Brady and Repatriation Commission
[2005] AATA 124
•9 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 124
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/874
VETERANS' APPEALS DIVISION
Re: PETER GERALD BRADY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 9 February 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety disorder - chronic airways obstructive disease - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120, 120A, 120(4)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
9 February 2005 G.D. Friedman, Member
1. This is an application by Peter Gerald Brady (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 24 July 2003. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) that the applicant's generalised anxiety with some episodes of panic was not war‑caused.
2. At the hearing of this matter on 8 June 2004 and 29 October 2004 Mr G. Chancellor of counsel represented the applicant and Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), two exhibits (Exhibits A1 and A2) lodged by the applicant and seven exhibits (Exhibits R1-R7) lodged by the respondent.
BACKGROUND
4. The applicant was born in Ballarat on 14 February 1942. He left school at the age of 14 and held various jobs before joining the Australian Army. He served in the infantry from 3 May 1959 until 4 May 1965. From 23 May 1961 until 15 March 1963 he served with the Far East Strategic Reserve in Malaya and Singapore, and this constitutes operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act).
5. Following his discharge, the applicant held a number of jobs in the hotel industry for two years before joining the then Postmaster-General’s Department, where he remained for 26 years until he was retrenched at the age of 51. After one year of unemployment he obtained a position with Centrelink in a call centre, where he remained for 8 years. He retired in 2002 because of medical problems. He has not worked since.
6. On 15 July 2001 the respondent accepted liability for viral hepatitis, bilateral sensorineural hearing loss and gastro-oesophageal reflux disease. On 15 January 2002 the respondent accepted liability for recurrent bronchitis.
7. On 11 October 2002 the applicant made a claim for disability pension for anxiety disorder. On 6 December 2002 the respondent refused the claim. On 29 January 2003 the applicant sought review of this decision by the VRB. On 24 July 2003 the VRB found that anxiety disorder was not war-caused. On 14 August 2003 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
8. The issue before the Tribunal is whether the applicant’s anxiety disorder is war-caused within the meaning of the Act.
EVIDENCE
9. In a written statement dated 12 August 2003 (Exhibit A1) the applicant said that his bronchitis was accepted as a consequence of his war-caused smoking habit, which he ceased in February 2001. He said:
…
I date the commencement of my anxiety to a period not long before I ceased smoking. I relate the development of my anxiety condition to the deterioration in my bronchial problems. An underlying fear of mine is that I have suffered permanent damage to my lungs as a consequence of my smoking habit which in turn may affect my life expectancy. I have suffered nightmares and found myself waking at night with the predominant thought of the future of my wife and 3 children if I die….
10. In oral evidence to the Tribunal the applicant said that he began smoking while based in Malaya, during patrols near the Thai border. He said that each patrol lasted up to 3 weeks, and he became anxious because he did not know whether to expect enemy action, and smoking helped to soothe his nerves. He stated that he was provided with free tobacco rations and most other soldiers smoked. He told the Tribunal that, when not on patrol, there were long periods of boredom and this contributed to his smoking habit of about 20 cigarettes per day.
11. The applicant explained that he continued to smoke after his service in Malaya, and his consumption rose to 30 cigarettes per day by the mid‑1960s. He stated that he suffered from bronchitis for many years, but the symptoms became more significant and he developed a cough, chronic obstructive airways disease and a shortness of breath. He said that when he ceased smoking he expected his bronchial condition to resolve but in fact it became worse. The applicant noted that his anxiety condition developed when his bronchial condition deteriorated, and he feared that he would die prematurely as a result of permanent damage to his lungs caused by smoking.
12. The applicant said that his first marriage ended after 8 years and there were no children. He told the Tribunal that he married a woman from the Philippines when he was 49 years old, and they have three children, aged 12, 6 and 2 years respectively. He stated that his chronic obstructive airways disease has become progressively worse, and he no longer is able to play golf or swim. He said that he has become more and more distressed, irritable and anxious. He explained that he has difficulty sleeping, is overweight and worries about his young family and their future. He said that his stress and anxiety led to his decision to cease work with Centrelink in 2002. He said that his anxiety has affected his interpersonal relationships and his home life, and he has become withdrawn and frustrated. The applicant noted that he is receiving psychiatric treatment and is taking prescribed medication, which has helped.
