Devlin and Repatriation Commission - [2001] AATA 156

DECISION AND REASONS FOR DECISION [2001] AATA 156

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1085

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Brian Kevin Devlin
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date2 March 2001
PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides: 1. To affirm the decision under review in relation to ischaemic heart disease; 2. To set aside the decision under review in relation to sleep apnoea and diabetes mellitus and substitute its decision that these conditions are war-caused pursuant to section 9 of the Act and that pension is payable for these conditions from and including 15 May 1997. 3. Pension is assessed at 100 per cent of the General rate with effect from and including 15 May 1997 and at 100 percent of the General rate and the Extreme Disablement Adjustment from and including 30 June 1998.

..............….[sgnd]...................
Ms SM Bullock
Senior Member
Catchwords
VETERANS' AFFAIRS - Entitlement to Disability Pension - Operational and Defence-service - Reasonable Hypothesis and Balance of Probabilities - Diabetes Mellitus (Type 2) - Ischaemic Heart Disease - Sleep Apnoea - Obesity - Smoking History - Alcohol Abuse - Assessment - Special Rate - Extreme Disablement Adjustment

Legislation
Veterans' Entitlement Act 1986 ss 5D, 9, 13, 22, 24, 119, 120, 120A

Authorities
Repatriation Commission v Keeley [2000] 31 FCR 532
Re Withers and Repatriation Commission [2000] AATA 990
Hall v Repatriation Commission [1994] FCA 458

REASONS FOR DECISION

Ms SM Bullock, Senior Member

Mr Brian Kevin Devlin ("the Applicant") made an application for review of a decision of the Repatriation Commission dated 4 February 1998 (T2). The Repatriation Commission's decision was affirmed on 10 February 1999, by the Veterans' Review Board ("the Board") in respect of the conditions of ischaemic heart disease, diabetes mellitus and sleep apnoea. The Board set aside the original decision in relation to the condition of post traumatic stress disorder, which was determined by the Board to be war-caused with effect from 15 May 1997 and pension was assessed at 90 per cent of the General rate with effect from that date (T22).
A hearing was held in Sydney before the Administrative Appeals Tribunal ("the Tribunal") on 29 November 2000. Mr Devlin was represented by Mr Colborne of Counsel and the Respondent, the Repatriation Commission, was represented by Mr Modder, Solicitor and Advocate from the Department of Veterans' Affairs. Mr Devlin provided oral evidence to the Tribunal, as did his wife, Mrs Dianne Devlin. Dr MG Miller, Consultant Physician, also provided oral evidence. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T53) and the following exhibits:
Exhibit          Description Date
T-Documents T1-T53 Section 37 Statement and Documents and Supplementary Documents various dates
A1      Report of Dr MG Miller, Consultant Physician    30 March 2000
A2      Report of Dr L Schmidtman, Consultant Psychiatrist, St John of God Hospital, Richmond           9 November 2000
A3      Medical Records from St John of God Hospital various dates
R1      Medical Report of Dr D Richards, Clinical Associate Professor and Consultant Cardiologist           24 November 1999
R2      Supplementary Report of Dr D Richards, Clinical Associate Professor and Consultant Cardiologist   2 May 2000
R3      Medical Report of Dr R McEwin, Consultant Physician, Consultant Rehabilitationist        7 December 1999
R4      Further Report of Dr R McEwin, Consultant Physician, Consultant Rehabilitationist         8 August 2000
R5      Report of Dr I Lorentz, Consultant Physician and Neurologist 14 August 2000
R6      Medical Records from Blue Mountains District Anzac Memorial Hospital     various dates

Issues

The issues to be determined in this matter are:
(a)Whether or not Mr Devlin's conditions of sleep apnoea, ischaemic heart disease and diabetes mellitus are war or defence-caused; and
(b)Whether or not Mr Devlin is qualified to receive the Special rate of pension; and
(c)Whether or not, if Mr Devlin is not qualified for pension at the Special rate, he is qualified for the Extreme Disablement Adjustment.

Service History

Mr Devlin served in the Australian Army from 28 January 1958 to 26 January 1973. Mr Devlin's eligible war-service, which is operational service, was from 28 April 1966 to 15 February 1967, in South Vietnam. He also completed eligible defence-service in the Australian Army from 7 December 1972 to 26 January 1973.
Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act").
Section 5D of the Act deals with the definition of injury and diseases.
Section 9 of the Act deals with war-caused injuries or diseases and provides:
"
9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"

Section 13 of the Act deals with eligibility for pension.
Section 22 of the Act deals with qualification for the Extreme Disablement Adjustment. In effect, this section provides that a veteran is entitled to the Extreme Disablement Adjustment if the veteran's degree of incapacity is 100 per cent of the General rate, he or she is at least 65 years of age and he or she was not entitled to pension at the Special rate or Intermediate rate. The other criteria for payment at the Extreme Disablement rate are that a veteran has a lifestyle rating of at least 6 points and an impairment rating of at least 70 points.
Section 24 of the Act deals with the qualification for pension at the Special rate. As relevant section 24 states:
"24 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-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of 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.
…"
Section 119 of the Act reflects that the decision making process under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time, and the absence or deficiency in records.
In relation to Mr Devlin's defence-service, subsection 120(4) of the Act applies and a decision-maker is required to decide all relevant matters to its reasonable satisfaction. The standard of proof for Mr Devlin's operational service is that of the reasonable hypothesis, applying subsections 120(1) and 120(3) of the Act. As relevant, subsections 120(1), 120(3) and 120(4) provide:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A.
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"

Section 120A deals with Statements of Principles and requires that an assessment of the reasonableness of a hypothesis must be undertaken in accordance with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act.
In relation to Mr Devlin's defence-service, the Tribunal is also required to apply section 120B of the Act. Thus the Tribunal has to decide matters to its reasonable satisfaction in accordance with any of the Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.
Statement of Principles
Applying the principles arising out of Repatriation Commission v Keeley [2000] FCR 532, the Tribunal considers the appropriate Statements of Principles are those in force at the time of the primary decision, made by the Repatriation Commission on 4 February 1998. Because Mr Devlin had both operational and defence-service, the Statement of Principles reflecting each type of service are included. The relevant Statements of Principles are:
(a)Instrument Numbers 47 and 48 of 1996, as amended by Instrument Numbers 187 and 188 of 1996, concerning Diabetes Mellitus.
(b)Instrument Numbers 140 and 141 of 1996, as amended by Instrument Numbers 77 and 78 of 1997, concerning Ischaemic Heart Disease.
(c)Instrument Numbers 39 and 40 of 1997, concerning Sleep Apnoea
(d)Instrument Numbers 5 and 6 of 1994, concerning Psychoactive Substance Abuse or Dependence.

Background

The following information is provided by way of background and the information contained within is not in dispute.

Mr Devlin was born on 13 April 1934.
Mr Devlin left school when he was 15 years of age, having reached the second year of High School in Victoria (T49, p245).
In the Army, Mr Devlin was a storeman, technician and clerk.
Mr Devlin was discharged, "medically unfit", from the Army on 26 March 1973 (T30), with conditions noted at the time of bilateral mixed deafness, being overweight and anxiety reaction (T3, p13).
Following army service, Mr Devlin worked variously as a Purchasing Officer in 1973 with the Walco Group (T49, p245); a Clerk at Quarries Pty Ltd, 1973 to 1983 (T49, p245); a linesman and later as a cleaner at the then Telecom from 10 March 1983 to 13 November 1991 (T49, p245, T53, p258). Mr Devlin's last date of employment was 13 November 1991 when he was made redundant from Telecom (T48, T28).
Mr Devlin is married and has no children.
Mr Devlin previously lodged a claim for ischaemic heart disease, obesity and diabetes, which was refused by the Repatriation Commission on 7 October 1992.
On 15 August 1997, Mr Devlin lodged a further claim for disability pension for the conditions of sleep apnoea, ischaemic heart disease and diabetes mellitus. He wrote that he first became aware of the condition of sleep apnoea in 1992 and this condition arose out of service-caused obesity because of an "incorrect diet". Mr Devlin's then General Practitioner, Dr G Rose, related the condition of sleep apnoea to obesity and poor eating habits during war-service. Mr Devlin claimed he first became aware of ischaemic heart disease in 1974 and related this to stressful events in Vietnam in addition to his sleep apnoea and post traumatic stress disorder. Dr Rose opined that the ischaemic heart disease was brought on by poor eating habits during war-service. In relation to diabetes mellitus, Mr Devlin stated he first became aware of the condition in 1967/68 and again, this condition had arisen out of obesity, post traumatic stress disorder and alcohol consumption. Dr Rose opined in relation to diabetes mellitus that it was caused by war-service stress, poor eating habits leading to obesity and insulin resistance (T7, p62).
The Repatriation Commission refused Mr Devlin's claims for sleep apnoea, ischaemic heart disease and diabetes mellitus and post traumatic stress disorder on 4 February 1998 (T2).
Mr Devlin made an application for review to the Board and on 10 February 1999, the Board set aside the Repatriation Commission's decision in relation to post traumatic stress disorder, deciding that this condition was war-caused, with effect from 15 May 1997, with pension assessed at 90 per cent of the General rate. The Board affirmed the Repatriation Commission's decision in respect of sleep apnoea, diabetes mellitus and ischaemic heart disease (T22).
Mr Devlin lodged an application for review to the Tribunal on 18 July 1999 (T1).

