External
Advisory Note

Advisory from Disability Compensation Branch

No 11of 2000


This is not an ordinary advisory note. It is a Departmental Instruction issued as a Stateline.   The Stateline and this advice are 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.  All Statelines should be followed by all delegates.

Veterans' Entitlements Treatment

(Unidentifiable Condition) Determination 19/2000

and

Anxiety and Depression Determination 11/2000

This Advisory merely contains the actual Stateline concerning Unidentified Conditions that was issued in April 2001.  As such it reflects a Departmental Instruction that is to be followed unless later advice reveals any conflict with the legislation.

Similarly a Stateline was issued on 1 September 2000 concerning anxiety and depression.  Delegates should refer to that Stateline for instructions on those conditions.

Veterans' Entitlements Treatment

(Unidentifiable Condition) Determination 19/2000

Purpose

The purpose of this Stateline is:

  • to notify the making of a new Declaration under section 88A of the Veterans' Entitlements Act 1986 (VEA) to provide treatment of the symptoms of an unidentifiable condition.
  • to notify the delegation of the Repatriation Commission's authority to decide that a veteran is suffering from an unidentifiable condition for the purpose of its Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 19/2000
  • to provide an outline of the operation of this Determination.

Background

Section 88A commenced on 10 December 1999.  It gives the Repatriation Commission the power to make a determination that a veteran included in a specified class is eligible to be provided with treatment of a specified kind under Part V of the VEA.

On 17 April 2000 the Repatriation Commission signed its Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 1/2000.   (Note: Authority to provide benefits under this instrument was not delegated until 18 October 2000.  The instrument and delegations have now both been superseded.)

This determination provided that:

  • a veteran, member of the forces, or peacekeeper,
  • who has lodged a disability pension claim,
  • within 15 years of the end of his or her service in period of:
  • operational service, or
  • hazardous service, or
  • peacekeeping service, or 
  • warlike service, or
  • non-warlike service, and 
  • after investigation, and 
  • where that claim has not been determined, and
  • where the Repatriation Commission is of the opinion that the claimed symptoms do not satisfy diagnostic criteria in current evidence based medicine (ie the symptoms are of an unidentifiable condition),

then, treatment of those symptoms may be provided under Part V of the VEA.


Amended section 88A and new Determination

On 7 December 2000, Parliament repealed Section 88A and inserted a new Section 88A as part of the Veteran's Affairs Legislation Amendment (Budget Measures) Bill 2000.  This has now received Royal Assent.

On 8 December 2000 the Repatriation Commission signed a new Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 19/2000.  A copy of this is attached.

This new Determination includes the same criteria as is predecessor, but expands on commencement and end dates and on how an opinion is to be formed that an unidentifiable condition is present.

The Commission may now only form its opinion that symptoms are from an unidentifiable condition “...after considering the informed advice of an appropriate person...”

The Determination's definitions includes:

“informed advice of an appropriate person means the advice from a medical practitioner employed by the Commonwealth ("medical adviser") as to whether a condition of a veteran satisfies diagnostic criteria in current evidence-based medicine which advice is to be based on an assessment (or assessments) of the veteran's condition by a registered medical practitioner (or by registered medical practitioners) who, in the opinion of the medical adviser, had the special expertise to ascertain if the condition of the veteran satisfied diagnostic criteria in current evidence-based medicine.”

The “medical adviser” nominated by the Commission for the purpose of this Determination is the Senior Medical Adviser in National Office, Dr. Keith Horsley.

Delegations

The delegations of the Repatriation Commission issued on 18 October 2000 continue to apply for the operations of the new Instruction.  A copy of these is available.

Operation

The number of cases expected to be granted treatment benefits under this provision are small.  Of the more than 35,000 claims for disability pensions that are lodged annually perhaps a dozen might temporarily fall within the terms of this determination until a diagnosis is made.

In those rare cases where relevant specialists have not been able to provide a diagnosis of the claimed symptoms, the Senior Medical Officer in the State processing the case should consult with the Senior Medical Adviser.

When a doctor provides an opinion, it might be hesitant or it might be unwilling to state positively what the disease is.  This does not mean that an unidentifiable condition is present.  Decision-makers must apply the reasonable satisfaction standard of proof in this situation.  Therefore, like the medical profession, 100 per cent certainty is not required in order to be satisfied as to the disease or the treatment to be given.

When a diagnosis cannot be made the condition may simply be an unusual set of symptoms not clearly pointing to a known disease.  It will be extremely rare that a new disease or syndrome is indicated.

Treatment for an unidentified condition is usually palliative but it may also be part of clinical testing to reach a diagnosis.  If treatment is provided to the veteran and symptoms go away then you can be reasonably satisfied that the condition can be identified (diagnosed) as the one for which that treatment is appropriate.

