Veterans' Entitlements Act 1986

Contributed by Robin Creyke and Peter Sutherland and current to July 2018.

Structure of the VEA

The VEA comprises contains 35 Parts; broadly the structure is:

• Part 1 – Preliminary – definitions;
• Parts II - Disability pension, generally for war or declared warlike and non-warlike service overseas; Parts III - IIIE - Service pension, akin to the age and disability pension under social security legislation;
• Part IV - Disability pension for normal peacetime defence service between 1972 and 2004, and includes peacekeeping service, hazardous service, and British nuclear test defence service;
• Part V – Medical and other treatment, principally via provision of a Gold Card or a White Card;
• Parts VI- VIB - Allowances and other benefits including rehabilitation services;
• Parts VII-VIIH – Veterans’ Children Education Scheme and supplementary and other payments;
• Part VIII - Standards of proof and Statement of Principles (SoP) scheme;
• Part IX – Review by the Veterans’ Review Board (VRB);
• Part X – Review by the Administrative Appeals Tribunal (AAT);
• Part XI – The Repatriation Commission;
• Parts X1A -XIB - Repatriation Medical Authority (RMA) and the Specialist Medical Review Council (SMRC) which are the authorities which determine and update the SoPs;
• Part XII – Miscellaneous provisions.

Principal Entitlements under the VEA

The principal entitlements under the VEA are the disability pension (VEA Parts II, IV) and the service pension: VEA Parts III, IIIA, IIIAB. Widow(er)s and dependent children of a member of the forces are also entitled to the widow(er)’s and dependant’s pension if the partner or parent is eligible for a disability pension. The VEA also provides for other entitlements including medical treatment, rehabilitation and various allowances.

The age service pension replicates for members of the forces the age pension paid under Part 2.2 of the Social Security Act 1991 (Cth). Service pension is also paid to certain disabled veterans (invalidity service pension) and partners of veterans (partner service pension). The service pension is payable at a slightly higher rate than the age pension and veterans and their partners/widow(er)s are eligible up to seven years earlier than the equivalent income support payments. The service pension is subject to the same income and assets test as the social security age pension and generally service pension provisions in the VEA are the same as social security age pension provisions.

A person may be entitled to the VEA disability pension but not the service pension, which has an additional eligibility criteria of “qualifying service” (active service overseas which incurred danger from the enemy).

Pensions

Disability Pension – Part II VEA

The disability pension compensates veterans, war widow(er)s, and dependants for incapacities arising from war-caused injuries, diseases or death of a veteran. The pension is free of tax, non-means-tested, and is payable for life unless the payment is granted on a temporary basis under s 25 VEA.

The disability pension is payable to the member of the forces (if alive), and the person’s dependants (widow(er), including a reinstated widow(er)) and a dependent child). No pension is payable to a dependent child of a member if the child is 16 or over unless the child is in full-time education.

Members of the forces who suffer incapacity may also receive compensation under the SRCA, at common law, or from a State or a foreign government. Offsetting arrangements apply to avoid double dipping.

Eligible War Service: Pt II VEA

Eligibility for a disability pension under Part II arises if the person is a ‘veteran’ or has served in other capacities, who has eligible war service, and who makes a claim.

Operational service

Eligible war service includes “operational service”, defines in ss 6-6F VEA, that is, service:

• in two world wars and certain post-World War 2 service in operational areas (s 6A);
• in the Interim Forces between 1 July 1947 and 1 July 1949;
• doing continuous full-time service during two world wars or with the Interim Forces;
• as an Australian mariner or by certain mariners of allied countries during World War 2;
• post-World War 2 by a person with Australian domicile serving in an operational area with the forces of a Commonwealth or an allied country (s 6B);
• in certain post-World War 2 service in Singapore, Japan, N-E Thailand, Malaya, and the Far East Strategic Reserve (s 6D);
• for certain periods of post-World War 2 service on minesweeping and bomb/mines clearance (s 6DA);
• during submarine special service between 1978 and 1992 (s 6DB); and
• in the Korean demilitarised zone after April 1956 and Vietnam (s 6E);
• in warlike and non-warlike service as declared by the Minister for Defence (s 6F).

Declarations of warlike and non-warlike service are found under the tab for Legislative Instruments in the Federal Register of Legislation: http://www.legislation.gov.au/.

