B22/1995 DETERMINING COMPENSATION CLAIMS WHERE RMA HAS NOTIFIED INVESTIGATION OF CONDITION

DATE OF ISSUE: 28 MARCH 1995

DETERMINING COMPENSATION CLAIMS WHERE RMA HAS NOTIFIED INVESTIGATION OF CONDITION

Conditions Notified For Investigation By The RMA

1. The RMA has given notice under Section 196G of the Act that it intends to carry out investigation of particular contentions of some conditions. This instruction outlines the procedure to be followed in processing claims for these conditions lodged since 1 June 1994. It also supplies the wording for Reasons and other correspondence which SSOs can load into local Word glossaries for processing staff support.

2. A list of the conditions and the contentions notified for investigation is at Attachment A. Also on this list are two conditions that the RMA has indicated it is undertaking in-house investigation of contentions. For all these conditions the RMA has issued or is about to issue a Statement of Principles. The processing of claims for conditions officially notified for investigation and claims for conditions being investigated in-house will be the same.

3. As you are aware, when the RMA has not issued a SOP and an investigation of the condition under Section 196G is notified by the RMA no decision can be made (either accept or reject). However, as a RMA SOP will be in existence for the conditions listed at Attachment A, Claims Assessors can make decisions to accept or reject based on these SOPs. As part of the investigation of the claim Claims Assessors should also obtain any appropriate evidence in relation to contentions under investigation by the RMA.

4. If a Claims Assessor determines the claim should be rejected, as it does not meet any current contention contained in the SOP, they should check whether:

the claimant has raised the contention under investigation by the RMA, or

there is any evidence in relation to this contention.

If neither of these two points is applicable the claim is processed as normal. Reasons should indicate that only those contentions in the SOP are allowable (See DI B46/94 of 14 October 1994 for wording to be used).

Section 31 Action

5. To ensure that claimants are not disadvantaged by a rejection decision being made on their claim before the finalisation of RMA investigation, Commission has decided that the following procedures should apply.

6. If a condition is being rejected and there is evidence in respect to a contention under investigation by the RMA the Reasons should contain the extra paragraphs at Attachment B. An action to commence a review under Section 31 of the Act will then be started on the basis that evidence may become available as a result of the RMA's investigations. A form to be placed on file indicating that a review has been commenced is at Attachment C.

7. State offices may wish to register these cases on CMS as Section 31 reviews. Activities can be used to indicate the conditions under review. The National Office may require management information on the number and type of claims registered and state offices should ensure that monitoring systems are established which will allow easy supply of this information.

8. National Office will advise state offices when the RMA has completed its investigations. If the RMA has decided not to amend the SOP for a condition the Section 31 review is discontinued. If registered on CMS the case is withdrawn and claimants are sent an advice at Attachment D. The claimant has no right of review against the Section 31 action being discontinued as no decision to revoke or vary a previous decision has been made (Section 135 (2) refers).

9. If the RMA amends the SOP and adds a new contention then the evidence should be examined and if necessary further evidence obtained by the review delegate. If the claim still cannot be accepted then the review is discontinued. If registered on CMS the case is withdrawn and claimants are to be sent an advice at Attachment E. Again the claimant has no right of review against the Section 31 action being discontinued.

10. If the RMA amends the SOP, adds a new contention, and the claim can now be allowed a Section 31 decision to vary the original decision should be made. The effective date will be the date that would have applied to the original decision. The case should be processed through CMS and the claimant sent a decision advice along the lines suggested at Attachment F. The claimant has the normal right of review within the prescibed period to the VRB against the Section 31 decision (eg. review of date of effect or assessment of pension).

Applications For Review By The VRB

11. Even though a Section 31 review had been commenced, the claimant will retain the right to request a review of the original decision by the VRB within the prescribed period in the Act.

Claimants Who Lodge VRB Applications

12. If the claimant lodges an application for review by the VRB within the prescribed period normal preparation of Section 137 reports should take place. Claimants may inquire about proceeding with the application for review by the VRB. They should be advised that this must be their own decision but once they give the VRB a Certificate of Readiness then the VRB will probably proceed with the hearing as soon as it can be heard.

13. The claimant may decide not provide the VRB with a Certificate of Readiness because they wish to wait for the RMA investigation to be finalised before going ahead with the VRB review. This is a matter they should discuss with the VRB. In these cases the Section 31 review action will continue until a SOP is gazetted. However, it should be remembered the dismissal provisions apply to the VRB once the application to the VRB is two years old.