13. The applicant stated that he was diagnosed with hepatitis in 1962, when serving in Malaya, and he was told by doctors that damage to his liver would prevent him from living beyond the age of 40. He said that this prognosis made him anxious and had a profound effect on his behaviour, in that he was reluctant to contemplate long-term relationships or consider having children.
14. Under cross-examination, the applicant agreed that in June 2000 Centrelink offered him a promotion because of his work performance, but he said that he declined. He said that most of the leave that he took was for family reasons, but maintained that his decision to leave Centrelink was due to his increasing anxiety, which he felt he could not discuss with Centrelink management. He denied that his decision was based on his eligibility for a service pension.
15. In a written report dated 30 April 2003 (T17, page 83) Dr C. Steinfort, consultant physician in thoracic and sleep medicine, noted that the applicant is suffering from moderately severe chronic obstructive pulmonary disease and that this contributes significantly to his anxiety and his exercise limitation. Dr Steinfort stated:
…
Therefore I believe that Peter has significant lung disease and that this relates directly to his extensive history of cigarette smoking that began during his time in the army and continued well after he left the army. I therefore believe that the army is substantially responsible for this disease process.
In oral evidence Dr Steinfort stated that the applicant’s pulmonary condition is not life-threatening, but is seriously disabling, because the applicant is no longer able to engage in activities such as playing golf and mowing lawns. Under cross‑examination Dr Steinfort agreed that the applicant’s increased weight could be a contributing factor to his inability to engage in certain physical activities.
16. In a written report dated 29 November 2002 (T13) Dr C. Newlands, consultant forensic psychiatrist, diagnosed a generalised anxiety disorder with episodes of panic, which she said was related to an underlying medical condition. She said that she could find no reason for his anxiety other than his respiratory condition. In a written report dated 15 July 2004 (Exhibit A2) Dr Newlands said that she could find no evidence that the applicant suffered anxiety before or during his war service. However, she stated:
…my understanding is that he was certainly anxious prior to 2002, in that he explained to me on one occasion, that he worried about the fact that he had had a relapse of hepatitis whilst in Malaya, in a British hospital, and was informed that he had damaged his liver, and that he would “not see 40”. As a result, he was loathed to get married and have children, as he did not wish to leave any children without a father.
Dr Newlands also stated:
…my understanding, is that if indeed his anxiety markedly worsened upon learning about his respiratory condition, and his experiencing the limitations it imposed upon him, then it would be reasonable to suppose that his anxiety is thus secondary to the underlying medical condition.
In oral evidence Dr Newlands stated that the applicant’s anxiety condition arose because of his hepatitis and later his respiratory problems.
17. In a written report dated 27 October 2003 (Exhibit R7) Dr M. Epstein, psychiatrist, said that the applicant suffers from a generalised anxiety disorder, which has been contributed to by the circumstances of his employment with Centrelink, increasing concern since he stopped smoking that his physical health has not improved and his worries that his physical health will deteriorate further and lead to his premature death. Dr Epstein stated:
…
With regard to the diagnosis of Anxiety Disorder due to a generalised medical condition, he does meet the Statement of Principles Instrument No. 1 of 2000 and if his respiratory condition is regarded as war caused then so also is his Anxiety Disorder due to his respiratory disorder which is a general medical condition.
18. In a written report dated 6 February 2004 (Exhibit R5) Dr N. Strauss, consultant and occupational psychiatrist, concluded that the applicant is suffering from a mild generalised anxiety disorder as a consequence of his worsening chronic obstructive airways disease, although Dr Strauss does not believe that his service experience directly caused his psychiatric problems. Dr Strauss said:
…
I therefore believe that this man’s anxiety which has affected his life in general is secondary to his medical condition. If his medical condition of chronic obstructive airways disease is accepted as being service related then in a secondary sense his anxiety disorder has come about indirectly as a consequence of his service experience and the effect that this has had upon his health.
