Place holder node for 2004
This Advisory Note has been withdrawn and replaced with Commission Guideline CM5570 [3] - Dealing with Co-Morbid Psychiatric Conditions
This is an advisory note only. Disability 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.
Where Centrelink Family Tax Benefit (FTB) payments are split between (separated) parents, should the VCES Education Allowance (EA) benefit:
Yes, in every case.
In many cases FTB payments are split by Centrelink to varying percentages depending upon what the individual living arrangements/child custody situations are. For example splits of 30% to father, 70% to mother, or even 2% to father 98% to mother have been recorded.
The VCES states that the EA payments “will be made to the person who is entitled to be paid family tax benefit under A New Tax System (Family Assistance) (Administration) Act 1999.” Refer VCES 3.2.3, 3.3.2 and 3.3.3.
Use of the word 'will' leaves no room for any discretion as to the payee destination of the EA payment.
Where the FTB has been split between parents the payment of EA must be split in similar proportions to the FTB payment.
In response to the increase in cases where FTB payments are being split, the two current VCES application forms from January 2004 (D2566 and D2697) have been amended to include a new question requesting specific detail on FTB payment, including any 'splitting' and percentages of any split.
The obligations section of these forms have also been amended, now specifically requesting advice “if any change takes place in the applicant's parents' marital/relationship status”.
EA payments must be paid to the person FTB payments are made to. Where splitting of the FTB occurs, so too the VCES EA must be split, and in the same proportion.
The FTB payee arrangements must be investigated at the time of the initial VCES application.
For existing beneficiaries, where it becomes apparent that a child's parents have separated, or marital/domestic/accommodation arrangements have altered, it will be necessary for VCES staff to identify the FTB payee(s) and any 'splitting'. EA payments should be reviewed and amended where necessary to ensure any changes are reflected in VCES EA payments.
Signed
Director
Policy Eligibility and Research
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.
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:
(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:
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 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
This Advisory Note has been revoked.
A historical reference to Advisory Note No. 4 of 2004 [7] is available here.
No 5/2004
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. |
PURPOSE
To provide claims assessors with guidance on obtaining evidence by telephone from claimants and their representatives.
Obtaining evidence from claimants over the phone needs to be handled in a considered manner. Claims assessors should be mindful that some claimants may find being asked questions of a personal nature on the telephone distressing or the timing of the telephone call inconvenient. Claims assessors should also be aware that claimants may not fully understand the purpose of the telephone call. While contacting claimants or representatives by telephone can be useful to clarify issues on a claim, generally, entire questionnaires should not be completed by telephone unless the claimant agrees to this approach and issues of access to the claimant or time critical nature of the request apply.
Signed
Carolyn Spiers
Branch Head
Veterans' Compensation
16 November 2004
Attachment A
Example of a File Note
NOTE FOR FILE
FILE: NSM 99999
NAME: MR JOHN BROWN
DATE: 10 SEPTEMBER 2004
Mr John Brown indicated that he had ceased work on his Claim for Disability Pension Form (D2582 –10/03), however, no information about his employment history (Question 26) was provided.
Mr Brown stated that
A copy of this file note was sent to Mr Brown on 10 September 2004 requesting that he verify that it is an accurate rendering of the information provided during the conversation and requesting that any points of disagreement be sent to the Department in writing within 21 days.
Jane Smith
Claims Assessor
C8
No 6/2004
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.
Amendments of Victoria Cross Allowance and Decorations Allowance
To advise state offices of changes to Victoria Cross Allowance and the Decoration Allowance as a result of Veterans' Affairs Amendment (Direct Deductions and Other Measures) Act 2004 (“the Amending Act”).
S103(1) now reads:
“Subject to this section, the Commission may grant an allowance, called Victoria Cross allowance, to a veteran who has been awarded the Victoria Cross or the Victoria Cross for Australia.”
Rate of Allowance
S103(4) now reads:
“Victoria Cross allowance granted to a veteran under this section is payable at the rate of $3,230 per year.
Note: The amount fixed by this subsection is indexed annually in line with CPI increases. See section 198FA.”
Eligibility
S102(5) now reads
5) In this section:
eligible decorations means:
(a)the following decorations awarded for gallantry during a war to which this Act applies or during warlike operations:
(i)the Victoria Cross;
(ii)the Cross of Valour;
(iii)the Star of Courage;
(iv)the Distinguished Service Order;
(v)the Distinguished Service Cross;
(vi)the Military Cross;
(vii)the Distinguished Flying Cross;
(viii)the Distinguished Conduct Medal;
(ix)the Conspicuous Gallantry Medal;
(x)the Distinguished Service Medal;
(xi)the Military Medal;
(xii)the Distinguished Flying Medal;
(xiii)the member of the Most Excellent Order of the British Empire (Military Division);
(xiv) the Medal of the Most Excellent Order of the British Empire (Military Division) (1919-1958);
(xv) the Medal of the Most Excellent Order of the British Empire (Military Division) with Gallantry Emblem (1958-1974);
(xvi) the Victoria Cross for Australia;
(xvii) the Star of Gallantry;
(xviii) the Medal for Gallantry; and
(b)the George Cross; and
(c)the George Medal; and
(d)such other decorations, awarded for gallantry during a war to which this Act applies or during warlike operations, as are prescribed.
