Veterans Legislation and Policies
Career Impact Allowance
Notwithstanding the fact that VAC has converted the former Career Impact Allowance provision into the Additional Pain and Suffering Compensation benefit, it remains the position of NCVA, in concert with the Policy Advisory Group, that the department should revisit the concept of CIA and address the future loss of income suffered by a disabled veteran on the basis of the following fundamental question – "What would the disabled veteran have earned in his or her projected military career if the veteran had not been injured?"
It will be recalled that it is the position of the Policy Advisory Group, as endorsed by the longstanding view of NCVA, that, once this benchmark for CIA is established, a newly structured benefit be developed as delineated in various reports emanating from the Veterans Ombudsman's office over recent years and as proposed by the New Veterans Charter Advisory Group in 2009. The evaluation of the Veterans Ombudsman demonstrates the relative predictability of the elevation of a CAF member through his or her military career in recognizing the specific ranks the member would have achieved had the member not been injured. (For an extensive discussion on this subject refer to pages 7 through 9 of the NCVA Legislative Report of 2016.)
It is also of considerable import that the Canadian Civil Courts over the last number of decades have evaluated the plight of severely injured plaintiffs by consistently applying the concept of future loss of income in assessing monetary damages. In a similar fashion to the proposals emanating from our Policy Advisory Group on Career Impact Allowance, the courts consider the probable career earnings of an injured plaintiff from the perspective of future loss of income or, alternatively, future loss of earnings capacity as part and parcel of the damage award granted to plaintiffs in the Canadian judicial system.
It is of interest that, in the context of VAC, the department has a distinct advantage over the courts, as the judicial system only has "one bite at the apple" at the time of the court hearing or settlement. VAC, on the other hand, is able to monitor the income position of a disabled veteran throughout his or her life to determine the differential between the benchmark established by the CIA concept and the actual income received by the veteran. Query: why should an injured Canadian veteran receive less than an injured plaintiff with reference to "future loss of income"? We have, in effect, paralleled the Disability Award under the NVC/VWA with general damage awards in the Canadian courts – why not replicate the philosophy of the future loss of income concept as well?
New Veterans Education and Training Benefit
It is the opinion of VAC and, more particularly, Deputy Minister Walt Natynczyk, that this program represents a landmark proposal which substantially enhances the Education and Training Benefit for all eligible veterans. The Deputy Minister suggested at the time of the formal announcement that it was based on the United States G.I. Bill in relation to extending educational benefits beyond disabled veterans so as to include all released veterans who qualify under this new program.
The benefit will be available for ten years going forward following the release of the veteran and will be retroactive to April 1, 2006. Unfortunately, veterans released from the CAF prior to 2006 will not qualify for this benefit which, in my judgment, reflects a rather arbitrary cut-off date and conceivably is a government decision founded on budgetary constraints.
This program was initiated on April 1, 2018 for all veterans honourably released on or after April 1, 2006 – veterans with six years of eligible service will be entitled to up to $40,000 of benefits, while veterans with twelve years of eligible service will be entitled to up to $80,000 of benefits. The Minister/Deputy Minister emphasized that the benefit would provide more money for veterans to go to college, university, or technical school after they complete their service.
There is little question that this newly expanded educational benefit is potentially beneficial to a much larger segment of the veterans' community. My one caveat is that the "devil is often in the details" and questions of eligibility criteria have to be examined closely and, in addition, it is necessary to determine whether the rather restrictive policy in the past regarding educational programs for disabled veterans has been addressed and if more liberal access in general will be achieved by this initiative.
It is also important to understand whether a released veteran wishing to take advantage of the educational benefit will be covered through some form of income replacement program to address the potential diminishment in income received for the maximum four‑year period, i.e. will the SISIP LTD program or the VAC IRB program accompany this educational benefit particularly for disabled veterans who might qualify though this REHAB/Education Program?
Deputy Minister Natynczyk also indicated that, for those veterans who find education is not their solution, there would be further monies available under this program for career development courses in the neighbourhood of $5,000 per veteran.
Partial Disabilities
In early 2018, VAC created a new policy with reference to partial entitlement flowing from veterans' legislation, i.e. disabilities arising in part out of military service or consequential disabilities arising in part from a primary disability.
The VAC policy amendment established a principle that any partial entitlement award would either be granted at four‑fifths or five‑fifths. In the past, fractional entitlements in this context were granted in fifths – one‑fifth, two‑fifths, three‑fifths et al. The backgrounder information given to our Advisory Group from VAC indicated that these fractional entitlements were often appealed one‑fifth at a time, clogging up the entire VAC adjudicative system. It was felt that it would be prudent to simply eliminate the one‑fifth, two‑fifths and three‑fifths entitlements and grant a four‑fifths for any partial entitlement award.