14. If after giving the VRB a Certificate of Readiness the claimant wishes the hearing delayed until the RMA investigation is complete, they must ask the VRB for a deferral of hearing. This is up to the VRB to decide based on the merits of the application for deferral and may not necessarily be granted.

15. If the claimant provides the VRB with a Certificate of Readiness, the hearing is commenced and the review determined the Section 31 review action lapses. The Section 31 form on file is noted and the claimant sent the advice at Attachment G.

16. If a decision under Section 31 is made to grant the claim (para 10) then, as is normal, the claimant will be advised that the application to the VRB will be treated as an application for review of the Section 31 decision if the applicant wishes to continue with it (eg. review of date of effect or assessment of pension).

17. If the Section 31 review is discontinued without a decision being made (paras 8 & 9) then the original application for review by the VRB is still valid and is continued with. The VRB will of course be bound by the RMA SOP that is in existence.

Further Evidence Lodged During The Review Period

18. During the Section 31 review period a claimant may lodge further evidence in relation to one of the current contentions in a SOP. In this case the evidence should be examined as it normally would. If it allows the claim to be accepted then a Section 31 review decision should be made as it normally would. There is no need to wait until the RMA's investigation is finalised in these circumstances.

Assisting Claimants

19. It may be difficult for many claimants to decide whether to wait for the RMA investigation to be completed or to lodge or go ahead with a VRB review. Claims Assessors should ensure that they are fully aware of the possible implications of all the options. These options are to be fully explained to any claimants that wish to discuss them or have any concerns. Ex-service organisations may also be able to assist claimants in these matters.

Rejection Of Conditions Where RMA SOP Not Yet Issued

20. As you will be aware Commission has been considering allowing delegates to determine claims for conditions where an RMA SOP has not yet been issued. Consultation with ex-service organisations has been taking place on this issue. Should Commission agree to these decisions being taken a separate DI will be issued. However procedures for commencing Section 31 action and advising claimants will be similar to those contained in this instruction.

W MAXWELL

A/G NATIONAL PROGRAM DIRECTOR

(BENEFITS)

Attachment A

CONDITIONS NOTIFIED FOR INVESTIGATION BY RMA UNDER SECTION 196G OF VEA

Osteoarthrosis

Contention: Effects of micro trauma on major weight bearing joints through occupational and/or recreational physical activity.

Cervical Spondylosis

Contention: Effects of micro trauma through occupational and/or recreational physical activity.

Lumbar Spondylosis

Contention: Effects of micro trauma through occupational and/or recreational physical activity.

Thoracic Spondylosis

Contention: Effects of micro trauma through occupational and/or recreational physical activity.

Carcinoma Of The Liver

Contention: Effects of use of tobacco products.

Carcinoma Of Kidney Parenchyma

Contention: Effects of use of tobacco products.

Ischaemic Heart Disease

Contention: Effects of acute and chronic stress

Hypertension

Contention: Effects of acute and chronic stress

CONDITIONS BEING INTERNALLY INVESTIGATED BY RMA

Carcinoma Of The Colon

Contention: Effects of consumption of beer.

Carcinoma Of Prostate

Contention: Effects of fat intake.

CONDITIONS PREVIOUSLY NOTIFIED FOR INVESTIGATION BY RMA WHERE INVESTIGATION HAS BEEN FINALISED WITH THE ISSUE OF A SOP

Carcinoma Of Prostate

Contention: All contentions

Gastro-oesophageal Reflux Disease

Contention: Effects of smoking and alcohol.

Attachment B

CHANGES TO REASONS WHERE EVIDENCE SUGGESTS CONTENTION UNDER INVESTIGATION BY RMA MAY BE A FACTOR IN A CASE BEING REJECTED

Reasons - Section to be added after RIGHT OF APPEAL

(Claim for Disability Pension)

Investigation of {condition} by RMA

When the RMA wishes to research the medical evidence further on a particular condition it has the ability to notify that it is undertaking an investigation of that condition. In this case I am aware that while it has issued a Statement of Principles on the condition of {condition} it has also notified that it is investigating whether {contention} can be regarded as a causal factor in the development of {condition}.

To ensure that you are not disadvantaged by having your claim decided before this investigation is finalised, a review under Section 31 of the Veterans' Entitlements Act 1986 will be commenced. This will allow a senior delegate of Commission to review and vary this original decision should the investigation lead to an amendment of the Statement of Principles that would enable your claim to be accepted as service related.

