There are a number of commonly accepted conditions that can be considered under presumptive arrangements due to the fact a causal connection to service has been established after a certain time and/or type of service.
The availability of Presumptive Liability as a head of liability under the MRCA is underpinned by a written determination under subsection 27A(3) of the MRCA.
Section 27A sets out the substantive provisions that enable the Commission to accept claims for specified injuries and diseases on a presumptive basis, without the need to identify the particular contributing factor to establish a causal link to service on a case-by-case basis. The Commission will, by written determination, specify the kinds of injury and disease that are attributable to one or more kinds of defence service, and specify the kinds of required defence service. This determination must be approved by the Minister.
For these conditions, DVA accepts that a veteran’s Australian Defence Force (ADF) service contributed to the injury or disease, without the need for further investigation where relevant criteria are met. Once the medical diagnosis is confirmed and if the veteran meets all service duration and timeframe and/or onset requirements, it is accepted that the condition is caused by service.
A decision to deny a claim where presumptive criteria are met should be referred to and reviewed by a senior delegate and only made where there is clear, strong and conclusive, irrefutable evidence that the condition was caused by factors unrelated to service. Should a condition not meet the threshold of Presumptive Liability and it be determined that presumption is not applicable, it must be investigated by the delegate under other heads of liability.
Notwithstanding the easier pathway that will be offered by Presumptive Liability and the legislated exclusion of this head of liability from the application of the usual standards of proof and SoPs, delegates will still be able to rebut a presumed connection with service where evidence to the contrary exists.