Date: 20051107
Docket: T-781-05
Citation: 2005 FC 1512
Vancouver, British Columbia, Monday, the 7th day of November, 2005
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
DANIEL CURRIE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Daniel Currie, who served in Canada's Regular Force between 1948 and 1973, suffers from tinnitus, a hearing disorder. He alleges that his tinnitus is a disability resulting from his 25 years of military service.
[2] Mr. Currie seeks judicial review of the decision of the Entitlement Appeal Board (the "Board") of the Veterans Review and Appeal Board (the "VRAB"), dated February 22, 2005, where the Board ruled that Mr. Currie's tinnitus did not arise out of or was not directly connected with service in peacetime in the Regular Force. As a result, Mr. Currie is not entitled to a disability pension under subsection 21(2) of the Pension Act, R.S.C. 1985, c. P-6.
[3] The Board's overall conclusion was as follows:
Based on the evidence as a whole, the Board is unable to relate the claimed disability of tinnitus to [Mr. Currie's] military service, therefore the Board rules to confirm the Entitlement Review Decision dated 16 July 2004.
With specific reference to Mr. Currie's tinnitus, the Board found that his "claimed disability of tinnitus is part of his present-day hearing loss disability and that no separate cause has been identified to this point."
ISSUE
[4] The sole issue in this application is whether the Board's conclusion is supported by the evidence having regard to section 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 ("VRAB Act").
ANALYSIS
[5] The appropriate standard of review of the decision of the Board is patent unreasonableness, since the question of whether or not the Applicant's disability was caused by his military service is a question of fact (Comeau v. Canada, [2004] F.C.J. No. 1323 (T.D.) at para. 51; Bradley v. Canada, [2001] F.C.J. No. 1152 (T.D.) at paras. 16 & 19; Nisbet v. Canada (Attorney-General), [2004] F.C.J. No. 1340 at paras. 8-13). Stated in other terms, the Board errs only if it based its decision on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the evidence (Hall v. Canada, [1998] F.C.J. No. 890 (T.D.) at para. 18, aff'd [1999] F.C.J. No. 1800 (F.C.A.)).
[6] In determining whether a former member of the forces is disabled as a result of military service, the Board is guided by section 39 of the VRAB Act which provides that:
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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.
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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.
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[7] In this case, Mr. Currie describes the evidence before the Board as uncontradicted in linking his tinnitus to his 25 years of military service. That evidence included the following:
· his exposure to excessive noise during his service as a Construction and Maintenance Technician from 1948 to 1973;
· no post-service exposure to excessive noise;
· a report entitled "A Review of Noise-induced Hearing Loss, Tinnitus, and Evoked-response Audiometry", prepared for Veterans Affairs Canada, 17 October 1997 (the "Tinnitus Report") which states that tinnitus can be late onset and that it could be considered as a serious disability in its own right;
· a letter from Dr. Paul Gladman, Mr. Currie's family physician, who states:
Mr. Currie is a 75 year old patient who has been found to have noise induced hearing loss on audiogram.
He spent years in the military, and was frequently exposed to loud noises. His hearing loss is likely to be directly related to his noise exposure in the service. He also experiences tinnitus in both ears which can be quite severe and bothersome at times.
From my experience, patients exposed to loud noises over a number of years can also develop tinnitus as a direct result. I feel that his tinnitus is also directly related to the noise exposure during his military service.
[8] Mr. Currie submits that none of this evidence is contradicted. He argues that the only conclusion to be drawn from this evidence is that his tinnitus is a disability, separate from his hearing loss, that relates to his military service. Accordingly, it is his position that the Board erred in rejecting this evidence. In terms related to the standard of review, Mr. Currie asserts that the Board failed to have regard to the evidence.
[9] I begin this analysis by noting that section 39 does not require the Board to automatically accept all of Mr. Currie's evidence. Justice Nadon stated the following in King v. Canada (Veterans Review and Appeal Board) (2001), 205 F.T.R. 204, 2001 FCT 535, at para. 40:
It is clear that the [Board] can consider and weigh the evidence submitted and assign to that evidence the weight it considers appropriate. However, the evaluation of the evidence must always be done in conformity with sections 3 and 39 of the Veterans Review and Appeal Board Act, which means that the [Board] must accept the evidence submitted unless it makes a determination with respect to the lack of credibility of the evidence or unless the evidence is contradicted by other evidence submitted. [Emphasis added]
[10] In the record before the Board, there was considerable evidence in addition to that referred to by the Applicant, including:
· a decision dated September 12, 2003, of the Department of Veterans Affairs, that Mr. Currie was not pensionable for general hearing loss (not appealed);
· no diagnosis of tinnitus until 30 years after the end of his military service;
· Veterans Affairs Canada - Table of Disabilities, that states, in the majority of cases, tinnitus is associated with a hearing loss (rather than arising as a separate disability); and
· an audiologist report dated May 20, 2004, stating that Mr. Currie's tinnitus "is consistent with a sensorineural hearing loss".
[11] In my view, all of this evidence supports a conclusion that Mr. Currie's tinnitus is related to his non-pensionable hearing loss and not to his military service. In other words, this is evidence that contradicts the evidence submitted by Mr. Currie.
[12] Further, the Board identified the weaknesses in both Dr. Gladman's letter and in the Tinnitus Report. Mr. Currie's family physician's opinion was based only "on my experience", rather than on medical evidence specific to Mr. Currie. The Tinnitus Report "speaks in generalities and is not an opinion specific to the case at hand." The Board may reject (or give less weight to) non-specific medical evidence (Nisbet, supra, at para. 22). It was not unreasonable for the Board to give less weight to this evidence and to conclude that it preferred the contradicting evidence that supports a conclusion that Mr. Currie's tinnitus was part of his hearing loss. In light of a previous (and unappealed) determination that Mr. Currie's hearing loss did not arise out of and was not connected with his military service, it logically follows that Mr. Currie's tinnitus, as a part of his hearing loss, did not arise out of and was not connected to his service.
[13] In view of the evidence before the Board and having regard to section 39 of the VRAB Act, I cannot conclude that the Board's decision was patently unreasonable. Accordingly, the application will be dismissed.
[14] In my discretion, I decline to award costs against Mr. Currie.
ORDER
THIS COURT ORDERS that the application is dismissed, without costs.
(Sgd.) "Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-781-05
STYLE OF CAUSE: DANIEL CURRIE
- and -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Kamloops, BC
DATE OF HEARING: November 3, 2005
REASONS FOR ORDER AND ORDER: SNIDER J.
DATED: November 7, 2005
APPEARANCES:
Jody A. McCormack FOR APPLICANT
Ward Bansley FOR RESPONDENT
SOLICITORS OF RECORD:
Morelli Chertkow FOR APPLICANT
Barristers & Solicitors
Kamloops, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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