By Brian Forbes, Chair of the National Council of Veteran Associations & Chair of the Executive Committee of The War Amps
(Reprinted with permission from The Hill Times)
In these challenging times, and with a pending election on the horizon, Canadian veterans and their families will be closely monitoring all federal leaders to determine which party is prepared to make a substantial commitment to rectifying the shortfalls and inequities which continue to be found in veterans’ legislation.
The National Council of Veteran Associations (NCVA), as a fundamental tenet of our recently approved 2020-21 Legislative Program, has made a number of major recommendations to the Minister of Veterans Affairs and senior VAC officials to address the discrimination and injustice (the “elephant in the room”) that exists with respect to the financial compensation available to disabled veterans and their families when comparing the traditional Pension Act (PA) and the New Veterans Charter/Veterans Well-being Act (NVC/VWA).
The essential components of the NCVA recommendations are as follows:
· NCVA takes the position that VAC, working together with relevant Ministerial Advisory Groups and other veteran stakeholders, should think “outside the box” by jointly striving over time to create a comprehensive program model that would essentially treat all veterans with parallel disabilities in the same manner as to the application of benefits and wellness policies – thereby resulting in the elimination of artificial cut‑off dates that arbitrarily distinguish veterans based on whether they were injured before or after 2006. In our considered opinion, the Government has failed to meet veterans’ expectations with regard to its mandated commitment to “re-establish lifelong pensions” so as to ensure that a comparable level of financial security is provided to all disabled veterans and their families over their life course.
· NCVA adopts the position that much more is required to improve the NVC/VWA and that the Government needs to fully implement the Ministerial Policy Advisory Group (MPAG) recommendations presented to the Minister of Veterans Affairs and the Veterans Summit in October 2016 and, more recently, the report of January 2020, with particular emphasis on:
o Ensuring that no veteran under the NVC/VWA would receive less compensation than a veteran under the PA with the same disability or incapacity in accordance with the “one veteran – one standard” principle
o Utilizing a combination of the best provisions from the PA and the best provisions from the NVC/VWA, so as to produce a form of lifetime pension in a much more realistic manner in order to secure the financial security for those veterans who need this form of monetary support through their lifetime
In addition to these overriding guiding principles for veterans’ legislative reform, the following NCVA recommendations represent specific statutory and policy amendments in furtherance of this objective:
o Liberalize the eligibility criteria in the legislation and regulatory amendments for the new Additional Pain and Suffering Compensation (APSC) benefit so that more disabled veterans actually qualify for this benefit. Currently only veterans suffering from a severe and permanent impairment will be eligible. It bears repeating that the greater majority of disabled veterans simply will not qualify for this new component of the proposed lifelong pension.
o The Veterans Disability Award (Pain and Suffering Compensation (PSC) benefit) initially granted to the veteran should be a major determinant in evaluating APSC qualifications. It is the position of NCVA that this employment of the Disability Award (PSC) percentage would produce a more straightforward and easier understood solution to this ongoing issue of APSC eligibility.
o Create a new family benefit for all veterans in receipt of a Disability Award (PSC) to parallel the PA provisions in relation to spousal and child allowances to recognize the impact of the veteran’s disability on his or her family.
o Incorporate the longstanding special allowances under the PA, i.e. Exceptional Incapacity Allowance (EIA) and Attendance Allowance (AA), into the NVC/VWA to help address the financial disparity between the two statutory regimes.
o Replace the present Caregiver Recognition Benefit (CRB) by revitalizing the traditional concept of AA, payable to informal caregivers to better recognize and more generously compensate the significant effort and economic loss to support injured veterans, and ensure access reflects consideration for the effects of mental health injuries.
o Establish a newly structured Career Impact Allowance (CIA) which would reflect the following standard of compensation: “What would the veteran have earned in his or her military career had the veteran not been injured?” This form of progressive income model, which has been recommended by the MPAG and the Office of the Veterans Ombudsman (OVO), would be unique to the NVC/VWA and would bolster the potential lifetime compensation of the disabled veteran as to his or her projected lost career earnings, as opposed to the nominal one percent increase provided in the current legislation.
o NCVA encourages VAC to revisit the MPAG proposition of consolidating the present Income Replacement Benefit (IRB) and a newly structured CIA to provide a single stream of income for life which would include the “projected career earnings” approach.
Let us now compare the present pension benefit regimes and then take a look at what VAC legislation would provide to veterans and their families if the afore-mentioned NCVA proposals were adopted by the Government.
For 100 percent pensioners (at maximum rate of compensation):
PENSION ACT (2020)
It is of even greater significance to recognize the impact of the Pension for Life (PFL) policy which became effective on April 1, 2019, on those disabled veterans who might be considered moderately disabled as the disparity in financial compensation between the statutory regimes is even more dramatic.
