Adams and Repatriation Commission (Veterans' entitlements) - [2019] AATA 3326

Adams and Repatriation Commission (Veterans' entitlements) [2019] AATA 3326 (6 September 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2626
Re:Stephen Adams
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:6 September 2019
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]...........................................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS – service pension – post-traumatic stress disorder – service related incapacity – pension payable at the general rate – whether the Applicant is entitled to payment of a service at either the intermediate or special rate – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) 6 AAR 113
Chambers v Repatriation Commission (1995) 55 FCR 9
Fox and Repatriation Commission (1997) 45 ALD 317
Jones and Repatriation Commission [2011] AATA 631
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272
Riggs and Repatriation Commission (1986) 11 ALN 114
Smith v Repatriation Commission (2014) 220 FCR 452
Watkins v Repatriation Commission (2014) 142 ALD 106
Wright v Repatriation Commission (2005) 144 FCR 302
Secondary Materials
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Deputy President J Sosso
6 September 2019
INTRODUCTION AND BACKGROUND

Mr Stephen Adams (the veteran) seeks a review of the decision of the Veterans’ Review Board (VRB) (Exhibit 1 T28 pp. 219 – 225) affirming a decision of the Repatriation Commission (the Respondent) (Exhibit 1 T25 pp. 205 – 208) to continue the veteran’s disability pension at 70% of the general rate under the Veterans’ Entitlements Act 1986 (Cth) (the Act) – Exhibit 1 T1 pp. 1 - 2.
The issue to be determined is whether the veteran became eligible for an earnings-related rate of pension during the assessment period, which commenced on 19 May 2016. As the veteran has not attained 65 years of age and is in receipt of a pension at 70% of the general rate, he is not eligible for the extreme disablement adjustment – s 22(4).
On 18 June 2016, a delegate of the Respondent decided to continue the veteran’s disability pension at 70% of the general rate. The delegate determined an impairment rating of 37 points and lifestyle effects rating of four points – Exhibit 1 T25 p. 207. The delegate also determined that the veteran was not eligible for either the intermediate or special rate of pension because the veteran had rheumatoid arthritis and obstructive sleep apnoea which contributed to his inability to work, and therefore the “alone test” could not be satisfied – Exhibit 1 T25 p. 208.
On 22 February 2017, the VRB affirmed the Respondent’s decision. The VRB found, firstly, that the veteran’s accepted service-related conditions alone rendered him incapable of undertaking remunerative work for periods of more than eight hours per week, thereby satisfying ss 24(1)(b). However, the VRB went on to find that although the veteran’s rheumatoid arthritis condition had no impact on his inability to undertake remunerative work some time after 12 months from ceasing employment, he had not genuinely sought employment since ceasing work in April 2015.
The veteran rendered service in the Australian Army from 21 November 2000 until

29 June 2014. Subsequently the veteran transferred to the Army Reserves, but was medically discharged on 26 October 2016. At the time of the Hearing the veteran was

52 years old.
The veteran has the following accepted conditions:
(a)Chronic Impingement Syndrome of the right shoulder;
(b)Hearing Loss and Tinnitus;
(c)Post-Traumatic Stress Disorder (PTSD); and
(d)Alcohol Use Disorder.
The veteran is also afflicted with the following non-accepted conditions:
(a)Right Clavicle Injury;
(b)Rheumatoid Arthritis;
(c)Aggravation of PTSD; and
(d)Obstructive Sleep Apnoea.
During the Hearing the veteran gave a detailed account of his employment history both prior to enlisting and subsequently.
After completing his secondary schooling, the veteran was employed on a full-time basis with the Commonwealth Attorney-General’s Department (three years) and the Department of Defence (seven years) for a cumulative employment period of approximately ten years (1984 – 1994).
After leaving the Commonwealth public service in December 1994 and until November 2000, the veteran was employed by the NRMA Insurance as a branch manager.
The veteran did not enlist until he was approximately 33 years of age. At the time of his enlistment in November 2000 he was living in a small town in New South Wales where employment opportunities were scarce. At the time he was separated from his first wife – Exhibit 2 p. 25.
The veteran served in the Royal Australian Army specifically in the infantry, and during his service completed an Advanced Diploma in Finance. The veteran attained the rank of Sergeant.
Subsequent to enlisting, the veteran was deployed to East Timor on four separate occasions. Three of the deployments were for six to eight months duration and the fourth was for three years. In addition, the veteran was attached to the SAS in Perth for two years (2005 – 2006) and accompanied the unit to East Timor. The veteran described to his treating psychiatrist (Dr Lindsay Martin) his role in the Army as a finance specialist, initially undertaking payroll duties but over the years becoming primarily involved with operational budgeting – Exhibit 2 p. 25.
After his final deployment to East Timor, the veteran was aged approximately 47 years and he felt he no longer had the capacity to commit to a second three year posting and determined to retire from the service – Exhibit 2 p. 25.
The Respondent has previously accepted that the veteran has the following periods of operational service under the Act – Exhibit 1 T16 p. 152:
(a)service in East Timor from 28 October 2001 to 10 January 2002; and
(b)service in East Timor from 19 January 2002 to 13 April 2002.
The Respondent also recognised that the veteran had rendered additional service in East Timor outside those dates, but noted that they were not covered under the Act.
As previously stated, after his discharge the veteran enlisted as a reservist and relocated to Cairns. After moving to Cairns, the veteran worked as a pool management technician for NQ Pool Supplies until 16 April 2015. The veteran, in a Statement, described his job as a “pool cleaner” – Exhibit 3. During this time the veteran was working eight hours each day for a total of at least 40 hours each week. By mutual consent the veteran resigned from this job due to insurance coverage issues.
After resigning from NQ Pool Supplies the veteran was, apart from some reservist activities, not engaged in remunerative work for approximately one year.
The veteran testified that he commenced work as a fruit and vegetable shelf stacker at Coles in July 2016 and earned approximately $500 each week, and worked for about 25 hours each week. The veteran remained working at Coles until July 2017 – Exhibit 4.
From 22 November 2016, the veteran also commenced working at the Mt Sheridan Tavern as a courtesy bus driver. This position entailed working 27 – 34 hours per week, but the veteran testified that he did not enjoy this work and he terminated his employment in January 2017 – Exhibit 2 pp. 388 - 398, Exhibit 6 p. 1.
The veteran also worked at an Australia Post Agency for five days in 2016 in a casual position. After five days the veteran was “let go” – Exhibit 6 p. 1.
The veteran next was employed by the Cooktown RSL Memorial Club as Manager from

