\u201cNothing in Your Medical Records\u201d — What to Do When DVA Rejects Your Claim

The letter says it in a sentence or two. There is no record of the injury in your service medical documents. There is no evidence of the condition during service. The claim is refused.

Veterans read that as: DVA thinks I made it up. Many stop there. Some never claim again.

Before you accept it, understand what that reasoning does and does not amount to — because a refusal built only on a silent file is the weakest kind of refusal there is.

The principle: absence of evidence is not evidence of absence

The phrase gets used often in veterans’ advocacy, and it is worth stating precisely. The fact that a record does not exist is not the same as evidence that the event did not occur. A silent file can mean the injury never happened. It can equally mean nobody wrote it down — and in the ADF, that second explanation is so common that Parliament legislated for it.

Mental health claims are where this bites hardest, for reasons anyone who has served understands: presenting to the RAP with a psychological problem carried real career consequences. Medical Employment Classification downgrades. Loss of a posting, a course, a deployment, a security clearance. The rational response — and the near-universal one — was not to present at all. To self-manage, to drink, to push through. The absence of a mental health record from that period is often the clearest evidence of how the culture worked, not evidence that nothing was wrong.

What the legislation actually requires

Decision-makers are not free to treat a gap in the records as the end of the matter. Both Acts specifically direct them otherwise.

Under the Veterans’ Entitlements Act 1986, section 119(1) — and its equivalent in the Military Rehabilitation and Compensation Act 2004, section 334(1) — the decision-maker must take into account any difficulties that lie in the way of ascertaining a matter, including the effects of the passage of time and the absence of, or deficiency in, relevant official records.

That is not a courtesy. It is a mandatory consideration. A delegate who reasons “there is no record, therefore no” has skipped a step the statute requires them to take.

Two related provisions sit alongside it under the MRCA: sections 336 and 337 mean the decision-maker is not entitled to make certain presumptions about evidence, and there is no onus of proof on you in relation to any element of the claim. Nobody has to prove anything to a courtroom standard. The question is whether the decision-maker is satisfied on the material.

What DVA’s own guidelines say — in writing

This is the part worth quoting back. DVA’s Commission Guideline CM5542, in the Consolidated Library of Information and Knowledge (CLIK), gives worked examples of how section 119(1) operates. One of them is almost exactly the situation veterans are refused on:

“A veteran may make a statement concerning the receipt of medical treatment for an injury during a particular military action. If that statement is credible, then s119 (1)(h) can permit a finding made in favour of the claimant, even though there is no record of that treatment in the veteran’s service records. This is because it is common knowledge that the exigencies of service were such that full records of all treatment were not always made.”

Read that twice. It is DVA’s own guidance, and it says a credible statement can carry a finding in your favour with no record at all — because everybody knows service records are incomplete.

The same guideline notes that section 119(1)(h) “cannot take the place of the material” — you still need something — but that it “can permit a positive finding to be made without corroborative evidence.”

Your own account is evidence

Veterans routinely assume their word counts for nothing. DVA’s liability policy says the opposite, plainly:

“A client’s contention (including where not contained in a statutory declaration) is a form of evidence that can be taken into account. In the absence of contradictory evidence being available to the Department, and provided a contention is credible and matches the records available, a contention can generally be considered favourably.”

And:

“While contemporaneous, independent evidence may be highly desirable, the legislation does not explicitly require additional corroborative evidence to establish a causal link between the claimed condition and the claimant’s period of service.”

The policy even works through a mental health example: a veteran claims PTSD from witnessing a training accident, and provides a service record, a psychiatrist’s diagnosis attributing the PTSD to the incident, and statements from unit members confirming they were present. DVA’s guidance is that where the claim is detailed, matches known service, and is plausible, a delegate may consider there is already sufficient evidence to decide on the balance of probabilities. A second example covers depression arising from harassment, where a detailed statutory declaration may itself be enough.

Notice what is absent from both examples: a contemporaneous RAP entry.