Apart from the conditions which are the subject of this review, Mr Devlin has the following non-accepted conditions:
(a)Refractive error
(b)Dental carries
(c)Seborrhoeic dermatitis
(d)Anxiety disorder
(e)Haemorrhoids
(f)Obesity
(g)Cholelithiasis
(h)Recurrent Bronchitis

Evidence of Mr Devlin

Mr Devlin explained to the Tribunal that he has a great deal of difficulty with his memory. He could not recall when he left school, the employment he had undertaken or when he joined the Army.
In relation to his Army career, Mr Devlin stated that he could remember parts of the middle of his service but nothing from the beginning or the end.
In relation to his smoking of cigarettes, Mr Devlin stated that he was not sure when he commenced smoking but did recall that he was smoking before he went to Vietnam. Mr Devlin could not recall the quantity and frequency of his smoking habit prior to service.
Mr Devlin recalled that in Vietnam he smoked heavily and believed this was because he was "tense and stressed". Further, Mr Devlin stated that at the time he "never had a cigarette out of my hand". Mr Devlin believed that he continued smoking heavily after Vietnam and that Mrs Devlin had tried to encourage him to cut back his cigarette smoking.
While not remembering the date when he ceased smoking altogether, Mr Devlin believed that he ceased smoking on one occasion after his first heart attack, which was in 1975. He had been hospitalised at that time and remembered being told by his treating doctor that if he did not cease smoking immediately, the next time he came to hospital he would "leave in a box". Mr Devlin thought that despite this warning, he did not cease smoking straight away but cut down his consumption gradually. Mr Devlin was unable to recall the level of consumption of cigarette smoking just prior to his ceasing. He did recall, however, that when he ceased smoking altogether, "Benson and Hedges" cigarettes cost 50 cents per packet, which suggests that it was after 1966 when decimal currency was introduced into Australia.
Mr Devlin was asked about the various differing references in his Army and other medical reports as to the date that he ceased smoking and his level of smoking. Mr Devlin explained that he loved Army life and that he did not want anything to jeopardise his career in the Army. He thought that he may have not told the truth about his smoking habit because he believed at the time that it would impact adversely on continuing his Army career. He stated "I bent the truth". In similar terms, Mr Devlin told the Tribunal that the principle of minimising his cigarette smoking to the authorities applied also to him not telling the Army about his problems with his eyes, his ears or his alcohol consumption.
In relation to his alcohol consumption, specifically, Mr Devlin believed that he consumed alcohol in the form of beer before he went to Vietnam and thought that he might have had one beer per week. In Vietnam, he recalled that he drank heavily but cut back after his service.
Mr Devlin was questioned about his being over-weight. He stated that he has always had weight problems and believes that he has tried every diet ever developed. Currently, Mr Devlin's weight has slightly decreased. He has been provided with a medical opinion that his weight problem may be "a fluid problem". Mr Devlin explained to the Tribunal that his treating doctor, Dr T Underwood, has advised him to reduce his fluid intake and that if he does not reduce weight, he will need to attend hospital every six weeks because of his weight and fluid problems. Mr Devlin told the Tribunal that he is currently not a big eater and did not think he was a big eater in the Army. He further opined that his weight problems were not caused by a lack of exercise. Mr Devlin agreed that his weight, which was always high, went up and down during Army-service for no apparent reason.