7 August 2017 – Exhibit 2 pp. 470 - 477. This was a stressful time in the veteran’s life with the breakdown of his marriage. After relocating to Cooktown, the veteran undertook the responsibility of managing staff as well as stock and logistic issues. Unfortunately, certain workplace issues arose which are set out in Exhibit 2 pp. 485 – 488, and the veteran determined to resign from the position and return to Cairns.
The veteran’s decision to return to Cairns was also influenced by the fact that his new partner resided there. On 17 May 2018, just one week after concluding his employment with the Cooktown RSL Memorial Club, the veteran commenced duties with the Cairns Yacht Club as the full time Beverage Manager – Exhibit 2 pp. 444 - 450.
Apart from the veteran, the Yacht Club only employed one other person. The veteran’s duties were limited to bar management, as well as organising entertainment and stocking the bar. The Yacht Club was only open until 6 pm and the veteran’s working hours were between 6 – 7 am and 2:30 pm. As these hours were not suitable to the veteran he resigned on 21 November 2018, with his resignation being effective immediately – Exhibit 2 p. 468.
At the date of the Hearing the veteran had been engaged, since December 2018, by the Woree Tavern as a full-time duty bar manager. The veteran testified that the Woree Tavern was very busy and he supervised up to six staff usually between 6 pm and 4 am.
The Tribunal also has extensive medical records of the veteran as well as his claim history.
As early as 13 October 2010, there are reports of the veteran suffering acute left foot pain. In a report of that date by Mr Daniel Uden, Sports Physiotherapist, at Heliport Physiotherapy, Dili, East Timor, the following observations were made – Exhibit 1 T4 p. 95:
“Steve reports that 1/52ago he noted severe pain in his medial mid foot. Steve reports that he had not increased his load but has had significant pain that has been throbbing at night. He reports no history of similar episodes…”
In October 2011, the veteran was referred by Dr Robyn Walker, GP Defence, for specialist assessment. In the second referral dated 26 October 2011, Dr Walker observed – Exhibit 1 T4 p. 91:
“This man has a long history of what appears to be chronic gout right ankle.
He has responded somewhat to oral colchicine, but when he ceased it the pain intensified. He however responded well toa [sic] short course of oral prednisolone.”
The veteran was diagnosed with rheumatoid arthritis by Dr Sayed Fazed, Rheumatologist. Dr Fazed examined the veteran on a number of occasions and organised blood tests and a MRI. In his report of 22 April 2014, Dr Fazed made the following observations – Exhibit 1 T7 p. 98:
“I reviewed Stephen in my Rooms today with his MRI and blood tests. The MRI fortunately did not show any evidence to suggest active inflammation or any erosive arthropathy but he is certainly becoming seropositive with his rheumatoid arthritis.
In the interim has responded very well to Prednisone and after discussion with him today I have commenced him on Methotrexate 10mg. He is aware of the possible side effects of the medication and understands the importance of regular blood testing….”
In a later report of 26 May 2014, Dr Fayez listed under a heading “Problem list” the following – Exhibit 1 T8 p. 99:
“1.     Seropositive rheumatoid arthritis
a.   positive rheumatoid factor and anti CCP antibody
b.   Positive HLA B27.”
The extent of the veteran’s rheumatoid arthritis condition was explained by Dr David Bossingham, Locum Consultant Rheumatologist, who referred the veteran to Dr Steven Rudolphy, GP. In his referral letter of 19 September 2014, Dr Bossingham observed – Exhibit 1 T9 p. 100:
“This young man is going to be coming to make to [sic] appointment to see you shortly. He is ex-army and has history of serving in Timor, Afghanistan and lots of other exotic places.
Unfortunately, the poor chap has developed rheumatoid arthritis and he is really doing rather badly. He was initially seen by my colleague Dr Fayez in Townsville and started on Methotrexate and a small dose of Prednisolone, but when I reviewed him in the clinic today, he is doing badly and has had to take a couple of large doses of Prednisone.
Examination today shows that he has a huge olecranon bursa on the right, he has bilateral knee synovitis and tender and swollen joint score of 16, which is appalling. Unfortunately, he has not had regular investigations organised.
I have taken the liberty today of adding Hydroxychloroquine 200mgs b.d. and I am organising routine investigations and will see him again in three months time, at which time he may prove to be a candidate for treatment with a biological agent.”
The veteran was subsequently assessed and treated by Dr Paul Reilly, Consultant Rheumatologist. In a short report of 26 November 2014, he made the following observations – Exhibit 1 T10 p. 101:
“Mr Adams is doing well on Methotrexate 20mg per week, Plaquenil 400mg per day and Prednisolone 10mg per day. I’d really like him to drop this dose of steroid because it’s too high to sustain on a long term basis. I’ve given him a regime to reduce from 10 to 5mg over the course of the next six weeks. Obviously if he has a significant flare, he can bump the dose up temporarily but I’d prefer if he was aiming for 5mg per day along with the other two anti-rheumatic drugs. I’ve given him a further prescription, advised him to have bloods every two months and he’s attending for review in six months.”
On 1 December 2014, the Department of Veteran’s Affairs (DVA) received a claim from the veteran seeking rheumatoid arthritis and PTSD to be accepted as service-related injuries – Exhibit 1 T11 pp. 102 – 114.
When the veteran claimed PTSD he had not received any psychological treatment, and the first time he was subject to a psychiatric assessment was when he was examined by Dr Lindsay Martin, Consultant Psychiatrist, in January 2015 – Exhibit 1 T14 p. 126.
The veteran described the signs and symptoms of the claimed rheumatoid arthritis as follows – Exhibit 1 T11 p. 104:
“severe swelling
aching joints
inflammation”.
The service-related cause/contribution was claimed to be a doubling of the veteran’s smoking habit while on active service in East Timor – Exhibit 1 T11 p. 104.
The veteran was referred by DVA to Dr Lindsay Martin for an assessment and report on his claimed condition of PTSD. The veteran was assessed on two occasions (27 and 31 January 2015) for three hours each. Dr Martin prepared a very detailed report dated