When this investigation by the RMA is completed you will be advised whether:

a new Statement of Principles has been issued by the RMA that will enabled a senior delegate to review and accept your claim for this condition, or
no new Statement of Principles has been issued by the RMA that would permit the acceptance of your claim and therefore the review under Section 31 will be discontinued.

The commencement of a review under Section 31 of the VEA does not affect your right to lodge, or the time limits for, an application for a review of my decision by the VRB (explained in the section above headed RIGHT OF APPEAL). An application for a review to the VRB can be withdrawn if a favourable decision is made by a senior delegate after finalisation of investigation by the RMA.

(Death Claim)

Investigation of {condition} by RMA

When the RMA wishes to research the medical evidence further on a particular condition it has the ability to notify that it is undertaking an investigation of that condition. In this case I am aware that while it has issued a Statement of Principles on the cause of death of {condition} it has also notified that it is investigating whether {contention} can be regarded as a causal factor in the development of {condition}.

When this investigation by the RMA is completed you will be advised whether:

a new Statement of Principles has been issued by the RMA that will enabled a senior delegate to review and accept your claim, or
no new Statement of Principles has been issued by the RMA that would permit the acceptance of your claim and therefore the review under Section 31 will be discontinued.

Explanatory Attachment - If SOP has not yet been incorporated into CCPS Explanatory Attachment to be amended by addition of paragraphs supplied by Procedural and Training Unit.

Commonwealth Department of

Veterans' Affairs

COMPENSATION

SECTION 31 REVIEW ACTION

Contention under investigation by RMA

Claimant Details

Surname	Given Names	DVA File Number

I have commenced a review under Section 31 of the Veterans' Entitlements Act on this case for the following condition(s). _____________________________________________________________AltI note a Statement of Principle has been gazetted but the RMA is undertaking investigation which may result in new evidence becoming available.

____________________________________ _________________

Delegate of the Repatriation Commission Date

ACTIVITY		DATE	ACTION OFFICER INITIALS
Claim lodged		/ /
Claim rejected		/ /
Claimant advised of Sec 31		/ /
SOP amendment issued	Y/N	/ /
Sec 31 review decision	Y/N	/ /
Sec 31 review discontinued	Y/N	/ /
Veteran applied to VRB	Y/N	/ /
VRB review determined		/ /
Sec 31 review lapsed	Y/N	/ /

Comments______________________________________________________________________________________________________________________
Attachment D

LETTER TO BE SENT TO CLAIMANT WHEN RMA HAS DECIDED NOT TO AMEND SOP AFTER INVESTIGATION

Dear ........................

INVESTIGATION OF {CONDITION} BY REPATRIATION MEDICAL AUTHORITY

(Claim for Disability Pension)

On / / you were notified that the Repatriation Medical Authority was undertaking an investigation of {condition}. As a result a review by a senior delegate of the Repatriation Commission under Section 31 of the Veterans' Entitlements Act was being considered on the decision made on / / to reject your claim for {condition} on the basis that it was not related to your service.

This review was being considered on the grounds that the investigation may bring to light new medical evidence about the factors which may cause {condition}.

The Repatriation Medical Authority has now completed its investigation on this matter. Unfortunately it has not been able to establish a causal relationship between any other factors and {condition} than those already contained in its current Statement of Principles on this condition.

Therefore there is no new evidence to be considered in your case and the review by a senior delegate of the Repatriation Commission has been discontinued. The original decision dated / / rejecting this condition as not due to service still stands.

Option if VRB application already lodged

This has no effect on your application for review by a Veterans' Review Board lodged on / / . This application is still being processed.

(Claim for Death)

On / / you were notified that the Repatriation Medical Authority was undertaking an investigation of {condition}. As a result a review by a senior delegate of the Repatriation Commission under Section 31 of the Veterans' Entitlements Act was being considered on the decision made on / / to reject your claim for the death of {veteran}on the basis that it was not related to service.

This review was being considered on the grounds that the investigation may bring to light new medical evidence about the factors which may cause {condition}.

(Option if VRB application already lodged)

This has no effect on your application for review by a Veterans' Review Board lodged on / / . This application is still being processed.