Mr Devlin stated that within two years of returning to Australia from Vietnam, he was very tense, aggressive and moody.
Mr Devlin could also not recall what employment he undertook after discharge from the Army. He remembered, however, that his last job was with Telecom, where he worked in the orderly room and as a cleaner. Mr Devlin described finding it very difficult to work with people and that he was argumentative and aggressive. Fortunately for him, his last supervisor knew that Mr Devlin had served in Vietnam and the supervisor seemed to make allowances for him. The supervisor left Mr Devlin to do his job in his own way and in his own time. Mr Devlin told the Tribunal that he did not like dealing with people and would have days off for sickness for various reasons. During his last year of employment, he would use his rostered days off to attend Repatriation Commission related medical appointments and particularly appointments with his psychiatrist. He did not wish Telecom to know of his psychiatric condition. Mr Devlin told the Tribunal that he was retrenched from Telecom but could not recall if there were other employees who were retrenched at the same time. It is Mr Devlin's belief that if he did not have post traumatic stress disorder he would still have been able to work.
Mr Devlin told the Tribunal that he used to walk with a friend every three weeks but he is now unable to do this. He does not want to have anything to do with people apart from his wife, who he acknowledged is extremely supportive of him. Mr Devlin stated that he finds it extremely difficult, if not impossible, to use public transport and must always have his wife with him if he is forced to do so. He becomes anxious in crowds and does not like to have to deal with any "Asian people". For his recreational pursuits, Mr Devlin listens to the radio and will attempt to read the newspaper on the weekend but because of a severe lack of concentration, he finds that it will take him an entire week to get part way through a newspaper.
Mr Devlin is acutely aware and frustrated by his poor memory and stated that he has great difficulty remembering details, not just of the past but also the present. Mr Devlin's wife supervises his medication. Mr Devlin constantly forgets where he places things and to compensate for this problem, he and his wife have established a "filing system".
Mr Devlin described his leisure pursuits as following the Australian Football League and working on his computer. Mr Devlin has a "computer teacher" who helps him and who visits him every few weeks but is also available on the telephone to assist him with any difficulties he has. Mr Devlin experiences great frustration when he forgets particular procedures and often his way of dealing with this, he told the Tribunal, is that he will just switch the computer off. Mr Devlin described sitting, working on the computer in his "dungeon" or his study. He is unable to garden and recently when attempting this, found he was pulling out the wrong plants because he had forgotten the identity of the good plants as opposed to the weeds. Mr Devlin is also unable to mow the lawn, though he is able to shower himself. Mrs Devlin has to pick out his clothes for him. Mr Devlin stated that he is able to make his own breakfast.
In relation to his post traumatic stress disorder, Mr Devlin told the Tribunal that he consults with Psychiatrist, Dr L Schmidtman of St John of God Hospital, Richmond. He used to consult another psychiatrist but this doctor is no longer in practice. Mr Devlin stated that he is also supposed to have counselling and attend a psychiatrist's appointment every month but he has not done this. Mr Devlin thought that he had been admitted to St John of God Hospital on six occasions and on one occasion the admission was for a lengthy period of about two months. Generally, Mr Devlin believes that the psychiatric treatment has helped him, however, he still has very bad days. Mr Devlin stated that he has bad dreams and at times is very depressed and bursts into tears for no apparent reason. He takes about four tablets, he thought, for post traumatic stress disorder.
Soon after being made redundant from Telecom, Mr Devlin applied for a service pension. He maintains that if it had not been for the post traumatic stress disorder he would still have been able to work.
In relation to his diabetes mellitus, Mr Devlin has insulin injections and is monitored. In relation to his sleep apnoea, he uses a "CRAP" machine to good effect and is able to sleep more completely through the night. Mr Devlin is also under review by a cardiologist for his ischaemic heart disease.
Evidence of Mrs Devlin
Mrs Devlin first met Mr Devlin in May 1963 and they were married, she stated, on 17 August 1973. Their early relationship was, while close, characterised by long absences from each other as Mr Devlin was in camp in the Army and Mrs Devlin was working for the then Post Master General's Department. The couple would see each other when either of them was on leave, and thus spent approximately seven weeks together out of every year. When Mrs Devlin first met Mr Devlin, he was smoking but Mrs Devlin did not think that he was smoking much; she is a non-smoker. Mrs Devlin described Mr Devlin at that early time in their relationship as "a fun loving man – nothing really worried him". Mrs Devlin recalls that when they were first going out, Mr Devlin brought cigarettes by the carton and there were always cigarette cartons in his car.
When Mr Devlin came back from Vietnam, Mrs Devlin observed that her future husband never "had a cigarette out of his hand". Mrs Devlin was unable to provide any detail as to the quantity of cigarettes Mr Devlin was smoking on return from Vietnam, but believed he was smoking at least one packet per day before he ceased. It was after Mr Devlin's first heart attack in 1975, that Mrs Devlin believed her husband ceased smoking. She recalled this because of medical advice to Mr Devlin that if he did not cease smoking the continued smoking habit would kill him. Mr Devlin was so shocked by this medical opinion that he ceased smoking completely, Mrs Devlin stated. Mrs Devlin disagreed with a notation from the Royal Prince Alfred Hospital's notes that her husband gave up smoking in 1967.
In relation to his alcohol consumption, Mrs Devlin noted that Mr Devlin was consuming alcohol before his service in Vietnam. In this regard, she recalled that Mr Devlin liked his father-in-law very much and they would spend every second or third night together. Their contact was characterised by drinking together at the level, Mrs Devlin believed, of two schooners of beer each night. Mrs Devlin did not know the quantity of alcohol consumption in Vietnam but from discussions with Mr Devlin's army colleagues, believed that they all drank a great deal. Mrs Devlin was aware that Mr Devlin and his mates would avail themselves of the supplies from the American stores. She thought that he could consume in the order of 24 standard cans of beer per day. When he came back from Vietnam, Mrs Devlin estimated that Mr Devlin was drinking between three and four schooners of beer per day for a couple of years but then this reduced. It was difficult for her to be precise about the alcohol consumption because Mr Devlin was transferred to Queensland and Mrs Devlin did not know his alcohol consumption in Queensland.
After his discharge from the Army in 1973, Mrs Devlin noted that Mr Devlin was not able to obtain employment immediately. At that time he was drinking but Mrs Devlin did not know at what level. She told the Tribunal that she and her husband would have wine at dinner followed by a glass of port and that he ceased his consumption of alcohol completely in 1975.
Concerning Mr Devlin's weight problem, Mrs Devlin stated that before Mr Devlin went to Vietnam, while he was a "big man", she was still able to put her arms around him, but when he came back she could no longer do this. She also recalled that while the weight increase could not be easily detected by sight, she believed Mr Devlin had to be issued with a larger uniform. Mrs Devlin believed that Mr Devlin further increased his weight after Vietnam because "he got stuck into the food". When Mr Devlin is nervous or worried, Mrs Devlin stated to the Tribunal that he eats more by "picking at anything – whatever is there". The problem time for increasing weight, Mrs Devlin believed, was 1967, 1968 and 1969. Diets do not generally work for Mr Devlin and Mrs Devlin opined that perhaps his weight problem is "in his genes". Mrs Devlin thought that there was in fact a dramatic increase in weight in 1968/1969 when he would eat ice cream, chocolates, puddings and biscuits. It was around that time, Mrs Devlin believed, that Mr Devlin was diagnosed as suffering from diabetes mellitus. Mrs Devlin confirmed that in 2000, Dr T Underwood advised Mr Devlin that his weight problem might relate to fluid retention problems and advised him to limit his fluid intake. At the time of hearing, there had been a reduction in weight from 121 kilograms to 110 kilograms.
Mrs Devlin explained to the Tribunal that when Mr Devlin returned from Vietnam, he was a "different man". Mr Devlin was tense, moody, argumentative and aggressive. He did not relate well to people and she had to contend with this behaviour, only receiving help from the Department of Veterans' Affairs within the last three years. Mrs Devlin believed that her husband had definitely become worse over the years because of his post traumatic stress disorder and continued to have nightmares and mood swings. Mrs Devlin stated that her husband is treated for this condition by a psychiatrist and also receives counselling at St John of God Hospital. Mrs Devlin confirmed that Mr Devlin had previously also attended another psychiatrist but was no longer doing so because that psychiatrist is no longer in practice.
Mrs Devlin told the Tribunal that her husband could not cope on public transport and indeed on the trip to attend the hearing, they had to sit with their backs to the wall. Mr Devlin becomes very upset and agitated by crowds and particularly any contact with "Asian people".
Mrs Devlin stated that while Mr Devlin can make his own breakfast, she has to very carefully monitor his medication because Mr Devlin has a very poor memory, which has become increasingly worse over the last ten years. Mrs Devlin undertakes all the other domestic duties, mows the lawns and tends to the garden. She drives the car and noted that Mr Devlin has not driven the car for approximately five years.
Whenever Mrs Devlin needs to enter Mr Devlin's study, she must ring a bell warning Mr Devlin of her approach. If she does not do this, Mr Devlin becomes extremely frightened by her unannounced visit.
Mrs Devlin gave further evidence that Mr Devlin's only hobby is working on his computer. Despite his love of this and the fact that he has a "teacher" to help him, he still becomes very frustrated because he forgets what he needs to do to carry out various procedures. Mrs Devlin stated that people no longer visit her and her husband because of Mr Devlin's attitude and condition. Mrs Devlin stated that she does not like leaving her husband alone because she is afraid that he might "top himself", which she confirmed related to her fear that Mr Devlin would commit suicide. She said that this fear is very realistic and if she has to go out it is only momentarily to go to the shops and that she always phones him frequently to check that he is alright.
In relation to sleep apnoea, Mrs Devlin thought that her husband may well have had symptoms of this in 1973. He was very sleepy in the day and would doze off at work. She was aware that Mr Devlin would have sleeps in the shed at work. The actual diagnosis of the condition, however, occurred in 1992 following a sleep study undertaken at Royal Prince Alfred Hospital.
Mrs Devlin concluded her evidence by noting that her and her husband's life plans were that Mrs Devlin would retire first, she would then "get things in order" prior to Mr Devlin retiring. She herself received a redundancy package later in 1991. Mrs Devlin opined that if it had not been for Mr Devlin's post traumatic stress disorder, he would have been able to work up until the planned retirement age of 65 years.
Evidence of Dr MG Miller, Consultant Physician
The Tribunal was provided with a report dated 30 March 2000, prepared by Dr MG Miller (Exhibit A1) and Dr Miller also provided oral evidence to the Tribunal.
In Dr Miller's report, he noted that Mr Devlin's extreme memory loss, which he understands, following a telephone discussion with psychiatrist, Dr L Schmidtman of St John of God Hospital, relates to Mr Devlin's post traumatic stress disorder. Dr Miller noted that the onset of sleep apnoea was 1992 and in relation to ischaemic heart disease, there was some possibility that he had had this condition since 1967, as opined by Dr D Richards, Consultant Cardiologist (Exhibit R1, R2). Dr Miller opined, however, that the onset of ischaemic heart disease could well be 1975. He assessed Mr Devlin's effort tolerance at 2-3 MET's. Dr Miller noted various differing references to Mr Devlin's smoking history, but on balance considered that Mr Devlin had a smoking history of 20 pack years in his lifetime, noting that he was smoking between one and two packets of cigarettes per day, averaging 30 cigarettes per day until 1975, when he was advised to stop smoking because of an heart attack. Dr Miller concluded that Mr Devlin did not cease smoking in 1975 but cut back to 10 cigarettes per day, ceasing smoking completely in 1985.
In relation to Mr Devlin's alcohol history, Dr Miller concluded that Mr Devlin commenced drinking heavily in South Vietnam and then drank "exceedingly heavily" when he returned home. Dr Miller estimated that Mr Devlin was consuming 150 grams of alcohol or more daily with binges on the weekend. Dr Miller concluded, based on Mr and Mrs Devlin's history, that Mr Devlin ceased alcohol consumption after his second heart attack in 1978. Dr Miller concluded Mr Devlin had a history of alcohol abuse. In relation to diabetes mellitus, Dr Miller noted that Mr Devlin was first documented as having diabetes mellitus in 1973, having smoked 10 pack years of cigarettes by 1975 and the condition had deteriorated by the late 1970s, warranting oral medication.
Dr Miller concluded in his report that sleep apnoea was contributed to by pharyngeal obstruction and obesity and that these conditions were not related to war. Specifically, Dr Miller noted that Mr Devlin was obese prior to his service in Vietnam and therefore sleep apnoea was not related to war-service as a reasonable hypothesis nor on the balance of probabilities.
In relation to ischaemic heart disease, Dr Miller concluded that Mr Devlin commenced smoking prior to his service but it was his war-service in Vietnam that increased his cigarette consumption significantly with his smoking at least 20 pack years of cigarettes until 1985. Mr Devlin is documented as having myocardial ischaemic attacks in 1975, 1978 and 1982 and at that time he was still smoking. Dr Miller opined that Mr Devlin satisfies factor 5(f)(i) of the Statement of Principles concerning Ischaemic Heart Disease, Instrument Number 38 of 1999 [the current Statement of Principles] and a reasonable hypothesis was made out that ischaemic heart disease related to Mr Devlin's war-service.
In relation to diabetes mellitus, Dr Miller concluded that Mr Devlin satisfied the Statement of Principles for Diabetes Mellitus by meeting factor 5(v) of Instrument Number 46 of 1999, which deals with the worsening of diabetes mellitus.
In relation to assessment, Dr Miller opined that the correct impairment rating for the accepted condition of post traumatic stress disorder is 54 points from Chapter 4 of the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide"). He also provided a rating of 40 points from Table 5.1 of the Guide to cover the very frequent and severe symptoms of Mr Devlin's profound cognitive loss, although he did note that Dr Schmidtman had agreed that Mr Devlin's memory loss was directly related to post traumatic stress disorder.
In relation to lifestyle, Dr Miller assessed the lifestyle rating from Chapter 22 of the Guide at 6 points. Therefore, with a total impairment rating of 72 points, and a lifestyle rating of 6, Dr Miller opined that Mr Devlin certainly satisfied the criteria for the Extreme Disablement Adjustment and should be further investigated for the possibility of qualification for a Special rate of pension.
At hearing, Dr Miller was asked about the relationship between post traumatic stress disorder and Mr Devlin's obesity, particularly noting that Mrs Devlin advised the Tribunal that whenever nervous and anxious, Mr Devlin would "pick at anything". Dr Miller stated that although he was not a psychiatrist and this would need to be checked psychiatrically, it was reasonable to consider that there was a link between Mr Devlin's inability to control his weight or reduce his weight because of his accepted condition of post traumatic stress disorder and service. The resultant obesity could be connected to sleep apnoea, which was likely to have been present before 1992. Dr Miller further opined there could be a connection raised with service contributing to the obesity and the development of Type 2 diabetes mellitus.
In relation to the onset of ischaemic heart disease, Dr Miller acknowledged Dr Richards's opinion that the onset of this condition could have been as early as 1967. At that time, Mr Devlin was 33 years of age and although this is an early onset for ischaemic heart disease it was not impossible. Dr Miller preferred 1975 as the more likely date of onset of ischaemic heart disease.
In relation to the assessment of ischaemic heart disease, Dr Miller opined that Mr Devlin has an effort tolerance rating of 2-3 MET's and in terms of diabetes mellitus considered that the appropriate rating is 5 points from Table 12.1.1 of the Guide.
Dr Miller's oral evidence in relation to smoking and drinking is that it is very difficult, given Mr Devlin's poor memory and recall, in addition to a variety of documented dates and quantities of alcohol and tobacco consumption and cessation, to reach a very accurate view about such matters. Dr Miller offered the opinion that in his experience people do tend to minimise such matters because they want to portray themselves in a good light. In relation to smoking, if it was determined that Mr Devlin ceased smoking by 1967, then considering the relevant Statement of Principles, he would have had to develop ischaemic heart disease by 1977, Dr Miller opined.
Other Medical Evidence
Dr L Schmidtman, Consultant Psychiatrist, St John of God Hospital, Richmond
On 9 November 2000, Dr Schmidtman reported that Mr Devlin had been a patient under her care from his first hospital admission commencing on 18 August 1998, with the last hospital admission between 22 May and 23 June 2000. Dr Schmidtman reported that Mr Devlin suffers from a severe and chronic post traumatic stress disorder with associated severe depression. Dr Schmidtman noted a history of alcohol abuse during and after war-service in Vietnam but noted he had been able to control his intake. Mr Devlin has symptoms of severe anxiety, agitation, poor sleep, hypervigilance and marked difficulties in concentration (Exhibit A2). Dr Schmidtman also reported memory difficulties, especially in the area of short term memory and a diminished ability to recall some details of his military service or autobiographical data, which formed part of Mr Devlin's long term memory. Dr Schmidtman opined that Mr Devlin's short and long term memory impairments are difficult to reconcile with an organic condition such as being alcohol induced or dementia from Alzheimer's disease. Dr Schmidtman concluded that Mr Devlin's memory loss is not consistent with an organic problem and concluded that it is well documented in psychiatric literature that people suffering from anxiety, depression and/or post traumatic stress disorder can experience difficulties in concentration and memory deficits.