20 March 2015 – Exhibit 1 T14 pp. 123 – 139.
Dr Martin was unaware of the veteran having any history of psychological illness prior to, or during, his military service. Dr Martin opined that the index presentation of psychological illness occurred after the completion of the veteran’s military service, but the onset was possibly during his second last deployment to East Timor – Exhibit 1 T14 p. 126.
Although Dr Martin’s report contains many insightful observations about the veteran’s psychological history, the following extract usefully summarises the situation – Exhibit 1 T14 p. 127:
“In my opinion this illness can be understood as the consequence of repeated exposure over the last fourteen years to the aftermath and devastation of war where there had occurred extreme brutality, and barbaric disposal of the bodies of men, women and children, with each exposure reinforcing baseline levels of anxiety. He spent months travelling to outposts, hypervigilant and often alone yet buoyed because he believed the army was doing a good job; however, finally overwhelming Mr Adams during his fifth and final deployment in 2014. He realised he was no longer able to cope with the Timorese environment when he returned for this final deployment. Mr Adams described feeling enraged, like he was going to explode. He felt all their [the army] efforts over the years had been fruitless. All told, these experiences have notably taxed Mr Adams’ emotional and psychological resilience. Indeed, this existential hopelessness was perhaps the final trigger for Mr Adams, precipitating an existential crisis that has thoroughly challenged his belief system.”
Dr Martin diagnosed the veteran as suffering from PTSD and Alcohol Abuse and noted symptoms consistent with the diagnostic subsets of re-experiencing phenomena, avoidance, hyperarousal, and negative mood – Exhibit 1 T14 pp. 131 - 132.
In response to a question whether the veteran would benefit from treatment, Dr Martin gave the following response – Exhibit 1 T14 p. 138:
“Yes, the symptoms exhibited are consistent with PTSD; and warrant treatment. It is likely that with adequate treatment, much of psychopathology can be resolved.”
Dr Martin gave a moderately optimistic response to a question as to the results that could reasonably be expected from treatment – Exhibit 1 T14 p. 138:
“At this stage prognosis is reasonable. Mr Adams remains engaged in employment, has an intact marriage and is not appearing alcohol dependent. He is actively seeking treatment. I would suggest that with regular therapy his symptomatology is inherently treatable. I would suggest treatment for a minimum of 12 months with review at six months.”
Dr Martin was asked by the DVA to supply a supplementary report in which she answered a series of questions in terms of the veteran’s capacity for remunerative employment – Exhibit 1 T17 pp. 157 – 159. The report is dated 6 August 2015.
Dr Martin observed (Exhibit 1 T17 p. 157) that the veteran was unable to continue in his first job after leaving the Army as a pool maintenance person “… due to worsening symptoms of Post Traumatic Stress Disorder. The symptoms impacted negatively upon his capacity to interact with customers, staff, follow instructions and drive appropriately on the road … the claimant’s ability has been substantially affected.”
Dr Martin opined (Exhibit 1 T17 p. 158) that that the claimant was prevented from undertaking employment solely because of his psychiatric condition:
“Mr Adams does suffer rheumatoid arthritis however this is not functionally limiting, and thus far is responsive to chemotherapeutic treatment.”
Dr Martin also opined that the veteran was unable to work and was only early into treatment for PTSD. She estimated that a minimum of 12 months treatment was required, but that the goal would be a return to full-time work. Nonetheless, Dr Martin went on to note that this goal was very much dependent on the veteran’s response to treatment – Exhibit 1 T17 p. 159.
Dr Rudolphy, GP, of the Mt Sheridan Medical Practice, stated that the original diagnosis of rheumatoid arthritis was made by Dr Fayez in January 2014 and that the veteran was then under the care of Dr Paul Reilly in Cairns. Dr Rudolphy stated that the veteran had symptoms of rheumatoid arthritis for five years and described them as “pain & swelling, knees, ankles, wrist, elbow” – Exhibit 1 T12 pp. 115 – 116.
On 28 May 2015, DVA received a Lifestyle Effects form from the veteran – Exhibit 1 T15 pp. 140 – 149. The veteran outlined in this document the impact the various conditions he is afflicted with have on his life. In particular the veteran made the following claims about the impact of rheumatoid arthritis on his lifestyle – Exhibit 1 T15 pp. 143, 148
“I always have my wife accompany me anytime I leave the house. When I get an arthritis attack I am completely immobile…
Remaining in a constant position causes joint inflammation. I become anxious and afraid when there are many people in cramped conditions…
My arthritis severely affects my ability to perform day to day tasks…”
The veteran stated that he had problems walking most of the time because of rheumatoid arthritis and that rheumatoid arthritis attacks limited his ability to sit in or drive a motor vehicle – Exhibit 1 T15 pp. 142 – 143.
On 1 June 2015 a delegate of the Respondent accepted the veteran’s claim for PTSD and alcohol abuse disorder, but decided that the claimed rheumatoid arthritis was not related to service. A disability pension was granted at 70% of the General Rate effective from

1 September 2014 – Exhibit 1 T16 pp. 150 – 156.
The veteran had been referred by DVA to Dr Graeme Edwards, Consultant Occupational Physician, for assessment and evaluation. Dr Edwards assessed the veteran on 3 August 2015 and provided a written report dated 17 August 2015 – Exhibit 1 T18 pp. 160 – 167.

