Kattenberg and Repatriation Commission - [2001] AATA 970

DECISION AND REASONS FOR DECISION [2001] AATA 970

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1269

VETERANS' APPEALS DIVISION       )
           Re      Robert Frank Kattenberg
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date29 November 2001
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension claim for lumbar spondylosis, cervical spondylosis, intervertebral disc prolapse, tension-type headache, depressive disorder- requirements of relevant statements of principles not met
Veterans' Entitlements Act 1986 - ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 19(5), (9) definitions of "application day", "assessment period", 20(1), 21A(1), (2), 23(1), (2), (3), 24(1), (2), 24A, 28, 29(1), (3), (4), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196A(1), 196B(1), (2), (14), 196D.
Statements of Principles - SoP 271/1999 concerning Lumbar Spondylosis, SoP 165/1996 concerning Lumbar Spondylosis, SoP 31/1999 concerning Cervical Spondylosis, SoP 161/1996 concerning Cervical Spondylosis, SoP 130/1996 concerning Intervertebral Disc Prolapse, SoP 92/1997 amendment of SoP concerning Intervertebral Disc Prolapse, SoP 76/1999 concerning Tension-type Headache, SoP 259/1995 concerning Tension Headache, SoP 58/1998 concerning Depressive Disorder, SoP 65/1996 concerning Depressive Disorder, SoP 181/1996 amendment of SoP concerning Depressive Disorder

Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Deledio (1998) 49 ALD 193, 206
Harris v Repatriation Commission [2000] FCA 873, 1687
Arnott v Repatriation Commission [2001] FCA 262
Re Gibson and Repatriation Commission (1999) 55 ALD 194
Brew v Repatriation Commission (1999) 94 FCR 80

REASONS FOR DECISION

29 November 2001 M J Sassella, Senior Member
History of Application

On 5 March 1998 Mr Robert Frank Kattenberg ("the applicant") lodged with the Department of Veterans' Affairs ("the DVA") a claim (T8) for Disability Pension on the basis of disabilities in the lower spine, upper spine, hips, stress, tension headaches, ringing in the ears and hypertension. He also described the effect on his employment. The headaches and continual pain had stopped him from working adequately so he had accepted an offer of redundancy.
On 18 August 1998 the Repatriation Commission ("the respondent") decided (T13) to grant the applicant a Disability Pension in respect of war-caused conditions, bilateral sensorineural hearing loss ("BSHL") with tinnitus, peptic ulcer disease and gastro-oesophageal reflux disease ("GORD"). The disabilities of tension headache, hypertension, lumbar, cervical and bilateral hip pain, and depressive disorder were rejected as non-war-caused conditions.
On 23 November 1998 the applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the respondent's decision (T14). On 22 January 1999 an officer in DVA wrote to the applicant (T15) to say that she would not be reviewing the decision under s 31 of the Veterans' Entitlements Act 1986 ("the Act") and it would be handled by the VRB.
On 15 June 1999 the VRB decided (T19) to affirm the respondent's decision. A letter to that effect was sent to the applicant on 2 August 1998 (T20).
On 20 August 1998 the applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the VRB's decision (T1).
Decision under review
The VRB in its reasons for decision (T19) made the following points. The upper back condition was rejected because a diagnosis could not be established on the balance of probabilities. The lower back condition was rejected because the applicant's hypothesis as to its cause being a war cause did not meet the requirements of the relevant statement of principles ("SoP"). There had not been the requisite trauma to the lumbar spine. The VRB found that the veteran's hypothesis regarding tension headaches did not satisfy the SoP. The veteran was taken to have the condition of depression but this was not war-caused because the relevant type of psychosocial stressor described in the SoP was not present in the account given by Mr Kattenberg. There was also a difficulty as regards the date of onset of the condition. The VRB agreed with the respondent's ratings under the Guide to the Assessment of Rates of Veterans' Pension (5th ed, ("GARP"). The rate was affirmed at 60% of general rate.
Relevant legislation and Statements of Principles

