Hanlon and Repatriation Commission - [2000] AATA 1125

DECISION AND REASONS FOR DECISION [2000] AATA 1125

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1394

VETERANS'     APPEALS     DIVISION     )
           Re      IAN HAMILTON HANLON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Associate Professor J.H. Maynard, Member

Date20 December 2000
PlaceMelbourne

Decision      The Tribunal decides as follows: (a) That the decision of the respondent dated 30 April 1998, affirmed by the Veterans' Review Board ("VRB") on 13 September 1999, that Bilateral Open-angle Glaucoma is not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act"), is affirmed; (b)         That that part of the decision of the VRB dated 13 September 1999, which affirmed the decision of the respondent dated 19 November 1998, be varied; (c) That the decision of the respondent dated 19 November 1998 be set aside; and (d)           That pension be paid to the applicant at 50 per cent of the General Rate, from 31 May 1998.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – Bilateral Open-angle Glaucoma – relevant Statement of Principles – decision affirmed – assessment – pension increased to 50 per cent General Rate.
Veterans' Entitlements Act 1986, ss. 9, 120(1), 120(3), 120A
Re Olsen and Repatriation Commission (Unreported AAT Decision : 18 October 2000)
Re Ryan and Repatriation Commission (Unreported AAT Decision : 22 September 2000)
Re Reading and Repatriation Commission (Unreported AAT Decision : 20 September 2000)
Keeley v Repatriation Commission (1999) FCA 1103
Repatriation Commission v Keeley (2000) FCA 532
Statement of Principles, Instrument No. 241 of 1995 (Open-angle Glaucoma)
Statement of Principles, Instrument No. 13 of 1999 (Open-angle Glaucoma)

REASONS FOR DECISION

20 December 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Associate Professor J.H. Maynard, Member
Introduction

This is an application by Mr Ian Hamilton Hanlon, for review of two decisions of the respondent, both of which were later affirmed by the Veterans' Review Board ("VRB") on 13 September 1999.
The first decision, which was made on 30 April 1998, was to refuse Mr Hanlon's claim to have Bilateral Open-angle Glaucoma accepted as war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
The second decision, which was made on 19 November 1998, was to assess Mr Hanlon's degree of incapacity at 40 per cent for the purposes of payment of pension at the General Rate.
Representation
At the hearing Mr Hanlon was represented by his solicitor, Mr D. De Marchi. Mr R. Douglass, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material was also received in evidence during the hearing.
Matters Not In Dispute
Mr Hanlon was born on 20 September 1915. He served in the Australian Army from 29 July 1942 to 10 October 1945, the whole of his service being operational service within the meaning of the Act.
Issues
As indicated, the issues for determination by the Tribunal upon review are:
(a)Whether the claimed disability Bilateral Open-angle Glaucoma is war-caused within the meaning of section 9 of the Act; and
(b)The degree of incapacity suffered by Mr Hanlon from his war-caused disabilities, for the purposes of payment of pension.

War-Caused Disabilities

Mr Hanlon has the following disabilities accepted as war-caused:

Acquired Cataracts in Both Eyes
Chronic Solar Skin Damage
Chronic Non-Obstructive Bronchitis

