Bowser and Repatriation Commission
[2008] AATA 506
•18 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q 2006/00526
VETERANS’ APPEALS DIVISION ) Re GORDON BOWSER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date18 June 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review, and substitutes the decision that:
(i) the condition of sleep apnoea is a war-caused condition within the meaning of section 8 of the Veterans Entitlement Act 1986;
(ii) Mr Gordon Bowser is entitled to receive a pension for incapacity associated with this condition with effect from and including 18 July 2005; and
The matter is remitted to the Repatriation Commission for the assessment of the pension.
..............[Sgd]................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s Entitlements – disability pension – veteran suffers from condition of sleep apnoea – sleep apnoea satisfies statement of principles – sleep apnoea occurred during war-time service – veteran exposed to cramped sleeping conditions and irregular sleeping patterns during Korean War – sleep apnoea is a war caused condition – decision under review set aside.
Veterans Entitlements Act 1986 (Cth) – ss 9, 13, 120, 120A
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
RepatriationCommission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
18 June 2008 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Gordon Bowser (“the veteran”) saw frontline service in the Korean War. I have to decide whether the condition of sleep apnoea suffered by the veteran is attributable to his service in the Korean War.
SERVICE
2. The veteran served with the Australian Army in World War II and in the Korean War. He had two periods of operational service in Korea (2 August 1950 to 15 July 1954; 20 March 1954 to 4 April 1955).
PRIOR DECISIONS
3. On 18 October 2005 the veteran lodged a claim with the Repatriation Commission, for a disability pension for sleep apnoea.
4. On 15 November 2005 the Repatriation Commission determined that the sleep apnoea condition of the veteran was not related to his service[1].
[1] T2.
5. On 17 May 2006 the Veterans’ Review Board affirmed the decision of the Repatriation Commission.
LEGISLATIVE FRAMEWORK
6. Section 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides for when an injury or disease is taken to be war-caused. The provision applies where “the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
7. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. As the veteran has performed operational service, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
9. The Act provides that where a claim for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1).
10. The Act also provides that in applying subsection 120(1) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person: s 120(3).
STATEMENT OF PRINCIPLES
11. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority. Section 196B of the Act provides that if the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the Repatriation Medical Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
12. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides, relevantly, that in effect a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
13. In the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This follows from the application of s 120A(3), which provides that for the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
ISSUES
14. I have to determine whether the circumstances of the veteran satisfy the Statement of Principles for Sleep Apnoea: Instrument No. 13 of 2005. The case of the veteran, as outlined in his letter of 30 November 2007, is based upon factor 5(a) of the Statement of Principles.
MEDICAL EVIDENCE
15. On 3 October 2005 Dr N Wong reported that the veteran has sleep apnoea. Dr Wong stated that the veteran first consulted him for the condition in 1998[2].
[2] T4, fols 16-17.
16. On 3 November 2005 Dr F Malan, Ear Nose and Throat Surgeon, confirmed that the veteran has sleep disordered breathing[3].
[3] T4, fol. 23.
17. After the decision of the Veterans’ Review Board, the Department of Veterans’ Affairs wrote to Dr Malan on 24 September 2007 to seek his opinion on a number of issues. On 28 September 2007 Dr Malan provided a report to the Department of Veterans’ Affairs.
18. One of the questions upon which the advice of Dr Malan was sought was: “Is making noises during sleep synonymous with a diagnosis of sleep apnoea?” Dr Malan in his report answered that it was impossible to supply a short response to this question. However, Dr Malan commented: “In general one should state that snoring is a sign of upper airway obstruction”.
19. Another question upon which the advice of Dr Malan was sought was: “On the balance of probabilities, did Mr Bowser suffer from sleep apnoea either prior to or during either period of service in Korea?” Dr Malan answered: “During Mr Bowser’s last visit to my practice, dated 24/8/2007, I explained the difficulties with regards to subjectively knowing whether an upper airway resistance syndrome was present, prior to being deployed by the Australian Army. I also stated to the patient that no-one can dispute his way of thinking with regards to the onset of the problem as it was, and still is a difficult clinical situation to comprehend”.