What the courts have said about missing records

The case law that matters most here concerns retrospective diagnosis — dating a condition backwards from later evidence.

In Repatriation Commission v Cornelius [2002] FCA 750, the Federal Court established that what is needed is material pointing to signs and symptoms of the injury or disease such that a medical practitioner can say the condition was present at a particular time. That principle was endorsed by the Full Federal Court in Lees v Repatriation Commission [2002] FCAFC 398.

The effect: clinical onset does not have to be proved by a document written at the time. A doctor can look at the whole picture — later records, the pattern of symptoms, the history — and form a view about when the condition was actually present. That is a legitimate, court-endorsed route to establishing onset.

It fits with how “clinical onset” is defined. Following Re Robertson v Repatriation Commission [1998] AATA 127, onset is when a person became aware of a feature or symptom that enables a doctor to say the disease was present at that time — not the date a specialist finally wrote the diagnosis down. DVA’s own policy acknowledges that conditions are often claimed many years after service and that, where contemporaneous evidence is absent, a retrospective diagnosis may be sought.

So what do you actually do?

1. Find out precisely what was refused

Get the determination letter and read it for the specific finding. Was the diagnosis not accepted? A particular SoP factor not satisfied? The clinical onset date placed outside a window? “Nothing in the records” is usually shorthand for one of these, and each needs different evidence. If the reasons are thin, request the file — see how to access your DVA records.

2. Get your complete service record — not DVA’s copy

This alone resolves a surprising number of refusals. DVA only holds what it has been given. The full Defence file — including unit records, electronic-only records and psychology records, which sit in their own category — frequently contains entries nobody had seen. Free, about 30 days: how to access your ADF medical records.

3. Have the whole record actually read

Entries rarely say “PTSD”. They say presented tired, irritable, sleep poor. Or the trail is indirect: a disciplinary incident, a sudden posting change, a spike in RAP attendances for unrelated complaints, an alcohol-related entry. Reading four hundred pages for that pattern is what a chart review is for, and it is where refusals are most often overturned.

4. Build the evidence the law says can substitute

Your own detailed statement — specific dates, places, units, roles, what happened, what you did about it and why you did not present. Explaining why there is no record is itself evidence.
Statutory declarations from witnesses — section mates, partners, family. DVA policy expressly contemplates statutory declarations given later, with weight a matter for the delegate.
Post-service records — GP notes, employment records, relationship history. These build the pattern a retrospective diagnosis relies on.
A medicolegal report that does the work explicitly: names the diagnosis, sets it against the SoP factor, addresses clinical onset using the Cornelius reasoning, and states the basis for the opinion despite the documentary gap.

5. Use your review rights

There are time limits on review, so do not let the letter sit. See VRB and determination appeals. A free ESO advocate can run the review at no cost — see free vs private DVA claims advocates. The division of labour that works: the advocate runs the appeal, the doctor supplies the medical evidence it stands on.

Being straight with you

Not every refusal is wrong, and not every refusal is winnable. Sometimes the condition genuinely does not meet a SoP factor, and no amount of argument fixes that. A good doctor and a good advocate will tell you when that is the case rather than take your money to chase it.

But a refusal whose entire reasoning is the file is silent is different. That reasoning ignores a mandatory statutory consideration, contradicts DVA’s own published guidelines, and sits against Federal Court authority on retrospective diagnosis. It deserves a second look.

Talk to us

We read the whole record, find what is actually in it, and write the medical case — including, where it applies, the reasoned opinion on clinical onset that a silent file requires. Fixed fee, never a percentage of your compensation. Call 0429 146 039 or email reception@vhc.org.au for a no-obligation consult with the Veterans Health Centre in Ipswich, Queensland.

Claim refusals land hard, particularly on mental health claims. If this has knocked you about, Open Arms — Veterans and Families Counselling is free, confidential and available 24/7 on 1800 011 046.

“There’s Nothing in Your Medical Records” — What to Do When DVA Rejects Your Claim for Lack of Documentation