de Waard and Repatriation Commission (Veterans' entitlements) - [2021] AATA 316

de Waard and Repatriation Commission (Veterans' entitlements) [2021] AATA 316 (25 February 2021)
Division:VETERANS' APPEALS DIVISION
File Number:2017/3717
Re:Cornelius de Waard
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 February 2021
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the special rate disability pension from 6 September 2019.
....................[SGD].................................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – special rate pension – relevant assessment period – incapacity from service-caused conditions – prevented from being able to continue to undertake remunerative work that he was undertaking – alone test – loss of salary or wages – date of effect of decision where application for review was made outside the 3 month window – decision under review set aside and new decision substituted
LEGISLATION
Repatriation Act 1920 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Banovich v Repatriation Commission (1986) 6AAR 113
Boxsell and Repatriation Commission [2007] AATA 1215
Clements and Repatriation Commission [1997] AATA 291
Flentjar v Repatriation Commission (1997) 48 ALD 1
Grundman v Repatriation Commission [2001] FCA 892
Morris and Repatriation Commission (Veterans' entitlements) [2017] AATA 2165
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Maloney [1993] FCA 212
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins (2015) 228 FCR 573
Richmond v Repatriation Commission[2014] FCA 272
Roberts and Repatriation Commission [1992] AATA 76; (1992) 15 AAR 192; (1992) 26 ALD 611
Rose v Repatriation Commission [2001] FCA 245
Smith v Repatriation Commission [2014] FCAFC
Wright and Repatriation Commission (2005) 144 FCR 302
REASONS FOR DECISION
Member D Mitchell
25 February 2021
INTRODUCTION

Mr Cornelius de Waard (the Veteran) made an application for an increase in disability pension dated 10 November 2014. The Respondent received that application on 11 November 2014.[1]
[1] Exhibit 1, T Documents, T53, pages 168-178, Application for Increase in Disability Pension for Previously Accepted Disabilities.
On 14 January 2015, the Respondent issued a decision increasing the Veteran’s disability pension from 50% to 60% of the General Rate, with effect from 11 November 2014.[2]
[2] Exhibit 1, T Documents, T63, pages 214-221, Decision – Increasing the Applicant’s Disability Pension to 60% of the General Rate.
The Veteran sought review of that decision.[3]
[3] Exhibit 1, T Documents, T65, page 223, Application for Review of Decision dated 14 January 2015.
The Veteran made a claim for disability in relation to clear cell renal cancer on 27 January 2016.[4]
[4] Exhibit 1, T Documents, T90, pages 299-314, Claim for Disability Pension (Renal Cancer).
On 16 March 2016, the Respondent accepted the Veteran’s claim for adenocarcinoma of the right kidney as being service related under the Veterans’ Entitlement Act 1986 (Cth) (the Act) and deferred the assessment of the Veteran’s rate of disability pension.[5]
[5] Exhibit 1, T Documents, T95, pages 328-333, Decision: Accepting the Applicant’s “Adenocarcinoma of the Right Kidney” as service Related under the Act and Deferring the Assessment of the Applicant’s Disability Pension.
On 14 May 2016, the Respondent decided to increase the Veteran’s disability pension to 100% of the General Rate with effect from 4 October 2015.[6]
[6] Exhibit 1, T Documents, T104, pages 359-366, Decision Increasing the Applicant’s Disability Pension to 100% of the General Rate.
On 27 February 2017, the Veterans’ Review Board (VRB) issued a reviewable decision affirming the Respondent’s decision of 14 January 2015.[7]
[7] Exhibit 1, T Documents, T116, pages 519-527, Reviewable Decision: Finding the Applicant Eligible for Payment of Disability Pension at 100% of the General Rate.
On 19 June 2017, the Veteran made an Application for Review of a Decision together with an Application for an Extension of Time to Lodge an Application for Review of a Decision to the Tribunal seeking review of the VRB decision.[8]
[8] Exhibit 1, T Documents, T3, page 4, Application for Extension of Time to Lodge an Application for Review and Application for Review of Decision.
On 3 July 2017, the Tribunal granted the Veteran’s application for an Extension of Time to Lodge an Application for Review of a Decision.[9]
[9] Exhibit 1, T Documents, T2, page 3, AAT Extension of Time Order.
BACKGROUND
The Veteran joined the Royal Australian Navy on 3 March 1968 as a Midshipman. The Veteran outlined his enlistment history as follows:[10]
[10] Exhibit 4, Statement of the Applicant dated 10 August 2018, pages 2-3, paragraphs 4-12.
4.I joined the Royal Australian Navy on 3 March 1968 as a Midshipman. I spent two years training as a Midshipman serving on HMAS Cerberus, HMAS Watson, HMAS Nowra and on various fleet units such as HMAS Stuart, HMAS Sydney and HMAS Melbourne. At the end of my period of training, I had to appear before the Fleet Board which sat on board HMAS Melbourne to tender my qualifications to be given a full Commission.
5. I passed the requirements of the Fleet Board which were rigorous. I was commissioned as an Acting Sub- Lieutenant. After 12 months, I achieved the full rank of Sub-Lieutenant. I was posted to HMAS Perth which was a Guided Missile Destroyer with a crew in excess of 300 about to be deployed to Vietnam.
6.As a very junior Officer on HMAS Perth, my duties were very much to be the dogsbody. It was still a training berth for me learning seamanship skills such as watchkeeping. HMAS Perth was on the gun line off Vietnamese waters. My duties included gunnery duties, plotting coordinates and calculating bearings to ensure the greatest accuracy of the gunfire support provided by HMAS Perth. It was certainly a steep learning curve for me as these duties were performed under the pressure of real-time active service. I remained on HMAS Perth until February 1971.
7.My next posting was to HMAS Penguin and then HMAS Brisbane for short periods of time. Then back on HMAS Perth for a further 4 months.
8. In March 1971, I was posted to HMAS Queensborough in Sydney which was a training billet and allowed me to work towards the completion of a full bridge watchkeeping certificate. I then spent six months in HMAS Barbette, as it's First Lieutenant (2 I.C.) a patrol boat in Cairns. I was then posted to HMAS Sydney from August 1972 until July 1973 during which time I participated in three trips to Vung Tau, Vietnam. My duties in Sydney were Amphibious Warfare Officer and assistant Cargo Officer.
9. I served in HMAS Torrens between July 1973 and March 1974 as assistant Anti Submarine Warfare Officer.
10. In March 1974, I was posted to HMAS Cerberus as a training and divisional officer. My last posting was as the Commanding Officer of HMAS Betano which was a "Landing Craft Heavy".
11. I discharged from the Australian Navy in August 1976. I remained In the Naval Reserves.
12. During my naval career, I received a naval board commendation for my role in a sea rescue. A copy is attached to this Statement.
After discharging from the Navy, the Veteran found work in the Australian maritime industry whilst remaining active in the Naval Reserves. In 1997, the Veteran upgraded his maritime skills by obtaining an “Advanced Diploma of Applied Science – Shipmaster” from the Australian Maritime College.[11]
[11] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraphs 8-9.
Subsequently, the Veteran found employment as a Ship Master or Marine Pilot on many foreign oceangoing vessels.[12]
[12] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraph 10.
The Veteran’s last position as a Ship’s Master terminated in May 2014 at the end of his contract.[13]
[13] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraph 11.
The Veteran underwent his annual compulsory medical examination which is required to maintain his employment as a certified seafarer on 20 October 2014.[14] The examination was conducted by Dr John Harland who had previously certified the Veteran as fit, with no restrictions on 15 November 2012[15] and 25 November 2013.[16] The medical examination report of 20 October 2014 was summarised by the Respondent as follows:[17]
31.The Applicant was examined by Dr Harland on 20 October 2014 at which time a two part medical examination report was completed, the first part, Part A completed by the Applicant and the second part, Part B completed by Dr Harland. Within Part A of the medical certificate dated 20 October 2014, in response to the question posed, "have you now, or have you previously had any of the following", the Applicant indicated "yes" noting "high levels of anxiety and very depressed". (Document T49)
32.In Part B of the medical report of 20 October 2014 completed by Dr Harland, the Applicant's BMI was reported to be 37.2. Dr Harland also indicated there to be a defect in the Applicant's hearing, his noting "high frequency hearing loss". In response to the question posed "is there evidence of mental or nervous disorder including psychosis", Dr Harland responded "yes", detailing "high anxiety and depression". In response to the question posed "is there evidence suggestive of anxiety, panic disorder or personality disorder", Dr Harland's response was also "yes". (Document T49)
33.In a medical certificate dated 20 October 2014, Dr Harland reported the Applicant to be unfit for work on account of "acute anxiety with depression and high frequency hearing loss". In the medical certificate of 20 October 2014, Dr Harland indicated the Applicant to not use aids for hearing. (Document T51)
[14]    Exhibit 1, T Documents, T47, page 150, Medical Referral of Medibank Health Solutions to Dr John Harland,      General Practitioner.
[15]    Exhibit 1, T Documents, T112, page 474, Certificate of Medical Fitness dated 15 November 2012.