Relevant legislation consists of the following provisions from the Act: ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 19(5), (9) definitions of "application day", "assessment period", 20(1), 21A(1), (2), 23(1), (2), (3), 24(1), (2), 24A, 28, 29(1), (3), (4), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196A(1), 196B(1), (2), (14), 196D.
The relevant SoP's are:

SoP 271/1999 – concerning Lumbar Spondylosis
SoP 165/1996 – concerning Lumbar Spondylosis
SoP 31/1999 – concerning Cervical Spondylosis
SoP 161/1996 – concerning Cervical Spondylosis
SoP 130/1996 – concerning Intervertebral Disc Prolapse
SoP 92/1997 – amendment of SoP concerning Intervertebral Disc Prolapse
SoP 76/1999 – concerning Tension-type Headache
SoP 259/1995 – concerning Tension Headache
SoP 58/1998 – concerning Depressive Disorder
SoP 65/1996 – concerning Depressive Disorder
SoP 181/1996 – amendment of SoP concerning Depressive Disorder

Veterans' Entitlements Act 1986

6C Operational service - post World War 2 service in operational areas
(1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b)a member of a unit of the Defence Force that was allotted for duty in that area;

is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…

7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;

…

9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

Division 2 - Eligibility for pension
13 Eligibility for pension
(1) Where:
…
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:

…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

in accordance with this Act.
…

14 Claim for pension
(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).

Note 1: some dependants do not have to make a claim (see section 13A).
Note 2:if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).

…
(3) A claim for a pension:
(a)shall be in writing and in accordance with a form approved by the Commission;
(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).

(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…

19 Determination of claims and applications
…
(5)The Commission must determine an application under subsection 15(2) as follows:
(a)first, the Commission must determine whether the claimant is entitled to be granted a pension in respect of the incapacity of the veteran;
(b)then, if the Commission determines that the applicant is so entitled, the Commission must proceed as set out in subsections (5A), (5B), (5C) and (5D).

…
(9) In this section:
…
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a)the day on which the claim or application was received at an office of the Department in Australia; or
(b)if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;

assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;
…
20 Dates of effect that may be specified in respect of grant of claim for pension
(1)Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

…
Division 4 - Rates of pensions payable to veterans
21A Determination of degree of incapacity
(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
…

23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.

(2)Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3) For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph
(1) (b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.

…
24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

…
24A Continuation of rates of certain pensions
(1)Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a)the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

(b) in the case of a veteran to whom section 23 applies:
(i)the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii)in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

(c)in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

(2)Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.

28 Capacity 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).

29 Guide to the assessment of rates of veterans' pensions

(1)The Commission may, from time to time, prepare a written document, to be known as the "Guide to the Assessment of Rates of Veterans' Pensions" setting out:
(a)criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
(b)methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.

…
(3)A document prepared by the Commission in accordance with subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4)Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant.

…
(7)When a document prepared by the Commission in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, the Commission shall furnish copies of the document or instrument to the Minister and the Minister shall cause copies to be laid before each House of the Parliament within 15 sitting days of that House after the Minister received those copies.

…
(9)Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide to the Assessment of Rates of Veterans' Pensions or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.

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.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

…
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;

(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
…
(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.
Note:   See subsection (4) about the application of this subsection.
…
196A Establishment of Authority
(1)       A Repatriation Medical Authority is established.

196B Functions of Authority
(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or

(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or

(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or

(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service.

196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Statement of Principles concerning Lumbar Spondylosis [SoP 27/1999]
Kind of injury, disease or death
…
2. (a) This Statement of Principles is about lumbar spondylosis and
death from lumbar spondylosis.

(b) For the purposes of this Statement of Principles, "lumbar
spondylosis" means degenerative changes affecting the lumbar
vertebrae and/or intervertebral discs, causing local pain and
stiffness and/or symptoms and signs of lumbar cord, cauda equina
or lumbosacral nerve root compression, attracting ICD-9-CM code
721.3, 721.42 or 722.52.