20. Dr Malan was also asked the following question: “Is being exposed to freezing and cramped conditions when in Korea a significant factor for any of the present upper airways changes described in your reports?” Dr Malan answered: “One would postulate (and Mr Bowser agreed to this fact), that he was extremely tired, being in the trenches for a few days and this of course leads to significant sleep-related relaxation of the pharyngeal and lingual musculature, exacerbating a pre-existing condition to upper airway failure. …….. It is well known that nocturnal sedation, extreme tiredness and intake of alcohol during sleep, exacerbate a sleep-related breathing disorder, mainly as they contribute to upper airway obstruction during sleep by causing significant relaxation of the pharyngeal and lingual musculature. However, these are irreversible[4] situations and one would imagine that only long-term exposure (a year or more) to similar conditions would have a permanent effect on his pharyngeal musculature, contributing to a chronic myopathy”.
[4] In a letter to the Department of Veterans’ Affairs dated 16 October 2007, Dr Malan stated that the word “irreversible” in his report should read “reversible”.
21. I should also mention that in his report of 28 September 2007 Dr Malan has remarked that “it is quite evident that Mr Bowser’s craniofacial configuration exposes the main reasons for his upper airway obstructions during sleep, a condition which is congenital and certainly largely contributing to the unmasking of a potentially obstructing upper airway in predisposing situations”.
CONTENTIONS OF VETERAN
22. The contentions of the veteran are contained in a number of documents that have been filed in this Tribunal.
23. In a letter of 14 February 2006 the veteran states: “During my operational service in Korea in the early 1950’s I mostly slept in an exhausted state in cramped, cold and unnatural sleeping positions. Often my mates would waken me when my disturbed and broken sleep patterns erupted in loud chokes and grunting sounds”[5].
[5] T4, fol. 54.
24. The advocate of the veteran in a letter of 30 November 2007 has mentioned that the veteran did not suffer from sleep related ailments prior to his service in Korea. The veteran has complained that continual action under adverse conditions has caused him to suffer sleeping difficulties.
25. The veteran highlights the winter of 1950/51 as being the worst time for his sleeping problems due to his inexperience with combat and fatigue. His sleeping habits were quite forcibly brought to his attention by other soldiers in the front line who were concerned that the noise that he made in his sleep would reveal their positions to the enemy.
26. On his return from Korea he suffered the sleep disability under the belief that he was a snorer. It was not until the mid-1990’s that Mr Bowser commenced to receive continuing treatment for sleep apnoea. Mr Bowser had at that time consulted Dr R Bos, a general practitioner at Emu Plains.
27. The main contention of the veteran is that he served in a frontline combat situation for some time and that the long term exposure during that time has caused his condition to be irreversible.
DIAGNOSIS
28. I have to initially determine the appropriate diagnosis for the condition of the veteran.
29. On 3 October 2005 Dr N Wong reported that the veteran has sleep apnoea[6].
[6] T4, fols 16-17.
30. On 3 November 2004 Dr F Malan, Ear Nose and Throat Surgeon, confirmed that the veteran has sleep disordered breathing[7].
[7] T4, fol. 23.
31. I rely upon this uncontradicted medical evidence to find that that Mr Bowser has a sleep apnoea condition.
32. I also mention that the material before me satisfies the definition of “sleep apnoea” in clause 2(b) of the Statement of Principles. This definition refers to “sleep disordered sleeping characterised by periods of reduction in airflow at the nose and mouth, leading to arousals from sleep (disrupted sleep architecture)”.
33. On 28 April 2004 Dr Simon Bowler, Physician, Queensland Sleep Disorders Unit, Mater Medical Centre, Brisbane made a Polysomnogram Report. Dr Bowler reported that the veteran has “obstructive sleep apnoea syndrome”. Dr Bowler opined that the veteran has “mild-moderate Obstructive sleep apnoea syndrome although this may be an underestimation”. Dr Bowler reported that “sleep architecture revealed disrupted sleep cycling with improving on nCPAP, with mild fragmentation”.