[16]    Exhibit 1, T Documents, T112, page 472, Certificate of Medical Fitness dated 25 November 2013.
[17]    Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 5, paragraph 31-33
The Veteran has the following disabilities accepted as service-related under the Act:[18]
·Ischaemic heart disease (accepted from 29 July 2009);
·Sensorineural hearing loss (accepted from 29 July 2009);
·Tinnitus (accepted from 29 July 2009); and
·Adenocarcinoma of the right kidney (accepted from 4 October 2015).
[18] Exhibit 1, T Documents, T115, pages 509-518, Veteran Community Details Report.
The Veteran had sought to have anxiety neurosis and adjustment disorder with anxiety disabilities accepted. The Respondent determined these disabilities were not service related.[19]
[19] Exhibit 1, T Documents, T11, pages 45-49, Decision finding the Applicant’s “Hearing Loss” and “Post-Traumatic Stress Disorder” Conditions to not be Service Related under the Act; T39, pages 127-138, Decision accepting the Applicant’s “Sensorineural Hearing Loss”, “Tinnitus” and “Ischaemic Heart Disease” Conditions as Service Related under the Act; finding the Applicant’s “Adjustment Disorder with Anxiety (in Remission)” to not be Service Related under the Act; and finding the Applicant’s Entitled to Payment of a Disability Pension at 50% of the General Rate; T115, pages 509-518, Veteran Community Details Report.
The medical reports also document the Veteran having attended treatment on various occasion for a number of non-accepted disabilities, including hypertension, osteoarthritis of the left ankle and adenocarcinoma of the left kidney (reports of Dr Hollett, renal physician, Dr Houston, orthopaedic surgeon and summons medical records).[20]
[20] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6.
The Veteran made an application for an increase of his disability pension which was received by the Respondent on 11 November 2014. At the time of making the application the Veteran was 64 years old.[21]
[21] Exhibit 1, T Documents, T53, pages 168-178, Application for Increase in Disability Pension for Previously Accepted Disabilities.
In the application the Veteran provided:[22]
·His last employment was working as a permanent casual ship master – MV Cornelis Lely for Van Oord Pty Ltd from 2009 to 2014.
·He ceased work on 16 July 2014 with the reason being “end of contract anticipating further employment”.
·In relation to his ability to work:
“On completion of last contract I took a break and then applied for further work with AOS and IMS, both marine employers. As a ships master/deck officer over 55 a yearly AMSA medical is pre-requisite part of my resume to be submitted requires proof of medical fitness, I submitted to Dr Harland, AMSA MO, who classed me as unfit due to high frequency hearing loss. I had stated to him that I could no longer hear instrument and navigation alarms all of which are of high frequency nature. As a senior master with 46 years of seagoing experience I fully anticipated being able to work for another 5 years. It is common for my peers to work through to their fifties, either as ship's master or marine pilot. It was a shock to me to have failed by AMSA medical on the grounds of high frequency hearing loss. There are no other disabilities contributing to me being classed unfit for sea service as deck officer.”
[22] Exhibit 1, T Documents, T53, pages 168-178, Application for Increase in Disability Pension for Previously Accepted Disabilities.
In report dated 10 November 2014, Dr Bradley Ng, consultant psychiatrist provided:[23]
It took me some time to remember [the Veteran] but I do recall having met him back in 2010 for an independent medical examination on behalf of DVA. At that time I diagnosed him with a mild Adjustment Disorder that certainly did not affect his capacity for work. It clearly stated in my report that his Adjustment Disorder did not cause him any incapacity for work. Hence when he came today it was rather surprising that he had been recently retired as a ship master due ongoing hearing impairment and tinnitus and also 'acute anxiety and depression'. [The Veteran] accepted that he could no longer work in shipping and was now applying for a DVA pension based on the claimed condition of hearing loss and tinnitus. He wanted a review of his mental state and I proceeded to do a standard psychiatric assessment.
…..
On mental state examination, [the Veteran] presented as a lovely 64 year old man who was casually dressed and of good grooming and hygiene. There were no speech or motor abnormalities. His mood was euthymic and his affect was broad reactive and congruent with his mood. There was no formal thought disorder or evidence of psychosis. There were no delusions or hallucinations. There were no suicidal or homicidal ideas. His cognition was grossly intact. His insight was good and his judgment was fair.
On today's cross sectional assessment, there was no evidence on an ongoing psychiatric disorder. I have noted previously on a longitudinal basis that [the Veteran] may have suffered from a mild Adjustment Disorder that did not affect his capacity to work. I am puzzled as to how the diagnosis of an Acute Anxiety and Depressive Disorder was reached. However in my opinion there was no evidence of such a psychiatric disorder earlier this year on history or on today's assessment. Indeed [the Veteran] appears to be currently quite mentally healthy.
I agree with your referral letter and I appreciate that you have a longitudinal view of [the Veteran]. The idea that he may have had a brief Adjustment Disorder is correct. He does not have a serious enduring mental disorder and certainly one that would not have stopped him from working.
I have made no plans to see [the Veteran] again. From a psychiatric point of view he is well and I hope that this letter is reassuring in that regard. I have also copied this letter to his DVA advocate, which he consented.
[23] Exhibit 1, T Documents, T109, pages 462-463, Report of Dr Bradley Ng, Consultant Psychiatrist dated 10 November 2017.
In an audiology report dated 25 November 2014, Ms Emily Stitt, audiologist stated:[24]
…….
Attached is [the Veteran’s] audiogram which shows mild sloping to moderately severe sensorineural hearing loss above 2000Hz in both ears.
[The Veteran] dose report experiencing tinnitus but is tolerable for most of the time.
The results indicate that [the Veteran] may benefit from the use of hearing aids .
…….
[24] Exhibit 1, T Documents, T57, pages 194-195, Report of Emily Stitt, Audiologist.
On 27 November 2014, Dr Bernard Gerber, general practitioner completed a Department of Veterans’ Affairs Work Ability Report.[25] In the Work Ability Report, Dr Gerber provided:[26]
[25] Exhibit 1, T Documents, T61, pages 199-206, Work Ability Report of Dr Gerber, General Practitioner.
[26] Exhibit 1, T Documents, T61, page 200, Work Ability Report of Dr Gerber, General practitioner.
Major Diagnosis/es and Duration
1.Coronary Artery Disease since 2003.
2.Bilateral Asynchronous Kidney Cancer 2002 and 2008 (Right nephrectomy 2002, partial left nephrectomy 2008)
3.High frequency hearing loss – unable to be restored to a level satisfactory to make him fit for his normal employment diagnosed October 2014.
Minor diagnosis/es and duration
1.Hypertension – 11 years.
2.Renal Impairment – since 2008.
When asked to provide any comments relevant to the Veteran’s rehabilitation and retraining, Dr Gerber provided:[27]
Has worked for 47 years in maritime industry, the last 20 as a ship’s master including as a maritime pilot (high level task).
Will never be able to do this again as has been found unfit on the basis of high frequency hearing loss which cannot be corrected to a level making him fit to pass the AMSA medical examination.
[27] Exhibit 1, T Documents, T61, page 203, Work Ability Report of Dr Gerber, General Practitioner.
On 14 January 2015, the Respondent issued a decision increasing the Veteran’s disability pension from 50% to 60% of the General Rate, with effect from 11 November 2014.[28]
[28] Exhibit 1, T Documents, T63, pages 214-221, Decision: Increasing the Applicant’s Disability Pension to 60% of the General Rate
The Veteran sought review of that decision by the VRB.[29]
[29] Exhibit 1, T Documents, T65, page 223, Application for Review of Decision dated 14 January 2015.
On 8 September 2015, the Veteran made a claim seeking to have a left ankle/foot condition accepted as a service-related disability.[30] In support of this claim the Veteran provided a statement detailing the difficulty he was having with pain and mobility associated with his left ankle and foot.[31]
[30] Exhibit 1, T Documents, T78, pages 258-268, Claim for Disability Pension (Left Ankle).
[31] Exhibit 1, T Documents, T76, pages 252-256, Letter to the Respondent from the Applicant (with Annexures).
In a Combined Impairment Assessment dated 9 December 2014, Dr Carlee Van Dyk, medical adviser detailed:[32]
Audiogram
Date of audiogram: 25/11/2014
Veteran's age at date of audiogram: 66 years
Accepted hearing loss is equivalent to: Bilateral Senori-Neural Deafness
The following calculations are based on air conduction alone for the following reason: An ENT specialist or an audiologist has reported that no conductive hearing loss is present.
……
[32] Exhibit 1, T Documents, T62, pages 207-213, Combined Impairment Assessment: Dr C Van Dyk, Medical Advisor.
In a report dated 9 December 2015, Dr Anthony Houston, orthopaedic surgeon provided the following diagnosis:[33]
1.Diagnosis
a.Left talonavicular joint degeneration with a dorsal ossicle which is minimally tender.
b.Pain the left sinus tarsi region, continuing investigation.
c.Bilateral hallux MTP joint hemiarthroplasties with persistent pain and stiffness.
[33] Exhibit 1, T Documents, T84, page 289, Medical report of Dr Anthony Houston, Orthopaedic Surgeon.

