Veterans Affairs Canada (VAC) has undertaken a revision of the medical guidelines which have been used as a guide to awards of pension entitlement to eligible persons under the Pension Act, R.S.C. 1985, c.P-6, and other legislation.
The purpose of this revision is to compile a current medical and scientific description of injury and disease for which pension application may be made. It is intended that the revision and usage of the guidelines at all times comply with the recognized obligation of the people of Canada and its government to those who have served and their dependants in accordance with s. 2 of the Pension Act, and with the rules of evidence including the benefit of doubt provisions pursuant to s. 5 of the Act. It is intended that the revision will, as an improvement to the current guidelines, result in an equitable and efficient system of pension entitlement, providing consistency in decision-making and an element of certainty to clients.
The revised entitlement eligibility guidelines are policy statements, intended to assist in the preparation and submission of applications and in adjudication. They are not intended to be a textbook of medicine or of causation. They are not mandatory or binding. They permit the exercise of discretion by the adjudicator where the Pension Act is the primary source of law and where this stipulates the construction of the legislative provisions and rules of evidence pursuant to ss. 2 and 5 of the Act.
As the guidelines are intended to provide guidance as opposed to direction on the issue of entitlement, they are maintained separate and apart from the legislated Table of Disabilities.
The VAC Entitlement Eligibility Guidelines are based on evidence from credible and peer-reviewed medical research and literature (most of which have been listed in the reference portion of the guidelines). Comprehensive adjudicative guidelines from various disability compensation bodies in Canada, United States and Australia were also reviewed and utilized in the development of the VAC guidelines. A major source of the review with respect to the medical-scientific research on causation and aggravation was from the Australian Department of Veterans Affairs.
Also reviewed and of equal importance were medical texts, journals and other sources of information deemed reliable and reflective of accepted medical theory and practice at the time of writing of the guidelines.
Because of the fact that medicine is an ever-changing science and because of the rapidity of such change, the guidelines are not purported to be fully comprehensive commentaries on any given condition.
On date of implementation, the VAC Entitlement Eligibility Guidelines will replace various guidelines contained within the Departmental Medical Guidelines publication. The following principles of implementation have been established for claims management:
The Entitlement Eligibility Guidelines constitute a change in policy.
The Entitlement Eligibility Guidelines are not "new evidence" for the purposes of a Departmental Review.
On and after the date of implementation of the Entitlement Eligibility Guidelines, all claims will be adjudicated upon using the Entitlement Eligibility Guidelines.
Claims awaiting adjudication prior to the date of implementation of the Entitlement Eligibility Guidelines will be adjudicated upon using the entitlement guidelines in effect on the date of the Departmental decision. Claims of this nature will not have vested rights in the former medical guidelines.
In claims where adjudication occurs on or after the implementation of the Entitlement Eligibility Guidelines, the effective date of the award will be established in accordance with Section 39 of the Pension Act i.e. the later of the date on which application was first made and a date three years prior to the date of the decision.
A change in policy does not constitute "... delays in securing service or other record or other administrative difficulties beyond the control of the applicant ..." as contemplated by subsection 39(2) of the Pension Act. The implementation of the guidelines will not provide the basis for an award under subsection 39(2).
The Canadian guidelines consist of a description of diseases and disorders. They include comments on diagnoses, anatomical and physiological factors, clinical features, and pension considerations including the relationship to other disorders and, in some cases, assessment issues, more particularly as follows:
MPC
This is the medical pension code internal to VAC.
ICD-9
This is the International Classification of Diseases code published by the World Health Organization (WHO).
Definition
This is the commonly-accepted current description of the disease or disorder in the North American medical community.
Diagnostic Standard
The Pension Act, s. 21, refers to "injury or disease or aggravation thereof resulting in disability". And s. 3 defines a "disability" as "the loss or lessening of the power to will and to do any normal mental or physical act". The term "aggravation" is not legislatively defined; however, it is accepted that aggravation means the permanent, as opposed to temporary, worsening of an existing disability.
While the Act does not specify that a diagnosis is required, evidence of a disability by way of a reasonably current diagnosis is an important element of the pension process. The only investigations required are those sufficient to establish the diagnosis.
Reference is made to a "qualified medical practitioner" which, for the purposes of these guidelines, means an MD who is licensed by a provincial medical college to practice in the provincial jurisdiction. It is recognized that, in certain cases, diagnoses from health care professionals other than MDs may be accepted. The individual guideline will identify these cases.
Anatomy and Physiology
This section defines the structure and functioning of the disorder or disease.
Clinical Features
This section describes the common signs and symptoms associated with the disorder or disease, and may include a comment on progression and aggravation.
Pension Considerations
This section is not meant to be rigid or inflexible, but is intended to assist in the application and adjudication of applications to the benefit of the applicant.