These amendments took effect on 29 June 2004 when the Amending Act received the Royal Assent.
Carolyn Spiers
Branch Head
Veterans' Compensation
16 November 2004
198FA Indexation of Victoria Cross allowance
(1)In this section, unless the contrary intention appears:
index number, in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician for that quarter.
relevant rate means the rate specified in subsection 103(4).
year to which this section applies means:
(a)the year commencing on 20 September 2005; or
(b)any later year commencing on 20 September.
(2)Subject to subsection (3), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
(3)If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the reference base for the consumer price index, then, for the purposes of the application of this section after the change took place, or takes place, regard is to be had only to index numbers published in terms of the new reference base.
(4)Where the factor worked out under subsection (5) in relation to a relevant rate in relation to a year to which this section applies is greater than 1, this Act, and any Act that refers to this Act, have effect as if for that relevant rate there were substituted, on the first day of that year:
(a)subject to paragraph (b)—the rate worked out by multiplying by that factor:
(i)where subparagraph (ii) does not apply—the relevant rate; or
(ii)if, because of another application or other applications of this section, this Act has had effect as if another rate was substituted, or other rates were successively substituted, for the relevant rate—the substituted rate or the last substituted rate, as the case may be; or
(b)where the amount of the rate worked out under paragraph (a) is not a multiple of one dollar—a rate equal to that amount rounded up to the nearest multiple of one dollar.
(5)The factor to be worked out for the purposes of subsection (4) in relation to a year to which this section applies is:
(a)in relation to the year commencing on 20 September 2005—the number, calculated to 3 decimal places, worked out by dividing the index number for the June quarter 2005 by the index number for the June quarter 2004; or
(b)in relation to each subsequent year—the number calculated to 3 decimal places, worked out by dividing the index number for the last preceding June quarter by the highest index number in respect of an earlier June quarter, not being a June quarter that occurred before 2005; or
(c)if the number worked out under paragraph (a) or (b) would, if it were calculated to 4 decimal places, end in a number greater than 4—the number so worked out increased by 0.001.
(6)Where, because of the application of this section, this Act has effect as if another rate were substituted for a relevant rate on the first day of a year to which this section applies, the substitution, in so far as it affects instalments of Victoria Cross allowance under this Act, has effect in relation to every instalment of the allowance that falls due on or after the first day of that year.
Advisory from Veterans' Compensation Branch
No 7/2004
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.
APPLICATION OF GARP V NON REDUCTION PROVISION IN SUBSEQUENT ASSESSMENTS
To advise staff on the application of the non-reduction provision in the current Guide to the Assessment of Rates of Veterans' Pensions (GARP V) in subsequent assessments.
GARP V Provisions
Under sub-sections 21A(1), 29(4) and 5Q(1) of the Veterans' Entitlements Act 1986 assessments of incapacity must be made in accordance with GARP. GARP is defined as the GARP 'for the time being in force'. Therefore, when either assessing or re-assessing the extent of the incapacity of a veteran resulting from war-caused injury or disease, the provisions of the approved GARP are binding.
However, non-reduction provisions apply as outlined in clause 3 of the revocation instrument contained at the front of GARP V (Instrument No.8 of 1997). It directs that:
In the course of re-assessing or reviewing the assessment or re-assessment of the rate at which a pension is payable, the degree of incapacity of the person to whom that pension is payable shall not be a percentage that is less than the percentage of the general rate of pension constituted by the rate at which that pension was, immediately before 18 April 1998, payable unless:
There is a view that the protection afforded by the transitional provisions applies only to the first assessment under GARP V of the veteran's general rate of pension and not to second and subsequent assessments.
However, it is clear from reading clause (3) that the qualification (protection) mentioned is not limited and should apply to all subsequent re-assessments. That is, unless the veteran's incapacity either decreases in accordance with the relevant previous GARP or was the result of a false or misleading statement, the veteran cannot be re-assessed at a lower rate under GARP V.
Where a veteran's disability pension rate was in place prior to 18 April 1998, the existing rate of a veteran's disability pension cannot be reduced by applying the current GARP unless the specific circumstances set out in clause 3 (Instrument No.8 of 1997) apply.
This applies to all subsequent re-assessments of a veteran's disability pension not just to the first assessment.
Signed
Carolyn Spiers
Branch Head
Veterans Compensation Branch
16 November 2004
No 8/2004
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.
