JNGS and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1237

JNGS and Repatriation Commission (Veterans' entitlements) [2017] AATA 1237 (1 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/4538
Re:JNGS
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:1 August 2017
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – claim for special rate – applicant in receipt of disability pension since 1974 – service in Vietnam for 12 months between 1968 and 1969 – meningo-encephalitis contracted in 1975 – certified as totally disabled 1976 – applicant received defined benefit pension – continuing service in the reserves until 1982 – subsequent training as a disability carer – employment as disability care worker on a casual basis – hours of employment varied up to a maximum of 26 hours per week – applicant suffered two physical assaults with bilateral shoulder injuries in course of disability care work – war-caused posttraumatic stress disorder diagnosed following assaults – alone test not satisfied – decision affirmed
VETERANS’ AFFAIRS – claim for acceptance of conditions as war-caused - sleep apnoea - gastro oesophageal reflux disease - no reasonable hypothesis connecting either condition to service - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 37
Veterans’ Entitlement Act 1986 (Cth) ss 9, 22, 24, 28, 120, 120A
Cases
Beezly v Repatriation Commission (2015) 68 AAR 23
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Husband v Repatriation Commission (2000) 60 ALD 717
Owen and Repatriation Commission (1995) 59 FCR 93
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Watkins (2015) 228 FCR 573
Richmond v Repatriation Commission (2014) 140 ALD 380
Summers v Repatriation Commission (2015) 230 FCR 197
Secondary Materials
Statement of Principles Instrument No 41 of 2013 Sleep apnoea
Statement of Principles Instrument No 65 of 2013 Gastro-oesophageal reflux disease
REASONS FOR DECISION
Miss E A Shanahan, Member
1 August 2017

The veteran, formerly known as CGLQ and now known as JNGS, has been paid a disability pension by the Department of Veterans’ Affairs (DVA) at 100 per cent of the general rate since 2 March 1976. The Repatriation Commission (the Commission) had accepted that the medical conditions, then named Anxiety State with functional dyspepsia and Seborrhoea Capitis, were war-caused and arose from the veteran’s service in Vietnam from 25 June 1968 to 25 June 1969.
JNGS lodged a claim on 7 November 2014 for an increase in pension and the acceptance as war-caused of a further 10 conditions. The medical conditions forming the basis of this claim included spondylosis of the lumbar, thoracic and cervical spine with L4/5 spondylolisthesis, osteoarthritis of the right ankle and knee, hypertension, diabetes, morbid obesity, post-traumatic stress disorder (PTSD), Achilles tendinopathy, gastro‑oesophageal reflux disease (GORD) and sleep apnoea.
On 27 March 2015 a delegate of the Commission accepted all of the newly claimed medical conditions except for the GORD, the sleep apnoea, the morbid obesity and the right Achilles tendinopathy. The acceptance of all the other conditions was backdated to 7 April 2014. JNGS’s pension was increased to the extreme disablement adjustment rate in accordance with s 22(4) of the Act on 2 April 2015, with effect from 7 August 2014.
JNGS appealed this decision to the Veterans’ Review Board. On 30 July 2015 the Board accepted that JNGS’s morbid obesity and Achilles tendinopathy were war‑caused but rejected the claim for GORD and sleep apnoea. The extreme disablement adjustment payment was confirmed as was the date of effect of 7 August 2014. The claim for special rate was rejected as the Board concluded that JNGS did not satisfy s 24(2A)(g) of the Act, relating to the date on which JNGS ceased undertaking her last paid work.
JNGS lodged an application for review of the Board’s decision with the Administrative Appeals Tribunal on 31 August 2015, seeking acceptance of the GORD and the sleep apnoea as war-caused and that the rate of pension be increased to special rate.
The hearing of the matter took place from 23 to 25 August 2016. Subsequent to the hearing a telephone directions hearing was held on 3 November 2016 and a directions hearing in person on 28 November 2016 in an effort to resolve conflicts in the evidence both documentary and oral. Subsequent to the directions hearing of 28 November 2016 at which the Tribunal Member was asked to recuse herself for apprehension of bias an interlocutory decision was published on 6 January 2017 (Re JNGS and Repatriation Commission [2017] AATA 51). Further documentation to clarify the issues was provided by the parties in February, March and April 2017.
At the hearing JNGS was represented by Ms Walsh of counsel instructed by William Winter Solicitors. Mr Ken Rudge, a solicitor of the Advocacy Section of the DVA, appeared for the Commission. The Commission provided the documents lodged pursuant to s 37 of the Administrative Appeals Act 1975 (the T-documents) and both parties tendered a considerable amount of documentary evidence, a list of which is appended to this decision. JNGS, Dr David Baron, Associate Professor Brian Chambers and Dr Robyn Horsley gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
CGLQ was born on 9 July 1945 and completed his education to the intermediate certificate level at a technical college in Ferntree Gully. He qualified as an electrical fitter and industrial electrician in March 1966 after a five year apprenticeship with the then State Electricity Commission in Victoria. On 1 March 1966 he lodged his application for enlistment in the Permanent Defence Force, Regular Army, nominating the Royal Australian Engineering Corp as his preferred assignment. His application was accepted. He enlisted for a period of six years. Whilst in the armed forces he received further training and certification.
CGLQ served in South Vietnam for a period of 12 months between 25 June 1968 and 25 June 1969. On 31 January 1968 he had been assessed as being a below average tradesman requiring constant supervision. (Exhibit R16, page 41). CGLQ served in Vietnam as a radio and radar technician both at the Nui Dat base, servicing and repairing equipment, and in the field as necessary. He gained promotion to the level of Sergeant on 27 August 1971 and was discharged from the Regular Army on 14 March 1972 having completed his six year term of service. On the same date CGLQ applied to enlist in the Regular Army Emergency Reserve (Reserves) and was accepted. He served in the Reserves until 1982. This service involved annual attendance, in two week periods, at Reserve camps. In 1976 he advised he was unavailable that year and did not attend. From 1972 to 1982 CGLQ was paid for his attendance in the Reserves.
Some two weeks prior to his discharge from the Regular Army CGLQ was seen by consultant gastroenterologist Dr Henry Hillman who, on 28 February 1972, reported that CGLQ had presented with gastrointestinal symptomatology which he considered to be a manifestation of anxiety. Further investigation was advised. (Exhibit R5A). Dr Hillman recorded that since returning from Vietnam in 1969 CGLQ had gained three stone in weight, which on the Tribunal’s calculations put his Body Mass Index (BMI) at 29. His BMI on enlistment in 1966 was 25.1.
Following discharge from the Army, CGLQ was employed by the Victorian Department of Education. He obtained a Diploma of Education and taught in the Technical College Division of the Education Department.
On 27 October 1975, CGLQ was admitted to the Royal Melbourne Hospital in a semi-comatose state and was diagnosed as suffering from meningo-encephalitis, probably viral. He was treated in hospital for a period of three weeks following which he was transferred to the Royal Talbot Rehabilitation facility. He had suffered a right hemiplegia, a degree of aphasia, total memory loss for events prior to the date of admission and was determined to be intellectually impaired.
CGLQ remained at or under the care of the Royal Talbot hospital in Kew until around October 1976. He was assessed in October 1976 as being paralysed in the right arm with weakness of the right leg but no limitation of the range of movement. In the opinion of Dr Corey O’Ryan, CGLQ had an anxiety disorder along with the residual defects arising from encephalitis. He was treated with antidepressants and Valium. In light of these opinions and the persisting paresis of the right arm, it was determined that CGLQ was totally incapacitated for work. The Department of Education accepted this opinion and CGLQ commenced receiving a Defined Benefit Superannuation payment as of 17 February 1976.
At the time of the hearing of this matter this Defined Benefit payment was approximately $875.00 per week. This was additional to the payment of a disability pension from the DVA at 100 per cent of the general rate. From 1976 onwards and until at least 1997, CGLQ’s treating general practitioners certified him (later her) as continuing to suffer from retrograde amnesia due to brain damage, continuing loss, albeit minor, of power in the right arm and severe depression. (Dr Wong’s report of 27 June 1997 for example, Exhibit R15, page 56). The psychiatrist Dr P Todd confirmed residual dysphasia, irritability and cognitive fatigue attributable to post-encephalitic brain syndrome up until December 1985.
In 1989, CGLQ underwent gender reassignment surgery and thereafter identified as being female, adopting the name of JNGS. JNGS continued to live with her wife, ZHAJ, in the family home.
In 1991, JNGS undertook training in the care of intellectually disabled persons and became qualified to provide such services for the Victorian Department of Human Services. In 1992, JNGS was employed as a casual worker supervising disabled persons, assisting them in everyday tasks for varying periods of time. She ceased work in late November 2014, after a 42 week period when she was unable to work as a result being physically assaulted by a client on 3 October 2013. The Essential Services & State Super (ESSSuper) fund of the Victorian State Government had been informed of the veteran’s gender reassignment surgery and change of name and accepted the various statements that she worked a limited number of hours as a casual employee.
In 2001, ESSSuper accepted that JNGS had no income from gainful employment (Exhibit R15, page 55). The Tribunal does not have data relating to the earlier years of JNGS’s employment with the Department of Human Services, having been provided with records only from 2005, 2012, 2013 and 2014. The data from 2005 shows that the minimum period worked between September and December of that year was 22 hours per week and the maximum 25 hours per week. JNGS’s provided income tax returns have been limited to the period 2010 to 2015. In 2010 her net income from work was $51,270.00 falling to $10,454.00 in the year 2015.
In 2012, Dr David Baron, psychiatrist, saw JNGS and made a diagnosis of PTSD attributed to her 12 month’s service in Vietnam. Dr Baron did note JNGS’s memory loss and inability to recall detail of the stressors she experienced while in Vietnam.
On 9 September 2013, JNGS was assaulted by an aggressive male autistic client, following which she was absent from work for a period of 10 days. JNGS was said to have suffered a bite wound to her abdomen, a scalp wound resulting from her hair being pulled and a sprain of her thoracic spine. As she returned to work on 17 September 2013 this first claim was limited to a short period.
JNGS was again assaulted on 3 October 2013 by the same client following which she developed bilateral shoulder pain. As a result of these injuries she was off work from 3 October 2013 until 25 August 2014 when she returned to work on reduced hours. An ultrasound of the right shoulder performed on 16 November 2013 had revealed a supraspinatus tear measuring 7mm x 11mm, a subscapularis muscle tear of 11mm x 12mm, sub-deltoid bursitis and minor degenerative changes in the acromioclavicular joint.
On 7 March 2014, JNGS underwent an arthroscopic acromioplasty performed by Associate Professor M Richardson. This procedure was beneficial. However in July 2014 she is said to have developed pain in the left shoulder requiring an intra-articular injection of cortico-steroids. Ultrasound of the left shoulder in July 2014 had shown a supraspinatus tear and sub-deltoid bursal thickening with impingement on abduction. A previous ultrasound of the left shoulder performed on 2 April 2013 had shown the same pathology although the supraspinatus tear was larger before the assault took place (Exhibit R2 page 126). Between 3 October 2013 and 28 August 2014 JNGS’s medical costs and her loss of wages were compensated by WorkCover Victoria.
It is accepted that JNGS’s date of birth is 9 July 1945. However, most of the general practitioners’ entries, letters of referral and the reports of radiology, haematology and biochemical services record her date of birth as being 9 July 1952, as does the Department of Human Services and all data relating to the worker’s compensation claim, including JNGS’s handwritten and signed claim form. The Tribunal accepts that at the time of application to this Tribunal for review of the VRB decision, JNGS was 71 years of age but on the basis of her date of birth being 1952 would have been 64 years of age. This is of relevance to the requirements of the Act relating to Veterans that make claims for disability pension or increased rate of pension when they are over 65 years of age.
EVIDENCE BEFORE THE TRIBUNAL
JNGS
JNGS provided two statements the first of which was dated 24 August 2015 (Exhibit A1) the second 2 February 2016 (Exhibit A2).
In examination-in-chief Ms Walsh took JNGS through the events commencing with her apprenticeship to her service in Vietnam. Where JNGS could remember various aspects, they were put to her by Ms Walsh and JNGS confirmed the evidence. She did not remember seeing the general practitioner Dr Kubicek who treated her from 1972 but did recall she had been diagnosed with functional dyspepsia and anxiety at that time. She was also aware that she had been diagnosed with PTSD by Dr Baron and that this had been accepted by the Commission as war-caused. JNGS agreed with the suggestion she had developed headaches and anxiety whilst in Vietnam. JNGS attributed both of these symptoms to her experiences which she described as being the fear of being in a war-zone and which she said she found traumatic. Without enlarging on the topic she referred to explosions and mortar attacks.
JNGS had little recall of the event of 1975 when she was admitted to the Royal Melbourne Hospital with the probable diagnosis of meningo-encephalitis. This is not surprising, given she was unconscious at the time of her admission. She agreed that since this episode she has had great difficulties with her memory. She confirmed that she had been retired from the Education Department because of ill health and was granted a superannuation pension thereafter. JNGS agreed that she had been taking anti‑depressant medication from 1976, and possibly even as early as 1972.
JNGS confirmed that she had undergone gender reassignment surgery in about 1989 and that in 1991 she had undertaken study to obtain a certificate in disability care. She said she had started working with the Department of Human Services in 1992 on a casual basis, with no set hours. JNGS worked in a Community Residential Unit, which is a house where four to five intellectually disabled residents reside. She said that most of her work was morning or afternoon shifts and there was a house supervisor present at all times. It was her job to help the residents prepare their meals, shower, make their bed and go shopping which would always involve two staff. JNGS confirmed that her activities were hands on, such as making sure residents’ shower water temperature was at an appropriate level and helping them with drying themselves after a shower.
JNGS was also involved in assisting the residents washing their clothes, hanging the washing on the line or putting it in a dryer and was always out there helping. In a similar fashion she assisted them with the preparation of meals but was not required to do any manual lifting. She said most clients were there for many years. Over the period of 20 years she worked in 30 different accommodation houses. All of these were close to her home. It was common for the residents to go to an adult training centre for the day and then return at about 4.00pm.
Ms Walsh took JNGS to Dr Wong’s report of 1997 to ESSSuper, this being a routine response to regular queries from the fund. JNGS agreed that where Dr Wong had said she was still recovering, that meant she was still recovering from meningo‑encephalitis. Dr Wong had said that JNGS could only do casual part time employment and this did not affect her ESSSuper payments. JNGS agreed that she had herself filled in the questionnaire provided by ESSSuper.
JNGS could not accurately recall when she was diagnosed with sleep apnoea or GORD.
JNGS agreed that she had two general practitioners, Dr Krigsman and Dr Fitzpatrick, in different general practices. While Dr Fitzpatrick originally practiced as a general practitioner she had since specialised in rehabilitation and for this reason JNGS had seen her regarding her musculoskeletal problems.
Ms Walsh took JNGS to her consultations with Dr Heywood, a neurologist, regarding her diagnosis of headache and dizziness in 2002. JNGS believed that her treatment by Dr Heywood, which JNGS recalled as being Codral Forte only, had been beneficial. Apparently, Dr Heywood retired two to three years ago and JNGS has not seen another neurologist for treatment purposes. She may have seen a Dr Prentice but she was uncertain of this. She believed her headaches were a reaction to anxiety and stress and said she had suffered headaches and anxiety since her time in Vietnam.
JNGS said that she had obtained work with the Department of Human Services because she needed to supplement her pension in order to live. She had joined a Veterans’ Heart Health Group, paid for by the DVA for the initial 12 months, and she continues to participate in this group at a reduced member’s price for two hours per week. She has been attending this group for the past six years and describes this as her main social outlet. Members of the group had advised her to see a psychiatrist and they recommended Dr Baron. Dr Baron made the diagnosis of PTSD. He continues to see JNGS every two to three weeks and has been doing so since 2012.
With reference to the income tax returns, JNGS agreed that from 2010 her income from employment by the Department of Human Services had decreased from $53,106.00 in 2010 to $35,100.00 in 2012. JNGS attributed this to a decrease in hours directly related to her health and particularly to the PTSD. She said she had headaches and nausea, felt tired and washed out, was taking a lot of medication and decided she had to take more care of her health in general.
JNGS confirmed the assaults of September and October 2013 and the nature of the resulting injuries. The assaults had been perpetrated by the same client. She described the events as the client having approached her from behind, grabbed her hair and thrown her to the floor. She believed that when she pushed a spongebag in his face she had hurt both her right and left shoulders. Following surgery to the right shoulder and a steroid injection into the left, JNGS considered that she had recovered fully from these injuries by the time she returned to work in August 2014. Her duties on return to work remained the same. She had issues with neck pain but this resolved with treatment.