First, Dr Edwards made the following observations about the veteran’s rheumatoid arthritis – Exhibit 1 T18 p. 162:
“For his rheumatoid arthritis, Mr Adams advised being first diagnosed in March 2014 following his return from East Timor. He had previously been treated for “four or five years” for “gout”. It appears, with the advantage of hindsight and appropriate investigations, the gout-like symptoms may have been early manifestations of his rheumatoid arthritis. His current anti-rheumatic medications include Plaquenil (hydroxychloroquine) 200 mg twice a day, methotrexate 20 mg weekly, prednisolone for symptomatic flares, and folic acid supplements. The prednisolone regime described was ‘ad-hoc’ and likely to be suboptimal.”
In response to a question on the relative contribution of each condition as a percentage of the veteran’s inability to undertake paid work, Dr Edwards gave the following response – Exhibit 1 T18 p. 167:
“An estimate of the relative contribution of each condition as a percentage of Mr Adams’ overall inability to undertake full-time paid employment is presently:
·50% is attributed to PTSD/mood dysfunction
·45% is attributed to the rheumatoid arthritis
·5% is attributed to tinnitus and hearing loss
The PTSD and rheumatoid arthritis are amenable to further treatment.”
It will be noted that there is stark difference in the opinions of Dr Martin and Dr Edwards. While Dr Martin opined in a report dated less than two weeks before that of Dr Edwards that 100% of the veteran’s inability to work could be assigned to PTSD (Exhibit 1 T17 p. 159), Dr Edwards would only assign 50% to PTSD. Further, Dr Edwards opined that the then treatment of the veteran’s rheumatoid arthritis was “sub-optimal” – Exhibit 1 T18 p. 164.
On 10 February 2016, the veteran submitted a request for a review of the decision dated

1 June 2015 – Exhibit 1 T21 pp. 185. The request contained the following grounds:
“…I am currently unable to work due to my accepted disability PTSD and also rheumatoid arthritis.”
It is important to note that the veteran did not seek a review of the decision to reject the claim for rheumatoid arthritis, but instead requested that “the AFI be looked at”. The Tribunal understands that to mean the application for an increase in pension.
As the Respondent submitted (“Statement of Issues, Facts and Contentions of the Respondent” (SIFCR) at para 17), the veteran has not made any contentions about the decision to reject rheumatoid arthritis in the request for reconsideration. The Tribunal agrees with the Respondent’s contention that whether rheumatoid arthritis was related to the veteran’s service is not an issue that falls to be determined in this decision.
On 19 May 2016, the DVA received a request to increase the veteran’s disability pension – Exhibit 1 T23 pp. 187 - 198. In his claim form the veteran made the following statement – Exhibit 1 T23 p. 191:
“I am unable to function. I have been unemployed since April 2015 and I am struggling to survive. My mental state is extremely fragile. My wife will no longer support me and wants me out of our home by mid June 2016. My P.T.S.D is the cause of all of this and I am spiralling out of control. I need help and have received none from D.V.A.”
The Respondent considered both requests for an increase in the pension and determined, as previously noted, on 18 June 2016, to continue the veteran’s disability pension at 70% of the general rate. In reaching this decision, the delegate of the Respondent found, inter alia, that the veteran was not eligible for the pension at either the special or intermediate rate because he had rheumatoid arthritis and sleep apnoea which contributed to his inability to obtain work. In short, the veteran could not satisfy the “alone” test.
Before the veteran’s request for reconsideration was determined, a report dated

12 October 2016 was received from Dr Natasha Weisz, Registrar at Cairns and Hinterland Health Service District for Dr Reilly, Consultant Rheumatologist. The following observations were made – Exhibit 1 T27 p. 218:
“This gentleman is being seen in Rheumatology with regards to Rheumatoid Arthritis. His DAS28 score is 3.57, indicates mild-moderate disease activity. His health assessment questionnaire score is 0 indicating no functional disability from his arthritis. He is currently well managed on 2 DMARD’s with good response to treatment and that he has no physical impairment as a result.”
The veteran testified at the Hearing that his rheumatoid arthritis had been, since 2017, well managed, and this testimony is consistent with the assessment of Dr Reilly quoted above.
The Tribunal had the benefit of also having before a report prepared by Dr Martin of

9 November 2018 – Exhibit 7. Unfortunately, this report is not paginated, and, accordingly, the Tribunal is unable to provide detailed citation when referring to various extracts from that document.
This report is an important document as it sheds new light on the veteran’s service in East Timor in the context of his relationship with his second wife. Even more importantly, however, Dr Martin diagnosed the veteran with Adult Attention Deficit Hyperactivity Disorder (ADHD). Dr Martin opined that the clinical manifestation of ADHD “… occurred as a consequence of his post-traumatic stress disorder. It will be necessary to commence treatment, and this may well address the treatment resistance that has been noted to date.”
In response to a question whether the veteran’s PTSD was impacting on his capacity to undertake remunerative work, Dr Martin made the following observations:
“It is my opinion that Mr Adams is currently impaired as a consequence of an Adjustment Disorder with depressed mood, in the setting of his most recent workplace difficulties; upon a baseline of a missed diagnosis of attention deficit hyperactivity disorder and an ongoing post-traumatic stress disorder.
Upon review there appears a lessening of the traumatic symptomatology, with prominence of avoidance and negative mood symptoms. It is likely that the end of the marriage has enabled some processing of the traumatic psychopathology. Nonetheless, Mr Adams’ pervasive negative mood has been identified as the factor leading to the current attempt to terminate his employment, therefore I must acknowledge that the post-traumatic stress symptoms continue to post a significant problem.”
Importantly, Dr Martin was asked whether in her opinion the veteran was unable to continue to work as a result of PTSD alone. Dr Martin’s response was at variance with her previous diagnosis:
“I no longer maintain that Mr Adams is unable to continue working as a result of his Post-Traumatic Stress Symptoms alone; …
These reasons being:
(A)the presence of a missed diagnosis of Attention Deficit Hyperactivity Disorder,
(B)the current Adjustment Disorder with depressed mood,
(C)the psychosocial difficulties of homelessness.”
Dr Martin also resiled from the opinion that the veteran’s PTSD condition was stable and stationary. The diagnosis of ADHD has opened new possibilities, in her opinion, for clinical improvement:
“Importantly, with greater information a missed diagnosis has been identified and this may well enable the previous appearance of treatment resistance (PTSD) to shift towards treatment responsiveness. Indeed, there is possibility and likelihood of greater recovery with more intensive treatment; this recovery could entail an improvement of greater than 3% whole person impairment in the next 12 months. It is for this reason that the post-traumatic stress disorder can no longer be seen as stable and stationary.”
THE HEARING
A Hearing was convened in Brisbane on 4 April 2019. The veteran was represented by

