Yates v. Canada (Attorney General), 2002 FCT 111

Date: 20020129

Docket: T-1633-00

                                                           Neutral Citation: 2002 FCT 111

      IN THE MATTER OF THE VETERANS REVIEW AND

                             APPEAL BOARD OF CANADA

BETWEEN:                                                                                                                 

                                       DAVID F.J. YATES

                                                                                                   Applicant

                                                    - and -

   ATTORNEY GENERAL OF CANADA AND REGISTRAR,

VETERANS REVIEW AND APPEAL BOARD OF CANADA

                                                                                           Respondents

                                  REASONS FOR ORDER

HANSEN J.

[1]    This application for judicial review concerns the assessment of the level of disability stemming from the applicant's pensioned condition of diabetic retinopathy.

[2]    The applicant seeks review of the August 18, 2000 Assessment Appeal decision of the Veteran's Review and Appeal Board ("VRAB").

Background

[3]    The applicant is a former member of the Royal Canadian Mounted Police ("RCMP"). In 1983 he was diagnosed as an insulin-dependant, Type-1 diabetic. On March 11, 1991 the VRAB determined that the applicant's condition, diabetes mellitus, was pensionable at one-fifth for the portion of the disability arising of his RCMP service. This partial pension entitlement was assessed at 40%.

[4]    The applicant was subsequently diagnosed as having diabetic neuropathy and diabetic retinopathy. On March 30, 1998 the Minister of Veterans Affairs found that both of these conditions were pensionable as "consequential to the pensioned condition of diabetes mellitus". However, the applicant's level of disability for diabetic retinopathy was assessed at nil.

[5]    A July 15, 1998 review of the new medical information submitted by the applicant's opthamologist resulted in a confirmation of the nil assessment. The medical opinion noted the applicant's best-corrected visual acuity was 20/20 bilaterally and that the pension disability assessment is based on the level of visual acuity.

[6]    The departmental review conducted on July 24, 1998 also confirmed the nil assessment.

[7]                 Prior to the Assessment Review held on February 18, 2000, the VRAB directed that a pension medical examination be conducted. On April 21, 1999, the applicant underwent this examination by Dr. Hilderman, Senior District Medical Officer with Veterans Affairs Canada. Dr. Hilderman also wrote to the applicant's opthamologist, Dr. Kwan, requesting further information regarding the impairment of the applicant's visual fields and the results of any tests that could quantify the degree of loss of peripheral vision and depth perception. Dr. Hilderman, in this letter, also explained that "a pensioner, as long as he has visual acuity of 20/20, would not receive any assessment with regards to his retinopathy..."

[8]                 In his response dated April 29, 2000, Dr. Kwan confirmed the applicant's visual acuity was 20/20. Dr. Kwan also sent the results of two other tests to Dr. Hilderman

[9]                 The first test, aimed at detecting any loss of peripheral vision, produces a graphic depiction of the visual fields of each eye. Both of these diagrams were forwarded to Dr. Hilderman without interpretation by Dr. Kwan.

[10]            The second test, for depth perception, is known as the "stereo litmus test". It showed a "positive fly, 3/3 animals and 5/9 of the circles". Dr. Kwan explained that 5/9 circles corresponds to 100 seconds of stereopsis.

[11]            The Assessment Review Board, in a decision dated February 18, 2000, confirmed the nil assessment. At this hearing, the applicant and his advocate argued that "the factors concerning depth perception, peripheral vision, and pressure build-up within the eyeball, all of which are causing the applicant some problems, should be factors for consideration in the assessment of the condition". The Board simply relied on the opinion of Dr. Hilderman, who, on reviewing the evidence provided by Dr. Kwan, had not recommended a change in the level of assessment.

[12]            At an Assessment Appeal hearing held in Charlottetown on July 13, 2000, the decision of the Assessment Review Board was affirmed. In the reasons for the August 18, 2000 decision, the VRAB outlines the applicant's submissions including the inappropriateness of the visual acuity test in his case, the complications suffered by the applicant, and the unreasonableness of the Senior District Medical Officer's (Dr. Hilderman) recommendation. The VRAB concludes that, after carefully considering all of the evidence, the applicant is "appropriately assessed at this time when applying the Veteran Affairs Canada Table of Disabilities". This is the decision now under review.