This is clearly a beneficial policy insofar as a substantive increase in pension to be received by a veteran, but we felt it was important to raise a number of questions following the introduction of this amendment:
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Will these fractional entitlements be granted retroactively to all veterans who have received a one‑fifth, two‑fifths or three‑fifths entitlement in the past? It was established by VAC that this will not be done automatically but will only be triggered by individual veterans initiating a review of their files by the department in order to achieve a potential increase in their fractional entitlement. NCVA strongly recommends that VAC grant automatic entitlement to those veterans currently in receipt of consequential or partial entitlement rulings at one‑fifth/two‑fifths/three‑fifths to a four‑fifths level of assessment. This will also alleviate the significant backlog of the numerous appeals with respect to fractional awards that are currently in the VAC adjudicative system.
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Will there eventually be any limitation period as to how far back this form of increased fractional entitlement will be granted, given the magnitude of appeals that have been generated by this new policy?
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Will the standard of assessment be more stringent when it is recognized that the partial entitlement award will be granted at a minimum of four‑fifths – in the past, one‑fifth awards were occasionally granted on the basis of giving the veteran applicant the benefit of the doubt – will this relative generosity be altered in the new policy guideline adjudication?
SISIP LTD/VOC‑REHAB Programs
NCVA continues to have a fundamental concern as to whether SISIP LTD for service‑related disabilities should be continued at all or whether it should be eliminated due to the multiple standards which exist not only with the SISIP LTD program but also the SISIP VOC‑REHAB program.
One of the priority recommendations of NCVA, the Ministerial Policy Advisory Group, the New Veterans Charter Advisory Group, numerous veteran consultation groups, the Standing Committee on Veterans Affairs and the Veterans Ombudsman's office for many years has been to suggest that the insurance culture needs to be removed from the compensation made available to veterans and their families. The compensation of veterans and their dependants should not be a function of the insurance industry whose mandate, in many situations, is to minimize exposure of the insurer's policy when applied to injured or disabled individuals.
As a matter of background, a fundamental commitment made by the Government at the time of the enactment of the New Veterans Charter was the recognition that the SISIP LTD program should be eliminated and fully replaced by a liberalized income replacement loss benefit administered by VAC. The constraints placed on the NVC/VWA by the restrictive provisions of the SISIP LTD program and the SISIP VOC‑REHAB program are felt in the present context and should be removed as soon as possible. This Government commitment made by the Minister and Deputy Minister of the day was part and parcel of the understanding between the veteran stakeholder community and VAC in consideration of the immediate passage of the Charter by Parliament in 2006.
It is to be noted that the "wellness program" strongly advocated by VAC and, more particularly, Deputy Minister Natynczyk, is clearly impacted by the fact that the greater majority of medically released CAF members fall under the administration of the SISIP VOC‑REHAB program. In effect, VAC does not have the capacity to control and operate this portion of the VOC‑REHAB program and is left with little accountability as to the impact that the SISIP program will have on veterans in regard to this essential element of the NVC/VWA.
With reference to the question of service and non‑service related disabilities, it has been the experience of the veterans' community that this entire question of whether a member of the Canadian Forces is to be considered "on duty" for the purposes of pensionability either under the Pension Act or the New Veterans Charter/Veterans Well‑being Act has been a longstanding grievance. The regulations in this area would be far clearer and more equitable if the Government/department agreed to adopt the "insurance principle" in this context so that all members of the military would be considered "on duty" at all times and thus eligible for various financial benefits such as the Disability Award and Income Replacement programs once they put on a uniform. This would clear up the potential interpretive issues which are raised in the regulations to the NVC/VWA and would address the confusion and ambiguity which often results when individual hypothetical cases reflect "gray areas" or areas of dispute. The resultant effect of this recognition would also further the objective of eliminating the SISIP LTD program even for non‑service‑related disabilities which, of course, was its original and exclusive mandate in the 1970s when it was first created.
Benefits to Support Families
NCVA remains concerned that the Government has not sufficiently addressed the plight of families, particularly in circumstances where a member of a family, often a spouse, is required to act in the role of a caregiver to a disabled veteran.
As a matter of background, the Family Caregiver Relief Benefit (FCRB) introduced in 2015 proved to be clearly inadequate and certainly required further re‑evaluation, as it failed to comprehensively provide adequate financial support for the families of seriously disabled veterans where significant needs of attendance must be provided by a caregiver who often has had to leave his or her employment to do so.