This section is divided into the following subsections:
CAUSES AND/OR AGGRAVATION
MEDICAL CONDITIONS WHICH ARE TO BE INCLUDED IN ENTITLEMENT/ASSESSMENT
COMMON MEDICAL CONDITIONS WHICH MAY RESULT IN WHOLE OR IN PART FROM (IDENTIFY CONDITION) AND/OR ITS TREATMENT
The subsection CAUSES AND/OR AGGRAVATION serves to identify the factors which may cause, contribute to, accelerate, and/or aggravate the disability. The term "clinical onset" refers to the first appearance of signs and/or symptoms. To the fullest extent possible, and acknowledging certain limits including the evolving nature of the science of medicine, any factor that is credible and reasonable has been identified. If a reasonable doubt has been raised as to whether a factor should be included on the basis that it is "reasonably possible" of causing, or of contributing to, or accelerating, or aggravating the disability, the factor has been included in accordance with the provisions of s. 5(3) of the Pension Act.
Within CAUSES AND/OR AGGRAVATION, there is a factor entitled "Inability to obtain appropriate clinical management". This factor may contribute to the evolution of a disability, contribute to its aggravation, and/or result in a new disability. Please note that this factor, as with the others cited, is only relevant for the purpose of upholding the contention that the injury, disease or death is related to an individual's service as set out in ss. 21(1) and 21(2) of the Pension Act.
"Appropriate clinical management" generally means a treatment regime designed to cure, control or lessen the severity of a condition following its clinical onset. The issue of whether or not any particular clinical management of a condition is appropriate is primarily, but not solely, a medical matter. Administrative action/inaction may have the same or similar effects as inappropriate medical management. Due to advances in medicine and changes in administrative practice, appropriate clinical management in earlier times may have been different. Thus, current practices should not be used to assess the appropriateness of past treatment and practice, even with respect to the recent past. Medical opinion may be required.
"Inability to obtain appropriate clinical management" may apply as follows:
when the injury or disease should have been diagnosed, using the standard of a reasonably competent medical practitioner, and it was not; or
when the injury or disease was not treated with the skill and expertise that would have been expected to have been given to a civilian at that time;
AND
if the appropriate treatment that would have been given to a civilian at that time had been given, the injury or disease would not have progressed or permanently worsened to the extent that it did.
An inability to obtain appropriate clinical management may occur in various circumstances, including, but not limited to, a posting to an area with limited medical facilities, a combat situation, because a condition was misdiagnosed, or when the presence of a service-incurred or service-related condition prevents a particular treatment from being carried out. (Refer also to Department of Veterans Affairs Policy Manual, Article 21(2)(a) & (b) Section 3 - Awards in Respect of Service in Peacetime N .P.A.M. and Reserve Army, Amendment: 97-4, pp. 1-4 ).
The subsection MEDICAL CONDITIONS WHICH ARE TO BE INCLUDED IN ENTITLEMENT ASSESSMENT serves to identify conditions for which separate entitlement need not be sought, and which will be included in the assessment of the primary condition. The inclusions may be disabilities for which separate entitlement is held.
Any common conditions which are readily apparent are listed. This section is not all-inclusive. As a general rule, the basis for combining diagnoses arises where:
a disability progresses so as to develop different features which appear at different times and the different features are part of the same disease process and involve the same body part or organ system;
two or more disabilities have similar symptoms and effects which cannot be separated for assessment purposes, usually involving the same body part or organ system. As ongoing consultation is taking place with Health Care Programs, this subsection is not finalized for all entitlement guidelines.
The subsection COMMON MEDICAL CONDITIONS WHICH MAY RESULT IN WHOLE OR IN PART FROM (IDENTIFY CONDITION) AND/OR ITS TREATMENT serves to identify conditions for which separate entitlement should be sought on a consequential basis. Common conditions which are readily apparent are listed. This section is not all-inclusive. As a general rule, and subject to section B, a condition which is a separate and distinct disability from the primary condition should be claimed separately. A consequential claim should, in general, involve a different body part or organ system.
The guidelines are not a substitute for a careful analysis of any given case in accordance with the principles enunciated in ss. 2 and 5 of the Pension Act.
Section 2 of the Pension Act designates the approach to evidence under the Pension Act. This section creates a liberal and purposive direction in recognition of the great moral debt owed to those who have served their country.
Of equal significance are the rules of evidence enunciated in s. 5 of the Pension Act. The burden of proof under s. 5 is distinct from the civil burden of balance of probabilities. It is often referred to as the "benefit of doubt" section. The English text of subsection 5(3) states as follows:
5.(3) In making a decision under this Act, the Minister shall
draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;
accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and
resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.
In the use of the guidelines, it is to be borne in mind that they are policy and not law. They are a tool, intended to complement the exercise of decision-making as it is conducted in accordance with the legislation and the principles of administrative law.
It is also anticipated that the guidelines will be updated on a regular basis, in order to reflect relevant changes in policy and in medicine.
In conclusion, the guidelines are policy statements of Veterans Affairs Canada, intended to assist in the preparation and submission of applications and in adjudication.
