As a result of the Appellant s Entitlement Appeal hearing held 23 March 2004, this Board rules as follows:

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1 Home>Noteworthy Decisions>Interest Decisions> Representative: Nancy Hobson, BPA Decision No: Decision Type: Entitlement Appeal Location of Hearing: Charlottetown, Prince Edward Island Date of Decision: 23 March 2004 As a result of the Appellant s Entitlement Appeal hearing held 23 March 2004, this Board rules as follows: RULING RHEUMATOID ARTHRITIS Not attributable to nor incurred during service in Special Duty Areas (Cyprus, Persian Gulf). Section 1, Special Duty Area Pension Order Subsection 21(1), Pension Act Award of one-fifth for that part of the disability or aggravation thereof that arose out of or was directly connected with service in peace time in the Regular Force. Subsection 21(2), Pension Act Entitlement as previously awarded. Original signed by: Presiding Member Ann Gilbert Member L.J.MacInnis Member J.A. Boisvert ISSUES An Entitlement Appeal hearing was held in Charlottetown, Prince Edward Island on 23 March 2004 as the Appellant was dissatisfied with an Entitlement Review Decision of 23 June Ms. Nancy Hobson was the representative. EVIDENCE The Advocate submitted the following: EA-B1: A letter from Susan Ruttan to Dr. Christopher Atkins dated 2 January 2004

2 EA-B2: A response to Ms. Ruttan s letter from Dr. Atkins dated 6 January EA-Attach-B1: Excerpt from a Federal Court case - Léonelli v. Canada (Attorney General), two pages. Rheumatoid Arthritis FACTS AND ARGUMENT The Advocate submitted that the Appellant had testified as to the physical demands of his job as a military firefighter as well as to having been an instructor in firefighting duties since She maintained that the Review Panel s acceptance of that testimony motivated the Panel to award one-fifth pension entitlement for his claimed rheumatoid arthritis condition on the basis that the ailment was aggravated by the performance of such duties. The Advocate also maintained that the Review Panel accepted the medical opinion of Dr. Christopher Atkins, particularly his statement that extreme physical and mental stress can trigger rheumatoid arthritis but not cause it. The Advocate also stated that the Review Panel, after reviewing a medical text, found that there was a genetic predisposition to the condition and that the existence of such a predisposition became the reason for withholding four-fifths entitlement. The Advocate then referred to the newly submitted medical evidence whereby Dr. Atkins, Specialist in Rheumatology stated in reply to Ms. Ruttan s letter that:...you note that in my letter of May 12th that I state that extreme physical and mental stress could trigger rheumatoid arthritis but not cause this condition. You go on to state that you d appreciate if I could advise whether, in my opinion, extreme physical and mental stress in his duties as a firefighter (in this occupation from 1995 onwards) including severe stress from instructing and being responsible for others learning firefighting (instructing a course in this when the symptoms arose in 2001) would have contributed to the onset of rheumatoid arthritis to a minimal, moderate or even major extent. I think, in this instance, it would be fair to say there would be a moderate contribution although one has to say that it s very difficult to be specific about that. Regarding the working conditions in the Gulf in 1998, prior to his development of rheumatoid arthritis in November of 2001, I think one would have to say that it would be unlikely unless the extreme heat was experienced at the same time as his rheumatoid arthritis came on. The Board then directed its attention to Dr. Atkins previous letter dated 13 May 2003 whereby the attending physician, in reply to the Advocate, stated:...extreme physical and mental stress definitely could trigger rheumatoid arthritis but not cause it. The letter from Ms. Ruttan soliciting this medical opinion states that the Appellant served in a Special Duty Area from July to October 1998 and that the Appellant stated that he taught at Canadian Forces Fleet School at Esquimalt in the Damage Control Division. He taught the practical work of firefighting which was physically demanding - for example, he had a continuous course of 22 students. This was at a time when he also was subjected to the additional emotional stress of being responsible for leading these students into practice fires as part of their training in firefighting. Ms. Ruttan stated that this occasioned extreme physical and mental stress and queried Dr. Atkins as to whether such stress could have contributed to, precipitated or triggered the manifestation of rheumatoid arthritis. The Board reviewed all of the medical evidence contained on file and noted that the Appellant told attending physicians that following the birth of his baby, he had difficulties because of his rheumatoid arthritis. He also reported having had difficulty grabbing a hose and getting lids off bottles as well as with being fatigued. The Board notes that the Appellant s mother also had rheumatoid arthritis, but nowhere in the file is there any reference to extreme stress contained in medical documentation. The Appellant, in his statement at the time of application, stated that due to the severity of his rheumatoid arthritis he had been put in a new job and had ongoing swelling and joint pain with fatigue. The Board then reviewed the previous Entitlement Review Decision dated 23 June 2003 and noted that the Appellant advised the Panel that he had served in a Special Duty Area (Persian Gulf) between July and