…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting lumbar spondylosis or
death from lumbar spondylosis with the circumstances of a person's
relevant service are:
…
(h) suffering a trauma to the lumbar spine before the clinical onset of
lumbar spondylosis;

…
8. For the purposes of this Statement of Principles:
…
"ICD-9-CM code" means a number assigned to a particular kind of injury
or disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
"trauma to the lumbar spine" means a discrete injury to the lumbar
spine that causes the development, within 24 hours of the injury being
sustained, of acute symptoms and signs of pain and tenderness, and either
altered mobility or range of movement of the lumbar spine. These acute
symptoms and signs must last for a period of at least seven days following
their onset save for where medical intervention for the trauma to the
lumbar spine has occurred, where that medical intervention involves
either:
(a) immobilisation of the lumbar spine by splinting, or similar external
agent; or

(b) injection of corticosteroids or local anaesthetics into the lumbar
spine; or

(c) surgery to the lumbar spine.
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Twenty-fifth day of February 1999
Statement of Principles concerning Lumbar Spondylosis [SoP 165/1996]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about lumbar spondylosis and death
from lumbar spondylosis.

(b) For the purposes of this Statement of Principles, "lumbar
spondylosis" means degenerative changes affecting the lumbar vertebrae
and/or intervertebral discs, causing local pain and stiffness and/or
symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve
root compression, attracting ICD code 721.3, 721.42 or 722.52.

…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in
clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting lumbar spondylosis or
death from lumbar spondylosis with the circumstances of a person's
relevant service are:
…
(g) suffering a trauma to the lumbar spine before the clinical onset of
lumbar spondylosis; or
…
Other definitions
7. For the purposes of this Statement of Principles:
"depositional joint disease" means gout, pseudogout, haemochromatosis,
Wilson's disease or ochronosis;
"ICD code" means a number assigned to a particular kind of injury or
disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
"trauma to the lumbar spine" means an injury to the lumbar spine
caused by the force of an extraneous physical or mechanical agent that
causes the development, within 24 hours of the injury being sustained, of
acute symptoms and signs of pain, tenderness, and altered mobility or
range of movement of that part of the spine, and where such acute
symptoms and signs last for a period of at least one week immediately
after the injury occurs, unless medical intervention has occurred. Where
medical intervention for the injury has occurred (for example splinting,
corticosteroid injection, surgery), and there is evidence relating to the
extent of injury and treatment, such evidence may be considered;
…
Application
8. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this ninth day of December 1996

Statement of Principles concerning Cervical Spondylosis [SoP 31/1999]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about cervical spondylosis and
death from cervical spondylosis.

(b) For the purposes of this Statement of Principles, "cervical
spondylosis" means degenerative changes affecting the cervical
vertebrae and/or intervertebral discs, causing local pain and
stiffness and/or symptoms and signs of cervical cord or cervical
nerve root compression, attracting ICD-9-CM code 721.0, 721.1
or 722.4.

…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting cervical spondylosis
or death from cervical spondylosis with the circumstances of a person's
relevant service are:
…
(h) suffering a trauma to the cervical spine before the clinical onset of
cervical spondylosis; or

…
Other definitions
8. For the purposes of this Statement of Principles:
…
"ICD-9-CM code" means a number assigned to a particular kind of injury
or disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
"trauma to the cervical spine" means a discrete injury to the cervical
spine that causes the development, within 24 hours of the injury being
sustained, of acute symptoms and signs of pain and tenderness, and either
altered mobility or range of movement of the cervical spine. These acute
symptoms and signs must last for a period of at least seven days following
their onset save for where medical intervention for the trauma to the
cervical spine has occurred, where that medical intervention involves
either:
(a) immobilisation of the cervical spine by splinting, or similar external
agent; or

(b) injection of corticosteroids or local anaesthetics into the cervical
spine; or

(c) surgery to the cervical spine.
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Twenty-fifth day of February 1999
Statement of Principles concerning Cervical Spondylosis [SoP 161/1996]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about cervical spondylosis and death
from cervical spondylosis.

(b) For the purposes of this Statement of Principles, "cervical
spondylosis" means degenerative changes affecting the cervical vertebrae
and/or intervertebral discs, causing local pain and stiffness and/or
symptoms and signs of cervical cord or cervical nerve root compression,
attracting ICD code 721.0, 721.1 or 722.4.

Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in
clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting cervical spondylosis
or death from cervical spondylosis with the circumstances of a person's
relevant service are:
…
(g) suffering a trauma to the cervical spine before the clinical onset of
cervical spondylosis; or;
…
Other definitions
7. For the purposes of this Statement of Principles:
…
"cervical spine" means that part of the spine between the base of the
skull and the first thoracic vertebrae, namely C1 to C7;
…
"ICD code" means a number assigned to a particular kind of injury or
disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
"trauma to the cervical spine" means an injury to the cervical spine
caused by the force of an extraneous physical or mechanical agent that
causes the development, within 24 hours of the injury being sustained, of
acute symptoms and signs of pain, tenderness, and altered mobility or
range of movement of that part of the spine, and where such acute
symptoms and signs last for a period of at least one week immediately
after the injury occurs, unless medical intervention has occurred. Where
medical intervention for the injury has occurred (for example splinting,
corticosteroid injection, surgery), and there is evidence relating to the
extent of injury and treatment, such evidence may be considered;
…
Application
8. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this ninth day of December 1996
Statement of Principles concerning Intervertebral Disc Prolapse [SoP 130/1996]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about intervertebral disc prolapse
and death from intervertebral disc prolapse.

(b) For the purposes of this Statement of Principles, "intervertebral
disc prolapse" means protrusion, herniation or rupture of an intervertebral
disc of the cervical, thoracic or lumbar spine, causing local pain and
stiffness, and/or pain and paraesthesia radiating into the upper limbs, in the
case of cervical disc prolapse, or into the lower limbs, in the case of
lumbar disc prolapse, attracting ICD code 722.0, 722.1, 722.2, 722.3 or
722.7.

Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in
clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting intervertebral disc
prolapse or death from intervertebral disc prolapse with the

circumstances of a person's relevant service are:
…
(f) smoking at least 30 pack years of cigarettes before the clinical
onset of intervertebral disc prolapse; or

…
Other definitions
7. For the purposes of this Statement of Principles:
…
"ICD code" means a number assigned to a particular kind of injury or
disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;
…
"pack year" means 7 300 cigarettes;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Dated this twenty sixth day of September 1996
Amendment of Statement of Principles concerning Intervertebral Disc Prolapse [SoP 92/1997]
The Repatriation Medical Authority amends, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), Instrument No.130 of 1996,
(Statement of Principles concerning intervertebral disc prolapse), by:
1. omitting paragraph 2(b), and replacing it with the following:
"(b) For the purposes of this Statement of Principles, "intervertebral
disc prolapse" means protrusion, herniation or rupture of an
intervertebral disc of the cervical, thoracic or lumbar spine, causing local
pain and stiffness, and may include:
(i) in the case of cervical disc prolapse - pain and paraesthesia
radiating into the upper limbs or;
(ii) in the case of lumbar disc prolapse - pain and paraesthesia
radiating into the lower limbs,

attracting ICD code 722.0, 722.1, 722.2, 722.3 or 722.7.";
…
The amendments made by this instrument apply to all matters to which Instrument
No.130 of 1996 and section 120A of the Act apply.
Dated this Fourteenth day of November 1997
Statement of Principles concerning Tension-Type Headache [SoP 76/1999]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about tension-type headache and
death from tension-type headache.

(b) For the purposes of this Statement of Principles, "tension-type
headache", also known as muscle contraction headache or stress headache,
means a condition in which there is headache occurring on an average of at
least five days per month over a period of at least six months, where the
headache is pressing or tightening, is unaccompanied by nausea and is not
aggravated by physical activity, attracting ICD-10-AM code G44.2. This
definition excludes migraine and headache attributable to intracranial structural
anomalies or systemic disease.

…
Factors that must be related to service
4. Subject to clause 6, the factor set out in clause 5 must be related to any
relevant service rendered by the person.
Factors
5. The factor that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting tension-type headache
or death from tension-type headache with the circumstances of a
person's relevant service is:
(a) inability to obtain appropriate clinical management for tensiontype
headache.

