NCVA Update

July 3, 2020 – As you will know, the NCVA has been calling for dramatic and innovative steps to be taken by Veterans Affairs Canada (VAC) to address the current unacceptable backlog and turnaround times experienced with respect to veterans' disability claims. As the Deputy Minister Walt Natynczyk stated before the Standing Committee on Veterans Affairs earlier this year, we have indeed reached a "perfect storm" that has only been compounded by the onset of the COVID-19 pandemic.

I would reaffirm that the following represents the crux of our position in relation to this ongoing administrative crisis:

• The department should adopt the position that veterans' claims be considered at face value and decisions be based on the reasonable evidence provided by the veteran and his or her family, with the proviso that individual files could be monitored over time and "spot audits" carried out to address any potential abuses. The clear reality that medical reports usually required by VAC to support these applications continue to be almost impossible to obtain at this time must be recognized in assessing this present dilemma.
• Even though medical offices and therapists' clinics are starting to reopen, these individual health professionals are simply overwhelmed with their own backlog and rescheduling of delayed appointments. The preparation of medical reports to support veterans' claims is not a priority at this time for these beleaguered physicians and therapists.
• Unless creative steps are taken, the adjudicative delays and turnaround time dilemmas will not be relieved in the short term given the reality of the extreme difficulty in obtaining these medical/therapist reports to substantiate individual veterans' applications.
• There is a general consensus among major veteran stakeholders that this administrative/adjudicative measure leading to a form of fast-tracking/automatic entitlement deserves immediate attention.
• It has been the long-standing view of the NCVA that this form of automatic entitlement approach should have been implemented by VAC years ago in regard to seriously disabled veterans with the objective of expediting these specific claims so as to circumvent governmental "red tape." Adoption of this approach would also be in recognition of the fact that nearly all of these cases are ultimately granted entitlement in the end, often following many months of adjudicative delay. It is our considered position that now is clearly the time to extend this thinking to all veterans' claims.
• It is noteworthy that the current mandate letter received by the Minister of Veterans Affairs from the Prime Minister contains a specific direction that VAC implement a form of automatic entitlement with respect to common disabilities suffered by Canadian veterans.
• It is also extremely significant that many financial assistance programs currently being rolled out by federal/provincial governments are premised on the philosophy of "pay now and verify later." In regard to a number of financial initiatives, the earlier need for medical reports to substantiate entitlement to these programs has been waived by the government given the impracticality of accessing any input from the medical profession in Canada at this troubled time.
• It is to be noted that the initial reaction of the department and, more specifically, the Deputy Minister to this proposed form of fast-tracking/automatic entitlement was that this approach could be implemented for benefits that are paid on a monthly basis; however, given the fact that the majority of veterans are still opting for lump-sum disability award payments, this would represent a concern for the department.
• In addressing this concern, it was our recommendation that, as an interim step in granting this form of automatic entitlement, the disability award could be paid as a monthly allowance with a preliminary assessment in the first instance. Ultimately, the department would have the ability to fully examine the extent of the veteran's disability in order to determine the veteran's final assessment, at which point the veteran could choose to convert his or her monthly allowance to a lump-sum award with the appropriate financial adjustment to account for the monthly amounts already paid.
• The great advantage in this recommendation is that the veteran's entitlement would be established early on, and the veteran's concerns surrounding financial security and access to health-care and treatment benefits would be addressed in this manner.
• The old adage that "desperate times call for bold and creative measures" is particularly apt in this situation.

I would advise that the department has issued a policy statement this week in response to this serious concern entitled, "Timely disability benefits decisions: Strategic direction for improving wait times." This communication piece has been a significant priority for some time, not only for the NCVA but also the Standing Committee on Veterans Affairs and many other stakeholder groups.

The topics covered in the VAC report include the following:

• Mission/Current Situation
• Strategic Direction
  • Public Service Capacity – Report on progress and next steps
  • Integration – Report on progress and next steps
  • Process Innovation – Report on progress and next steps
  • Digitization – Report on progress and next steps
• Expected Timelines and Outcomes

In my humble opinion, this policy document is a statement of good intentions for the mid- to long-term objectives cited in the material, but it fails to effectively remedy the present backlog crisis which has only been intensified by the COVID-19 pandemic.

Although it is somewhat encouraging that the VAC policy statement has 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 unfortunately concludes that this will take considerable time to implement.

Furthermore, the departmental policy statement places significant weight on the recent announcement that an approximate $90 million has been approved by the government for VAC in a supplementary budget estimate to retain new employees to deal with the ongoing backlog. However, this newly acquired departmental staff will face a steep learning curve and will not be operational until January 2021 at the earliest.

The department presented a formal briefing of their policy position on June 30, 2020 to various Ministerial Advisory Groups. As part of the ongoing dialogue surrounding this presentation, I took the strong position that the department needed to accelerate their plan of action through an adoption of the above-cited fast-tracking protocols/automatic entitlement approach for all outstanding veterans' applications.

Given the unattainability of medical reports from various health-care providers, the following fundamental question requires an immediate answer: What level of evidence is the department prepared to accept to approve current claims in the backlog?

Clearly, individual veterans and/or their advocates who are preparing disability applications must be cognizant of the department's position in relation to this important subject as to the sufficiency of evidence required for VAC approval.

In my judgment, the "approve and verify" philosophy we have espoused for many months is a crucial ingredient to the solution in this context.

Rather surprisingly, as part and parcel of our discussions, VAC has indicated through the briefing process that, ostensibly, "higher government authority" is required to implement this form of creative initiative.

With all due respect, I am somewhat mystified by this prerequisite for government authority, as it has been readily apparent that VAC has determined the overall question of sufficiency of evidence for many decades in adjudicating veterans' applications. In this context, the impact of the benefit of the doubt/presumptive provisions of veterans legislation have been in place for many years. In my experience, this unique set of adjudicative principles gives the department great latitude to reach a constructive resolution in relation to policy amendments to address the present crisis regarding wait times.

In summary, the VAC policy statement contains a number of positive steps to alleviate the backlog and unacceptable wait times relevant to veterans' disability claims. However, the scope and pace of these initiatives require a higher priority from the government in order to establish a more immediate resolution of this continuing crisis.

As an ongoing strategy, we plan to offer up a number of test cases to evaluate the adjudicative system being implemented by VAC over the remainder of this year.

We will keep you apprised of developments as we continue to pursue a more urgent and expansive approach to this overall administrative conundrum.