JNGS’s last shift with the Department of Human Services was on 19 November 2014. She said she ceased work because she found she couldn’t cope due to psychological issues and her general health, which she summarised saying Even though I wanted to work I just didn’t feel well enough. JNGS said that for the year preceding her cessation of her employment she had trouble getting out of bed, had lost confidence and frequently became confused. Her sleep had deteriorated. JNGS believed that if she did not have mental problems she would still be working as her physical problems did not bother her.
In cross-examination, Mr Rudge endeavoured to obtain further information regarding the pattern of JNGS’s headaches in light of the opinion given by the neurologist Dr Heywood. Dr Heywood formed a view that these headaches were aggravated by physical activity and, when severe, prevented her from performing her usual work duties and were disabling from time to time. JNGS confirmed that on occasions while working she got a severe headache, considered to be a migraine, and would have to leave as the associated dizziness made her unsteady on her feet. These appeared to occur approximately once a month. She had had difficulty recalling exactly how often these were occurring around the time she saw Dr Heywood and subsequently Professor Chambers.
In relation to the shoulder pathology Mr Rudge referred to the report of Dr Jane Fitzpatrick of 10 September 2014. This stated that JNGS had ongoing right shoulder pain and an ultrasound had shown that she still had a tear in the supraspinatus despite having had an arthroscopic repair. Dr Fitzpatrick had recommended an injection of platelet rich plasma into the shoulder joint. JNGS was uncertain as to whether the injection was in her right or left shoulder. On 20 November 2014 Dr Fitzpatrick’s clinical notes record that platelet rich plasma (PRP) had been injected into the left shoulder because of continuing left shoulder pain. JNGS had no recollection of these procedures or their timing and was uncertain what had been injected into her left shoulder.
JNGS was taken to the records of her hours of her work. She said she normally did four-hour shifts and only occasionally would work for a continuous period of eight hours. She was unable to explain the reduction in the hours worked in 2012 and 2013. The records indicate that she did not work for a period of two and a half months. JNGS confirmed, as declared in her statement, that she had ceased work in November 2014 due purely to her PTSD and not to any residual shoulder pain.
While JNGS agreed that she commenced working for the Department of Human Services in 1992 she could not recall the hours she worked in the 1990’s. She said she had taken on work with the Department to supplement her veteran’s pension as she had considerable expenses, including a mortgage.
JNGS was taken to the records from 1997, when she was receiving fortnightly pension payments from ESSSuper of $1,102.00 and her income from employment was said to be nil. JNGS could only explain an income of nil as relating to one particular fortnightly period when she had not worked. She was asked why she had never declared the Victorian Government disability payment pension in her income tax returns. JNGS advised that she had always declared all monies received to the accountant who prepared her tax returns. Further questioning by the Tribunal, relating to the tax returns, raised concerns regarding why neither the Victorian Government pension nor the DVA pension were declared in the returns prior to 2014. JNGS could not explain these matters. In re-examination Ms Walsh confirmed with JNGS that she relied entirely on her accountant to complete her income tax returns, having provided him with the necessary information. JNGS said she had complete trust in her accountant.
In relation to the evidence given in cross-examination by Mr Rudge regarding her shoulder pathology, JNGS clarified that her right shoulder was symptomatically fine after surgery and that she had had a cortisone injection into her left shoulder which had been curative. Ms Walsh read part of Dr Fitzpatrick’s letters to Dr Krigsman, including her interpretation of the ultrasound and that, in Dr Fitzpatrick’s opinion, had not changed over the previous 12 months. JNGS agreed to all of the questions put to her answering yes on every occasion.
Ms Walsh attempted to clarify the reduction in JNGS’s hours of work in early 2013 and the fluctuation that occurred from month to month. JNGS explained that she would be telephoned by the disability service and offered work and that she did not always accept the offers. She agreed that she had started to see Dr Baron in November 2012 at the suggestion of friends and she attributed this variation to her mental health.
In her statement of 2 February 2016, JNGS had said that she had made a full recovery from the meningitis of 1975 and in 1977 she had undertaken work experience at various placements but as her concentration and memory were poor, she did not obtain ongoing employment. She related the problems with concentration and memory to her PTSD and not to the meningo-encephalitis. Similarly, she said the headaches she suffered from had commenced while in the army and it was her belief that they were caused by her PTSD. She did not believe the meningitis had contributed in any manner.
Further, JNGS set out in her statement that she had ceased teaching with the Victorian Education Department because of her mental illness and not because of the meningitis despite the meningo-encephalitis having being reported to have rendered her totally amnesic to all previous events. Similarly, she attributed her cessation of work with the Department of Human Services in November 2014 to her PTSD and unrelated to her shoulders and her continuing headaches.
Dr David Baron, psychiatrist
Dr Baron provided reports to the referring general practitioner Dr Jane Fitzpatrick dated 20 May 2015 (T22, pg 174), to the DVA dated 5 December 2014 and his Curriculum Vitae. Dr Baron trained in New Zealand and England as a psychiatrist and practiced in New Zealand until late 1977. Thereafter, he practiced in various community psychiatric centres and private hospitals in Victoria. Dr Baron obtained membership of the Royal Australasian College of Psychiatrists in 1971 and the Fellowship of the same College in 1985. He described his special psychiatric interests as group therapy, interpersonal relationships and assisting patients dealing with work stress. (Ex. A3)
Dr Baron’s report to Dr Fitzpatrick is brief. The history he had been given described flashbacks, dreams with episodic pounding of the heart, shortness of breath and feelings of panic. While JNGS had poor memory of the events that occurred in Vietnam her dreams involved sparks, explosions and being pushed about by shockwaves and falling under an armoured personnel carrier. JNGS’s sleep was assessed as poor; she was irritable and was unable to drive as she became disorientated. She was said to be hyper-vigilant and frightened to go out in the dark alone.
Dr Baron made a diagnosis of PTSD which prevented JNGS from working and this was the only condition that affected her ability to earn. He regarded her work as a carer as being the fulfilment of a friendship role rather than a proper job. He believed the work to be very casual and only performed from time to time.
Dr Baron’s report to the DVA dated 5 December 2014 (T8, pp 69-74) provided greater detail and referred to an incident at Firebase Juliet involving Operation Long Binh. JNGS had given a history of being under continual rocket fire, grenades, mortar and gunfire and was so frightened she had hidden in an underground water pipe. She had experienced flashbacks of this event since Vietnam. In this report Dr Baron addressed the criteria of DSM-V (Diagnostic and Statistical Manual of Mental Disorders, 5^th ed.) for the diagnosis of PTSD. He confirmed that JNGS’s memory was extremely poor. He considered the onset of JNGS’s PTSD to have been during the Operation at Long Binh and that her incapacity based on the guide (GARP) was 50 points. He considered that JNGS had been unable to work for many years, prior to developing her physical conditions, as a result of her PTSD.
In his evidence before the Tribunal Dr Baron affirmed his written opinion and said that the 1976 records (Exhibit R5) referring to vomiting and diarrhoea were the first indication of a psychiatric abnormality. He believed these symptoms to be related to anxiety, although he agreed that diarrhoea and vomiting were not accepted as symptoms of PTSD. Dr Baron explained that in the 1960s and 1970s there was little medical knowledge of the condition now known as PTSD and it was not until the 1980’s that psychiatrists retrospectively and prospectively considered this condition. The Tribunal notes that DSM-III first used the title PTSD in 1980. In relation to the presence of headaches and migraines, Dr Baron stated that these symptoms were not usually part of the PTSD spectrum.
Based on the history given by JNGS, Dr Baron had concluded that she had recovered extremely well from her meningo‑encephalitis. While the reports of the psychiatrist Dr Todd had in 1985 attributed JNGS’s symptoms of memory loss, visual and hearing reduction and cognitive impairment to a post encephalitic brain syndrome, Dr Baron was of the opinion that psychiatrists, did not turn their mind to the concept of PTSD in that era. In his opinion JNGS had from the time she served in Vietnam exhibited symptoms of PTSD, albeit not then recognised as such. Dr Baron considered JNGS’s employment between 1992 and 2014 was illustrative of the common attitude of persons with PTSD who coped by working excessively long hours, using their work to control their anxiety.
Dr Baron confirmed that while the referral to himself had been made by Dr Fitzpatrick, JNGS had requested it having been advised by other Vietnam veterans to seek his opinion. Despite the work history provided by JNGS, Dr Baron maintained his opinion that she had been incapable of or incapacitated for work since 1972.
In cross-examination Mr Rudge took Dr Baron to the various reports relating to JNGS’s diagnosis of meningo-encephalitis and her hospitalisation followed by many months of rehabilitation at the Royal Talbot hospital. He agreed that the encephalitis had a huge impact on JNGS’s health and in particular her memory, but was of the opinion that the brain regenerates and that this had occurred in JNGS’s case. In contrast JNGS had not, in Dr Baron’s opinion, recovered from her PTSD and he believed the meningo-encephalitis in 1975 had made her PTSD worse. Dr Baron was under the impression that JNGS had recovered completely from her right and left shoulder injuries sustained in 2013. He had not assessed the effect of the 12 months she was off work on compensation payments on her PTSD.
Dr Baron was also of the opinion that JNGS’s exacerbations of her PTSD symptoms in 2013 and 2014 were related to the distress she suffered from her dealings with the DVA in relation to her claims for pension and this had been a factor impacting on her hours of employment in 2013, as well as her decision to cease work in November 2014.
It was not clear whether Dr Baron had been provided with any records of JNGS’s service in Vietnam or had relied entirely on the history she had given. As the PTSD was an accepted condition, the T-documents do not contain any data relating to the Vietnam service other than its duration and the VRB had not considered the Vietnam service experiences given the limitations of the claims of 2014 and the hearing in July 2015.
Associate Professor Brian Chambers, neurologist
Professor Chambers had seen JNGS and provided a report dated 30 March 2016 at the request of the Commission. His opinion had been sought in relation to JNGS’s headaches and neurological status in general. Professor Chambers’ report is Exhibit R10. He concluded that JNGS suffered from two types of headaches, a tension headache and migraine. He believed that the two were linked in that her headaches started as tension headaches and occasionally developed into migraines.
Professor Chambers believed that the headaches had preceded the acute meningo‑encephalitis of 1975 and the later diagnosis of cervical spondylosis. However, he could not exclude the possibility that she was developing cervical spondylosis at that time. While JNGS had given the history that her headaches did not affect her work capacity, the effect being due to her psychiatric condition alone, Professor Chambers considered the migraine episodes to be debilitating in nature. The headaches required strong analgesics and if they occurred when she was away from home necessitated she be collected and taken home.
The history obtained by Professor Chambers was that in the two months before he saw her in March 2016, JNGS had suffered six episodes of migraine. The frequency of the headaches and migraines and the need for analgesia had caused her to leave work. Professor Chambers opined that the headaches contributed to JNGS’s incapacity for work. He noted that in 1985 Dr Todd, a psychiatrist, had expressed the same opinion. Professor Chambers acknowledged that while meningo-encephalitis could result in longstanding headaches, JNGS’s headaches had preceded this infection. He considered them as a stand-alone condition having effect both before and after the meningo-encephalitis.
Professor Chambers was concerned by the reports relating to JNGS having residual cognitive problems, speech problems, right upper limb paralysis and some right lower limb weakness up to 22 years after the documented meningo-encephalitis. When he had examined her she showed no focal or neurological deficit and stated she had completely recovered from the meningo-encephalitis. He found this difficult to reconcile, particularly as a computerised tomography (CT) brain scan did not show any major abnormality except for a small basal ganglia opacity anatomically unrelated to the motor tracts. As a result he suspected that JNGS may have suffered from a functional neurological condition or what is known as a conversion disorder, a subconscious reaction to stress.
Mr Rudge referred to the report of Dr Henry Hillman of March 1972 relating to gastric symptomatology, this report having been provided to Professor Chambers. This particular document had not been included in T-documents or lodged separately with the Tribunal. Ms Walsh objected to the Tribunal hearing evidence in this respect. Dr Hillman’s report was eventually produced and admitted to evidence as Exhibit R5A. Professor Chambers advised that he had been a resident at the Royal Melbourne Hospital in 1975 when JNGS was an inpatient and that these were the early days of CT scanning. He doubted that JNGS would have had a CT scan at that time but agreed with the Tribunal’s suggestion that she would have had a lumbar puncture. Given the elapse of time it was agreed JNGS’s records would have been destroyed.
Professor Chambers concluded that even if there had been an underlying neurological defect a conversional functional element had been introduced some time later. He pointed out that a conversion disorder could be just as incapacitating as an organic neurological condition.
In cross-examination Ms Walsh ascertained that Professor Chambers had concluded that there were two types of headaches, one muscle tension and the other migraine. He elucidated the differences between these two and also stated that anxiety could contribute to both muscle tension headaches arising from the para-spinal cervical muscles as well as contributing to the severity of the migraine. He reiterated his opinion that this could interfere with the individual’s capacity for work, although JNGS only worked, to his knowledge, four to eight hours per week and had the ability to refuse to work if she was unwell.
The Tribunal asked Professor Chambers several questions relating to the clinical findings of neurological deficit as late as 1997 and his findings on examination of no residual neurological abnormality. He agreed that one would expect to find some muscle disuse wasting or some residual changes such as an increase in reflexes on the affected side. He found the absence of such signs puzzling.
In his report (Exhibit R10), Professor Chambers had noted that JNGS had undergone chromosomal typing that had revealed her sex chromosome status as XXY. Based on its own medical knowledge, the Tribunal was aware that XXY chromosome status is known as Klinefelter’s Syndrome.
Dr Robyn Horsley, occupational health physician
Dr Horsley, occupational health physician authored two reports, the first dated 16 December 2015 (Exhibit R8) and the second 28 July 2016 (Exhibit R9). In the first report Dr Horsley provided a detailed history and physical examination in relation to JNGS. Based on the history given by JNGS, Dr Horsley concluded that JNGS had no capacity for work. In her opinion the physical accepted conditions alone precluded work. She deferred to the opinion of the treating psychiatrist who had indicated that there was no capacity for work on the basis of the psychiatric status.
JNGS had not provided Dr Horsley with the history of the 1975 meningo‑encephalitis. She said she had ceased work in October 1975 because of a psychiatric illness. Dr Horsley had subsequently been provided with JNGS’s medical history and in particular the medical records between 1974 and 1986 relating to JNGS’s serious meningo-encephalitis and its sequelae. The Commission also provided the reports of Professor Chambers regarding headaches and JNGS’s neurological status, the ESSSuper documents, the Department of Human Services payroll records, the workers’ compensation claims, the clinical notes of various treating general practitioners and JNGS’s second statement (Exhibit A2).
In light of this additional information, Dr Horsley doubted JNGS’s statement that she had ceased work as a teacher because of mental illness. Dr Horsley was informed that JNGS was in fact averaging 22 hours per week of work up until 2013, was for the first time appraised of the assaults of 2013 and that the assaults in 2013 had resulted in her being off work for 11 months and in receipt of workers compensation payments. She was also advised of the surgical intervention for the right shoulder and treatment of the left shoulder.
Dr Horsley reconsidered her original opinion based on the data provided and opined that the assaults of September and October 2013 had contributed to a reduction in JNGS’s emotional wellbeing and this in turn resulted in her inability to resume her hours of work to the pre-injury level, despite a clearance from her general practitioner to return to normal duties on 25 August 2014. Dr Horsley concluded that JNGS’s worsening physical capacity would have been a contributory factor to her ceasing work in 2014. She did not however, differentiate between the accepted conditions and the non‑accepted bilateral shoulder pathology.
In her evidence before the Tribunal, Dr Horsley expressed her surprise that JNGS had not mentioned either the episode of meningo-encephalitis or the assaults of 2013 but essentially affirmed the opinion proffered in her written reports. She had not read the reports of Associate Professor Richardson.
In cross-examination Ms Walsh first took Dr Horsley to the question of JNGS’s GORD. Dr Horsley had obtained the history from JNGS that she had the condition but said that it was well controlled with Nexium. Dr Horsley agreed contributory causes to the development of GORD would be JNGS’s stature, weight and high BMI. Similarly, it was advanced by Ms Walsh that there was a connection between JNGS’s weight and her sleep apnoea. Dr Horsley agreed. Dr Horsley confirmed that she found no neurological abnormalities in her examination in 2015 and confirmed her conclusion that JNGS was unfit for previous work on the basis of her accepted physical disabilities alone.

