Statement of Principles concerning chronic bronchitis and emphysema No. 31 of 2004

Administered by Department of Veterans' Affairs

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Instrument No. 31 of 2004

 

Revocation and Determination

of

Statement of Principles

concerning

 

CHRONIC BRONCHITIS AND

EMPHYSEMA

 

 

for the purposes of the

 

Veterans’ Entitlements Act 1986

and

Military Rehabilitation and Compensation Act 2004

 

1. The Repatriation Medical Authority under subsection 196B(3) and (8) of the Veterans’ Entitlements Act 1986 (the VEA):

 

(a) revokes Instrument No. 74 of 1997; and

 

(b) determines in its place the following Statement of Principles.

 

Kind of injury, disease or death

2. (a) This Statement of Principles is about chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema, either alone or in combination.

(b)              For the purposes of this Statement of Principles,

(i)      “chronic bronchitis” means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for at least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.

 

 

 

(ii)   “emphysema” means a bilateral and diffuse respiratory tract disorder which is characterised by distension of airspaces distal to the terminal bronchiole with destruction of alveolar septa, and without obvious fibrosis. This definition excludes isolated emphysematous bleb and surgical, traumatic, unilateral, focal or localised emphysema, and Swyer-James syndrome (also known as MacLeod’s syndrome or hyperlucent lung syndrome).

 

Basis for determining the factors

3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).

 

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.

 

Factors

5. The factor that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service is:

 

(a)               smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or

 

(b)              being exposed to a respiratory tract irritant, resulting in signs and symptoms of acute and serious insult to the lower respiratory tract, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or


(c)               inhaling respirable crystalline silica dust, at the time material containing crystalline silica was being:

(i) produced, or

(ii)             excavated, or

(iii)          drilled, or

(iv)           used in manufacturing, cleaning or blasting,

for a period or periods of time totalling at least 925 days before the clinical onset of chronic bronchitis and/or emphysema; or

 

(d)              inhaling smoke from the combustion of biomass or fossil fuels whilst in an enclosed space, for a total of at least 5000 hours before the clinical onset of chronic bronchitis and/or emphysema; or

 

(e)               smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema; or

 

(f)                being exposed to a respiratory tract irritant, resulting in signs and symptoms of acute and serious insult to the lower respiratory tract, within the ten years immediately before the clinical worsening of chronic bronchitis and/or emphysema; or

 

(g)              inhaling respirable crystalline silica dust, at the time material containing crystalline silica was being:

(i) produced; or

(ii) excavated; or

(iii)           drilled; or

(iv)            used in manufacturing, cleaning or blasting;

for a period or periods of time totalling at least 925 days before the clinical worsening of chronic bronchitis and/or emphysema; or

 

(h)              inhaling smoke from the combustion of biomass or fossil fuels whilst in an enclosed space, for a total of at least 5000 hours before the clinical worsening of chronic bronchitis and/or emphysema; or

 

(i)                inability to obtain appropriate clinical management for chronic bronchitis and/or emphysema.


Factors that apply only to material contribution or aggravation

6. Paragraphs 5(e) to 5(i) apply only to material contribution to, or aggravation of, chronic bronchitis and/or emphysema where the person’s chronic bronchitis and/or emphysema was suffered or contracted before or during (but not arising out of) the person’s relevant service.

 

Inclusion of Statements of Principles

7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.

 

Other definitions

8. For the purposes of this Statement of Principles:

 

“an enclosed space” means a substantially enclosed area, for example, the interior of a building, ship or aircraft, a covered workshop or factory;

 

“a respiratory tract irritant” means:

(a)               mustard gas; or

(b)              Lewisite; or

(c)               chlorine gas; or

(d)              phosgene; or

(e)               phthalic anhydride; or

(f)                anhydrous ammonia gas; or

(g)              another respirable agent which causes comparable tissue damage;

 

“death from chronic bronchitis and/or emphysema” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s chronic bronchitis and/or emphysema;

 

“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight.  One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;


“relevant service” means:

(a) eligible war service (other than operational service) under the VEA; or

(b)              defence service (other than hazardous service) under the VEA; or

(c)               peacetime service under the MRCA;

 

“terminal event” means the proximate or ultimate cause of death and includes:

(a) pneumonia;

(b) respiratory failure;

(c) cardiac arrest;

(d) circulatory failure; or

(e) cessation of brain function.