Dr Houston opined that the Veteran’s “lifestyle is impaired due to pain in the left hindfoot region, which limits his walking. This impacts on his general lifestyle including activities of daily living and recreation including holidays. He reports having pain walking more than 100 m.”[34]
[34] Exhibit 1, T Documents, T84, page 290, Medical Report of Dr Anthony Houston, Orthopaedic Surgeon.
On 29 December 2015, the Veteran withdrew his claim regarding his left ankle and foot disability.[35]
[35] Exhibit 1, T Documents, T85, page 293, Letter to the Respondent from the Applicant.
On 27 January 2016, the Veteran made a claim seeking to have a clear cell renal cancer disability accepted as a service-related.[36]
[36] Exhibit 1, T Documents, T90, pages 299-314, Claim for Disability Pension (Renal Cancer).
On 16 March 2016, the Respondent accepted the Veteran’s claim for adenocarcinoma of the right kidney as being service related under the Act and deferred the assessment of the Veteran’s rate of disability pension.[37]
[37] Exhibit 1, T Documents, T95, pages 328-333, Decision: Accepting the Applicant’s “Adenocarcinoma of the Right Kidney” as Service Related under the Act and Deferring the Assessment of the Applicant’s Disability Pension.
In an audiology report dated 6 April 2016, Ms Lindy Hilton, audiometrist stated:[38]
Thank you for referring [the Veteran] to Australian Hearing for audiological assessment.
Attached is [the Veteran’s] audiogram which shows mild sloping to severe sensorineural hearing loss in the left and right ears.
[The Veteran] reports experiencing severe tinnitus of similar severity to that requiring a masking device and present every day.
The results also indicate that [the Veteran] may benefit from the use of hearing aids. [The Veteran] was wearing hearing aids today
.....
[38] Exhibit 1, T Documents, T106, page 395, Report of Ms Lindy Hilton, Audiometrist.
In a lifestyle questionnaire completed on 11 April 2016, the Veteran provided:[39]
I would like to keep on working. However I have [n]ot done any work other than that of deck officer. Due to my hearing, tinnitus, ISC and renal condition which requires constant and regular monitoring I am no longer able to continue my seagoing career. At my level of expertise it is normal to continue until in the 70’ties. My forced medical retirement has robbed [m]e of at least 5 years of work.
[39] Exhibit 1, T Documents, T108, page 436, Applicant’s Lifestyle Questionnaire.
In completing a Department of Veterans’ Affairs Medical Impairment Assessment form, dated 11 April 2016, Dr Gerber provided in relation to the Veteran’s adenocarcinoma of the right kidney:[40]
[40] Exhibit 1, T Documents, T100, page 348, Medical Impairment Assessment: Malignant Condition, Dr Bradley Gerber, General Practitioner and T101, page 349, Medical Impairment Assessment: Renal Condition, Dr Bradley Gerber, General Practitioner.
…..
Gets “Pulling Pain” on movement in left flank.
….
Symptoms are due to renal cell carcinoma left kidney.
….
Symptoms also due to cell cancer left kidney.
….
Right kidney cancer responsible for 2/3 of symptoms left kidney 1/3.
….
On 14 May 2016, the Respondent decided to increase the Veteran’s disability pension to 100% of the General Rate with effect from 4 October 2015.[41]
[41] Exhibit 1, T Documents, T104 pages 359-366, Decision: Increasing the Applicant’s disability Pension to 100% of the General Rate and T106, pages 374-408, Letter to the Applicant from the VRB (with Annexures).
On 13 June 2016, via a letter with attachments sent by his Advocate the Veteran sought review of that decision.[42] The Veteran’s Advocate provided the following:[43]
[42] Exhibit 1, T Documents, T105, pages 367-373, Letter to the Respondent from the Applicant’s Representative enclosing Applicant’s Submissions.
[43] Exhibit 1, T Documents, T105, pages 369-370 and 372, Letter to the Respondent from the Applicant’s Representative enclosing Applicant’s Submissions.
[The Veteran] would still be working but is unable to do so purely related to his high frequency hearing loss. This has been accepted as a service related disability since 29/07/09
·90% of marine officers are employed on a contractual basis. (Exceptions would be Harbour Pilots or any government employees)
·July 2014 was the end of [the Veteran’s] current contract. He was made redundant with appropriate termination payments. We used this payment to cover living expense for six weeks before apply for further work.
·[The Applicant] was offered work in October 2014.
·To maintain his Master Class One license it is necessary to have a current AMSA medical clearance. This needs to be renewed on an annual basis.
·[The Applicant’s] medical would need to be renewed in November 2014 so he decided to renew it before commencing a new contract.
·He failed his medical on the grounds of his hearing loss. He is therefore no longer able to maintain his Master Class One licence.
·This hearing loss is a previously acknowledged service related medical condition.
·Taxation records demonstrate that [the Veteran] has been earning regular remuneration as a ship’s master over the last 10 years.
……..
Fact: [The Veteran] never intended to retire in October 2014
Relevant Information
…..
·Having been offered work in October 2014 he needed to renew his AMSA medical. He did not qualify for this on the grounds that his hearing did not meet the requirements due to extensive high frequency hearing loss. This meant that he could no longer maintain his Master Class 1 qualification.
·Although this can be partially corrected by appropriate hearing aids this is not an option in his professional career.
Reasons
A Ship’s Master conducts timed watches but is ultimately responsible for the safety of the vessel and crew 24 hours of every day. All alarms on a ship are audible. The loss of high frequency hearing means that [the Veteran] is unable to hear these alarms. Hearing aids do not function adequately when they are occluded, especially when lying down with your head on a pillow. Due to the 24 hour nature of his responsibility this means that he is no longer able to work professionally in his chosen profession.
On 6 October 2016, Dr Gerber reported:[44]
….
Subsequent to being declared unfit on the basis of hearing loss he was given a diagnosis of acute anxiety and depression by the AMSA examining doctor, a GP, i.e. Dr J Harland. [The Veteran] thought the diagnosis was inappropriate and saw me as his regular GP for a referral to a psychiatrist. .... Dr Bradley Ng saw and assessed [the Veteran] on 7/11/14 and found that there was no evidence of any psychiatric disorder at the time ....
... In essence, [the Veteran] is unfit to work in his usual occupation as a master mariner due to irreversible hearing loss and he does not have any psychiatric disorder. There is no other impediment to his capacity to work.
[44] Exhibit 1, T Documents, T111, page 467, Medical Report of Dr Gerber, General Practitioner.
On 27 February 2017, the VRB issued a reviewable decision in relation to the Respondent’s decision of 14 January 2015 increasing the Veteran’s rate of disability pension to 60% of the General Rate. The VRB noted that a subsequent decision had been made by the Respondent that the Veteran was eligible for payment of his disability pension at 100% of the General Rate, with effect from 4 October 2015.[45]
[45] Exhibit 1, T Documents, T116, pages 519-527, Reviewable Decision: Finding the Applicant eligible for Payment of Disability Pension at 100% of the General Rate.
The Veteran sought review of that decision by the Tribunal by way of an application for review dated 19 June 2017 together with an application for an Extension of Time to Lodge an Application for Review of a Decision.[46] The Tribunal issued and Order extending the time for the lodgement of the Veteran’s application on 3 July 2017.[47]
[46] Exhibit 1, T Documents, T3, page 4, Application for Extension of Time to Lodge an Application for Review and Application for Review of Decision.
[47] Exhibit 1, T Documents, T2, page 3, AAT Extension of Time Order.
Throughout the Tribunal process the Respondent issued a number of summons seeking medical records relating to the Veteran. The Respondent provided a summary of the parts of those documents which they considered to be relevant in their filed Statement of Facts, Issues and Contentions.[48] The Tribunal has had regard to both the summary and exhibited summonsed material.[49] Given the volume, the Tribunal will not reproduce that summary in this decision, rather reference will be given to the material raised by the Parties at Hearing and in their submissions.
[48] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 12-20, paragraphs 70-109.
[49] Exhibit 12, Summons Material: Dr Bernard Gerber, General Practitioner; Exhibit 13, Summons Material: Dr Charles Harvey, General Practitioner; and Summons Material: Dr Anthony Houston, Orthopaedic Surgeon.
LEGISLATIVE OVERVIEW
Part 2 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) deals with pensions, other than service pensions, for veterans and their dependants. Section 15 of the Act allows a veteran who is receipt of a Part 2 pension to apply for an increase in the rate of pension on the ground that the incapacity has increased since the rate of pension was last assessed.
Section 19 of the Act sets out the way in which an application for an increase in the rate of pension is to be determined. For present purposes section 19(5B) of the Act directs that an assessment of such an application must be made in accordance with whichever of sections 22 (general rate of pension), section 23 (intermediate rate of pension) or section 24 (special rate of pension) apply. The Applicant in this matter is seeking an increase in his rate of pension to the special rate of pension.
The Tribunal notes that while there was mention of the intermediate rate pension pursuant to section 23 of the Act in the material before the Tribunal, the issue was not directly expanded upon, nor were contentions in that regard made. Given the Tribunal’s findings set out below the Tribunal has not been required to consider section 23 of the Act as it does not apply where section 24 of the Act is found to have applied.[50]
[50] See section 23(1)(d) of the Act.
In determining an application for an increase in the rate of pension, a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”. The assessment period starts on the day the application for an increase in the pension was received until the date of the decision of the Tribunal.[51]
[51] See section 19(9) of the Act; Richmond v Repatriation Commission [2014] FCA 272 at [107].
Section 24 of the Act deals with entitlement to the special rate pension and relevantly sets out:
Special rate of pension
(1)      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-causeddisease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or 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.
(2)   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)   This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c)       paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ( last paid work ) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)       section 25 does not apply to the veteran.
Section 28 of the Act provides that in determining for the purposes of section 24(1)(b) of the Act, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work regard must be had 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).
Section 5Q of the Act defines “remunerative work” to include “any remunerative activity”.
The Full Federal Court in Banovich v Repatriation Commission (1986) 6AAR 113 at 120 held that the phrase “remunerative work which the member was undertaking” in the Repatriation Act 1920 (Cth) “should be read as a reference to the type of work which the member previously undertook and not to any particular job.”
In Smith v Repatriation Commission [2014] FCAFC 53 (Smith), Buchanan J considered section 24 of the Act carefully, providing the following observations:[52]
47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of the loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (“a veteran who is incapacitated…”). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
(emphasis in the original)
[52] Smith v Repatriation Commission [2014] FCAFC 53 at [47]-[49].
Section 120 of the Act deals with the standard of proof required. Section 120(4) of the Act requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction. Section 120(6) of the Act provides that no onus of proof is imposed on either party.
ISSUES
The issue before the Tribunal is whether the Applicant is eligible for payment at the special rate of pension. This requires determining:
(a)What is the assessment period?
(b)Whether the Veteran:
(i)made a valid application under section 15 of the Act for an increase in the rate of pension that he was receiving (section 24(1)(aa) of the Act);
(ii)had not yet turned 65 when the application was made (section 24(1)(aab) of the Act); and
(iii)was being paid the disability pension at a rate equal to or greater than 70% of the General rate of pension (section 24(1)(a)(i) of the Act).
(c)If the answer to (b) is yes, whether the Veteran is totally and permanently incapacitated, that is unable to work more than eight hours a week, due to service-caused incapacity alone (section 24(1)(b) of the Act); and
(d)If the answer to (c) is yes, whether the Veteran by reason of incapacity from his service-caused conditions, alone, is prevented from continuing to undertake remunerative work that he was undertaking; and
(e)If the answer to (d) is yes, whether the Veteran, by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary or wages, or of earnings, that he would not be suffering if he was free of that incapacity.
(f)If the answer to (e) is yes, from what date should the Veteran be paid the special rate pension?
EVIDENCE
Applicant’s Evidence