Mr D Chalk of the RSL Edmonton Sub-Branch and the Respondent by Ms Lindsay Cooper of the Australian Government Solicitor. The veteran gave evidence and was cross-examined. No other witnesses were called to give evidence. The parties were given leave to provide written submissions. The Respondent’s subsequent submissions are set out in the “Submissions of the Respondent (SR)” dated 7 May 2019. The “Submissions of the Applicant” were provided to the Tribunal and whilst undated were received by the Tribunal on 14 May 2019.
LEGISLATIVE OVERVIEW
Section 14 permits a claim for a service pension. A veteran who is in receipt of a pension can apply for an increase in the rate of pension on the ground that the incapacity has increased since the rate of pension was last assessed – s 15(1).
Section 19 prescribes the way in which, inter alia, an application for an increase in the rate of pension is determined. Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (general rate of pension), s 23 (intermediate rate of pension) or s 24 (special rate of pension) applies. Further, s 19(5B) directs attention to ss 25, 27 and 30; which provisions are not relevant to the disposition of this matter.
In determining eligibility, a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”. This period runs from the date of the application for an increase in the pension until the date of the decision of the Tribunal – s 19(9); see also Richmond v Repatriation Commission [2014] FCA 272 at [107].
In Smith v Repatriation Commission (2014) 220 FCR 452 (Smith), Buchanan J made the following observations about the assessment period ([40]/462):
“The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time when the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.”
Subsection 120(4) requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction, which, as explained in Repatriation Commission v Smith (1987) 15 FCR 327, is the civil standard of proof. Subsection 120(6) provides that no onus of proof is imposed on either party.
The central concept for determining the amount of pension payable is the degree of incapacity. Section 21A provides for the determination of the degree of incapacity by reference to the relevant provisions in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP).
The degree of incapacity is determined as 10% or a multiple of 10%, not exceeding 100%. In this matter, as previously noted, the veteran’s incapacity has been assessed at 70%.
In this matter the question to be determined is whether the veteran is entitled to payment of a service pension at either the intermediate or special rate.
The intermediate rate is prescribed by s 23, and, as its nomenclature indicates, is mid-way between the general and special rates of pension. It is payable when a veteran, due to service-related causes, is unable to engage in remunerative work except on a part-time basis or intermittently.
Consistently with s 23 being focused on veterans who are not totally and permanently incapacitated, but capable of performing part-time or intermittent work,

s 23(2) excludes a veteran who is capable of, or is actually undertaking, remunerative work for more than 50% of the ordinary time for that type of work for 20 or more hours per week.
Attention, however, must first be focused on the operation of s 24 (special rate of pension) before turning to s 23. This follows because s 23(1)(d) provides that s 23(1) applies to a veteran only if s 24 does not – see Rares J in Smith at [8]/455.
Subsection 24(1) provides that a veteran is entitled to a pension at the special rate if:
(i)a claim has been made under s 14 for a pension, or under s 15 for an increase in the rate of pension being received – s 24(1)(aa);
(ii)
the veteran had not turned 65 when the claim or application was made –

s 24(1)(aab);
(iii)either:
(a)the degree of the veteran’s incapacity from war-caused injury or disease or both, is at least 70% - s 24(1)(a)(i); or
(b)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate – s 24(1)(a)(ii); and
(iv)
the veteran’s incapacity from war-caused injury or disease, or both, is, of itself alone, of such a nature to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week –

s 24(1)(b); and
(v)the veteran is, by reason of incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of wages, or earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity – s 24(1)(c); and
(vi)section 25 does not apply to the veteran – s 24(1)(d).
Subsection 24(2) provides that for the purpose s 24(1)(c):
(a)a veteran who is incapacitated from a war-caused injury or disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity, if:
(i)the veteran ceased engaging in remunerative work for reasons other than his or her incapacity; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, who has not attained 65 years of age or more and who has not engaged in remunerative work, satisfies the Respondent that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to seek remunerative work and that the incapacity is the substantial cause of the inability to obtain remunerative work, the veteran shall be treated as having been prevented by that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Attention needs to be given to the operation of s 28 which provides that when determining for the purposes of s 24(1)(b) (or s 23(1)(b)) whether a veteran, who is incapacitated from a war-caused injury or disease (or both)), is incapable of undertaking remunerative work, regard must be had only to the following matters:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experiences referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
“Remunerative work” is defined in s 5Q to include “any remunerative activity.”
The Full Federal Court in Banovich v Repatriation Commission (1986) 6 AAR 113 at 120 held that the phrase “remunerative work which the member was undertaking” in the 1920 veterans’ entitlements legislation “should be read as a reference to the type of work which the member previously undertook and not to any particular job.”
The criteria in ss 24(1)(a)-(c) and 23(1)(a)-(c) are separate and complementary. In order for a veteran to succeed he or she must satisfy each of the mandated criteria. A failure at any point to satisfy a criteria results in the claim not succeeding – see, for example, Watkins v Repatriation Commission (2014) 142 ALD 106 at [15]/109.
These provisions were carefully considered by Buchanan J in Smith. His Honour made the following observations ([47]-[49]/465-466):
“47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Second, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (that is not for other reasons) from continuing earlier remunerative work. Third, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of the loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (“a veteran who is incapacitated”). The purpose of the inquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work, which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (that is loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.”
(emphasis in the original)
His Honour also explained the operation of s 23, which is the “imperfect analogue” of s 24 – see Rares J at [25]/460 in Smith. Buchanan J said ([53]-[54]/467):
“53 … Although the scheme of s 23 broadly corresponds with the scheme of

s 24, there are some important differences which arise from the fact that s 23 deals with incapacities which are not totally disabling. The principal differences are reflected in the inclusion of s 23(1)(d) (which renders s 23 inapplicable if

s 24 applies), (2) (which governs the operation of s 23(1)(b) and (3)(a)(iii) (which accommodates the possibility that a veteran is working less than full-time for reasons other than the relevant incapacity).
54 Like s 24, s 23 assumes the existence of a disabling incapacity. Section 23(1)(b) and (c), when read together, also state a composite test containing a series of conditions. In the case of s 23, s 23(2) states the degree of incapacity which must be established for the purpose of s 23(1)(b). Accordingly, in the case of s 23 the first condition is that the veteran is rendered incapable of working more than 50% of a full-time work load (or more than 20 hours per week) by the war-related incapacity alone. The second, third and fourth conditions, which are supplied by s 23(1)(c), are in identical terms to s 24(1)(c), but there are indications elsewhere that those conditions must be applied in the circumstances of lesser incapacity to which s 23(1)(b) is addressed. The explicit reference in s 23(3)(a) to an incapacity to the extent set out in s 23(1)(b) should be noted in this connection. So also should the existence and operation of s 23(3)(a)(iii), which is specifically addressed to reasons for engagement in part-time or intermittent work.”
(emphasis in the original)

