19Determination of claims and applications

#### 19 Determination of claims and applications (1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall: (a) consider all matters that, in the Commission’s opinion, are relevant to the claim or application; and (b) subject to this section, determine the claim as provided by subsection (3); and (c) subject to this section, determine an application under subsection 15(1) under subsection (5D); and (d) subject to this section, determine an application under subsection 15(2) as provided by subsection (5). (2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include: (a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3); (b) any evidence subsequently submitted to the Commission in relation to the claim or application; and (c) any evidence, documents or other material furnished to the Commission under section 32. (3) The Commission shall determine a claim for a pension as follows: (a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of: (i) the incapacity of a veteran from war‑caused injury or war‑caused disease, or both; or (ii) the death of a veteran that was war‑caused; (b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D). (4) The Commission must determine an application under subsection 15(2) as provided by subsection (5). (4A) The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D). (5) The Commission must determine an application under subsection 15(2) as follows: (a) first, the Commission must determine whether the claimant is entitled to be granted a pension in respect of the incapacity of the veteran; (b) then, if the Commission determines that the applicant is so entitled, the Commission must proceed as set out in subsections (5A), (5B), (5C) and (5D). (5A) If: (a) paragraph (3)(b) applies in respect of a claim; or (b) subsection (4A) applies in respect of an application under subsection 15(1); or (c) paragraph (5)(b) applies in respect of an application under subsection 15(2); the Commission must assess the matters set out in subsection (5C). (5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case. (5C) The matters that the Commission must assess are: (a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and (b) subject to subsection (6), the rate at which the pension is payable. (5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed. (5E) Pension is payable from the date of effect of the determination made under: (i) in the case of a claim—subsection (3); or (ii) in the case of an application made under subsection 15(2)—paragraph (5)(a); or (iii) in the case of an application made under subsection 15(1)—subsection (5D). (5F) A determination under: (a) subsection (3), in respect of a claim; or (b) subsection (5), in respect of an application under subsection 15(2); or (c) subsection (5D), in respect of an application under subsection 15(1); takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination. (6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period. (7) Where: (a) the Commission, upon considering a claim for a pension in respect of the incapacity of a veteran from injury or disease determines, or is satisfied, that the veteran suffered the injury or contracted the disease as claimed and that the injury is a war‑caused injury or the disease is a war‑caused disease, as the case may be; and (b) the Commission is also satisfied a determination under this Act is in force determining that the veteran has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that: (i) that injury is a war‑caused injury, or is, in accordance with subsection 70(3), a defence‑caused injury for the purposes of subsection 70(1); or (ii) that disease is a war‑caused disease, or is, in accordance with subsection 70(3), a defence‑caused disease for the purposes of subsection 70(1); as the case may be, whether or not a pension under Part II or Part IV, as the case requires, has been granted in respect of that injury or disease; the Commission shall not, in a case where the claimant is in receipt of a pension under Part II or Part IV in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such defence‑caused injury as war‑caused injury and any such defence‑caused disease as war‑caused disease: (c) if the claimant is not in receipt of a pension under Part II or Part IV—determine whether the claimant is entitled to be granted a pension under Part II and, if it determines that the claimant is entitled to be granted such a pension, assess the rate of the pension to be granted to the claimant in accordance with the preceding provisions of this section; or (d) if the claimant is in receipt of a pension under Part II or Part IV—re‑assess the rate of that pension in accordance with the preceding provisions of this section. (8) Where the Commission grants the whole or a part of a claim or application, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of relevant documentary medical evidence. (9) In this section: > application means an application made in accordance with section 15. > application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means: (a) the day on which the claim or application was received at an office of the Department in Australia; or (b) if subsection 20(2), 20(2B) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received. > assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined. > claim means a claim made in accordance with section 14. > relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used: (a) in support of the claim or application; or (b) if a part only of the claim or application was granted—in support of that part of the claim or application.