Most operational service arises overseas, but for limited periods during World War 2, service within defined areas in northern Australia, or service within Australia equivalent to service in actual combat against the enemy, also qualifies. For service since World War 2, the individual or their unit must have been allotted for duty in an operational area or been assigned for service. Members of peacekeeping forces, those with hazardous service, or British nuclear test defence service also have operational service. The advantage of operational service is that the more beneficial reasonable hypothesis standard of proof applies.

Eligible Service: Pt IV VEA

Before December 1972, veterans who had peacetime service only could only seek compensation for service-related injuries under the Commonwealth employee compensation schemes. Entitlement to disability pension for peacetime injuries was introduced on 7 December 1972. After that date there was dual eligibility under the VEA Part IV and the SRCA (or its predecessors the 1930 and 1971 Acts). There is a qualifying period of continuous full-time service for at least three years unless earlier discharge was due to death, invalidity or physical or mental incapacity. From 7 April 1994, dual eligibility under the VEA and the SRCA was extended to those with hazardous service, peacekeeping service, or British nuclear test defence service, but closed to those with peacetime service only.

Dependant (War widow(er)/Child) Pension

A dependant is broadly defined to include the widow(er), dependent children of a deceased veteran and a reinstated pensioner (see later). A veteran includes members of the forces or of a peacekeeping force. Eligibility is dependent on:

• the widow(er) being legally married to or in a de facto relationship with the veteran;and
• the veteran’s death being due to war-service or to a disease or injury due to war service; or
• the veteran being entitled to pension at the extreme disablement adjustment rate, the intermediate or special rate, or the double amputee rate, despite the veteran’s death not being war-caused; or
• the veteran being a prisoner of war prior to 1 July 2004 while on operational service and having served after 1 January 1993.

Eligibility for a dependent child requires the child to be under 16, or if between 16 and 25, to be in full-time study. The child must not be maintained by a parent, adoptive parent or step-parent and not be in receipt of income support from the Commonwealth. The dependant pension is paid automatically when the veteran was a prisoner of war during operational service, or was eligible for the extreme disablement adjustment, the intermediate or special rate pension, or was a double amputee. A widow(er) or dependent child is only entitled to pension in relation to one veteran even though the person may have an alternative entitlement through another partner who is a veteran.

Effect of remarriage/re-partnering by widow(er) – reinstated pensioner

Initially, the widow pension was cancelled on marriage or remarriage. Upon the commencement of the VEA, a person whose pension was cancelled on marriage or remarriage may have the pension reinstated if their eligibility pre-dated 28 May 1984, the marriage occurred on or before that date, and the pension was cancelled solely because the person married/remarried. Widow(er)s who were not in receipt of pension prior to remarriage were not entitled. Similar provisions apply to a widow(er) with defence service.

Applying for a VEA Disability Pension

Forms. The claim forms for disability pension are:

• D2582 – Claim for Disability Pension
• D2663 – Claim for Pension by a Widow, Widower or other Dependent of a Deceased Veteran

Claim forms are available from the website of the Department of Veterans’ Affairs (DVA): www.dva.gov.au. The form must be lodged at the Department of Veterans’ Affairs. DVA's Entitlement Self Assessment tool helps assess eligibility.

Evidence. Generally, a person claiming a disability pension will need to undergo a medical examination by a repatriation medical officer. The person may also be referred to a specialist. DVA normally makes its decision based on the following:

• The person’s service records, including their medical records;
• Reports from doctors/specialists who have treated the person since discharge;
• As appropriate, medical reports from employers and insurance companies.

Service pension: Part III VEA

The service pension was originally introduced to support those whose service had led to premature ageing and incapacity for work (colloquially known as the “burnt out digger” syndrome in the 1920s).

Currently, there are three forms of service pension: age, invalidity and partner service pension. The principal qualification for each category is that the person be a ‘veteran’ who has ‘qualifying service’, is an Australian resident, was in Australia on the date of lodgement of the application for service pension, and meets the relevant age or invalidity criteria. For partner service pension, the veteran must be qualified for disability pension.

Eligibility accrues earlier than for a social security age pension. The service pension age is now 60 for both men and women, while the social security pension age is progressively increasing from 65 to 67.

The service pension is subject to an income test and an assets test (Part IIIB VEA) similar to the social security age pension income and assets tests.

Veteran: s 5C(1) VEA

A veteran is someone who:

• has rendered eligible war service (s 7 VEA);
• is in receipt of pension for service outside Australia after 31 July 1962;
• is an Australian veteran, or an Australian mariner;
• is a Commonwealth veteran, an allied veteran, or an allied mariner; or
• is a member, former member, declared member or former declared member under the MRCA.