Attachment E

LETTER TO BE SENT TO CLAIMANT WHEN RMA HAS DECIDED TO AMEND SOP AFTER INVESTIGATION BUT CLAIM STILL CANNOT BE ALLOWED

Dear ........................

INVESTIGATION OF {CONDITION} BY REPATRIATION MEDICAL AUTHORITY

(Claim for Disability Pension)

On / / you were notified that the Repatriation Medical Authority was undertaking an investigation of {condition}. As a result a review of the decision made on / / to reject your claim for {condition} on the basis that it was not related to service was being considered by a senior delegate of the Repatriation Commission under Section 31 of the Veterans' Entitlements Act

This review was being considered on the grounds that the investigation may bring to light new medical evidence about the factors which may cause {condition}.

The Repatriation Medical Authority has now completed its investigation on this matter. It has established that {contention} is a causal factor that can be related to {condition}. It has therefore issued an amendment to its original Statement of Principles on this condition outlining the circumstances that must exist for {contention} to be a causal factor in the development of {condition}.

Unfortunately in your case this amended statement still does not raise any new evidence to allow review of the original decision and the review by a senior delegate of the Repatriation Commission has been discontinued. The original decision dated / / rejecting this condition as not due to service still stands.

Option if VRB application already lodged

This has no effect on your application for review by a Veterans' Review Board lodged on / / . This application is still being processed.

(Claim for Death)

On / / you were notified that the Repatriation Medical Authority was undertaking an investigation of {condition}. As a result a review of the decision made on / / to reject your claim for the death of {veteran}on the basis that it was not related to service was being considered by a senior delegate of the Repatriation Commission under Section 31 of the Veterans' Entitlements Act

This review was being considered on the grounds that the investigation may bring to light new medical evidence about the factors which may cause {condition}.

Option if VRB application already lodged

This has no effect on your application for review by a Veterans' Review Board lodged on / / . This application is still being processed.

Attachment F

DECISION ADVICE TO BE SENT TO CLAIMANT WHEN RMA HAS DECIDED TO AMEND SOP AFTER INVESTIGATION AND CLAIM IS REVIEWED UNDER SECTION 31 AND ALLOWED

Dear Mr Miller,

THIS LETTER IS ABOUT review OF THE PREVIOUS DECISION ON YOUR DISABILITY PENSION CLAIM

Decision

I have reviewed the decision dated / / rejecting the claim for {condition}. Under Section 31 of the Veterans' Entitlements Act I have decided to vary this decision and accept the claim for {condition}. This decision takes effect from {effective date}.

I have decided that pension is to be granted/increased to {rate of DP}with effect from / / .

Reasons for Decision

Original decision on your claim

On 10 March 1995 a claim for "{condition} was received at the Department of Veterans' Affairs.

This was subsequently investigated and on / / a decision was made by a delegate of the Repatriation Commission rejecting the claim for {condition}. The delegate was unable to accept the condition as war caused as the circumstances of the case did not satisfy the Statement of Principles issued by the Repatriation Medical Authority in respect of {condition}.

Review under Section 31 of the Veterans' Entitlements Act

At the time of the original decision the Repatriation Medical Authority had notified that it was undertaking an investigation into other possible causal factors leading to the development of {condition}. As a result a review under Section 31 of the Veterans' Entitlements Act was commenced. This section of the Act allows me to review and vary a previous decision on a claim by a delegate of the Repatriation Commission where appropriate.

The Repatriation Medical Authority has now completed its investigation and has issued an amendment to its original Statement of Principles for {condition}. This statement now includes {contention} as a causal factor for {condition}.

I have reviewed the evidence in this claim including the amended Statement of Principles. I find that a causal connection between Mr {claimants} service and his {condition} has been establish on the basis of service related {contention}. {condition} is therefore accepted as service related.

Date of Effect

The law allows me to backdate acceptance of a disability for a maximum of 3 months prior to the lodgement of the claim if the disability existed at that time. In this case acceptance has been backdated to / / .

Assessment of Pension

The rate of pension payable for accepted disabilities is assessed under the "Guide to the Assessment of Rates of Veterans' Pensions" (commonly called GARP).

A summary of this assessment is as follows:

the GARP Impairment rating is X points;
the GARP Lifestyle rating is X point;
the combined GARP Impairment and Lifestyle ratings give rise to a General Rate pension entitlement of X%.

Pension is payable at X% of the General Rate.

Your Pension

Advice about regular pension payments and any backpayments due will be forwarded shortly.

