Ruling gives guidance on Veterans’ cases

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.