Date: 20100930
Docket: T-2156-09
Citation: 2010 FC 980
Vancouver,
British Columbia, September
30, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JOSEPH
BEAUCHENE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Veterans Review and
Appeal Board (the “Board”) pursuant to the Federal Courts Act, R.S.C.
1985, c. F-7 confirming the Applicant’s entitlement to a one-fifth pension
entitlement for hearing loss.
Factual Background
[2]
The
Applicant, Joseph Beauchene, served with the Canadian Armed Forces from
February 1967 to June 1993. The Applicant was a physical education
instructor for his entire career and was regularly in noisy environments
as part of his job functions.
[3]
At
the time of enlistment and throughout his service, the Applicant received
regular physical examinations, including audiograms to assess his hearing. The
Applicant’s discharge audiogram shows diminished hearing in March 1992.
Following his discharge, he noticed ongoing hearing loss and underwent
additional audiograms which demonstrated increasing hearing loss.
[4]
The
Applicant applied for a pension, pursuant to the Pension Act, R.S.C.
1985, c. P-6, for the hearing loss and associated tinnitus in February
1997. That application was denied on the grounds that the Applicant had not
suffered his hearing loss disability until after discharge. He applied for a
review of the decision and the claims for tinnitus and hearing loss were
treated separately. For the tinnitus, the Applicant received a full pension and,
after a review, his disability rate was increased from 6 to 11% on December 1,
2009.
[5]
For
the hearing loss claim, he was awarded a one-fifth pension entitlement with a
disability rate of 5% on November 6, 2008. The Applicant requested a review of
the decision, but it was upheld on March 17, 2009, as it was concluded that
only a portion of the hearing loss was attributable to military service. Dissatisfied
with the result, he appealed the decision with the Board. In a decision dated
November 24, 2009, the Board confirmed the entitlement and maintained the one-fifth
pension.
[6]
The
Applicant now seeks judicial review of the Board’s decision regarding his
pension entitlement for his hearing loss.
Impugned Decision
[7]
In
its decision dated November 24, 2009, the Board identifies the issue as whether
or not the Applicant provided sufficient evidence to establish that his hearing
loss warrants a higher pension entitlement than the previously awarded one-fifth.
The Board goes on to note that the Hearing Loss Entitlement Eligibility
Guidelines establish standards for the recognition of hearing loss as a
"lesser degree of hearing" or as a "disabling hearing loss".
[8]
With
regard to the evidence, the Board finds that the audiograms on file show a
lesser degree of hearing loss from January 1986 to March 1992 at the time of the
Applicant’s discharge. Further, the post-service audiogram of December 2007 shows
a disabling hearing loss.
[9]
The
Board’s analysis and reasons on the appropriateness of the pension entitlement
are contained in the following paragraph:
While the [Board] is not necessarily
bound by the Departmental policy that has provided one-fifth pension
entitlement to the [Applicant], it is not convinced that it should vary the
entitlement award in this case. The [Board] finds the policy was appropriately
applied based on the audiograms on file. Further, the [Board] finds there is no
evidence to establish that the policy is in contravention of the Pension Act.
[10]
The
Board then goes on to address issues that are not relevant to this judicial
review.
Questions at issue
[11]
The
Applicant raises the following issues:
a. Did the Board
err in the consideration of the medical evidence?
b. Did the Board
err in finding that the Policy is not in contravention of the Pension Act?
c. Did the Board
err in applying the Policy?
Relevant Legislation
[12]
All
relevant legislation is attached as an appendix to these reasons.
Applicant’s Submissions
[13]
The
Applicant submits that he provided further medical documentation on the issue
of causation of his hearing loss to the Board – an updated audiogram and a
medical report from Dr. Longridge. This evidence was not mentioned in the
Board’s reasons. The Applicant refers to sections 38 and 39 of the Veterans
Review and Appeal Board Act, S.C. 1995, c. 18 (the “VRAB Act”) which create
a unique statutory scheme that allows for the favourable consideration of
evidence for the benefit of a pension applicant. The Applicant argues that, in
light of these provisions, the Board had a duty to consider the new evidence.