The Applicant provided a statement dated 28 February 2018[53] firstly outlining his service history (as provided above) and secondly outlining his post discharge maritime career. In relation to the events leading up to when he ceased work, the Applicant provided:[54]
22.My last position as a Ship's Master terminated in May 2014 when I delivered a ship to Singapore and decided that I needed a break despite being offered further work by both Pacific Marine Towing, International Marine Services (IMS) and Great Lakes Dredging Co. In September 2014 I was ready to go back to work and after a being offered employment by Great Lakes Co I agreed to make myself available for the next period duty. As my annual Australian Maritime Safety Authority (AMSA) medical was due I - during this period I undertook my medical with Dr Houghton where I failed my hearing test thus invalidating my Master's licence and any prospect of further work as a Ship's Master or deck officer. At the time that I lost that qualification due to my hearing, I was earning in the vicinity of AU$250,ooo per year.
23.At the time that I lost my Certificate as a Ship's Master, I had been offered employment from a number of different large companies such as Pacific Tugs, Great Lakes Dredge and Dock Company ( the largest dredging and land reclamation company in United States) and International Marine Shipping which was also an international dredging company. Throughout my working career I have rarely had to solicit for work. The nature of the industry is that one relies on one's reputation to be offered work.
24. Ships Masters rarely·retire at 65 years of age. Most work well into their 70s. Most of my peers are still working and are well past 65 years of age. It was my intention to continue to work well into my 70s. My opportunities for employment are limited to seagoing positions because that was a career choice taken by me many years ago. Accordingly, I have not developed any skills that could be used onshore in other capacities. Some of my contemporaries did choose to go that way but I did not.
[53] Exhibit 4, Statement of the Applicant dated 28 February 2018, pages 1-8.
[54] Exhibit 4, Statement of the Applicant dated 28 February 2018, page 6, paragraphs 22-24.
The Applicant provided a further written statement dated 10 August 2018[55] outlining that due to failure of his kidneys he was receiving dialysis and was awaiting a kidney transplant. The Applicant provided that:[56]
Dr Hollett informs me that if the operation is a successful, and there is no reason that it would not be, I will have normal kidney function and be able to lead a normal life. That would include going back to sea but for my hearing deficiency.
[55] Exhibit 5, Statement of the Applicant dated 10 August 2018, pages 1-2.
[56] Exhibit 5, Statement of the Applicant dated 10 August 2018, page 2, paragraph 6.
The Veteran provided copies of his Taxation Estimates for the 2012, 2013, 2014 and 2015 income tax years all demonstrating his income earning capacity whilst employed in the maritime industry.[57]
[57] Exhibit 10, Applicant’s Taxation Estimates.
At Hearing, the Veteran gave evidence in person and under Oath. In response to questions asked by his Counsel, the Veteran:[58]
[58] Transcript, pages 11-19.
·Explained that the role of a master of the ship in the following way:
Master of the ship is often – or commonly referred to as the captain of the ship. The captain is not a member of the crew. He actually stands alone in the organisation of the ship in that he represents the ship’s owner and he manages the crew. He is responsible for all legal matters pertaining to the ship, the operation of the ship, the safety of the ship and the safety of the crew at all times 24 hours a day.
·In relation to the physical demands of the role of master of the ship, said that whenever the ship is at sea he would need to be on immediate call to deal with potential hazard situations, whether it be grounding or whether it be a collision, or whatever, and to attend to the needs of the crew as they occur, be that medical or domestic matters. He said the actual physical input at sea is primarily to be available at a moment’s notice to deal with any situation. In port it is more a matter for dealing with the various insurance representatives, the ships business, the agent dealing with the ships agents and so forth.
·Said that the bridge of the ship is where the navigation and function of the ship is carried out and it is traditional and normal for the master’s cabin to be either directly behind, or very close to the bridge. There may be one set of stairs to get onto the bridge.
·Said the master of the ship would stay in the position for the duration of the voyage.
·Explained that a ships pilot has to have acted as or have been the ship master before he becomes a pilot because he has to level a ship out and get experience and so forth, that is required and then the pilot acts as an advisor to the ships master. He said the ships master never loses the responsibility of the ship, the pilot can only advise in terms of the manoeuvring and getting the ship alongside safely because of his knowledge of the local areas.
·Explained that the duties of a pilot are physically challenging:
I mean sometimes at night boarding a large bulk carrier very, very high out of the water, we have to climb anywhere up to 20 metres up a rope ladder and the ship swinging to get up to deck level and ten another four or five decks to get up to the master and - and then once we’re on the bridge, well, we’re there. We’re quite tired by this stage. We’re quite puffed, may I say. The actual physical work, from then on, is actually being on the bridge at all times while the ship’s movement, obviously, yes.
·Said prior to his last position ending in May 2014 he had been working 84 hour weeks and he decided he needed a break as he had to have a home life as well.
·Said that whenever he was not actually working, he was in touch with Maritime employment agencies and with Maritime Shipping Industry and would look at whatever work came up. He was contacted by a different company during his last assignment and had agreed to take the role, however because he had to take an annual medical, he thought he had better get that done first.
·He did the medical and said, “that’s – well, my world sort of well caved in really.”
·Said he was assigned an appointment to see Dr Hartland. He was aware of his hearing problem and said it was a concern to him for quite some time, there was a number of issues that came with the hearing issues, which he suffered from his Navy days being exposed to gunfire and that has affected his ability to hear alarms.
·Said:
Now, what can imagine the bridge with a lot of equipment, most of those equipment’s, if there’s a malfunction in any way, it’s - they’ve given audible alarm and they’re a very, very high pitched alarm and it was quite embarrassing towards the latter part of my seagoing career that I would sometimes be - my attention would be drawn by the lookout of the ship saying, ‘Captain, there’s an alarm going off’. I said, ‘Ah, yes’. ‘Well, I think it’s over there’ and I’d be, ‘Okay, right’. That’s the sort of situation. So, it was definitely getting - you know, it was getting worse.
…. I started to lose my confidence because it - it also - the ship’s fire alarm is a - is a very pitched alarm, not unlike what one has in the home, but probably very - you know, a very big type alarm and I’ve slept through that and it’s pretty embarrassing as the ship’s master when you really need to be there.
·Said he was conscious of this issue when he went to see Dr Harland but that he tried to do the best he could and pass the test. Dr Harland said he had to fail him on the test. He said at that point “I just fell apart really. I – just everything – you know quite upset. …. I said to him, I said, ‘Well, gees, you know, that’s the end, mate. You know, like I’ve got to work.”
·When taken to Dr Harland’s report and asked if the doctor had raised any issue about anxiety and depression that day, said that the doctor said he seemed to be pretty down. He said, “Well, I mean, I must admit I – I would have just – I would have exhibited my anxiety in the sense that my ticket’s on the line here.”
·Said he did not agree with Dr Harland saying he was depressed and he raised it with his general practitioner. He went and sought psychiatric assessment from Dr Ng.
·Confirmed that it is usual for both ships masters and pilots to work beyond 65 years of age and that most of his peer group still work as pilots and ships masters.
·Said it had been his intention to work well into his 70s and that he would love to go back to sea, if he could but he cannot because of his hearing.
·Said before he stopped working his normal weight was around 105 to 110 kilos and he was quite fit. When he had to stop work his weight started to balloon and he tried a number of diets and yo-yoed up and down until his weight hit 125 kilos. When he went on his overseas trip he was that weight and it was very uncomfortable.
·Said his left ankle was definitely giving him problems however since he lost weight there has been no hint of pain whatsoever. He is now at his normal weight of 81 kilos and has been for a couple of years.
·Said for a period of almost 2 years he had no kidneys at all and had to rely on dialysis three times a week. He had a transplant in March 2019.
·Said that his lived experience has been that he is able to do everything he wants to do, he can clean his house and can do things around the garden. If he had to go to work today, he would be ready for it. He can work, he does whatever he wants.
On cross-examination, the Veteran:[59]
·Confirmed that during the two years he was on regular dialysis he would not have been able to go to sea.
·Agreed that from 2017 to 2019 when he had the transplant he would have been unable to work.
·Agreed that in 2015 when he completed the claim for Disability Pension (found at T78) the state of play for his left ankle was that he had pain after walking short distances or standing without moving for some time.
·Agreed that the existence of his left ankle problem at that time in 2015 would have prevented him from holding down the position of ships master.
·Said he remembered seeing Dr Houston and telling him that he had pain walking more than 100 metres.
[59] Transcript, 19-22.
In response to questions asked by the Tribunal, the Veteran:[60]
·Said that in addition to his annual medical he was also required to participate in a professional development course every 5 years to keep up with the legals and the changes of legislation.
·Said that during those 5 years he kept up to date with changes primarily because of the notice provided in the mariners publication that the Australian Maritime Organisation brings out that notifies of changes in legislation and MARPOL, which deal with maritime pollution controls and so forth.
·Said that to regain his registration to continue in the roles of ships master or pilot he would have to go and do a professional development course which is about a month long course in various sections which is quite intensive and having done that his previous experience would be recognised.
[60] Transcript, pages 22-24.
Statement of Mr Mike Emerson
The Veteran tendered a written statement of Mr Mike Emerson dated 14 August 2018 that provided:[61]
1.I have known [the Veteran] for many years whilst working int the Australian maritime industry. We worked together for Australian Reef Pilots.
2.I am still working for Australian Reef Pilots. I am 74 years of age having been born [in early 1944]. There is another employee of Australian Reef Pilots who is 75 years of age and there are 2 more in their early 70s and all of them are active employees on full maritime duties.
3.There are also several Pilots who work in the Brisbane office as “duty pilot” who are well into their 70s.
4.Age is certainly no barrier to employment with Australian Reef Pilots.
Medical Evidence
[61] Exhibit 6, Statement of Mike Emerson dated 14 August 2018.
Evidence of Dr Bernard Gerber
In addition to the reports referred to above, Dr Gerber provided a report dated 15 December 2017 which provided:[62]
I have been asked to assess the above named with regard to whether or not there is any functional deficit in his left ankle that would affect his capacity to work as a ship's master. As a background I have a copy of a report from orthopaedic surgeon Dr Anthony Houston, who found in December 2015 that [the Veteran’s] walking distance was limited to 100 metres due pain in his left ankle. At that time his weight was 123kg.
At the time he was last employed as a ship's master, his weight was approximately 108 to 110kg. At this weight his left ankle was completely asymptomatic and did not interfere with the functionality of his left ankle. Once forcibly retired due to his accepted disability of hearing loss, he gained weight and went up to 123 kg, at which point his ankle became symptomatic and he underwent assessment by Dr Houston.
Since that time, with great effort, [the Veteran] has lost weight and now sits comfortably and stably over the past 18 months at 85.5kg, giving him a body mass index of 27.1. At this weight, as expected, his left ankle is once again completely asymptomatic and there is no functional deficit of his left ankle.
As a test, I took [the Veteran] for a brisk one kilometre walk, which he completed without any trouble at all. Following this, I had him ascend a step ladder, simulating a climb between decks on a ship. He was able to perform this activity at normal speed and dexterity, again without any trouble.
On the basis of all of the above I can state unreservedly that there is no functional deficit of [the Veteran’s] left ankle, and his left ankle presents no impediment to his ability to work as a ship's master. Therefore, I am led to the conclusion that the sole reason for his inability to work as a ship's master is due to his accepted disability of hearing loss alone.
[62] Exhibit 7, Report of Dr Bernard Gerber, General Practitioner, dated 15 December 2017.
Dr Gerber gave evidence at Hearing by telephone under affirmation. In response to questions asked by the Veteran’s Counsel, Dr Gerber:[63]
·Confirmed his name and qualifications.
·Confirmed that the Veteran had been his patient since 1 July 2008.
·Confirmed that in his report of 15 December 2017 that the information he outlined was accurate as the tests described were carried out by him personally. Further confirmed that the opinions expressed were honestly held by him.
·In relation to the Veteran’s weight loss said that both he and the Veteran’s renal physician, had advised the Veteran, that with his precarious renal function and past history of cardiovascular disease, that being overweight was a significant risk fact for him. He said he initially referred the Veteran for bariatric surgery with a view to having a laparoscopic gastric band applied, that did not happen instead the Veteran went on to have a gastric sleeve operation and he did lose a lot of weight and has maintained that weigh loss over time.
·Said that at the time that the Veteran was complaining of pain in his ankle he was around 123 kilos and that in December 2017 his weight was 85.5 kilos. He has recorded the Veteran’s weight as being 86.5 in April 2018 and 87.5 in May 2019.
·When asked if he had repeated the tests outlined in his report of December 2017, said he did repeat the test recently on 16 January 2020. He read the following from his notes:
Examination. I took [the Veteran] for a 1.6 kilometre brisk walk, which we completed in 11 minutes, following by six ascents and descents of my two-metre stepladder which I keep here at the surgery …. He was completely asymptomatic with a pulse rate of 65 at the termination of the exercise. He was able to ascent and descent the ladder six times successfully without any problem at all.
[63] Transcript, pages 26-28.
On cross-examination, Dr Gerber:[64]
·When taken to a letter dated 4 February 2016 he wrote to Dr George Hopkins in relation to a referral for bariatric surgery and asked to expend on his reference to excess alcohol intake and anxiety and depression as a current issue, said that was not his text, it was an excerpt from a letter from the cardiologist from March 2015.
·When asked if he agreed with the cardiologist’s observations in March 2015, said “I had [the Veteran] assessed by psychiatrist, Dr Bradley Ng. Who felt that basically, [the Veteran] suffered from adjustment disorders attributed to various stressors in his life, and that he – the psychiatrist – did not consider [the Veteran] had a depressive illness. You have to release that Dr Roati is not a psychiatrist, nor is he a general practitioner, and usually does not deal with depression and anxiety. I quite commonly find that people who are labelled with one psychiatric diagnosis can quite commonly have that mislabelled by other doctors. My own personal feeling is that there may have been times when [the Veteran] did have excess alcohol intake, but that has basically ceased, and that he does not suffer from a depressive illness.”
·Agreed that in matters of a psychiatric nature he would defer to the opinion of a psychiatrist.
·When asked if it was a matter for an orthopaedic surgeon whether he would defer to the assessment of an orthopaedic surgeon, said “I would, except to say that if I have carried out a functional test to satisfy myself of his abilities, I would rely on that observation.”
·When asked why there was no mention of renal issues in his letter of 15 December 2017, said that was because they were not an issue in terms of the Veteran’s ability to work. When asked about the dialysis treatment the Veteran was undertaking at the time, agreed that at that particular time the kidney concern did impact upon the Veteran’s ability to work.
·When asked when in his opinion the Veteran would have been able to do something in relation to work that was not affected by his renal issues, said that as soon as the Veteran’s transplant issues had settled down, he imagined that he would have been able to leave home and do whatever he wanted to do.
·When referred to the report of Dr Peter Hollett, renal physician dated 6 August 2019 and asked if this helped him to understand the situation in August 2019, said it sounds like the Veteran would need to visit the doctor fortnightly, but otherwise could do anything he liked in between so that if he had jobs which lasted less than a fortnight, he would have been able to do that.
[64] Transcript, pages 28-32.
Evidence of Dr Anthony Houston
At Hearing, Dr Anthony Houston provided evidence by telephone, under affirmation. In response to questions asked by the Respondent, Dr Houston:[65]
[65] Transcript, pages 35-37.
·Confirmed his full name and qualifications.
·Confirmed that the reports dated 10 November 2015 and 9 December 2015 are true and corrects as far as he was aware.
·Said when he examined the Veteran in relation to his left ankle, he had pain on the outer aspect of the ankle that limited his walking.
·Said the source of the pain looked like s small spur on the ossicle on one of the joints. This takes the appearance of a broken off piece of bone that happened a long time ago.
·Said he had not seen the Veteran since 2015.
·When asked what in his opinion or experience was the usual cause of events for an injury like that, said:
So, obviously we’re five years down the track, or four or five years; what would you expect to see in terms of that injury?---Yes, so those conditions can often go through these fluctuations. So, they can, for no particular reason, just start to flare up. Maybe it’s related to something to his activity or a reinjury or some point, and they can often just settle down with time, and then they may go through just a stable stage where patients just learn to adapt, know what they can and can’t get away with, and know what kind of activities might always flare it up – like, walking on uneven ground, walking on beaches, certain shoes might always flare it up. So, they are accommodated in their lifestyle and usually go on for quite a while, just going through this every now and again – intermittent flare-ups. Occasionally, they can just be asymptomatic and just settle down and they never really worry them again, they just know that there’s a little bit of a bump there, but more often than not, there’s just these intermittent little irritations.
·It was fair to say that when he saw the Veteran in 2015 that it was causing him significant problems. At that stage he had pain walking more than 100 metres.