34. The definition of “sleep apnoea” in clause 2(b) of the Statement of Principles also refers to “significant clinical consequences”. One of those “consequences” in the definition is “impaired memory”, another is “daytime sleepiness”. The veteran in his claim form makes reference to both his “memory loss” and “daytime sleepiness”.
CONSIDERATION
35. Having made a diagnosis of the condition of Mr Bowser, and ascertained that a Statement of Principles is in force in relation to that condition, it is now appropriate to apply the test prescribed by s120A(3) of the Act. I am bound by authority to apply the test in Repatriation Commission v Deledio[8]:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
[8] (1998) 83 FCR 82 at 82.
“First Deledio step”
36. I must now consider all the material which is before me and determine whether that material points to a hypothesis connecting the sleep apnoea condition of the veteran with the circumstances of the particular service rendered by the person. The veteran contends that continual action under adverse conditions caused him to suffer sleeping difficulties. He has highlighted the winter of 1950/51 as being the worst time for him having regard to his sleeping problems which are due to the conditions and fatigue. During his service in Korea in early 1951 they dug foxholes in the frozen ground for protection.
37. The veteran has had considerable exposure to the frontline. The respondent has recognised that after Mr Bowser was posted to Korea on 28 September 1950, he was soon sent to the frontline. The veteran then stayed at the frontline, except for a couple of weeks at Christmas, until he was transferred to Japan on 9 July 1951 and hospitalized[9]. In all, in 1950-1951 the veteran served some nine months on the frontline.
[9] Respondent’s statement of facts and contentions, 4 December 2007, para 4.3.
38. The veteran has contended that his sleeping habits were quite forcibly brought to his attention by other soldiers in the front line. He had to be woken because the noises that he was making in his sleep were so loud, he would have alerted the enemy to their position. On his return from Korea he suffered the sleep disability under the belief that he was a snorer.
39. Dr Malan has certainly stated that lack of sleep can exacerbate a sleep-related breathing disorder. Dr Malan stated that “he would imagine that only long-term exposure (a year or more) to similar conditions would have a permanent effect on his pharyngeal musculature, contributing to a chronic myopathy”. While the exposure of Mr Bowser was not a year but some nine months, it was still a relatively long-term exposure to those conditions. I accordingly consider that the material before me points to a hypothesis connecting the sleep apnoea condition of Mr Bowser with his operational service.
40. Accordingly, the “first step” in Repatriation Commission v Deledio is, in my view, satisfied.
“Second Deledio step”
41. The “second step” in Repatriation Commission v Deledio requires me to ascertain whether there is a Statement of Principles which has been determined by the RMA.
42. I have already referred to the Statement of Principles for Sleep Apnoea: Instrument No. 13 of 2005. This Statement of Principles was in force at the date of the claim of Mr Bowser. I would also mention that this Statement of Principles expressly provides that it applies to claims under s 120A of the Act[10].
[10] Clause 9 of the Statement of Principles.
“Third Deledio step”
43. Having completed the “second step”, I now turn to the “third step” in Repatriation Commission v Deledio. I am required to determine whether the relevant hypothesis complies with one or more of the factors referred to in the relevant Statement of Principles. I have an obligation to consider all of the material before me. I mention that I am not concerned with making any findings of fact at this stage of the process. It is important to mention that the history given by a veteran to a medical practitioner, such as the history which has been mentioned in the reports of Dr Malan, can constitute material that I can have regard to for this purpose[11].
[11] Lees v Repatriation Commission (2002) 125 FCR 331
44. Clause 5 of the Statement of Principles lists a number of factors. Any factor “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting sleep apnoea with the circumstances of a person’s relevant service”.
45. I have already mentioned that the veteran primarily relies upon factor 5 (a) which refers to a veteran “having chronic obstruction of the upper airways at the time of the clinical onset of sleep apnoea”.
46. In applying factor 5(a) it is necessary that I first determine the clinical onset of the sleep apnoea condition.
47. The meaning of “clinical onset” was considered by the Full Court of the Federal Court of Australia in Lees v Repatriation Commission[12]. The Full Court referred to the analysis of this Tribunal in Re Robertson and Repatriation Commission[13], in which Senior Member Dwyer concluded that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
[12] (2002) 125 FCR 331.
