Advisory from Veterans' Compensation Branch
No 3/2004
This is an advisory note only. Veterans' Compensation Branch and Legal Services Group have agreed this policy view. It is not a Repatriation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents a considered view that should be taken into account by all delegates.
Subject: OBESITY AND MORBID OBESITY
Repatriation Medical Authority Action
In August 2003, the Repatriation Medical Authority (RMA) considered the issue of obesity and morbid obesity. As a result of its deliberations, the RMA has made Statements of Principles (SOP) for morbid obesity and a declaration that it will not make Statements of Principles for obesity. The following discussion explains how claims for obesity should be treated.
Statements of Principles – Morbid Obesity
The SOPs for morbid obesity require a veteran to have a Body Mass Index (BMI) of at least:
- 40; or
- 35, together with a requirement for:
(a) ongoing, medically prescribed drug therapy for weight reduction; or
(b) surgical intervention for weight reduction other than cosmetic surgery.
If a veteran has a BMI of less than 35, or between 35 and 40 without ongoing prescribed drug therapy or surgical intervention, then the veteran's claim does not meet the definition of morbid obesity and the SOP for that condition cannot be used.
How to treat claims for obesity
In August 2003 the RMA declared that it did not intend to make a SOP for obesity. Under s120A(3) of the Veterans' Entitlements Act 1987 (VEA), a reasonable hypothesis connecting an injury or disease with service can only be raised if there is a SOP in force, or there has been a determination under subsection 180A (2).
S120A(4) says that S120A(3) does not apply if the Authority (RMA) has neither determined a SOP nor declared that it does not propose to make a SOP.
In the case of obesity, the RMA has not made a SOP and has declared it does not propose to do so. This means that s120A(3) does apply and that no reasonable hypothesis exists as there is no SOP nor a determination under section 180A.
The Commission is therefore bound by the terms of s120A. If a claim for obesity does not meet the criteria for morbid obesity, then the claim must fail as a reasonable hypothesis has not been established. There is no scope for determining obesity as a
non SOP condition because the RMA has expressly declared it does not propose to make a SOP.
The RMA determined that obesity is not a disease or injury according to s5D of the VEA. This RMA determination has flow on effects to other aspects of the VEA:
- Partially Contributing Impairment under Chapter 19 of GARP; and
- The ability of the Repatriation Commission to make S180A determination.
Chapter 19 of GARP
Section 21A of the VEA provides that the Commission is to determine the degree of incapacity caused by war-caused injury or disease, or both, by reference to the Guide to the Assessment of Rates of Veterans' Pensions (GARP). GARP is subject to parliamentary scrutiny and is similar to a "disallowable instrument". This further means that it has statutory force and is the law in regard to assessing rates of pensions for veterans. Chapter 19 provides for "Partially Contributing Impairment" and is applied whenever impairment is not due solely to the effects of accepted conditions.
As the RMA determined that obesity is not a disease or injury, this raises the issue of obesity in relation to partially contributing impairment in Chapter 19 of GARP.
The word 'condition' is defined at the beginning of GARP as an injury or disease. As the RMA has declared that obesity is not an injury or disease, obesity cannot be taken into consideration as a condition partially contributing to impairment.
Section 180A
Section 180A of the VEA allows the Commission to make a determination in respect of a kind of injury, disease or death for the purpose of claims for pension. Commission is required to have regard to the medical-scientific evidence in relation to the matter under consideration. Moreover, the Commission must also recognise the decision of the RMA if they have already considered the medical-scientific evidence.
The Commission has received legal advice that confirms that paragraphs 180A (1)(a), (b) and (c) are preconditions that must be met before the Commission can lawfully exercise the power to make a determination under Section 180A(2) and (3).
The first precondition states that the RMA must have declared that it does not propose to make or amend a SOP relating to a kind of injury, disease or death. The RMA has investigated obesity as noted above and declared that it is not an injury or disease and accordingly has not made a SOP.
Consequently, as the RMA could not make a SOP, the legal advice to the Commission is that the preconditions in paragraph 180A are not met and the Commission could not make a legal determination under Section 180A for obesity.
For further clarification of this advisory please contact the VEA Compensation Policy section.
Carolyn Spiers
Branch Head
Veterans' Compensation
September 2004