A Commonwealth veteran, an allied veteran and an allied mariner must generally have been an Australian resident for at least 10 years to qualify.

Qualifying service: s 7A VEA

In order for service to be qualifying service, a veteran must have served as a member of the Defence Force during a period of hostilities at a time when the person incurred danger from hostile forces of the enemy. The periods of hostilities include:

• World War I and World War 2, the Korean War, the Malayan Emergency;
• warlike operations in operational areas from 31 July 1962 to 11 January 1973;
• subsequent operations listed in VEA Sch 2, provided the person has been ‘allotted for duty’ or has rendered warlike service.

Allotment for duty may be of an individual or a unit and may be retrospective: Repatriation Commission v Hawkins [1993] FCA 479; (1993) 45 FCR 205.

Alternatively, the person must have:

• served after 29 October 1945 and been awarded specified medals;
• rendered continuous full-time service as a submariner between 1 January 1978 to 31 December 1992 and been awarded a specified medal;
• been a prisoner of war during a period of hostilities;
• been an allied mariner who was a prisoner of war, or who would have been entitled to a campaign medal, if a member of the forces, or who has incurred danger from hostile forces of the enemy;
• served as a Commonwealth veteran, an allied veteran, on a special mission;
• served as an Australian mariner; or
• served in the British Commonwealth Occupation Force.

The service must have occurred during military operations against the enemy, and the service of the veteran must be integral to those operations: Willcocks v Repatriation Commission (1992) FCR 20. Whether the person incurred danger has been the subject of numerous cases before the AAT and the courts. The test is objective and requires that the person be exposed, at risk of, or in peril of harm or injury: Repatriation Commission v Thompson (1988) FCA 212; (1988) 44 FCR 20.

Age service pension

Eligibility depends on the person being a ‘veteran’, having ‘qualifying service’, and having reached service pension age. In addition, if the person is a’ Commonwealth veteran’, an ‘allied veteran’, or an ‘allied mariner’, unless they are a refugee, the person must have been an Australian resident for a continuous period of 10 years.

Invalidity service pension

Eligibility depends on the person being a ‘veteran’, having ‘qualifying service’, having been an Australian resident for a continuous period of 10 years (unless a refugee), and meeting the requirements for “permanently incapacitated for work” set out in the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 2013 (F2013L00997, Instrument 2013/R31).

The determination provides that a person is incapacitated for work where the person:

• is permanently blind in both eyes;
• is receiving VEA disability pension or MRCA special rate disability pension; or
• has an incapacity rating of at least 40 under the GARP, their impairment is permanent, and they are unable to work for more than 8 hours per week.

Partner service pension

A person is entitled to a partner pension if the person’s partner is receiving an age or invalidity service pension, has rendered qualifying service, and is qualified for an age pension. Alternatively, if the veteran partner has died, but was entitled to one of these forms of income support, their partner is entitled to partner pension. There are disqualifying conditions and the pension ceases in certain circumstances. However, eligibility of a widow(er) in receipt of partner service pension immediately before the veteran’s death retains eligibility. Non-illness separated spouses may be eligible. See also Veterans' Entitlements (Partner Service Pension - Retention of Eligibility for Non-illness Separated Spouse) Determination R25 of 2009 (F2009L01478); Re Tuck and Repatriation Commission [2015] AATA 137.

Veteran Payment: Part IIIAA VEA

From 1 May 2018, a veteran payment is available for a person making a claim for a mental injury or disease under the MRCA or the DRCA. The payment under the MRCA is automatic once the claim is lodged. The type of mental injury or disease is specified in a legislative instrument. Eligibility for a claim under the DRCA requires that the person suffers an injury or disease as defined in that Act, is incapable of working more than 8 hours a week, is an Australian resident and in Australia on the date the claim is made, and has not reached service pension age.

Pension Bonus: Part IIIAB VEA

A one-off lump sum pension bonus is payable to a person who is eligible for but not in receipt of the age service pension, the partner service pension, the income support supplement, or the veteran payment. The person must have registered for the pension bonus prior to 1 July 2014, must have at least one ‘bonus period’ of 365 days since registration, and pass the ‘work test’, that is, have worked at least 960 hours since registration.

Pension Supplement: Part IIID VEA

The pension supplement is available to those eligible for a service pension, the invalidity service pension and the partner service pension. The pension supplement provides an amount towards the cost of prescriptions, rates, telephone and internet connections, and energy, water and sewerage payments.

