT 535, the learned judge adopted the views of Justice Bud Cullen
in MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (QL),
where he said at para. 22:
[22] It is settled law
that a tribunal does not have to make an explicit written finding on each
element which leads to its ultimate conclusion; indeed, there is a presumption
that the tribunal has dealt with all of the documents which were placed before
it: Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (T.D.).
However, this is tempered, or qualified, by section 39 of the Veterans
Review and Appeal Board Act, which requires that when new and credible
evidence is presented during a reconsideration proceeding, the Board has a duty
to consider and weigh the evidence, drawing every reasonable inference in the
applicant’s favour. This does not mean that the Board must automatically accept
whatever submission is made by a veteran; rather, the evidence must be accepted
if it is credible and reasonable, and uncontradicted.
[25]
It is
clear that the Board must accept the evidence submitted by an applicant unless
it makes a determination with respect to the lack of credibility of that evidence
or unless the evidence is contradicted by other evidence submitted.
[26]
Finally, as
noted by Justice MacKay in Wood v. Canada (Attorney General), [2001] F.C.J. No. 52, when the
Board does not accept the applicant’s evidence without any explanation, it
commits an error that warrants setting aside the decision.
[27]
With those
principles in mind, the Court will now review the Board’s decisions.
A. The ’403 Decision
[28]
Having
considered the additional written representations of the respondent with
respect to the Table of Disabilities (Table 1 of Article 19.04) used at the
hearing, the Court is satisfied that this document was considered and used by
the Board even if it is not included in the certified record provided to the
Court.
[29]
In its
decision, the Board makes it clear that it felt that the symptoms and other
elements used by the ARP to re-assess the back condition of the applicant were
not representative of her “normal” or “stabilized” condition because of her
pregnancy at the time of the hearing before the ARP.
[30]
The Court
is satisfied that the Board misapprehended the basis of the ARP decision and
itself based its decision, at least in part, on an irrelevant consideration –
the condition of the applicant at the time of the hearing before the ARP. The
Board’s belief that the worsened condition of the applicant was temporary
clearly impacted on its conclusion. Because of it, the Board did not examine
the real issue put forward by the applicant, that is whether or not the 10%
assessment by the ARP should have been applied retroactively to February 7,
2002.
[31]
It is
obvious that ARP was aware that the applicant was four months into her
pregnancy when she appeared before it and that because of this, among other
things, she was then only using Tylenol as opposed to the medication described
in Dr. Ross report of May 4, 2004.
[32]
The ARP
also knew from the report of Dr. Ross that the applicant had indicated to him
that her pain increased during pregnancy, but the fact that the applicant’s pain
was constant and that her range of motion was affected by her degree of pain
which ranged from mild to severe was not discovered at the July hearing. It was
described in Dr. Ross’ medical report which was issued when the applicant was
six weeks only into her pregnancy. The applicant noted that at that stage her
pregnancy was irrelevant. The Court agrees.
[33]
The
evaluation of the ARP was clearly based on the condition described in the May
2004 report, for it only considered the medication described in this report. At
that time, as mentioned, the ARP was well aware that the treatment and
medication prescribed were interrupted because of the pregnancy.
[34]
It is also
worth noting that the other medical reports on file (pages 254-255) which are
not dealt with at all in the decision despite the fact that they were central
to the argument presented by the applicant, are dated January 15, 2002 (Dr.
Vadeboncoeur) and June 2003 (Dr. Kenny).
[35]
The
applicant first became pregnant in June 2002. She was thus very much pregnant (7 months)
when Dr. Vadeboncoeur examined her. She was not pregnant in June 2003.
[36]
Despite
this, the pain symptoms described in the June 2003 medical report (“pain varies
ache → sharp pain”…) are very similar to those described in the Dr. Ross
report of May 2004 (“level of pain increases with various activities and during
pregnancy goes from mild to severe”) . On the other hand, Dr. Vadeboncoeur
describes the pain symptoms in January 2003 simply as “lower back pain worst
after lifting and gardening, better after stretching and yoga”.
[37]
The
evaluation of the Board, based on the Table of Disabilities, indicates that if
the pain symptoms described by the applicant were not “temporary”, they could
have a real impact on the assessment of her pension.
[38]
Finally,
there is no doubt that even if the Board does not have to deal in any detail
with all the evidence and the arguments presented by an applicant, it must at
least indicate on what basis it rejected the main ground of appeal put forth by
an applicant. In this case, as I said, there is no reference whatsoever to the
applicant’s lower back condition prior to May 4, 2004, even though the main
ground of her appeal was that her condition on May 4, 2004 was not different
than her condition in 2002.
[39]
The Court
finds that the decision is patently unreasonable and must be set aside.
[40]
When this
matter is reconsidered, the applicant should be given the opportunity to
include in the statement of the case, various medical questionnaires which
appear in her medical record but were, for some reasons, only included in the
statement of the case in respect of the ‘640 decision.