Other definitions
8. For the purposes of this Statement of Principles:
…
"ICD-10-AM code" means a number assigned to a particular kind of
injury or disease in The International Statistical Classification of Diseases
and Related Health Problems, 10th revision, Australian Modification
(ICD-10-AM), effective date of 1 July 1998, copyrighted by the National
Centre for Classification in Health, Sydney, NSW, and having ISBN 1
86451 340 3;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Twenty-eighth day of October 1999
Statement of Principles concerning Tension Headache [SoP 259/1995]
1. Being of the view that there is sound medical-scientific evidence that
indicates that tension headache and death from tension headache can be
related to operational service rendered by veterans, peacekeeping service
rendered by members of Peacekeeping Forces and hazardous service
rendered by members of the Forces, the Repatriation Medical Authority
determines, under subsection 196B(2) of the Veterans' Entitlements Act
1986 (the Act), that the factor that must as a minimum exist before it can
be said that a reasonable hypothesis has been raised connecting tension
headache or death from tension headache with the circumstances of
that service, is:
(a) inability to obtain appropriate clinical management for the tension
headache.
2. Subject to clause 3 (below) the factor set out in paragraph 1(a) must be
related to any service rendered by a person.
3. The factor set out in paragraph 1(a) applies only where:
(a) the person's tension headache developed before a period, or part
of a period, of service to which the factor is related; and

(b) the relationship suggested between the tension headache and the
particular service of a person is a relationship set out in paragraph
8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act.

4. For the purposes of this Statement of Principles:
"ICD code" means a number assigned to a particular kind of injury or
disease in the tenth edition of the International Classification of
Diseases 9th Revision, effective date of 1 October 1993, copyrighted by
the US Commission on Professional and Hospital Activities, and having
the Library of Congress number 77-94472;
"tension headache" also known as muscle contraction headache or stress
headache, means an ill-defined episodic or chronic headache condition,
attracting ICD code 307.81.
Dated this Twenty-first day of June 1995
Statement of Principles concerning Depressive Disorder [SoP 58/1998]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about depressive disorder and
death from depressive disorder.

(b) For the purposes of this Statement of Principles, "depressive
disorder" is defined as:
(A) the presence of major depressive disorder, dysthymic
disorder or depression not otherwise specified where:
(i) major depressive disorder is either a single episode
or recurrent episode as defined in DSM-IV; and

(ii) dysthymic disorder, as defined in DSM-IV, is a
chronic mood disturbance, of at least two years
duration, involving depressed mood, or loss of
interest or pleasure, with manifestation of the
symptoms used to diagnose major depression such as
neurovegative signs, social withdrawal, cognitive
impairment and suicidal ideation; and

(iii) depression not otherwise specified, such as minor
depressive disorder and recurrent brief depressive
disorder, as defined in DSM-IV, includes disorders
with depressive features that do not meet the DSMIV
diagnostic criteria for other specific mood
disorders,

attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.

…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting depressive disorder or
death from depressive disorder with the circumstances of a person's
relevant service are:
…
(c) having a clinically significant psychiatric condition within the two
years immediately before the clinical onset of depressive disorder;
or

(d) having a major illness or injury within the two years immediately
before the clinical onset of depressive disorder; or
(e) suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or

…
(g) having a major illness or injury within the two years immediately
before the clinical worsening of depressive disorder; or

(h) having a clinically significant psychiatric condition within the two
years immediately before the clinical worsening of depressive
disorder; or

(j) suffering from chronic pain of at least six months duration at the
time of the clinical worsening of depressive disorder; or

(k) inability to obtain appropriate clinical management for depressive
disorder.

Factors that apply only to material contribution or aggravation
6. Paragraphs 5(f) to 5(k) apply only to material contribution to, or
aggravation of, depressive disorder where the person's depressive disorder
was suffered or contracted before or during (but not arising out of) the
person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or
70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
"clinically significant" means sufficient to warrant ongoing
management, which may involve regular visits (for example, at least
monthly), to a psychiatrist, clinical psychologist or General Practitioner;
"chronic pain" means continuous or almost continuous pain, which may
or may not be ameliorated by analgesic medication and which is of a level
to cause interference with usual work or leisure activities or activities of
daily living;
…
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
"ICD-9-CM code" means a number assigned to a particular kind of injury
or disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;
"major illness or injury" means a serious illness or injury, that is lifethreatening,
or seriously disabling;
"psychiatric condition" means any Axis 1 disorder of mental health that
attracts a diagnosis under DSM-IV;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Third day of September 1998
Statement of Principles concerning Depressive Disorder [So P 65/1996]
…
Kind of injury, disease or death
2. (a) This Statement of Principles is about depressive disorder and death
from depressive disorder.

(b) For the purposes of this Statement of Principles, "depressive
disorder" means that:
(A) the person has had two or more major depressive episodes,
as defined in DSM-IV, separated by an interval of at least
two months; and
(B) the person's major depressive episodes:
(i) are not better accounted for by schizoaffective
disorder, as defined in DSM-IV; and

(ii) are not superimposed on schizophrenia,
schizophreniform disorder, delusional disorder, or
psychotic disorder not otherwise specified, as those
conditions are defined in DSM-IV; and

(C) the person has never had a manic episode, a mixed episode,
or a hypomanic episode unless all of the manic-like, mixedlike,
or hypomanic-like episodes are substance or treatment
induced or are due to the direct physiological effects of a
general medical condition;
attracting ICD code 296.3, 300.4 or 311.
…

Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in
clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting depressive disorder or
death from depressive disorder with the circumstances of a person's
relevant service are:
…
(c) having a psychiatric condition within the two years immediately
before the clinical onset of depressive disorder; or

(d) having a major illness or injury within the two years immediately
before the clinical onset of depressive disorder; or

…
(f) having a major illness or injury within the two years immediately
before the clinical worsening of depressive disorder; or

(g) having a psychiatric condition within the two years immediately
before the clinical worsening of depressive disorder; or

(h) inability to obtain appropriate clinical management for depressive
disorder.

Factors that apply only to material contribution or aggravation
6. Paragraphs 5(e) to 5(h) apply only to material contribution to, or
aggravation of, depressive disorder where the person's depressive disorder
was suffered or contracted before or during (but not arising out of) the
person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or
70(5A)(d) of the Act refers.
Other definitions
7. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
"ICD code" means a number assigned to a particular kind of injury or
disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1995, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
22235 5;
"major illness or injury" means a serious illness or injury that is life threatening,
or involves damage to the body;
"psychiatric condition" means any psychiatric illness that attracts a
diagnosis under DSM-IV;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
8. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Eighteenth day of April 1996
Amendment of Statement of Principles concerning Depressive Disorder
[SoP 181/1996]
The Repatriation Medical Authority amends, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), Instrument No.65 of 1996,
(Statement of Principles concerning depressive disorder), by:
1. omitting the definition of "ICD code" from paragraph 7, and replacing it
with the following:
"'ICD code' means a number assigned to a particular kind of injury or
disease in the Australian Version of The International Classification of
Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date
of 1 July 1996, copyrighted by the National Coding Centre, Faculty of
Health Sciences, University of Sydney, NSW, and having ISBN 0 642
24447 2;";
…
3. The amendments made by this instrument apply to all matters to which
Instrument No.65 of 1996 and section 120A of the Act apply.
Dated this ninth day of December 1996

Hearing and appearances

The Tribunal convened a hearing in this matter in Sydney on 6 December 2000. Ms J Buss of the NSW Legal Aid Commission represented Mr Kattenberg. Ms S Breuer of the DVA represented the respondent.

The Tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents, 28 September 1999.
Exhibit TD2 – Additional service documents from the DVA file, 20 July 2000.
Exhibit TD3 – Additional service document from the DVA file, 5 December 2000.
Exhibit A1 – Report by Dr A Dinnen, psychiatrist, 10 February 2000.
Exhibit A2 – Results of bone scan dated 30 May 1996 and MRI scan of lumbar spine dated 8 December 1998.
Exhibit A3 – Results of MRI scan of cervical spine, 2 May 2000.
Exhibit A4 – Applicant's written statement, July 2000.
Exhibit A5 – Results of x-ray of cervical spine, 3 February 2000.
Exhibit A6 – Applicant's statement of facts and contentions, 19 July 2000.
Exhibit R1 – Report by Dr M Burns, occupational physician, 3 February 2000.
Exhibit R2 – Report by Professor P N Sambrook, rheumatologist, 9 February 2000.
Exhibit R3 – Report by Dr L Lee, psychiatrist, 15 March 2000.
Exhibit R4 – Report by Professor Sambrook, 9 May 2000.
Exhibit R5 – Report by Ms J Brouwers, occupational therapist, 26 July 2000.
Exhibit R6 – Report by Ms Brouwers, 28 August 2000.
Exhibit R7 – Report by Commodore Mulcare, 9 September 2000.
Exhibit R8 – Report by Dr Burns, 25 November 2000.
Exhibit R9 – Report by Dr Lee, 29 November 2000.
Exhibit R10 – Clinical notes from St John of God Hospital.
Exhibit R11 – Clinical notes of Dr Fong.
Exhibit R12 – Employment records from Taubmans Pty Ltd, pp 1-11, 17-36.
Exhibit R13 – Respondent's statement of facts and contentions, 4 December 2000.

The parties sought to make final submissions in writing. The Tribunal agreed to this. The applicant's submissions reached the Tribunal on 7 February 2001. The respondent's submissions arrived on 30 May 2001. The applicant's reply arrived on 4 June 2001. The Tribunal has given these exhibit numbers as follows:

Exhibit AFS1 – Applicant's final submissions, 7 February 2001.
Exhibit AFS2 – Applicant's reply, 4 June 2001.
Exhibit RFS1 – Respondent's final submissions, 30 May 2001.

Background information

The applicant was born on 4 January 1947 (T8). He had significant conflict with his father when growing up (Ex A1). He ran away on one occasion. The applicant had urgent bowel surgery at age 16 and he nearly died. The applicant's father was very determined that he should work. He found the applicant a job as an apprentice steel moulder. The applicant hated that job and purposely broke a finger in an attempt to escape the job. It was as a result of this that he joined the navy in 1964 (aged 17). He served from 29 May 1964 to 28 May 1973 (T3). He had operational service from 17 June to 17 July 1965, from 4 August to 16 August 1965 and from 14 September to 20 October 1965 (T3).
When he left the navy he took a job for four or five years (Ex R1) with Dupont in their warehouse at Girraween in Sydney (Ex A1). This was from 1973 to 1978 (Ex R5). He married in 1969. He met his wife when in 1969 he was stationed at HMAS Narimba in Western Sydney where he looked after victualing stores. When he married he and Mrs Kattenberg lived at Riverstone, Sydney. The applicant worked in the warehouse for Tabletalk Poultry for three years from 1978 to 1980 (Ex R1, Ex R5). He did warehouse work from then until 1997. He was at P & O Cold Storage for three years from 1980 to 1983 (Ex R1, Ex R5). In 1984 and1985 he owned and ran a fruit shop (Ex R1, Ex R5).
His longest job was at Taubmans for 13 years from 1985 to 1997 (Ex R5). He accepted retrenchment following restructures that resulted in two demotions and after prostate surgery. When the applicant saw Dr Dinnen early in 2000 he and his wife had been separated 18 months. Mrs Kattenberg spends some time with the applicant in Mudgee but some time also in Sydney. Their two sons live with the applicant. His older son has two children and has recently remarried. He took the breakdown of his first marriage badly and attempted suicide. He is unemployed. The other son is also unemployed. The applicant has found his sons' problems – both have had marriage break-ups – very stressful (Ex R1).
Mrs Kattenberg has had psychiatric problems as a result of robberies at the credit union where she works.
Findings on material questions of fact with reference to the evidence and other materials in support of those findings
The applicant argues for the outstanding disabilities to be accepted as war-caused on the following bases (Ex A6):

The lumbar and cervical spines were affected by trauma when he fell down a ladder on the HMAS Yarra early in August 1965. He had also a lumbar intervertebral disc prolapse to which his war-caused smoking contributed.
The tension headaches are a sequela to the cervical spondylosis.
The applicant's depressive disorder results from the neck injury.

The Tribunal proceeded to consider whether these are conditions that the applicant has and which should be treated as war-caused. The applicant has decided not to challenge the decision under review as it applied to hypertension (Ex A6). The applicant accepts that his hypertension is not war-caused.
Lumbar and cervical spondylosis
The applicant has advanced a basic hypothesis to explain how this condition is war-caused. This is fleshed out by the evidence he gave the Tribunal and to doctors. The hypothesis is that in early August 1965 he slipped while on the steel ladder which was being used on the ship as stairs (Ex A4). As noted above, the ship was the HMAS Yarra. The applicant said that he slipped while carrying a box of provisions. His foot slipped and he tried to stop himself falling by hanging on with his left hand. The box dropped and the applicant fell. He thinks he landed across the box which was rigid. He says that he lay there for a few minutes, feeling shock and pain in his lower back below the waist. He is unsure whether a friend helped him up or whether he used a ladder to pull himself up. Both may have occurred. He said that he could walk but with discomfort. He wrenched his arm and neck but the pain from that was not nearly as severe as the pain in his back. He said that on a scale of nought to 10 the back pain was seven or eight whilst the neck pain was about two.

The only relevant difference is in the definition of "major illness or injury" in clause 7. In the earlier SoP it applies to a "serious illness or injury that is life-threatening, or involves damage to the body". In the later SoP the definition is "serious illness or injury, that is life threatening, or seriously disabling". The earlier definition may include an illness or injury that is serious and damages the body but does not disable the victim in the sense that he or she is disabled from working or enjoying life. The latter definition requires that the illness or injury be both serious in itself and seriously disabling. The emphasis in the later definition is on functional implications. The Tribunal does not consider that this difference means that the earlier definition assists the applicant in the present case. The primary hurdle in both definitions is that the injury must be serious. In the present case, the applicant's hypothesis posits that he returned to full duty virtually immediately after the fall. He made only minor modifications to his work. In the Tribunal's view this is inconsistent with Mr Kattenberg having sustained a serious injury.
As a conclusion, then, in relation to depressive disorder, the Tribunal finds that the applicant's own hypothesis fails to meet the requirements of the relevant SoP. The Tribunal therefore finds, pursuant to ss 120(3) and 120A(3) of the Act, that the material before it does not raise a reasonable hypothesis connecting the applicant's depressive disorder with the circumstances of the particular service rendered by the applicant.
It is unnecessary to consider the fourth step in the Deledio (supra) principles, as the applicant's hypothesis has not survived step three. This has the result that only the applicant's BSHL and tinnitus, peptic ulcer disease and GORD are war-caused disabilities.
As regards the assessment of the applicant's rate of Disability Pension, he qualifies at present for 60% of the general rate. He would have to qualify for 70% or more to be considered for special or intermediate rate. As he has not succeeded in having any additional disabilities recognised as war-caused, this would require some reassessment of his GARP ratings for BSHL, tinnitus, peptic ulcer disease or GORD. The basis for the current rate of pension is set out by the Respondent in T13 and confirmed by the VRB in T19. The VRB's reasoning on page 84, in the Tribunal's view, provides ample and accurate reasoning to justify continuing the GARP rating at 60 points. The parties did not submit to the Tribunal that these GARP ratings should be amended.
Conclusion
The Tribunal has decided that no additional disabilities should be accepted as war-caused in Mr Kattenberg's case. The Tribunal has also decided that the current rate of Disability Pension paid to the applicant is the correct rate.
Decision
The decision under review is affirmed.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6 December 2000
Date of Decision  29 November 2000
Counsel for the Applicant              Ms J Buss
Solicitor for the Applicant              NSW Legal Aid Commission
Counsel for the Respondent         Ms S Breuer
Solicitor for the Respondent         Department of Veterans' Affairs

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Kattenberg and Repatriation Commission [2001] AATA 970

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