Member’s e-mail 6 Sep 2011
Subject: Those Impacted by the Earnings Loss Benefit Clawback of Monthly VAC disability Pensions
I continue to receive and read your posts, and as some do not refer to my situation in particular, I do want to contribute when I can. I do want to thank you for sending me regular emails on matters of such importance.
I will try to explain my situation and then we can move on from there and you can let me know what you think. Maybe some of your friends at higher levels may want to hear how the NVC affects a veteran in my, maybe unique, circumstances.
I had service related injuries in 1987 and was medically released from the CF January 2, 1996 for those injuries. I was denied disability pensions from the Canadian Pension Commission - August 8/1995, VRAB–Entitlement Review July 31/96, and VRAB – Entitlement Appeal – Feb 12/97.
In late 2006, I was accepted, after a long battle with VAC, for Rehab – ELB. Shortly thereafter, and after more medical evidence surfaced, I was declared “Totally and Permanently Incapacitated” TPI from VAC.
ISSUE: In 2006, VAC made a decision I am “Entitled” because of “Service Related” injuries to REHAB / ELB, yet I was not in receipt of any pension under the NVC or the Pension Act, why and how is this different under the two legislations?
ISSUE: VAC made a decision in 2006 that I am “Totally and Permanently Incapacitated” (TPI) because of my “Service Related” injuries, yet I was not in receipt of any disability pension under the NVC or the Pension Act why or how can this be?
There is something wrong with the system when this type of decision making process is allowed to occur. TPI means that I am no longer able to be retrained in the workforce because of permanent disabilities.
In 2008, I finally received two separate favourable decisions, where both decisions were "Back Dated" to 2005 and awarded to me under the PENSION ACT:
Under the PENSION ACT:
Cervical Disc Disease 5/5 – Entitlement @ 10% disability, (10%) pension (Pension Act Ruling)
Thoracic Disc Disease 1/5 – Entitlement @ 5% disability, ( 1%) pension (Pension Act Ruling)
Lumbar Disc Disease 1/5 – Entitlement @ 10% disability, ( 2%) pension (Pension Act Ruling)
Because I was in receipt of REHAB / ELB, most if not all of my entire (3) years of retroactivity pay (decision under the Pension Act (2005 – 2008)) was Clawed Back to April 2006. I was left with an extremely small amount which is not worth mentioning.
The clawed back or (offset) amount resulting from a Pension Act award was made because I was receiving ELB, and is between $ 50,000 and up to $ 100,000. The exact amount can not be determined as the issue is ongoing.
ISSUE: VAC finally renders a decision, of my 1987 injuries in 2008, (instead of prior to 2006) and they recoup all the money paid because of ELB. Is this fair, obviously not, is it legal “questionable” until I pay more than $ 50,000 to a lawyer to find out the answer.
Again, I lose. What a racquet!
In 2008/09, I was awarded UNDER THE NVC:
Chronic Pain Disability 4/5 – Entitlement @ 45% disability, a (35%) payment under the NVC.
After, the normal deductions were made, I ended up with about $ 65,000.00 that I received from VAC (NVC award) of 35% disability. I placed this money in the bank because I can not spend it or use it to pay my debts because maybe at some future point a decision may be made to have the decision put under the Pension Act where it will be “Clawed Back” again or taken off any future Pension Act payments and I would not benefit from it use until I am let us say I was 103 years old.
ISSUE: I had service related injuries in 1987 and was medically released from the CF January 2, 1996. I was denied disability pensions from the Canadian Pension Commission (CPC) - August 8/1995, VRAB–Entitlement Review July 31/96, and VRAB – Entitlement Appeal – Feb 12/97 for the exact conditions and received a decision for between 1994 – 1997, WHY DID I RECEIVE A DECISION UNDER THE NVC and not the Pension Act?
How do I have this decision changed to be under the Pension Act with a monthly annuity and out of the NVC?
There is no logical reason for denying me “Vested Rights” for injuries that occurred in 1987 and especially when I was medically released from the CF in 1996 for those service caused injuries where a decision was rendered in 1995, 1996, and 1997.
I won a Judicial Review in 2009, where the Judge ruled the original VRAB decision of 2008 was “Quashed”, I paid a private lawyer (10’s of thousands of dollars) to represent me at the Judicial Review, and then at the November 10, 2010 VRAB (Federal Court of Canada Ordered rehearing) original 2008 VRAB decision for Thoracic and Lumbar Disc Disease.