Dr Schmidtman concluded that Mr Devlin's war-caused chronic post traumatic stress disorder with associated major depression is alone enough to prevent him from undertaking any form of remunerative work of eight or more hours per week.
Dr D Richards, Consultant Cardiologist, Clinical Associate Professor, Department of Medicine, Sydney University.
Dr Richards provided two reports in relation to Mr Devlin, dated 24 November 1999 (Exhibit R1) and 2 May 2000 (Exhibit R2). Dr Richards took a history of smoking from Mr Devlin of consuming three cigarettes per day between 1960 and 1966; 40 cigarettes per day from May 1966 to December 1967; and 6 cigarettes per day until cessation of smoking in 1985. In relation to alcohol consumption, Dr Richards noted that Mr Devlin consumed one or two beers per week from 1953 to 1966 and in 1966 his beer consumption increased to "20 per day" with a cessation of alcohol consumption in approximately 1975.
In relation to ischaemic heart disease, Dr Richards opined that Mr Devlin had symptoms suggestive of ischaemic heart disease since 1967 and thus could have had the onset of this condition as early as 1967. In coming to this conclusion, Dr Richards noted a report from Dr C Pan (T48) written on 11 June 1990, in which Dr Pan noted that Mr Devlin had had ischaemic heart disease for 20 years; that is, since approximately 1970 and indeed Mr Devlin had told Dr Richards that he had experienced chest discomfort and dyspnoea since 1967. Dr Richards noted that Mr Devlin was obese for at least two years prior to the onset of ischaemic heart disease but in his opinion, his obesity was not due to his military service and accordingly Mr Devlin's circumstances do not satisfy any of the factors in the Statement of Principles concerning Ischaemic Heart Disease.
Dr Richards provided a supplementary report (Exhibit R2) in which he confirmed his opinion that Mr Devlin had ischaemic heart disease based on the presence of angina "since 1967, or thereabouts". He expressed the view, based on his belief that cigarette smoking of 40 cigarettes per day from May 1966 to December 1967, had been accepted as causally related to service, agreeing with Dr Miller's opinion that ischaemic heart disease was related to smoking through the relevant Statement of Principles and its factor 5(f)(i). Further, Dr Richards concluded that diabetes mellitus was also causally related to service through Mr Devlin's smoking habit.
Dr R McEwin, Consultant Physician and Rehabilitationalist
Dr McEwin provided two reports dated 7 December 1999 (Exhibit R3) and 8 August 2000 (Exhibit R4). Dr McEwin reported that Mr Devlin provided a history of not smoking cigarettes since 1967 and had also told Dr McEwin that he was an alcoholic when he returned from Vietnam.
Dr McEwin commented that congestive cardiac failure, bronchitis and post traumatic stress disorder are major problems for Mr Devlin. He opined that Mr Devlin's accepted and rejected conditions combined, prevent him from undertaking remunerative work and he is permanently unfit for employment.
Dr McEwin assessed Mr Devlin's post traumatic stress disorder at 52 points, nerve deafness at 31 points, tinnitus at 2 points and tinea with a nil rating. In relation to Mr Devlin's lifestyle rating, Dr McEwin commented that Mr Devlin had self assessed his lifestyle at 4 and he agreed with this. Dr McEwin further opined that Mr Devlin qualifies for a Special rate of pension because of his permanent inability to gain employment, "largely though his post-traumatic stress disorder", although Dr McEwin also noted that one has to take into account that Mr Devlin's congestive cardiac failure and his bronchitis are pertinent factors in his inability to work.
In his supplementary report of 8 August 2000, Dr McEwin considered further material including notes from Telecom, the Wentworth Area Health Service, Dr Schmidtman's report and other supplementary T-Documents. Having read this material, Dr McEwin concluded that Mr Devlin's problems were related to non-accepted conditions more than his accepted conditions and concluded that his accepted disabilities alone were not responsible for the cessation of his work at Telecom.
Dr McEwin provided a new assessment of 36 points for Mr Devlin's post traumatic stress disorder, 31 points for his nerve deafness, tinnitus at 2 points and tinea at nil. The lifestyle assessment remains at four.
Dr I Lorentz, Consultant Physician and Neurologist
Dr Lorentz completed a report on 14 August 2000, having examined Mr Devlin on 10 August 2000 (Exhibit R5). Dr Lorentz opined that Mr Devlin suffers from an amnesic syndrome, which is psychogenic in origin. Dr Lorentz believes the condition is psychiatric rather than neurological. While he does not think that post traumatic stress disorder is the cause of Mr Devlin's memory problems, Dr Lorentz recommended that a psychiatric opinion be obtained and was prepared to accept the expert opinion of a psychiatrist. Dr Lorentz accepts that Mr Devlin drank heavily before, during and after the service but noted there is no objective evidence that he had an alcohol abuse problem, which ended in 1978. Dr Lorentz disagreed with Dr Miller that Mr Devlin has cognitive loss.
In relation to Mr Devlin's employment situation, Dr Lorentz opined that it appears that Mr Devlin had been able to work for 20 years after his return from Vietnam although in the latter part of his employment with Telecom, he took many sick days.
In relation to the impairment assessments for Mr Devlin's accepted condition, Dr Lorenz concluded that the rating for post traumatic stress disorder is 53 points and that there should not be any assessment in terms of Mr Devlin's memory loss from the Neurological Table 5.1. Dr Lorentz concluded that because of Mr Devlin's multiple handicaps including obesity, ischaemic heart disease, diabetes mellitus and severe brachycardia, he would have been unemployable from 15 August 1997. Dr Lorentz further concluded that Mr Devlin's retrenchment from Telecom was the result of multiple problems mainly to do with his obesity, sleep apnoea and diabetes mellitus rather than his alleged cognitive loss.
Dr GM Marel, Consultant Physician and Endocrinologist
Dr Marel has been treating Mr Devlin for his diabetes mellitus for some time. In a report of 5 March 1998, Dr Marel wrote to Mr Devlin's then General Practitioner, Dr RO Davis and noted that there had been complications of Mr Devlin's diabetic disease including diabetic retinal disease and almost certainly diabetic renal disease. Dr Marel also referred to Mr Devlin's difficulties in maintaining his weight and reported:
"There have been difficulties in Mr Devlin being able to achieve significant weight reduction and part of this relates to depression and treatment for this which would probably inhibit weight loss programs" (T14, p97)