It is noteworthy that the Caregiver Recognition Benefit replaced the existing Family Caregiver Relief Benefit as of April 1, 2018 and provides a slightly more generous non‑taxable $1,000 a month benefit payable directly to caregivers to ostensibly recognize and honour their vital role. NCVA has raised obvious questions as to why the quantum of the Attendance Allowance or Attendant Care Benefit was not utilized as opposed to the rather meagre $12,000 a year. In addition, we have questioned the fact that this new CRB still requires that rather stringent eligibility criteria be satisfied in order for veterans' caregivers to gain entitlement to this benefit.
It is readily apparent that VAC need not "reinvent the wheel" with regard to such caregiver allowances as:
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DND through its "Attendant Care Benefit" program has provided reimbursement to seriously disabled veterans of Afghanistan for payments made to an attendant to look after the Canadian Armed Forces member on a full‑time basis. This benefit is paid to the CAF member at a daily rate of $100 ($3,000 a month – $36,000 a year). This benefit also implicitly represents a recognition that the financial costs of attendants far exceed the need to address respite. More importantly, a serious question remains in the context of the veteran's transition from DND to VAC as to whether the financial assistance to such families will dramatically drop from the DND program to the VAC FCRB; and
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Alternatively, the Attendance Allowance, founded under the Pension Act, which has been in place for many decades and is a far more generous provision when compared to the FCRB/CRB, produces $15,000‑$22,000 a year of non‑taxable benefits to those veterans in significant need of attendance.
In addition, we have particularly emphasized with Ministerial officials the concern that there should be more flexibility attached to this new Caregiver Recognition Benefit as, clearly, "one size does not fit all." It is not without significance in this area that the grading levels available under the Attendance Allowance provisions of the Pension Act give the department a certain degree of discretion and flexibility as to the attendance needs of individual veterans. In my experience, there are numerous examples where substantial distinctions exist as to the need for attendance encountered by seriously disabled veterans.
It is also of significance that the Ministerial Policy Advisory Group is proposing a new Family Benefit for all veterans in receipt of a Disability Award based on the level of disability assessment which would provide further support to families and address, to a certain extent, the cost of the veteran's disability to his or her spouse and/or dependant children. The amount of this benefit would parallel the payments which have been made under the Pension Act for many years as part of the pension received by a disabled veteran who has a spouse and/or dependant children. Once again, the resultant impact of balancing benefits in this manner under both statutory regimes would be particularly responsive to the current shortcoming in the NVC/VWA insofar as financial assistance to families of disabled veterans is concerned.
Post‑65 Benefits
It is also to be noted that the new legislative amendments emanating from Budget 2018 (which consolidate a number of income replacement provisions into one benefit, the Income Replacement Benefit (IRB)) unfortunately still retain the inadequacies of the Retirement Income Security Benefit (RISB) which was enacted earlier by the former Conservative Government in its attempt to address the post‑65 financial security for seriously disabled veterans and their families. As aforementioned, the new post‑65 benefit provides a limited number of disabled veterans (less than 6 percent) with 70 percent of the Income Replacement Benefit, should the veteran be deemed as suffering a "diminished earnings capacity" as defined under the regulatory provisions of the new Act, less certain potentially significant deductions prescribed by these policy provisions.
In our view, to apply a 70 percent formula to the post‑65 period for a permanently incapacitated veteran based on a public/private sector pension model is not appropriate when it is recognized that the plight of such a seriously disabled veteran post‑65 remains unchanged and his or her financial costs continue to be essentially the same.
During the course of initial discussions surrounding the enactment of these post‑65 provisions, strong arguments were made by NCVA and various veteran stakeholder groups that the full Earnings Loss Benefit/Income Replacement Benefit should be continued for life, particularly given the fact that the principal recipients of this post‑65 "pension" will be totally incapacitated veterans.
It is interesting to note that our Policy Advisory Group recommendations address this specific issue by establishing that a single stream of ELB/CIA payments should be continued for life, as is the case for similar Pension Act benefits, and that the RISB or post‑65 benefit be eliminated – as it is self‑evident that these provisions are far too complex and impact negatively on many seriously disabled veterans and, particularly, surviving spouses.