19. In a further written report dated 14 March 2004 (Exhibit R6) Dr Strauss stated:
His anxiety has come about because of his concerns about his health which is understandable. He has a relatively young family and their future well being concerns him. He has become increasingly anxious because of this and also because he is less capable than he used to be and he is affected more by illness. However in my opinion there is no direct physiological effect from his general medical condition on his psyche…
Dr Strauss concluded that the applicant’s bronchitis is not life-threatening or seriously disabling. Using the Statement of Principles (SoP), Dr Strauss said that he does not believe that the condition can be related to the accepted condition of chronic bronchitis, and does not satisfy the relevant factor in the SoP. In oral evidence Dr Strauss told the Tribunal that he applied the criteria in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) in making his diagnosis. He said that he did not see any link between the anxiety condition and the hepatitis contracted by the applicant.
20. In a written report dated 24 May 2004 (Exhibit R4) Dr D. Hart, consultant respiratory physician, stated that the applicant suffers from a disabling degree of chronic anxiety which seems to have begun in about 2000, during the last two years of his work with Centrelink. Dr Hart noted that in this period the applicant became significantly anxious and to the point of obsession with his respiratory illness. He stated:
However, I do not believe that obstructive bronchitis of this severity is likely to have caused hypoxia, endocrine disturbance or interference with neurological or metabolic function to a degree that could have been seen as a “direct physiological cause of the anxiety.”…
Dr Hart referred to spirometry (lung function) tests which showed a similar pattern of mild airways obstruction with a variable degree of modest broncodilator responsiveness on some occasions but not others. He added that he did not believe that the applicant’s illness represents a major illness in terms of the definition in the SoP.
21. In oral evidence Dr Hart confirmed his conclusion that the applicant was not suffering from a major illness as the chronic bronchitis was not a life-threatening or seriously disabling disability. He said that the general trend of the spirometry tests was that each test showed a mildly reduced spirometry pattern. Dr Hart concluded that the applicant’s anxiety was not caused by his bronchitis.
CONSIDERATION OF THE ISSUES
22. Section 9(1) of the Act provides:
9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
…
23. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, in which case s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
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 [Statement of Principles] 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.
24. Anxiety disorder is defined In paragraph 2(b) of SoP N° 1 of 2000:
…as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
25. The relevant factors are:
5.…
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(vi)having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(b)for anxiety disorder due to a generalised medical condition only having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder…
Paragraph 6 of the SoP states:
6.Paragraphs 5(a)(v) to 5(a)(vii) and 5(c) apply only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Paragraph 8 of the SoP defines major illness or injury as a disease or injury that is life-threatening or seriously disabling. Relevant service means (a) operational service; or (b) peacekeeping service; or (c) hazardous service.
26. Mr Chancellor submitted that the applicant is suffering from a generalised anxiety disorder and anxiety disorder due to a general medical condition. He said that the material before the Tribunal pointed to a hypothesis connecting the applicant’s service and his anxiety disorder by way of his chronic bronchitis. In relation to factor 5(a)(vi), Mr Chancellor said that the latest point in time given by three psychiatrists for clinical onset of anxiety disorder was about 2000, although he said that the applicant’s recurrent bronchitis did not manifest itself as a major illness until diagnosed by the applicant’s general practitioner on 26 September 2002. Mr Chancellor noted that the applicant was referred to a psychiatrist after becoming more distressed about the worsening of his bronchitis and an increase in his anxiety levels.
27. In respect of the words seriously disabling in the definition of major illness or injury in SoP N° 1 of 2000, Mr Chancellor relied upon Woodward v Repatriation Commission (2003) 131 FCR 473, where the Full Federal Court held that there was no error in the Tribunal looking at the ordinary meaning of the words in the absence of an authoritative and detailed exposition of the correct interpretation. He said that the Shorter Oxford Dictionary defines serious as:
…of grave or solemn disposition or intention; not light or superficial;…not jesting, trifling or playful;…of grave demeanour or aspect; weighty, important, grave; (of quantity or degree) considerable; attended with danger; giving cause for anxiety.
And disable as:
…to render unable or incapable; to deprive of ability, physical or mental; to incapacitate…to render incapable of action or use by injury, etc. to cripple.
28. Mr Chancellor submitted that the applicant’s bronchitis is seriously disabling as described by Dr Steinfort and Dr Hart, and on the evidence from the applicant regarding the limitations on his ability to perform basic household functions and to participate in sporting or other physical activities
29. In relation to paragraph 6 of the SoP, relating to factor 5(a)(vi), Mr Chancellor submitted that the anxiety disorder did not arise out of the applicant’s service but was suffered or contracted during operational service, in about 1962 when he contracted hepatitis, a condition accepted by the respondent as war-caused, while in the Far East. He referred to the applicant’s evidence that the diagnosis of hepatitis, with a prognosis of death before the age of 40, made the applicant anxious and had a profound effect on his view of relationships, marriage and having children. Mr Chancellor also noted that Dr Newlands and Dr Epstein referred to the applicant’s anxiety arising from the diagnosis of hepatitis. He said that Dr Strauss was not aware of the applicant’s history of hepatitis when compiling his report.
30. Mr Chancellor submitted further that the applicant’s anxiety disorder fits within factor 5(b) of the SoP, and that any anxiety disorder may have multiple contributing factors. He said that in this case the applicant’s anxiety disorder may be due partly to his general concerns and partly to physiological causes. He said that Dr Steinfort had noted that the applicant’s chronic obstructive pulmonary disease is a physiological disease that has contributed to his increased anxiety. Mr Chancellor also stated that this view is supported by Dr Newlands.
31. Ms McCulloch submitted that on the medical evidence the applicant suffers from anxiety disorder. In relation to factor 5(a)(vi) of the SoP she referred to the evidence from Dr Hart, who concluded, on the basis of five spirometry tests, that the applicant’s bronchitis is not a life-threatening or seriously disabling condition, so is not a major illness or injury as defined in the SoP. She also referred to the evidence from Dr Newlands, who noted that the applicant feared a worsening of his medical condition into emphysema or lung cancer.
32. Ms McCulloch said that the evidence from Dr Strauss, Dr Epstein and Dr Newlands demonstrates that clinical onset of the applicant’s generalised anxiety disorder occurred in or about 2000 when the applicant was employed by Centrelink in a call centre, as he found the work to be stressful.
33. In respect of factor 5(a)(vi) of the SoP, Ms McCulloch submitted that there is no evidence that the applicant had a major illness or injury within the two years immediately before the clinical worsening of his anxiety disorder as a consequence of developing hepatitis in 1962. She noted that Dr Strauss rejected the proposition that the anxiety flowed from the hepatitis. She said that paragraph 6 of the SoP provides that the anxiety disorder must not arise out of the applicant’s relevant service, and that proviso is not satisfied in this case.
34. In respect of factor 5(b) of the SoP, Ms McCulloch referred to the relevant diagnostic features of anxiety disorder due to a generalised medical condition in the DSM-IV and said that the clinical evidence, based on five spirometry tests, and Dr Hart’s evidence, showed that the applicant does not suffer from an anxiety disorder due to a generalised medical condition, because his respiratory condition is not a direct physiological cause of the anxiety. She submitted that consequently the applicant cannot satisfy factor 5(b).
35. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
36. The question of whether a condition exists is to be decided as a preliminary matter (Fogarty v Repatriation Commission, (2003) 37 AAR 363) on the balance of probabilities under s 120(4) of the Act. The SoPs are not relevant to the question of diagnosis (Benjamin v Repatriation Commission (2001) 70 ALD 622).
37. The Tribunal has considered the diagnostic criteria in DSM-IV which form the basis of the definitions in paragraph 8 of the SoP:
"anxiety due to a general medical condition" means a psychiatric disorder where:
A.Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and
B.There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and
C.The anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and
D.The anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and
E.The anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social,…
"generalised anxiety disorder" means a psychiatric disorder with the
following features:
A.Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B.The person finds it difficult to control the worry; and
C.The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1).restlessness or feeling keyed up or on edge
(2).being easily fatigued
(3).difficulty concentrating or mind going blank
(4).irritability
(5).muscle tension
(6).difficulty falling or staying asleep, or restless unsatisfying sleep; and
D.The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E.The anxiety, worry, or physical symptoms (as described in C above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F.The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
38. In reaching a conclusion on diagnosis the Tribunal notes that in November 2002 Dr Newlands diagnosed generalised anxiety with some episodes of panic. In her report dated 15 July 2004, based on Dr Steinfort’s diagnosis of moderately severe chronic obstructive pulmonary disease, she diagnosed …an anxiety, secondary to his physical condition, and said that the applicant’s symptoms revolved around fear as to his future health condition. The Tribunal accepts the evidence from Dr Epstein, who concluded that the applicant’s anxiety has arisen because of his employment with Centrelink and his concern about the deterioration in his physical health since he stopped smoking. The Tribunal also accepts the evidence from Dr Strauss that the applicant suffers from a generalised anxiety disorder of mild severity.