He also argues that he provided uncontradicted evidence showing a causal link
between his hearing loss and his service and this should have guided the
Board’s decision instead of the Policy. He reasons that the Board failed to
consider all of the relevant evidence and rendered a decision that is contrary
to the VRAB Act.
[14]
The
Applicant further submits that the conflict between the Pension Act and
the Policy, which was addressed by this Court in Nelson v. Canada (Attorney
General),
2006 FC 225, 289 F.T.R. 183, still exists despite the decision in that case. He
submits that partial entitlement granted to him and the application of the
Policy ignores the rationale of that decision by distinguishing between a
lesser degree of hearing and a disabling hearing loss.
[15]
In
the alternative, should the Court find that the Policy is not contrary to the Pension
Act, the Applicant submits that the Board erred in concluding that the
Policy was correctly applied. The Applicant refers to the Entitlement
Eligibility Guidelines which state that "[t]he cause of the hearing loss
cannot be determined from an audiogram alone. The history from the patient, the
physical examination and relevant test results must be considered along with
the audiogram findings". The Applicant contends that it was an error to
rely solely on the audiograms and not look to the other evidence.
Respondent’s Submissions
[16]
Contrary
to the Applicant’s contention, the Respondent submits that the decision
rendered by the Board is consistent with sections 3 and 39 of the VRAB Act. The
Respondent argues that the Board accepted that the Applicant has a disability
and the issue was whether or not a higher pension entitlement was warranted.
[17]
The
Respondent further submits that a tribunal is presumed to have considered all
of the material before it, and is not obligated to refer to each and every
document, particularly if the evidence does not contradict its findings (Murphy
v. Canada (Attorney General), 2007 FC 905, [2007] F.C.J. No. 1184, at paras.
13 and 14). In the Respondent’s view, the additional evidence submitted by the
Applicant confirmed rather than contradicted the Board’s findings. The
Respondent contends that the updated September 2008 audiogram is consistent
with the earlier audiogram which established a disabling hearing loss as of
December 2007. As for the letter from Dr. Longridge (page 132 of the Applicant’s
Record), the Respondent argues that it is consistent with the Board’s
finding that the Applicant’s current hearing loss condition is not entirely
attributable to military-related noise exposure.
[18]
The
Respondent highlights that the Policy acknowledges that for some physical acts
such as hearing, there will be a range of what is considered to be normal.
Where it is established that an applicant’s hearing falls outside the defined
range, the extent of the loss is rated as either disabling hearing loss or
lesser degree of hearing. The Respondent holds that the question of whether an
applicant has a hearing loss disability is governed by the definition of
"disability" in section 3(1) of the Pension Act. The
Respondent advances that this is consistent with the decision in Nelson,
and that the application of the definition necessarily requires a standard or
measure of what constitutes normal hearing.
Analysis
Standard of
review
[19]
Since
the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, there are two standards of review – reasonableness
and correctness. In view of Dunsmuir, it is not necessary to conduct the
standard of review analysis if jurisprudence has already determined the degree
of deference to be accorded to a question (at paras. 62 and 63).
[20]
The
question as to whether the definition of "disability" applied
pursuant to a departmental policy to be consistent with the Pension Act
has been held to be a question of law reviewable on the correctness standard (see:
Nelson at paras. 37 and 38).
[21]
This
Court has held that the interpretation of medical evidence and the assessment
of an applicant’s disability are determinations that fall within the Board’s
specialised jurisdiction and should be approached with deference (Yates v.
Canada (Attorney General), 2003 FCT 749, 237 F.T.R. 300). Such issues
are questions of fact or mixed fact and law and subject to review on the
standard of reasonableness (Dunsmuir, at para. 51).
[22]
In
applying the standard of reasonableness, the Court will only intervene if the
decision does not fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir, at para. 47).