While the Tribunal is required to consider s 24 before it turns (if it needs to) to s 23, as the two provisions are drafted in a broadly similar manner, and for ease of convenience in this matter, both can be considered in tandem.
CONSIDERATION
Capacity for work – subsections 24(1)(b), 23(1)(b) and section 28 of the Act.
Introduction
As Tamberlin J observed in Wright v Repatriation Commission (2005) 144 FCR 302 at [15]/308 ss 24(1)(b) and (c) (and by analogy s 23(1)(b) and (c)) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b) “goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than 8 hours per week then the condition in s 24(1)(b) is satisfied.”
As was explained by Buchanan J in Smith, the primary difference between ss 24(1)(b) and 23(1)(b) is the amount of remunerative work a veteran is rendered incapable of undertaking. Rares J observed in Smith (at [8]/455) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” Consequently, s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

In contradistinction, s 23(1)(b) contemplates a veteran being either able to undertake remunerative work for 50% of the time ordinarily worked by persons in work of that kind on a full-time basis or being capable of undertaking work for more than 20 hours per week – s 23(2).
It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period, which in this matter commenced on 19 May 2016 when the veteran sought an increase in his rate of pension – Exhibit 1 T23 pp. 187 – 198.
There are three elements that need to be satisfied:
(a)the veteran has an incapacity which results from a war-caused injury or disease (or both);
(b)the incapacity itself alone renders the veteran incapable of undertaking remunerative work; and
(c)
the incapacity must either prevent a veteran from working more than 8 hours

(s 24) or 20 hours (s 23) per week.
First element
In this matter it is not disputed that the veteran is suffering from an incapacity which is service-related, namely PTSD. During the assessment period there is no evidence of any incapacity resulting from his previously diagnosed, and accepted, Alcohol Abuse condition.
Second element
There, is, however, no consensus on the other two elements that need to be satisfied.
The Respondent submits (SR para 20) that the Tribunal can be reasonably satisfied that the veteran is not incapacitated to undertake remunerative work for either 8 or 20 or more hours per week for the following reasons:
“20.1 The Applicant’s vocational, trade and professional skills, qualifications and experience, which would all suggest he could be ‘reasonably expected’ to perform:
20.1.1. work of an administrative, financial and/or logistical nature
20.1.2. less skilled light manual type work.
20.2The Applicant’s incapacity from PTSD cannot be considered permanent given the uncontested evidence of Dr Martin that while the Applicant’s PTSD was previously considered treatment resistant, that is not accurate in light of the ADHD diagnosis, treatment of which means there is likelihood the Applicant’s PTSD would improve.
20.3The Applicant’s own evidence to the effect that he is capable of undertaking work and has in fact been engaging in the type of work forming his remunerative work for greater than 20 hours per week throughout the assessment period. While the Applicant made submissions before the Tribunal and gave oral evidence that the only reason he worked was financial necessity, the Respondent submits that financial need is not a relevant consideration to the appropriate test to be applied when deciding entitlement to either the special or intermediate rate of pension having regard to the requirements of ss 23 and 24 of the Act.
20.4During the period February 2015 to around August 2015 (and up to February 2016 at the latest), the Respondent accepts that the Applicant had a certificate stating that he was unfit for work. However, following the oral evidence of the Applicant that:
20.4.1during this time he able to fly to Melbourne from Cairns to run a training course on logistics in his capacity as a reservist
20.4.2. he was able to participate in 2 or 3 days of activities as a reservist and
20.4.3 for the approximate 2 month period between the end of February 2015 to April 2015, the Applicant continued to work full time at NQ Pool Supplies despite having received Dr Martin’s medical certificate,
it appears the Applicant did in fact demonstrate capacity to undertake remunerative work during the time covered by Dr Martin’s certificate, perhaps not consistently on a full time basis but most likely for greater than 8 or 20 hours per week.”
The evidence before the Tribunal supports the Respondent’s submissions.
First, a thorough reading of the medical evidence does not support the proposition that the veteran’s PTSD had, during the assessment period, alone rendered the veteran incapable of undertaking remunerative employment for more than a total of either 8 or 20 hours per week.
Dr Edwards opined in August 2015, that the veteran’s PTSD accounted, for only 50% of the veteran’s incapacity to engage in remunerative employment. This contrasted with

Dr Martins’ initial opinion, expressed in the same month that the PTSD accounted for 100% of the incapacity. This sharp disparity of medical opinion, albeit given prior to the commencement of the assessment period, requires further inquiry.
The Tribunal was presented with the summonsed medical records of various medical experts, including Dr Martin’s. A reading of the report she sent to persons other than the DVA sheds a somewhat different light on the matter.
It should also be noted that the veteran declined to call Dr Martin to give evidence, and so the Respondent was deprived of the opportunity to cross-examine her, and the Tribunal deprived of the opportunity to form a view as to the strength of her medical diagnoses when subjected to challenge.
Although Dr Martin dismissed the veteran’s rheumatoid arthritis as having any contribution to his incapacity to engage in remunerative employment, in her surgery notes of 19 March 2016 (Exhibit 2 p. 11) she made the following observations:
“flare up of athralgia
but not of a major joint so unlike [sic] usual arthritis
has been training
in pain just rolling over in bed
really very stiff in the mornings
see the rheumatologist Paul Reilly on wednesday
usually quite well when see him”
As previously noted, Dr Weisz opined in a short letter of 12 October 2016, that the veteran’s rheumatoid arthritis had responded well to treatment and that the veteran was suffering no physical impairment as a result – Exhibit 1 T27 p. 218. A similar conclusion was also reached by Dr Martin in her short report to the DVA of 6 July 2016 – Exhibit 1 T26.2 p. 217.
Yet, as pointed out above, in March 2016 the veteran was complaining to Dr Martin of pain and discomfort due to a flare up of arthritis, and a close perusal of the more recent medical history of the veteran discloses ongoing problems with rheumatoid arthritis.
The summonsed medical records of CTL Medical Services, Cairns, discloses that on

