Date: 19980804
Docket: T-2222-97
BETWEEN:
IAN M. MACNEILL
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE CANADIAN PENSION COMMISSION AND
PENSIONS REVIEW BOARD CANADA AND
THE VETERANS REVIEW AND APPEAL BOARD CANADA
Respondents
REASONS FOR ORDER
NADON J.:
[1] This application for judicial review was commenced by the applicant pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985 c. F-7 as amended. The applicant seeks an order setting aside a decision of the Veterans Review and Appeal Board (hereinafter VRAB) dated September 12, 1997 in which the applicant"s request of reconsideration of entitlement to benefits was dismissed.
[2] The applicant is a 63-year-old veteran of the Royal Canadian Air Force, serving from September 17, 1953 until his discharge in November 1965. Prior to enlisting with the Royal Canadian Air Force, he served with the Royal Canadian Navy (regular forces) in 1952 but was released after 7 months because he had been found to be temperamentally unsuited to naval life.
[3] During his service in the Air Force, the applicant worked primarily in munitions as a weapons technician. He served both in Canada and overseas, the latter service being between 1957 and 1961. During that time, while the applicant had some complaints of physical ailments, the applicant was never diagnosed as suffering from anxiety. However, the applicant was subsequently diagnosed as suffering from anxiety and it is this ailment which forms the basis for his application for a pension. After 1961, the applicant returned to Canada where he worked in an Argus squadron dealing with torpedoes and bombs.
[4] Beginning in 1964, the applicant exhibited some symptoms of anxiety and began receiving psychiatric treatment. By the end of that year, he was diagnosed with passive aggressive personality disorder. His anxiety continued and by June 1965, his tolerance to stress was still limited. On the basis of his medical condition, the applicant was found to be unfit for service and was accordingly released on medical grounds.
[5] It is also relevant to note that during his service, the applicant was experiencing financial difficulties, as he owed approximately $3000.00 in 1964.
[6] After his release, the applicant obtained employment in various fields and also ran his own businesses. All of these businesses ventures ended in bankruptcy. During his post-discharge period, the applicant has filed for bankruptcy three times.
[7] The applicant did not apply for pension benefits until 1984. While it is not for this Court to review the validity of the earlier decisions made with respect to the applicant"s application for benefits, it is necessary to examine the findings of each panel in order to understand the rationale and meaning of the impugned decision (see MacKay v. Canada (Attorney General) (1997), 129 F.T.R. 286 at 297-298).
[8] The initial decision of the Canada Pension Commission dated July 5, 1984 refusing the applicant"s request was based on the following reasoning:
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...The first diagnosis of anxiety was made in March 1964 and this was related to financial worries and just prior to release and following nine months of psychotherapy, a psychiatric consultant made the diagnosis of psychoneurotic disorder, mixed, chronic. The applicant submits that his nervous disorder is related to the stresses of being in the armaments section and gave a history to the psychiatrist of phobic reactions to explosives, records of the time from psychiatrists and his annual assessment show no indication that the applicant"s stresses were job related. On the contrary, it appears very clear that the major stresses were financial as documented in his confidential HQ file. |
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His financial difficulties continued in the post-discharge period with three bankruptcies. The psychiatric examination and the report of a psychiatric consultant of 28 September 1983, again revealed a history of multiple fears and pre-occupation with death since childhood and of heavy drinking until 1971. |
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The Commission finds based on the medical evidence, that the applicant"s psycho-neurosis pre-existed both periods of service in the Regular Force and that the exacerbations of the neurosis during service occurred on account of reasons which cannot be related to his duties during Regular Force service. The Commission cannot given [sic] favourable consideration to this application. |
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Not pensionable as neither the condition nor any aggravation thereof arose out of, or was directly connected with military service in peacetime.
[9] Thus, the applicant"s initial request for a pension was refused on the basis that the applicant was pre-disposed to the condition and that the exacerbation of the condition was possibly related to financial difficulties experienced during the applicant"s service but certainly not to his professional duties.
[10] It is also important to highlight the paragraph of the psychiatric consultant"s report upon which the initial decision was based. That report states:
Reviewing this man"s past psychiatric history, I am of the opinion that during the latter part of his service in the Air Force, he had developed a phobia for working with explosives which caused his acute panic attacks. I can not comment on the particular dynamics or circumstances, triggering his phobias[.] He obviously had a predisposing personality with anxiety symptoms prior to his experience in the Air Force and most likely the reason for his dismissal from the navy earlier on. Regarding the long-term effect of his service life, it seems to me that having been removed from phobic situations he has been "cured" of his acute panic attacks, but over the preceding years he has continued to experience psychophysiological symptoms of anxiety, requiring treatment.
