The Review and Appeal Process
If you have concerns about any decision received from VAC regarding your application for disability benefits, you may request the legal services of BPA without charge. Your BPA lawyer will inform you of your options.
In some cases, after careful evaluation of the claim, your lawyer may recommend that you not proceed with a review or appeal. Ultimately, however, you will decide whether to proceed or not.
If you decide to proceed with a claim, the following ways for review and appeal may be available:
If you have important new evidence after receiving a decision that you are not satisfied with, you have the option of having your claim reviewed again by VAC through a written submission called a Departmental Review. Instead of a departmental review, your case could proceed before a Review Panel of the Veterans Review and Appeal Board (VRAB), which is an independent federal tribunal.
At VRAB Review Hearings you may attend in person before members of the Board (usually two) at VAC's expense. The lawyer will conduct the hearing by going through the documentation in your file with the Board members, asking questions of you and/or any witnesses, introducing new evidence, and making oral argument on your behalf. If you are unable to appear personally due, for example, to illness, your lawyer may proceed in your absence, with your consent. You may be permitted to testify by telephone, if you have the agreement of the Board.
The Bureau represents as many as 600 clients a month before Review Panels. A centralized computer tracking system allows the Bureau's Head Office to determine the number of claims pending hearing across Canada. Hearing schedules are prepared two to three months in advance, depending on the case load in each area. You will be given plenty of advance notice of your hearing and it will be scheduled at a time and place as convenient for you as possible.
The Bureau has a service standard of 21 weeks for Review Hearings. This time is calculated from the date you contact the Bureau to the date your case is ready for hearing minus the time it takes to obtain necessary medical or other supporting information. The VRAB is usually able to provide a written decision within 6 weeks of a hearing, so you will probably know the outcome of your case within six months of first approaching the Bureau.
If you are not satisfied with the decision of the VRAB Review Panel, you have the right to appeal that decision to the Appeal level of the VRAB. You may also be represented by a BPA lawyer at this stage, at no charge. Appeal Hearings are held in Charlottetown before a different panel from your Review level hearing. At the Appeal level, Bureau lawyers file a written submission with the VRAB prior to the hearing. Written or oral arguments are made by lawyers at the hearing, and other important written information can also be submitted.
On average, the Bureau presents 200 claims a month before an Appeal Board. You can expect a 21 week turnaround time for appeal hearings (calculated from the date you contact the Bureau to the date your case is ready for hearing minus the time it takes to obtain information to support your case). Again, the VRAB is usually able to give a written decision within 6 weeks of a hearing.
Decisions of the VRAB Appeal level are normally final and binding, however, there are provisions in the Veterans Review and Appeal Board Act that allow the Board to reconsider the matter if there has been an error of fact, error of law, or if new, significant evidence is brought forward. These reconsiderations are not automatic.
The role of the Bureau throughout this process is to provide clients with the best advice and representation possible. If your lawyer, on a detailed review of the documentation, concludes that your claim will probably not be successful, the lawyer will let you know and suggest that you not move forward. However, the ultimate decision rests with you as to whether or not to proceed.
In very rare cases, you may be able to refer your claim to the Federal Court of Canada for Judicial Review. This approach may be considered in situations where you feel that the Board has made an error in law or in fact, or has overlooked significant facts that may have far-reaching effects on a larger class of clients. This usually involves an issue of interpretation of specific laws. If the Federal Court determines that the Board has erred, the case can be referred back to the Board for re-hearing. Your BPA lawyer will advise you if she or he thinks that this is a good option for you.
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