Rul­ing gives guid­ance on Vet­er­ans’ cases

The Guardian (Charlottetown) - - CANADA - THE CANA­DIAN PRESS

The Fed­eral Court of Ap­peal has handed down a judg­ment that will force Vet­er­ans Af­fairs and its in­de­pen­dent ap­peal board to take more care in de­cid­ing on the men­tal health claims of ex-sol­diers.

In a re­cently re­leased de­ci­sion, the jus­tices over­turned a lower rul­ing and re­jected ar­gu­ments from the Vet­er­ans Re­view and Ap­peal Board in the case of Anne Cole, a for­mer of­fi­cer dis­charged be­cause she suf­fered from de­pres­sion.

She ap­plied for a dis­abil­ity ben­e­fit say­ing her mil­i­tary ser­vice was the cause of her men­tal health is­sues, but the Vet­er­ans Depart­ment, the ap­peal board and even the Fed­eral Court re­jected her claim, say­ing that her con­di­tion was not pri­mar­ily re­lated to mil­i­tary ser­vice.

But in a rul­ing that sur­prised many observers, the Fed­eral Court of Ap­peal sided with Cole and said she should only have had to demon­strate that her ill­ness “arose out of or was di­rectly con­nected with” her time in uni­form.

The word­ing is key be­cause both the depart­ment and re­view board have in­sisted, par­tic­u­larly in men­tal health cases, that a vet­eran point to one trau­matic in­ci­dent or se­ries of in­ci­dents that caused their de­pres­sion or post-trau­matic stress dis­or­der.

The leg­is­la­tion does not stip­u­late a level or de­gree to which the cause of an ill­ness must be jus­ti­fied, the ap­peal court said. In fact, the law gov­ern­ing vet­er­ans' ben­e­fits says the gov­ern­ment must be gen­er­ous and give ex-sol­diers the ben­e­fit of the doubt when it comes to whether their in­jury was caused by mil­i­tary ser­vice.

The May 5th rul­ing, which has yet to be posted online, has been cir­cu­lat­ing in the vet­er­ans' com­mu­nity.

It sets out a four-part guide­line for the fed­eral gov­ern­ment and the tri­bunal to fol­low to de­cide claims.

The rul­ing should make both the depart­ment and the in­de­pen­dent board think twice about re­ject­ing claims, said Stephen Aker, one of Cole's lawyers.

“It'll be help­ful to vet­er­ans. How help­ful? It de­pends on the in­di­vid­ual cir­cum­stances of their cases,” said Aker.

What it does not mean is that the fed­eral gov­ern­ment will be forced into ap­prov­ing a flood of men­tal health claims that might oth­er­wise have been re­jected, he said.

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