3 October 1998, but did not specifically refer to any requirements which might have involved him in extremely physically demanding duties. He did give evidence that, as an instructor, there were times when he had to lift heavy weights and be involved in firefighting activities which demanded extreme physical exertion. As to stress, rather than physical exertion, the Board notes that the Appellant gave no evidence of extreme physical and mental stress during his Regular Force service. The Review Decision stated:...it would appear to the Panel, both from the testimony of the Applicant at the hearing and from the information in ER-B4, that the duties of a firefighter involve both physical and mental stress, especially with the mental stress involving a concern as to the consequences of fires. However, it would also seem to the Panel that the Applicant was quite familiar with the duties of both a firefighter and duties as an instructor of firefighting to other individuals. Nevertheless, there is the clear and uncontradicted evidence of the rheumatologist specialist in ER-B2 to the effect that extreme physical and mental stress could trigger rheumatoid arthritis. There is not any indication in this exhibit that the condition could be caused by either physical or mental stress. The Panel then looked at the information contained in the attachments dealing with other cases and would state that each case must be considered on its own particular merits and, therefore, the decisions in one Veterans Review and Appeal Board situation have very little bearing on entitlement, or lack of entitlement, in other situations. Nevertheless, the Panel would note that in the other situation provided in the attachments, there is the medical opinion to the effect that physical stress could permanently aggravate a pre-existing condition. Finally, there is the opinion of the doctor in the circumstances of the present case that severe stress of a physical nature, as well as a mental nature, might aggravate a condition, even though there is no indication that such an aggravation would be permanent. Mindful of its duties and responsibilities pursuant to section 39 of the Veterans Review and Appeal Board Act to resolve all doubt in favour of an Applicant or Appellant,...(stated)...that the claimed condition, although not caused by the Applicant s military service, might have been aggravated on a permanent basis to a most minimal extent by the exigencies of his military service... REASONS AND CONCLUSION In arriving at this decision, the Appeal Panel has carefully reviewed all the evidence, medical records and the submissions presented by the representative Pensions Advocate, and has complied fully with the statutory obligation to resolve any doubt in the weighing of evidence in favour of the Applicant or Appellant as contained in sections 3 and 39 of the Veterans Review and Appeal Board Act. The Board, in reviewing all of the available evidence, noted that there is no medical evidence to substantiate that the Appellant complained or continued to complain of any extreme or severe mental stress during his military service. The Panel agreed that the Appellant did complain of fatigue as it related to his partially pensioned condition. The first reference to extreme physical and mental stress, however, was made by Ms. Ruttan of the Bureau of Pensions Advocates in her letter to Dr. Atkins on 12 May Dr. Atkins, in his reply of 13 May 2003, stated that extreme physical and mental stress could trigger rheumatoid arthritis but not cause it. The Board then reviewed Ms. Ruttan s second letter contained in EA-B1 which stated: It would be greatly appreciated if you could advise whether in your opinion the extreme physical and mental stress in his duties as a firefighter...would have only contributed to...a minimal (1/5) extent or...a moderate (2/5) extent or a major (3/5) extent... As noted earlier, Dr. Atkins, in response to this letter in EA-B2, stated that in his opinion:...extreme physical and mental stress in his duties as a firefighter (in this occupation from 1995 onwards) including severe stress from instructing and being responsible for others learning firefighting (instructing a course in this when the symptoms arose in 2001) would have contributed to the onset of rheumatoid arthritis to a minimal, moderate or even major extent. I think, in this instance, it would be fair to say there would be a moderate contribution although one has to say that it s very difficult to be specific about that. Regarding the working conditions in the Gulf in 1998,