On 21 December 2001, the Full Federal Court handed down its decision in the above matter. The purpose of this Advisory is to provide decision makers with guidance on how to apply the decision of the Full Court. The key issue addressed in this decision relates to the diagnosis of conditions claimed.
This Advisory details the approach that should be taken by Claims Assessors (CA) in establishing a diagnosis.
Different conditions can on occasion be given various labels. A Claims Assessor must be satisfied that the particular label for a condition, given by a medical practitioner, is in accordance with the symptoms of that condition.
The first part of diagnosis has three elements, each of which must be determined to the reasonable satisfaction of the CA.
When determining a claim, the CA must determine whether a disease or injury exists. If the condition claimed cannot be defined as an injury or disease pursuant to Section 5D of the VEA, then the claim must fail.
If the claimed disease or another condition (see Clarifying Diagnosis, below) is found to exist, then the CA needs to look at the symptoms of that disease, and the label given to it by the appropriately qualified medical practitioner. The definition of the disease or injury found within a Statement of Principles (SOP) can be used as a guide to diagnosis. However, the SOP is not to be used by the CA to determine diagnosis. This is the key point clarified by the primary judge and Full Court decisions in Benjamin.
If a CA is uncertain about the diagnosis of the claimed disease or injury, they should seek further clarification from the medical practitioner who provided the diagnosis or label.
If this action does not provide the necessary clarification, it is open to the CA to seek a second opinion from another suitably qualified medical practitioner.
Should the claimant's symptoms not meet the label, then the CA should seek advice from the medical practitioner whether the symptoms are better described by another diagnosis or label.
For example, if Post Traumatic Stress Disorder (PTSD) is claimed but the CA is not reasonably satisfied that this is the appropriate diagnosis, the CA should seek advice from the medical practitioner whether another psychiatric diagnosis would be more appropriate (eg Anxiety Disorder).
If a medical practitioner bases their diagnosis on relevant, clinical criteria, then this may also be taken into account by the CA in their decision on diagnosis.
It is permissible to use DSM IV as a tool for diagnosis. However, it must be noted that where the diagnostic criteria for a SoP are based on DSM IV, references by the CA to diagnosis in the determination must not be based on the SoP but rather to DSM IV.
When deciding the diagnosis, a CA must take into account that a claimant can either have a condition or not have a condition. There cannot be two versions of the same condition (such as a SOP condition and a non-SOP condition). For example, it is not possible to have non-SOP Sensori Neural Hearing Loss. A claimant's symptoms either satisfy the diagnosis for a condition, or they do not.
If, after following the steps outlined above, and ensuring that there has been full consideration of the evidence, a CA is not reasonably satisfied that a claimant has the condition as claimed, it is open to them to find that there is “no incapacity found” (NIF).
Action
Claims Assessors should follow these procedures:
1. The first step is to be reasonably satisfied that the veteran is suffering from a disease or injury as defined in section 5D of the Veterans' Entitlements Act, 1986.
If the condition of the claimant cannot be characterised as an injury or disease pursuant to section 5D of the VEA then the claim must fail.
2. Secondly the claims assessor must be reasonably satisfied as to the diagnosis of that disease or injury. A suitably qualified medical practitioner would provide a description of the symptoms experienced by the veteran and a diagnosis or label to be placed on those symptoms.
3. Thirdly, once the claims assessor is reasonably satisfied that the veteran exhibits identifiable symptoms which can lead a suitably qualified medical practitioner to label the disease or injury, he or she must identify a Statement of Principles (SOP) which encompass those symptoms. The relevant SoP can be identified by reference to the description of the kind of disease found in the SoP.
NOTE: A condition cannot be rejected based only on the description of the disease found in the SoP as the Federal Court has held that the use of the discretion in this way in not lawful. HOWEVER, OTHER DIAGNOSTIC TOOLS SUCH AS DSM IV CAN BE USED.
If there is a SoP in force for the kind of disease or injury suffered by the veteran, that SoP must be applied.
1. Once these issues have been resolved the claims assessor is to determine the claim pursuant to the Guideline CM 5017-Application of s.120, following the Full Federal Court case in Deledio.
2. If there is no SoP in force the claims assessor must ascertain whether or not the Repatriation Medical Authority (RMA) has notified that it intends to carry out an investigation into the particular disease. If the RMA does plan to undertake an investigation, the claims assessor cannot determine the claim until a SoP has been determined.
3. If there is no SoP regarding the type disease or injury and the RMA has not notified that it intends to conduct an investigation into the particular disease or injury then the claims assessor can determine the claim under the Bushell/Byrnes test. That is:
(a) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(b) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(i) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(ii) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
Carolyn Spiers
Branch Head
Veterans' Compensation
December 2004
Links
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[3] https://clik.dva.gov.au/compensation-and-support-reference-library/commission-guidelines/cm5570-dealing-co-morbid-psychiatric-conditions
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