Did the Board err in the
consideration of the medical evidence?
[23]
The
Applicant’s pension entitlement in respect of his military service is pursuant
to section 21(2) of the Pension Act. Section 35 provides that the amount
of the pension for a disability shall be determined in accordance with the
assessment of the extent of the disability, which shall be based on the
instructions and a table of disabilities to be made by the Minister.
[24]
The
instructions and the table of disabilities specific to hearing loss are set out
in the Entitlement Eligibility Guidelines: Hearing Loss and the Table
of Disabilities – Chapter 9: Hearing Loss and Ear Impairment, to which I
will refer collectively as the Policy. The Policy establishes normal hearing as
being where there is a decibel loss of 25 dB or less at all frequencies between
250 and 8000 hertz (page 2). A disabling hearing loss is "when there is a
Decibel Sum Hearing Loss (DSHL) 100 dB or greater at frequencies of 500, 1000,
2000 and 3000 Hz in either ear, or 50 dB or more in both ears at 4000 Hz"
(page 2). Whereas a lesser degree of hearing exists where the decibel loss is
"greater than 25 dB at frequencies between 250 and 8000 hertz, and this
loss is not sufficient to meet VAC's definition of disabling hearing loss"
(page 2). Partial entitlement will be awarded where a disabling hearing loss is
not entirely attributable to military service. The Policy provides that "[a]
disabling hearing loss can be considered to be partially caused by service
factors, when there is decibel loss greater than 25 dB evident on the discharge
audiogram in at least one of the frequencies between 250 and 8000 Hz; and a
disabling hearing loss is established after discharge" (page 2). The presence
of a hearing loss and the type of hearing loss may be determined from an
audiogram. The Policy further provides the cause of the hearing loss cannot be
determined from an audiogram alone. The history from the patient, the physical
examination and relevant test results must be considered along with the
audiogram findings (page 2).
[25]
In
the case at bar, it is well accepted that the Applicant has a disability, the
dispute arises from the assessment of the pension determined in accordance. The
one-fifth entitlement stems from the fact that it has been determined that the
Applicant did not have a disabling hearing loss at the time of discharge, as
demonstrated by the 1992 audiogram, and the disabling hearing loss was only
established in 2007 (Applicant’s Record at page 71).
[26]
The
Applicant submits that he provided new evidence to the Board which shows that
his disabling hearing loss is directly linked to his military service and
reasons that he is entitled to an increased pension. Each party has presented
their own interpretation of this medical evidence, however, I would specify
that it is not the role of this Court to interpret the evidence in relation to
the claim, but rather to review whether or not the Board erred by not referring
to it. Bearing in mind that the Board is presumed to have considered all of the
material before it and is not obliged to refer to every document,
particularly if the evidence does not contradict its findings (see: Murphy
at paras. 13 and 14).
[27]
With
regard to the September 2008 audiogram not mentioned by the Board, I find that
it is consistent with the earlier audiogram which established a
disabling hearing loss as of December 2007, and the Board accepted that
the Applicant’s disabling hearing loss occurred after his discharge. It is not
contrary to the Board’s findings and the Board did not err by failing to
mention it.
[28]
As
for the letter from Dr. Longridge, I note that this was a new piece of evidence
and it was not provided to the previous levels of decision-makers, and there is
no similar letter in the certified tribunal record. The letter contains the
following statement:
[…] Hearing is at a mild to moderate
sensorineural loss in the high tones. He has a history of noise exposure in the
military, had never done anything significant in the way of noise exposure
since, so the changes are the progressive effect of his existing
sensorineural damage. The beginning of aging hearing loss is probably
compounded by the already existing noise damage from noise. (Applicant’s Record, page 132)
[29]
As
explained above, the Policy provides for a partial entitlement in cases where
disabling hearing loss is not present at the time of discharge, but manifests
itself later on. It also provides that the cause of hearing loss cannot be
determined by audiogram alone, but should also include the patient’s history
and other information. Here we have medical evidence advancing the opinion that
the Applicant’s current state of hearing loss is a progression of the effects
caused by earlier damage and that he has lived a relatively noise-free life
since his discharge. In light of the Policy, this evidence should have been
analysed by the Board in reaching its decision as to whether or not the
evidence justified an increase in the Applicant’s pension entitlement and a
departure from the Policy. The Board erred by not considering this medical
evidence and relying solely on the audiograms.