However, Dr Horsley confined her statement as to JNGS’s unfitness for work to what she had been told and found on examination when she saw JNGS on 16 December 2015. This was despite the fact that two doctors had certified JNGS as fit to resume her previous levels of work as of August 2014. Dr Horsley said she had not been provided with the reports of either Mr Richardson or Mr Boys who had certified JNGS as fit to resume work in August 2014 in accordance with defined return to work activities.
Ms Walsh cross-examined Dr Horsley in relation to all of her conclusions, including the certification provided that JNGS could return to work. Dr Horsley did not change her opinion, explained that the certification for return to work related only to the shoulder pathology and not the other conditions, expanded on the concept of tension headaches being related to cervical spondylosis as well as other factors and concluded that JNGS’s headaches were probably multifactorial in origin. She deferred to the opinions of psychiatrists in relation to PTSD and to Professor Chambers and Dr Heywood’s opinions regarding JNGS’s headaches.
On the completion of the oral evidence, the Tribunal raised the question of JNGS’s sex chromosome status, diagnosed as XXY (which is, as noted above, known as Klinefelter’s Syndrome). Based on this knowledge, the Tribunal advised the parties that JNGS would have been required to attend a psychiatrist for up to two years prior to being approved for gender reassignment surgery and that the Tribunal was aware that in the 1980s the psychiatrist who undertook these assessments was Dr Trudy Kennedy. JNGS, who had ceased giving evidence but was sitting in gallery of the hearing room intervened and answered yes ma’am. Thus she confirmed that she had seen Dr Kennedy over a period of two years prior to the gender reassignment surgery. It is to be noted that in the transcript of the hearing the reply yes ma’am was attributed to Mr Rudge, he being the only person in the hearing room assigned the status of a male. JNGS, while now considered female, retains the vocal pitch of a male.
The Tribunal sought further submissions from the parties regarding Klinefelter’s Syndrome as the Syndrome is characterised by obesity, the frequent occurrence of diabetes, tallness, various levels of sterility and also occasionally low intelligence. Ms Walsh submitted that these matters were not before the Tribunal and thus should not be considered. The Tribunal, in response, stated that they were before it as Professor Chamber’s report had been tendered and admitted into evidence. The Tribunal was conscious of these factors and, having informed itself of them in accordance with s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, was seeking any submissions of the parties that might contradict, clarify or otherwise expand the Tribunal’s understanding of the condition and any relevance it may have had.
The Tribunal also raised concern that the various reports from treating doctors and their clinical records had provided two dates of birth for JNGS. While the Tribunal accepted that the correct date was in 1945, there was consistent reporting from at least 2002 that JNGS’s date of birth was in July 1952. These included her claims for workers’ compensation lodged in 2013, signed by her in what appears to be her own handwriting. The Department of Human Services in their documentation had stated her date of birth to be 9 July 1952.
Ms Walsh believed this to be due most probably to a typographical error made by a general practitioner and perpetuated thereafter. The Tribunal did not accept that explanation and indicated that further explanation was required.
DOCUMENTARY EVIDENCE
The Tribunal was provided with a voluminous amount of documentary evidence including some filed after the hearing. Most of this has been addressed under BACKGROUND TO THE APPLICATION and was the subject of examination-in-chief and cross‑examination. The relevant reports will be considered in more detail.
Dr John Heywood, Neurologist
Dr Heywood had seen JNGS with regard to her headache and dizziness between 2002 and 2013. He diagnosed a form of tension headache with migrainous exacerbations intensified by her anxiety disorder. Dr Heywood concluded that her dizziness was in fact vertigo aggravated by head movement. He observed that the severity of the headaches was unpredictable and as well as being aggravated by anxiety they were aggravated by physical activity. On occasion they prevented her from carrying out her normal work duties.
An MRI (magnetic resonance imaging) scan of JNGS’s brain was said to show age related changes only. Dr Heywood had been given a date of birth of 9 July 1952 and at the time of his report in 2013 he believed JNGS to be 62. Treatment had been directed at a regular vestibular exercise program and drug therapy. While the headaches and dizziness had improved slightly they remained persistent and at times disabling. In Dr Heywood’s opinion the headaches would continue to disable JNGS indefinitely.
Records of Dr Jane Fitzpatrick, sports physician
Dr Fitzpatrick is one of two general practitioners that JNGS has seen on a regular basis, having first consulted Dr Fitzpatrick in February 2008. Dr Fitzpatrick has been primarily concerned with JNGS’s musculo-skeletal conditions although she has since 2010 prescribed the oestrogen replacement transdermal patches Climara 7.6mg per 24 hours. The Tribunal notes that Greater Knox Family Practice has also prescribed this drug on a regular basis but at a lesser strength (3.8mg per 24 hours) since 2013. Dr Fitzpatrick’s clinical notes of 3 March 2010 record that JNGS was born XXY with penis and developed breasts – sex clarification operation done years ago. The Tribunal presumes this history came from JNGS.
Dr Fitzpatrick has been involved in the treatment of JNGS’s right ankle osteoarthrosis, her complaints of spinal pain and the diagnosis and treatment of both the left and right shoulder conditions. Dr Fitzpatrick was also involved in the investigation of JNGS’s right tendo-Achilles symptoms that revealed a small area of calcification at the junction of the tendon with the gastrocnemius muscle. In late September 2011 JNGS sprained her right ankle but did not consult Dr Fitzpatrick until 27 October 2011 as pain and swelling had persisted. Investigation including an MRI of the ankle revealed mild synovitis, some chondral loss from the medial talar bone aspect and rupture of the talo-fibular and calcaneo-fibular ligaments. Arthroscopic repair was performed by Professor Richardson.
In an entry of 13 March 2013 in relation to the right ankle osteoarthrosis, Dr Fitzpatrick recorded that JNGS complained of soreness in her right ankle after exercising for one kilometre on a treadmill. Thereafter ankle pain was an ongoing issue. On 30 March 2013 JNGS underwent an ultrasound examination of her left shoulder (T-doc, page 136) having presented to Dr Fitzpatrick with shoulder pain after using a mil press at the gymnasium she attended. This revealed a supraspinatus tendon tear measuring 11 x 5 mm. Some impingement on abduction gave rise to pain. The pain apparently settled with analgesics.
On 16 October 2013, Dr Fitzpatrick, who had not been appraised of the assaults of 9 September 2013 and 3 October 2013, initiated investigation of JNGS’s painful right shoulder. This was treated with a corticosteroid injection into the sub-acromial space, ultrasound examination having revealed a partial thickness tear of the supraspinatus muscle fibres measuring 6mm x 9mm, sub-deltoid bursal thickening and impingement during abduction at 30^o. The acromioclavicular joint was said to show minor degenerative changes. Eventually, JNGS underwent right shoulder arthroscopy performed by Professor Martin Richardson on 28 February 2014. At arthroscopy no muscle or tendon tear was seen and an acromioplasty was performed.
In July 2014, while her right should was progressing favourably, JNGS complained of left shoulder pain. On ultrasound she was found to have a supraspinatus tendon tear measuring 5mm x 3mm. No other abnormality was detected in the left shoulder. Professor Richardson recommended a corticosteroid injection into the left shoulder and opined that eventually arthroscopy on the left side would be required.
On 27 August 2014, JNGS again complained to Dr Fitzpatrick of pain in her right shoulder. Dr Fitzpatrick ordered an ultrasound. The ultrasound showed a full thickness tear of supraspinatus now measuring 9mm x 12mm and a full thickness tear in the subscapularis muscle indicating that the underlying pathological process had deteriorated compared to the pre-operative imaging. There was mild thickening of the sub-deltoid bursa and the acromioclavicular joint capsule was said to be hypertrophied. Given that no tear had been visualised at the time of the February 2014 arthroscopy, Dr Fitzpatrick thought repeat surgery was not indicated, as it was unlikely to be visualised at a further arthroscopy.
On 20 November 2014, the day after JNGS ceased work, Dr Fitzpatrick performed a platelet rich plasma injection into JNGS’s left shoulder. There are no further entries relating to JNGS’s shoulders in Dr Fitzpatrick’s file that records the last attendance as being 25 November 2015.
Dr Fitzpatrick’s records do not refer to any symptoms of sleep apnoea, its diagnosis or its treatment, other than to state that CPAP had been prescribed and the machine provided by the DVA some years ago. Similarly, there are no records relating to a referral to Dr Chen for investigation of JNGS’s claimed GORD. Dr Fitzpatrick had provided numerous reports to DVA. Dr Fitzpatrick also completed several Medical Incapacity Assessment forms with updates in which she advised of these conditions but also that she did not treat JNGS’s GORD or the sleep apnoea (Exhibit R2, page 217).
Dr Fitzpatrick’s clinical notes relating to JNGS give her date of birth as being 9 July 1952. The T-documents contain letters from Dr Fitzpatrick in the form of reports and referrals, approximately 51 in number, that give the year of birth as 1952. This contrasts with the various questionnaires Dr Fitzpatrick completed for the DVA wherein the year of birth was 1945. The MIA (Medical Imaging Australia) and Healthscope reports of various investigations carry the birth date of 9 July 1952.