Other Evidence
Telecom Australia

On 4 November 1991, Mr RJ Kuhn, Human Resources Manager of Telecom Residential Services, Sydney North Region, signed a notice of "Retirement of an Officer Under Section 85" of the Australian Telecommunications Corporation Act 1989. Mr Kuhn certified that a greater number of officers within Telecom were occupying positions of Communications Officer 1 than were necessary for the efficient working of the Australian Telecommunications Corporation. In this regard, Mr Devlin was an officer who was excess to requirement and there were no other positions of equal classification which Mr Devlin was competent to fill and there was no position in a lower classification to which he could be transferred. Accordingly, pursuant to section 85 of the Australian Telecommunications Corporation Act 1989, Mr Devlin was retired and the retirement was to take effect from the close of business on 13 November 1991 (T48).
Submissions
Mr Colborne for the Applicant noted that Mr Devlin's obesity has been a considerable problem and that in terms of entitlement for Disability Pension for the conditions of sleep apnoea and diabetes mellitus, Mr Colborne relied on the fact that when Mr Devlin was depressed or nervous he tended to eat. That was the evidence provided by Mrs Devlin specifically and when questioned about this, Dr Miller conceded that it is quite consistent with post traumatic stress disorder to compensate by eating. Further, Mr Colborne referred the Tribunal to a report of psychiatrist, Dr A Samad, who reported on 17 May 1991, that when Mr Devlin was nervous he was inclined to eat more (T23, p137). Dr G Rose, one of Mr Devlin's treating General Practitioners also noted on 31 July 1992, that he considered that Mr Devlin's obesity had a number of causal factors including it being as a result of stress-induced eating and generally poor eating habits when on service (T23, p141).
Considering the records of Mr Devlin's weight and noting Mr Devlin's base weight of 192 pounds, Mr Colborne submitted that, with minor variations, Mr Devlin weighed about 230 pounds until his return from Vietnam when it increased to 273 pounds in 1972, with a Body Mass Index (BMI) of 40.4. Mr Devlin was also hospitalised while in the Army for obesity, anxiety and depression. It was significant, Mr Colborne submitted, that the only time that Mr Devlin was hospitalised in the Army for obesity was also the time when it was thought he needed treatment for anxiety/depression and that this raised the inference that the two may be linked. It is also in the period 1972 to 1973, that there is the first suggestion of sleep apnoea (when it was noted in service documents that Mr Devlin was sleeping all the time). The first recorded instance of sleep apnoea coincided, Mr Colborne submitted, with an increase in weight following Mr Devlin's return from Vietnam. The increase was in the order of 30 pounds. The hypothesis put by Mr Colborne is that service, through anxiety, increased Mr Devlin's eating and contributed to his obesity which in turn contributed to the onset of sleep apnoea.
Mr Colborne's final submissions in relation to obesity is that it is pure speculation that this was caused by fluid retention problems and there was no objective evidence before the Tribunal to support this proposition. Mr Colborne contended that the Tribunal should note Dr Miller's conclusion that a person can have fluid retention as a result of heart problems. Further, in relation to Mr Modder's discussion of Mr Devlin's ability to reduce his weight in 1972, this had occurred, Mr Colborne submitted, in the context of Mr Devlin's obesity being so gross that he was hospitalised for six to eight weeks and forced to diet. A similar scenario happened after Vietnam when again Mr Devlin's weight was so great that he was hospitalised and put on a forced diet. Mr Colborne thus sought to illustrate to the Tribunal that a hypothesis was clearly raised that as a result of Mr Devlin's post traumatic stress disorder and its symptoms of depression, Mr Devlin ate because of anxiety and depression and his inability to reduce his weight was compromised because of the war-caused post traumatic stress disorder and its impact.
A further hypothesis put by Mr Colborne is that obesity existed for 10 years as required by the relevant Statement of Principles concerning Diabetes. Mr Colborne submitted that the question raised is whether Mr Devlin's war-service contributed in any way under the Act to that obesity. Further, in Mr Colborne's submission, the answer to this question must be "yes" and the fact that much of the obesity is unrelated to Vietnam is irrelevant. Mr Colborne submitted that there is nothing before the Tribunal that would permit it to come to a conclusion that it could not be satisfied beyond reasonable doubt that any of the hypothesised facts did not exist.
Referring to Dr Miller's reference to alcohol abuse, however, Mr Colborne submitted that the Tribunal could not find on the evidence that Mr Devlin's alcohol consumption satisfied the Statement of Principles concerning Psychoactive Substance Abuse or Dependence.
In relation to the condition of ischaemic heart disease, Mr Colborne submitted that he relied on the connection between diabetes mellitus, which he had submitted was war-caused and its link with ischaemic heart disease. Further, Mr Colborne also submitted that smoking could be linked to the causation of Mr Devlin's ischaemic heart disease. In so submitting, Mr Colborne recognised the difficulty in Mr Devlin's smoking histories, which vary enormously. He contended, however, that the Tribunal should be guided by Mrs Devlin's evidence. Although it was difficult to determine precise smoking quantities from Mrs Devlin's evidence, Mr Colborne proposed the hypothesis that stressful service in Vietnam led to an increase in smoking in Vietnam and smoking persisted until Mr Devlin's first heart attack in 1975. Mr Colborne submitted that there was no evidence before the Tribunal to dispute these facts. Further, counsel contended that if the Tribunal found that there is a connection between smoking and service, then the smoking history, as hypothesised by Mr Colborne and supported principally by Mrs Devlin's evidence, would satisfy the smoking factor 5(e) for the relevant Statement of Principles concerning Ischaemic Heart Disease, involving smoking at least five cigarettes per day for at least three years before the onset of ischaemic heart disease or where smoking had ceased, the clinical onset had occurred within 15 years of cessation. In relation to Re Withers and Repatriation Commission [2000] AATA 990, Mr Colborne submitted that that case turned on its own facts and was not of assistance in considering Mr Devlin's matter.
In relation to Mr Devlin's qualification for a Special rate, Mr Colborne submitted that if the Tribunal accepted the claimed conditions of sleep apnoea, diabetes mellitus and ischaemic heart disease, then although Mr Devlin may not have ceased employment at Telecom because of his pensionable conditions alone, having been retrenched, he retained a desire to continue working and if he had of been offered employment, Mr Devlin's evidence was that he would have accepted and tried it. Accordingly, Mr Colborne submitted that Mr Devlin is qualified for Special rate. Because Mr Devlin is under the age of 65, he has the benefit of subsection 24(2)(e) of the Act. Mr Colborne referred the Tribunal to Hall v Repatriation Commission [1994] FCA 458 to support his contentions concerning Special rate. From that decision, Mr Colborne submitted that it is clear that Mr Devlin did not have to actually actively seek work, but it was sufficient that he had an intention to continue working and a willingness to accept work if it were actually available.
It is apparent, Mr Colborne noted, from Mr Devlin's Telecom sick leave record that in the second year before he ceased employment, bronchitis and flu were the factors that caused Mr Devlin a significant amount of sick leave. During his final year, Mr Devlin's leave was much more attributable to "Repatriation Pensionable Conditions and Investigations" and that that was likely to have been related to the investigation of Mr Devlin's heart condition.
Turning to the assessment of the conditions, Mr Colborne noted that in relation to hearing, and in the absence of the audiogram in the documents before the Tribunal, the Tribunal should rely on the Board's assessment of 33 points for nerve deafness with 2 points for tinnitus, giving a total of 35 points.
In relation to the Guide assessment under Chapter 4 for post traumatic stress disorder, noting the various medical reports, Mr Colborne submitted that the appropriate rating for Subjective Distress is 20 points to reflect Mr Devlin's profound distress and needing the full-time support of his wife.
In respect of Manifest Distress, Mr Colborne submitted that the appropriate rating is 15 points to indicate Mr Devlin's obvious distress and preoccupation with his symptoms.
In relation to Functional Effects, Mr Colborne submitted that the appropriate rating is 8 points to reflect profound psychiatric impairment.
In relation to Occupation, Mr Colborne submitted that the appropriate rating is 8 points to reflect that Mr Devlin cannot work.
In relation to Domestic Situation, Mr Colborne further submitted that the appropriate rating is 5 to indicate conflict between Mr and Mrs Devlin and in relation to Social Interaction, the appropriate rating is 8 points to reflect negligible social contact.
In relation to Leisure Activities, Mr Colborne submitted that the appropriate rating is again 8 points as agreed by all the medical opinion and to reflect that virtually all recreational activities had been abandoned.
In relation to Current Therapy, Mr Colborne submitted that the appropriate rating is 8 points to reflect that Mr Devlin has had continuous psychiatric treatment and that in the year 2000, Mr Devlin had only been at home for 3 months of the year because of his numerous hospital admissions.
Totalling the various ratings for the categories of Chapter 4, Mr Colborne thus submitted that the appropriate rating for post traumatic stress disorder is 59 points.
A combined impairment rating consisting of 59 + 33 + 2 provides a impairment rating of over 70 for Mr Devlin's currently accepted disabilities. This provided an "automatic" General rate of Disability Pension at 100 per cent and the issue of the Extreme Disablement Adjustment was then raised.
Mr Colborne then turned to the Lifestyle Rating from Chapter 22 of the Guide. Mr Colborne submitted that Mr Devlin's personal relationship's rating should be 5 points from Table 22.1 to reflect that he is only able to relate to a few particular people and that these relationships are severely affected.
In terms of Mobility, Table 22.2, Mr Colborne submitted that the appropriate rating is 6 points to reflect the severe restrictions placed upon Mr Devlin. He cannot drive the car, he must have door to door transport and is virtually restricted to his home unless accompanied.
In terms of Recreational and Community Activities, Table 22.3, Mr Colborne submitted that the appropriate rating is 6 points to reflect the fact that Mr Devlin is able only to engage in very few satisfying recreational activities.
For Domestic Activities, Table 22.4, Mr Colborne submitted that all Mr Devlin is able to do is make a cup of tea and his breakfast but everything else is done for him by Mrs Devlin. He has tried to weed the garden but was ineffective because he pulled out the wrong plants. Mrs Devlin's evidence was that she looked after the car, the paying of the bills, the gardening and everything else to do with the domestic activities of the house. Mrs Devlin also chooses her husband's clothes and manages his medications. Mr Colborne thus submitted that a rating of 6 points clearly applies.
In relation to Table 22.5, Employment Activities, Mr Devlin is unable to work and that would provide an impairment rating of 5 points, however, Domestic Activities, Table 22.4, produces a higher rating of 6 and this should be the rating used, Mr Colborne submitted.
The total lifestyle rating is 6 points and Mr Colborne submitted that if the Tribunal found that Mr Devlin did not qualify for the Special rate of Pension, then he does qualify for the Extreme Disablement Adjustment, having achieved a Disability Pension at 100 per cent of the General rate and an impairment rating of above 70 points and a lifestyle rating of 6 points.
Mr Modder for the Respondent referred the Tribunal firstly to the decision in Re Withers and Repatriation Commission (supra) which had similar facts to Mr Devlin's situation in that the smoking histories were inconsistent. That Tribunal found however, on the evidence in that case, there was a well established smoking habit before service and therefore Mr Withers did not have a war-caused smoking history.
Turning to the matter of Mr Devlin's obesity, Mr Modder contended that Mr Devlin was always large. His obesity is a well recorded problem before Vietnam and when he was in the Army from 1958. When he enlisted, Mr Devlin weighed 192 pounds, in 1958 he weighed 198 pounds and in 1959, he weighed 230 pounds. In 1967, there was a weight recording of 210 pounds. The more accurate 1967 reading, Mr Modder submitted, was recorded in May when Mr Devlin weighed 237 pounds, this being an increase of 7 pounds between 1959 and 1967. Further, the only evidence about this weight gain was anecdotal from Mrs Devlin, in that she stated that while she could not visually notice the difference in Mr Devlin's weight, she could certainly notice a difference in his uniform and believed that he had to obtain a larger uniform. By July 1967, Mr Devlin's weight is recorded at 240 pounds. In 1972, the weight escalates to 270 pounds, reduces a few months later and then in April 1972, is 224 pounds, which is roughly equivalent to his weight in 1959. Mr Modder strongly suggested that the weight increase was several years after Vietnam and that any weight increase in Vietnam itself was fairly marginal.