Allowances and Other Benefits

Allowances under Part VI VEA

A member or former member of the forces and their dependants may be entitled to a range of other allowances and benefits. Qualification for the following allowances and benefits depends on the person being in receipt of a disability pension. The allowances or benefits are:

• Clothing allowance;
• Attendant allowance;
• Bereavement payment;
• Funeral benefits;
• Decoration allowance;
• Victoria Cross allowance;
• Recreation transport allowance;
• Vehicle assistance scheme;
• Special assistance;
• Loss of earnings allowance;
• Travelling expenses; and
• Veteran payment.

Clothing allowance: s 97 VEA

Eligibility depends on receipt of a disability pension, being a double amputee, blinded in both eyes, or having had one leg amputated causing hip problems. These conditions often require use of prostheses and these aids must cause abnormal wear and tear on the person’s clothing. In non-amputee cases, the allowance is only payable for war-caused disabilities leading to exceptional wear and tear, or exceptional damage, to the clothing of the veteran.

Attendant allowance: s 98 VEA

An attendant allowance is payable to a veteran in receipt of a disability pension for a war-caused double amputation, who is blind in both eyes, or who has a war-caused disease or injury affecting the cerebro-spinal system, or a condition of equivalent effect or severity. The allowance is not payable to a person being cared for in hospital at public expense, or if the person is receiving a carer payment under the Social Security Act 1991. The need for an attendant does not have to be constant (Trengove v Repatriation Commission [1994] FCA 1107; (1994) 50 FCR 453) but must be substantially due to service-related incapacity and be for assistance with basic tasks essential for survival in the home: Re Buckley and Repatriation Commission [1988] AATA 475. Eligibility is not precluded because the services are provided by a partner who continues in the workforce: Trengove.

Bereavement payment: s 98AA VEA

This is a payment to the partner of a veteran in receipt of a disability pension. The entitlement is to payment for 12 weeks of the amount of pension to which the veteran was entitled. If the veteran was single, was receiving disability pension at the special rate or the extreme disablement adjustment, and died in indigent circumstances a bereavement payment is payable to the estate. The amount is 6 times the amount of disability pension to which the veteran was entitled.

Funeral benefit: s 99 VEA

There is an automatic grant of funeral benefit to the estate of some deceased veterans. The veteran must have been in receipt of disability pension payable at the extreme disablement adjustment, or the special rate, or whose service led to a double amputation. A prisoner of war during operational service prior to 1 July 2004 also qualifies.

In other cases, funeral benefit is payable to veterans whose death was war-caused, who died in indigent circumstances, whether being treated at home or in an institution. For what amounts to indigent circumstances see Re Kenrick and Repatriation Commission [2003] AATA 109; (2003) 36 AAR 367. Other criteria are that the veteran was entitled to disability pension at the extreme disablement adjustment rate, the special rate, or the double amputee rate, or was a prisoner of war during operational service before 1 July 2004. The benefit is not payable if the person was being treated in an institution and the cost of treatment was met by the Commission or the MRCC. The amount is the lesser of the actual funeral costs, or $2,000.00. In some circumstances, the cost to transport the body home from an institution is payable, provided the institution was in Australia.

The funeral benefit is also payable under s 100 VEA to the dependant of a deceased veteran (including a reinstated pensioner) if the dependant was indigent, and the veteran had been entitled to pension at the special or double amputee rate. The dependant must either be the partner or a young person, who had been wholly dependent on the veteran. The amount of benefit is the same as in the previous paragraph.

Decoration allowance: s 102 VEA

This allowance is payable to a person who is entitled to a disability pension and has received a specified decoration. The awards are for gallantry and, seemingly, general meritorious service: Re Richards and Repatriation Commission [1993] AATA 30; (1993) 29 ALD 417. The awards are listed in the VEA s 102(5). An additional amount is payable under s 103 VEA for the Victoria Cross Allowance whether or not the person is eligible for the disability pension.

Recreation transport allowance: s 104 VEA

The recreational transport allowance is available to a veteran suffering a war-caused injury or disease who is a double amputee, blinded in both eyes, or has an equivalent locomotion or other handicap. The allowance is payable for the costs of travel for recreational purposes. The allowance is not payable if the veteran is wholly being cared for at public expense (O’Donnell v Repatriation Commission [1993] FCA 504; (1993) 48 FCR 548), or is benefiting under the vehicle assistance scheme, or the gift car scheme in place prior to 22 May 1986: Re Clifford and Repatriation Commission (1988) 14 ALD 721. Re Clifford contains discussion of the degree of locomotion handicap and what amounts to ‘similar in effect or severity’.