In the November 10, 2010 VRAB decision, (the Federal Court of Canada Ordered rehearing), the VRAB increased my Entitlement from 1/5 to only 3/5th. They should have ruled 5/5 Entitlement from the beginning.
My service medical records were “not ordered and/or not used” by the Bureau of Pensions Advocates from 1994 – 2008 and this is why I was not given a pension in 1996 at the time I was medically released and disabled from the CF.
All of the 1994-1997 disability applications and decisions were made using only 3 medical records obtained by the Bureau of Pensions Advocates on my behalf when there was a total of 2238 medical records available from ATIP.
VAC, the BPA, and the VRAB DID not know I was disabled when I was released from the CF in 1996. A Career Medical Review Board medically released me as “Disabled” and all my disability decisions from 1995-1997 stated:
“There is no evidence what so ever that you are disabled and that your injuries are service related” therefore we must rule unfavourably.
The 2008 VAC favourable decisions for cervical, thoracic, and lumbar disc disease we made based on ALL 1987 service/medical records that were eventually made available to the “Decision Makers” in 2008 but not in 1994-97. Why not?
There was a CF-98 confirming all facts of the injuries but the VRAB ignored that evidence and or gave it a discretion value of (0) zero weight factor. Why is the law being violated by the VRAB?
The Minister of VAC (then Minister Thompson) was sent (2) Ministerial Inquiries in which he took about 1 1/2 years to respond only to let me know that he passed it on to the Chief of the BPA to answer.
The Chief of the BPA called me directly at home, by telephone, not even by correspondence, and “bluntly” told me that he would not respond to any issues or matters in my Ministerial Inquiries, most likely because the BPA is guilty of negligence.
THE RESULT / OUTCOME of the Federal Court Ordered rehearing at the VRAB on November 10, 2010:
Firstly, I received a "$ 100.00" (one-hundred dollar) increase in my monthly disability pension amount & a $ 1200.00 per year increase in my pension check.
In other more realistic terms:
It will take me 33.33 years of receiving disability payments (now I am 50 years old, I need to live until I am 83 years old), before I can benefit from receiving this money for my service caused injuries and disabilities because I paid for my lawyer.
I just want to say, Thank You Canada, but NO thanks it costs me too much to be injured for my country and on the job in Canada. However, it is now too late as I already paid my lawyer his money.
If I die before age 83, Canada wins more money, wonderful scam (sarcasm).
Secondly, the VRAB “back dated” my retroactivity of the new November 10, 2010 decision back to a date in 2009 when I made an appeal application to the Federal Court of Canada. The VRAB DID NOT “back date” my monetary retroactivity back to the original 2008 date made by the previous VRAB Reconsideration hearing of October 13, 2009 where they set my “retroactivity” back to 2005 and under the decision was made under the Pension Act.
ISSUE: If the original date of application was June 20, 1994 and the VRAB ruled on it in 2008 in which I appealed it to the Federal Court of Canada, my effective retroactivity should remain my original VRAB decision date of 2008 and (3) three years prior which is when I was originally granted the first “Favourable” VRAB Reconsideration decision. I was in fact appealing that 2008 decision in the first place, so why is my retroactive payment from (3) three years prior to the date of my appeal to the Federal Court of Canada and not the original 2008 VRAB favourable decision date which was already granted entitlement and retroactivity back to 2005.
I am sorry if these technical issues sound like a rant. I simply want to someone of power to notice other ways in which our veterans are losing money from the inadequacies of the NVC and acts on these morale wrongs.
The facts herein are meant to highlight a few more examples of where and how many of our disabled veterans are being fraudulently (swindled) out of their “Vested right” to disability pension benefits despite the clear legal obligation by the government of Canada to comply with Pension related Acts and other legislative requirements, and I for one have run out of money to fight them.
Now, I have to decide if I want to lose my house so that I can have a small chance to win in a civil lawsuit.
By the way, lawyers for vet’s through the Ontario Trial Lawyers Association would not assist me at this level.
In hopes that someone hears our calls for help and can do something about it. I am just simply too tired, to frustrated, and too broke to do anything about it anymore.
An Ontario veteran