Let us take the illustration of a veteran with a 35 percent disability assessment:
• Assume the veteran has a mental or physical injury which is deemed not to be a “severe and permanent impairment” – the expected eligibility reality for the greater majority of disabled veterans under the NVC/VWA.
• The veteran enters the income replacement/rehabilitation program with Service Income Security Insurance Plan Long Term Disability (SISIP LTD) as the first responder or the IRB/rehabilitation program with VAC.
• Ultimately the veteran finds employment in the public or private sector attaining an income of at least 66‑2/3 percent of his or her former military wage.
It is important to be cognizant of the fact that, once such a veteran earns 66‑2/3 percent of his or her pre‑release military income, the veteran is no longer eligible for the SISIP LTD or the VAC IRB and, due to the fact that the veteran’s disability does not equate to a “severe and permanent impairment,” the veteran does not qualify for the new Additional Pain and Suffering Compensation Benefit.
Therefore, the comparability evaluation for 35 percent pensioners would be as follows under the alternative pension schemes:
We would underline that this analysis demonstrates the extremely significant financial disparity which results for this type of moderately disabled veteran. It is also essential to recognize that over 80 percent of disabled veterans under the NVC/VWA will fall into this category of compensation. Unfortunately, the perpetuation of the inequitable treatment of these two distinct classes of veteran pensioner is self‑evident and remains unacceptable to the overall veterans’ community.
Finally, let us consider the impact on this analysis in the event the NCVA proposals were to be implemented as part and parcel of an improved NVC/VWA:
In summary, this combination of augmented benefits proposed by NCVA would go a long way to removing the discrimination that currently exists between the PA and the NVC/VWA and would represent a substantial advancement in the reform of veterans’ legislation, concluding in a “one veteran – one standard” approach for Canada’s disabled veteran population.
In addition, should VAC implement NCVA’s recommendations (as supported by the OVO and MPAG) with respect to a newly structured CIA, the IRB would be substantially enhanced by incorporating this progressive future loss of income standard as to “What would the veteran have earned in his or her military career had the veteran not been injured?”
It is noteworthy that the current IRB essentially provides 90 percent of the former military wage of the veteran, together with a limited one percent increment dependent on the veteran’s years of service, resulting in an inadequate recognition of the real loss of income experienced by the disabled veteran as a consequence of his or her shortened military career.
The new conceptual philosophy of this future loss of income approach parallels the longstanding jurisprudence found in the Canadian courts in this context and is far more reflective of the actual financial diminishment suffered by the disabled veteran (and his or her family). This would represent a major step forward for VAC in establishing a more equitable compensation/pension/wellness model.
As a final observation, it is noteworthy that the Prime Minister, various Ministers of the Department and senior governmental officials of VAC, in their public pronouncements from time to time, have emphasized that additional benefits and services are uniquely available under the NVC/VWA with respect to income replacement, rehabilitation, and wellness programs
NCVA fully recognizes the value and importance of these programs and we commend VAC for its efforts to improve the Department’s wellness and educational policies. However, it should be noted that a number of programs dealing with essentially parallel income replacement and rehabilitation policies already exist under the PA regime by means of services and benefits administered by the Department of National Defence (DND) through their SISIP LTD insurance policy and Vocational Rehabilitation (VOC‑REHAB) Programs.
The one unique element of NVC/VWA with respect to income replacement which is comparably beneficial for a very small number of seriously disabled veterans is triggered where such a disabled veteran is designated as having qualified for “Diminished Earnings Capacity” status (which requires that a veteran is unemployable for life as a consequence of his or her pensioned disabilities).
In these circumstances, such a veteran will receive additional funds post-65 for life that are not available under the Pension Act/SISIP LTD program where such income replacement ends at age 65. This is most significant where the veteran has been medically released relatively early in his or her career.
It is noteworthy in this scenario that less than six percent of all disabled veterans qualify for the Diminished Earnings Capacity. Thus, 94 percent of veterans are not eligible for this post-65 benefit under the NVC/VWA.
At the time of the enactment of the New Veterans Charter in 2006, VAC committed to eliminating SISIP LTD and VOC‑REHAB programs and creating a new universal gold standard in regard to income replacement and wellness policies which would be applicable to all disabled veterans in Canada. The reality is that the SISIP LTD and VOC‑REHAB insurance policy has been and continues today to be “the first responder” for the greater majority of disabled veterans who have been medically released from the Canadian Armed Forces in relation to both the PA and the NVC/VWA.
As a fundamental conclusion to our position we would like to think that the Government could be convinced that, rather than choosing one statutory regime over the other, a combination of the best parts of the PA and the best parts of the NVC/VWA would provide a better compensation/wellness model for all disabled veterans in Canada.
As Canadians confront the inevitability of a federal election in the foreseeable future, we would underline the fact that there are almost 700,000 veterans in Canada today and, when family, friends and supporters are considered, this number of potential voters is not without significance. The basic question remains: which federal party will stand up for veterans in the next election campaign and finally address this “elephant in the room”?