Vehicle assistance scheme: s 105 VEA

This scheme provides motor vehicles to severely disabled veterans. The veteran must be a double amputee, paraplegic, or suffering from a war-caused injury or disease of equal effect or severity. The vehicle may be modified for the veteran to drive, or is also available to a veteran’s partner if that person has a driver’s licence and is willing and able to drive the car for the veteran: Tracy v Repatriation Commission (1999) 101 FCR 109.

Special assistance: s 106 VEA

This form of assistance is a safety-net discretionary payment. Initially it was intended to provide financial assistance to unemployed members of the forces on their return from service. Today, it is available today only if no other form of assistance under the VEA is available and the person is in either severe financial hardship, a financial crisis, for example, on immediate release from gaol or a psychiatric institution, or is homeless due to domestic violence. The scheme does not apply to a person who qualified solely because of service after the commencement of the MRCA. An equivalent scheme is available under s 424 MRCA. In practice, financial emergency or crisis assistance is provided under the defence force income support allowance, and by other government agencies such as the Department of Human Services and the Australian Taxation Office.

Section 106 has in the past provided support for payment of a rehabilitation allowance as part of a temporary rehabilitation scheme, and for payment of a motorcycle benefit based on the value of the motorcycle to compensate for the imposition of GST on veterans’ motorcycles purchases. A motorcycle includes a vehicle such as a quad bike ‘with not more than 4 wheels steered by means of handle bars’: Re George and Repatriation Commission [2003] AATA 538.

Loss of earnings allowance: s 108 VEA

The purpose of the allowance is to compensate for loss of earnings during a veteran’s treatment for a war-caused injury or disease, while the veteran is waiting for a supply or repair or a prosthetic aid, during an investigation of a claim, or when the person is given leave of absence from work for an illness or disease due to any of these matters. Where a person has been entitled to the allowance in any year, and subsequently faces loss of earnings for non-war-related injuries or diseases in that year, an allowance equivalent to the person’s usual earnings is also payable up to the days allocated by the employer for sick leave.

The allowance is also payable to an attendant accompanying a veteran for treatment, fitting of a surgical aid or prosthesis, during investigation of a claim, or other related matter. A claim may also be made by a representative of a veteran for loss of earnings due to undertaking an investigation on a veteran’s behalf as to the veteran’s eligibility.

The amount of the allowance is the lesser of the actual loss, less sick leave credits, gratuities and compensation from other sources, and the amount of the special rate pension. The allowance is no more than the person would be entitled to by way of salary, wages or earnings. The allowance is not payable if the person’s pension is payable at the special rate. In travel cases, the attendant is paid what the veteran is entitled to but is limited to what the Commission considers reasonable and is no more than the person could have earned in their usual occupation. The allowance is only payable if the person continues to be ‘engaged’ in the work they were doing prior to the loss of earnings: Re Dunkley and Repatriation Commission [2001] AATA 333 upheld in Dunkley v Repatriation Commission (2002) 69 ALD 543.

Claims must be made within 12 months of commencement of the loss of earnings. Eligibility depends on the veteran or other applicant providing appropriate information, including medical certificates. The allowance may be paid in advance but must not exceed the amount which would ultimately have been payable.

Travelling expenses: s 110 VEA

A veteran who travels for treatment or supply of prosthetic aids as authorised by the Commission, or for investigation of eligibility for compensation, benefits or allowances is entitled to be paid travelling expenses. The payment covers the reasonable and actual cost of transport, the cost of accommodation, meals, and parking costs. There is a maximum amount for accommodation and meals, and the rate for transport costs is limited to those costs incurred by travel using the most direct route, and the most economical form of transport. The capped amounts are increased annually. The entitlement of an attendant is the same as for a veteran and includes the cost of commercial accommodation if the veteran is admitted to hospital.

The travel costs for a partner to accompany a veteran are only available if the veteran’s partner travels ‘for the purpose of participating’ in the veteran’s treatment, a test that is strictly construed: Re Germain and Repatriation Commission [2015] AATA 473; (2015) 146 ALD 452. Advance payment may be made.

Travelling expenses for those involved in an internal review under the VEA are covered and payment in advance is permitted. Payment is available for medical expenses for a veteran for the purposes of a VRB hearing. Travelling expenses of a veteran, an attendant authorised by the Commission, and a witness summonsed to appear are also payable, provided the travel is not outside Australia. An advance payment is also available. A veteran seeking review of a Statement of Principles at the Specialist Medical Review Council is also entitled to payment of medical and travelling expenses, in advance if required.