The Greater Knox Family Practice Records (Exhibit R12)
These records cover the period from February 2007 to 7 June 2016. The Tribunal however has the impression that these are not the full records and probably represent only those that have been retained electronically. This clinic also officially records JNGS’s date of birth as 9 July 1952. From the entries it would appear that JNGS attended this clinic and in particular Dr Krigsman, for general medical problems and also for her psychological condition which in 2007 was recorded by Dr Sasidharan as being PTSD with depression. On 7 February 2007 JNGS was referred to Mr Martin Richardson for a tender lump at the lower end of her Achilles tendon.
This clinic also prescribed JNGS’s ongoing oestrogen patches, her influenza immunizations, monitoring of her hypercholesterolemia and saw her for the assaults occurring in September 2013 and again on 3 October 2013. The clinical note entry of 10 September 2013 describes the injuries suffered by JNGS as being a bite mark on her anterior abdominal wall and that the assailant had pulled out a full tuft of hair from JNGS’s frontal scalp. This area had been the site of a hair transplant in the past. JNGS also complained of pain in her lower thoracic area. At review on 17 September 2013 the bite mark was healing well, the back pain resolved and JNGS was anxious to return to work.
JNGS re-presented on 4 October 2013 having been assaulted by the same client at 5.30pm the day before. On this occasion she was found to have persisting skin and hair loss on the front of her scalp, a bite mark on her left hand and she complained she had jarred her right shoulder. An ultrasound of the right shoulder revealed a partial tear of the supraspinatus and subacromial bursitis. Regaine was prescribed for the hair loss. An ultrasound of the left shoulder was requested on 24 October 2013 by Dr Krigsman as JNGS was then complaining of pain in this joint. This ultrasound was said to have shown no new damage.
The ultrasound of the left shoulder was actually reported as showing an insertional supraspinatus tear 3mm x 7mm, sub-deltoid bursa thickening and some impingement with abduction. The acromioclavicular joint was normal. Thereafter the treatment of the shoulders seems to have been provided primarily by Dr Fitzpatrick and Professor Richardson. On 31 July 2014 Dr Krigsman noted that JNGS had had a cortisone injection to her left shoulder the day before and that Professor Richardson had advised that surgery to the left shoulder may be necessary in approximately four months’ time.
The clinical entries from 2015 onwards relate to JNGS’s Repatriation Commission claims, unrelated inflammatory conditions such as bronchitis, acute onset nausea and diarrhoea and review of ongoing long standing chronic knee and back problems. The file (Exhibit R12) is said to be the complete record as at 7 June 2016 and is identified as complete record – female. The Greater Knox Family Practice has never prescribed any medication for GORD in the 10 year period that JNGS has attended the clinic nor have they referred to sleep apnoea other than on the Summary Sheet where it states Inactive: date 2007 Obstructive Sleep Apnoea. There is no record of the prescribing of antacids, H receptor antagonists or proton pump inhibitors.
ESSSuper Records (Exhibit R11, R15)
These records outline the Essential Services and State Superannuation Fund of the Victorian Government (ESSSuper) contact with firstly CGLQ and as from an unknown date but certainly in 2016, JNGS. Until the year 2001 the superannuation payments were made in the name of CGLQ. The correspondence provided to the DVA confirmed that the Superintending School Medical Inspector, Dr Percy De Zilwa, had examined CGLQ on 12 May 1976 and assessed his then disabilities as:
·a partial paralysis and wrist drop of the right upper limb;
·... loss of memory, lack of concentration, loss of visual and hearing perception and associated cognitive functions;
CGLQ was described as being:
·...emotionally labile and weeps frequently;
·... suffer[ing] from severe frontal headaches and insomnia ...
Dr De Zilwa concluded that CGLQ was unlikely to be able to return to teaching in the foreseeable future and on this basis he recommended that he be retired on medical grounds with effect from the date of expiry of his sick leave credits. (Exhibit R15, page 8)
Workers’ Compensation (data from QBE)
These records confirm the acceptance of JNGS’s injuries by the Insurer and the payment of her medical expenses and weekly earnings based on a declaration by the Department of Human Services that JNGS’s pre-injury average hours were 15.3 per week (Exhibit R7, page 98). All of the work capacity certificates were provided by Dr Krigsman and the forms filled out and signed by JNGS state her date of birth to be 9 July 1952 as does all the Department of Human Services documentation provided to the Insurer.
Dr Peter Boys, orthopaedic surgeon, provided an independent assessment at the request of QBE Workers Compensation Limited on 14 August 2014 (Exhibit R7, page 31.) This report contained the known history and treatment of JNGS’s right shoulder. Mr Boys was of the opinion that surgical treatment had achieved a good result and recommended that treatment of the left shoulder by Professor Richardson be continued. Mr Boys recorded that there was no previous history of injury or symptoms referrable to JNGS’s shoulders prior to the assault. On examination he assessed JNGS’s range of movement of the right shoulder as being normal and pain free with no evidence of impingement. Tenderness in the left shoulder persisted despite a full range of movement.
Mr Boys confirmed the diagnosis of tendinosis/partial thickness tear right rotator cuff with arthroscopic acromioplasty and tendinosis/partial thickness tear left rotator cuff. It was noted that at the time JNGS was limiting the amount of pushing, lifting and carrying that she performed, particularly at a high level. She had resumed tasks such as gardening and mowing the lawn and had returned to driving a motor vehicle three months before he saw her. Mr Boys advised that JNGS was now able to resume normal hours of employment but should not care for challenging clients for a further three month period. He supported the planned graduated return to work program and restrictions provided and recommended it be maintained until JNGS was reviewed by Professor Richardson in late November 2014.
The return to work restrictions were devised by Dr Krigsman and the treating physiotherapist and included:
·avoiding repetitive or prolonged tasks or postures;
·avoiding lifting;
·avoiding reaching above chest height and below waist height;
·no pushing of wheelchairs or participating in resident’s transfers;
·no hands-on assistance to residents; not to push laundry or shopping trolleys in her out of work activities and
·not to be left alone with a resident in a community or group home;
·not to drive the bus or transfer into the front passenger seat of the vehicle used by the home.
This program was to commence on 3 August 2014 at eight hours per week, increasing thereafter up to 11 hours per week by 17 August 2014 with a review date on 14 August 2014. No further certificates appear to have been issued by Dr Krigsman.
Department of Human Services Report
The Department of Human Services supplied records relating to JNGS’s hours of work and rate of pay from 2005 until 30 June 2015. Between the period when she actually ceased work on 20 November 2014 and 30 June 2015 JNGS was receiving payment for annual leave and long service leave that had accrued.
CGLQ’s Service Records (Exhibit R16)
These records were provided to the Tribunal on 22 February 2017, the Tribunal having requested them in order to clarify entries in the T-documents that indicated that CGLQ had attended Reserve camps for two week periods in 1976, 1977, 1978 and 1979. CGLQ’s complete personal file confirmed that he had enlisted in the Reserves on 15 March 1972, re-enlisted on 15 March 1976, 15 March 1978 and again in 1980. He had served in the Reserves for a period of 10 years and had attended camp on an annual basis up to and including 1982.
This information was put to JNGS by her legal representatives. She confirmed that she had attended Reserves’ camp but explained that her activities were confined to menial tasks such as answering the telephone. She stated she did not make any physically exertive efforts nor manage or supervise others. She confirmed that she had been paid for her attendances (Exhibit A6).
JNGS’s tax returns
These have been referred to under background to the application and also briefly in JNGS’s evidence before the Tribunal. The Tribunal had expressed concern regarding the interpretation of some of the data in the tax returns. JNGS’s legal representatives undertook to clarify these with her accountant. The accountants by letter dated 16 November 2016 advised that there was no mortgage on the rental property listed in the tax return and there had never been a mortgage. The interest of $5,614.00 entered in the rental property schedule as a deduction expense in all returns from 2010 until 2015 were identified as payments to the [JNGS’s surname] Family Trust, details of which are not known to the Tribunal.
JNGS’s accountants also advised that the superannuation pension from the Victorian Government ESSSuper fund was not in their opinion required to be reported in the tax return, it being their understanding that only “government” tax‑free pensions are to be disclosed. The tax returns had been summonsed by the Commission given JNGS’s claim for special rate, which under s 24(2A)(e),(f) of the Act requires that a veteran, who has turned 65 before a claim for pension or increase in rate of pension, is prevented from undertaking his or her last paid work and incurred a loss of salary or wages or other earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity.
RELEVANT LEGISLATION