4 prior to his development of rheumatoid arthritis in November of it would be unlikely unless the extreme heat was experienced at the same time as his rheumatoid arthritis came on. The Panel therefore found the medical opinions from Dr. Atkins to be based on solicitations from the Bureau of Pensions Advocates, including assumptions on the part of the Bureau that the severe physical and mental stress the Appellant allegedly suffered was related to the partially pensioned condition. The Board found no documented evidence that the Appellant was under severe mental stress in relation to his Regular Force or Special Duty Area duties. The Advocate submitted before this Appeal Board that Dr. Atkins opinion did not take into consideration the application of the presumption found in subsection 21(3) of the Pension Act. The Advocate stated that if a disease, or the aggravation thereof, was incurred during any military training, it should be presumed to have arisen out of or to have been directly connected with that military service. She noted that there must be evidence to the contrary to rebut this presumption and there was no medical evidence to rebut same. Commenting that the previous level of adjudication reviewed a medical text to determine that rheumatoid arthritis had a genetic predisposition, she also argued that a predisposition did not mean that this particular Appellant would necessarily have contracted rheumatoid arthritis at any time in his life, unless he was subjected to the right trigger. The Advocate noted that there was no medical evidence or opinion to support any finding that the Appellant would have necessarily developed the condition at some time during his lifetime; therefore, there was no evidence to rebut subsection 21(3) of the Pension Act. Having thoroughly reviewed the file, the Board noted that the Advocate s arguments as to whether the Appellant should benefit from the presumption of a link between his claimed rheumatoid arthritis condition and his military service rely, for their application, upon the Advocate s assertion that the condition first manifested itself while the Appellant was instructing a group of students in late That assertion, however, would appear to be at odds with the Appellant s own statements and the documentary evidence contained in the file. The Board noted that the Appellant, in ER-B1 submitted at the Entitlement Review hearing, stated on 19 June 2003 that: While I was instructing a Hull teck conversion course, I began to notice that there was something wrong, I became ill. Thinking that I had a flu, I thought that this would pass and instead I became worse.... On 30 May 2002, however, he had stated in his First Application for Disability Pension benefits as follows: ON OR Around 15 Dec 001, I became ill with a great deal of pain and discomfort. At the time I thought it was a Body Flew. Over the christmas holidays I was ill to the point that I could hardly move. January of this year I reported to the PA of the school who recomended me to the Base Hospital for blood work. That was where I was confirmed with this condition or disease.... (as transcribed) Of the two explanations as to the timing of what the Appellant believes the first manifestations of his claimed rheumatoid arthritis condition to have been, the Board considered his statement of 30 May 2002 to be more accurate and credible. It was made more closely in time to the actual events described and concurs more closely with the contents of ER-B4, which show that the Appellant indeed was employed on instructional duties with a Hull Technician Conversion Course between 22 October 2001 and 23 November The same documents show, however, that the Appellant was employed on at least two other duties between 26 November 2001 and 9 December 2001, his instructional responsibilities with the Hull Technician Conversion Course having apparently ceased on 23 November 2001, some three weeks before he reported becoming ill with the symptoms which he alleges were the first manifestations of his claimed rheumatoid arthritis. As to his testimony before the Entitlement Review Panel, the Panel s decision simply reflects that the Appellant reiterated that his symptoms occurred late in 2001, which was of no help in pin-pointing the time of onset as having occurred while he was instructing a group of students, as the Advocate alleged in her written brief. The Board considered the Appellant s own allegations as to the time of onset of his disability, corroborated at least in part by the information in ER-B4, to demonstrate that the onset of his rheumatoid arthritis was insidious, which would not be an uncommon development in an inflammatory disease which the Panel understood to be of unknown etiology.