Making a Claim for Allowances and Benefits

A person must apply for the allowances or benefits payable under Part VI VEA. The claim must be on the relevant form and be accompanied by relevant evidence and be lodged with the Department. The requirement applies to all allowances and benefits other than funeral benefit, special assistance, the vehicle assistance scheme and decoration allowance for which payment is automatic. The application may be made by the veteran or a person on their behalf. Applications other than on the approved form, if later made on the approved form and lodged within 3 months of being notified of the need to do so, will be treated as if made on the date the informal claim was lodged.

Time limits

There is a time limit of 12 months from the event which led to eligibility for bereavement payment, loss of earnings allowance, travelling expenses, and funeral benefit. Except for payment of travelling expenses, which may be extended in ‘exceptional circumstances’, the time limits for these payments is strictly construed: Re Brettell and Repatriation Commission [2005] AATA 631; (2005) 87 ALD 711. The time limit for funeral benefit is 12 months from the date of death unless eligibility for disability pension or for an increased rate of pension is assessed after that date when the 12 months commences on the date of the decision.

Commencement of payment

Clothing allowance, attendant allowance and recreation transport allowance are payable from the date of determination that an injury or disease was war-caused, provided the application was made within 3 months of that date. Otherwise, the allowance is payable from the date the allowance was applied for.

Proof of Eligibility for Disability Pension

A veteran is eligible for a pension or other benefit for operational and eligible defence service only if the circumstances leading to the death, injury or disability are war-caused or defence-caused.

Link with Service: Pts II and IV VEA

Disability pension is payable for injury, disease or death that is related to service if the injury, disease or death:

• resulted from an occurrence on operational or peacekeeping service; Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635; Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 200 ALR 332; Re Hansell and Repatriation Commission [2016] AATA 893;
• arose out of or was attributable to eligible war service, defence service or peacekeeping service; Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140; Roncevich v Repatriation Commission (2005) 222 CLR 15 (Roncevich); Re Sandford and Repatriation Commission [2017] AATA 2038;
• resulted from an accident that occurred while the person was travelling to or from duty during eligible war service, defence service or peacekeeping service: Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635; Roncevich;
• resulted from an accident that would not have occurred but for eligible war service or a change of environment due to service: Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635; Roncevich;
• was aggravated or contributed to in a material degree by eligible war service, defence service, or peacekeeping service: Johnston v Commonwealth (1982) [1982] HCA 54; (1982) 150 CLR 331; Repatriation Commission v Bendy [1989] FCA 170; (1989) 18 ALD 144; Re Lipke and Repatriation Commission [2017] AATA 2168. However, when the veteran died, the aggravation or material contribution only applies if the person had operational service or at least 6 months of eligible war service.

Causal relationship and standards of proof

To establish that a veteran’s death, injury or disease was due to service requires not only meeting the provisions in the previous paragraph but also that the person’s incapacity from these events was caused by service. The relationship must be causal not simply temporal: Roncevich v Repatriation Commission (2005) 222 CLR 15. To show a causal relationship requires evidence. There are two principal standards of proof which are used to establish whether the evidence meets the criteria for eligibility for pension and benefits under the VEA and the MRCA:

• reasonable hypothesis standard of proof;
• ‘reasonable satisfaction’ or balance of probabilities standard.

The more generous reasonable hypothesis standard of proof applies to most aspects of claims for disability pension by those who have operational service, hazardous service, peacekeeping service, or British nuclear rest defence service. The ‘reasonable satisfaction’ or civil standard applies to all other service, namely service which is ‘eligible war service’ but not ‘operational service’, and defence service which is not hazardous service, peacekeeping or British nuclear test defence service: Commission v Smith [1987] FCA 260; (1987) 15 FCR 327; Repatriation Commission v Bawden [2012] FCAFC 176; (2012) 206 FCR 296. The dual standards apply to certain factual matters such as whether the claimant was a veteran or dependent of a veteran, whether the veteran has suffered an injury or disease or has died, the diagnosis of a disease, and the cause of death or the ‘kind of death’ of the veteran: Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280. Other findings of fact, including for example, the person’s ability to work, are decided on the civil standard.

Although there is no legal burden of proof on a claimant, there is a practical requirement that the person produce medical and other evidence which supports the claim. This material is in addition to the medical and service records provided by the Repatriation Commission. There is, however, no general duty on the Commission to undertake inquiries: Kowalski v Repatriation Commission [2011] FCAFC 43 at [33]-[34], Warren v Repatriation Commission (2015) 238 FCR 124.