[11] The medical opinion written for the Canadian Pension Commission on May 28, 1984 states that:
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While in his present submission the veteran related his nervous disorder to the stresses of being in the armaments section and he gave a history to the psychiatrist (Exhibit 40) of phobic reactions to explosives, records of the time from psychiatrists and his annual assessment show no indication that his stresses were job related. Rather, it appears very clear that the major stresses were financial as documented in his confidential HQ file (Exhibit 43). |
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It is clear that this man"s psychoneurosis pre-existed both periods of service in the Regular Force and that exacerbations of the neurosis during service occurred on account of reasons unrelated to his duties during Regular Force Service.
[12] The applicant appealed this decision to the Entitlement Board of the Canada Pension Commission. On January 27, 1986 the Entitlement Board rendered its decision dismissing the applicant"s appeal based on the following reasoning:
After a thorough and complete review of the evidence on file and the testimony by the veteran, which is much the same as the written evidence in the file prior to the First Decision dated 5 July 1984, and (sic) concludes that the applicant"s psychoneurosis claimed condition pre-existed both periods of service in the Regular Force and that any related medical problems to the claim condition during service occurred on account of reasons which cannot be related to his duties during Regular Force service. The Commission regrets that it cannot give favorable [sic] consideration to this application and so rules.
[13] No mention is made in the decision of the applicant"s financial difficulties. The decision merely reiterates that duties in the Royal Canadian Air Force were not the cause of the illness nor did those duties exacerbate his condition.
[14] The applicant further appealed this decision to the Pension Review Board. In its decision dated June 2, 1987, the board reasoned that:
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The latest consultation in psychiatry dates back to September 28, 1983. According to this consultant, he was of the opinion that during the latter part of the appellant"s service in the Air Force, he had developed a phobia for working with explosive[s] which caused acute panic attacks from which, apparently, he had been cured, although the appellant continued to experience psycho physiological symptoms of anxiety, requiring treatment. |
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Nowhere in the documentation is the appellant"s trade deemed to have been responsible for his condition other than, possibly, to bring on acute attacks, from which he appears to have recovered. It has been advanced that the appellant"s financial difficulties were at the source of his anxiety. Whether or not this is so, this Board is unable to determine, but it is convinced, from the available evidence, that the appellant"s trade did not contribute other than on a temporary basis, to his psychoneurosis. Therefore the decision of the Entitlement Board is confirmed.
[15] This third decision is premised on the finding that the applicant"s condition is not pensionable, as the applicant is no longer suffering from acute panic attacks and only these acute attacks were related to the applicant"s professional duties.
[16] The applicant sought reconsideration of this decision in 1996 based on a psychiatric report of Dr. Basil Orchard. In this report, Dr. Orchard concludes that:
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...the subject still does suffer from anxiety from time to time, but the acute panic attacks and phobias of death have resolved since leaving the military. |
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It is my further opinion that his financial difficulties while in the military service were not an adequate cause for the severity of his symptoms in the last year of his service. Thus, it is my opinion that it is very likely that his psychiatric difficulties were related to the high pressure of his job in the military service, either causing them or exacerbating them.
[17] The VRAB issued its reconsideration decision on May 1, 1996, wherein it was stated that the Board was not convinced that it was the applicant"s military service which caused or exacerbated his condition. The Board did accept that the applicant"s condition itself was pensionable if the applicant could bring himself within the parameters of the relevant legislation.
[18] Pursuant to s. 25 of the Act, the applicant appealed this decision, again to the VRAB, and the appeal was dismissed. It is this decision, dismissing the applicant"s appeal, which is presently under review.
[19] At the outset, it is noted that section 31 of the Veterans Review and Appeal Board Act S.C. 1995, c. 18 provides that:
A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
[20] A similar provision was contained in the predecessor to this Act, the Veteran Appeal Board Act, R.S.C. 1985, c. F-7 as amended.
[21] In Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314, Heald J. determined that the predecessor to this section does not mandate deference to the Board in the area of medical matters, as the Board members have no particular expertise in that field. At 316, Heald J. writes:
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.
[22] Even though the Board may not have expertise in medical matters, weighing evidence and issues of credibility remain in the domain of the Board and should not be disturbed by this Court acting in review unless it can be demonstrated that a reviewable error exists.
[23] The following provisions of s. 21 of the Pension Act, R.S.C. 1985, c. P-6 are relevant to this application:
| 21(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,
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21(2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l'armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix :
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| (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; |
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| a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l'annexe I pour les pensions de base ou supplémentaires, en cas d'invalidité causée par une blessure ou maladie " ou son aggravation " consécutive ou rattachée directement au service militaire; |
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| (2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.
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(2.1) En cas d'invalidité résultant de l'aggravation d'une blessure ou maladie, seule la fraction " calculée en cinquièmes " du degré total d'invalidité qui représente l'aggravation peut donner droit à une pension.