In addition, the Policy Advisory Group financial compensation model provided that, in the event ELB/CIA is indeed continued for life without deduction, surviving spouses should be entitled to 70 percent of this amount which would equate to the proposed levels of the new Canadian Forces Superannuation Act survivor benefit committed to under an earlier Minister's mandate letter. Although the resultant net effect will not provide as much financial support as the MPAG is recommending, we would confirm that the department has at least implemented a parallel provision in this context providing a survivor benefit of 70 percent for the new consolidated IRB post‑65 benefit under the legislation flowing from the new PFL.
Veterans Legislation and Policies Recommendations
VAC Backlog/Fast-track Protocols
Recommendation
NCVA strongly recommends that VAC accelerate the adoption of fast-tracking protocols/automatic entitlement for outstanding veterans' claims in order to alleviate the backlog and wait times which have only been compounded by the COVID‑19 crisis. The VAC policy statement of June 30, 2020 has ostensibly adopted a number of our proposals including the prospective employment of automatic entitlement for common disabilities, the utilization of presumptions for certain consequential disabilities, and the lessening of the requirement for medical referrals in specific cases. The department's report, however, unfortunately concludes that this will take considerable time to implement.
Recommendation
That NCVA continue to promote the utilization of presumptions in the VAC adjudicative system as outlined in NCVA's 2014 Legislative Agenda, so as to create administrative efficiencies and provide financial savings to the department in this period of budgetary analysis.
Recommendation
N.B.: NCVA welcomed the Liberal election campaign proposal (which ultimately became part of the Minister's mandate letter from the Prime Minister) to automatically award entitlement for PTSD, depression, arthritis et al to expedite the application process and address the significant adjudication backlog currently in existence with VAC, which potentially reflects a good first step in this context.
Recommendation
NCVA supports the Veterans Ombudsman's report, issued in September 2018, with reference to the inordinate delays and turnaround times with regard to applications for veterans' disability benefits and treatment entitlement, in order to address this longstanding concern.
One Compensation/Wellness Model
Recommendation
NCVA takes the position that VAC, working together with relevant Ministerial Advisory Groups and other veteran stakeholders, could think "outside the box" by jointly striving over time to create a comprehensive program model that would essentially treat all veterans with parallel disabilities in the same manner as to the application of benefits and wellness policies – thereby resulting in the elimination of artificial cut‑off dates that arbitrarily distinguish veterans based on whether they were injured before or after 2006.
Recommendation
NCVA adopts the position that much more is required to improve the New Veterans Charter/Veterans Well‑being Act and that the Government needs to fully implement the Ministerial Policy Advisory Group recommendations presented to the Minister of Veterans Affairs and the Veterans Summit in October 2016 (together with the report to the Minister of January 14, 2020) with particular emphasis on:
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Resolving the significant disparity between the financial compensation available under the Pension Act and the New Veterans Charter/Veterans Well‑being Act;
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Ensuring that no veteran under the New Veterans Charter/Veterans Well‑being Act would receive less compensation than a veteran under the Pension Act with the same disability or incapacity in accordance with the "one veteran – one standard" principle;
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Utilizing a combination of the best provisions from the Pension Act and the best provisions from the New Veterans Charter/Veterans Well‑being Act, producing a form of lifetime pension in a much more realistic manner in order to secure the financial security for those veterans who need this form of monetary support through their lifetime;
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Addressing the ongoing layering of legislation and incremental changes over the years, ostensibly without consistent objectives and clearly defined outcomes, which has created a complex grid of eligibility criteria, differences in eligibility for benefits depending when and where served, and inconsistency between policy intent and outcomes and expectations; and
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Eliminating SISIP LTD/VOC‑REHAB and placing all SISIP LTD and VOC‑REHAB under VAC for all service attributable and non‑service attributable medical releases with no premiums – one program/one service delivery model.
In addition to the above‑mentioned fundamental proposals as to the overriding guiding principles for legislative reform, the following recommendations represent specific statutory and policy amendments in furtherance of this objective:
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Liberalize the eligibility criteria in the legislation and regulatory amendments for the new Additional Pain and Suffering Compensation benefit so that more disabled veterans actually qualify for this benefit. Currently only veterans suffering from a severe and permanent impairment will be eligible. It bears repeating that the greater majority of disabled veterans simply will not qualify for this new component of the proposed lifelong pension.
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The Veterans Disability Award (Pain and Suffering Compensation benefit) initially granted to the veteran should be a major determinant in evaluating APSC (CIA) qualifications. It is the position of NCVA that this employment of the Disability Award (PSC) percentage would produce a more straightforward and easier understood solution to this ongoing issue of APSC (CIA) eligibility.
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Create a new family benefit for all veterans in receipt of a Disability Award to parallel the Pension Act provisions in relation to spousal and child allowances to recognize the impact of the veteran's disability on his or her family.
