Byrne and Repatriation Commission - [2001] AATA 206

DECISION AND REASONS FOR DECISION [2001] AATA 206

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1115

VETERANS' APPEALS DIVISION )

Re Kevin Lewis BYRNE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date19 March 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside that part of the decision of the Repatriation Commission ("the Respondent") dated 13 November 1996 that refused the claim of Kevin Lewis Byrne ("the Applicant") in respect of sleep apnoea and that part of the Respondent's decision dated 31 May 1997 that refused the Applicant's claim in respect of osteoarthrosis of the left knee; and 2. In substitution therefor the Tribunal determines that the Applicant's condition of sleep apnoea is a war-caused condition, with effect on and from 14 September 1996, and osteoarthrosis of the left knee is a war-caused condition, with effect on and from 9 February 1996; and 3. The assessment of all the Applicant's war-caused conditions shall continue at 70 percent of the General Rate.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether sleep apnoea and osteoarthrosis left knee are war-caused – Statement of Principles applied – whether applicant suffered from obesity – whether obesity was related to service - whether reasonable hypothesis that applicant injured left knee during service in Vietnam – whether reasonable hypothesis that war-caused right knee disability caused stress to left knee – whether reasonable hypothesis that obesity caused stress to left knee
Assessment – whether entitled to Special Rate – whether unfit to work for eight hours or more per week – whether accepted disabilities were substantial cause of inability to obtain remunerative work – whether increase in General Rate pension payable

Veterans' Entitlements Act 1986 (Cth) – ss120(1), 120(3), s120A

Statement of Principles (Sleep Apnoea), Instrument No.39 of 1997,
Statement of Principles (Osteoarthrosis), Instrument No.71 of 1995, as amended by Instrument Nos.336 and 352 of 1995

Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Keeley (2000) 98 FCR 108
Thompson v Repatriation Commission (2000) 59 ALD 441
Treloar v Australian Telecommunications Commission (1990) 26 FCR

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is an application for review lodged by Kevin Lewis Byrne ("the Applicant") in respect of two decisions of the Repatriation Commission ("the Respondent"). The first was that part of the decision of a delegate of the Respondent dated 13 November 1996 that refused the Applicant's claim in respect of sleep apnoea. The second was that part of the decision of a delegate of the Respondent dated 31 May 1997 that refused the Applicant's claim in respect of osteoarthrosis of the left knee.
Both decisions were reviewed by the Veterans' Review Board ("the VRB") on 17 June 1997 and affirmed. The Applicant did not seek review of that part of the Respondent's decision of 31 May 1997 in respect of rotator cuff syndrome of both shoulders, either by the VRB or by this Tribunal. Nor did the Applicant seek review by the VRB of that part of the decision of the Respondent dated 31 May 1997 in respect of assessment.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (exhibit T1). The Applicant and his wife gave oral evidence at the hearing. Dr Baz gave oral evidence, called by the Applicant. The Applicant tendered the following documents as evidence:

Statement of the Applicant dated 19 May 1999 and Statement of Injury (undated) (exhibit A); and statement dated 7 July 2000 with annexures (exhibit C);
Reports of Dr Martha Baz, Occupational Physician, dated 19 July 1999 (exhibit B) and 13 July 2000 (exhibit G);
Letter from Lynne Byrne dated 27 April 2000 (exhibit D);
Letter from Anthony Tuckerman dated 11 April 2000 (exhibit E);
Reports of Dr Michael D. McGrath, consultant psychiatrist, dated 28 October 1999 and 28 August 2000 (exhibit F);
Report of Dr Nigel Hope, consultant orthopaedic surgeon, dated 7 July 2000 (exhibit H).

The Respondent tendered the following documents as evidence:

Report of Professor Phillip N. Sambrook, rheumatologist, dated 27 January 1999 (exhibit 1);
Report of Dr Neil J. Schultz, consultant psychiatrist, dated 23 November 1999 (exhibit 2);
Report of Dr Mark Burns, occupational physician, dated 13 October 1999 (exhibit 3);
Report of Dr Neil J. Schultz, consultant psychiatrist, dated 31 January 2000 (exhibit 4).

The Applicant has the conditions of post traumatic stress disorder ("PTSD") with alcohol abuse, bilateral sensorineural hearing loss and osteoarthrosis of right knee accepted as war-caused.
legislation
The Applicant served in the Australian Army and rendered operational service in Vietnam from 3 February 1967 to 14 August 1967. Therefore, the standard of proof to be applied to this period of operational service, found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), requires the Tribunal to determine that his claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the conditions were war-caused if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the conditions with the circumstances of the Applicant's service.
As the Applicant lodged his claims after 1 June 1994, the Tribunal, pursuant to s120A of the Act, is also required to apply any relevant Statements of Principles in determining this matter.
Sleep Apnoea
The Tribunal considers it prudent in this matter to consider in the first instance whether the Applicant meets the Statement of Principles for Sleep Apnoea. If he does, then it matters not whether the Tribunal is bound to apply it. The Tribunal proposes to apply the Statement of Principles for Sleep Apnoea. Factor 5(b) of Instrument No.39 of 1997 identifies that "being obese at the time of the clinical onset of sleep apnoea" is a relevant factor in raising a reasonable hypothesis.
The Applicant sought to rely on the hypothesis that as a result of his inability to exercise, arising from the war-caused injury to his right knee, he had become obese and his obesity contributed to the development of sleep apnoea.
The Applicant lodged his claim for sleep apnoea on 16 April 1996 and on 13 November 1996 a primary decision was made rejecting the Applicant's claim. A Statement of Principles for Sleep Apnoea was not gazetted until 14 May 1997 (Instrument No.39 of 1997). The Applicant submitted, relying on the decision of the Federal Court in Thompson v Repatriation Commission (2000) 59 ALD 441, that the Statement of Principles was not binding on the Tribunal. The Respondent noted that an appeal had been lodged to the Full Court in that matter and did not accept that the decision was right. However, the Respondent acknowledged that Thompson (supra) was binding on the Tribunal. It was submitted for the Respondent that although the Statement of Principles was not binding it was open to the Tribunal to have regard to it and that it is the best evidence of what factors would constitute a reasonable hypothesis. The Applicant, relying on Thompson (supra), opposed this approach.
The Tribunal considers that by having regard to the Statement of Principles, it has the potential of providing a hurdle for the Applicant that is specifically removed by the decision of the Federal Court in Thompson. Firstly, pursuant to ss120(1) and (3) of the Act, the Applicant must raise a reasonable hypothesis that then needs to be disproved beyond reasonable doubt. Secondly, the decision maker is not required to consider the reasonableness of the hypothesis by applying a Statement of Principles that has been put in place subsequently.
In a written statement dated 19 May 1999 the Applicant identified that his sleep apnoea commenced in the mid to late 1980's (exhibit A). On enlistment in the Army he weighed approximately 85 kilograms and his weight remained the same on discharge. Between 1967 and 1977, whilst employed at Wrigleys, he weighed about 90 kg. Between 1977 and 1981, during his service station partnership his weight remained at 90 kg. By the time he obtained work in 1983 as a mail contractor with Australia Post his weight had increased to about 105 kg. over an 18 month period just after he moved to Kempsey. By the time he ceased work for Australia Post he weighed 110 to 115 kg. His weight in 1997 was 110 kg. and he currently weighs 112 kg. The Applicant ceased smoking in about 1992. He said this did not result in any change in his weight.
The Applicant said that his weight has never been a concern for him, although it has slowed him down. When he bends over he becomes short of breath and tight in the chest. He said he has never tried to reduce his weight by dieting, despite medical advice to that effect. The Applicant's statement however notes that his wife keeps a "watch" on his diet in order to control his weight and cholesterol problem. The Applicant has had high cholesterol for the last 3 to 4 years, and since that time he has omitted fat, butter and eggs from his diet and reduced his meat consumption. His wife now steams his food. He drinks low fat milk.
In her oral evidence the Applicant's wife said that from the time she met the Applicant he drank heavily, from 10 am to 10 pm. She also said that the Applicant was a very bad snorer and she recalled that 20 or more years ago, when they lived in Woy Woy –
He didn't sleep all that well. I didn't, sort of, take much notice of it. But I noticed that he was getting less sleep. But he also was a very, very bad snorer and he used to drive me nuts. But the snoring would develop into not breathing type of thing….
In a report dated 25 October 1996 (T13), Dr A. J Nicholls, consultant physician diagnosed sleep apnoea. The Applicant complained of daytime somnolence for the previous five to ten years. He gave a history of having been a heavy drinker until about ten years previously, but at the time of the consultation he admitted to one or two standard drinks a night. He smoked from the age of 20 to 43 years, having an average of twenty five cigarettes per day. The Applicant weighed 111 kg. which Dr Nicholls considered to be obese.
In an alcohol questionnaire dated 30 April 1996 (T8), the Applicant said he commenced drinking alcohol due to peer pressure on National Service and the habit increased on his return to Australia as there "was no stress counselling".
In a report dated 22 October 1996 (T13, p56) Dr Geoffrey J. Williams of the Port Macquarie Sleep Disorders Laboratory undertook a sleep study that showed evidence of mild sleep apnoea. He considered that a trial with a CPAP machine might prove beneficial.
Dr Baz, occupational physician, prepared a medico-legal report dated 19 July 1999 (exhibit B), after examining the Applicant on 8 July 1999. In her report she noted that the Applicant was always tired during the day and he had not received treatment for his diagnosed sleep apnoea. She noted that he slept in the day if he sat to rest after mowing the lawns, or after driving 1½ hours. In relation to the Applicant's obesity she obtained a history that the Applicant started to gain weight about 1990. He attributed this to his alcohol consumption and lack of exercise. He said that his ability to exercise was affected by his knees and his need to drive on the mail run.
In his report dated 28 October 1999 (exhibit F) Dr McGrath, psychiatrist, noted that the Applicant's move to Kempsey was considered by Dr Lambeth, psychiatrist, to be avoidance behaviour. Dr McGrath also noted that the Applicant felt inadequate whilst he was unemployed following his move to Kempsey, and that this compounded his drinking to a consumption of 12 standard drinks per day. Dr McGrath considered there to be a link between the Applicant's obesity and PTSD with alcohol abuse. Dr McGrath also noted that the Applicant's work as a fibrous plasterer, doing lawn mowing and mail contracting, were physical jobs where he would have been able to exercise during the relevant period.
In his report dated 23 November 1999 (exhibit 2) Dr Schultz, consultant psychiatrist, opined that while it is often the case that people with a high alcohol intake are obese, the Applicant gained most of his weight when he was driving professionally. The Tribunal notes that this is not consistent with the evidence before the Tribunal that the weight gain occurred in the period of unemployment before the commencement of his job with Australia Post. Dr Schultz considered it to be more likely that the Applicant's lack of exercise associated with his work delivering mail was the main cause of his obesity.
In a subsequent report dated 31 January 2000 (exhibit 4), Dr Schultz opined:
The link between war service and obesity and therefore sleep apnoea put forward by Mr Byrne is one possible scenario but it excludes other factors. In my view a more complete picture of the factors that lead to Mr Byrne's obesity would involve:
i.Constitutional factors. Mr Byrne was already at or slightly over the maximum recommend (sic) weight based on his observations when he joined the army. It is possible that his weight would have continued to rise even without his involvement in the Vietnam War.
ii.Alcohol Abuse. The use of excessive quantities of alcohol and the related diet that would be inappropriate could certainly have led to a marked increase in Mr Byrne's weight before he started the driving contract for Australia post (sic).
iii.Post traumatic stress disorder. Mr Byrnes has marked social withdrawal and this with a sense of malaise this may lead to a reduction in the level of motivation for trying to change or seek active treatment.
iv.Personality factors. Mr Byrne has a narcissistic view of the world and perceives that various people should do things to help or fix him rather than he taking responsibility for himself.
v.Failure to undertake any treatment for alcohol abuse. Mr Byrne has failed to take any steps to manage his alcohol problems.
vi.Choice of job as a driver. Driving involves spending a lot of time sitting and is sometimes associated with obesity. If this is coupled with ongoing alcohol use and poor diet then it is likely that his weight would increase further.
vii.Failure to undertake any dietary and exercise programs. Mr Byrne has not undertaken any formal treatment for his weight problems and noted that he does little exercise, even now that he does not have work pressures to restrict his time.
Overall I am not able to give more weight to any one of these factors, which all interact with each other to lead to the problems with obesity. The obesity presumably contributes to sleep apnoea, and while this is outside my area of expertise, sleep apnoea may also be affected directly by other factors including the effects of alcohol, physical shape of the pharynx and so on. In other words being overweight may also be one of a number of contributing factors, not a sole cause of the problem.
The following summary of the Applicant's weight recordings has been provided by the Respondent:
Date     Height (when recorded)         Weight Document reference
July 1967       5 ' 10 ½" (176 cm)       85 kgs T3, p24
September 1967         70 " (175 cm)    182 lbs (83 kgs) T3, p17
90 kgs exhibit A
90 kgs exhibit A
1982-1983                105 kgs exhibit A
1992 (upon ceasing work)                 110-115 kgs     exhibit A
October 1996            111 kgs T13
June 1998                115 kgs T26, p95
July 1999       180 cm 110 kgs exhibit B
October 1999    180 cm 112 kgs exhibit 3
October 1999    5' 10" (175 cm) 110+ kgs       exhibit F
July 2000       5'11" (177.5 cm)         110 kgs exhibit H

It was submitted for the Applicant that obesity was caused by PTSD with alcohol abuse and right knee osteoarthritis which led to an absence of exercise since about 1981, and that obesity has materially contributed to the onset of mild sleep apnoea. It was submitted for the Respondent that even if the Tribunal found that the Applicant's obesity was related to his service, because the onset of sleep apnoea was prior to his becoming obese, his obesity cannot be considered to have contributed to the onset of sleep apnoea. Therefore, the sleep apnoea is not related to his war service. It was also submitted for the Respondent that the Applicant cannot argue "aggravation" rather than "material contribution" because s9(1)(e) of the Act requires that the Applicant's condition was contracted either prior to or during his period of service.
Notwithstanding that the Tribunal is not bound to apply the Statement of Principles for Sleep Apnoea, submissions were made that pertained to it as a useful guide. In the Statement of Principles the definition of "being obese" requires proof of weight gain of "at least 20% of the baseline weight" and a body mass index of 30 or greater. It was submitted for the Applicant that in July 1967 the Applicant's baseline weight was 85 kg. It was submitted for the Respondent that the Applicant had not finished growing in 1967. This was based on the reports of both Dr Burns and Dr Baz that recorded the Applicant's weight at 180 cm in 1999, and on the fact that his height was 70 inches (177.8 cm) in 1967. It was also submitted for the Respondent that because his weight stabilised at approximately 90 kg for a substantial period, then 90 kg should be taken as his baseline weight. On that basis, and applying the formula in the definition in the Statement of Principles stated above he would be held to be obese when his weight exceeded 97 kg. The Applicant submitted, in reply, that it is highly improbable that he had not finished growing by the age of 22 years (his age in 1967).
It was submitted for the Respondent that irrespective of the subjective evidence of the Applicant and his wife as to when his weight gain occurred, it bore no relationship to his war service. As he was able to tend his vegetable garden and build a house after moving to Kempsey, he was capable of undertaking a moderate level of exercise. Therefore, it was evident that his caloric intake was excessive for the exercise he was undertaking. The fact that he was not playing much sport had nothing to do with a lack of physical ability because of his knee condition or lack of motivation caused by his PTSD or alcohol consumption. Indeed, when he commenced the mail run he reduced his alcohol consumption. It was submitted that his eating habits were a reasonable explanation for his weight gain.
It was submitted for the Applicant that he was already obese when the symptoms of his sleep apnoea commenced. In relation to the commencement of the symptoms, it was submitted that Dr Nicholls (T13) obtained a history in 1996 that he had daytime somnolence for the previous five to ten years, and it was the Applicant's evidence that the symptoms were first noticed in the mid to late 1980s. It was submitted for the Applicant that even though the Statement of Principles does not apply, nonetheless he satisfies factor 5(b) of Instrument No.39 of 1997. It was submitted for the Respondent that on the evidence of the Applicant's wife, he had difficulties with snoring, cessation of breathing and daytime sleepiness, while he lived in Woy Woy.

Taking into account the evidence and the submissions of the parties, the hypothesis has been raised that the Applicant's baseline weight was 85 kg in 1967. It is highly improbable at the age of 22 years that he had not grown to his maximum height. In any event, the fact has been raised on the evidence, and it must then be disproved beyond reasonable doubt that the Applicant had not completed his growth at that time. Despite a record of his height being 180 cm. in the 1990s, it is possible that there has been a discrepancy in the accurate measurement of his height. The raised fact is that the Applicant's height was 70 inches (177.8 cm), and this is the measurement that is relevant for the purpose of calculating his body mass index. On this basis and according to the definition of "obese" in the Statement of Principles the Applicant has been obese when his weight reached 102 kg, and since 1982 he has had a BMI in excess of 30.
Despite the contradictory evidence on the issue of the clinical onset of the Applicant's sleep apnoea, the hypothesis has been raised on the evidence of the Applicant and Dr Nicholls that the condition commenced in the mid to late 1980s, which would be after the onset of his obesity soon after he moved to Kempsey. The evidence of Mrs Byrne - that his breathing difficulty during his sleep commenced in Woy Woy - is contradictory evidence that must be considered under s120(1) in determining whether it disproved the hypothesis beyond reasonable doubt
The next issue to consider is the relationship of the Applicant's obesity to his war service. There is no doubt that he was not exercising sufficiently at the time he had a significant weight gain. The hypothesis is that he was not exercising because of his right knee condition and his lack of motivation occasioned by his PTSD. Moreover, the fact was raised that the Applicant's high alcohol intake contributed to his obesity, particularly after he moved to Kempsey. The Applicant's PTSD had worsened before he left Woy Woy to a point where he wanted to avoid people and live a self-sufficient life in the country. He became more depressed and distressed when he moved to Kempsey and could not get work there. At this time both his alcohol intake and weight increased. Thus, in the opinion of the Tribunal there is a clear association between his excessive alcohol intake and the worsening of his PTSD.
There is expert evidence before the Tribunal to support the view that the Applicant's drinking contributed to his obesity, including the reports of Dr Schultz and Dr McGrath. The Tribunal notes the opinion of Dr Schultz that a number of factors could have contributed to the Applicant's obesity. However, that is not the issue. As long as there is a contribution arising from his war service, it is not important that that is but one of a number of factors. The war-caused factor must be more than de minimus: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
There is evidence before the Tribunal that the Applicant's height now is in fact 180 cm. While 180cm is the height recorded by Dr Baz and Dr Burns, the Tribunal has no evidence about the precision with which those measurements were made or whether rounding occurred. Therefore the Tribunal cannot be reasonably satisfied that his height is 180 cm, and that that height should have been used in the calculation of the Applicant's body mass index.
On the evidence, factor 5(b) of the Sleep Apnoea Statement of Principles has been met, and therefore a reasonable hypothesis has been raised. The Tribunal must now move to consider, pursuant to s120(1) whether it is satisfied beyond reasonable doubt that the Applicant's sleep apnoea is not war-caused.
On his evidence the Applicant tended a vegetable garden and built a house – activities that involve physical exercise. There is also evidence that despite his knee disability he could have undertaken swimming as a weight control measure. The Tribunal is satisfied beyond reasonable doubt that the Applicant was not prevented from exercising because of his war-caused right knee condition. However, his PTSD significantly affected his motivation generally, and at the same time it caused him to increase his alcohol intake. On this basis the Tribunal cannot be satisfied beyond reasonable doubt that his obesity was not related to his war-service. Moreover, the Tribunal has carefully considered the submissions of the Respondent, but is not satisfied beyond reasonable doubt that the hypothesis raised by the Applicant in respect of the contribution of his drinking to his obesity has been disproved.
The Tribunal therefore sets aside that part of the decision of the Respondent in respect of sleep apnoea, and determines that the Applicant's sleep apnoea is war-caused. The application for review to the VRB in respect of sleep apnoea was out of time. Therefore the earliest date of effect in respect of that condition is 14 September 1996, being a date not more than six months before the date of lodgement of the application to the VRB.
Osteoarthrosis Left Knee
In his claim for osteoarthritis left knee, the Applicant sought to rely upon the Statement of Principles Instrument No.71 of 1995 for Osteoarthrosis. This Instrument was later amended by Instrument Nos.336 and 352 of 1995, all of which were gazetted prior to the time of the primary decision: Repatriaiton Commission v Keeley (2000) 98 FCR 108. The relevant factors are those set out in Instrument No. 352 of 1995 and the definitions for these factors are contained within Instrument No. 71 of 1995. The Applicant relies upon factors 1(b)(ii) "having a malalignment of the relevant joint before the clinical onset of osteoarthrosis" and 1(b)(iii) "being obese for at least 10 years before the clinical onset of osteoarthrosis in either knee joint".
The Applicant's oral evidence was that, while he was serving in Vietnam, he fell into a pit when coming back with another person from picket duty late one night. He became stuck in the pit as he was "wedged between the two sides of the pit", his back on one side and his right knee up against his chest while his left knee was "dangling" in the pit. The pit was about 6 feet deep and 18 inches wide. He was helped from the pit and went back to his bunk to rest. In his written statement he said even though his left knee was hurting "I never really considered it as my right leg my (sic) my major concern" (exhibit A). He was taken to the RAP the next morning and was given painkillers and sent back to the "lines" to carry on his duties. He said his right knee swelled to twice the size of his left when the incident happened but the medic was more worried about his right knee than his left. In oral evidence, the Applicant explained that he did not feel any pain in his left knee after the accident and he managed to walk around without needing crutches.
In his oral evidence the Applicant said he did not have a medical examination until after he returned to Australia just before he was discharged from the Army, about six to eight weeks after the accident. It was suggested by the examining doctor at his final medical examination that he undergo a knee operation. However he never considered that his right leg was a "major concern", and did not have the operation because he wanted to be discharged.
The Applicant said that about six months after the accident he felt a "niggling" in his left knee that gradually worsened over the years. His knee became sore and ached persistently, even when sitting or resting. Mrs Byrne's evidence was that from the time they met she noticed the Applicant had a habit of moving his body from side to side by shifting weight from one leg to the other. It is not clear, from the evidence, when they met, but they were married in 1968. She said the first time she became aware of the Applicant's left knee problem was when they were in Kempsey.
At the time of the Applicant's final medical examination in September 1965 (T3, p15) before his discharge he reported a "painful right knee" but no reference was made to his left knee. The examining doctor also noted "heavy build slightly overweight". At that time the Applicant's weight was recorded as 182 lbs. and his height was 70 inches.
In her report dated 19 July 1999 (exhibit B), Dr Baz recorded the following clinical history in relation to the Applicant's knee problems:
Osteoarthritis right knee
The knee is always painful. Its severity varies, and he may take 6 or 8 panamax because of the pain. It does not give way and it is not swollen.
Pain is aggravated by walking. He is aware that he limps on the right knee. He could walk about 500m before he would have to stop, and this would cause pain. He cannot kneel, or squat. Prolonged driving aggravates the knee pain, and he has considerable difficulty getting out of the car, and standing after driving.
He wears a thermal guard. He has tried an NSAID but had gastrointestinal bleeding and this has been ceased.
Other Musculoskeletal
The left knee is 'weak'. There is variable pain in the knee, but not as severe as the right.
Dr Baz found on examination that the Applicant's left knee had full movement and his right knee had three quarters movement with mild crepitus. The knees were not tender or swollen. Dr Baz considered that the left knee was not a significant problem and indeed it appeared "fairly normal".
In his report dated 7 July 2000 (exhibit H), Dr Nigel Hope, orthopaedic surgeon, recorded the following history regarding the Applicant's left knee:
Symptoms began in the left knee in the 1980s, de novo, without a specific incident of injury… The condition has gradually worsened since the mid 1980's… The patient did not have any injury to the left knee prior to or since the mid 1980's. …
He has antero-medial knee pain without radiation. It is an aching pain of 2.5/5 intensity and it lasts hours at a time. It is worse with movement and walking and better with rest. He has night pain which wakes him two nights per week. He has rest pain. He takes Panamax for the pain, 8 tablets on the worst day with one worst day per week. There is some weakness in the limb…
He stands 5'11" tall and weighs 110 Kg. He has a medium body frame and is moderately obese…

Dr Hope noted that the Applicant had a markedly antalgic gait from a reduced stance phase on the right lower limb. He also noted that the left knee had a neutral alignment. Patello-femoral joint examination revealed no tenderness, normal tracking and quadriceps strength of 5/5. He had pain on stress varus flexion and medial joint line tenderness of the tibio-femoral joint. An X-ray taken in 1997 showed reduction in the medial joint space in the left knee and some sclerosis indicative of moderate osteoarthritis.

Dr Hope opined that the Applicant's left knee condition was caused by excessive loading of cartilage in the joint. He noted that once the load capacity has been exceeded joint cartilage failure results. In the Applicant's case, excessive loads from the mal-alignment and obesity and from his antalgic gait, caused cartilage failure. He noted that the Applicant has been obese for over ten years. He also opined that "he may have a mal-alignment of the left knee" which would be shown by weight bearing long leg X-rays. Although Dr Hope advised that these X-rays be undertaken, hitherto these have not been done. He also noted that clinically the Applicant's left knee is in neutral alignment, which would increase stress in the medial compartment. He concluded that "the right lower limb disability may cause left knee joint cartilage failure" and said –
… it is reasonable to say that his obesity and possible mal-alignment in combination with his antalgic gait have caused excessive loads on the left knee joint, which have resulted in cartilage failure (degenerative joint disease).
In his report dated 27 January 1999 (exhibit 1), Professor Sambrook, rheumatologist, noted that an X-ray of the left knee taken on 12 January 1989 was normal, but an arthrogram showed a vertical tear of the medial meniscus. An X-ray of the left knee taken on 21 April 1997 showed mild medial compartment narrowing and early osteoarthritis. In considering the relationship of the left knee condition to the Applicant's service Professor Sambrook said there was no increased mal-alignment of the left knee and no significant displacement of the right knee from the osteoarthritis on that side. Therefore he did not consider that malalignment was a relevant factor. In relation to obesity, Professor Sambrook noted that the left knee became symptomatic "about 18 years' ago", and therefore for obesity to be a factor he would need to have been obese from about 28 years ago.
In his report dated 21 April 1997 (T20), Dr Prowse, rheumatologist, obtained a history that the Applicant had had an intermittent ache in his left knee for about five years, mainly when physically active. There was no history of joint swelling. In contrast he had right knee pain most of the time. Dr Prowse noted the Applicant's fall in Vietnam (when he injured his right knee) and said that the Applicant was "unsure if he injured any other joints and is unsure as to any other service related injuries". He noted X-ray reports and opined that the Applicant suffered from mild medial compartment osteoarthritis of the left knee that "could follow on from previous trauma".
The Applicant based his case on factors 2(b)(ii) and (iii) of Instrument No. 352 of 1995 "having a malalignment of the relevant joint before the clinical onset of osteoarthritis" or "being obese for at least 10 years before the clinical onset of osteoarthritis in either knee joint". It was submitted for the Applicant that the definitions of "malalignment" and "obesity" outlined in the Statement of Principles are satisfied on the Applicant's evidence.
The Tribunal determines that for the reasons already given in relation to the sleep apnoea claim, the Applicant suffers from obesity related to his war-service, and that he has been obese since about 1982.
It was submitted for the Applicant that in relation to factor 2(b)(ii), causation is established by the prior accepted disability of right knee osteoarthritis. This disability, in turn, led to a change in gait and weight distribution which impacted adversely on the left knee. In this regard the Applicant relied on the opinions of Dr Hope (exhibit H) and Dr Smith (T11, p48) and Dr Baz's report dated 19 July 1999 (exhibit B). It was submitted for the Applicant that the opinion of Dr Hope is not directly contradicted by Professor Sambrook who did not consider the theory of causation contained in the report of Dr Hope. It was submitted for the Applicant that Professor Sambrook's finding that the Applicant's "left knee did not become symptomatic until about 18 years ago" is not supported by the evidence. A clinical finding that the Applicant had osteoarthritis in the left knee was made by Dr Prowse on 21 April 1997 (T20). The x-ray report refers to a "mild degree of early osteoarthritis" and the Applicant said he had symptoms on and off for about five years. This is inconsistent with Professor Sambrook trying to place the onset in the early 1980s.
It was submitted for the Applicant that on the basis that the Applicant became obese about 1981, then he had been obese for at least 10 years before the onset of osteoarthritis of the left knee, and hence factor 2(b)(iii) is met.
It was submitted for the Respondent the Statement of Principles requires there to be a malalignment of the left knee. Dr Baz's report (exhibit B) is silent on that issue. She merely noted that the Applicant's gait favours his right leg. It was submitted that it is a quantum leap to then say that the Applicant's left knee is malaligned. The Respondent also referred to the report of Dr Hope dated 7 July 2000 (exhibit H) in which he stated that the Applicant "may have a mal-alignment of the left knee", but suggested that further investigations be made to confirm this. Furthermore, Professor Sambrook in his report dated 27 January 1999 (exhibit 1), states that "there is no increased malalignment of the left knee".
The Respondent cited the decision in Connors v Repatriation Commission (2000) 59 ALD 61 where the Federal Court considered whether the material needed to point toward an essential element of the hypothesis in order for the template in the Statement of Principles to be made out. Kenny J (at 70) said:
The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of the veteran's particular service. Because the existence of one of the ten factors specified in clause 5 of the SoP is an essential ingredient of that hypothesis, the material before the decision-maker must point to one of those factors.

The Respondent also cited the decisions of Harris v Repatriation Commission (2000) 31 AAR 270, Arnott v Repatriation Commission [2000] FCA 1336 and Mason v Repatriation Commission [2000] FCA 1409. It was submitted that as there is no material that points to the hypothesis that the Applicant suffered a malalignment of his left knee joint, the hypothesis raised by the Applicant does not meet the template in the Statement of Principles. Therefore, the hypothesis raised by the Applicant is not reasonable. .

It was also submitted for the Respondent that the clinical onset of the Applicant's osteoarthosis of the left knee was, at the latest, in the early 1980s. The Applicant's history as recorded by Professor Sambrook was that the Applicant's "left knee did not become symptomatic until about 18 years ago" (exhibit 1) making it 1981. Professor Sambrook's report also referred to an arthrogram in 1989 showing a tear of the medial meniscus and an X-ray that showed no bone or joint abnormality of the left knee (T18, p76).
The Respondent also noted that the Applicant stated that his left knee began to be "niggling" and "sore" six months after he returned from Vietnam and that it has gradually deteriorated over the years. The Applicant also described his left knee aching while he was driving the Australia Post van. As the Applicant ceased employment in 1992, the period being described is of necessity prior to 1992. Thus, the Respondent submitted that the clinical onset of the Applicant's osteoarthrosis of the left knee was in the early 1980s.
In the light of the evidence and submissions it is not clear to the Tribunal whether the Applicant seeks to rely on factor 2(b)(vi) of Instrument No.352 of 1995 "suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis". However, the Tribunal will deal with this factor for abundant caution. In the Statement of Principles "Trauma to the relevant joint" means -
a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. ….

There is no history of such a trauma to the Applicant's left knee, and therefore this factor is not met.

Factor 2(b)(ii) of Instrument No.352 of 1995 requires the Applicant to have had a malalignment of the relevant joint before the clinical onset of osteoarthrosis. The term "malalignment" is defined in Instrument No.71 of 1995, viz –
displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length.
Although Professor Sambrook noted a history that the Applicant's left knee became symptomatic about 18 years previously (and he took that history in January 1999), he also noted that an X-ray of the left knee on 12 January 1989 was normal but an arthrogram showed a vertical tear in the medial meniscus. It was not until 21 April 1997 that there is radiological evidence of medial compartment narrowing of a mild degree consistent with early osteoarthritis. The Tribunal does not accept the Respondent's submission that the clinical onset of osteoarthrosis in the Applicant's left knee was about 1981. Even the tear in the medial meniscus seen in 1989 is unlikely to have been present in 1981 as there was no radiological evidence of osteoarthrosis in 1989.

The hypothesis is that the war-caused condition in his right knee has caused a malalignment in his left knee, causing the development of osteoarthrosis. Dr Hope (exhibit H) noted that the Applicant "may have a mal-alignment of the left knee". Dr Hope said "clinically his knee is in neutral alignment, which would increase stress in the medial compartment". The Tribunal notes that an X-ray of the left knee in 1997 showed reduction in the medial joint space with some sclerosis, indicative of osteoarthritis. Dr Hope noted that, additionally, the Applicant had an "antalgic gait (reduced stance phase on the right lower limb)" arising from his right knee condition. and that the dysrhythmic gait results in increased dynamic loads on the joint. He concluded that "the right lower limb disability may cause left knee joint cartilage failure". He then said "on this basis … it is reasonable to say that his … possible mal-alignment in combination with his antalgic gait have caused excessive loads on the left knee joint". The Respondent did not seek to cross-examine Dr Hope on this documentary evidence. Although Dr Hope suggested that special long X-rays could be undertaken to confirm the presence of malalignment, neither party persisted with that suggestion.
The Tribunal notes the Respondent's reference to the decision of the Federal Court in Connors (supra). The Tribunal finds that the raised fact of a malalignment of the left knee has been pointed to by the evidence of Dr Hope. It is not necessary in dealing with s120(3) to find facts or to consider the proof of the hypothesis. In Connors attention has been drawn to s196B(2) of the Act that the Statement of Principles sets out "the factors that must as a minimum exist", and we consider that the opinion of Dr Hope raises evidence of malalignment that is not merely speculative or left open but is pointed to by the evidence. Hence, a reasonable hypothesis has been raised.
The Tribunal will now consider s120(1) of the Act. It was open to the Respondent to have the special long X-rays taken. This could have confirmed whether there was malalignment, and thus provided the evidence to dispel the hypothesis beyond reasonable doubt. However, that was not sought by the Respondent. In addition to the absence of evidence dispelling the Applicant's hypotheses there is no other evidence that satisfies the Tribunal beyond reasonable doubt that the Applicant's left knee osteoarthrosis is not war-caused. The Tribunal will therefore set aside the Respondent's decision in respect of the Applicant's left knee condition, and substitute its decision that the condition of osteoarthrosis of the left knee was war-caused, with effect on and from 9 February 1996, being a date not earlier than three months before he lodged his claim in respect of that condition.
While it is not necessary to do so, for the sake of completeness the Tribunal will also deal with factor 2(b)(iii) of Instrument No.352 of 1995, "being obese for at least 10 years before the clinical onset of osteoarthrosis in either knee joint". The term "obesity" means –
having a Body Mass Index (BMI) greater than 30, where :
BMI = W÷H²
And where :
W is the person's weight in kilograms; and
H is the person's height in metres.

The Tribunal has already made a finding that the Applicant was obese in 1982 and that his obesity is related to his war service. Dr Hope noted that the Applicant did not have any symptoms in his left knee prior to the mid 1980's. An arthogram in 1989 showed a tear in the medial meniscus but there was no radiological evidence of osteoarthritis at that stage. Therefore the pain in the Applicant's left knee at that time is not likely to have been caused by osteoarthritis. The history from the Applicant is that his left knee condition slowly worsened. There was radiological evidence of osteoarthritis in the left knee by April 1997 that Professor Sambrook considered to be mild and Dr Hope considered to be of moderate severity. The best we can do with the evidence is to say that the clinical onset of the left knee osteoarthritis was likely to have been some time between 1989 and 1997. The issue is whether the clinical onset was during or after 1992, that being a time at least ten years after the Applicant became obese.

The Tribunal's decision on the obesity factor will be left open. A decision on this factor would turn on the date of clinical onset of the Applicant's osteoarthritis of his left knee. There are no clinical notes from treating doctors to assist the Tribunal in determining this date. Since the Applicant has already met the malalignment factor, the decision to leave open the obesity factor is of no consequence. Indeed, if the malalignment factor had not been met, it is likely that the Tribunal would have reopened the hearing to obtain further relevant evidence on the issue of obesity.
Assessment of rate of pension payable.
Having found that the Applicant's sleep apnoea and osteoarthrosis of the left knee are war-caused, it is open to the Tribunal to proceed to assess the pension payable to the Applicant in respect of all his war-caused conditions. The Tribunal notes that the Applicant claims that he qualifies either for the Intermediate or Special Rate pension, or in the alternative that he qualifies for an increase in General Rate assessment. He has been in receipt of an invalidity Service Pension since 1998.
The Applicant now has the following war-caused disabilities –

Post traumatic stress disorder with alcohol abuse
Bilateral sensorineural hearing loss
Osteoarthrosis of right and left knees
Sleep apnoea

Section 24 of the Act provides, insofar as it is relevant -
This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) 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; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease , or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused 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 of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused 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 has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) ….
Section 23 provides for pension at the Intermediate Rate and is similar to s24. However s23(1)(b) provides that the veteran is incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. Section 23(2)(a) and (b) defines part-time or intermittent work as work for 50 percent or more of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or work for 20 or more hours per week.
Section 28 provides –
In determining, for the purposes of paragraph 23(1)(b) or (24)(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(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 experience 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).
The Applicant is currently assessed at 70 percent of the General Rate and so meets the provisions of s24(1)(a). It is therefore unnecessary for the Tribunal to consider the two new conditions accepted in the process of these proceedings.
The Applicant was discharged from the Army in 1967. He married in June 1968 and then returned to work at Wrigleys until 1977 (exhibit A). He was engaged primarily in factory work, such as driving forklifts and lifting and rolling drums. He recalled having problems with his knees at that time, particularly with his right knee.
In 1977 the Applicant commenced work in Woy Woy as a service station proprietor in partnership with his brother-in-law, and remained there for about four years. In his written statement (exhibit A) he said his work included office administration and account tasks, and driveway attendant duties such as pumping petrol and checking oil. He stated that the duties were not physically demanding. Mrs Byrne's evidence was that he spent most of his time in the driveway, attending customers. She said he also did some accounting work until she took over the office duties.
The Applicant gave oral evidence that the service station business went bankrupt and he and his wife mutually decided to leave Woy Woy as they wanted to move to a quieter place. Mrs Byrne said that the decision was made solely by the Applicant. He wanted to move to Kempsey to live in the country, to become self sufficient and away from the "pressures".
In 1981 the Applicant and his wife moved to a 50-acre property about 10 kilometres from Kempsey (exhibit A). Over the next four years he was involved in building a house on the property and built some of the house himself. He did plastering, framing and installation work, but he was assisted by his sons in tasks involving climbing ladders as he was unable to do that on his own. Mrs Byrnes said that her father, a neighbour and her children helped build the initial part of the house, but the Applicant also did a reasonable amount of the work. They lived in a shed for a few years while the house was being built. The Applicant said "finances dictated" that he build the house himself. He said it was their intention to become self-sufficient, and accordingly they attempted to grow vegetables, hoping to market them, but the venture proved unsuccessful.
Mrs Byrne said in oral evidence that the first 18 months in Kempsey was "very depressing" and she recalled the Applicant's weight increased significantly during this period.
The Applicant said no consideration was given to employment prospects before moving to Kempsey. He admitted that the job market in Kempsey had been difficult for the previous ten years. He was unemployed for the first 18 months. Apart from looking for work during that time, he used to mow lawns two or three times a week to earn some income, and occasionally he filled in for a mail contractor. He said he suffered from pain and stiffness in his knees after doing those activities. Apart from that, he said he received Unemployment Benefit and spent most of his time drinking or watching television.
The Applicant eventually obtained employment as a mail contractor with Australia Post in 1983 where he remained for about seven years. That work necessitated him driving his own Datsun C20 van for approximately ten hours per day, three days a week, delivering mail in country areas. This usually involved driving up to about 200 km on unsealed roads to deliver mail to farmhouses and rural post boxes. The Applicant described the effect this job had on his health, viz -
…during this time my drinking was cut back to an average of six stubbies a night, although more on weekends. Over this period I was having quite a bit of discomfort from my legs and had increasing problems undertaking physical activity. On the days I did not work I stayed at home to rest in order that my next day at work might be better. Driving a manual van for extended periods of time became increasingly difficult and painful due to the arthritis in my knees. However, I had to persist with the work for as long as I could as I had a family to support.

Mrs Byrne recalled that the Applicant drank when he came home from his mail run, but that he drank significantly less than previously. On the days that he was not working she said he would rest and work on maintaining the van while she and the children did the other chores around the house.

About this time the Applicant noticed that he was increasingly short of breath, "tight chested" and generally tired. This was consistent with his wife's evidence. Mrs Byrne's evidence was that his snoring and sleeping problems became more apparent and frequent when they moved to Kempsey and gradually worsened over the years. She also recalled that during the day, if he sat down, he would fall asleep. She said that habit still continues now.
The Applicant said he was also having problems with his legs during this time. He said he could not squat because he was then unable to get back up without assistance. He also said that he felt pain in his knees when walking even short distances, and so he was unable to walk far.
Mrs Byrne said the Applicant's weight increased rapidly from the time he started working with Australia Post because he spent most of his time sitting both at home and on the job since he delivered mail out of the van window. She said that the Applicant was required to get out of the vehicle to deliver mail only in exceptional circumstances. She noted that he was not very active and it was at this time that he was found to have high cholesterol.
The Applicant said in his statement (exhibit A) that he ceased work as a mail contractor when he found it almost impossible to get in and out of his vehicle and to walk from the vehicle with bags of mail. He said he was granted an extension of his contract on one occasion, and lost the third tender at the end of the second contract.
The Applicant ceased working for Australia Post in 1992. He started to look for work a few months later. His wife was working at TAFE during that time and earned sufficient income to support the family. In the meantime he completed a six months part-time welding course through TAFE, but that did not assist him to obtain employment. Mrs Byrne ceased work in mid 1993, at which time the Applicant applied for Social Security payments. He was placed on a case management program. In about 1994 he completed a full-time panel-beating course for 16 months at Skillshare. The Applicant said he applied for about six jobs, including various welding and driving jobs in Kempsey and for a position as a caretaker at a public school. Although he obtained some interviews he was not offered any employment. He said he did not disclose his medical problems at the interviews.
Mrs Byrne considered the Applicant made as much effort as was possible in the Kempsey area to look for work. She noted that he also had literacy problems. She understood that there was no work available because of his age.
Mrs Byrne said the Applicant complains constantly about his physical problems. He cannot bend down without assistance to lift him back up again. The Applicant said that he can no longer kneel or bend his right leg and he has constant pain in his right knee. He said that his right leg "has always been a problem" and that his left leg has progressively worsened over the years. If he has to stand in a queue, his knees start to ache and become sore after about half an hour. For that reason he is unable to stand in one spot for any length of time without shifting his weight from one side to the other to ease the pain. Mrs Byrne said the Applicant can no longer take the weight on either leg for long periods of time and he now has to sit or lean on something to control the pain. She also noticed that the Applicant finds it difficult to squat. The Applicant said he took arthritic medication for his pain but more recently he has taken Panamax.
Mrs Byrne recalled that the Applicant can no longer raise his arms above his head, as he used to when he was a plasterer, because his right arm becomes numb. She said his fingers become numb when he drives, and he loses sensation in his hands when he holds a hammer for any length of time. She said that his shoulder pain disturbs his sleep and causes him to be restless.
The Applicant said he currently drinks about four to six "stubbies" a day over a period of hours during the afternoon/evening. This was consistent with his wife's evidence. Mrs Byrne no longer considers the Applicant's drinking to be a problem as he has significantly reduced his drinking from their pre-marriage days. She said he gradually reduced his alcohol consumption as he started working.
In his oral evidence, the Applicant said an average day at home involves watching television, sleeping in the afternoon, and going for a "stroll" on the property. He no longer works on the tractor as it is broken. He said he visits his son who lives in town a few times a week. This was inconsistent with his wife's evidence who said that their son visits them about three times a week to assist with the property and that the Applicant rarely visits him and his grandchildren when he goes to town because he cannot handle the noise.
The Applicant said his wife does most of the driving and he cannot drive for more than 1½ hours before his wife has to take over. He is able to do jobs around the house and in the garden, such as lawn mowing, if spread over a number of days as his left leg starts to ache after about one hour. The Applicant said he has played about six games of golf in the last five years.
Mrs Byrne added that the Applicant could no longer go fishing or scuba diving because of his physical conditions. She considered that swimming at the local pool was the only exercise option for him. She said their social life is limited in that they do not have any friends. She does the shopping on her own and has her own hobbies to keep herself occupied. She also said the Applicant avoids going to town. He does not make telephone calls. Mrs Byrne said she took the Applicant to play darts on one occasion, but he "sat on the other side of the room and watched the TV and never socialised at all with the group that was there". She said he does not like to be in social situations and if he does not know anyone, he becomes "panicky". He likes to spend most of his time at home because he feels safe and comfortable there. Mrs Byrne said, in effect, that the Applicant has always been a "private person" and has had difficulty with expressing his emotions. He does not have a communicative relationship with his sons and they have always communicated with him through her.

The Applicant said in his oral evidence that he thought he could still work as a mail contractor for three days a week if he worked in the same conditions as previously. Mrs Byrne considered that he would not be able to do the mail run now, nor was he fit to do it in 1997 when the new contractor took over. She said he could only drive about 1½ hours before his right arm becomes numb from steering. She said that his right leg also becomes numb from remaining in the same position. She considered that his right leg condition has deteriorated since 1997.
The Applicant also thought he could continue to be a service station proprietor, on the basis that a hired driveway assistant could do the driveway work, so he could confine his work to the office work and sitting down when his knee hurt. Mrs Byrne said they had never employed a driveway assistant, but she later recalled and provided written evidence of the fact that they had employed a driveway assistant. She considered that the Applicant could not do the driveway work himself. She also noted that the industry had changed significantly since they were in it, there was now very little driveway work to be done, and she considered that the Applicant would have difficulty learning to operate the computer console.
The Applicant said that his shoulders have been a problem since about 1990. His shoulders ache after heavy lifting. Mrs Byrne said she first became aware that the Applicant suffered from a shoulder problem when they were in Woy Woy when he told her that he could not continue to be a plasterer because of his inability to raise his arms over his head. The Applicant subsequently consulted Dr Smith and had X-rays taken.
The Applicant said he experienced intermittent low back pain for a few days after he has been sitting for too long in one place or has been driving long distances. His back pain prevents him from lifting and bending. He said he had experienced back pain on about a dozen occasions over the last 12 to 18 months.
Dr Martha Baz, occupational physician, in her report dated 19 July 1999 (exhibit B) noted that the Applicant's ability to lift was limited by knee pain rather than by his back. She noted that he often wakes with shoulder pain that improved in the morning. Working with his arms above his head increased the aching, but she understood he had no problem with driving. However she noted that he had numbness and tingling in his hands if he had been holding something for a long period, such as a hammer or a steering wheel, and this sensation also occurred at night. Examination showed that both shoulders had about half normal abduction and three-quarters normal forward flexion. Dr Baz noted in her oral evidence that her findings were different from those of Dr Burns, who found that the Applicant's knees and shoulders were more stiff. Dr Baz agreed that the shoulders could have been affected when delivering mail when the Applicant needed to hold the steering wheel for a length of time causing numbness in the arm. She also said that vibration from a rough road could cause peripheral nerve problems.
Dr Baz stated in her oral evidence that the Applicant's osteoarthritis and PTSD were the main conditions that prevented him from working. She considered PTSD related to the Applicant's loss of interest, apathy and depression, that she understood, from the psychiatric reports, were part of the PTSD disability. She also noted considerable withdrawal, reduced interest and activity, irritability, an inability to have warm interpersonal relationships and a sense of a shortened future. Dr Baz stated that the Applicant's psychiatric condition was not severe, but it augmented his work incapacity because of his physical limitation.
Dr Baz considered the Applicant's left knee, sleep apnoea and shoulder problems were surmountable in the context of work capacity. However, she acknowledged that the problems he had with his arm when steering would have been a factor preventing him from undertaking that kind of work. Dr Baz also said that mild sleep apnoea would affect the Applicant's capacity to drive for a period of ten hours a day, as he was doing when he was on the mail run, but that it would not make him unfit to drive.
In effect, Dr Baz opined that the Applicant was unfit to work as a postal contractor as a result of his right knee disability coupled with his PTSD for 8 hours or more duration weekly. However she considered that work as a driveway attendant would not be precluded by his knee disability. Although it may have impacted on his ability to do this work full time, it would not limit him to less than 20 hours weekly. However, the Applicant's withdrawal to the farm and to solitary work of mail delivery is consistent with PTSD that would preclude him from working in a service station environment because of the need to interact with customers.
In his report dated 28 October 1999 (exhibit F) Dr McGrath, psychiatrist, concurred with Dr Baz's opinion. Dr McGrath noted in his report (exhibit F) –
…A considerable amount of avoidance behaviour was noted in which he said "the family knows nothing of what I did over there"… It is noted that he had lost interest in a number of activities… and he has cut himself off… He describes himself as being emotionally numb and has difficulty in having warm relationships towards people. The feeling that his future is somehow shortened was expressed. There was a description of symptoms including severe insomnia, irritability, poor concentration and exaggerated startle response.
In his report dated 23 November 1999 (exhibit 2) Dr Schultz, psychiatrist, opined:
Mr Byrne's loss of work was related to the loss of his contract rather than due to a psychiatric illness. He settled into a life at home as a 'retired' person while his wife worked… given the length of time that he has been away from work, it is unlikely that he will successfully achieve gainful employment in the future.
Dr Nigel Hope, orthopaedist, in his report dated 7 July 2000 (exhibit H) opined that the Applicant was fit for light duties that did not involve extended periods of standing, walking or driving. He considered that the Applicant could perform clerical work and "non-lifting activities". Presumably Dr Hope did not consider the Applicant's PTSD in providing his opinion, nor was he aware of the literacy problem.

In his report dated 13 October 1999 (exhibit 3) Dr Mark Burns, Occupational Physician, noted that the Applicant did not retender for the mail delivery service as his wife was working at TAFE. Dr Burns noted that the Applicant also felt that the "jolting" around was not good for him.
Dr Burns concluded that the Applicant ceased work in 1992 because of a combination of his musculoskeletal problems and the non-availability of work in the Kempsey area. Dr Burns considered that the Applicant's mild to moderate PTSD did not cause him to give up work at that time. In fact he was having much more difficulty with his back, shoulders and knees associated with the long hours of driving on unsealed roads. Dr Burns concluded (exhibit 3) –
Currently I believe that Mr Byrne would have difficulty in finding any form of work due to his age, as well as a combination of his accepted and non-accepted disabilities. I do not believe that his post traumatic stress disorder alone or in combination with the osteoarthrosis of his right knee would make him unemployable. I believe that if you add on to these two conditions his significant shoulder problems as well as his sleep apnoea as well as his age then he becomes unemployable.
It was submitted for the Applicant that on the evidence of Dr Baz the Applicant's accepted disabilities alone prevent him from working in his previous occupation as a postal contractor, and that due to his accepted disabilities he is unfit to work eight hours or more per week in his usual occupation. It was submitted that Dr McGrath's evidence presented the psychological factors that impact on the Applicant's ability to work, including his poor motivation and apathy being an effect of his war-caused PTSD.
In relation to Dr Burns' opinion that the Applicant's rotator cuff syndrome is a significant cause of his inability to work, the Applicant's counsel referred the Tribunal to the opinion of Professor Sambrook (exhibit 1) that symptoms from the Applicant's rotator cuff syndrome were "rather minor".
It was submitted for the Respondent that neither the Applicant's accepted disabilities alone nor his accepted disabilities, combined with his osteoarthrosis of the left knee and sleep apnoea, rendered him incapable of undertaking remunerative work of eight hours or more per week. The Respondent relied on the report of Dr Burns (exhibit 3) and the oral evidence provided by the Applicant and his wife. The Applicant expressed his opinion that he would still be capable of doing the mail run if he had the contract (transcript p38). He was also of the opinion that he would be able to work as a service station attendant and grow vegetables, although the price was not competitive at market. The Applicant's wife considered that his condition had deteriorated since losing the contract with Australia Post (transcript, p75-77). It was submitted for the Respondent that Mrs Byrne's evidence on this issue focussed wholly on physical incapacity, not motivation or interest.
It was submitted for the Respondent that, on the evidence of Dr Baz, the Applicant's physical limitation would not render him incapable of working 20 hours per week. The basis for her opinion that the Applicant was unable to work more than eight hours per week was a combination of his physical and psychological problems. However, this opinion is not consistent with the evidence of the Applicant or his wife. Neither suggested that lack of motivation or interest would affect his work capacity. Indeed, his response to the question whether he considers himself capable of working indicates that he has motivation and willingness to work. For these reasons it was submitted for the Respondent that the Applicant is capable of rendering remunerative work of eight hours or more per week.
It was also submitted for the Respondent that the Applicant does not satisfy s24(1)(c) of the Act. His evidence was that there were other reasons why he was unable to obtain work. He had applied for many jobs, but had not been successful. It was submitted for the Respondent that the Kempsey area is one of high unemployment, especially for people of the Applicant's age, and therefore the Tribunal cannot be reasonably satisfied that the Applicant was unable to obtain work because of his accepted disabilities. Thus the Respondent submitted that the substantial reason for the Applicant's unemployment could be attributed to socio-economic factors. Additionally, the Applicant has a low level of literacy - he has difficulty writing, particularly spelling and using computers - and this is also a reason why he has been unable to obtain remunerative work.
It was also submitted for the Respondent that the Applicant's shoulders are a significant factor in his inability to obtain remunerative work. He ceased work because he failed to obtain the tender for the mail run. It cannot be said that the tender that he made was unreasonable or unrealistic as the successful tenderer was soon out of business because he was unable to fulfil the contract for the tendered price. Once the tender had failed the Applicant was unwilling to take over the contract again because he was unwilling to take a loan to purchase a new van.
It was submitted for the Respondent that the Applicant's accepted disabilities are not the substantial reason why he has been unable to obtain work. He ceased work for reasons other than his accepted disabilities and he is prevented from engaging in remunerative work because of factors other than his accepted disabilities. Therefore, he has not suffered a loss of earnings within the provisions of s24(1)(c) of the Act.
The Tribunal finds that the Applicant was not an impressive witness. When giving his evidence he appeared mildly irritated and somewhat evasive. His evidence was not consistent with that of his wife on a number of issues. Mrs Byrne gave her evidence in an open and truthful manner, reflecting intelligence and careful consideration. She appeared to have a much clearer and more realistic grasp of the problems. Although the Applicant said in response to a question from the Tribunal that he could still do the mail run, his wife noted that he can only drive about 1½ hours because when he has his right arm on the steering wheel he gets numbness in his fingers from driving. Although Dr Baz considered that the Applicant could do the delivery work out of the window of his van, as before, she did not take account of the problem he had with his arm on the steering wheel limiting his capacity to drive. When asked about that she agreed that his shoulder condition would be a factor in preventing him from doing that work.
Although the Applicant considered that he could continue to be a service station proprietor on the basis that previously he had a driveway assistant who could do the driveway work, so he could confine his work to office work and sitting down when his knee hurt, his wife did not consider he could continue to do that work for a number of reasons. She noted that the industry had changed significantly since they were in it, there was now very little driveway work to be done, and she considered that the Applicant would have difficulty learning to operate the computer console. In particular he is quite limited because of poor literacy, a fact that Mrs Byrne identified much more clearly than did the Applicant. It appears that the written work associated with the course he did in welding was difficult for him and he needed a scribe in order to complete the examinations. The Tribunal is doubtful about the Applicant's evidence that he did the office work at the service station. Mrs Byrne said that she did the office work, and we prefer that evidence.
Having considered the evidence and the submissions from the parties, the Tribunal finds that the Applicant gave an unrealistic account of the work he could now perform. We do not consider that he could now work as a service station attendant, particularly in view of the computerisation that has occurred in that industry since the Applicant left Woy Woy in 1981. Even if he could work as a driveway attendant, there are now very few service stations offering driveway service. Moreover, it was the driveway work that he could not perform satisfactorily while he was in partnership with his brother-in-law at Woy Woy, necessitating the employment of someone to do that work. His wife had taken over the clerical work associated with the business, and in any event it is unlikely that he could perform that work satisfactorily because of his illiteracy. He has no computer skills and it is doubtful therefore whether he could manage the console. Superimposed on these problems are the effects of his PTSD. Having to deal constantly with customers is not consistent with the lifestyle he has sought by going to Kempsey. The Tribunal finds that the Applicant's attempts to isolate himself are part of his PTSD. It is likely that he would have considerable difficulty in dealing with customers because of his PTSD, and consideration needs to be given to the fact that one of the reasons why he left the service station, and Woy Woy, was to isolate himself.
The Applicant is precluded from working as a service station attendant because the structure of that work has now changed significantly and he has no experience in using service station consoles and is unlikely to be able to learn it. He last worked in a service station in 1982 and left because of his PTSD and his inability to perform the driveway attendant tasks because of his right knee condition. The Tribunal considers, when applying s28 of the Act to the facts of this case, that in considering the Applicant's capacity to undertake remunerative work, work as a service station operator is not work that should be considered when determining whether he meets the requirements of s24(1)(b). He now does not have the qualifications and experience relevant to that role as it has now evolved.
The Tribunal finds that the evidence of Dr Baz is to be preferred regarding the work capacity of the Applicant. She has taken into account the significance of the Applicant's PTSD on his work capacity. Dr McGrath, a psychiatrist who has examined the Applicant and who read a transcript of the Applicant's evidence to the Tribunal, concurs with Dr Baz's assessment. The Tribunal finds that, as at the application date (16 April 1996), the Applicant was unable to work for more than eight hours per week because of his accepted disabilities alone, and therefore he meets the provisions of s24(1)(b) of the Act.
The Applicant's last paid work was that of a mail contractor. He held a contract with Australia Post from 1983 for about seven years. He told Dr Burns and Dr Baz he did not re-tender for the work but his evidence to the Tribunal was that he tendered for the work again but lost it because he was undercut. Subsequently he was asked to submit another tender but he refused. At that stage he needed to obtain another vehicle in order to do the mail delivery, and the cost of a loan to purchase a vehicle had the effect of making the enterprise financially non-viable. Therefore, even if he were fit to perform that work, these financial considerations would preclude him from making a tender that was realistic and successful.
The intention of the Applicant and his wife when they moved to Kempsey was to become financially self-sufficient by market gardening and farming on their property. Ultimately, however, they realised that this goal was not economically viable, and in addition his tractor no longer works. The Applicant is also limited in the work he can do on the property because of his physical disabilities - both his war-caused disabilities and his back and shoulder conditions.
After the Applicant ceased the mail delivery work he tried to obtain other employment but was unsuccessful. The Tribunal finds that the Applicant was genuine and persistent in attempting to find employment. His motivation to obtain suitable work was also demonstrated in his undertaking a welding course in 1992, with the assistance of his wife who acted as his scribe because of his limited literacy.
The Applicant was born on 4 February 1945, and at the Application date, 16 April 1996, he was 51 years old. While no submissions were made on behalf of the Applicant in respect of the ameliorating provisions of s24(2)(b) of the Act, the Tribunal considers that it was open to the Applicant to rely on those provisions because he was under the age of 65 years at the date of application and he had been actively seeking employment. The evidence is not clear as to whether he had continued to seek work at least until April 1996 when he lodged his claims, the subject of this review. It was submitted for the Respondent that the Applicant's accepted disabilities were not the substantial reason why he had not been able to obtain work. This would infer that the Respondent considered it was open to the Applicant to rely on the ameliorating provisions. No submissions were made by the Respondent as to whether the Applicant had ceased seeking work prior to the Application Date.
Without making any findings on that issue, the Tribunal will now move to consider whether the Applicant's accepted disabilities were the substantial reason for his inability to obtain work. Apart from his war-caused disabilities, he is now unable to work delivering mail because his shoulder condition precludes him from driving for more than 1½ hours. It also limits his ability to pass mail through the window of his vehicle to deposit it in rural mail boxes.

