Thousands of defence force veterans are likely on the wrong level of benefit or are missing out on injury payments they are entitled to due to the complexity and difficulty of dealing with the claims system, according to leading lawyers and advocates.
As the federal government prepares to respond to a damning Productivity Commission report into the $13 billion-a-year compensation system, veterans and those assisting them with claims have raised concerns about vastly different payments for similar or identical injuries, depending on which Act they apply under.
Currently, depending on injury and the timing of their service veterans can be compensated under the Veterans Entitlement Act, The Safety, Rehabilitation and Compensation (Defence-related Claims) Act and the Military Rehabilitation and Compensation Act. Different levels of compensation also apply depending whether their injury occurred during war or war-like service.
KCI Lawyers partner Greg Isolani has spent 27 years representing veterans and defence personnel. He estimates up to a third of all veterans could be receiving the wrong level of compensation.
"You can look at that from the number of appeals that go through the Veterans' Review Board and how many are overturned at the Administrative Appeals Tribunal," Mr Isolani said.
"The fact that various federal court judges have consistently identified the harshness of the veterans' compensation scheme, the complexity of the veterans' scheme - It has been compared to the income tax assessment act in its complexity. So if a federal court judge looks at this and remarks on its complexity, how difficult is it for veterans to grasp the three schemes?"
A Department of Veterans' Affairs spokesman said until a claim was lodged and investigated, the final amount of compensation entitlement under one Act or another was unknown, with some veterans applying under multiple acts.
"It is often possible closer to the point of determination to provide more specific advice to a veteran ... once determinations are finalised. This may lead the veteran to withdraw one claim or proceed with a claim under both acts," the spokesman said.
One veteran of Middle East and East Timor service, Michael, (who asked not to have his surname revealed for fear of affecting his claim), said he was driven to contemplate suicide following his battles with DVA.
"I have sat at my wife's feet in tears, I have known what it feels like to feel utter despair," Michael said.
He had received payments under two different acts, and said he would support calls for the system to be rationalised.
"It should not be as difficult as it is to make a claim. The legislation is that convoluted and often contradictory. There are three or four pieces of legislation to deal with, I am caught between two. DVA is making it more difficult for advocates and thus for veterans."
It wasn't until after his matter was taken up by Tasmanian Senator Jacqui Lambie that Michael was able to resolve some of his disputes with Veterans' Affairs.
In its report the Productivity Commission called the system "overly complex, difficult to navigate, inequitable and poorly administered", and recommended simplifying the system into two compensation and rehabilitation schemes by mid-2025.
One example highlighted by the commission was of a 30-year-old soldier 'Jane' who injured her shoulder during service. Her lifetime lump-sum equivalent compensation payment would range from $56,000 up to $140,000, depending on which of the three acts she was compensated under, and whether she had been in a war-like or non war-like situation.
Veterans' advocate Jim Wain, from the Veteran Support Centre, said the claims system had improved in recent years under veteran-centric reforms brought in by the department. But any veteran that accepted DVA's decision on which act applied without checking if it was in their best interest was potentially being under-compensated.
"If we don't agree with a decision we lodge an appeal. First up they do an internal review and if that internal review is not successful, we go to the Veterans' Review Board. We win 85 per cent of our appeals, so that tells us that 85 per cent of those [appealed decisions] are incorrect," Mr Wain said.
The department spokesman said in 2017-18 financial year about 6 per cent of claims made to DVA under the VEA and MRCA were taken by veterans to the Veterans' Review Board (VRB). Less than 3 per cent of claims made to DVA result in a variation.
"In about 50 per cent of these cases, the variation or new decision is based on new evidence presented to the [review board]," he said.