Section 9 of the Veterans’ Entitlements Act 1986 (the Act) provides that an injury or disease is taken to be war-caused if it arose out of, or was attributable to, any eligible war service
As JNGS’s claim includes the acceptance that her GORD and sleep apnoea are war-caused conditions, ss 120(1) and 120(3) are relevant, in that they provide the standard to which the Tribunal must be satisfied in determining whether the conditions are war caused. Section 120(4) is also attracted, as it provides the standard to which the Tribunal must be satisfied in assessing JNGS’s entitlement to the special rate of pension. These state:
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 of the Act provides:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…
In this case, the relevant Statements of Principles (SoPs) determined by the Repatriation Medical Authority are:
·Statement of Principles Instrument No 41 of 2013 sleep apnoea; and
·Statement of Principles Instrument No 65 of 2013 gastro oesophageal reflux disease.
In determining whether or not these two conditions are war-caused in accordance with the relevant statutory provisions set out above, the Tribunal is guided by the process set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 which stated:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
In relation to the claim for special rate the relevant legislation is contained in s 24 of the Veterans’ Entitlement Act 1986 (the Act) and as JNGS was 67 at the time she lodged her application in 2014, s 24(2A) is attracted as is s 24(2B). 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
…
(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
…
(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
…
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)     the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)    the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A)This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war caused injury or war caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)     if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)    if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and ...
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war caused injury or war caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)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
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
Section 28 relating to capacity to undertake remunerative work is also attracted and this states:
28Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war caused injury or war caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
SUBMISSIONS
The Applicant
Ms Walsh first addressed the anomaly in dates of birth, which JNGS had not been able to explain. Ms Walsh submitted that it was due to an error in the treating practitioner’s records that had been perpetuated thereafter. The Tribunal accepted that the correct date of birth was in the year 1945 and therefore JNGS was aged 69 when she ceased work. As a result s 24(2A) of the Act was attracted. It was agreed there was no dispute that in the application of s 24 of the claim for special rate, s 24(1)(a) was met in that the degree of incapacity for war-caused injuries and disease was greater than 70 per cent.
In relation to the requirements of s 24(1)(b), the so-called ‘alone test’ which applies to both veterans under and over 65 years of age, Ms Walsh contended that it was JNGS’s war-caused conditions alone which rendered her incapable of working for more than eight hours per week. In support of her submission she relied on the evidence of both JNGS and Dr Baron.
As JNGS was over 65 years of age when she ceased work s 24(2A)(d) was attracted. This provision is essentially the same as s 24(1)(c), except that the remunerative work is taken to be the last paid work. Ms Walsh identified JNGS’s last paid work as being a casual disability carer, employed by the Department of Human Services (Victoria). It was also submitted that the war-caused diseases or injury alone prevented the continuation of this remunerative work. To this extent, reliance was placed on the evidence of the veteran and Dr Baron and that of Dr Horsley, to the extent that she said in her reports of 2015 and 2016 that there was no other non-war-caused injury that she considered as incapacitating.
Ms Walsh argued that the incapacitating war-caused injury was PTSD. This was the predominant disease, although many of the other war-caused injuries such as spondylosis of the spine, osteoarthrosis of the right ankle and knee, hypertension and diabetes were also considered to be disabling.
Ms Walsh submitted that the headaches, identified by Professor Chambers as being tension headaches that could be aggravated by a psychiatric condition were possibly being caused by cervical spondylosis and anxiety and could pathologically be connected to spondylosis.
In relation to s 24(2A)(e) and the question whether the veteran was suffering a loss of salary, wages or earning it was contended that it was quite clear on the basis of the tax return records and the evidence of both JNGS and Dr Baron that JNGS had suffered a loss of earnings. It was also Dr Baron’s evidence that there was no other reason for JNGS’s cessation of remunerative work. Dr Horsley had been of the same opinion and it was argued so also was Professor Chambers in that: He is talking about causes arising from war-caused and accepted injuries. The same arguments were advanced in support of s 24(2A)(f) and (g) in that JNGS had been working for the Department of Human Services for more than 10 years before she turned 65. Section 24(2A)(g) of the Act was not considered on the basis that s 25 did not apply in JNGS’s case.
Ms Walsh addressed the evidence before the Tribunal including the evidence that JNGS, who had joined the Vietnam Veterans’ Heart Health Group, had then sought psychiatric opinion as her fellow veterans had prompted her to do so. Ms Walsh regarded as relevant Dr Baron’s observation that JNGS’s dealings with DVA had aggravated her PTSD to the extent that her hours of work in early to mid-2013 had decreased. This, Ms Walsh submitted, was due to the concern arising from the claim initially lodged in February 2013 and its effect on JNGS’s anxiety.
Ms Walsh rejected the respondent’s submission that JNGS’s loss of earnings were related to the meningo-encephalitis of 1975, the assaults at work resulting in bilateral shoulder injuries and the existence of migraine headaches.
Ms Walsh addressed the effect of the migraine. She submitted that this had been present since the 1960s and had never impacted on JNGS’s ability to work. In terms of the expert evidence she contended that Dr Heywood had said that the migraines were a form of tension headache, intensified by an anxiety disorder and that Professor Chambers had said it was a clinical expression likely to be a consequence of psychological stress. Ms Walsh submitted that Professor Chambers had said that spondylosis was a contributing factor to these headaches. As both the anxiety state, namely PTSD, and cervical spondylosis were accepted war conditions, it followed that having identified the headaches as being due to PTSD or cervical spondylosis they were war-caused.
It was contended that JNGS’s cessation of employment with the Department of Education resulting from meningo-encephalitis was not relevant given that it had occurred 40 years ago. It was argued that the medical records and those of the DVA and JNGS’s evidence showed that she had recovered sufficiently from the 1975 meningo-encephalitis to enable her to commence work with the Department of Human Services in 1992 and continue to do so for the following 23 years.
Ms Walsh submitted that Professor Chambers’ evidence was speculative and hypothetical, he having referred to the results of MRIs and CT scans which he had not himself seen. Ms Walsh referred to the Tribunal’s comment that perhaps Dr Heywood had not seen an MRI but had seen a CT scan of JNGS’s brain. This she described as not a matter for the Tribunal as it had no probative value.
In relation to the assault by a client of the Department of Human Services, it was contended that the shoulder injuries had fully resolved by the time JNGS returned to work in late 2014. The argument that her shoulders had fully resolved was based on the reports of the treating surgeon and the QBE Insurer, despite the fact that following cessation of work JNGS had further injections of platelet rich plasma into her shoulder joints. Dr Baron had given evidence that JNGS’s PTSD had been aggravated by these assaults.
Ms Walsh having addressed all the physical injuries despite which JNGS had returned to work in late 2014 submitted that the reason she ceased work related to her inability to cope with her duties arising from the PTSD.
Ms Walsh identified the special rate issue as the major focus of the appeal. However JNGS had also sought to have GORD and sleep apnoea recognised as being war-caused. Ms Walsh related the GORD to JNGS’s grossly elevated basal metabolic index claimed to be war-caused. Similarly, the sleep apnoea diagnosed in 2007 was linked to the morbid obesity. Ms Walsh did not outline or address the SoP requirements for these two conditions.
RESPONDENT’S SUBMISSIONS
Mr Rudge did not make any submissions on the GORD or sleep apnoea claims as they were not going to be relevant to the special rate claim and there was no possibility of a general rate pension increase. It was acknowledged that JNGS was receiving the extreme disablement allowance. He elected to leave those issues to the Tribunal’s determination.
Mr Rudge first addressed JNGS’s headaches, described variously as tension headaches and migraine. He submitted that these were not accepted disabilities and that the evidence of Associate Professor Chambers was that they were stand-alone diseases unrelated to any of the accepted war-caused conditions. Ms Walsh had in her submissions argued that there was an interdependence between the PTSD, it being an anxiety disorder, and the headaches to the extent that the underlying war‑caused PTSD aggravated both the tension headaches and any migrainous component.
Mr Rudge pointed out that there exists an SoP for migraine (SoP Instrument No 56 of 2009) and a SoP for tension type headaches (SoP Instrument No 1 of 2010). Mr Rudge submitted that this point had been raised numerous times by claimants before the Tribunal seeking to take into account a stand-alone disease as part of an accepted disability and then argue it is this disability arising from the stand-alone disease that prevents work for the purposes of s 24. He cited the decisions in Owen v Repatriation Commission (1995) 59 FCR 93 where Finn J had addressed the question of an non-accepted disability having contributed to or been caused by an accepted disability for the purposes of s 24. At 100, Finn J had said:
Section 24 presupposes that a determination has been made that an injury has been war-caused. Its concern in subs(1)(c) is with an effect of the incapacity resulting from that injury. The section does not permit a new determination to be made for its purposes that an injury is war-caused.
Reference was also made to the decision of French J in Husband v Repatriation Commission (2000) 60 ALD 717 where at 736 His Honour quoted with approval Finn J’s finding and went on to note Finn J’s observation that it was:
... open to a veteran to make a claim under the Act for a determination that a new injury, causally related to or contributed by an already determined war-caused injury, is itself war-caused within the terms of the Act.

Mr Rudge submitted that the interpretation of s 24(1)(c) had been addressed in Forbes v Repatriation Commission (2000) 101 FCR 50, Repatriation Commission v Alexander (2003) 75 ALD 329, Repatriation Commission v Hendy (2002) 76 ALD 47. He further referred the Tribunal in particular to the decision of the Federal Court in Richmond v Repatriation Commission (2014) 140 ALD 380 and subsequent decision on appeal to the Full Court of the Federal Court in Repatriation Commission v Richmond (2014) 226 FCR 21. It was contended that Richmond had resolved the interpretation of s 24(1)(c), with it being subsequently followed by the Federal Court in in Repatriation Commission v Watkins (2015) 228 FCR 573 and Summers v Repatriation Commission (2015) 230 FCR 197.
In Repatriation Commission v Richmond at 36, the Full Court (Middleton, Murphy and Rangiah JJ) agreed with and adopted the primary judge’s view that:
The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.
the court further commented that:
While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
Mr Rudge pointed to the evidence of Associate Professor Chambers and the earlier evidence of Dr John Heywood in 2013, being that the headaches when severe prevented JNGS from carrying out her normal work activities and were considered to contribute to her incapacity. Mr Rudge submitted that these opinions were supported by JNGS’s evidence before the Tribunal that her absence from work for two and a half months in early 2013 had been due to her general health, but mainly the headaches.
In support of this contention Mr Rudge referred to Professor Chambers’ evidence as contained in his report of 30 March 2016 (Exhibit R10) that JNGS had given him the history of having had six migraine headaches in the two months prior to seeing him and that they had usually lasted the entire day. Professor Chambers had been of the opinion that the migraine headaches were a contributing factor to JNGS’s work incapacity.
In relation to the assaults and the resultant injuries, Mr Rudge submitted that they had given rise to further anxiety as recorded by Dr Krigsman as still has anxiety regarding assaults. Counsel, offered support. These entries were in fact made by a Dr Ching, who is a partner in the practice.
In relation to the shoulder injuries and the resultant 10 months off work on worker’s compensation Mr Rudge submitted that Dr Baron, who had diagnosed JNGS’s PTSD, had considered this absence from work might contribute to her general feeling of being unwell and unmotivated to resume work or to continue work at the same level. The actual effect of the right and left shoulder injuries was addressed. Mr Rudge drew attention to the injection of platelet rich plasma into JNGS’s shoulder joint after she had ceased work that contradicted her evidence that the shoulder conditions had fully resolved before cessation of work.
On this basis, Mr Rudge contended that JNGS suffered conditions which had not been accepted as war-caused which had contributed to her incapacity to undertake her last paid work, being her work with the Department of Human Services (Victoria). He therefore contended that the alone test set out s 24(1)(c) of the Act was not satisfied and the Tribunal should affirm the decision under review.
In reply, Ms Walsh raised several points but in particular submitted that the headaches were not an independent preventative factor the only evidence before the Tribunal is that they are related to either the back – if I can call that in broad terms – or anxiety. (Transcript pg 181, line 23-25) It was further contended that as [JNGS’s] had suffered from anxiety from 1969 and that this coincided with the duration of headaches the only conclusion that could be drawn was that the headaches were caused by the PTSD condition. The Tribunal questioned this statement that headache was a symptom of PTSD in order to be certain that this was the actual submission and Ms Walsh answered, Yes. It was also submitted that the headaches were not disabling in that she had worked with or despite them for 23 years until she ceased work for other reasons.
In relation to Dr Heywood’s opinion that these headaches while having improved slightly in 2013 were persistent and at times disabling, Ms Walsh contended that this comment meant that the disablement was intermittent, may cause her to go home when she suffered a migraine but had clearly not stopped her working.
Ms Walsh rejected the suggestion that JNGS’s anxiety state had been altered or a new form of anxiety had arisen as a result of the assaults, as the entry relating to unresolved anxiety issues regarding the assaults was an entry made by Dr Ching who was not JNGS’s usual general practitioner. In relation to the shoulder condition Ms Walsh contended that JNGS had returned to work on the certification of her treating surgeon and general practitioner and without restrictions, according to the general practitioner although it was agreed there were restrictions imposed by the treating surgeon.
In relation to the treatment of the right shoulder with a platelet rich plasma intra-articular injection the day after JNGS ceased work, it was contended that this appointment had been booked a long time in advance.
TRIBUNAL’S DETERMINATION
The issues before the Tribunal are:
·whether JNGS’s GORD and sleep apnoea are war-caused conditions; and secondly
·whether she qualifies for disability pension at the special rate of payment.
The claim in respect to GORD and sleep apnoea
The Tribunal has not been supplied with any medical reports relating to either the GORD or the sleep apnoea, including the dates of diagnosis, severity of the conditions or the treatment except to the extent that the clinical notes of the Greater Knox Family Practice lists the condition of obstructive sleep apnoea diagnosed in 2007 as being inactive. Dr Jane Fitzpatrick’s notes do not refer to either sleep apnoea or GORD but in her work capacity reports she notes the diagnosis of sleep apnoea in 2007 at the Austin Hospital and the referral of JNGS to a Dr Chen, gastroenterologist, for investigation of GORD.
The Tribunal cannot find any evidence of either practice ordering investigation for these conditions or any form of treatment of these conditions. In submissions Mr Rudge elected not to address the GORD or sleep apnoea and Ms Walsh confined her contentions as to why these conditions should be accepted as being war-caused without providing detail.
Both conditions were considered by the VRB who did have access to some reports not provided to this Tribunal. At the hearing before the Board, JNGS had relied on Factors 6(a) and 6(b) of the SoP No 65 of 2013, Factor 6;
(a)having a hiatus hernia at the time of clinical onset of gastro oesophageal reflux disease; or
(b)being overweight at the time of the clinical onset of gastro oesophageal reflux disease; ...
In relation to the sleep apnoea JNGS had relied on Factor 6(a) of SoP No 41 of 2013:
(a)for obstructive sleep apnoea only,
...
(ii) being obese at the time of the clinical onset of sleep apnoea; ...
For this particular SoP obese is defined at having a body mass index (BMI) of 30 or greater.
In relation to the claim that GORD was war-caused, the Board noted that a barium meal performed on 10 March 1972 and a further study on 17 November 1981 did not show any evidence of a hiatus hernia. While the Board had offered to adjourn the hearing in order to obtain more information, JNGS’s advocate suggested that the date of diagnosis had been as suggested in Dr Fitzpatrick’s report 2014. Based on the evidence provided by ZHAJ, the partner of the veteran, the Board determined that the onset of GORD was in the 1990s.
On considering the evidence before it the Board determined that CGLQ was overweight with a BMI of 25.29 when he enlisted in the Army, this had risen to 28 or 29 when he was discharged and that in the 1990s the evidence provided was that his BMI was 29.89 at a time that his weight was 100 kilograms. Thus the Board concluded the material did not raise a reasonable hypothesis within the meaning of s 120(3) linking GORD to JNGS’s operational service.
In regard to the sleep apnoea, the Factor relied on had been 6(a)(ii), having a BMI of 30 or greater. The Board found that while JNGS had a BMI of 40.10 in November 2014 and at a maximum when her weight was 134 kilograms, her BMI was 41.35, it was now, as from 14 January 2015, 39.81. In 2007 when the diagnosis was made there was no material available to support Factor 6(a)(ii) or any other Factor as defined in the SoP. It was concluded once more that the material therefore did not raise a reasonable hypothesis within the meaning of s 120(3) linking sleep apnoea to the veteran’s operational service.
The Tribunal has considered carefully the issues relating to the assessment of JNGS’s two further claimed conditions. In doing so, it has been conscious of the guidance from Deledio that in first applying s 120(3) of the Act, the Tribunal must first … consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
In this application, there is a paucity of evidence in relation to both alleged conditions, as well as the factors which are said to link them to JNGS’s service. As noted above, the material before the Board required substantial inferences in order for the Applicant’s case to succeed.
In the case of her GORD, the only evidence provided to the Tribunal to support the GORD claim are in the ‘Additional Information Sheet’ filled out by Dr Fitzpatrick as part of JNGS’s claim and as addressed by the Board, in which JNGS described the signs and symptoms as Diagnosed with GORD by Dr Chan. She described the service causation or contribution as Diagnosed with Dyspepsia in Vietnam. Diagnosed with an anxiety disorder (Accepted by DVA). She records the date of onset of 3/1969. On the same form, Dr Fitzpatrick records Gastro-oesophageal reflux disease as a diagnosis, with the basis for the diagnosis being:
Pain, heartburn, gastric & [indistinct] region
Diagnosed and managed by Dr Chan, Knox Private Consulting Suites. Identified on barium meals, has a hiatus hernia & proven reflux. Complicated by obesity and anxiety disorder.
Has seen Dr Chan for this for many years since onset condition. I do not manage this condition.
The Tribunal accepts this characterisation of the condition. It concludes, however, that based on this very limited data a reasonable hypothesis is not raised. Although the material, in particular the notes of Dr Fitzpatrick in the claim form, points to a hypothesis connecting JNGS’s GORD with her service, that hypothesis cannot be said to be reasonable when the criteria in the SoP are considered. The Tribunal notes that this exercise also does not concern fact-finding, but instead analysing the material to determine whether the hypothesis is upheld. The problem, in this case, is the paucity of such material. Other than the diagnosis and factors set out in the claim form, there is no clear date of onset, with JNGS providing a rough date of March 1969 and Dr Fitzpatrick not providing any details and referring to Dr Chen.
Both factors in the SoP relied upon by JNGS require a veteran to be in certain circumstances at the time of clinical onset of GORD. While Dr Fitzpatrick provides a brief outline of JNGS’s GORD symptoms, it is clear that these refer to the state of the condition presently, or at times when various tests were taken, all of which fall after JNGS’s alleged date of onset. In the absence of any material relating to JNGS’s claimed date of onset, or any other suggested date of onset and material in support of that date, the Tribunal finds that neither factor could be satisfied in this case. Therefore, in applying ss 120A(3) and 120(3) of the Act, the Tribunal is satisfied beyond reasonable doubt that there is no reasonable hypothesis connecting JNGS’s GORD to her service.
With respect to JNGS’s sleep apnoea, the Tribunal finds that the material does not point to a hypothesis connecting JNGS’s sleep apnoea to her service. Although the material does refer to JNGS’s obesity and that the obesity has been accepted as war caused, there is nothing indicating that the level of obesity that has caused her sleep apnoea is related to her service.
The Applicant has furnished no material whatsoever suggesting that the obesity causing her sleep apnoea is related to her service, and relies on the inference that as her condition of obesity is accepted as war caused, a hypothesis must be raised that her obesity connects her sleep apnoea and her service. In the absence of any actual material, the Tribunal is not satisfied that such a finding is appropriate. It is therefore satisfied, beyond reasonable doubt, that JNGS’s sleep apnoea is not war-caused.
For these reasons, the Tribunal determines that neither JNGS’s GORD or sleep apnoea is war-caused. In any event, as was agreed by the parties at the hearing, these findings will not have an effect on JNGS’s rate of pension.
Does JNGS qualify for the special rate of payment of the disability pension
The VRB had determined in its decision of 30 July 2015 that JNGS did not satisfy s 23(3A) for the intermediate rate of pension or s 24(2A) for the special rate for a veteran over the age of 65. This was on the basis that she did not meet the requirements of s 24(2A)(f) and (g) that she had worked as an employee for a continuous period of at least 10 years that began before she turned 65.
The Board found that there had been breaks in JNGS’s employment despite having been employed from 24 February 1992 and still being listed by the Department of Human Services as an employee at the date of application to the VRB. Thus the requirements in relation to intermediate and special rate were not met, in particular, that of s 24(2A)(g). As all of the criteria had to be met for the veteran to be eligible for special or intermediate rate the application failed.
The VRB did turn its mind to the alone test as defined in s 24(2A)(d) and considered, in particular, JNGS’s age of 70, her casual role of employment which they believed to have been for less than eight hours per week for some decades and that she had not worked since ceasing her casual employment effectively from October 2013. The Board concluded that it was not clear that the accepted disabilities alone were the reason for the veteran not working. However, in light of their findings under s 24(2A)(g) further consideration of the alone test was not required.
The Tribunal has taken note of these decisions which have all been subject to a lack of medical evidence and JNGS’s very poor memory of events. The degree of her memory loss is well illustrated by the VRB Transcript, which demonstrated that her memory for many events was poor. On occasion her partner ZHAJ was unable to assist as she could not recall dates or details of events or when various doctors had been consulted.
The VRB identified the period in which there was a break of continuous service leading them to reject the application for special rate as a failure to satisfy s 24(2A)(g) as being from 1 March 2013 to 30 May 2013. According to the employer, the Department of Human Services, JNGS had declared herself unavailable for any casual sessions of employment. The other period addressed was that from 1 October 2013 to 24 August 2014 at which time JNGS was off work and receiving compensation payments. The employer had advised that the last time JNGS performed a casual shift was on 19 November 2014, she having returned to work on 28 of August 2014. The VRB did not address the reasons for the two and a half month absence in early 2013.
The clinical records of Great Knox Family Practice record that JNGS did not see a doctor at that clinic between 20 December 2012 and 23 July 2013. However, between 16 January 2013 and 22 May 2013, JNGS saw Dr Fitzpatrick on eight occasions and underwent several investigations relating to her right ankle and left shoulder. On 30 January 2013 JNGS complained of right ankle pain and an x-ray was performed but did not reveal other than moderately severe osteoarthritis. On 13 March 2013 JNGS developed more severe pain in her right ankle after walking on a treadmill for one kilometre. This pain persisted up until late May of 2013 and on 22 of May an MRI of the right ankle confirmed moderate osteoarthritis, no evidence of a joint effusion and an old injury of the anterior tibiofibular ligament. These findings are all consistent with the accepted condition of osteoarthritis.
On 10 April 2013 JNGS having complained of left shoulder pain was found to have suffered a left rotator cuff tear involving the supraspinatus tendon. The clinical records indicate that these two events were major in terms of symptoms and were the reason why JNGS did not work for this period of three months, resulting in a break of her continuous service of 10 years as posited by the Act. There is no evidence before the Tribunal that at this period of time her PTSD was more flagrant that at any other time there being no entries relating to PTSD in either the notes of Dr Fitzpatrick or Dr Krigsman.
In this period when JNGS did not work no medical certificates were provided certifying any incapacity for work. Neither the general practitioner record nor any of the letters written by Dr Fitzpatrick during those three months refer to an incapacity for work. However, Dr Fitzpatrick had stated in her report of 30 October 2013 that JNGS had attempted to undertake part time casual work between 1992 and 2000 plus but was never able to sustain more than four hours work per week. She also reported that JNGS had been certified as being permanently unfit for work since 1976 (T14, page 110).
The Tribunal can only infer that JNGS chose not work for this period of three months. Her uncorroborated evidence was that she was suffering from an exacerbation of PTSD diagnosed by Dr Baron in November 2012. However the Greater Knox Family Practice records show that Dr Sasidharan who had been her treating general practitioner between February 2007 and December 2010, had on 7 February 2007 entered JNGS’s diagnosis as PTSD with depression. The doctor had provided a repeat prescription for the anti-depressant Prothiaden. It would appear that a diagnosis of PTSD had been made well before 2007 but on what grounds is unknown.
Documentary evidence supports the Board’s conclusion that JNGS did not have a continuous 10 year period of employment as required by s 24(2A)(g). However, this Tribunal does not find the evidence persuasive enough to reach such a conclusion. The Tribunal is satisfied that JNGS satisfies s 24(2A)(g), in that she was undertaking her last paid work, she had done so for a continuous period of at least 10 years that began before she turned 65.
Satisfaction of requirements of s 24(2A)(d)
The satisfaction of the so called alone test has been the major issue raised by both parties. The Tribunal acknowledges the acceptance by the Department of Veterans Affairs of multiple medical conditions from which JNGS suffers as being war‑caused, and in particular the PTSD which is the claimed reason for cessation of work in November 2014.
JNGS’s prolonged absence from work between 3 October 2013 and her return to work on 3 August 2014, resulted from the work-place assault necessitating ongoing treatment of bilateral shoulder rotator cuff pathology. She was certified fit to return to work by Dr Krigsman as of 3 August 2014. Mr Boys, however, provided an opinion to the workers’ compensation insurer approving the return to work program which he said was to be reviewed by the treating surgeon in November 2014.

The restrictions imposed were such that JNGS could not perform the majority of her pre-injury duties as described in her evidence (paragraph 26 and 27). JNGS’s hours of work following her return to work in August 2014 averaged 4.7 hours per week, ranging between 1.75 and 10.5 hours per week.
JNGS has attributed her reduction in hours, from the average 15.3 hours per week throughout 2013 as advised by her employer and up until the time of assault, as being solely due to PTSD. The medical evidence provided to the Tribunal does not support her contention, given the work history of up to 25 hours per week in 2013 (e.g. June 2013), 26 hours per week in 2012 (e.g. November 2012) and 25 hours per week in 2005.
The medical evidence also reveals ongoing treatment of the left shoulder on 20 November 2014 and the radiological imaging reports show persisting tears in the rotator cuff muscles/tendons, up to at least 8 September 2014 in the right shoulder (R2, pg 183) and 2 June 2014 in the left shoulder (R2, page 179). The shoulder conditions are not accepted war-caused conditions. The well documented tension and migrainous headaches with associated vertigo of vestibular origin have been assessed by two neurologists as being disabling when severe. The Tribunal accepts that these are causally unrelated to cervical spondylosis or an anxiety state although they may be symptomatically accentuated by these two conditions. As such the headaches contribute to preventing JNGS from continuing to undertake remunerative work.
As submitted by Mr Rudge the Full Court of the Federal Court has considered the interpretation of the alone test at length in recent years. As set out above, in Repatriation Commission v Richmond and as subsequently approved in Beezly v Repatriation Commission (2015) 68 AAR 23, Summers and Watkins in 2015, the Court said at 36:
We respectfully agree with the learned primary judge’s view (at [108]) where her Honour said:
The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone“ test will not be satisfied.
While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
The Court also addressed the amelioration of the alone test by s 24(2)(b) which applies to veterans under the age of 65 who had ceased, or not been able to engage in remunerative work, but this is not applicable in JNGS’s claim.
CONCLUSION
In this case, the Tribunal has found that JNGS’s headaches, which are not symptomatic of any war-caused conditions and which have not been claimed or determined to be war-caused, contributes to preventing JNGS from undertaking her last remunerative work. Based on the medical evidence before the Tribunal and the Full Court of the Federal Court’s determination in Richmond the Tribunal therefore decides that JNGS does not satisfy s 24(2A)(d) of the Act. She therefore does not meet the eligibility criteria for the special rate of pension.
For the reasons set out above, the Tribunal is satisfied beyond reasonable doubt that JNGS’s GORD and sleep apnoea are not war-caused conditions. It is further reasonably satisfied that JNGS is not eligible to receive the special rate of pension. The decision under review is therefore affirmed.