Analysis

[13]            The Veteran's Review and Appeal Board Act, S.C. 1995, c.18 (the "Act") and the Pension Act, R.S.C. 1985, c. P-6 govern decisions made with respect to veterans' pensions. Sections 3 and 39 of the Act are particularly relevant and read as follows:

[14]            Section 35 of the Pension Act, provides that the calculation of the amount ofhe pension is to be determined by an assessment of the extent of the disability resulting from the pensionable condition. An assessment of the extent of a disability is based on the Table of Disabilities established by the Minister. The relevant provisions of section 35 state:     

In effect, the Table of Disabilities provides a mechanism for quantifying the extent of the disability. Pelletier J. considered the purpose of the Table of Disabilities in King v. Canada (Attorney General) [2000] F.C.J. No. 196 (T.D.). He notes at paragraph 17 that subsection 35(2) makes it clear that "... the Table of Disabilities is provided for the guidance of physicians and surgeons, no doubt to promote a uniform standard for assessment...".

[15]            The applicant argues that a lessening of visual acuity is not one of the consequences of diabetic retinopathy nor is it the disabling aspect of the disease in his case. He states that his claim is based on the impairment of his field of vision and, in particular, his depth perception. Accordingly, the VRAB's finding of a "nil assessment" is perverse since it is based on an assessment of the extent of a disability unrelated to his condition.

[16]            The applicant points to a letter written by Dr. Kwan dated November 18, 1998. Dr. Kwan explains:

Diabetic Retinopathy is one of the most frequent causes of new blindness in North America. It occurs as a complication of diabetes in which there are abnormal changes in the eyes... Diabetic retinopathy is a separate condition from visual acuity and having 20/20 vision does not mean that there is no diabetic retinopathy...

[17]            The respondent contends that the VRAB, by virtue of section 35 of the Pension Act, must apply the Table of Disabilities. The respondent submits the onus is on the applicant to demonstrate that the extent of his disability comes within the Table of Disabilities. The respondent relies on Gavin v. Canada (Attorney General), [1999] F.C.J. No. 676 (T.D.), where McKeown J. considered subsections 35(1) and (2) of the Pension Act and concluded at paragraph 8:

Thus the Guidelines are specifically authorized by legislation. ... The Board, in following the Guidelines on when a pension becomes payable, did not fetter its discretion and did not commit a reviewable error.

He continued at paragraph 11 to note:

... The onus is on the applicant to show that his case meets the Guidelines and have a doctor address the concerns set out in Guidelines. Alternatively, he must have a doctor set out in a medical report the reasons why the Guidelines may not be applicable in this particular case...

[18]            In my opinion, the reasons in Gavin, supra, do not apply to the facts in the present case. In Gavin, the VRAB had found that there was no evidence to establish the applicant had a hearing loss disability at the time of his release from the RCMP. As well, the applicant's audiograms did not disclose a hearing loss disability as defined by the Minister's Guidelines. The Court, on judicial review, found that even if the hearing loss was caused by his service in the RCMP, the degree of the hearing loss did not meet the level required to receive compensation.

[19]            In the present case, the applicant is not arguing that the level of his visual acuity warrants compensation, instead he argues that level or degree of his visual acuity is an irrelevant consideration.      

[20]            Disability is defined in section 3 of the Pension Act as "the loss or lessening of the power to will and do any normal mental or physical act". The applicant maintains he suffers from a lessening of his ability to perform normal acts, such as golfing, bowling, driving at night, walking on uneven surfaces, and stepping onto curbs. He further asserts that these problems are a result of a lessening of his depth perception and field of vision and are unrelated to visual acuity.

[21]            In fact, all of the medical evidence that was before the VRAB supports the applicant's contention that a visual acuity test could not produce an accurate reflection of the extent of his disability arising from diabetic retinopathy. According to that evidence, hemorraghing is the most significant consequence of the condition and it may also lead to a sudden loss of vision. The symptoms of the condition include the following visual effects:    episodes of blurred vision, sudden loss of vision in one or both eyes, and black spots or flashing lights in the field of vision. Cecil's Textbook of Medicine, 20^th Edition at 1273, when describing the "exudates" or lesions and swellings caused by the hemorrhaging associated with retinopathy, notes that "these lesions do not generally affect visual acuity".

[22]            Upon review of the Table of Disabilities and the instructions regarding its use, I can see no apparent direction that requires the VRAB to use a measure of visual acuity to assess the extent of every disability associated with the eye.

[23]            In my view, the VRAB in affirming the finding of a nil assessment ignored relevant evidence and based its decision on an irrelevant consideration, namely, a measure of visual acuity. For these reasons the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.

                                                                                "Dolores M. Hansen"            

                                                                                                      J.F.C.C.                       

Ottawa, Ontario

January 29, 2002