16 July 2018 the veteran sought medical assistance for “Flare of RA”. The surgery consultation notes of Dr Campbell Crilly are as follows – Exhibit 2 p. 415:
“Has noticed some increased pain in his joints and had an emergency stash of Prednisolone 5mg tabs 4 tabs daily over the last two days.
Pain in both his shoulders, right base of thumb and both knees and left wrists.”
The veteran was again examined by Dr Crilly on 23 July 2018 who noted that the “Joint pain has reduced on the prednisone” – Exhibit 2 p. 415.
By 20 August 2018 Dr Crilly noted that the rheumatoid arthritis flare up had resolved but went on to state that the reason given by the veteran for the visit was “RA – flare slow resolution” – Exhibit 2 p. 414.
Furthermore, during the assessment period there was an improvement in the veteran’s PTSD. In the last recorded surgery note provided to the Tribunal, which is dated 15 May 2017, Dr Martin recorded the following – Exhibit 2 p. 13:
“THERE HAS BEEN A SHIFT IN MOOD
happier within self
awaiting the outcome of the DVA
frustrated with the process
needing this reframed – not enough PTSD to be completeely [sic] disabled…
better with the increase in the medication”.
In a letter to Dr Rudolphy of 23 May 2016, Dr Martin opined that he veteran was “progressing slowly” and while still suffering from PTSD was “sleeping better and is noticeably less angry.” – Exhibit 2 p. 61.
Of interest is a letter dated 15 May 2017 from Dr Martin to Dr Rudolphy where she made the following observations – Exhibit 2 p. 68:
“I have reviewed Stephen this morning. He appears to have shifted slightly in his mood. He is feeling better within himself. He has completed the EMDR with Lisa Jones. He continues to find the DVA process incorrigible but at the same time may well need to move forward. He is not able to achieve a total incapacity with DVA; and is at the last hurdle whom will likely find in the same way. I have attempted to restructure how Stephen is viewing the assessment to there is not enough PTSD to prevent some work. In the current light this does not appear too unreasonable.”
The most important piece of medical evidence, however, is the report of Dr Martin of