Section 119 VEA provides some assistance to persons claiming by providing that decision-makers, in finding facts, must take into account difficulties of proof of matters which may have occurred in the heat of battle, or conflicts long past. The section does not permit the existence of facts to be presumed in the absence of evidence, or where there are equally plausible facts to the contrary, or the inferences are evenly balanced: Dunlop v Repatriation Commission [2002] FCA 1400.

Statement of Principles

Since 1 June 1994 proving the causal relationship has been simplified by the introduction of Statements of Principle (SoPs). Satisfaction of the standards of proof, whether the ‘reasonable hypothesis’ or the ‘reasonable satisfaction’ standard, is established by meeting the factors in the SoPs. The factors are those circumstances that must exist to cause a particular kind of disease, injury or death if the claim is to succeed.

Statements of Principle are legislative instruments issued by the Repatriation Medical Authority (RMA). The factors in the SoPs vary according to which standard of proof applies. There are over 3,000 SoPs covering the most commonly encountered injuries, diseases and death due to service. The SoPs are listed at http://www.rma.gov.au. If there is a SoP for the claimed death, injury or disease, the most frequently cited guidance on how to establish the evidence to meet the factors in the SoP is found in Repatriation Commission v Deledio (1998) 83 FC 82.

The steps to be undertaken to prove a claim differ according to whether there are SoPs which apply to the claimed death, injury or disease, or not. If there is no SoP, the ‘reasonable hypothesis’ test is assessed according to the principles set out in s 120(1), (3): Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564; Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 (Deledio); Summers v Repatriation Commission [2015] FCAFC 36.

Circumstances that Exclude Payment of Disability Pension

Compensation is not payable if the injury, disease or death resulted from:

• the veteran’s serious default or wilful act, serious breach of discipline, or an occurrence that arose during the serious breach of discipline on eligible war service;
• an accident on a journey to or from service that was due to the substantial delay between ceasing duty and commencement of the journey, or a choice of route which was not reasonably direct, or involved a substantial interruption of travel unconnected with service;
• a contribution to the injury, disease or death to a material degree or through aggravation that occurred during but not due to service, unless the person had operational service or at least 6 months’ eligible war service;
• the aggravation of a disease or injury resulted from the person’s serious default or wilful act, unless the person had been on defence, peacekeeping, or hazardous service for at least 6 months and service contributed to a material degree;
• death due to smoking by a person who had not previously smoked, or increased smoking, after 31 December 1997.

Disqualification cases are rare: Roncevich; Re Gordon and Repatriation Commission [2014] AATA 849; cf Ferriday v Repatriation Commission [1996] FCA 827; (1996) 69 FCR 521.

Rates of Payment of VEA Disability Pension

Disability pension is payable at three principal rates:

• the general rate;
• the intermediate rate; and
• the special rate (the Totally and Permanently Incapacitated (TPI) rate).

Pension at the special rate may be paid for a temporary period. The intermediate and special rate pensions are earnings related. The special rate is the most generous of the VEA rates of payment. There is no income and assets test for the disability pension.

Payment at an increased rate is also available if the person’s injuries or diseases amount to the extreme disablement adjustment, or the person has a service-related amputation. The rates for amputation of specific parts of the body are listed in a table in s 27 of the VEA. Rates of payment to widow(er)s and dependants of a deceased veteran are listed in VEA s 30.

General rate pension

Payment of pension at the general rate is based on degrees of incapacity from service-related injury or disease, calculated in increments of 10 per cent up to 100 per cent. The degree of incapacity is assessed according to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) at some time during the assessment period. The assessment period runs from the day the claim is received by DVA and ends when the claim is finally decided: Smith v Repatriation Commission (2014) at [40]-[41].

Special and intermediate rate pension (earnings-related rates of pension)

The criteria for both the special and the intermediate rate are similar. If the claim is for pension at the special or temporary rate and neither is applicable, the decision-maker must consider eligibility at the intermediate rate: Smith v Repatriation Commission (2014) 220 FCR 179 at [8].

The intermediate rate is two-thirds of the special rate pension and applies to a person whose incapacity prevents work for more than 20 hours a week or 50 per cent of the time worked in the veteran’s occupation. The special rate is payable if the incapacity prevents working for more than 8 hours a week. The inability to work must be due to a service-related condition alone, not other causes, such as age, loss of skill level, or non-service-related disabilities. The pension at the special rate is also payable to a person who is totally blind as a result of a service-related injury or disease. Pension at both the intermediate or special rate is payable for tuberculosis which is war-caused. Such cases are now rare.