5 The important factor to note here is that the evidence does not appear to support the Advocate s assertion that the first manifestations of the Appellant s claimed disability occurred while he was instructing a group of students. The assertion does not concur with the most credible testimony as to the actual course of events, being the Appellant s own statement of 30 May 2002, as corroborated by the documentation from Damage Control Division of the Canadian Forces Fleet School in Esquimalt. If the assertion that the Appellant was instructing a group of students when his illness first came upon him cannot credibly be substantiated, then the Advocate cannot allege in any reliable fashion that the Appellant s claimed disease was incurred in the course of military training so as to merit the benefit of the presumption as to the connection with service which arises from the operation of paragraph 21(3)(f) of the Pension Act. That being the case, the Board could not find in the present circumstances that the Appellant s claim is one to which the above noted presumption applies. The Advocate also stated that the Review Panel used similar logic to refute the presumption of fitness arising from the operation of subsection 21(9) of the Pension Act. Having commented, as noted earlier, that the previous level of adjudication reviewed a medical text to determine that rheumatoid arthritis had a genetic predisposition, she also argued that a predisposition did not mean that this particular Appellant would necessarily have contracted rheumatoid arthritis at any time in his life, unless he was subjected to the right trigger. She indicated that the rationale for refusing full entitlement again was faulty, as a genetic predisposition does not necessarily result in any illness, without a trigger, and contended that the Appellant s condition was actually triggered while he was teaching a course during his Regular Force duties. She contended that the available medical opinion states that stress could have triggered the condition; therefore, the combined effect of the provisions of subsections 21(3) and (9) of the Pension Act raises a presumption that the claimed rheumatoid arthritis condition arose out of the Appellant s military service since it did not exist at enlistment and there was no proof beyond a reasonable doubt that the condition was not related to such service. Once again, the Board considered the Advocate s arguments to be flawed by the fact that the available evidence did not substantiate the contention that the Appellant s condition was triggered while he was teaching a course during his Regular Force duties. Therefore, the presumption of a service connection, which ordinarily would flow from the operation of subsection 21(3) of the Pension Act, was considered not to be applicable to the present case as already explained above and thus could not be seen to combine with the presumption as to fitness upon enrolment, arising out of subsection 21(9) of the same Act, as the Advocate contended should be the case. As for the presumption arising from the operation of subsection 21(9) itself, the Advocate relied on the Pension Act and contended that the presumption could only be rebutted if the condition for which pension was claimed was diagnosed within three months of enlistment or if there was medical evidence to establish beyond a reasonable doubt that the condition existed prior to the claimant s enlistment. She denied either situation existed in the present case. The Advocate, in her argument, additionally referred to a Federal Court decision (EA-Attach-B1), Léonelli v. Canada, and cited the following extract: {49} The presumption under subsections 21(3) and (9) of the Pension Act was not considered by the Board. Nevertheless, it is part of the Act, and must be taken into account when the Board is evaluating a pension application.... a finding that there was no disability in the medical examination at the time of enlistment suffices to establish that the person was not suffering from a disability at the outset, unless there is evidence that the disability was diagnosed within three months after the enlistment or evidence can be presented beyond a reasonable doubt that the disability existed prior to enlistment. (italics added) The Board agreed that there was no diagnosis of the Appellant s claimed rheumatoid arthritis condition within three months of enlistment, but took issue with the Advocate s contention that the Review Panel acted improperly in referring to the Merck Manual, a well-known medical text and diagnostic tool equally used as a reference by the Department of Veterans Affairs which notes that rheumatoid arthritis is an ailment of unknown etiology, but that there is a strong genetic predisposition in certain individuals to develop the disease. The Board found, in the circumstances, that there was no impropriety in the Review Panel referring to the Merck Manual, as a synopsis of current medical knowledge regarding the claimed condition and,