On cross-examination, Dr Houston:[66]
·Said he did not recall if when he saw the Veteran whether he was carrying a lot of weight.
·When put to him that the Veteran had lost some 37 kilograms by at least December 2017 and referred to the report of Dr Gerber of December 2017, agreed that the report gave the impression that the issue which the Veteran complained to him about was no longer troubling him in relation to walking or climbing ladders at least by December 2017.
·When asked to comment in relation to the effects of such a weight loss in relation to the ankle complaint, said that he would suggest that the weight loss was a good thing as far as relieving symptoms, he said:
I wouldn’t give an absolute guarantee that it was going to make it better. The only one I can do that for on a lower limb, reliably, is to knee arthritis, and I can say hand on heart, scientific evidence, yes, it will decrease their pain, but for that foot ossicle, I’d say it could actually go either way; they may actually find that they start getting more active and walking on more uneven ground, it may start to give them a little bit of an issue, but the less load they’re carrying, the less likely it is to put recurring strain on it. So, on face value, I would have said yes, it was good advice and it should be less likely to give him pain but on a scientific basis, I wouldn’t be absolute and say definitely, but generally, I would give them that advice, absolutely.
[66] Transcript, pages 37-39.
Evidence of Dr Peter Hollett
Dr Peter Hollett, as the Veteran’s treating renal practitioner provided a number of reports. In a report dated 11 September 2018, Dr Hollett provided:[67]
[The Veteran] is a patient with stage 5 chronic kidney disease due to previous bilateral nephrectomy. [The Veteran’s] renal function had been quite stable leading up to the time when he had the left nephrectqmy in June 2017. It was after this second nepbrectomy that he commenced dialysis.
[The Veteran] has recently been activated on the deceased donor renal transplant waiting list. [The Veteran] is blood group A and I expect his wait for a renal transplant will be somewhere in the order of less than 12 months from the date of activation. When patients undergo a renal transplant their baseline renal function post transplantation can be variable. I would expect that [the Veteran’s] - renal function would be quite reasonable post transplantation. It is highly likely that his renal function would be at a level where he could restart meaningful work. His prognosis post transplantation is likely to be very good. Current data would suggest that patient five year survival post renal transplantation would be in the order of 90%.
[67] Exhibit 8, Report of Dr Peter Hollett, Renal Physician, dated 11 September 2018.
In a report after the Veteran’s kidney transplant dated 6 August 2019, Dr Hollett provided:[68]
You have asked me to provide a report regarding [the Veteran’s] renal function. [The Veteran] underwent a deceased donor renal transplant on 5 March 2019. The transplant was not without its complications and [the Veteran’s] renal function was actually very slow to improve.
He subsequently had complications related to rejection and also to medication-related gastroenteritis. [The Veteran] has been stable on his current medication since early June 2019. [The Veteran’s] renal function is slowly improving and I am hoping that it continues to do so. His current creatinine is 219µmol/L with an eGFR of 26.
[The Veteran] has had renal appointments at least on a weekly basis since his transplant and my plan is now to see him fortnightly. His renal function is far from normal but it is certainly good enough for him to remain well and off dialysis.
I would have thought if he remains stable in the next four weeks and has no further complications he could, at that stage, pursue further employment.
[68] Exhibit 9, Report of Dr Peter Hollett, Renal Physician, dated 6 August 2019.
SUBMISSIONS
Prior to the Hearing the Veteran filed a Statement of Fact, Issues and Contentions dated 16 October 2019.[69] The Respondent filed a Statement of Facts, Issues and Contentions dated 14 November 2019.[70]
[69] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions.
[70] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions.
In opening submissions at the Hearing, the Veteran’s Counsel told the Tribunal that he would take his lead from the Respondent’s Statement of Facts, Issues and Contentions as it is comprehensive firstly, and secondly, because it ultimately outlines what the Respondent puts in issue.[71]
[71] Transcript, page 6.
The Veteran’s Counsel submitted that it was not in issue that section 24(1)(a) of the Act was satisfied as the Veteran’s level of disability was 70 per cent or greater. Further it was not in issue that as the Veteran was 64 years of age when he made his application for increase in rate of pension those parts of section 24 of the Act which apply to an applicant who applies whilst under the age of 65 are applicable.[72]
[72] Transcript, page 6.
The Veteran’s Counsel said there had been correspondence between the parties and that it was agreed that section 24(1)(b) of the Act is satisfied throughout the assessment period. What remains in issue is the matters set out in section 24(1)(c) of the Act.[73]
[73] Transcript, pages 7-8.
The Respondent’s representative in opening submissions said: “I think my friend has summed up precisely what our case is. It does really turn on 24(1)(c) and the fact that you, ultimately, will need to determine ….”[74]
[74] Transcript, page 8.
The Respondent expressed a preference to provide written closing submissions, of which was not opposed by the Applicant. As such the Tribunal agreed and granted the parties leave to file written closing submissions after the conclusion of the Hearing.[75]
[75] Transcript, pages 8-10.
Applicant’s Submissions
The Veteran’s Outline of Submissions were received on 5 March 2020.[76]
[76] Applicant’s Outline of Submissions, pages 1-13.
It was submitted that the commencement of the assessment period as defined by section 19(9) of the Act is 11 November 2014.[77]
[77] Applicant’s Outline of Submissions, page 3, paragraph 6.
It was submitted that the Veteran was under the age of 65 when he lodged his claim for an increase in pensions and that once his pension became payable at the rate of 70% or more then consideration can be given to a payment of an earnings-related rate of pension under sections 23 and 24 of the Act. The Veteran satisfied section 24(1)(a) of the Act as he was determined by the Respondent on 14 May 2016 to be eligible for disability pension at 100% of the General Rate on and from 5 October 2015.[78]
[78] Applicant’s Outline of Submissions, page 3, paragraphs 7-9.
In relation to section 24(1)(b) of the Act, it was submitted that:[79]
11.As a ships master/deck officer aged over 55, a yearly AMSA medical was a pre-requisite for his continued employment at sea.
12.The Applicant's career in the marine industry ended on 20 October 2014 when Dr Harland, AMSA MO, in a Certificate of Medical Fitness classed him as unfit to work at sea due to, relevantly, “high frequency hearing loss”. As stated, Sensorineural Hearing Loss and Tinnitus are accepted service related conditions. By the time the Applicant was examined by Dr Harland he could no longer hear instrument and navigation alarms all of which are of high frequency nature. The need to be able to hear instrument and navigation alarms was an essential feature of the Applicant’s duties as both a ship’s master/ ship’s pilot. In his oral evidence he gave examples of how his hearing loss caused incapacity in his functioning at work on ship as well as personal embarrassment. He gave examples of him sleeping through the ships fire alarm and of not knowing the source of an alarm when the fact that it had gone off was brought to his attention by a member of the crew.
13.The Respondent has submitted that for the purposes of section 28 of the Act, it is relevant to determining the extent to which his accepted conditions have impaired his capacity to work that the Applicant spent his entire career in civilian employment in the marine industry. The Applicant agrees that this approach is correct.
14.There is no dispute between the Applicant and the Respondent that the Applicant satisfies s 24(1)(b) of the Act throughout the assessment period. This conclusion is supported by the medical opinion evidence of Dr Harland.
15.On this basis, it is submitted that the Tribunal should make a finding that s 24(1)(b) of the Act is satisfied.
[79] Applicant’s Outline of Submissions, pages 3-5, paragraphs 11-15.
In relation to section 24(1)(c) of the Act, the Veteran drew the Tribunal’s attention[80] to the Full Federal Courts decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 where Branson J, with whom Beaumont and Merkel JJ agreed, said:
In my view the issues before the tribunal in this case were as follows:
1. What was the relevant `remunerative work that the veteran was undertaking' within the meaning of s24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
[80] Applicant’s Outline of Submissions, page 5, paragraph 17.
It was submitted that the type of work the Veteran was undertaking, having regard to his work history was that of ship’s master/ship’s pilot.[81]
[81] Applicant’s Outline of Submissions, page 5, paragraph 19.
In considering whether the Veteran is prevented from continuing the remunerative work that he was undertaking it was submitted:[82]
21. The Applicant’s understanding is that the Respondent does not dispute that the Applicant satisfies the second Flentjar question throughout the assessment period. The medical evidence, namely the Certificate of Medical Fitness dated 20 October 2014 provided by Dr Harland supports a finding by the Tribunal that by reason of his accepted hearing condition the Applicant is prevented from continuing to undertake his relevant remunerative work.
[82] Applicant’s Outline of Submissions, page 6, paragraph 21.
In considering whether there are other factors preventing the Veteran from continuing those types of work, it was submitted that:[83]
[83] Applicant’s Outline of Submissions, pages 9-11, paragraphs 30-36.
30.Accordingly, in order for the Applicant’s non-accepted medical conditions to disqualify him from the special rate they would need to have the relevant effect on his capacity to engage in remunerative work throughout the assessment period: see Morris and Repatriation Commission (Veterans' entitlements) [2017] AATA 2165.
31.The starting point is to consider the position as at the time the Applicant ceased working in October 2014.
32.There is evidence that the Applicant suffered from anxiety and depression at that time, per Dr Harland’s Certificate of Medical Fitness.
33.Against this:
a.There is nothing to indicate that Dr Harland, who is not a psychiatrist, undertook any sort of comprehensive psychological examination of the Applicant;
b.There is a logical and compelling explanation for why the Applicant exhibited anxiety and depression at the time he saw Dr Harland. The Applicant’s evidence at the hearing was that he was well aware of his impaired hearing and that as a consequence his ticket was on the line in the AMSA medical. His evidence was to the effect that he was desperate to keep working and that when Dr Harland gave him the news about his hearing results he ‘just fell apart”;