Over 65. The criteria for payment of special rate vary depending on the person’s age. If the person is over 65 at the time of application, the criteria are more stringent than for those under 65. A veteran under 65 on the day the person applies for an increased rate of pension must show:

• the person’s degree of incapacity is at least 70 per cent of the general rate, or the person is receiving pension at the general rate for tuberculosis;
• the veteran is prevented by reason only of the effect of a war-caused injury or disease from working more than 8 hours (special rate), or 20 hours (intermediate rate) a week;
• the effect of the service related incapacity alone causes the person to be incapable of working leading to a loss of income; and
• the inability to work is not temporary.

Incapacity of at least 70 per cent must be established at some point during the assessment period.

In deciding whether the person is unable to work, the only matters that can be taken into account are the person’s vocational, trade and professional skills, qualifications and experience; the kinds of work which such a person might reasonably undertake, not necessarily has undertaken; and the degree to which the war-caused condition has reduced the person’s capacity for such work: Re Repatriation Commission and Thorpe [2011] AATA 491[68]-[72], [111]. The key question, given the person’s employment history and job skills, is whether it is likely, not fanciful, that but for their war-caused injury or disease, the person would be working more than 8 or 20 hours a week: Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47. The work the person has undertaken is the type of employment, not particular tasks: Smith v Repatriation Commission [2014] FCAFC 53; (2014) 142 ALD 410.

A person over 65 at the date of claim must establish they were undertaking their last paid work when they turned 65 and they had been employed for a continuous period of at least 10 years’ commencing before they turned 65 when that work ceased: Ralph v Repatriation Commission [2016] FCAFC 89; (2016) 248 FCR 438.

Under 65. A person under 65 at the date of application can satisfy the ‘alone’ test in VEA s 24(1)(c) if they have genuinely been seeking work and it is their war-caused injury or disease which is the substantial, not the sole, reason they are not working for more than 8 hours a week: VEA s 23(3)(b), s 24(2)(b); Smith v Repatriation Commission [2014] FCAFC 53; (2014) 142 ALD 410 at [11]; Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179.

Claim for pension

A person who wishes to claim an earnings-related rate of pension must lodge a claim for the pension or an increase to the rate of payment. The claim must be in writing, on an approved form (Re Medlow and Repatriation Commission (2015), accompanied by such evidence as the person considers relevant and must be lodged, that is received, at a DVA office: Ralph v Repatriation Commission (2014) [58]-[63].

Extreme Disablement Adjustment

The extreme disablement adjustment (EDA) is an additional payment for those severely disabled veterans entitled to a disability pension at the general rate who do not qualify for the intermediate or special rate pension. EDA is payable at 150 per cent of the general rate.The criteria for eligibility are not easy to meet. The veteran must:

• be entitled to pension at 100 per cent of the general rate or for tuberculosis;
• be 65 or over;
• have an impairment rating under GARP of at least 70 points and a lifestyle rating of a least 6 points; and
• not be entitled to pension at the intermediate or special rate: Re Anderson and Repatriation Commission [2017] AATA 2724.

The impairment rating and the lifestyle effects must relate to accepted disabilities: Raisbeck v Repatriation Commission (1993) 31 ALD 704. The lifestyle effect is a disadvantage from an accepted condition that limits or prevents the veteran from performing a role that is normal for a veteran of the same age without the accepted condition: Re Anderson.

Guide to the Assessment of Rates of Veterans’ Pensions (GARP)

The GARP sets out criteria to assess the extent of the veteran’s incapacity war-caused injury or disease. The degree of incapacity is expressed as a percentage, not exceeding 100 per cent. Impairment has two components: physical loss of, or disturbance to, any body part or system; and functional loss. GARP gives greater emphasis to functional loss, as measured by the person’s performance compared with that of an average, healthy person of the same age. There are tables containing benchmarks. Each benchmark is a threshold value. The rating applies only if the threshold is achieved or exceeded. Ratings are not rounded up to the next benchmark.

A lifestyle effect is a disadvantage from an accepted condition that limits or prevents the fulfilment of a normal role for a veteran of the same age without the accepted conditions. The effects of impairment on lifestyle are assessed by four components:

• Personal relationships;
• Mobility;
• Recreational and community activities; and
• Employment and domestic activities.

There is a formula, based on the Tables, which is used to obtain the lifestyle rating: Re Anderson and Repatriation Commission [2017] AATA 2724.