[13] (1998) 50 ALD 668 at 670.
48. This analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius[14].
[14] [2002] FCA 750 at [26]. See also Youngnickel v Repatriation Commission [2004] FCA 1691 at [26] per Bennett J.
49. The respondent has submitted that “on the required standard of proof, the snoring in late 1950 or early 1951 probably marked the onset”[15]. I consider that this concession by the respondent was properly made because there is material before me that the veteran snored at the frontline. Dr Malan in his report of 28 September 2007 to the Department of Veterans’ Affairs has reported: “In general one should state that snoring is a sign of upper airway obstruction”. Dr Malan also postulated that if Mr Bowser was extremely tired, being in the trenches for a few days, this would lead to significant sleep-related relaxation of the pharyngeal and lingual musculature, exacerbating a pre-existing condition to upper airway failure. This report is evidence from a doctor that an upper airway sleep disease could be present at that time.
[15] Respondent’s statement of facts and contentions, 4 December 2007, para 6.1.
50. I therefore find from the material before me that the time of the clinical onset of sleep apnoea was when Mr Bowser served at the frontline in Korea sometime, in 1950 or 1951.
51. I must now determine the “practical effect of the concession”[16] which has been made by the respondent. That concession really only left open for consideration whether there was in fact a “chronic obstruction of the upper airways” at the time of the clinical onset of sleep apnoea. I have already found that the time of the clinical onset of sleep apnoea was sometime in 1950 or 1951.
[16] I respectfully employ the language of Logan J in Repatriation Commission v Warren [2008] FCAFC 64 at [110].
52. I have had regard to the fact that the expression “chronic obstruction of the upper airways” is defined in clause 8 of the Statement of Principles as being an “ongoing obstruction at the level of the nose, nasopharynx, oropharynx, hypopharynx or larynx”.
53. The Veterans’ Review Board has mentioned that the tongue of the veteran would block his throat during his sleep while on operational service in the Korean War. The Board considered that this would be a “chronic obstruction described in factor 5(a)”[17]. I also find that the tongue of the veteran would be a “chronic obstruction described in factor 5(a). I make this finding having regard to the fact that the tongue is certainly at the same level as the pharynx.
[17] T3, fol J.
54. Dr Malan in his report of 28 September 2007 to the Department of Veterans’ Affairs has postulated that if the veteran was extremely tired and in the trenches for a few days, this would lead to significant sleep-related relaxation of the pharyngeal and lingual musculature, exacerbating a pre-existing condition to upper airway failure”. This conclusion that the condition of the pharynx would have exacerbated his condition is significant. Dr Malan does not precisely identify whether in his opinion that nasopharynx, oropharynx, hypopharynx would be affected. As the pharynx is constituted by the nasopharynx, oropharynx and the hypopharynx, it is evident that Dr Malan was in his report referring to, at least, one of these components of the pharynx.
55. On the basis of the report of Dr Malan of 28 September 2007, it is clear that extreme tiredness at the frontline contributed to upper airway failure during sleep. Dr Malan also considers that there would be relaxation of the pharyngeal musculature. This effectively means that either the nasopharynx, the oropharynx or the hypopharynx would (to quote the words of Dr Malan in his report) “contribute to upper airway obstruction during sleep”. There would be a “chronic obstruction of the upper airways” as defined in clause 8 of the Statement of Principles as there would be an “ongoing obstruction at the level of the nasopharynx, oropharynx, and hypopharynx. I am fortified in coming to the conclusion that there would be an “ongoing obstruction” in view of the view of Dr Malan that some long-term exposure would have a permanent effect.
56. I have therefore come to the conclusion that factor 5 (a) of the Sleep Apnoea Statement of Principles is established.
“Conclusion of Third Deledio step”
57. For these reasons I consider that the “third step” in Repatriation Commission v Deledio is satisfied.
“Fourth Deledio step”
58. I now have to proceed to consider the “fourth step” in Repatriation Commission v Deledio. I required, under s 120(1) of the Act, to consider whether I am satisfied beyond reasonable doubt that the condition of Mr Bowser did not arise from a war-caused disease.
