Date: 20040519
Docket: T-1426-03
Citation: 2004 FC 729
Calgary, Alberta, Wednesday, the 19th day of May, 2004.
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
LESTER "CARL" PERCY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Percy is an 83-year-old World War II veteran who suffers from the pensioned condition of pes planus (flat feet). Although he had this condition on enlistment, active service seriously aggravated it. Mr. Percy applied to the Minister of Veterans Affairs for a pension entitlement determination with respect to his pes planus and with respect to the osteoarthritis in his left and right knees. In this application for judicial review, Mr. Percy takes issue with the most recent decision of the Veterans Review Appeal Board (VRAB) regarding his application.
[2] Although the Minister's decision, dated February 23, 2001, denied Mr. Percy's pension entitlement, he was successful at the VRAB Review (August 23, 2001) where it was determined that he was entitled to a pension for pes planus. His claim with respect to his knees, however, was denied at all levels (VRAB Review, August 23, 2001; Veterans Affairs, November 27, 2001; Departmental Review, January 29, 2002; another VRAB Entitlement Review, April 24, 2002; and a VRAB Entitlement Appeal, February 20, 2003).
[3] Mr. Percy obtained a letter from a qualified medical practitioner dated March 27, 2003, and sought a reconsideration by the VRAB of its decision dated February 20, 2003, on the basis that the letter was new evidence. The VRAB determined that the letter could not be considered new evidence that would be relevant, or could lead the board to a different conclusion. The board found that the letter was simply a reiteration of previous correspondence from the same physician as well as another physician. Additionally, the board determined that the evidence could have been adduced earlier by due diligence. Consequently, the VRAB refused to reconsider its earlier decision. This is the decision that is the subject of this application.
[4] I need not engage in a pragmatic and functional analysis of the applicable standard of review regarding a decision of this nature because I have concluded that the decision of the VRAB was correct. Thus, the applicable standard of review matters not.
[5] Subsection 32(1) of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the Act) authorizes the VRAB to reconsider a decision, on application, if the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law or if new evidence is presented to the appeal panel. Section 39 of the Act provides direction as to how the board is to deal with the evidence that is before it. Specifically, the board shall draw every reasonable inference in favour of the applicant, accept any uncontradicted evidence presented by the applicant that it considers to be credible, and resolve in favour of the applicant any doubt, in the weighing of evidence, as to whether the applicant has established a case. Section 3 mandates that the Act is to be liberally construed and interpreted to ensure that the recognized obligation of the people and government of Canada to those who have served their country and to their dependants may be fulfilled.
[6] The Act does not provide a specific test regarding new evidence. Mr. Justice Teitelbaum considered this issue in Mackay v. Canada (Attorney General) (1997), 129 F.T.R. 286 and applied the test for new evidence set out in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759. Specifically, Justice Teitelbaum referred, at paragraph 26, to the following principles:
(1) The evidence should generally not be admitted if, by due diligence,
it could have been adduced earlier;
(2) The evidence must be relevant in the sense that it bears upon a decisive
or a potentially decisive issue;
(3) The evidence must be credible in the sense that it is reasonably capable
of belief;
(4) The evidence must be such that, if believed, it could reasonably, when taken with
the other evidence adduced, be expected to have affected the result.
This was the test used by the VRAB.
[7] Mr. Percy submits that he put forward extensive documentation, both from physicians and institutions, showing the connection between his flat feet and knee pain. The VRAB, he claims, found that the evidence was not credible. He is at a loss to understand how uncontradicted specialist medical evidence cannot be capable of belief, particularly when the board is supposed to liberally construe the legislation and make every reasonable inference in his favour. He contends that the VRAB has no medical understanding of the issue and that the Guidelines must be out of date because it is clear that all of the experts agreed that there is a connection between flat feet and knee pain.
[8] The new evidence tendered by Mr. Percy failed on all but one factor - credibility. The VRAB did not impugn the credibility of the evidence as Mr. Percy asserts. It simply found that it was no more useful to the issue it was asked to decide than had been the earlier evidence. The board had not had any credibility concerns regarding the earlier evidence.
[9] Mr. Percy's difficulty is that he requested a pension entitlement determination for osteoarthritis in his knees. The medical evidence discloses that he has only minor osteoarthritis. His real complaint is the severe pain in his knees. This pain is much more severe than would be expected from a mild case of osteoarthritis. The physician's letter of March 27, 2003 states not that his osteoarthritis is caused by his flat feet, nor that his osteoarthritis is causing his knee pain, but that the pain in his knees is caused by his pes planus. This connection was also contained in the other medical materials before the Minister and the variously constituted boards.
[10] Mr. Percy had to establish under subsection 21(5) of the Pension Act, R.S.C. 1985, c. P-7 that the osteoarthritis in his knees is consequential to the pes planus. Even though uncontradicted evidence should be accepted in the absence of a finding of lack of credibility and every reasonable inference should be drawn and any reasonable doubt resolved in his favour, Mr. Percy had to establish a causal connection between the pes planus and the osteoarthritis: Hall v. Canada, (1998), 152 F.T.R. 58 (T.D.) aff'd. (1999), 250 N.R. 93 (F.C.A.) None of the evidence, including the March 27, 2003 letter, addresses osteoarthritis or degenerative changes.
[11] I agree that the evidence was not new, was not relevant, and could not have changed the result on any issue and that the VRAB made no error in so finding. Moreover, in view of the contents of the March 27, 2003 correspondence, there is no indication that the information contained therein could not have been available at the time of Mr. Percy's initial appeal to the appeal panel of the VRAB. Thus, the VRAB was correct in concluding that the new evidence was not relevant and could not have led to a different conclusion.
[12] While I am sympathetic to Mr. Percy's situation, my intervention is not warranted regarding his application for a pension entitlement determination with respect to osteoarthritis. It may well be that Mr. Percy suffers from a condition affecting his knees that is consequential to his pes planus. If that is the case, it is open to him to apply for a pension entitlement determination regarding that condition.
[13] The respondent did not seek costs and none will be awarded.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
F. C. J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1426-03
STYLE OF CAUSE: Lester "Carl" Percy v. Attorney General of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 18, 2004
REASONS FOR ORDER AND ORDER : LAYDEN-STEVENSON J.
DATED: May 19, 2004
APPEARANCES:
Mr. Lester Carl Percy FOR APPLICANT
(representing himself)
Ms. Tracy J. King FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Lester Carl Percy FOR APPLICANT
Calgary, Alberta (representing himself)
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT