Johnson and Repatriation Commission (Veterans' entitlements)

Johnson and Repatriation Commission (Veterans' entitlements) [2018] AATA 351 (9 February 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4222
Re:Keith Johnson
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President K Bean

Date: 9 February 2018
Date of Written
Reasons: 1 March 2018
Place:Adelaide

The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975, on the basis it has no reasonable prospect of success.
.................[Sgd].......................................
Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE – Veteran’s entitlements – Peripheral neuropathy of the left ankle – Applicant already in recept of special rate of pension and gold card – Whether there is utility in the application for review – Whether factors in the relevant Statement of Principles can be made out – Whether application for review has a reasonable prospect of success – Application for review dismissed.
LEGISLATION
Veterans’ Entitlements Act 1986
Statement of Principles for Peripheral Neuropathy No. 75 of 2014
REASONS FOR DECISION
Deputy President K Bean
1 March 2018

The applicant, Mr Johnson, is currently 73 years of age. He served in the Australian Army from 13 February 1962 to 30 April 1986 and his service incorporated operational service for periods between 1966 and 1968.
Mr Johnson suffers from a variety of conditions which have been accepted as being related to his service, including post-traumatic stress disorder, vertigo, epilepsy and lumbar and cervical spondylosis.
As a result of these conditions, Mr Johnson is in receipt of the special rate of disability pension and has a gold card.
Notwithstanding that he is currently in receipt of the maximum rate of pension and has a gold card, in August 2012, Mr Johnson lodged a further claim for acceptance of a disability described as “left ankle”.[1] In his claim form, Mr Johnson attributed his condition to “sprained ankle several times while having to play volleyball between 1982 and 1985 while serving in HQ 7MD Darwin”.[2] The signs and symptoms of the condition were described as follows:
Swollen lump on inside of ankle, pain radiating from ankle to back or vice versa, only able to walk 50 to 60 metres and then have to sit down or rest on right leg to obtain some relief. MRI suggests old sport injury.
[1] T-Documents, T4/6.
[2] Ibid T4/8.
A delegate of the respondent initially determined that there was no medical condition present to answer the claim for “left ankle” and Mr Johnson’s claim was rejected.[3] Mr Johnson sought review of that decision by the Veterans’ Review Board (VRB) and a hearing was held on 26 August 2015, although Mr Johnson was too unwell to attend on that occasion. The Board accordingly adjourned the hearing for that reason, and also to allow Mr Johnson to provide further evidence. A further hearing was convened on 13 May 2016, at which Mr Johnson was in attendance.
[3] Ibid T8/25.
In its reasons for decision, the VRB noted that Mr Johnson was not able to provide a precise diagnosis of his ankle problem but referred to reports in which doctors had referred to him having peripheral neuropathy. In particular it was noted that a report had been supplied in which Dr James Leyden, Mr Johnson’s treating neurologist, gave a diagnosis of peripheral neuropathy in both lower limbs.
The VRB ultimately concluded that it was reasonably satisfied that the proper diagnosis to meet the claim was peripheral neuropathy. The Board then turned to the Statement of Principles for Peripheral Neuropathy, No. 75 of 2014 (the SOP). However, the Board observed:
The Board carefully examined these factors but could find no material that pointed to any of the factors being present in the veteran’s case that could support peripheral neuropathy being related to the veteran’s service.[4]
[4] Ibid T6.
Accordingly, the VRB decided to set aside the decision under review and substitute a decision that the diagnosis to meet the claim for left ankle was peripheral neuropathy of the left ankle but this was not related to Mr Johnson’s service.[5]
[5] Ibid T2.
On 11 August 2016, Mr Johnson applied to this Tribunal for review of the decision of the VRB.
The matter then proceeded to a number of preliminary conferences. However, on 23 November 2017 the respondent applied to have the application dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the basis that the application had insufficient prospects of success and in any event could not deliver any meaningful outcome for Mr Johnson and therefore lacked utility. In support of the latter contention, the respondent directed the Tribunal’s attention to the fact that Mr Johnson was already in receipt of special rate of pension and had a gold card. The respondent accordingly queried what benefit could flow to Mr Johnson as a result of this matter.
The issue currently before me, therefore, is whether the matter should be dismissed on either of the bases put forward by the respondent.
I should add that I made a decision with respect to the respondent’s application on 9 February 2018, and gave oral reasons. On 13 February 2018 Mr Johnson requested written reasons and these reasons have been prepared in response to that request.
SHOULD MR JOHNSON’S APPLICATION BE DISMISSED PURSUANT TO SECTION 42B OF THE AAT ACT?
Subsection (1) of s 42B provides as follows:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Two short hearings by telephone were ultimately held to address the respondent’s application. During the course of these, Mr Johnson addressed both the issues of the merits of his substantive application and his motivation for pursuing the matter.
As to the latter, Mr Johnson initially made reference to the Department of Veterans’ Affairs Vehicle Assistance Scheme. However, following provision of further information in relation to this by the respondent, it became apparent that regardless of the outcome of this application, Mr Johnson did not appear to meet the eligibility requirements for assistance under that scheme.
At the second hearing, Mr Johnson made reference to his recreation transport allowance and explained that if his claim for peripheral neuropathy was accepted, he may be entitled to a small increase in this allowance. He acknowledged that it was the peripheral neuropathy condition rather than any other condition which was affecting his mobility and which would potentially, if accepted, lead to him being paid a higher rate of recreation transport allowance. Therefore, in order to succeed in his objective, he would need to establish that the peripheral neuropathy condition was service related.
As discussed at the hearing however, the fundamental difficulty for Mr Johnson’s claim is the terms of the relevant Statement of Principles. There appears to be little doubt that Mr Johnson does suffer from peripheral neuropathy and, indeed, subsequent to the VRB hearing, his specialist Dr Leyden provided a short certificate in which he related this to Mr Johnson’s time in the Army, stating:
Mr Keith Johnson has a peripheral neuropathy that is likely related to his time in the army. Prolonged standing on cement floors and sporting activities while working as a cook has likely contributed to arthritis and nerve damage in the feet.[6]
[6] Medical certificate of Dr Leyden dated 10 August 2016.
As explained by the VRB, however, and as Mr Johnson understands, the Veterans’ Entitlements Act 1986 has the effect that a condition can only be accepted as service related if the veteran can point to the existence of one of the relevant factors set out in the SOP, and that factor is service related.
Like the VRB, I have also carefully reviewed the list of factors set out in the SOP with a view to determining whether any of those factors could possibly be present in Mr Johnson’s case. However, I have not been able to identify anything which suggests that any of the relevant factors are present in Mr Johnson’s case.
I note that Mr Johnson has referred to being exposed to Agent Orange during his service. It is unclear to me at the moment whether Agent Orange is one of the chemicals referred to in the SOP. However, in any event, I note that each of the factors in the SOP which refer to exposure to a chemical agent or volatile substance require that the clinical onset of peripheral neuropathy must have occurred, at the latest, within six months of the relevant exposure. In Mr Johnson’s case, it appears he first sought treatment for the condition in 2012, many years after his service and the relevant exposure.
As I have explained, the potential practical benefit to Mr Johnson in pursuing this claim is a higher rate of recreation transport allowance in the event that the claim was accepted. I accept that this is sufficient to give the application utility, although as I have noted, it appears that the application could only potentially yield that outcome for Mr Johnson if the condition which was accepted was peripheral neuropathy.
As to the prospects of that claim however, as I have alluded to, Mr Johnson’s application has now been on foot for some time and he has been given every opportunity to submit further evidence in support of the claim and has done so. Notwithstanding the receipt of this additional evidence however, it remains the case that there is no material available which suggests that any of the relevant factors may apply in Mr Johnson’s case.
As I observed at the hearing, it is not an entirely comfortable situation for the Tribunal when a medical specialist gives an opinion which would support a causal connection between a veteran’s condition and their service, and yet that causal connection is not upheld by the relevant Statement of Principles. Nonetheless, the Tribunal is, of course, bound by the terms of the applicable law, which includes the content of the Statement of Principles.
As things stand, the outcome of an application of the law in Mr Johnson’s case is that none of the factors apply and therefore his condition is deemed not to be service related. Although I have considered whether or not that position may change if this matter was permitted to proceed to a final hearing, I am not persuaded on the material that that will occur. I am confident that if any of the relevant factors were potentially applicable in Mr Johnson’s case, that would have become apparent before now.
That being the case, I have ultimately concluded that it is my duty to uphold the respondent’s application and to determine that the matter be dismissed as having no reasonable prospect of success, such that it is not appropriate to allow it to proceed to a final hearing.
As I alluded to at the dismissal hearing, there is always the possibility that at some future time the Repatriation Medical Authority may amend the applicable Statement of Principles so as to include one or more factors which are applicable in Mr Johnson’s case. In that event, it will of course be open to him to lodge a further application.
For the reasons I have given, however, I have concluded that I must dismiss Mr Johnson’s current application to the Tribunal.
DECISION
The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975, on the basis it has no reasonable prospect of success.
I certify that the preceding 28
(twenty-eight) paragraphs are
a true copy of the reasons
for the decision herein
of Deputy President K Bean
………[Sgd]………………………
Associate
Dated: 1 March 2018
Dates of hearing:  29 November 2017 and 2 February 2018
Advocate for the Applicant:  Self represented
Advocate for the Respondent:  Ms Nicky McGowan
Solicitors for the Respondent:  Australian Government Solicitor

[2018] AATA 351

9 February 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction