Coulson and Repatriation Commission - [2001] AATA 525

DECISION AND REASONS FOR DECISION [2001] AATA 525

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/57

VETERANS' APPEALS DIVISION       )
           Re      GARY JAMES COULSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Assoc. Professor B W Davis A.M. (Part-time Member)

Date8 June 2001
PlaceHobart

Decision 1. The Tribunal affirms the decision of the Veterans' Review Board dated 11 March 1999 (T98/0015) that psychoactive substance abuse was not war-caused.

2. The Tribunal sets aside the decision of the Veterans' Review Board dated 11 March 1999 (T98/0054) and in substitution therefor a decision that the applicant should be paid a disability pension at the special rate with effect from 11 January 1997.

[Sgd Assoc Prof B W Davis]
Part-Time Member
CATCHWORDS
Veterans' Appeals – disability pension – general rate – special rate – Veterans' Review Board – impairment – lifestyle – GARP (Guide to Assessment of Rates of Veterans' Pensions)
Legislation and Principles
Veterans' Entitlements Act 1986
Guide to Assessment of Rates of Veterans' Pension, Fifth Edition, 1998.

REASONS FOR DECISION

8 June 2001 Assoc. Professor B W Davis A.M. (Part-time Member)

The Application

The applicant, Gary Games Coulson, sought review of a decision made by the Veterans' Review Board on 11 March 1999, consenting to the withdrawal of the condition asthma from the review; affirming the decision of the Repatriation Commission dated 18 July 1997 regarding claimed hypertension, psychoactive substance abuse and asthma; and affirming the decision of the Repatriation Commission dated 10 March 1998 which assessed pension at 90% of the general rate.
Background
Mr. Coulson suffers from a number of medical conditions, some of which have been determined as war-related, such as chronic airflow limitation, reflux oesophagitis, and others such as hypertension, psychoactive substance abuse and asthma which are disputed as war-caused.
Gary James Coulson ("the veteran") was born on 7 March 1947, entered the Navy at the age of 15 years, on 7 July 1962, and served until 14 December 1973. He saw service in Vietnam as follows:-
27 March 1968 to 26 April 1968
13 November 1968 to 28 November 1968
8 February 1969 to 25 February 1969
8 May 1969 to 30 May 1969

There was also a period of defence service –

7 December 1973 to 14 December 1973.

The aggregate of the applicant's operational service is estimated as between 4 and 6 months.