I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of:

Miss E A Shanahan, Member

........................[sgd]................................................
Associate
Dated: 1 August 2017

Dates of hearing: 23 - 25 August 2016

Date final submissions received: 12 April 2017

Counsel for the Applicant: Ms Rachel Walsh

Solicitors for the Applicant: Williams Winter Solicitors

Advocate for the Respondent Mr Ken Rudge

Solicitors for the Respondent: Department of Veterans' Affairs Review Section
APPENDIX
Applicant
A1Statement of JNGS dated 24 August 2015
A2Statement of JNGS dated 2 February 2016
A3Curriculum Vitae of Dr David Baron
A4Department of Veterans Affairs Claim for Pension/Application for Increase in Pension Form dated 18 February 2013
A5Letter from Williams Winter Solicitors to the Administrative Appeals Tribunal dated 6 March 2017 with attachments
A6Further Letter from Williams Winter Solicitors to the Administrative Appeals Tribunal dated 12 April 2017

Respondent
R1      T-Documents
R2      Clinical Notes of Dr Fitzpatrick in relation to the Applicant
R3      Letter of Dr John Heywood dated 17 October 2013
R4      Department of Health and Human Services Employment Records
R5      Repatriation Notes relating to Hospitalization in 1976
R5A     Annexure to Repatriation Notes
R6      Bundle of Workers Compensation Claim Forms
R7      Further Workers Compensation Data Originating from QBE Insurance
R8      Report of Dr Robyn Horsley dated 16 December 2015
R9      Report of Dr Robyn Horsley dated 28 July 2016
R10     Report of Associate Professor Brian Chambers dated 30 March 2016
R11Letters between Department of Veterans Affairs and Emergency Services & State Superannuation dated 12 January 2016 and 10 March 2016.
R12Clinical Notes of Greater Knox Family Practice relating to JNGS as at 7 June 2016
R13Taxation Returns for JNGS for 2010-2015 inclusive.
R14Transcript of Veterans' Review Board Hearing of matter VRB V15/006A on 30 July 2015
R15Medical reports and medical certificates produced by Emergency Services & State Superannuation dated 3 May 2016

Dates of hearing:	23 - 25 August 2016
Date final submissions received:	12 April 2017
Counsel for the Applicant:	Ms Rachel Walsh
Solicitors for the Applicant:	Williams Winter Solicitors
Advocate for the Respondent	Mr Ken Rudge
Solicitors for the Respondent:	Department of Veterans' Affairs Review Section