Rejected Disabilities

Mr Hanlon presently has one disability rejected as war-caused, namely Chronic Airflow Limitation.
Macular Degeneration
It is convenient at this point to record that in a "Statement of Case" lodged on behalf of Mr Hanlon, Mr De Marchi stated as follows:
"Referring to the report from Dr. Gillies, he has raised the hypothesis that the cigarette consumption history he obtained from Mr. Hanlon meets the criteria of the Statement of Principles Instrument No. 29 of 1997 Factor 5(a). Dr. Gillies has stated that Mr. Hanlon has extensive age related macular degeneration present in either eye. Factor 5(a) deals specifically with age related macular degeneration as such: "(a) for age-related macular degeneration only, smoking at least 10 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of macular degeneration, and, where smoking has ceased, the clinical onset has occurred within 20 years of cessation; or".
Therefore it is submitted that this condition be accepted as due to Mr. Hanlon's war service."
This contention attracted the following response by Mr Douglass:
"The Veteran in the Statement of Case of 27 October 2000, claims that he meets the SoP for Macular Degeneration. The respondent submits that this is not an issue before the Tribunal. This condition was not claimed, nor was it referred to by the Veteran in the course of the review by the Veterans' Review Board. Accordingly, there is no Commission or Veterans' Review Board decision in regard to this claim. Section 175 of the Act confers jurisdiction on the Administrative Appeals Tribunal, to review "… a decision made by the Commission [which] has been reviewed by the Board upon a request made under section 135 …". Without a decision by the Commission, an application for review to the Veterans' Review Board and a decision by the Board, there is no jurisdiction vested in the Tribunal to consider a matter. As the Federal Court stated in Repatriation Commission v Stafford (1995) 56 FCR 132, at 143: "Neither in Fitzmaurice v Repatriation Commission, nor in any other decision of this Court to which we were referred was anything said which would stand in the way of understanding the word "decision" in s.175(1) as comprehending every decision of the Commission which was the subject of review by the Board, but as not comprehending a decision of the Commission which was not the subject of review, either because it was not a decision in respect of which application for review was made or because application to review it had been withdrawn. … What is not requested under s135 is not reviewed by the Board."
The claim lodged on 13 January 1998 referred specifically to 'Cataracts'. During the course of the investigation of the claim, the Veteran's treating doctor also referred to a diagnosis of glaucoma ('T-documents', page 34). The Commission accordingly expanded the diagnoses applicable to the claim to include 'Bilateral Open-angle Glaucoma'. It is the refusal of this condition which was appealed to the Veterans' Review Board on 31 August 1998 ('T documents', page 48). No reference was made by the Veteran to 'Macular Degeneration' at this stage, or at the time the Board considered the Commission decision. The application for review to the Tribunal does not refer to the condition, nor does the Veteran's Statement of Issues of 15 March 2000. The first reference to 'Macular Degeneration' was only made in the Veteran's Statement of Case compiled on 27 October 2000.
Similarly, in regard to the Commission decision of 29 September 1998, the only issue in respect of which review was sought by the Veteran was the rate of disability pension. No reference to macular degeneration was ever made in the course of this claim or the consequent review."
The Tribunal is in complete agreement with the submissions made by Mr Douglass, for the reasons he has expressed, and we find accordingly. There is no claim in respect of Macular Degeneration before the Tribunal for determination in these proceedings.
Standard of Proof
Because Mr Hanlon rendered operational service, subsections 120(1) and 120(3) of the Act apply. Therefore the Tribunal is required to find that his claimed condition Open-angle Glaucoma is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect that condition with the circumstances of the particular service rendered.
As Mr Hanlon's claim was lodged after 1 June 1994, the Tribunal is also required to apply section 120A of the Act in reaching its decision. This means that the Tribunal is required to assess the reasonableness of hypotheses in accordance with Statements of Principles ("SoP") based on sound medical-scientific evidence. The SoP's set out the minimum factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death and service. The SoP's are binding on decision makers at all levels, including the Tribunal.
Relevant SoP
The SoP in force at the time Mr Hanlon made his claim on 13 January 1998, for a disability later diagnosed as Bilateral Open-angle Glaucoma, was Instrument No. 241 of 1995, determined by the Repatriation Medical Authority ("RMA") on 21 June 1995. The SoP relevantly stated as follows:
"1.Being of the view that there is sound medical-scientific evidence that indicates that open-angle glaucoma and death from open-angle glaucoma can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping Forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), that the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting open-angle glaucoma or death from open-angle glaucoma with the circumstances of that service, is:
(a)inability to obtain appropriate clinical management for the open-angle glaucoma.
2.Subject to clause 3 (below) the factor set out in paragraph 1(a) must be related to any service rendered by a person.
3.The factor set out in paragraph 1(a) applies only where:
(a)the person's open-angle glaucoma developed before a period, or part of a period, of service to which the factor related; and
(b)the relationship suggested between the open-angle glaucoma and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act."
Since the date of the original decision of the respondent, 30 April 1998, SoP No. 241 of 1995 has been revoked. The current SoP is Instrument No. 13 of 1999.
It was Mr De Marchi's submission that of the several alternative factors set out in SoP No. 13 of 1999 which must as a minimum exist before it can be said that a reasonable hypothesis be raised connecting Open-angle Glaucoma with the circumstances of a person's relevant service, factors 5(j) and (k) were met. Those factors are expressed as follows:
"5.(h) suffering significant trauma to the affected eye before the clinical onset of open-angle glaucoma; or
(k)having undergone penetrating keratoplasty or other intraocular surgery of the affected eye before the clinical onset of open-angle glaucoma."
A preliminary issue in these proceedings, however, is whether the Tribunal is to decide the matter in accordance with the SoP in force at the date of the primary decision, 30 April 1998, Instrument No. 241 of 1995, or in accordance with the SoP presently in force, Instrument No. 13 of 1999.