39. For these reasons, the Tribunal finds the applicant suffers from an anxiety disorder, and not from an anxiety disorder due to a generalised medical condition. On the medical evidence the Tribunal finds that clinical onset occurred in 2000.
40. The Tribunal notes that factor 5(b) of the SoP refers to anxiety disorder due to a generalised medical condition. In view of its findings on the question of diagnosis, the Tribunal accepts the submission from Ms McCulloch that overall, there is no material or evidence pointing to the applicant meeting factor 5(b) of the SoP, so the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis, and the applicant cannot satisfy the steps in Deledio. Further, the Tribunal agrees with Ms McCulloch that in relation to paragraph 6 of the SoP, although the applicant’s behaviour and attitudes to relationships may have been affected when he contracted hepatitis in the Far East in 1962, there is no persuasive evidence that his anxiety disorder was suffered or contracted before, or during (but not arising out of), his relevant service.
41. In respect of the diagnosis of generalised anxiety disorder, the Tribunal has considered each of the steps in Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant matters that the material points to a hypothesis connecting the anxiety disorder with the circumstances of the particular service rendered by the veteran.
42. In respect of the second step, the Tribunal finds that SoP N° 1 of 2000 concerning anxiety disorder was in force and is relevant.
43. In respect of the third step, The Tribunal accepts that, in determining whether the applicant’s bronchial condition is a major illness or injury, consideration must be given to the ordinary meaning of seriously disabling, which involves an assessment of the impact on occupational, emotional and physical factors.
44. The Tribunal agrees with Mr Chancellor that the applicant faces limitations in his daily life because of progressively worsening breathlessness that restricts his ability to engage in physical activities such as walking, gardening, swimming and golf. The Tribunal takes into account the evidence from the applicant and Dr Steinfort that the applicant is no longer able to do all the things that he wishes to do. The Tribunal also takes into account the clinical notes in which the applicant’s capacity to exercise has fluctuated. The Tribunal accepts the evidence from Dr Hart, including the spirometry results, that the degree of lung function impairment excludes emphysema and is relatively mild, being just below the normal range, and the degree of impairment reported by a METS assessment is somewhat lower than the degree of impairment that might be expected from the breathing tests.
45. The ordinary meaning of disable in the Macquarie Dictionary is:
To make unable; weaken or destroy the capability of; cripple; incapacitate
The ordinary meaning of serious is:
Of grave or solemn disposition or character; thoughtful…of grave aspect…giving cause for apprehension; critical.
In considering all the material, and in applying the ordinary meaning of life‑threatening or seriously disabling, the Tribunal is satisfied that the applicant does not have a major illness or injury as specified in factor 5(a)(vi) of the SoP, and there is no conclusive evidence concerning the clinical worsening of anxiety disorder.
46. Overall, there is no material or evidence pointing to the applicant meeting factor 5(a)(vi) or any other factor in the SoP concerning anxiety disorder, so the hypothesis connecting the conditions with the applicant’s service is not consistent with the template and is deemed not to be a reasonable hypothesis. Therefore, the applicant does not satisfy the third step from Deledio, and the application does not succeed.
DECISION
47. The Tribunal affirms the decision under review.
I certify that the forty-seven [47] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 18 June 2004
29 October 2004
Date of decision: 9 February 2005
Counsel for applicant: Mr G. Chancellor
Solicitor for applicant: Williams Winter
Advocate for respondent: Ms J. McCullochSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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