Opinions or uncertainties about aetiologies are irrelevant as the Determination is about unidentifiable conditions.  A statement by a doctor that he/she is unsure of the aetiology or cause of the disease has no place in a decision under this Determination.

As soon as a diagnosis of claimed symptoms is made, the claim must be determined.  Thereafter, normal treatment entitlements arising from a determined disability pension claim will operate.  If the condition is rejected as being war-caused and no other entitlement exists, the White Card for the unidentified condition must be withdrawn.

Application form

There is no application form for this benefit.  The Determination requires that a claim for pension under Part II or Part IV must have been made.   However a veteran may request, either on that claim, or later by letter, that consideration be given to granting treatment benefits under the s88A Determination.  It is preferable that such a request should be in writing.

Start and end dates

T — he earliest date from which the costs of treatment may be reimbursed is the date that is 3 months before the date on which the veteran made the claim for a pension under Part II or Part IV of the Act. In addition the claim for reimbursement must be made within 3 months of that treatment or service being provided by the medical practitioner.

Eligibility continues from the date on which a diagnosis is made to the date on which a determination is eventually made on the service relationship of the diagnosed condition.

Considerations of claims that involves deciding whether this Determination might apply to that case and that result in no action, are not to be recorded as a decision under s88A.


Recording and removing a record of entitlement

Please see detailed procedures set out in attachments A and B.

Appeals

Refusal to provide treatment under the provisions of the Repatriation Commission Determination constitutes an administrative decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977 and may be appealed to the Federal Court but not to the AAT.  Alternatively a veteran may ask the Commonwealth Ombudsman to investigate the circumstances of his or her claim under s 88A.

Handling of undetermined claims

The eligibility criteria for s88A treatment require that the claim concerning an unidentified condition must remain undetermined.  This does not mean that it the claim should remain undetermined for lengthy periods of time.  It is expected that every decision to grant s88A benefits will be reviewed after 12 months at the most.  The Senior Medical Adviser must be contacted before any further determination to continue benefits is made.

At that time decisions should be made on all those conditions that have been identified and the claim 'ended'. If there are still grounds to believe that some unidentified condition remains then further investigation into the symptoms will continue until a diagnosis is found. Eventually the claim must be determined.

Recording and removing a record of entitlement

Please see the detailed procedures set out in attachment A and B.  This is an interim solution and will be replaced by a permanent procedure by 1 July 2001.


Attachment A

Systems Approach

Recording decisions made under section 88A.

New Codes.

An interim system solution has been implemented which will enable recording of decisions made under s88A covering the provision of treatment (only) for veterans with Unidentifiable Conditions.

Treatment benefits for an unidentifiable condition may only be granted by a senior officer holding a Delegation from the Repatriation Commission to do so.

That decision must have been made before any recording may commence.

A new Decision Source code has been created which will distinguish a treatment entitlement under this determination.

  • UC - this code is to be used to record Treatment Only decisions for an Unidentifiable Condition

How to record these decision.

During the period that the interim system solution is in effect the following method is to be used to record these decisions:

Step 1.

Register an ENT DECN AMEND case using CM.CE.

Step 2.

Progress the case into Prepare Recording stage.

Step 3.

Use EN.DS to record the decision.  For those cases where the veteran has made a claim for a condition that is Unidentifiable the decision should be recorded using the name supplied by the client for the condition.  The Decision Source code is “UC”; if for example the veteran claimed FATIGUE, JOINT PAIN, HEADACHES the text would be recorded as:

Undiagnosable Condition - FATIGUE, JOINT PAIN, HEADACHES (Treatment Only)


What is the Decision Body?

Unidentifiable Condition decisions will normally be made in the Disability Compensation area. Therefore the Decision Body should reflect the level of the decision-maker which will not be lower than Assistant Director.

Step 4.

Update EN.DC screen and print.

Step 5.

Finalise the decision recording using EN.RD.

Where are the decisions displayed?

These decisions will be displayed in VIEW as under the Disabilities TAB.

The record of the decision will appear in the ACCEPTED folder unlike other conditions where the veteran is Eligible for Treatment only, eg PSTD or Malignant Neoplasm.  This anomaly will be corrected when a long-term solution is implemented.

If the decision is “rejected” the record will appear in the Not Accepted folder.

Note: Any client who is granted treatment eligibility under s88A is entitled to payment of Pharmaceutical Allowance.


Attachment B

Systems Approach

Removing Record decisions made under section 88A.

Step 1

Register an ENT DECN AMEND case using CM.CE

Step 2

Progress the case into Prepare Recording

Step 3

Use EN.DS to record the decision.  Update the previous decision by entering “A” in the SEL column adjacent to the entry you wish to update.


Press enter which will move to the next screen.


Step 4

Update the EN.DC screen

Step 5

Have another Officer complete the EN.RD function to finalise the case.

The record will appear in VIEW under the Not Accepted folder.