It was acknowledged by Mr De Marchi that if the SoP in force at the date of the primary decision is the applicable SoP, then Mr Hanlon's claim cannot succeed, the reason being there is no material consistent with the SoP to connect his claimed condition with the circumstances of the particular service rendered by him.
It was Mr De Marchi's submission that the relevant SoP is that which is presently in force, Instrument No. 13 of 1999, determined by the RMA on 14 January 1999. In making his submission Mr De Marchi relied essentially on the Tribunal decision in Re Olsen and Repatriation Commission (Unreported decision of Senior Member Lewis' dated 18 October 2000 : N1998/1836), in which it was held that, because the applicant Mr Olsen had no accrued rights requiring protection, the need to apply the SoP in force at the time of the original decision did not arise and that, moreover, there is no legislative basis in the Act requiring the Tribunal to apply the SoP applicable at the time of the original decision.
Mr Douglass, on the other hand, referred to the Tribunal decisions in Re Ryan and Repatriation Commission (Unreported decision of Deputy President Forrest, Member Argent and Member Dr Fricker, dated 22 September 2000) and in Re Reading and Repatriation Commission (Unreported decision of Deputy President Forgie and Member Keane, dated 20 September 2000).
In doing so Mr Douglass contended that the impact of Keeley v Repatriation Commission (1999) FCA 1103 and Repatriation Commission v Keeley (2000) FCA 532 is to require decision makers to apply the SoP in force at the date of the claim, not any subsequently amended and re-issued SoP. Therefore, Mr Douglass contended, the applicable SoP in these proceedings is Instrument No. 241 of 1995.
In Re Ryan the Tribunal stated thus:
"19. In Keeley the first SoP was more beneficial to the widow's claim than the second SoP. In the present matter before the Tribunal, the reverse is the situation in that the SoP now in force (Instrument No. 14 of 1999) in relation to open-angle glaucoma is more beneficial. Mr Moore submitted that because of the beneficial nature of the legislation, and the fact that the current SoP is more beneficial to the veteran than the earlier SoP, indicates an intention that it should apply rather than the SoP in force when the veteran made his claim.
20. Clearly the Act is beneficial legislation. However we do not agree that the fact the current SoP provides a more beneficial result for the veteran indicates an intention that it should apply in the present circumstances. Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued: Keeley per lee and Cooper JJ. at 165. When the application for review was made to the Tribunal, the veteran had a right to have the Commission decision reviewed on the law as it stood. The fact that the later SoP would lead to a different outcome does not in our opinion of itself provide an answer. Heerey J. in Keeley referred to the need for consistency in decision making. His Honour observed that if the Commission argument were to be accepted it would mean that when a decision on a claim is made by the Commission, liability under the Act is subject to variation, whether up or down in an unpredictable way over an unpredictable period. This view was impliedly endorsed on appeal by Lee and Cooper JJ. and expressly by Kiefel J. The Tribunal in Reading and Repatriation Commission [2000] AATA 841 (Deputy President Forgie and Captain Keane) described the consequences of an inconsistent approach to decision making:
"The only way in which consistency of decision making can be maintained is if the finding of their Honours in Keeley applies equally whether the change to the later SoP is beneficial to claimants or not. If it were otherwise, the applicable SoP could be determined by the particular circumstances of each claimant for what might be beneficial to one might not be beneficial to another. It could also be determined by the persistency exhibited by a claimant in pursuing his or her appeal rights. If he or she decides to accept the Commission's initial decision, he or she might be disadvantaged against a person who does not and, while proceeding in the VRB or this Tribunal, finds that the RMA has made a SoP more favourable to his or her claim. The person who accepted the Commission's decision would need to make a new claim and his other entitlement would be determined by the date of that new claim. The person who proceeded would have his or her entitlement determined by reference to the date of his or her original, but usually significantly, older claim."
21. We agree with this view."
It is our view that the decision in Re Olsen is not compatible with the Federal Court's decisions in Keeley and that, accordingly, we prefer the reasoning in Re Ryan and Re Reading. That being so, we find that the SoP to be applied in these proceedings is Instrument No. 241 of 1995.
As we have indicated, Mr De Marchi has acknowledged that in the event of Instrument No. 241 of 1995 being applied, Mr Hanlon's claim cannot succeed. We accept this to be so and find accordingly.
Assessment
While ordinarily the Tribunal in these proceedings would proceed to determine Mr Hanlon's degree of incapacity from his war-caused disabilities and therefore the rate of pension payable to him, the parties, however, informed the Tribunal that, by consent pursuant to section 42C(1) of the Act, they were in agreement that Mr Hanlon's degree of incapacity pursuant to the Guide to the Rates of Veterans' Pensions resulted in payment of pension at 50 per cent of the General Rate, with effect from 31 May 1998.
The Tribunal accepts the assessment made by the parties and finds accordingly.
The Tribunal further accepts that, as Mr Hanlon complied with all time limits for the lodgment of applications pursuant to the Act, the effective date for payment of pension at the increased rate is 31 May 1998.
Decision
The decision of the Tribunal will be as follows:
(a)That the decision of the respondent dated 30 April 1998, affirmed by the VRB on 13 September 1999, that Bilateral Open-angle Glaucoma is not war-caused within the meaning of section 9 of the Act, is affirmed;
(b)That that part of the VRB decision of 13 September 1999 which affirmed the decision of the respondent dated 19 November 1998, be varied;
(c)That the decision of the respondent dated 19 November 1998 be set aside;
(d)That pension be paid to Mr Hanlon at 50 per cent of the General Rate, from 31 May 1998.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Associate Professor J.H. Maynard
Signed: .....................................................................................
  Personal Assistant
Date/s of Hearing  13/12/00
Date of Decision  20/12/00
Counsel for the Applicant        Mr D. De Marchi
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr R. Douglass
Solicitor for the Respondent    Department of Veterans' Affairs