On 11 April 1997, the veteran lodged a claim for disability pension on grounds of three disabilities, which he described as "blood pressure, alcohol abuse, emphysema". A delegate of the Repatriation Commission, on 18 July 1997, determined that the veteran was suffering hypertension, psychoactive substance abuse, chronic airflow limitation and asthma and that none of the conditions was war-caused. Consequently, disability pension for each of the conditions was refused.
Following an application for review, dated 3 February 1998, the veteran's chronic airflow limitation was accepted as being war-caused, with effect from 11 January 1997. That decision was dated 13 February 1998.
The only other previously accepted disability was reflux-oesophagitis and on 10 march 1998, the Repatriation Commission assessed the veteran's disability pension at 90% of the general rate with effect from 11 January 1997.
On 12 March 1998, the veteran lodged an application for a review of that decision and the Veteran's Review Board on 11 March 1999 reaffirmed the decision. The applicant then sought further review by the Administrative Appeals Tribunal.
Legislation
Section 6c of the Veterans' Entitlements Act 1986 ("the Act") refers to operational service post World War II. Schedule 2 sets out the various operational areas and includes Vietnam (southern zone) during a period from and including 31 July 1962 to 11 January 1973.
In determining whether a condition claimed by a veteran is war-caused, where there is operational service, s.120(1) and 120(3) of the Act sets out the standard of proof to be applied. There is a requirement for the determining authority to find the veteran's condition is war-caused, unless it is satisfied beyond reasonable doubt, there is no sufficient ground for so finding. The authority must first consider, under s.120(3) whether on the material before it, there is raised a reasonable hypothesis to connect the conditions suffered by the veteran with his operational service.
The method of assessing any incapacity or impairment is set out in the "Guide to the Assessment of Rates of Veterans' Pensions" (the Guide, commonly known as GARP) which is approved under s.25 of the Act.
The assessment method in the Guide involves the calculation of a combined impairment rating and the determination of a lifestyle rating, which are then used to determine a degree of incapacity. Unless the Extreme Disablement Adjustment or an earnings – related rate of pension is payable, the degree of incapacity becomes the percentage of the General Rate of pension which is payable. Section 24 of the Act sets out provisions relating to special rates of pension where applicable.
Facts and Contentions
The applicant claimed that his drinking habit was aggravated by war service and that given his accepted disabilities he should be paid a pension of 100% of the General Rate with effect from 11 January 1997. He further claimed that he was entitled to a Special Rate of pension under s.24(1) of the Act, given his age, degree of incapacity and inability to undertake remunerative work.
The respondent refutes the claim that psychoactive substance abuse arose from war-service and contends that the veteran has been correctly assessed at a pension of 90% of the General Rate.
Evidence
At the Tribunal hearing on 17 January 2001, the applicant was represented by Mr R Webster and the respondent by Mr M Castle. In his opening statement, Mr. Webster indicated that no submission would be made in respect of hypertension and the key issues were whether the psychoactive substance abuse was due to Vietnam service and what rate of pension should apply, given this and the accepted disabilities of chronic airflow limitation and oesophagitis.
Mr. Webster also drew attention to the fact that Mr. Coulson had lived and worked at the Empire Hotel, North Hobart, for a period of some 14 years after his discharge from the Navy. This casual work had ceased because of a medical condition subsequently diagnosed as peripheral vascular disease.
Mr. Coulson had lodged a further claim with the Repatriation Commission on 12 January 2000, relating to hearing loss with tinnitus and peripheral vascular disease. On 9 March 2000 the respondent accepted both conditions as service-related with effect from 12 October 1999. That decision has not been appealed, pending determination in the current case as to whether a special rate of pension was applicable.
Mr. Gary James Coulson was then called as witness and gave evidence on a range of matters, including his drinking habits, medical condition and work experience at the Empire Hotel, which had commenced around 1982, after his wife had left for Sydney in 1980.
He claimed to have been a light drinker during his initial service in the Navy, but this had become much heavier as a result of service in Vietnam, where he felt fear and apprehension. When he returned to Australia there would be "binge drinking" to excess with friends, both as a "club thing" and to alleviate the stress he felt. After leaving the Navy he was forced to give up his drinking habits when cirrhosis of the liver was diagnosed.
Mr. Coulson stated that he experienced difficulty in obtaining employment other than on a casual basis when he left the Navy in 1973, because of his medical discharge. After his wife left, he moved into the Empire Hotel in North Hobart as a casual bar-worker and "boots", carrying out a variety of duties, but having to avoid heavy work. He stated that he paid board of approximately $60 to $70 per week, had a room and meals and could drink as much as he liked, but did not really regard himself as paying rent. It was only a casual agreement between the publican and himself. He eventually left in the mid 1990's and moved into his own home, having undergone a range of medical problems. He had been on medication for a decade or more and remained in poor health, unable to work.
Under cross-examination Mr. Coulson stated that he commenced drinking in 1966, consuming the equivalent of two stubbies per day when at sea, but admitted in response to an alcohol questionnaire from the Repatriation Commission he might consume up to 25 ten-ounce beers when "binge-drinking" with friends. He claimed to have experienced fear and apprehension in Vietnam, but admitted that apart from hearing firing on shore, had not been in any combat situation or witnessed any deaths or injuries at that time.
He was also questioned about apparent inconsistencies between statements made to the Repatriation Commission and evidence given to the Tribunal. When questioned by Mr. Castle about payment for board and lodgings, he stated he paid it initially for less than a month, but in earlier evidence and in documents submitted to the Repatriation Commission had claimed he paid rent of $65 per week for some seven years up to September 1989. In response to another query from the Veterans' Review Board he claimed he had been unable to work for at least ten years, when in reality he was a casual worker at the Empire Hotel for nearly fourteen years.
At this stage of proceedings, Mr. Webster as counsel for the applicant sought an adjournment of the case on grounds he needed to call Mr. Roger Stanley as witness, having been proprietor of the Empire Hotel at the time of Mr. Coulson's casual employment. There was no objection by the respondent, so the hearing was adjourned sine die, subsequently resuming on 3 May 2001.
Mr. Webster reported that he had been unable to obtain Mr. Roger Stanley as witness, but as an alternative had Mr. John Sells, who had been employed at the Empire Hotel for some twenty years, including the time Mr. Coulson was working there. Mr. Sells was then sworn and gave evidence, stating that Mr. Coulson had assisted with cleaning and bar work, but not heavy duties. Mr. Coulson was not paid a wage as far as he knew, but received board and lodging in return for duties. He could not recollect any money coming in as rent, but regulars paid an average board of around $60 per week.
Mr. Sells withdrew and Mr. Coulson was sworn, explaining under cross-examination why the medical condition of his legs necessitated giving up casual work.
Under re-examination, Mr. Coulson claimed that he did not get paid for his work at the Empire Hotel, but could take money if he needed it, sometimes paying it back and other times not being required to do so. He stated that he did not fill in tax returns until he received a pension. He did not regard the Hotel as supplying a benefit, he paid board and lodgings from time to time, but that went into the proprietor's back pocket.
In closing, Mr. Webster said there were a number of options before the Tribunal, given that peripheral vascular disease and tinnitus had now been recognised as war-related and various medical conditions applied at different dates. Primarily, there was the issue of a 100 per cent General rate, but also whether a Special rate might apply, if we assume the applicant was given free board and lodgings in return for some types of service. He was able to identify AAT decisions recognising this could be regarded as remunerative work.
Mr. Castle stated that although there was a temporary increase in Mr. Coulson's alcohol consumption during the period of Vietnam service, there was no incapacity at that stage of his life. In respect of a Special rate, there was ambiguity about the nature, length and circumstances of this particular applicant's relationship with the Empire Hotel.
Analysis
Given the lack of clarity of some evidence in this case, the Tribunal is forced to make judgments about the reliability, consistency and weight of various factors involved. Insofar as psychoactive substance abuse concerned, it is clear the applicant had a drinking pattern, if not alcohol reliance before, during and after Vietnam service. While his claim of fear and apprehension during Vietnam service may be correct, it is equally plausible that his "binge drinking" could have resulted from peer group pressure in socialising. Mr. Coulson himself made reference to onshore parties where drinking to excess occurred, with him participating. No evidence was produced to indicate Mr. Coulson suffered incapacity during his Vietnam service and there does not appear to be any evidence he sought medical or other advice about stress or drinking habits during service. In short, there is little to support the contention that psychoactive substance abuse was war-caused.
With respect to Mr. Coulson's period as "boots" and bar assistant at the Empire Hotel, there are a number of ambiguities and inconsistencies. While it appears certain he lived and worked at the hotel for many years, the form, extent and duration of payments to him and by him remains unclear. Since he received board and lodgings in return for services, this should be regarded as remunerative work. There is a precedent for this interpretation, see Clare and Repatriation Commission (1989) 18 ALD 474, where various other authorities are listed.
The Veterans' Review Board decision T98/0054 of 11 March 1999 affirmed an earlier decision of the Repatriation Commission made on 10 March 1998 to award Mr. Coulson a disability pension of 90% of the general rate with effect from 11 January 1997. This decision was based upon an assumption (and his claim) that he had not worked for 17 years, and hence was not subject to an earnings-related pension under s.23 or 24 of the Act. It is now clear, on the basis of evidence before the Tribunal, this decision must be set aside and another substituted, based upon changed circumstances.
The initial assessment of the 90% rate was based upon the following impairment ratings:
Chronic airflow limitation  45 points
Reflux oesophagitis  10 points
  Combined     50 points

Lifestyle Rating 4
The new circumstances are as follows:

(a)Acceptance by the respondent of a further claim for peripheral vascular disease and tinnitus as service-related, with effect from 12 October 1999.
(b)Evidence of remunerative service for a period of some 14 years between 1982 and the mid 1990's, but with some ambiguities of detail.

This now raises the issue of whether the applicant is entitled to a special rate of pension and on what date such a payment might take effect.

The Tribunal finds that the applicant is eligible for the special rate of pension under s.24(1) of the Act, having made the necessary claim; not having turned 65 at the time; he has a degree of incapacity of at least 70% and he is now incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Indeed it appears unlikely he could engage in remunerative work at all.
Decision
(a) The decision T98/0015 of the Veterans' Review Board dated 11 March 1999 that psycho-active substance abuse was not war-caused is affirmed.
(b) The decision T98/0054 of the Veterans' Review Board dated 11 March 1999 is set aside and in substitution therefor a decision that Mr. Gary James Coulson should be paid a disability pension at the special rate from 11 January 1997.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Assoc. Professor B W Davis A.M. (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  17 January 2001 and 3 May 2001
Date of Decision  8 June 2001
Solicitor for the Applicant         Mr R Webster
Solicitor for the Respondent    Mr M Castle (Dept Veterans' Affairs)