Obesity was recorded on service but Mr Modder contended that this was not service-related. Mr Modder accepted that Mr Devlin was not a big eater and also noted that he seemed to be active. Therefore, lack of exercise was not an issue. Further, Mr Modder submitted that the weight gain was not likely to have emanated from an excessive calorific intake particularly in Vietnam. In Mr Modder's submission, there are other reasons for the weight increase such as a fluid retention problem as raised by Mr Devlin's General Practitioner, Dr Underwood. Mr Modder further accepted that when Mr Devlin is nervous, he eats more. However, Mr Modder noted that both Dr Richards and Dr Miller (in his written reports), did not consider that obesity was war-caused simply because the condition of obesity had been documented preceding Vietnam. Therefore, Mr Modder concluded that the material before the Tribunal does not raise a hypothesis that obesity was war-caused.
In relation to diabetes mellitus, Mr Modder submitted that the relevant Statement of Principles requires a ten year history of obesity to meet the factor. Given that obesity preceded service it could not be considered that obesity was war-caused. This was particularly so, noting on recruitment in 1958, that Mr Devlin's BMI was 30.25 and on discharge it was 31.9.
In relation to Mr Devlin's smoking history, Mr Modder contended that the smoking history was inconsistent in the extreme. Mr Modder submitted that most of Mr Devlin's early smoking histories indicate that he ceased in 1967, or shortly thereafter. The Smoking Questionnaire of 2 April 1990 (T5), signed by Mr Devlin, indicates that smoking ceased in 1967, although the document was ambiguous. Further reference to cessation in 1967, is contained in the Blue Mountains Hospital records (Exhibit R6) where it is noted that in 1991, smoking had ceased "24 years ago". Other evidence indicates that Mr Devlin ceased smoking at the time of his first heart attack, which was in 1975. On all the weight of the evidence, Mr Modder contended that Mr Devlin's smoking ceased in 1967; or that there was a marked decrease at that time. In the alternative, referring to Re Withers and Repatriation Commission (supra), Mr Modder submitted that Mr Devlin had a well entrenched smoking habit before his operational service and therefore it could not be concluded that Mr Devlin had a war-caused smoking history.
In relation to Mr Devlin's alcohol consumption, Mr Modder submitted that Dr Miller was the only doctor who had suggested that alcohol consumption was a problem. Mr Modder contended that most of the records suggest that Mr Devlin's alcohol consumption was "fairly light". It would not be surprising, Mr Modder submitted, that Mr Devlin's alcohol consumption did increase in Vietnam, but on the balance of the evidence, before and after Vietnam, Mr Devlin's alcohol consumption was very moderate. Mr Modder asked the Tribunal to accept, in relation to alcohol, that credence should be given to the earlier histories. The Tribunal should balance the early history with the evidence that Mr Devlin drank before Vietnam, though not to the extreme and when he returned from Vietnam he reduced his drinking. Mr Modder further noted Mrs Devlin's evidence that drinking and smoking ceased at the same time following medical advise Mr Devlin received after his first heart attack.
Mr Modder concluded that before Vietnam Mr Devlin had well entrenched smoking and alcohol habits and was obese. The decrease or cessation in consumption of alcohol and tobacco occurred soon after Vietnam. Accordingly, Mr Modder submitted that the obesity and smoking factors relied upon by the Applicant to meet the Statements of Principles for diabetes mellitus and sleep apnoea could not be met. The fact that there is not a war-caused smoking habit meant, Mr Modder submitted, that Mr Devlin could also not meet the smoking factor in the relevant Statement of Principles for ischaemic heart disease. Mr Modder concluded that Mr Devlin therefore, "does not quite meet the requirements of the Statement of Principles for Sleep Apnoea, Diabetes and Ischaemic Heart Disease". He did not have war-cased obesity before the onset of diabetes and in terms of ischaemic heart disease, he did not have a war-caused 20 pack year smoking history.
Alternatively, Mr Modder submitted that if the Tribunal decided that the conditions of sleep apnoea, ischaemic heart disease and diabetes were war-caused, then the issue of Special rate needs to be considered. In this respect, Mr Modder stated that Mr Devlin's depot was largely closed down and he was not the only person to leave, as there were other people affected by redundancy. A short time after that, Mrs Devlin herself, although working in a different area of Telecom to Mr Devlin, was also affected by redundancy. Mr Modder submitted that the reason for Mr Devlin leaving work was industry based.
Mr Modder submitted that the real question for the Tribunal was whether Mr Devlin could have continued to work eight hours per week after he had been retrenched. Mr Modder's submission, based on his cross-examination of Mr Devlin, was that Mr Devlin could have worked if he had a sympathetic employer as he had at Telecom. Mr Devlin's evidence was that he had worked a 25 hour week with occasional time off. The reasons for sick leave in the last year were related to the Department of Veterans' Affairs appointments and the year before that, Mr Devlin experienced many colds and "the flu". He also had a problem with epicondylitus, which was apparent from the records and has not since improved. Mr Modder noted that whenever Mr Devlin was treated for post traumatic stress disorder, this occurred on a rostered day off and therefore was not specifically referred to in Mr Devlin's sick leave records. Mr Modder asked the Tribunal to infer from the evidence that Mr Devlin did have a residual earning capacity at that stage and that for several years after his redundancy, he would have continued to have had the capacity to work given a sympathetic work environment in which he could have worked for 20 hours per week or certainly for eight hours per week. Further, the work Mr Devlin was undertaking was physical work and Mr Modder contended that instead, he could have undertaken other physical jobs; Mr Modder conceded, however, that Mr Devlin could not work in an environment with large numbers of people around.
Mr Modder submitted that Mr Devlin ceased working for reasons other than his accepted disabilities. The evidence was that he did not look for work after he was made redundant even though Mr Devlin stated that he was willing to work. The requirement is however, Mr Modder submitted, that one must actually look for work and this was not done in Mr Devlin's case. Mr Modder submitted that the Tribunal must also consider Mr Devlin's non-accepted condition of bronchitis and the other rejected disabilities of sleep apnoea, diabetes mellitus and ischaemic heart disease. Mr Modder submitted that on all the evidence, post traumatic stress disorder was also not the substantial cause of Mr Devlin's inability to work. Therefore, Mr Modder contended that Mr Devlin was not qualified for a Special rate pension.
In relation to the Extreme Disablement Adjustment, Mr Modder conceded that Mr Devlin meets the impairment rating of 70 or more points. In relation to his lifestyle rating, the evidence provided at hearing indicated that Mr Devlin could undertake more for himself than was apparent from the documentary evidence and Mr Modder relied on Dr McEwin's lifestyle rating based on Mr Devlin's self assessment some time ago, of 4 points.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law.
Mr Devlin was cooperative in the provision of his evidence and did so to the best of his ability. It was obvious to the Tribunal and has been documented by various medical practitioners, that Mr Devlin has severe short and long term memory problems. The Tribunal also observed that Mr Devlin was manifestly labile and frustrated by his inability to remember specific details. The Tribunal does not consider that Mr Devlin's inability to provide precise details or events is in anyway suggestive of his being untruthful or trying to mislead the Tribunal.
Mrs Devlin was extremely helpful to the Tribunal. Her evidence was unembellished and objective and the Tribunal considers her to be a credible and truthful witness.
There are a number of difficulties in this matter, which include trying to identify findings of fact in relation to the matters of Mr Devlin's smoking and alcohol history and of his obesity. A determination on these particular matters is essential to the hypotheses being put by the Applicant in order for Mr Devlin's claim for sleep apnoea, diabetes mellitus and ischaemic heart disease to be accepted as war or defence-caused.
The Tribunal will deal first with the issue of alcohol consumption. There has been some suggestion by Dr Miller, and agreed to by Dr Lorentz, that Mr Devlin has a past history of alcohol abuse, which ended in 1978. Dr Lorentz noted, however, that the history has been taken from Mr and Mrs Devlin and objective evidence of the alcohol abuse problem has not been given (Exhibit R5). Mrs Devlin's evidence is that Mr Devlin was consuming alcohol before service in Vietnam and that he drank two or three times per week with her father. Mr and Mrs Devlin stated that Mr Devlin increased his alcohol consumption in Vietnam although neither could confirm any quantities. Mrs Devlin speculated that there could have been consumption of about 24 standard cans of beer per day basing this on her discussions with Mr Devlin's service colleagues. The evidence was that following Vietnam, Mr Devlin's alcohol consumption was reduced and eventually ceased. The date of cessation has been given as 1978, though the Tribunal notes that dates earlier than that (1975 and just after Mr Devlin's return from Vietnam in 1967) have also been recorded as dates of cessation.
The Tribunal turned to consider the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994, to deal with the contention that alcohol abuse arose out of war-service. The Tribunal first considers if Mr Devlin meets the definition of substance abuse contained within the Statement of Principles. Considering Paragraph 4 of the Statement of Principles, psychoactive substance abuse or dependence is defined as:
" "psychoactive substance abuse of dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
…"
The Tribunal considers that there is no evidence which indicates that Mr Devlin's alcohol consumption caused persistent or recurrent social, occupational, psychological or physical problems, or that the use of alcohol was physically hazardous. Mr Devlin's evidence was that he would not drink when working with electricity and there is no suggestion that there was any disciplinary action arising out of drinking during the course of employment or indeed any problems with the law over drinking. Dr Miller, in oral evidence, conceded that his submissions on alcohol abuse involved the use of a practical "working definition", rather than having any basis arising out of the Statement of Principles for Psychoactive Substance Abuse or Dependence.
As Mr Devlin does not meet the diagnostic criteria for alcohol abuse or dependence, the Tribunal thus determines that Mr Devlin did not have an alcohol abuse or dependence problem related to his war or defence-service and further, there is no evidence that there was a war or defence-service related alcohol abuse problem.
Turning to Mr Devlin's smoking history, there is no dispute that Mr Devlin smoked before operational service in Vietnam. He was smoking at the time he and Mrs Devlin met in 1963, and Mrs Devlin noted that Mr Devlin purchased cigarettes by the carton and there were always cigarettes in his car. In his Smoking Questionnaire of 1990, Mr Devlin wrote that he had commenced smoking cigarettes in 1956, eleven years before his service (T5). The Tribunal has considered the medical records and Mr and Mrs Devlin's evidence and tried to reconcile the vastly different dates of cessation, for example, in 1960 (T6, p59); in 1963 (T6, p56, T3, p28); in 1967 (T5, Exhibit R3); "cutting down" cigarettes in 1967, thereafter smoking 10 cigarettes per day until 1973 (T42); smoking 20 cigarettes per month in 1973 (T3, p19); in 1970 still smoking 30 cigarettes per week (T4, p44); and ceasing in 1975 as recorded by Dr Miller's history (Exhibit A1). There is a further notation in a Smoking Questionnaire of 3 June 1997, that Mr Devlin ceased smoking permanently in April 1985 (T9).
The Tribunal accepts as a general proposition, Dr Miller's statement that veterans may tend to minimise their smoking or alcohol consumption in order to cast themselves in a good light and certainly Mr Devlin's evidence was that he wanted to remain in the Army so did not always provide accurate evidence about such matters. However, the discrepancies in smoking habit occur not just during service but also subsequent to service.
The Tribunal notes the beneficial provisions of section 119 and acknowledges that in reporting such matters as cigarette consumption and dates of cessation in particular, that there may be some difficulties because of the passage of time. Allowing for all of these factors, including Mr Devlin's memory problems, there still is a wide discrepancy in the smoking histories provided.
The Tribunal finds that Mr Devlin was most likely to have cut down his cigarette smoking in 1967, tapering this to a very light consumption until about 1973/75. There also may well have been an increase in cigarette consumption during Vietnam service as was found by the Board. The Tribunal concludes, however, that Mr Devlin was smoking well before his eligible service and considers that there was in fact a very well established smoking habit prior to service. Even though there may have been an increase in consumption during Vietnam, the Tribunal finds that the consumption eased after that point and does not consider, on all of the evidence available to it, that Mr Devlin had a war-caused smoking habit. Further, from the evidence available to the Tribunal it finds that if there was smoking during Mr Devlin's defence-service it was very slight and it was not as a result of his defence-service, but as a result of a smoking habit formed well before either his operational or defence-service.
The Tribunal next turns to the issue of obesity. Records clearly indicate that Mr Devlin was obese in January 1958, weighing 198 pounds which provides a BMI of 30.4 (T3, p36). A BMI of 30 or more is indicative of obesity as discussed in the RMA's "Statement about the Causes of "Being Obese"". In July 1959, Mr Devlin's weight had increased to 230 pounds (T3, p34), with a further increase by May 1967, (as noted at T3, p26, where Mr Devlin's weight was recorded at 237 pounds). In July 1967, Mr Devlin's weight increased again to 244 pounds (T3, p25). In 1972, his weight varied between 273 pounds and 224 pounds (T3, p21) and in January 1973, Mr Devlin's weight was 224 pounds, which was a BMI of 34.4 (T3, p12).
Mr Devlin's evidence was that there was a great variation in his weight before and after Vietnam. Mr Devlin's further evidence, supported by Mrs Devlin, is that when nervous or anxious he will "pick" at food constantly. The Tribunal notes that Dr GM Marel, Consultant Physician and Endocrinologist, reported on 5 March 1998, that there have been difficulties in Mr Devlin being able to achieve significant weight reduction and part of this difficulty is related to his depression and its treatment, which would have inhibited weight loss programs (T14, p97). The Tribunal further notes Dr Miller's evidence that it is quite possible that because of the symptoms of Mr Devlin's post traumatic stress disorder, his ability to reduce weight was likely to have been hampered.
The Tribunal notes that there is no Statement of Principles for obesity but some guidance can be obtained from the "Statement about the Causes of "Being Obese"" referred to above. The Tribunal finds, from the available records from 1952, that Mr Devlin has always been obese. What is also clear is that he has tried to reduce his weight, more particularly after his service in Vietnam. Mr Devlin was placed on various diets and was hospitalised when his weight became dangerously high. Based on the objective medical evidence, a hypothesis has been put that because of Mr Devlin's accepted war-caused condition of post traumatic stress disorder and associated depression, this contributed in a material way to Mr Devlin's inability to reduce weight after Vietnam. The Tribunal considers that this hypothesis is not fanciful or beyond scientific possibility and therefore considers that there is a reasonable hypothesis raised in terms of section 120(3) of the Act.
Turning to section 120(1) of the Act, the Tribunal must next consider whether or not there are any facts which can be disproved beyond reasonable doubt or which might have been inconsistent with this hypothesis. On the evidence available to the Tribunal, it considers that Mr Devlin did attempt to diet and to reduce his weight and clearly, on all the records available, he was not successful until he was hospitalised whereupon he would lose weight but then once the hospital regime was completed, his weight increased once more. It is also pertinent that after Vietnam, when Mr Devlin was hospitalised for weight reduction, he was also being treated for his depression and anxiety symptoms, which have now been subsumed within the accepted condition of post traumatic stress disorder. Accordingly, the Tribunal finds that there was a material contribution made to Mr Devlin's obesity by his war-service.
The Tribunal turned to consider the condition of sleep apnoea, which is covered by the Statements of Principles 39 and 40 of 1997. The Tribunal takes the onset of the condition of sleep apnoea as being 1992. In accepting this date of onset, the Tribunal notes submissions that there was an earlier date around the 1970s, as indicated by difficulties with being very fatigued and sleepy. The Tribunal, however, in reading more closely the relevant medical report, noted that this report arose out of a consultation concerning Mr Devlin having a severe infection. It is therefore not possible for the Tribunal to determine whether sleepiness and fatigue arose from the condition of sleep apnoea or from an infection and hence an earlier onset of sleep apnoea cannot be determined from the available evidence.
Turning to the relevant Statement of Principles, Instrument Number 39 of 1997, appropriate for operational service, the Tribunal considers the relevant factor is factor 5(b), which requires being obese at the time of the clinical onset of sleep apnoea. The Tribunal determines that having found that obesity was materially contributed to by Mr Devlin's war-service, then this factor is met. Accordingly, the Tribunal considers that the evidence raises a reasonable hypothesis within the meaning of subsection 120(3) of the Act.
The Tribunal next turned to consider the application of subsection 120(1) of the Act to establish whether it could accept the facts as necessary to support this hypothesis. The Tribunal has already found that there was a material contribution to Mr Devlin's obesity as a result of his war-caused post traumatic stress disorder and its consequences. The Tribunal considers that post traumatic stress disorder had its onset soon after Mr Devlin's return from Vietnam. The Tribunal noted the Board's finding that the onset of Mr Devlin's post traumatic stress disorder is 1997, a date arising out of Dr Pusak's report of 22 May 1997 (T12). Reading this report, the Tribunal considers that Dr Pusak noted symptoms of generalised anxiety and episodic dysphoria since Mr Devlin's return from Vietnam and including intrusive recollections, phobic symptoms and irritability which have increased in recent years. Noting this report and Mrs Devlin's evidence, the Tribunal considers the onset of post traumatic stress disorder was much earlier, following on from Mr Devlin's return from operational service in Vietnam. Further, the Tribunal also notes that Mr Devlin was hospitalised in Concord Hospital for one or two months with various complaints which appeared, to Dr Pusak, to be manifestations of anxiety.