 

Application

9. This Instrument applies to all matters to which section 120B of the VEA or section 339 of the MRCA applies.

 

Dated this seventh day of  October  2004

 

 

The Common Seal of the    )

Repatriation Medical Authority   )

was affixed to this instrument  )

in the presence of:    )

 

KEN DONALD

CHAIRMAN

Overview

The Repatriation Medical Authority has issued a legislative instrument in 2004 to address the need for a revised Statement of Principles concerning chronic bronchitis and emphysema for the purposes of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This instrument, specifically Instrument No. 31 of 2004, revokes the previous Instrument No. 74 of 1997 and replaces it with the current Statement of Principles. The policy objective is to ensure that the criteria for determining the connection between chronic bronchitis and emphysema, or death from these conditions, and relevant military service are based on the most recent medical-scientific evidence. This updated approach aims to provide more accurate and fair assessments for veterans and members of the armed forces who may have developed these respiratory conditions due to their service. The new Statement of Principles defines chronic bronchitis and emphysema and outlines the factors that must be related to the service, including exposure to certain respiratory irritants and smoking history, to be considered in the determination of entitlements.

Scope and Application

The Statement of Principles concerning Chronic Bronchitis and Emphysema, established under Instrument No. 31 of 2004, applies to veterans and members of the Australian Defence Force who have been diagnosed with chronic bronchitis, emphysema, or have died from these conditions. This legislation falls under the purview of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It specifically addresses chronic bronchitis and emphysema, defining these conditions and outlining the circumstances in which they may be considered related to service. The Statement of Principles sets out various factors that must be considered in determining whether the conditions are connected to the individual's service, including exposure to respiratory tract irritants, smoking history, and inhalation of respirable crystalline silica dust or biomass/fossil fuel smoke. The instrument revokes the previous Instrument No. 74 of 1997 and establishes new criteria for assessing claims related to these respiratory conditions. This legislative instrument is applicable nationwide, within the jurisdictional reach of the Commonwealth of Australia, and its provisions can be extended or modified through subordinate instruments as deemed necessary by the Repatriation Medical Authority.

Key Provisions

The legislative instrument in question primarily serves to revoke a previous statement of principles concerning chronic bronchitis and emphysema (Instrument No. 74 of 1997) and to establish a new statement of principles (section 1). The new Statement of Principles pertains specifically to chronic bronchitis, emphysema, and death resulting from these conditions, either individually or in combination (section 2(a)). It provides definitions for "chronic bronchitis" and "emphysema" as used in the context of this legislation (section 2(b)(i) and (ii)). The Repatriation Medical Authority, under the authority vested in it by the Veterans’ Entitlements Act 1986 (VEA), asserts that it is more probable than not that these conditions can be related to relevant service rendered by veterans or members of the Defence Force, as per the medical-scientific evidence available (section 3). The legislation imposes obligations on individuals seeking to establish a connection between their chronic bronchitis, emphysema, or related death and their relevant service. Specifically, claimants must demonstrate that at least one of the specified factors existed or occurred prior to the onset or worsening of their condition (section 4). The factors include smoking a certain amount of tobacco products, exposure to respiratory tract irritants, inhalation of respirable crystalline silica dust, inhalation of smoke from biomass or fossil fuels in enclosed spaces, and the inability to obtain appropriate clinical management (section 5). Additionally, some of these factors apply only to cases of material contribution to or aggravation of the conditions (section 6). The legislation does not explicitly detail offences or penalties for breaches within its text; however, it is governed by the overarching provisions of the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA). Under these acts, various offences related to the fraudulent or improper claiming of benefits can attract civil or criminal penalties. For instance, under section 189 of the VEA, penalties for making a false or misleading statement can include fines of up to $55,000 or imprisonment for up to five years, or both. Similarly, section 342 of the MRCA imposes penalties for making false statements or documents, with fines up to $55,000 or imprisonment for up to five years, or both, depending on the nature and severity of the offence.

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