c.Whilst Dr Ng, consultant psychiatrist, had diagnosed the Applicant as suffering from an adjustment disorder in 2010, he was clear in his opinion that this condition “certainly did not affect his capacity to work”;
d.By 10 November 2014 (only weeks after the Applicant saw Dr Harland) Dr Ng, consultant psychiatrist, after a comprehensive assessment, concluded that “there was no evidence of an ongoing psychiatric disorder”.
34.In relation to the Applicant's left ankle condition:
a.There is no evidence supporting a finding that Applicant's suffered a left ankle condition having any incapacitating effects in October 2014 when his career ended;
b.the medical evidence from Dr Gerber in his report of 15 December 2017, maintained by Dr Gerber in his oral evidence, supports a finding that the Applicant's left ankle condition no longer gives rise to any functional impairment or deficit;
c.Dr Gerber’s oral evidence was that Applicant's left ankle condition became an issue for him due to him for a closed period of time. The impairment commenced as a consequence of him putting on weight in 2015 and led to him seeing Dr Houston, orthopaedic surgeon. The Applicant's subsequently lost a great deal of weight after undergoing gastric bypass surgery and consequently his left ankle condition improved. Dr Gerber’s evidence was that the Applicant weight was stable around 85 kg from mid 2016. Dr Gerber’s supported his opinion that the Applicant no longer has a functional impairment or deficit of the left ankle by reference to functional testing which the Applicant successfully performed involving him walking briskly for distances of a kilometre and 1.6 kilometres respectively and ascending and descending a step ladder.
35.In relation to the Applicant's s left kidney condition:
a.There is no evidence supporting a finding that this condition caused any incapacitating effects in October 2014 when the Applicant’s career ended;
b.It is accepted that the evidence supports a finding that this condition would have caused incapacitating effects during the period he was on dialysis and for a period of recuperation after he received a transplant;
c.The medical evidence from Dr Hollett in his report of 6 August 2019 supports a finding that the Applicant's left kidney condition no longer gives rise to any functional impairment and has not done so from circa 6 September 2019 (being approximately 4 weeks after 6 August 2019).
36.There is no evidence supporting a finding that hypertension has caused the Applicant any incapacity for work.
It was submitted that on this basis the Tribunal should find:[84]
a.This limb of s 24(1)(c) of the Act was satisfied from October 2014 until a date in 2015 (although the second part of this submission (viz. the date in 2015 does not, in truth, matter: see Smith v Repatriation at [40]):
b.Alternatively, this limb of s 24(1)(c) of the Act was satisfied from 6 September 2019.
[84] Applicant’s Outline of Submissions, pages 11-12, paragraph 37.
In considering whether the Veteran has ceased to engage in remunerative work for reasons other than his incapacity, being in this matter age and/or time out of the workforce and whether he had simply chosen to retire, it was submitted that the Tribunal should find that they are not disentitling factors.[85] Relevant to these matters it was submitted:[86]
a.The statement evidence of Mr Mike Emerson supports a finding that age is no barrier to obtaining work as ship’s master/ ship’s pilot;
b.There is no basis for a finding that the Applicant’s time of the workforce would be an inhibiting factor. The Applicant would now have to do a professional development course of 1 month’s duration but there is nothing in the evidence to support a finding that he would not be successful in passing it. It is be borne in mind here that the Applicant is a man of tremendous seagoing experience having spent 46 years at sea.
c.The Applicant’s evidence is that he had intended to keep working “well in my 70s”.
[85] Applicant’s Outline of Submissions, page 12, paragraphs 38-41.
[86] Applicant’s Outline of Submissions, page 12, paragraph 40.
Respondent’s Submissions
The Respondent’s Submissions were received on 3 April 2020[87] and as noted in the Veteran’s Outline of Submissions in Reply,[88] the Respondent retracted from any agreement between the parties in relation to sections 24(1)(a) and (b) of the Act and raised a number of issues that were not put to the Veteran at Hearing.
[87] Respondent’s Submissions dated 3 April 2020, pages 1-14.
[88] Applicant’s Outline of Submissions in Reply dated 1 May 2020, pages 1-7.
The Respondent submitted that the assessment period should be separated into two periods. The first commencing on 11 November 2014 (when the Veteran’s claim for an increase in rate of pension was received) and ending on 2 February 2016 (the day before the Veteran made a claim for pension in respect of ‘clear cell renal cancer’. The second commencing on 3 February 2016 (the day the Veteran made a claim for pension in respect of ‘clear cell renal cancer’) and ending on the day the Tribunal makes it decision.[89] On that basis the Respondent submitted that the Veteran failed to satisfy the requirements of section 24(1)(a)(i) of the Act for the purposes of the first period and the requirements of section 24(2A) of the Act for the second period and as such it follows that he is ineligible for payment at the special rate.[90]
[89] Respondent’s Submissions dated 3 April 2020, pages 9-11, paragraphs 60-71.
[90] Respondent’s Submissions dated 3 April 2020, page 11, paragraph 72.
In support of those contentions the Respondent provided:[91]
[91] Respondent’s Submissions dated 3 April 2020, pages 10-11, paragraphs 64-71.
64. In Repatriation Commission v Maloney [1993] FCA 212, Einfeld J held (at [17]-[18]):
[17] As I see it, section 19 applies to all diseases which are found to be war-caused at any time. The decision-maker's task is to identify the incapacity resulting from these conditions, i.e. all the incapacity from all conditions accepted as war-caused, including from conditions existing before the determination(s) that they were war-caused. In addition to the clear policy which lies behind section 19, this conclusion must also flow from the use of words in subsection (7)(b) of the section, "whether or not a pension under Part II or Part IV ... has been granted in respect of that injury or disease". The pension thereafter awarded commences from the date of the claims for these conditions and this incapacity, but may by section 20(1) be backdated to three months before the claim, presumably provided that the conditions and the incapacity existed then.
[18] In other words, the substantive eligibility of any claimant is entirely defined by the effects of the findings made each time subsections (5) and (7) of section 19 are and are required to be activated. The commencement of payments from 5 November 1985 was fixed by the Commission and affirmed by the Board when they reassessed the cervical, diarrhoeal and nervous conditions. When the cancer was added, the agreed facts operated to establish that all the conditions in combination entitled Mr Maloney to the special rate. That rate could not have been fixed to operate on and from any date other than the date on which they were first claimed, except that if the conditions and incapacity for which the special rate was to be paid were in existence three months earlier, this statutory maximum retrospectivity could also be allowed.’ (Emphasis added)
65.The respondent agrees that the assessment period commenced on 11 November 2014. The respondent submits it is appropriate to split the assessment period into two discrete periods as was done in similar circumstances in Grundman v Repatriation Commission [2001] FCA 892 and Boxsell and Repatriation Commission [2007] AATA 1215.
66.The first period is from 11 November 2014 to 2 February 2016. The period commences with the applicant’s application for an increase in the rate of pension and closes with the commencement of the date of effect of the applicant’s claim for adenocarcinoma of the right kidney. The respondent submits the applicant failed to satisfy the criteria of section 24 for payment at the special rate in this period as the degree of incapacity did not meet the 70% threshold required by section 24(1)(a)(i) of the Act.
67.The second period commenced on 3 February 2016 for reasons already explained. The increase in the applicant’s degree of incapacity from 60% to 100% from 4 October 2015 was the result of his claim for and the respondent’s acceptance of his adenocarcinoma of the right kidney. The acceptance of the additional disability permitted a reassessment of the rate of pension having regard to all his accepted disabilities, pursuant to section 19(7)(d) of the Act.
68.The respondent submits that the Tribunal’s assessment of the applicant’s eligibility for payment at the special rate for the second period must accept the date of claim for the purposes of sections 19 and 24 as 3 February 2016. In both Maloney and Grundman, claims for further disabilities were made within the assessment period of an existing application for an increase in the rate of pension. In both, the existing disabilities were insufficient to meet the requirements of section 24 and eligibility only arose after the addition of the incapacitating effects of the further disabilities. Although applications for increases were made at earlier points in time, the dates of effect were instead tied to the dates of claims for the further disabilities.
69.The applicant’s degree of incapacity only reached 70% or above following the determination of 14 May 2016 with a date of effect of 4 October 2015. The respondent further submits that relying on the claim of 3 February 2016 for the date of effect also requires the same date to be applied when assessing the rate of pension under section 24 for the second period. At the date of his claim for his adenocarcinoma of the right kidney on 3 February 2016 the applicant was over 65 years of age.
70.The respondent submits that the applicant failed to meet the threshold of the degree of incapacity until the acceptance of his adenocarcinoma of the right kidney and the resulting reassessment of the rate of pension. At that stage, the applicant was over 65 years of age and had stopped working prior to turning 65. As the applicant was over 65 at the time of his claim, he became required to satisfy the cumulative requirements of section 24(2A) for the purposes of the second period which he was unable to do so.
71.The respondent notes the Tribunal’s decisions in Boxsell and Clements and Repatriation Commission [1997] AATA 291, and the Court’s decision in Rose v Repatriation Commission [2001] FCA 245 which involved similar circumstances to the present matter. In all three, existing claims for payment at the special rate could not succeed without the inclusion of further conditions accepted as a result of later claims. In Rose and Boxsell, the further claims were made after those applicants reached 65 years of age. As is the case in this matter, in both decisions the applicants failed to satisfy section 24(2A) as they ceased working prior to 65.