6 indeed, relying upon it as indicative of the fact that rheumatoid arthritis is a disease of unknown etiology and of insidious onset, occurring most frequently in individuals who are genetically predisposed to develop it as was the Appellant whose mother also suffered from the disease. The information drawn from that publication was thus seen as reliable, convincing and sufficient to establish beyond a reasonable doubt that the Appellant s rheumatoid arthritis condition or, more precisely, a predisposition to develop it, necessarily would have existed prior to his enrolment. The Board noted, in considering this issue, that the information conveyed in the Merck Manual essentially reiterates the information referring to rheumatoid arthritis which is contained in the Department of Veterans Affairs own Entitlement Eligibility Guidelines, the relevant portion of which reads as follows: PENSION CONSIDERATIONS A. CAUSES AND/OR AGGRAVATION 1. Idiopathic Only modest progress has been made in determining the cause of RA. The vast majority of persons with RA have no known external cause. A variety of studies suggests that a blend of environmental and genetic factors is responsible. 2. Genetic susceptibility prior to clinical onset There are a number of genetic variables which affect the development of RA. The HLA-DR4 gene product is found in the majority of persons with classic symptoms; however, this gene type is also found in the population not affected by RA. 3. Exposure to silica dust prior to clinical onset or aggravation Crystalline silica, or quartz, is an abundant mineral found in sand, rock (mainly granite), and soil. High-level exposure to respirable silica dust can cause chronic inflammation and fibrosis in the lung and other organs. The pathophysiological role of silica dust in RA may be based on its effects on the immune system. For silica dust exposure to cause or aggravate RA, the following should be evident: Heavy exposure to silica dust, such as might occur in an environment where granite or quartz is being drilled or excavated, should occur over an approximate 10 year period; and Signs/symptoms of RA should develop during the exposure or within 25 years of cessation of the exposure. Occupations associated with silica dust exposure include sandblaster and smelter. 1. Inability to obtain appropriate clinical management Exclusions: Despite research efforts to date, there is a lack of sufficient evidence at this time to establish for pension purposes causation and/or aggravation between the following and RA: infectious etiology immunization physical trauma stress The Appeal Board therefore considered the use of such information by the Review Panel, whether contained in the Merck Manual or in the Department of Veterans Affairs own Entitlement Eligibility Guidelines, to have been a legitimate use of reliable and convincing information pertinent to the adjudication of the claim. Further, the Panel took note of those of the Advocate s arguments in which she argued that the decisions of the Federal Court in the MacDonald and Léonelli cases bind the Board to seek independent medical advice each time it wishes to take issue with credible medical evidence which has been pleaded before it. Certainly, the edicts of the Federal Court in such cases must be taken into account, but the Board does not consider

7 that they must be interpreted as being binding upon it in circumstances which were never in the contemplation of the Court when such decisions were handed down. This is especially so in the case of conditions where, as here, the onset is insidious and the etiology is unknown. There are a number of such ailments which, despite their means of causation either being medically unknown or being hereditary or systemic, must regularly be adjudicated upon by the Department of Veterans Affairs and the Veterans Review and Appeal Board if such authorities are to fulfill their adjudicative and review and appeal functions in respect of disability pension applications. Cancer, multiple sclerosis, chronic interstitial fibrosis, amyotrophic lateral sclerosis, Crohn s disease, manic depression, poliomyelitis