Despite not advising prospective employers of his disabilities, and despite making a number of applications for employment, the Applicant has been unable to obtain work. The Tribunal finds that the Applicant has been genuinely seeking work, and his inability to obtain work, at least in part, reflects the high level of unemployment in his geographical area. The Tribunal also finds that his age and time out of the workforce are factors that, in addition to the high unemployment in his area, prevent him from obtaining work. However, these factors must be considered in perspective. In 1982 when he first moved to Kempsey he managed to obtain work mowing lawns and eventually managed to obtain work delivering mail for Australia Post. He obtained that employment despite the high level of unemployment in the area at that time. It must also be noted that although the Applicant has applied for a number of jobs and has achieved interviews for some of them he has not obtained work. His evidence was that he did not disclose the existence of his war-caused disabilities. However, probably because of his PTSD, his presentation is such that he is unlikely to attract employers. It is not reasonable to interpret that his age, time out of the workforce and the high level of regional unemployment are the main reasons why he has been unable to obtain employment. The Tribunal finds that a significant reason why he has been unable to obtain employment is because of his PTSD.
However, in addition to the Applicant's war-caused disabilities there are a number of factors that prevented him from continuing to undertake remunerative work . Taking the totality of these additional factors into account, the Tribunal finds that the Applicant's war-caused disabilities are not the substantial cause of his inability to work. They are but one of a number of major factors that are preventing him from continuing to work. As the Applicant fails to meet the "substantial cause" test in s24(2)(b) of the Act, he also fails to meet the provisions of s24(1)(c). Similarly he fails to meet the provisions of s23(1)(c). Therefore the Applicant is not entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate or the Intermediate Rate.
General Rate Assessment
The Applicant is currently assessed at 70 percent of the General Rate. The issue now is whether he is entitled to a higher General Rate pension. Both Dr Baz and Dr Burns have provided detailed General Rate assessments, including a lifestyle assessment average that is rounded to 3. That does not appear to be at issue between the parties. The Tribunal finds, therefore, that the Applicant's lifestyle assessment is 3.
Although the assessment must now take account of the Applicant's left and right knee disabilities, in effect, by applying the appropriate tables – Tables 3.4.1 and 3.2.2 – the assessment remains the same whether one or both knees are assessed. There is no issue in respect of the application of Table 3.4.1 for resting joint pain. Both Dr Baz and Dr Burns assess 2 impairment points on that Table. In respect of Table 3.2.2, assessing functional loss, Dr Baz assessed 20 impairment points and Dr Burns assessed 10 impairment points. Dr Baz based her assessment on the Applicant being "restricted to walking about 500 metres or less at a slow to moderate pace" and she doubted that he could walk that distance at 4 km/h because of his knee pain. Dr Burns reported that the Applicant could walk 500 metres at a "strolling pace".
In order to obtain a rating of 20, the requirement of Table 3.2.2 is –
pain restricts walking (4 km/h) to 250 m or less at a time. Can walk further after resting.

The provision for 10 impairment points is –

pain restricts walking to 500 m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

On this basis the Tribunal finds that an assessment of 10 impairment points is more applicable in relation to the Applicant's left and right osteoarthritis of the knees.

In relation to sleep apnoea, Dr Baz has assessed 5 impairment points and Dr Burns has assessed 10 impairment points, using Table 16.3. The criteria applicable to a rating of 5 is –

Daily (or almost-daily) symptoms that are irritating and not easily tolerated, but which improve with medication
Some daily tasks performed inefficiently because of generalised lethargy.

The criteria applicable to a rating of 10 is –

Daily (or almost-daily) symptoms that are irritating and not easily tolerated. Treatment is not available, or is of little value, or gives only short remission.
Noticeable loss of energy, leading to loss of efficiency and avoidance of some tasks previously easily performed.
Decreased life expectancy. Five year survival less than 75% of normal.

Applying these criteria to the Applicant's evidence, and giving consideration to the assessment of Dr Baz and Dr Burns, the Tribunal finds that the assessment of Dr Baz more accurately fits within the criteria in the Table. Therefore the correct assessment of the Applicant's sleep apnoea is 5 impairment points.
Both Dr Baz and Dr Burns note that in respect of the Applicant's bilateral sensorineural hearing loss his binaural hearing loss is 4.5% based on the audiogram of 11 June 1996. Curiously, Dr Burns then assessed 2 impairment points and Dr Baz assessed 3 impairment points. It is not clear how these assessments were undertaken. Having factored both these assessments into the calculation of the combined impairment assessment and then to the calculation of the percentage General Rate pension, the Tribunal notes that whether 2 or 3 impairment points are used for the assessment of bilateral sensorineural hearing loss, the composite calculations are the same. Therefore, the Tribunal will not attempt to resolve this discrepancy.
In relation to the Applicant's war-caused PTSD with alcohol abuse, four professional assessments have been provided, viz. those of Dr Burns and Dr Baz, being occupational physicians, and those of Dr McGrath and Dr Schultz, being psychiatrists. All these reports were provided on the basis of medico-legal assessments. With the exception of Dr Burns, all the other doctors had access to a transcript of the Applicant's evidence to the Tribunal and that of his wife, in coming to their assessments. However, Dr McGrath was not prepared to change his assessment without having a further interview with the Applicant but that was not arranged. Dr Baz considered she did not need to change her assessment, having taken into account the evidence in the transcript. Dr Schultz provided a second itemised assessment following consideration of the transcript evidence. The Tribunal also notes an error in Dr Schultz's second calculation that actually totalled 16 rather than 18 as he stated. Moreover, there were many differences, both positive and negative, in the individual components from his first to his second assessment.
Dr Baz provided a total of 23 impairment points, Dr McGrath noted an assessment of 28 impairment points, but when the Tribunal checked his calculations using the formula in Chapter 4, Dr McGrath's impairment rating should be 26. Dr Burns also made an error in his calculations, assessing 21 instead of 23 impairment points.
The Tribunal notes that the correct calculation is based on the score for Table 4.1 and 4.2, plus the three highest scores for the remainder of the Tables in Chapter 4. Because of the considerable variability in assessment from one doctor to another, their assessments are set out in the following table, together with the Tribunal's own assessment, based on a consideration of the evidence of each of the doctors as well as the oral evidence of the Applicant and his wife.

PTSD – IMPAIRMENT RATINGS
Table Dr Baz Dr McGrath Dr Shultz Dr Burns Tribunal
* **
6 6 4 3 6 6
6 2 6 3 6 6
1 6 2 2 1 5
5 0 2 5 5
1 2 1 2 1 1
3 6 3 3 3 6
3 6 2 0 3 6
2 2 2 5 2 2
Impairment rating using table 23 26 17 16 23 29
* Assessment before transcript
**Assessment after transcript
The Tribunal notes in the Revocation Instrument in GARP-V that, in effect, if, when reviewing an assessment of a Veteran's pension, one arrives at a General Rate assessment lower than the rate at which the Veteran is currently assessed, then the current assessment is not disturbed. However, the current assessment is changed if there is evidence that the condition/s assessed have improved since the previous assessment, or that the previous assessment would not have been made but for a false statement or misrepresentation. The Tribunal is also of the view that its jurisdiction to assess the rate of pension payable to the Applicant arises only as a result of his successful claims relating to sleep apnoea and osteoarthrosis of the left knee. As none of the circumstances outlined above apply in the Applicant's case, the current assessment of 70 percent is not liable to be reduced by this present review. Nor is it the Respondent's submission that the Applicant's General Rate assessment should be lower than 70 percent.
We now return to the task of assessment. The Tribunal finds that the assessment of the Applicant's General Rate pension is 70 percent. This finding is based on a consideration of the impairment rating for PTSD with alcohol abuse calculated by the Tribunal (based on our understanding of the best evidence available), the impairment ratings for the other accepted disabilities (based on the findings in these reasons for decision) and the lifestyle rating of 3. Moreover, if any of the PTSD impairment ratings provided by the various doctors were used instead of that calculated by the Tribunal, the General Rate assessment is either 60 or 70 percent. Taking into account that the pension should not be reduced, the Tribunal is reasonably satisfied that the Applicant's General Rate pension should continue to be paid at 70 percent of the General Rate, with effect on and from 16 January 1996.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  7 December 1999, 6 November 2000
Date of Decision  19 March 2001
Counsel for the Applicant  Mr Whitelaw
Solicitor for the Applicant  Dibbs Barker Gosling
Representative for the Respondent        Ms Doggett, Department of Veterans' Afffairs