B. The ’640 Decision
(1) Knee
Condition
[41]
The
applicant recognizes that the Board did not have any clear evidence of a causal
link between her military service and the problems with her knees, but she argues
that, as her condition was first diagnosed in 1984, the Board had before it
evidence of incidents related to her military service that could well have
caused her condition when one applies the appropriate favourable inference on the
basis of section 39.
[42]
The Medical
Guidelines of the Canadian Armed Forces with regard to chondromalacia patella
(certified record at page 170) clearly indicate that there is no medical data
supporting the fact that such a condition is more prevalent in service
personnel than in the civilian population. They also indicate that there is no
reason to believe that repeated minor trauma sustained during service plays any
role in the development of this condition.
[43]
It is also
admitted that, between 1986 and 2003, there are no reports of knee injuries in
the applicant’s file and that the medical evidence produced by her describes
her physical condition without determining its cause.
[44]
With
respect to the theory that her chondromalacia patella was caused or aggravated
by repeated micro-trauma during her training, the Board was clearly entitled to
prefer the Medical Guidelines to the arguments submitted by the applicant.
[45]
Those guidelines
are given legislative effect by section 35(2) of the Pension Act, and it
is well established that it is perfectly appropriate for the Board to be
influenced by them when reaching a decision. This issue was specifically
discussed by Justice William P. McKeown in Gavin v. Canada (Attorney General), [1999] F.C.J. No. 676 (QL) at
para. 10-11 of his decision.
[46]
This,
however, does not settle the matter. The applicant placed particular emphasis
on the fact that her medical record refers to damage to her right knee while
practising fencing in February 1983 and also to her left knee when she took a
fall in March 1984 (see pages 32, 33 and 35 of the respondent’s record). She
says that these incidents could amount to “traumas” that could have caused her
condition and justified an inference in her favour. On both those dates, the
applicant was attending the Royal Military College.
[47]
The Court
notes that the applicant was first diagnosed with chondromalacia patella to her
knees in February 1984, that is one year after the fencing incident and one
month before her recorded fall on the left knee. There is no other recorded
incident involving her right knee that would indicate that the diagnostic made
in February 1986 was caused by a trauma that occurred between 1984 and 1986.
The entry for February 5, 1986 states that there is no history of trauma.
[48]
The
February 1984 diagnosis is mentioned in the two recent medical reports written
by Dr. Kenny and dated March 11 and 13, 2004 (at pages 103 and 89 of the
respondent’s record). Dr. Kenny appears to believe that the knee condition of
the applicant, as shown in the x-rays of 2003, is consistent with the condition
identified in 1984. He does not indicate how this condition could have
appeared. A further medical entry, dated June 2, 2003, and noted in the ARP
decision, reviews the applicant’s history since 1982 and indicates that she
sustained no specific injury to either knee.
[49]
In these
circumstances, the Court is satisfied that the Board made no reviewable error
when it concluded that it could not infer a causal or aggravational
relationship between the appellant’s condition and her military service on the
basis of the evidence presented. The applicant’s explanation based on the two
entries made in her file in February 1983 and March 1984 is no more than a mere
possibility. The applicant has simply not provided sufficient evidence to
justify an inference in her favour in this case. As mentioned earlier, she will
have the opportunity to provide additional evidence to the Board who has agreed
to re-assess her claim.
(2) Dermatitis
[50]
With
respect to the dermatitis, it appears that there was contradictory medical
evidence. Dr. Haber mentioned that the dermatitis is idiopathic (i.e. the cause
is unknown), while Dr. Christensen stated that the applicant had an underlying
tendency towards this disease which “might” have been aggravated by her
moves and other stressful events in the past 4 to 6 years. He does not
specifically describe them but we know from the file that these include
problems with her ovaries and her spouse’s sperm, many unsuccessful attempts at
becoming pregnant since 1991, her spouse’s problem with a harassment claim,
etc. The medical evidence on file does not indicate in what proportion these
various stressful events could have influenced or aggravated the applicant’s
condition.
[51]
There was
also some contradictory evidence as to when the eczema condition appeared. In
her submissions to the panel, the applicant placed the beginning of her
condition in 1999, whereas in the medical report of Dr. Ringwald, it is noted
that it would have begun around May/June 2001. The respondent links the
appearance of eczema with the beginning of the applicant’s attempt at in vitro
fertilization.
[52]
The Court
finds that the comments of the Board as to whether or not the moves to various
military bases relate to military service are not material given that it ultimately
accepted the finding of the ARP in that respect.
[53]
The Court
is satisfied that it was not unreasonable, let alone patently unreasonable, for
the Board to find that military service was not responsible for more than
one-fifth of her condition.
ORDER
THIS COURT ORDERS that:
1. The application is granted in
part. Only the decision of Veteran Review and Appeal Board of Canada No.
100000851403 is set aside and the applicant’s appeal in that file shall be
reconsidered.
2. The applicant is granted half
of her taxable costs.
“Johanne Gauthier”
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