The Tribunal agrees with the Veteran’s submissions that there is nothing in the Respondent’s citied cases that dislodges the principles set out by the Federal Court in Richmond v Repatriation Commission [2014] FCA 282; Repatriation Commission v Richmond [2014] FCAFC 124 (Richmond) and Smith v Repatriation [2014] FCAFC 53 (Smith). Therefore, the Tribunal finds that the assessment period in the present matter 11 November 2014 (being the date the Veteran’s claim for increase in pension was received by the Respondent) and ends upon final determination of the matter.
Did the Veteran Satisfy Section 24(1)(aa), (aab) and (a) of the Act?
The Tribunal notes that at Hearing and as expressed in the Respondent’s Statement of Facts Issues and Contentions,[100] it was not disputed that the Applicant satisfied sections 24(1)(aa), (aab) and (a) of the Act. [101] The Respondent’s position changed somewhat in its written closing submissions.[102]
[100] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions.
[101] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 22-23, paragraphs 6-8; Transcript, pages 6-8.
[102] Respondent’s Submissions dated 3 April 2020.
Based on the evidence before it, the Tribunal finds that the Veteran:
(a)Made a valid application under section 15 of the Act for an increase in the rate of pension that he was receiving, therefore meeting the requirements of section 24(1)(aa) of the Act from 11 November 2014.
(b)Had not yet turned 65 when the application was made, therefore meeting the requirements of section 24(1)(aab) of the Act from 11 November 2014.
(c)Had received a determination that his degree of incapacity from his war-caused injuries or diseases or both, is greater than 70% by the decision of the Respondent made on 14 May 2016 increasing his rate of disability pension to 100% of the General Rate, with effect from 4 October 2015. Therefore, meeting the requirements of section 24(1)(a) of the Act from 4 October 2015.
Consequently, the Tribunal is satisfied that during the assessment period the Veteran satisfied the requirements of section 24(1)(aa), (aab) and (a) of the Act.
Did the Veteran Satisfy the Requirements of Section 24(1)(b) of the Act?
In Wright and Repatriation Commission (2005) 144 FCR 302 at [15]/308, Hill J explained that section 24(1)(b) of the Act “goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.”
It is clear on the evidence before the Tribunal that the Veteran’s skills, qualifications and work experience had allowed him to engage in civilian employment in the maritime industry. It was not disputed that for the purposes of section 28 of the Act these are considerations relevant to determining the extent to which the Veteran’s accepted conditions have impaired his capacity to work.[103]
[103] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 23, paragraph 11.
The Veteran contended that he has been unable to undertake remunerative work for which he was engaged in the maritime industry due to his hearing loss disability.
The Veteran submitted that the Respondent had indicated that they agree that he met the requirements of section 24(1)(b) of the Act. The Tribunal notes that both the Respondent’s Statement of Facts, Issues and Contentions[104] and Closing Submissions[105] were largely silent on this point. Further at Hearing the Respondent’s representative confirmed that the Respondent saw section 24(1)(c) of the Act as being the main issue in dispute.[106]
[104] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions.
[105] Respondent’s Submissions dated 3 April 2020.
[106] Transcript, page 6.
The Tribunal having considered the evidence before it, accepts the submissions made by the Veteran in relation to section 24(1)(b) of the Act and in the absence of any contradictory submissions on this matter, the Tribunal in accordance with the beneficial nature of the legislation, will proceed on the assumption that the requirements of section 24(1)(b) of the Act are met.
Did the Veteran meet the Requirements of Section 24(1)(c) of the Act?
In Richmond at [52] – [53] the Full Federal Court outlined that section 24(1)(c) of the Act has two limbs:
52. …..The first limb, which is capable of being informed by s 24(2)(b) requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in.
53. The second limb, which is amplified by s 24(2)(a) requires a causal connection between that inability to work and the veteran’s suffering of financial loss. The enquiry under this limb relates to whether the veteran’s financial loss is a result of his or her war-caused incapacity.
The Veteran referred the Tribunal to the Flentjar methodology which poses four questions provided by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 (at 4-5) when considering section 24(1)(c) of the Act namely:
(1)What was the relevant “remunerative work that the veteran was undertaking” within the meaning of section 24(1)(c) of the Act?
(2)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake work?
(3)If the answer to question 2 is yes, is the war-caused injury or war -caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4)If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
It is noted that the Flentjar methodology provides assistance to decision makers however does not have the force of law. As such the Tribunal must apply the relevant statutory provisions and not be distracted by a mechanistic application of methodologies that are aimed at assisting the application of the law rather than displacing it.[107]
[107] Repatriation Commission v Richmond [2014] FCAFC 124 .
Question 1 – Nature of the Remunerative Work
This question considers the requirement that the Veteran is prevented from continuing to undertake the remunerative work that he was undertaking.
The Full Federal Court in considering section 24 of the Act in Repatriation Commission v Hendy (2002) 76 ALD 47 at 54/[36] made the following observations:
The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
Based on the evidence before the Tribunal, as set out above, which was undisputed, it is clear that the Veteran has engaged in remunerative work in the civilian maritime industry for in excess of 40 years and in roles as the ships master or pilot for at least 15 years.
Question 2 – Prevented from Continuing to Undertake Remunerative Work
The concept of “prevented from” continuing to undertake remunerative work was addressed by the Full Federal Court in Richmond. The Full Court, firstly, broadly approved the findings on this point by the primary judge:[108]
The learned primary judge held that the expression ‘alone, prevented from...work’ in the first limb of s24(1)(c) excluded from consideration a factor acting as an incentive or influencing a decision by a veteran to voluntarily cease the relevant remunerative work. In her Honour’s view the prevented element of the alone prevented test could only be satisfied by factors which ‘prohibit, disable or restrain’ the veteran from continuing to engage in the remunerative work and not by factors which induce or provide the veteran an incentive to cease that work.
[108] Repatriation Commission v Richmond [2014] FCAFC 124 at [70].
The Full Federal Court, after rejecting the submissions of the Respondent concluded as follows:[109]
77. The enquiry under the first limb is therefore whether the veteran’s war-caused incapacity alone, prevented, the veteran from continuing to undertake the remunerative work he or she previously engaged in. It is factors that prevent the veteran from engaging in remunerative work that are relevant to the enquiry under the first limb of s 24(1)(c).
78. On a plain English approach to the provision we do not consider that a veteran is ‘prevented from’ engaging in remunerative work by the veteran’s voluntary or elective decision to cease work for a reason other than incapacity. The ordinary meaning of ‘prevented from’ does not include such voluntary or elective choices, and acceptance of the Commission’s argument would mean that ‘prevented from’ includes ‘chooses not to’. In our view this would give the expression an unjustifiable extended meaning.
[109] Repatriation Commission v Richmond [2014] FCAFC 124 at [77]-[78].
The Tribunal notes that the Respondent did not make submissions against the Veteran having been prevented from continuing to undertake remunerative work due to his hearing loss disability in either the Statement of Facts, Issues and Contentions[110] or at Hearing.[111] The Respondent did however submit in written closing submissions[112] that the Veteran’s hearing loss is capable of mitigation with the benefit of hearing aids and as such his hearing loss should not be considered to ‘prohibit, disable or restrain’ him from undertaking remunerative work.[113]
[110] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions.
[111] Transcript.
[112] Respondent’s Submissions dated 3 April 2020, pages 1-14..
[113] Respondent’s Submissions dated 3 April 2020, pages 12-13, paragraphs 82-86.
The Respondent further submitted that:[114]
·as the Veteran did not avail himself of a second assessment of his medical fitness for the purposes of his Masters licence with AMSA; and
·as the Veteran told the VRB that he chose not to undertake a reassessment to correct the record of the effect of his psychological condition as he failed the assessment by reason of his hearing loss alone;
this ignores the likely impact of the Veteran’s ongoing anti-depressant treatment and in the absence of a further AMSA assessment, the Tribunal cannot be satisfied the Veteran would fail any further assessment by reason of his hearing loss alone.
[114] Respondent’s Submissions dated 3 April 2020, page 13, paragraph 87.
The Respondent further submitted that the while Dr Ng considered the Veteran demonstrated no evidence of an ongoing psychiatric disorder in November 2014, he developed psychological symptoms in March 2015 and commenced antidepressant treatment at this time which continued up until at least September 2018.[115]
[115] Respondent’s Submissions dated 3 April 2020, page 13, paragraph 88.
The Tribunal notes and accepts, the Veteran’s written submissions in reply as outlined above at paragraph 93 in relation to these submissions of the Respondent. The Tribunal places no weight on the Respondent’s submissions for two primary reasons, firstly the points were not previously raised with the Veteran or Dr Gerber either before or at the Hearing. Noting that the Respondent’s representative cross-examined both the Veteran and Dr Gerber. Secondly, the submissions are contradictory to previous concessions made by the Respondent and to the medical evidence.
The Tribunal prefers the evidence of Dr Ng as a consultant psychiatrist over that of Dr Hartland in relation to the Veteran’s psychological state at the time of the medical assessment in October 2014. As such the Tribunal considers that at the time of making his claim for an increase of the rate of pension the Veteran was not suffering from acute anxiety and depression and therefore he was certified as unfit for duties as a Deck Officer due to his high frequency hearing loss disability.
In the Work Ability Report dated 27 November 2014, Dr Gerber provided that the Veteran:[116]
Has worked for 47 years in maritime industry, the last 20 as a ship’s master including as a maritime pilot (high level task).
Will never be able to do this again as he has been found unfit on the basis of high frequency hearing loss which cannot be corrected to a level making him fit to pass the AMSA medical examination.
(emphasis added)
[116] Exhibit 1, T Documents, T61, pages 199-206, Work Ability Report of Dr Gerber, General Practitioner.
The Tribunal notes there is no evidence before it that contradicts this assessment by Dr Gerber, nor was he cross-examined about this view at Hearing. There is no evidence to suggest a further AMSA hearing test would have provided a different outcome and there certainly is no evidence to suggest that the Veteran’s hearing has improved. As such the Tribunal accepts the evidence of Dr Gerber.
The evidence before the Tribunal in the present matter shows that by virtue the Certificate of Medical Fitness completed by Dr Harland on 20 October 2014 the Veteran was prevented from continuing to undertake the relevant remunerative work. The Veteran’s evidence was clear on every occasion throughout the 6 year review process, he had no intention of retiring in 2014 and planned to work well into his 70s. The Veteran’s evidence, of which the Tribunal finds to be credible was that had he have passed the medical examination on 20 October 2014 he would have returned to remunerative work as a ships master later that year.
The Tribunal is satisfied that the medical evidence supports the proposition that the Veteran’s service-related hearing conditions met the prevention requirement of section 24(1)(c) of the Act during the assessment period.
Question 3 – Alone, Prevented from Continuing to Undertake Remunerative Work
The “alone” test had been the source of conflicting Federal Court authority, until any doubts underlying the proper construction of section 24(1)(c) of the Act were resolved firstly, by the Full Federal Court in Richmond, and was secondly by the endorsement of that decision by a differently constituted Full Federal Court in Repatriation Commission v Watkins (2015) 228 FCR 573.
In Richmond the Full Federal Court provided the following explanation of the “alone” test:[117]
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
[117] Repatriation Commission v Richmond [2014] FCAFC 124 at [58].
In the Respondent’s Statement of Facts, Issues and Contentions it is contended that other factors, particularly his non-accepted disabilities, his age and time outside the workforce preclude the Veteran from meeting the “alone test” requirements.[118]
[118] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 25-26, paragraphs 25-30.
The Respondent did not press the contention in relation to the Veteran’s hypertension, age or time outside of the work place in its closing written submissions.
In reviewing the medical evidence before it, the Tribunal notes that the Veteran’s hypertension was a long standing, overall, well managed condition that had not impacted upon the Veteran’s ability to undertake remunerative work. As such without any submissions or evidence to the contrary the Tribunal considers that the Veteran’s hypertension did not during the assessment period contribute to him being prevented from undertaking remunerative work.
The Tribunal notes that the Veteran provided evidence of which was supported by the statement of Mr Emerson that in the maritime industry it is not uncommon for people to be employed well after their 70^th birthday. This evidence was not disputed nor was any contrary evidence put to the Tribunal. As such the Tribunal considers that that Veteran’s age did not during the assessment period contribute to him being prevented from undertaking remunerative work.
At Hearing the Veteran told the Tribunal that if he was able to pass the medical requirements he would need to undertake some training of which he considered there to be no reason as to why he would not be able to undertake successfully. At that point, based on his extensive experience in the maritime industry the Veteran told the Tribunal he would be able to secure further paid work. Obviously, unfortunately for the Veteran this scenario will never occur due to the permanent nature of his hearing loss disability. The evidence of the Applicant was not disputed nor was any contrary evidence put to the Tribunal. As such the Tribunal considers that the Veteran’s time out of the maritime industry did not contribute to him being prevented from undertaking remunerative work during the assessment period.
The Respondent submitted that the Veteran’s left ankle condition had a preventative effect on his ability to continue in remunerative work from the commencement of the assessment period until the date of Dr Gerber’s 15 December 2017 report.[119]
[119] Respondent’s Submissions dated 3 April 2020, page 12, paragraph 77.
The Veteran submitted that there was no evidence supporting a finding that he suffered a left ankle condition having any incapacitating effects in October 2014 when his career ended.[120]
[120] Applicant’s Outline of Submissions, page 10 paragraph 34.
This contention is supported by the fact that the Veteran had been engaged in regular remunerative employment and gave evidence that he had been offered further work prior to him having to cease work due to failing to meet the medical requirements needed to continue to work as he had done within the maritime industry. This evidence was not disputed.
In reviewing the medical evidence before the Tribunal, it is noted both Dr Gerber[121] and Dr Chris Harvey,[122] general practitioner had made reference in 2015 to the Veteran having experienced pain in his left ankle for a number of years which worsened to a point of referring him to Dr Houston for opinion and management.
[121] Exhibit 12, Summons Material: Surgery Consultation note dated 30 March 2015.
[122] Exhibit 14, Summons Material: Dr Houston – referral from Dr Harvey to Dr Houston dated 27 August 2015.
Both the Veteran and Dr Gerber gave evidence that his left ankle condition caused him impairment as a consequence of the Veteran having put on weight since finishing work. The evidence before the Tribunal of which is accepted by the Respondent is that from the date of Dr Gerber’s report of 15 December 2017, having lost a significant amount of weight the Veteran’s left ankle condition ceased to cause an impairment that would have been preventative to him undertaking remunerative work. This position was not displaced by the evidence of Dr Houston.
As such the Tribunal considers that the Veteran’s left ankle condition did not contribute to him being prevented from undertaking remunerative work from 11 November 2014, however, was of a preventative nature between August 2015 and 15 December 2017.
The Respondent submitted that the Veteran’s psychological condition had a preventative effect on his ability to continue in remunerative work from the commencement of the assessment period until 11 September 2018 at the earliest, that being the date of Dr Hollett’s report and the most recent evidence of the Veteran taking antidepressant medication.[123]
[123] Respondent’s Submissions dated 3 April 2020, page 12, paragraph 78