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Incorporate the special allowances under the Pension Act, i.e. Exceptional Incapacity Allowance and Attendance Allowance, into the New Veterans Charter/Veterans Well‑being Act to help address the financial disparity between the two statutory regimes.
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Finetune the concept of Attendance Allowance, payable to informal caregivers to recognize and compensate the significant effort and economic loss to support injured veterans, and ensure access reflects consideration for the effects of mental health injuries.
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Lower the eligibility criteria for Exceptional Incapacity Allowance to cover those veterans under 98 percent disabled and who are confronting extraordinary incapacities as a result of their service‑related disabilities.
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Establish a newly structured Career Impact Allowance which would reflect the following standard of compensation: "What would the veteran have earned in his or her military career had the veteran not been injured?" This form of progressive income model, which has been recommended by the MPAG and the Veterans Ombudsman's office, would be unique to the New Veterans Charter/Veterans Well‑being Act and would bolster the potential lifetime compensation of the disabled veteran as to his or her projected lost career earnings, as opposed to the nominal one percent increase provided in the proposed legislation.
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NCVA encourages VAC to revisit the MPAG proposition of consolidating the Income Replacement Benefit and a newly structured CIA to provide a single stream of income which would include the "projected career earnings" approach.
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Access to the new structured CIA benefit should be available through the lifetime of the veteran, providing a financial safety net that includes application to pre‑ and post‑release income scenarios.
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Improve the eligibility criteria for the Critical Injury benefit to include mental health injuries and evolving injuries.
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Extend eligibility of the death benefit to the families of all deceased veterans.
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In relation to the regulatory amendments emanating from the new legislation, NCVA expresses concern that the prerequisite for the APSC benefit with regard to the disability of amputation remains arbitrarily defined both as to eligibility and designated grade level. It is to be noted that amputation at or above the elbow, or at or above the knee is retained as a fundamental requirement for qualification in relation to a single limb amputee – the loss of a limb at any level represents a severe and permanent impairment for a veteran amputee. The current arbitrary distinction is not justified and should be amended.
Seriously Disabled Veterans
Recommendation
NCVA continues to support the contention that the seriously disabled veteran should be given the highest priority in the implementation of the Government's plan of action for legislative reform in regard to the New Veterans Charter/Veterans Well‑being Act and other related legislative provisions.
Social Covenant
Recommendation
NCVA endorses the position that the Federal Government's failure to fully implement a plan of action on reforming the New Veterans Charter violated the social covenant owed to Canadian veterans and their families.
Veterans Emergency Fund
Recommendation
NCVA recommends that VAC provide substantial financial funding to bolster the Veterans Emergency Fund to increase the maximum benefits per claim and to prioritize these applications during these challenging times. VAC should consider the utilization of the Veterans Emergency Fund as a stop-gap measure for veterans awaiting disability pension claim decisions which have been inordinately held up by the current backlog conundrum.
Post-Traumatic Stress Disorder
Recommendation
That NCVA require that DND and VAC employ all necessary financial, professional and personnel resources to identify, care and compensate veterans' suffering from post‑traumatic stress disorder and that it is recognized that this insidious disability must be continually monitored to ensure the well being of such veterans.
N.B.: DND/VAC released a comprehensive report in 2018 entitled "Joint Suicide Prevention Strategy" which established a comprehensive set of protocols to address this entire question of PTSD and suicide. The veterans' community will continue to monitor this policy very closely to determine how effective these proposals will be in addressing what many in the veterans' community have described as a significant crisis.
Partial Entitlements
Recommendation
NCVA strongly recommends that VAC grant automatic entitlement to those veterans currently in receipt of consequential or partial entitlement rulings at one‑fifth/two‑fifths/three‑fifths to a four‑fifths level of assessment. In so doing, the department will address a significant amount of the backlog in relation to the numerous appeals that are currently in the department system re: fractional awards.
Service Delivery/Red Tape Elimination
Recommendation
That NCVA continue to apply "relentless scrutiny" to departmental service delivery, so that we are able to draw our own conclusions as to the impact of the budgetary staffing enhancements currently being implemented by VAC and promised in the future by the Liberal Government in order to make our own judgment as to the question of whether VAC has become more administratively efficient through this "red tape cutting" initiative.
Recommendation
That NCVA member‑organizations contribute proposals based on their own members' experiences to be included in the effective work of The War Amps Task Force for the purposes of a further submission to VAC in addressing bureaucratic obstacles and eliminating red tape.