Did the Board err in
finding that the Policy is not in contravention of the Pension Act?
[30]
In
Nelson, it was found that there was an inconsistency between the
definition of "disability" in subsection 3(1) of the Pension Act
and chapter 9 of the Table of Disabilities (see also Nelson v. Canada
(Attorney General), 2007 FCA 200, 365 N.R. 267 [Nelson (F.C.A.)]).
At the time, chapter 9 of the Table of Disabilities required that:
A disability is established:
(i) When
the Pure Tone Average (PTA)1 over the 500, 1000, 2000 and 3000 hertz
frequencies is 25 decibels or more for either ear;
or
(ii) when
the above criteria is not met, and there is a loss of 50 decibels or more at
the 4000 hertz frequency in both ears.
Once a disability is established, the
type of hearing loss and its relationship to service must be determined.
Generally, entitlement will be awarded
for bilateral hearing loss unless there is compelling evidence of disability in
one ear only that is attributable or directly connected to service. (Reproduced
in Nelson, at para 33.)
[31]
In
that case, the Board found that an applicant who did have hearing loss, but did
not meet the above definition, was not entitled to a pension as he did not have
a disability in accordance with the definition. The application of that
definition of disability instead of the definition under the Pension Act
was found to be an error of law.
[32]
The
Policy has been revised since the decision in Nelson (Applicant’s Record,
pages 173 to 178), and now sets out a range for normal hearing and establishes
ranges for disabling hearing loss and a lesser degree of hearing. The Applicant
submits that the current Policy is still in contravention of the Pension Act
and ignores the rationale in Nelson.
[33]
Subsection
3(1) of the Pension Act defines disability as "the loss or
lessening of the power to will and to do any normal mental or physical
act". Once the disability is established, the extent of it must be
assessed in order to determine the amount of the pension. That assessment of
the extent of the disability must be based on the guidelines and a table of
disabilities to be made by the Minister for the guidance of persons making
those assessments (s. 35(2)).
[34]
In
my view, the application of the definition of disability under the Pension
Act necessarily requires that a standard be set out as to what constitutes
normal hearing. The definition states that there will be a disability if there
is a loss or lessening "of the power to will and to do any normal
mental or physical act" [emphasis added]. In setting out such a standard,
the Policy does not set out a different or contrary definition of disability.
Rather, it defines a range for normal hearing which is necessary to show that
there has been a loss or a lessening of it and thus, a disability which
entitles an applicant to a pension. This is necessary in order to provide some
frame of reference for adjudicators deciding claims. This is not contrary to
the Pension Act or the decision in Nelson. Furthermore, the
Policy clearly sets out that it is not binding. Accordingly, there is
discretion for the adjudicator deciding the claim to depart from the standard
under the Policy.
[35]
As
for the distinction between a lesser degree of hearing and hearing loss, the Pension
Act provides that an assessment of the extent of the disability is to be
conducted in order to decide the pension entitlement. These categories are part
of the assessment process and do not replace the definition of disability under
the Pension Act. There is no question that the Minister can establish
guidelines as to the assessment of the extent of a disability (Nelson, at
para. 38).
Did the Board err in
applying the Policy?
[36]
In
view of my conclusion on the first question at issue and the consideration of
the evidence, it is not necessary for me to answer this question which
essentially deals with the same issue.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be granted. The matter is remitted for redetermination by a
newly constituted Board. Costs are awarded to the Applicant by way of a lump
sum in the amount of $1,500.
“Michel
Beaudry”
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