Thus the Tribunal finds that on an analysis of all of the material before it, there are no facts which convince the Tribunal beyond reasonable doubt for the purposes of subsection120(1) of the Act, that there is not sufficient reason for determining that Mr Devlin's condition of sleep apnoea was war-caused.
The Tribunal next considered the condition of diabetes mellitus and the relevant Statements of Principles, Instrument Numbers 47 and 48 of 1996, as amended by Instrument Numbers 187 and 188 of 1996, concerning Diabetes Mellitus.
Mr Devlin has Type Two diabetes, for which there was a diagnosis at least on 5 June 1972 (T3, p16). A further notation is found in Dr Underwood's report of 23 October 1991, in which she notes that diabetes was diagnosed in 1973 and Mr Devlin had been treated by diet and oral hypoglycaemics. A further notation from Dr Rose's report of 31 July 1992, indicates that Mr Devlin was found to have diabetes in 1985 (T23, p143). The Tribunal considers that the onset of diabetes mellitus is most likely to have occurred in 1972.
The factor which the Tribunal considers relevant to Mr Devlin's circumstances is factor 5(b) of the relevant Statement of Principles for operational and defence-service, which requires that in relation to Type Two diabetes mellitus, Mr Devlin must be obese for a period of at least ten years before the clinical onset of diabetes mellitus. The Tribunal has already found that there has been a material contribution made to Mr Devlin's obesity by his war-caused post traumatic stress disorder causing him difficulty in reducing weight. The Tribunal agrees with Mr Colborne's submission that much of Mr Devlin's obesity had existed for ten years as required by the Statement of Principles and that war-service contributed to the development of diabetes mellitus through obesity. The Tribunal concludes that a reasonable hypothesis has been raised within the meaning of subsection 120(3) of the Act and accordingly the Tribunal now considers subsection 120(1) of the Act to ascertain whether or not there is anything within the evidence which would cause the Tribunal to not be satisfied beyond reasonable doubt that the reasonable hypothesis had been raised.
On all of the evidence available to the Tribunal and as discussed in relation to the condition of diabetes mellitus, the Tribunal could find no fact to disprove the contribution to obesity of Mr Devlin's war-caused post traumatic stress disorder. The Tribunal reiterates that it is clear that there is objective medical evidence from Dr Marel and Dr Miller indicating that the condition of post traumatic stress disorder caused Mr Devlin great difficulty in reducing his weight and the continuance of his obesity in fact lead to the onset of the diabetes mellitus. The Tribunal further considers that if not for the war-caused post traumatic stress disorder and its treatment impeding Mr Devlin's ability to reduce weight, he may well have been successful in his weight loss and the condition of diabetes may not have developed. Accordingly, the Tribunal considers that on all of the evidence available to it, the facts necessary to support the reasonable hypothesis have not been disproved beyond reasonable doubt for the purposes of subsection 120(1) of the Act. The condition of diabetes mellitus is therefore determined to be war-caused.
The Tribunal finally turned to consider Mr Devlin's entitlement for pension for the condition of ischaemic heart disease. The Tribunal is reasonably satisfied based on the evidence of Consultant Cardiologist, Dr Richards, that the onset of Mr Devlin's ischaemic heart disease was in 1967 (Exhibits R1 and R2). While Dr Miller thought that there may have been a later onset, he did not dispute the possibility that Mr Devlin had an onset of ischaemic heart disease based on the symptoms as reported by Dr Richards in 1967, when Mr Devlin was 33 years of age.
Turning to the relevant Statement of Principles concerning Ischaemic Heart Disease, Instrument Numbers 140 and 141 of 1996, as amended by Instrument Numbers 77 and 78 of 1997, the Tribunal does not consider factor 5(e) relevant to the Tribunal's consideration, as the Tribunal has already determined that Mr Devlin does not have a war-caused smoking habit. In relation to factor 5(b), which refers to suffering from diabetes mellitus before the clinical onset of ischaemic heart disease, given that the onset of diabetes was in 1972 and the clinical onset of ischaemic heart disease is 1967, then this factor is not met. Factor 5(c) requires Mr Devlin to be obese for a period of at least two years within 15 years immediately before the clinical onset of ischaemic heart disease. This factor would require Mr Devlin to be obese for two years within the period between 1952 and 1967. On the Tribunal's understanding of the documentary evidence relating to Mr Devlin's obesity his base weight in 1952 was 192 pounds. To be obese in terms of the RMA's "Statement about the Causes of "Being Obese"", Mr Devlin would have to increase his base weight by 20 per cent, which in this case would require a weight of 230 pounds. It is clear from the service medical that in May 1967, Mr Devlin weighed 237 pounds (T3, p26) and that he had a BMI in excess of 30. The problem for the Tribunal is that it is difficult to determine whether between 1952 and 1967, on the available records, there was a two year period of service-related obesity. The impediment to Mr Devlin meeting factor 5(c) is that the material contribution made to obesity by Mr Devlin's war-caused post traumatic stress disorder was not evidenced until the onset of this disorder, which was in fact in 1967. Thus, while Mr Devlin may have been obese prior to 1967 there was no material contribution to this obesity until his return from Vietnam in 1967. Accordingly, the Tribunal determines that factor 5(c) cannot be met on the available evidence and therefore no reasonable hypothesis has been raised. There is no evidence before the Tribunal, which would indicate any of the remaining factors are raised in the Statements of Principles Instrument Numbers140 and 141 of 1996 as amended by 77 and 78 of 1997. In these circumstances the Tribunal must affirm the decision under review in relation to ischaemic heart disease and accordingly decides that it is not war or defence-caused.
In summary, in relation to entitlement matters, the Tribunal sets aside the decision under review in relation to sleep apnoea and diabetes mellitus and finds that these conditions are war-caused pursuant to section 9 of the Act and that the Commonwealth is liable to pay pension pursuant to section 13 of the Act for those conditions from and including 15 May 1997.
Assessment
The Tribunal must now consider the appropriate rate of Mr Devlin's Disability Pension.
Diabetes Mellitus
In relation to diabetes mellitus, and noting the evidence, including Dr Miller's opinion, the Tribunal considers the appropriate rating for diabetes mellitus from Table 12.1.1 of the Guide is 5 Points.
Sleep Apnoea
In relation to the condition of sleep apnoea, the Tribunal notes that this condition has improved by the use of the "CRAP" machine. The Tribunal does not consider, however, that it has sufficient medical evidence upon which to assess this condition and accordingly remits the matter for assessment to the Commission.

