Statement of Principles concerning thromboangiitis obliterans No. 8 of 2009

Administered by Department of Veterans' Affairs

Legislation au F2008L04753 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 8 of 2009

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

EXPLANATORY NOTES FOR TABLING

 

 

  1. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans’ Entitlements Act 1986 (the VEA) revokes Instrument No. 74 of 1995, determined under subsection 196B(3) of the VEA concerning Buerger's disease (thromboangiitis obliterans) and death from Buerger's disease (thromboangiitis obliterans).

 

2.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that thromboangiitis obliterans and death from thromboangiitis obliterans can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(3) of the VEA a Statement of Principles, Instrument No. 8 of 2009 concerning thromboangiitis obliterans.  This Instrument will in effect replace the revoked Statement of Principles.

 

3.             The provisions of the Military Rehabilitation and Compensation Act 2004 (the MRCA) relating to claims for compensation commenced on 1 July 2004.  Claims under section 319 of the MRCA for acceptance of liability for a service injury sustained, a service disease contracted or service death on or after 1 July 2004 are determined by the Military Rehabilitation and Compensation Commission by reference to Statements of Principles issued by the Authority pursuant to the VEA.

 

4.             The Statement of Principles sets out the factors that must exist, and which of those factors must be related to the following kinds of service rendered by a person:

 

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

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

 peacetime service under the MRCA,

 

before it can be said that, on the balance of probabilities, thromboangiitis obliterans or death from thromboangiitis obliterans is connected with the circumstances of that service.

 

5.             This new instrument results from an investigation notified by the Authority in the Government Notices Gazette of 2 May 2007 concerning Buerger's disease in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence now available to the Authority, including the sound medical-scientific evidence it has previously considered.

 

6.             The contents of the new Instrument are in similar terms as the revoked Instrument.  Comparing the new and the revoked Instruments, the differences include:

 

  • adopting the latest revised Instrument format, which commenced in 2005;
  • deleting the ICD code from the Instrument header;
  • change of name from "Buerger's disease (thromboangiitis obliterans)" to "thromboangiitis obliterans";
  • new definition for 'thromboangiitis obliterans' in clause 3 which replaces the previous definition of 'Buerger's disease (thromboangiitis obliterans)';
  • revising factor 6(a) concerning 'smoking' and clinical onset;
  • new factor 6(b) concerning 'smoking' and clinical worsening;
  • new definitions of 'death from thromboangiitis obliterans', 'ICD-10-AM code', 'pack years of cigarettes, or the equivalent thereof in other tobacco products', 'pack year of cigarettes, or the equivalent thereof in other tobacco products', 'relevant service', and ' terminal event' in clause 9;
  • deleting definition of 'ICD code'; and
  • specifying a date of effect for the Instrument in clause 11.

 

7.             Further changes to the format of the Instrument reflect the commencement of the MRCA and clarify that pursuant to subsection 196B(3A) of the VEA, the Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

 

8.             Prior to determining this instrument, the Authority advertised its intention to undertake an investigation in relation to Buerger's disease in the Government Notices Gazette of 2 May 2007, and circulated a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants.  The Authority invited submissions from the Repatriation Commission, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field.  No submissions were received for consideration by the Authority during the investigation.

 

9.             The determining of this new instrument finalises the investigation in relation to Buerger's disease as advertised in the Government Notices Gazette of 2 May 2007.

 

10.         A list of references relating to the above condition is available, on written request, from the Repatriation Medical Authority Secretariat.

Overview

The Repatriation Medical Authority Instrument No. 8 of 2009, enacted in 2009, serves to address the issue of thromboangiitis obliterans, also known as Buerger's disease, by revoking the previous Instrument No. 74 of 1995 and replacing it with a new Statement of Principles. This legislative instrument aims to clarify the relationship between thromboangiitis obliterans, death from thromboangiitis obliterans, and specific kinds of military service. The Repatriation Medical Authority, under the authority of the Veterans’ Entitlements Act 1986 (VEA), determined this new Statement of Principles based on the latest available medical-scientific evidence, which suggests a probable connection between the disease and certain military services. This development ensures that the criteria for compensation claims under both the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) are aligned and reflect current medical understanding.

Scope and Application

The Repatriation Medical Authority Instrument No. 8 of 2009, which amends the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, applies to veterans and service personnel who have contracted thromboangiitis obliterans or who have died from the disease, as well as to claims for compensation under the Acts. This instrument addresses the connection between the disease and specific types of service rendered, namely eligible war service, defence service, and peacetime service, as outlined in the new Statement of Principles. The scope of the instrument is national, applying across Australia as it pertains to federal legislation. This new instrument replaces the previously revoked Instrument No. 74 of 1995 concerning Buerger's disease. The changes include updating the instrument format, altering definitions and terminology, and revising certain factors related to the disease, such as smoking and clinical onset. The instrument's provisions are determined for both the VEA and the MRCA, effective for claims made on or after 1 July 2004. The Authority's decision-making process involved an investigation and consideration of sound medical-scientific evidence, with an opportunity for public submissions that, in this case, did not result in any submissions being received.

Key Provisions

The Repatriation Medical Authority (the Authority) under subsection 196B(8) of the Veterans’ Entitlements Act 1986 (VEA) has revoked Instrument No. 74 of 1995 concerning Buerger's disease (thromboangiitis obliterans) and death from Buerger's disease (thromboangiitis obliterans) (section 1). Based on the sound medical-scientific evidence available, the Authority has determined a new Statement of Principles, Instrument No. 8 of 2009 concerning thromboangiitis obliterans, replacing the revoked instrument (section 2). This new instrument sets out the factors that must exist for thromboangiitis obliterans or death from thromboangiitis obliterans to be connected with service, including eligible war service, defence service, and peacetime service (section 4). The new instrument imposes obligations on claimants and the Authority. Claimants must demonstrate the connection between their condition and their service by satisfying the factors outlined in the Statement of Principles (section 4). The Authority, in turn, must ensure that claims for compensation on or after 1 July 2004 are determined by the Military Rehabilitation and Compensation Commission using these Statements of Principles (section 3). The Authority is also required to conduct investigations into service-related conditions and to determine Statements of Principles based on sound medical-scientific evidence (section 5). There are no specific offences, penalties, or civil/criminal consequences mentioned in the explanatory notes for breaching the provisions of this instrument. However, claimants who fail to satisfy the factors outlined in the Statement of Principles may have their claims for compensation rejected. This could have significant financial and legal implications for claimants, as well as potential reputational consequences for the Authority if it is found to have improperly determined the Statement of Principles. In such cases, claimants may seek judicial review or other legal remedies to challenge the Authority's decision.

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