and even simple allergies all are examples of ailments upon which the Board is called to rule and which occur for unknown reasons or for which individuals are predisposed for hereditary or other reasons and regardless of their occupation or calling, be it military or civilian. Further, the Court s observation in the Léonelli case that the Veterans Review and Appeal Board Act does not attribute any medical competence to members of the Board cannot be seen to clog or fetter what the Court itself describes as the Board s exclusive jurisdiction over entitlement to pensions. Neither can the Board give much credence to the Court s statement that it has a duty to seek the advice of an independent medical expert if the tribunal wishes to contradict, or act in opposition to, medical evidence before it which has not so far been contradicted. The ultimate result of such logic would be that the Board would have to defer to expert medical opinion whenever such opinion, in a non-adversarial system, purported to establish a link between a condition for which disability pension benefits were claimed and the claimant s military service. In short, the Board would have to defer to expert evidence on the very issue over which it has been given exclusive jurisdiction by Parliament. In the face of such an interpretation of the Federal Court s ruling, the Board is obliged to state that the Federal Court itself hears from expert witnesses, but the Board is certain that the Court does not allow its authority and responsibility to decide cases to be ousted by a witness, no matter how expert. How much less, then, should a specialized tribunal, designated to be the arbiter of arcane and highly-complicated issues, be required to defer to expert opinion on the very matters upon which it is required to render decisions. That is not to say that such opinions should be ascribed no weight or probative value, but simply to reiterate that they cannot be substituted for the Board s exclusive jurisdiction to decide such issues. That would especially be so in cases where, as here, the medical opinions in question were based on solicitations from the Appellant s representatives, which themselves made assumptions as to the role certain factors may have played in the onset of the claimed ailment and its connection to the Appellant s military service. In a non-adversarial setting, and based upon such reasoning, the Board could be led into having to decide the case based upon a medical opinion given without full knowledge of all issues and circumstances which might be pertinent to such deliberations. It is ordinarily the case that administrative and quasi-judicial tribunals are very close to the issues they entertain. In the case of the Veterans Review and Appeal Board, the tribunal is seen not only as an adjudicative body, but also as an integral part of the Veterans Affairs portfolio, well respected by senior officials of the Department of Veterans Affairs and enjoying significant recognition, from such officials and from Veterans service organizations, as both a decision-maker and a repository of expertise in pension matters predicated upon being both the author of, and the successor to, an adjudicative history of pension jurisprudence which spans nearly a century. The rulings of the Board, in nearly all the cases which are brought before it, are very closely tied to the highly specific circumstances of the individual bringing the claim. To extrapolate from such highly individualistic facts and thus to interpret rulings of the Federal Court in specific cases in such a way as to restrict the Board s jurisdiction, is to fail to recognize that tribunals such as the Veterans Review and Appeal Board bring to bear in their decisions a level of knowledge and expertise in their particular fields which goes well beyond the usual and ordinary experience of the Court. There is no doubt that the Federal Court remains, and must remain, a formal mechanism for judicial review of Board decisions, but that review function should not, and must not, hinder the tribunal in the exercise of its full and exclusive jurisdiction to perform the functions, and exercise the responsibilities assigned to it by Parliament. Rather, one might hope that judicial review would encompass and provide a constructively critical overview of Board procedure which would protect and enhance the indispensable role of the Board in the adjudication of claims brought forward under the Pension Act and the other pieces of Veterans legislation which Veterans Affairs Canada is called upon to administer.