As previously provided the Tribunal accepts the evidence of Dr Ng over that of Dr Hollett in relation to the Veteran’s psychological situation at the end of 2014. Having reviewed the evidence before the Tribunal and that provided by the Veteran at Hearing, it is reasonable to consider that he would have been anxious and upset at the appointment with Dr Hollett – his ability to do what he had always done – work at sea was being taken away from him.
In the Respondent’s written closing submissions, they make reference to Dr Gerber having prescribed the Veteran with anti-depressant medication from 16 March 2015 up until at least late October 2017.[124] Reviewing the summons material directed to,[125] the Tribunal notes that the prescription related to stresses being experienced by the Veteran at the time.
[124] Respondent’s Submissions dated 3 April 2020, page 4, paragraph 34.
[125] Exhibit 12, Summons Material: Surgery Consultation notes, page 179 and 149-153.
Today being prescribed an anti-depressant is not an uncommon thing, nor in most instances does it preclude the person from engaging in remunerative work. The Respondent did not seek to test whether any incapacity arose from the Veteran’s taking anti-depressants or whether he was doing so on an ongoing basis, with the Veteran on cross examination. Further the Respondent did not when cross examining Dr Gerber raise the issue with him.
As such based on the evidence before it, the Tribunal considers that the Veteran’s anxiety and depression did not contribute to him being prevented from undertaking remunerative work during the assessment period.
The Respondent submitted that the Veteran’s left kidney condition had a preventative effect on his ability to continue in remunerative work during ‘both assessment periods’ up until Dr Waugh’s report dated 3 February 2020.[126]
[126] Respondent’s Submissions dated 3 April 2020, page 12, paragraph 79.
The Veteran submitted that there is no evidence supporting a finding that his left kidney condition caused any incapacitating effects in October 2014 when his career ended.[127]
[127] Applicant’s Outline of Submissions, page 11, paragraph 35.
The Veteran’s evidence was that from the time he was on dialysis (being March 2017) until he had recuperated from the transplant (which occurred in March 2019), his left kidney condition did have a preventative effect on his ability to continue in remunerative work.
The medical evidence before the Tribunal shows that the Veteran’s left kidney condition had been in existence from at least 2008 and that once he started regular dialysis due to the need to attend the hospital three times a week and be closely monitored this condition had an incapacitating effect on his ability to continue in remunerative work. Prior to the commencement of regular dialysis and at the time of ceasing remunerative work there is no evidence before the Tribunal that suggests that the condition was causing any impact to his ability to work.
The Tribunal accepts the evidence of Dr Gerber and the Veteran that the Veteran’s left kidney condition ceased to cause an impact on his ability to undertake remunerated work around 6 September 2019, being four weeks after the report of Dr Hollett. Dr Hollett provided on 6 August 2019 that if the Veteran remained stable in the following four weeks and had no further complications he could, at that stage, pursue further employment. There is no evidence that indicates that the position outlined by Dr Hollett did not occur.
As such the Tribunal considers that the Veteran’s left kidney condition did not contribute to him being prevented from undertaking remunerative work from 11 November 2014, however, was of a preventative nature between March 2017 and 6 September 2019.
Question 4 – Suffering a Loss of Salary, Wages or Earnings
This question considers whether the Veteran by reason of being prevented from continuing to undertake his previous work, suffered a loss of salary, wages or earnings that he would not be suffering if he were free of the incapacity.
The Veteran’s submissions are clear – if he was not unable to engaged in his usual remunerative employment due to his hearing loss disability he would have continued to be gainfully employed.
The evidence before the Tribunal includes various income tax statements from years prior to the Veteran ceasing work. Based on that evidence and the discussion in relation to the assessment period and preceding three questions the Tribunal is satisfied that the Veteran has suffered a loss of salary or wages that he would not had suffered had he been free of his hearing loss disability.
The Tribunal is satisfied that the Veteran satisfied the requirements of section 24(1)(c) of the Act at the time of his claim for an increase of disability pension and at various times throughout the assessment period. Specifically, between the period of 11 November 2014 and August 2015 and then again from 6 September 2019.
Conclusion in relation to section 24 of the Act
Based on the evidence before it and as outlined in the above consideration the Tribunal finds that the Veteran:
(a)Met the requirements of section 24(1)(aa) of the Act from 11 November 2014.
(b)Met the requirements of section 24(1)(aab) of the Act from 11 November 2014.
(c)Met the requirements of section 24(1)(a) of the Act from 4 October 2015.
(d)Met the requirements of section 24(1)(b) of the Act from 11 November 2014.
(e)Met the requirements of section 24(1)(c) of the Act from 11 November 2014 to August 2015 and again from 6 September 2019.
From what Date should the Veteran be Paid the Special Rate of Pension?
The Respondent in its written closing submissions submitted that by virtue of section 177(2)(b)(ii) of the Act, should the Tribunal increase the rate of the Veteran’s disability pension, that the earliest any such increase could take effect was 21 June 2017.[128]
[128] Respondent’s Submissions dated 3 April 2020, pages 13-14, paragraphs 89-90.
Relevantly, section 177 provides:
Effective dates of certain determinations relating to payment of pension or seniors health card
(1)This section is in addition to, and not in substitution for, any of the provisions of section 43 of the Administrative Appeals Act 1975 in their application to proceedings for a review by the Administrative Appeals Tribunal of a reviewable decision.
(2)Where the Administrative Appeals Tribunal, upon application made under subsection 175(1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension or income support supplement) or attendant allowance, or increases the rate at which a pension (not being a service pension or income support supplement) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:
(a) if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board--from a date not earlier than the earliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or
(b) in any other case:
…..
(ii) if the review relates to an application in accordance with section 15, or to an application for attendance allowance—from the date on which the application under subsection 175(1) was made.
The Veteran did not provide any submissions in relation the application of section 177(2)(b)(ii) of the Act in his written submissions in reply.
The Tribunal agrees that section 177(2)(b)(ii) of the Act is clear in that the Tribunal in this instance has no discretion to increase the Veteran’s rate of disability pension from a date earlier than the date on which he made his application to the Tribunal.[129]
[129] See Roberts and Repatriation Commission [1992] AATA 76; (1992) 15 AAR 192; (1992) 26 ALD 611.
As such even if the Tribunal had of found that the Veteran meet the requirements of section 24 of the Act from the date of his application for an increase of his disability pension on 11 November 2014 or at a date prior to 19 June 2017, the commencement date of such eligibility to receive the special rate pension could not be granted before 19 June 2017. This being the date the Veteran made his application for review of the decision with the Tribunal as it was made outside the statutory time frame of 3 months after receipt of the VRB decision.
Consistently with the decision in Smith and section 19 of the Act the Tribunal finds that the Veteran should be paid the special rate pension pursuant to section 24 of the Act from the date on which he first met all requirements of section 24(1) of the Act.
The Tribunal therefore approves the increase to the Veteran’s rate of disability pension to the special rate in accordance with section 24 of the Act from 6 September 2019.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the special rate disability pension from 6 September 2019.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.........[SGD]...................................................
Associate
Dated: 25 February 2021

Date of Hearing:
Final Submissions:

5 February 2020

1 May 2020

Counsel for the Applicant: Mr Anthony Harding

Solicitor for the Applicant:

Solicitor for the Respondent:

Mr Terrence O’Connor

Mr Peter Crethary

Moray & Agnew Lawyers