59. I must decide whether I am satisfied beyond reasonable doubt that the veteran’s condition was not war-caused within the meaning of s 8 of the Act. The claim of the veteran will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond a reasonable doubt.
60. I appreciate that Dr Malan in his report of 28 September 2007 to the Department of Veterans’ Affairs has opined that there is no ongoing causal relationship with the service and his situation at the time. However, it is important for me to bear in mind that this veteran does not bear any onus of proving any matter that is or might be relevant to the determination of the application: see s120(6). The Federal Court of Australia has recently reaffirmed the long-standing principle that a hypothesis need not be proved upon the balance of probabilities[18].
[18] Tunks v Repatriation Commission [2008] FCA 521 at [29] per Madgwick J.
61. In any event it is evident from his report of 28 September 2007 to the Department of Veterans’ Affairs that Dr Malan has made his report upon the assumption that Mr Bowser was “in the trenches for a few days”. However, the advocate for Mr Bowser in his letter of 30 November 2007 has mentioned that, apart from very short rests, Mr Bowser was in front line action, winter and summer, from August 1950 until July 1951. The respondent has in fact recognised that, except for a couple of weeks at Christmas, the veteran was on the frontline from September 1950 until July 1951 when he was hospitalized[19].
[19] Respondent’s statement of facts and contentions, 4 December 2007, para 4.3.
62. Dr Malan in his report of 28 September 2007 stated that “he would imagine that only long-term exposure (a year or more) to similar conditions would have a permanent effect on his pharyngeal musculature, contributing to a chronic myopathy”. While the exposure of Mr Bowser was not for a year it was for some nine months which is a significant period of time.
63. I should also at this stage of my reasoning mention that there is evidence that the constitutional condition of the veteran is largely to blame for the condition of the veteran. Dr Malan had reported that the “craniofacial configuration exposes the main reasons for his upper airway obstructions during sleep, a condition which is congenital and certainly largely contributing to the unmasking of a potentially obstructing upper airway in predisposing situations”.
64. However, Dr Malan does not report that the constitutional condition of the veteran is exclusively the cause of the condition. Indeed, in his report he gives his opinion that “long term exposure (a year or more) to similar conditions would have a permanent effect on his pharyngeal musculature, contributing to a chronic myopathy.” In these circumstances I am not prepared to make a finding beyond a reasonable doubt that the veteran’s condition was not war-caused.
65. There is another reason why I am unable to be satisfied beyond a reasonable doubt that there is no sufficient ground that the veteran’s condition was not war-caused. I have already mentioned that the respondent has, in my view quite properly, submitted that “on the required standard of proof, the snoring in late 1950 or early 1951 probably marked the onset”[20]. This is recognition by the respondent that the onset of the sleep apnoea condition occurred during the war-time frontline service of the veteran. Again, in these circumstances I cannot be satisfied beyond a reasonable doubt that there is no sufficient ground for concluding that the veteran’s condition was not war-caused when the respondent has conceded that the onset of that condition occurred during operational service.
[20] Respondent’s statement of facts and contentions, 4 December 2007, para 6.1.
66. In this context, I should mention that there is material before me that the veteran did not snore before he served in Korea but certainly snored on his return from that war-time service[21].
[21] T3, fol. K, para. 16.
67. I should also mention that the parties have consented to this review being determined without a hearing pursuant to s 34J of the Administrative Appeals Act 1975. The respondent has not sought to examine the veteran and impeach the credibility of the veteran.
DECISION
68. The Tribunal sets aside the decision under review, and substitute the decision that:
(i)the condition of sleep apnoea is a war-caused condition within the meaning of section 8 of the Veterans Entitlement Act 1986;
(ii)Mr Gordon Bowser is entitled to receive a pension for incapacity associated with this condition with effect from and including 18 July 2005; and
The matter is to be remitted to the Repatriation Commission for the assessment of the pension.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed:......................[Sgd]........................................................
Elizabeth Young, Research AssociateHearing on the Papers
Date of Decision 18 June 2008
Advocate for the Applicant Mr C Singer
Solicitor for the Respondent Mr M Smith
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