Nerve Deafness

The Tribunal does not have available to it the audiogram upon which the previous assessment was undertaken by the Board. There is however, no dispute in relation to the Board's assessment of this condition and accordingly the Tribunal accepts that the appropriate rating for nerve deafness is 33 points from Chapter 7 of the Guide with a rating of 2 points for tinnitus.
Post traumatic stress disorder
Personal Relationships, Table 4.1. The Tribunal considers that Mr Devlin is depressed, has symptoms of nightmares, anxiety, intrusive thoughts, extreme loss of concentration and memory loss. The Tribunal does not consider that the loss of memory symptoms are part of an organic problem but rather relate, as opined by Mr Devlin's treating psychiatrist, Dr Schmidtman, to Mr Devlin's psychiatric condition of post traumatic stress disorder. The Tribunal considers the appropriate rating is 20 points to reflect Mr Devlin's suffering profound distress and rarely being able to distract himself despite the high level of support that is provided by his wife.
Manifest Distress, Table 4.2. Mr Devlin is hypervigilant and profoundly distressed as evidenced by the Tribunal. The appropriate rating is 15 points to reflect obvious continual distress.
Functional Effects, Table 4.3. The Tribunal considers that Mr Devlin needs Mrs Devlin to undertake most activities for him including arranging his clothes, and monitoring his medication. Mr Devlin is able to make his breakfast but this is the only activity he seems capable of doing without significant assistance. The appropriate rating is 6 points.
Occupation, Table 4.4. The preponderance of medical opinion is that Mr Devlin is now unable to work and accordingly the appropriate rating is 8 points.
Domestic Situation, Table 4.5. Mr Devlin's only significant relationship is with his wife. He does relate to a lesser extent with his computer teacher. There is evidence that despite the close and supporting relationship provided by Mrs Devlin, there is conflict with her and Mr Devlin is unable to form relationships with anyone else. In fact, Mr Devlin does not like associating with other people. The appropriate rating is 5 points to indicate a continual conflict with family members.
Social Interaction, Table 4.6. Mr Devlin has no friends outside his wife and the computer teacher. He has virtually no ability to continue or form interpersonal relationships. As Mrs Devlin noted, people have stopped coming to visit because they are unable to deal with Mr Devlin and his mood swings. The Tribunal considers that the appropriate rating is 8 points to reflect Mr Devlin's negligible social contact.
Leisure Activities, Table 4.7. Mr Devlin's only leisure activities are listening to the radio, attempting to read the newspaper and his activity with the computer. The appropriate rating is 6 points.
Current Therapy, Table 4.8. The Tribunal considers that given that Mr Devlin has only spent three months at home during the year 2000 because of his numerous hospitalisations, the appropriate rating is 8 points to reflect that continuous psychiatric treatment is essential with a need for long periods in hospital.
The combined rating from Chapter 4 is 20 + 15 + 8 + 8 + 8 = 59 points.
Tinea
The Tribunal finds that the appropriate rating from Table 11.1 is nil points
The combined impairment ratings for Mr Devlin's accepted conditions, apart from the assessment for the condition of sleep apnoea, which has been remitted to the Commission, is as follows:
Condition     Guide Reference    Impairment rating
Post traumatic stress disorder Chapter 4     59 points
Nerve deafness     Chapter 5     33 points
Tinnitus       Table 7.1.11 2 points
Tinea Table 11.1     nil
Diabetes mellitus    Table 12.1.1 5 Points

Combined Impairment Rating Chapter 18 75 Points

The combined impairment of 75 points automatically produces a pension at 100 per cent of the General rate regardless of the lifestyle rating. The Tribunal therefore decides that the decision under review is set aside in relation to assessment and in substitution, the Tribunal decides that the correct rate of pension is 100 per cent of the General rate with effect from 15 May 1997.
Because Mr Devlin has Disability Pension in excess of 70 per cent, the Tribunal is required to consider whether or not he is eligible for payment of pension at the Special rate.
The Tribunal notes that Mr Devlin ceased work for reasons other than his accepted disabilities alone and that indeed he was made redundant along with others from the then Telecom Australia. The Tribunal further notes that in his application for a Service Pension, Mr Devlin's General Practitioner, Dr Rose, noted that Mr Devlin suffered from a number of medical conditions including nerve deafness, tinea, recurrent bronchitis, glaucoma, haemorrhoids, obesity, diabetes mellitus, refractive error, dental carries and ischaemic heart disease (T50, p249). Dr Rose further opined that Mr Devlin was not suited to any kind of employment because of his medical problems such as his inability to concentrate, his memory impairment and his medical conditions with the major diagnoses being ischaemic heart disease, diabetes mellitus and hypertension. Dr Rose opined that Mr Devlin could not do any type of full-time work because of his "medical conditions" including severe physical restrictions of manual duties due to "angina and other conditions" and the difficulties in concentration due to his memory impairment and discomfort of the medical conditions (T50). In a letter from Dr Rose, received by the Department of Veterans' Affairs on 3 January 1992, the Tribunal notes that Dr Rose considers Mr Devlin's main health problems are with diabetes mellitus, his respiratory tract bronchitis, obesity, anxiety neurosis and haemorrhoids (T51).
From all of this evidence, the Tribunal considers that Mr Devlin is not qualified to receive the Special rate of pension. The Tribunal bases this finding on the fact that under subsection 24(1)(b) of the Act, Mr Devlin is not totally and permanently incapacitated by his war-caused injury or diseases alone, noting specifically that he has other non-service related conditions which impact upon his ability to work, namely ischaemic heart disease and chronic bronchitis. Further, even if Mr Devlin did satisfy subsection 24(1)(b) of the Act, the Tribunal considers he would be further prevented from continuing to undertake remunerative work because of the other conditions he suffers. Further, for the purposes of subsection 24(1)(c) of the Act, the ameliorating provisions contained within subsection 24(2) would not assist Mr Devlin because the Tribunal is of the view that Mr Devlin had not been genuinely seeking to engage in remunerative work and does not consider his statements in this regard reflective of a true and genuine attempt to seek work. The Tribunal does not find persuasive the evidence that Mr Devlin had the intention of obtaining work and would have liked to have done so. The Tribunal considers that Mr Devlin, in having applied for his Service Pension for permanent incapacity, was in fact indicating his true intentions. Therefore, the Tribunal is of the view, on the facts of this case, that the reasoning contained in Hall (supra) does not assist Mr Devlin.
Thus, the Tribunal finds that on the evidence available to it and because the provisions of section 24 of the Act are cumulative, the provisions of the section as a whole are not met. In these circumstances the Tribunal determines that Mr Devlin is not qualified for payment of pension at the Special rate.
When a veteran is assessed at 100 per cent of the General rate and is not eligible for Special rate, then if the other criteria are met, namely being above 65 years of age, having an impairment of 70 points or more and a lifestyle rating of 6 points, the veteran will be eligible for payment of pension at the Extreme Disablement Adjustment. Mr Devlin is above 65 years of age, he is in receipt of pension at 100 per cent of the General rate with an impairment rating of 75 points and is not eligible for the Special rate of pension. While the Tribunal is aware that the condition of sleep apnoea has not been assessed, the ultimate impairment rating assigned by the Commission for this condition does not detract from nor impede the Tribunal in assessing qualification for the Extreme Disablement Adjustment, as Mr Devlin has the requisite impairment rating allowing the Tribunal to proceed. The Tribunal turns then to consider the specific lifestyle rating.
In considering the appropriate lifestyle rating, the Tribunal notes a report from Dr Underwood dated 17 July 1997, in which she notes that:
"Essentially his lifestyle is good considering his multiple medical problems in that he is able to do quite a significant amount of bushwalking every Friday with a friend." (T10, p75).

In light of this report, the Tribunal considers that in terms of lifestyle, the period should be divided, for the purposes of the Extreme Disablement Adjustment, into two distinct stages, that is from 15 May 1997 until 29 June 1998, the day before Mr Devlin completed a Lifestyle Questionnaire (T27, p155). The second period is from 30 June 1998, the date Mr Devlin completed his Questionnaire and continuing.
Lifestyle Rating For the Period 15 May 1997 to 29 June 1998

The Tribunal notes a Lifestyle Rating Choice Number One, completed by Mr Devlin on 12 August 1997, in which Mr Devlin self-assesses his lifestyle rating at 5 points, made up of 6 points for personal relationships; 4 points for mobility; 5 points for recreational and community activities and 5 points for domestic and employment activities. On all the evidence, and noting Dr Underwood's report (T10), the Tribunal considers that the appropriate lifestyle rating for this first period is 5 points. Having so determined, Mr Devlin fails to meet the criteria for an Extreme Disablement Adjustment.
Lifestyle Rating For the Period 30 June 1998 and Continuing
The Tribunal notes Mr Devlin's Lifestyle Questionnaire completed on 30 June 1998, and his further evidence at hearing. The Tribunal considers the following ratings are appropriate.
Personal Relationships, Table 22.1. The Tribunal considers that Mr Devlin has severely affected relationships and he is only able to relate to his spouse and his computer teacher. These relationships are often strained. The appropriate rating is 5 points.
Mobility, Table 22.2. Mr Devlin is now unable to continue his bushwalking with his friend, he can only walk to the front mailbox but that is with difficulty. He needs assistance with door to door transport and the assistance of his wife. Despite Mr Devlin stating that he could drive a car, it is the Tribunal's view and medical opinion, that in fact Mr Devlin cannot drive a car in any circumstances. The appropriate rating is 6 points.
Recreational and Community Activities, Table 22.3. The Tribunal considers that the appropriate rating is 6 points to reflect that Mr Devlin can participate in only a few satisfying passive recreational activities such as listening to the radio, attempting to read the newspaper and undertaking his computer work with a teacher from time to time.
Domestic Activities, Table 22.4. The Tribunal considers that the appropriate rating is 6 points to reflect that Mr Devlin can carry out only a limited number of domestic activities. He is mainly restricted to indoors and requires constant supervision from Mrs Devlin. Mr Devlin cannot mow the lawn or undertake any gardening activities and he is only able to prepare his breakfast under close supervision.
The lifestyle rating is thus comprised of 5 + 6 + 6 + 6 = 23 points which is divided by four to provide a lifestyle rating rounded to 6 points. Thus, Mr Devlin satisfies all of the requirements for qualification for the Extreme Disablement Adjustment from 30 June 1998.
In conclusion, for all the reasons expressed above and in accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
To affirm the decision under review in relation to ischaemic heart disease.
To set aside the decision under review in relation to sleep apnoea and diabetes mellitus and substitute its decision that these conditions are war-caused pursuant to section 9 of the Act and that pension is payable for these conditions from and including 15 May 1997.
Pension is assessed at 100 per cent of the General rate with effect from and including 15 May 1997 and at 100 percent of the General rate and the Extreme Disablement Adjustment from and including 30 June 1998.
I certify that the 164 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ........[sgnd]......................................................................
           Sharonne Brainenberg, Associate
Date of Hearing       29 November 2000
Date of Decision  2 March 2001
Counsel for the Applicant              Mr C Colborne
Solicitor for the Applicant              Mr B Williams of Vardanega Roberts, Solicitors
Advocate for the Respondent       Mr S Modder, Solicitor and Advocate, Department of Veterans' Affairs