RIGHT OF APPEAL

If you are not satisfied with any part of my decision you can ask the Veterans' Review Board (VRB) to review the case. You would have to do this in writing. There are time limits on lodging an application to the VRB.

(Alternative para if VRB application has previously been lodged)

RIGHT OF APPEAL

I note you have previously lodged an application for review by the Veterans' Review Board (VRB) of the original decision on this condition. If you are not satisfied with any part of my decision you can continue with this review to the VRB which will review my decision. If you do not wish to continue with this review you should notify the VRB in writing.

HELP AVAILABLE

Help can be obtained in dealing with any part of this decision, the reasons for it and appeal rights by contacting:

·Murray Harrison, as per contact details at the beginning of this letter.

·an ex-service organisation - their addresses and telephone numbers are listed in the telephone book.

Yours sincerely,

Murray Harrison

Senior Delegate of the Repatriation Commission

Dear Mrs Miller,

THIS LETTER IS ABOUT review OF THE PREVIOUS DECISION ON YOUR CLAIM TO HAVE THE DEATH OF WILLIAM MILLER ACCEPTED AS SERVICE RELATED

Decision on your claim

I have reviewed the decision dated / / rejecting the claim for the death of {veteran}. Under Section 31 of the Veterans' Entitlements Act I have decided to vary this decision and accept the that the death of {veteran} is causally related to service. This decision takes effect from {effective date}.

I have decided that pension is to be granted with effect from / / .

Reasons for Decision

Your claim

On 10 March 1995 a claim for acceptance of the death of {veteran} was received at the Department of Veterans' Affairs.

This was subsequently investigated and on / / a decision was made by a delegate of the Repatriation Commission rejecting the claim. The delegate was unable to accept the death as service related as the circumstances of the case did not satisfy the Statement of Principles issued by the Repatriation Medical Authority on the cause of death {condition}.

Review under Section 31 of the Veterans' Entitlements Act

I have reviewed the evidence in this claim including the amended Statement of Principles. I find that a causal connection between {veteran} service and {condition} has been establish on the basis of service related {contention}. The death of {veteran} is therefore accepted as service related.

Date of Effect

The law allows me to accept a claim for death of a veteran from the day after death or 3 months prior to the lodgement of the claim if the claim is lodged more than three months after the veteran's death. I have therefore accepted the death of {veteran} from / / .

Your Pension

Advice about regular pension payments and any backpayments due will be forwarded shortly.

RIGHT OF APPEAL

(Alternative para if VRB application has previously been lodged)

RIGHT OF APPEAL

HELP AVAILABLE

Help can be obtained in dealing with any part of this decision, the reasons for it and appeal rights by contacting:

·Murray Harrison, as per contact details at the beginning of this letter.

·an ex-service organisation - their addresses and telephone numbers are listed in the telephone book.

Yours sincerely,

Murray Harrison

Delegate of the Repatriation Commission

Attachment G

LETTER TO BE SENT TO CLAIMANT WHEN SECTION 31 HAS LAPSED BEFORE RMA INVESTIGATION COMPLETE

Dear

INVESTIGATION OF {CONDITION} BY REPATRIATION MEDICAL AUTHORITY

(Claim for Disability Pension)

On / / you were notified that the Repatriation Medical Authority was undertaking an investigation of {condition}. As a result a review of the decision made on / / to reject your claim for {condition} on the basis that it was not related to your service was being considered by a senior delegate of the Repatriation Commission under Section 31 of the Veterans' Entitlements Act .

This review was being considered on the grounds that the investigation may bring to light new medical evidence about the factors which may cause {condition}.

The Repatriation Medical Authority has not yet completed its investigation on this matter. However, I note that on / / the Veterans Review Board determined an application for review of the original decision. Consequently the review of the original decision by a senior delegate of the Repatriation Commission has lapsed.

(Claim for Death)

On / / you were notified that the Repatriation Medical Authority was undertaking an investigation of {condition}. As a result a review of the decision made on / / to reject your claim for the death of {veteran}on the basis that it was not related to service was being considered by a senior delegate of the Repatriation Commission under Section 31 of the Veterans' Entitlements Act.

This review was being considered on the grounds that the investigation may bring to light new medical evidence about the factors which may cause {condition}.

Source URL: https://clik.dva.gov.au/compensation-and-support-reference-library/departmental-instructions/1995/b221995-determining-compensation-claims-where-rma-has-notified-investigation-condition