9 November 2018.
That report makes clear that the veteran’s psychological condition had, until November 2018, only be partially diagnosed. Dr Martin has opined that the veteran is afflicted not only with PTSD but also with ADHD as well as depression and mood issues. Further, the failure to diagnose the veteran with ADHD has resulted in him not receiving the totality of medical treatment he obviously requires. The positive aspect of this is, as Dr Martin highlights, that it is now possible to see a favourable medical resolution of the veteran’s underlying, and severe, psychological maladies.
The Tribunal therefore agrees with the Respondent, that the veteran’s incapacity from PTSD cannot be considered permanent, and that the treatment of his PTSD has improved during the assessment period as a result of the diagnosis of ADHD.
Further, based on Dr Martin’s report of November 2018, the Tribunal is not satisfied that the veteran’s PTSD condition alone rendered him incapable of undertaking remunerative work. Dr Martin’s report was not seriously challenged at the Hearing, nor was she called to give evidence. In these circumstances the Tribunal has before it a clear and compelling report from a professional who has treated the veteran for a number of years, who has opined that he is suffering from other conditions which have, during the assessment period, negatively impacted on his capacity to gain and maintain remunerative work.
Third element
There, is, however, an even more fundamental impediment which the veteran faces, and which is the subject of clear and uncontested written and oral evidence. This relates to the third element which a veteran seeking the intermediate or special pension must satisfy when addressing ss 24(1)(b) and 23(1)(b).
The evidence before the Tribunal is the that the veteran has, but for the first two months of the assessment period, been engaging in paid remunerative work for more than 20 hours per week.
Where it is established that a veteran is capable of working for greater than the prescribed hours in either ss 24 or 23 , then, prima facie, he or she does not qualify for payment of the special or intermediate pension – see Riggs and Repatriation Commission (1986) 11 ALN 114.
This basic but fundamental principle applies with even more force when it is established that a veteran not only has the capacity to work in excess of the prescribed hours in ss 24(1)(b) and 23(1)(b) but has actually worked in excess of those hours, and for extended periods over the vast majority of the assessment period.
The veteran submitted that although he had been working in a variety of jobs, ranging from shelf stacker at Coles, courtesy bus driver, pool cleaner, bar work and managing the Cooktown RSL Club, he did so only because of financial necessity.
It is undoubtedly the case that the veteran was in a difficult financial state during the assessment period. His ill health and the breakdown of his second marriage all impacted deleteriously on his financial wellbeing. The veteran found himself in a new town (Cairns), without a broad circle of friends, remote from his family, suffering physical and psychological maladies and experiencing the rapid and distressing breakdown of his marriage. The reports of Dr Martin also suggest that the veteran may have been suffering from ADHD and possibly other psychological conditions. Considered from this perspective the obtaining and holding onto a job would have been extremely difficult for the veteran, and it flows that the veteran would only have gone into the workforce in such circumstances because of extreme financial necessity.
However, whilst the Tribunal accepts this proposition, it does not assist the veteran in satisfying the third element of the test prescribed by ss 24(1)(b) and 23(1)(b). The Tribunal is required to assess whether the veteran’s incapacity from war-caused injury or disease (or both) alone renders him incapable of undertaking remunerative work for the prescribed periods. In short, the test is focused on the inability to work for more than the prescribed periods, and not for the reasons that a veteran can, in fact, work in excess of those time periods.
The Tribunal does not doubt that the veteran was a sick man throughout the assessment period and was suffering from service-related incapacities. That much is a given in matters such as these when the claimant veteran is already in receipt of a service pension and the degree of incapacity has been determined pursuant to s 21A to be at least 70% - ss 24(1)(a)(i), s 23(1)(a)(i).
However, the issue is whether those accepted service-related incapacities, alone, rendered the veteran incapable of working for more than 8 or 20 hours per week. The undisputed evidence before the Tribunal is that the veteran was working almost continuously during the assessment period, and was working in excess of 20 hours per week.
It is not an answer to this undisputed state of affairs to state that although such work was undertaken, it was only done so because of financial need, or that the undertaking of such work was made difficult because of the service-related incapacities. If a veteran has been working more than the prescribed time periods, despite the accepted service conditions, then the veteran has not satisfied the third element of the test required by ss 24(1)(b) or 23(1)(b).
Section 28 of the Act
Finally, attention needs to be given to the operation of s 28. Section 28 relates only to the operation of ss 24(1)(b) and 23(1)(b) and not the other paragraphs of those sections – Fox and Repatriation Commission (1997) 45 ALD 317. Whilst the provision is intended to be ameliorative, nonetheless it operates to exclude matters that might otherwise be relevant to an assessment, such as depressed market conditions – Chambers v Repatriation Commission (1995) 55 FCR 9.
Whilst s 28 is intended to prevent arguments that a veteran is capable of doing work beyond their skills or work capacity, it is not intended to facilitate a veteran refusing to engage in remunerative work which is more menial or less stressful than that which they previously undertook. A veteran is not required to “skill up”, and, if, for example, a veteran is required to undertake studies to engage in remunerative employment, then a finding is open that the veteran is incapable of undertaking remunerative work – see Jones and Repatriation Commission [2011] AATA 631.
As previously mentioned, the Tribunal accepts the Respondent’s contention that the veteran’s vocational, trade and professional skills, qualifications and experience were such that he would reasonably be expected to perform work of an administrative, financial, or logistical nature or less skilled light manual work. During the assessment period the veteran was engaged in managerial roles with the Cooktown RSL, Cairns Yacht Club and the Woree Tavern. In the latter two instances as a bar manager, and in the instance of the Cooktown RSL as the full-time Club Manager. After a disappointing period after leaving the Army and being employed in base level jobs with NQ Pool Supplies, Coles and the Sheridan Tavern, the veteran has slowly but surely improved his lot and been employed in more responsible positions, better fitting his skills and experience.
However, attention must be drawn to the intent of s 28. The section is predicated on a veteran who is “incapable of undertaking remunerative work”. Consequently, the criteria outlined in paragraphs 28(a)–(c) are all predicated on the assumption that a veteran is incapable of undertaking remunerative work in excess of the time periods prescribed in ss 24(1)(b) and 23(1)(b). Section 28 has no operation where a veteran is not so incapacitated by the accepted war-caused injury or disease (or both). In this matter, the veteran is not so incapacitated, and, as such, s 28 provides no assistance to him.
Loss of salary, wages or earnings – subsections 24(1)(c), 23(1)(b)
Having regard to the findings made pursuant to ss 24(1)(b) and 23(1)(b) it is not necessary to consider the operation of ss 24(1)(c) or 23(1)(c).
However, it is appropriate that the Tribunal state that it agrees with the submission of the Respondent (SR para 22) that the veteran cannot satisfy the first limb of ss 24(1)(c) or 23(1)(c) because the veteran has not ceased to undertake remunerative work.
The Tribunal is required to assess the veteran’s work history from 19 May 2016 until now. With the exception of the period April 2015 until July 2016, the veteran has continuously undertaken remunerative work. In short, with the exception of the period 19 May 2016 until July 2016, the Tribunal has been informed that the veteran has been constantly employed. It cannot be said, then, that the veteran has been prevented from continuing to undertake remunerative work.
Insofar as the veteran was not engaged in remunerative work for the first two months of the assessment period, I find that non war-caused conditions have contributed to the veteran not undertaking remunerative work. In particular, the medical evidence discloses that he was suffering from rheumatoid arthritis, ADHD, and possibly an adjustment disorder with depressed mood.
The veteran stated during the Hearing that he suffered from “flare ups” of rheumatoid arthritis, and the surgical notes of Dr Crilly highlight that this is an ongoing issue, with a severe “flare up” in July 2018. More importantly, Dr Martin has highlighted that the veteran is suffering from ADHD, and the failure to diagnose and treat this ailment has impacted negatively both on his health and his capacity to function in his personal and employment life.
CONCLUSION
It is appropriate that the Tribunal note that the veteran has provided significant service to Australia whilst serving in the Army, and, in particular, during his tours of duty in East Timor.
The Tribunal has not set out in this decision some of the negative experiences the veteran suffered whilst serving in East Timor. It is clear from reading the copious material presented that the veteran was severely traumatised by his service in that zone of conflict.
Since leaving the Army the veteran has suffered from a number of ailments and his life has not been easy. There is much force in the view expressed by Dr Martin, that although the veteran has not found it difficult to obtain employment, he has found it difficult to retain such employment. The evidence discloses that there are a number of reasons for this, but his psychological state has played a significant role.

It is unfortunate that the veteran has only recently been diagnosed with ADHD and that only in the last twelve months is he getting targeted and appropriate medical care. Fortunately, albeit belatedly, this diagnosis has paved the way for a better medical future for the veteran. As with all matters psychological, only time will tell if the moderately optimistic views of Dr Martin will come to pass.
A reading of the evidence also discloses that the veteran has formed a negative view about the veterans’ entitlement process and the actions of the DVA. It is not appropriate for the Tribunal to comment on this state of affairs other than to note that the veteran’s overseas service has left him an emotionally fragile individual, and it is hoped that the finalisation of these proceedings will allow him to move forward with this life.
The Tribunal was presented with an array of medical evidence which was somewhat uneven, and, at times, contradictory. It would appear that the veteran commenced the claim process at a time when his medical condition was unsettled and when the medical diagnoses of his mental state were not complete.
Whilst it is hoped that Dr Martin’s prognosis for the veteran’s future is correct, nonetheless if that proves not to be case, then at least the veteran will be able in the future to marshal more settled medical evidence to buttress his case.
DECISION
The decision under review is affirmed.

139. I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President
J Sosso

......................[SGD]....................................
Associate
Dated: 6 September 2019

Date of hearing: 4 April 2019

Date final submissions received:

Representative for the Applicant:

Solicitors for the Respondent:

7 and 14 May 2019

Mr D Chalk

Far North Queensland Veterans & Ex-Services Support Centre

Ms L Cooper

Australian Government Solicitor