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| (5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who
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(5) En plus de toute pension accordée au titre des paragraphes (1) ou (2), une pension est accordée conformément aux taux indiqués à l'annexe I pour les pensions de base ou supplémentaires, sur demande, à un membre des forces, relativement au degré d'invalidité supplémentaire qui résulte de son état, dans le cas où :
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| (b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a) |
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b) d'autre part, il est frappé d'une invalidité supplémentaire résultant, en tout ou en partie, de la blessure, maladie ou aggravation qui donne ou aurait donné droit à la pension.
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| shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.
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| [Emphasis added]
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[Le souligné est le mien]
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On the basis of the paragraphs noted above, two conditions must be met before the applicant can be said to be entitled to a pension. First, the applicant"s condition must be pensionable. In that regard, it must be a condition which can be classified as a "disability" resulting from an injury or disease. In my opinion the word "disability" requires that the condition be one from which the applicant continues to suffer. Second, the original condition must arise directly from the applicant"s military service. After carefully reading the provision I have concluded that the applicant"s military service must be the primary cause for the disability. However, the Act also provides that a pension may be awarded if the disability is aggravated by the applicant"s military service. In either case, causation must be established and, in absence of evidence to the contrary, causation is presumed if the injury was incurred during the course the applicant"s service. This presumption operates as a result of subsection 21(3) of the Act which provides that:
| 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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| (f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member. |
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| f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces; |
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[24] In the case at bar, the VRAB made determinations on the two conditions. While the VRAB accepted that the applicant"s disability is one which is pensionable, that is a disability resulting from injury or disease, the board was not convinced that this disability arose out of or was aggravated by the applicant"s service. The Board concluded that:
In the letter of 19 March 1997, Dr. Orchard reiterates his previous findings. While the Board accepts that the condition was diagnosed during the Appellant"s Regular Force service, this new medical evidence does not counter the lack of evidence in the service file with respect to any evidence that job-related stresses rather than financial stresses were the major factor in his illness. The evidence on file during the Appellant"s periods of service as well as the psychiatric consultations recorded do not support the findings of Dr. Orchard some 30 years post discharge.
[25] Furthermore, the earlier decision of the VRAB dated May 1, 1996, upon which this latter decision was based provides that:
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...this Board agrees with the ... Medical Report dated May 28, 1984, that the exacerbations of the neurosis are unrelated to his duties during his Regular Force service. |
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...the new medical evidence does not support the Advocate"s contention that there is a reasonable doubt that the Appellant"s condition was either caused by or exacerbated by his Regular Force service. The Board is in agreement with the findings of the Pension Review Board Decision dated June 2, 1987 that the Appellant"s military service did not contribute, other than on a temporary basis, to his psychoneurosis.
[26] Thus it cannot be said that the board did not make the two determinations required.
[27] However, the applicant contends that the board erred by not accepting the medical evidence of Dr. Orchard and instead, preferring that of a medical consultant written 10 years earlier. The applicant also argues that the board failed to take into account sections 3 and 39 of the Veterans Review and Appeal Board Act which provide that reasonable inferences must be drawn on behalf of the applicant in cases of doubt.
[28] Sections 3 and 39 of the Veterans Review and Appeal Board Act read:
| 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.
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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.
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| 39. In all proceedings under this Act, the Board shall |
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39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve :
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| (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; |
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| a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; |
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| (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and |
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| b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence; |
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| (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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| c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande. |
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[29] These sections do not, however, require the Board to accept all evidence presented by the applicant: only uncontradicted evidence which is credible must be statutorily accepted. In the case at bar, there was evidence contradicting the applicant"s statements that his condition was caused or exacerbated by his service, particularly the applicant"s financial concerns and his previous medical reports. Thus the Board was entitled to rely upon the evidence to that effect.
[30] The applicant cites MacKay v. Canada (Attorney General) (1997), 129 F.T.R. 286 and Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 for the proposition that when faced with a medical opinion, the board must accept the evidence or, if it fails to accept the evidence, must state reasons why it does not find the evidence credible. However, in both those cases, the evidence presented was uncontradicted, mandating that the board make a credibility finding in order to disregard that evidence. Those situations are unlike the case at bar. In Brychka v. Canada (Attorney General) (T-1695-96)(February 2, 1998) MacKay J. noted, when faced with contradictory medical evidence, that the board is entitled to reject medical evidence which it does not find to be credible.
[31] In this case, the VRAB did not find the diagnosis of Dr. Orchard credible in light of the previous reports written by medical practitioners in which the applicant"s medical history was recorded and in light of the considerable time which had elapsed from the time the disability arose until the time of the applicant"s claim. This finding ought not be disturbed.
"MARC NADON"
Judge
Ottawa, Ontario
August 4th, 1998
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