8 The Advocate also noted, citing paragraph {52} of the Léonelli Federal Court decision that the Honourable Judge, in commenting on a causal link, stated: With respect, I do not think the applicant here had a duty to present evidence of a causal link. The critical clause in subsection 21(3) ( shall be presumed, in the absence of evidence to the contrary ) suffices to reverse the burden of proof. It is for anyone objecting to the application to establish that the injury or illness was not directly connected to service. With all due respect to the learned Judge of the Federal Court, this Board notes that the adjudication of a disability pension claim before the Veterans Review and Appeal Board is a non-adversarial process and it is not the responsibility of the adjudicators at any level to object to evidence presented, to provide contrary medical evidence or to advance arguments contrary to the interests of the Appellant. Rather, pursuant to section 3 of the Department of Veterans Affairs Award Regulationsp>, the applicant for an award pursuant to the Pension Act must provide any documentation necessary to substantiate his or her claim. Once the matter is dealt with by the Department and the case is brought before the Board on review or appeal, it is the responsibility of the Veterans Review and Appeal Board to weigh all of the evidence and, having done so, to exercise its statutory authority and responsibility to rule upon the claim before it in accordance with the relevant legislative provisions. The presumption arising from the wording of subsection 21(3) of the Act does not change the state of affairs noted above. It simply eases the burden on the Appellant in cases to which the provisions of any of the heads of subsection 21(3) may be found to apply. In the present case however, and for the reasons noted above, the Appeal Board did not consider that the available evidence establishes that the provisions of subsection 21(3), and more particularly paragraph 21(3) (f) thereof, apply to the Appellant s case. Thus, in relation to subsections 21(1) and 21(2) of the Pension Act, the Board noted that there is no evidence on file that the Appellant s rheumatoid arthritis had any linkage to his Special Duty Area service. In reference to the partial entitlement awarded by the Review Panel in June 2003 and in accordance with subsection 21(2) of the Pension Act, that Panel, in the full application of section 39 of the Veterans Review and Appeal Board Act, awarded one-fifth pension entitlement for the Appellant s claimed rheumatoid arthritis condition. This Board already has noted that the available medical opinions were solicited by the Bureau of Pensions Advocates, which held out information to the attending specialist of severe mental and physical stress. The Panel found that there was no objective evidence contained in the material presented to it or in the file to confirm same. The Board therefore found that the Appellant s rheumatoid arthritis is appropriately linked to his Regular Force service by the present one-fifth entitlement. The Board thus affirmed the Entitlement Review Decision dated 23 June RELEVANT LEGISLATION In accordance with the provisions of Subsection 21(1) of the Pension Act, Appropriation Act No. 10, 1964, and section 1 of the Special Duty Area Pension Order, where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall, on application, be awarded to or in respect of the member. Paragraph 21(1)(a) of the Pension Act states that in respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service in the Korean War, service as a member of the special force and special duty service, where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I. Paragraph 21(2)(a) of the Pension Act states that in respect of military service rendered in the nonpermanent active militia or in the reserve army during World War II and in respect of military service in peace time, where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I.

9 Paragraph 21(3)(a) of the Pension Act provides the following: For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of (a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority. Subsection 29(1) of the Veterans Review and Appeal Board Act states that an appeal panel may (a) affirm, vary or reverse the decision being appealed; (b) refer any matter back to the person or review panel that made the decision being appealed for reconsideration, re-hearing or further investigation; or (c) refer any matter not dealt with in the decision back to that person or review panel for a decision. Section 25 of the Veterans Review and Appeal Board Act states that an applicant who is dissatisfied with a decision made under section 21 or 23 may appeal the decision to the Board. Section 26 of the Veterans Review and Appeal Board Act states that the Board has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the Board under section 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals. Section 3 of the Veterans Review and Appeal Board Act states that the provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and the Government of Canada to those who have served their country so well and to their dependants may be fulfilled. Section 39 of the Veterans Review and Appeal Board Act states that in all proceedings under this act, the Board shall draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. DECISION BEING APPEALED RHEUMATOID ARTHRITIS Not attributable to nor incurred during service in a Special Duty Area (Cyprus, Persian Gulf). Section 1, Special Duty Area Pension Order Subsection 21(1), Pension Act THE BOARD REVERSES THE MINISTER S DECISION Award of one-fifth for that part of the disability or aggravation thereof that arose out of or was directly connected with service in peace time in the Regular Force. Subsection 21(2), Pension Act VRAB Entitlement Review Decision dated 23 June 2003 The Appellant first applied for pension entitlement for the above condition on 7 May 2002.

10 Date Modified: