Keevers and Repatriation Commission
[2001] AATA 574
•22 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 574
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1247
VETERANS' APPEALS DIVISION )
Re CHRISTOPHER SCOTT KEEVERS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr M E C Thorpe, Member
Date22 June 2001
PlaceSydney
Decision The decisions under review are set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT the Applicant, CHRISTOPHER SCOTT KEEVERS, is entitled to pension for the war-caused diseases of panic disorder with agoraphobia, psychoactive substance abuse or dependence, hypertension, diabetes mellitus and bilateral sensorineural hearing loss with tinnitus as and from the first day of July 1996; AND THAT pension is to be paid for incapacity occasioned by all war-caused injuries and diseases at the Special Rate pursuant to s24 of the Veterans' Entitlements Act 1986 as and from the said first day of July 1996.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Psychiatric condition accepted as war-caused. That decision revoked by another Delegate of the Respondent following the issuing of a Statement of Principles (SoP) by the Repatriation Medical Authority. Did SoP apply to Tribunal upon review? Apart from SoP did a reasonable hypothesis exist? Was incapacity occasioned to the Applicant permanent?
Veterans' Entitlements Act 1986 - ss24, 25, subs31(6), subss120(1), (3) and (6), s120A
Repatriation Commission v Keeley 98 FCR 108
Davis v Repatriation Commission 74 FCR 577
Bushell v Repatriation Commission 175 CLR 408
Repatriation Commission v Deledio 83 FCR 82
Adelaide Stevedoring Company Limited v Forst 64 CLR 538
REASONS FOR DECISION
22 June 2001 Senior Member M D Allen Dr M E C Thorpe, Member
This application for review concerns two decisions by the Respondent, both of which were affirmed by a Veterans' Review Board.
The first decision, dated 2 June 1997, reads (T18):
"I have accepted your claim for Panic Disorder with Agoraphobia, bilateral sensorineural hearing loss with tinnitus and hypertension with hypertensive heart disease. My decision takes effect from 1 July 1996.
Your claim for diabetes mellitus has been refused.
The claim for irritable bowel syndrome is refused. This is because the diagnosis of this condition cannot be confirmed.
I have decided that a disability pension is to be granted at 60% of the General Rate with effect from 1 July 1996. Entitlement to payment at this rate commences from 4 July 1996, the first pension pay date after the date of effect. Arrears will be calculated from this date."
The second decision is a decision by another Delegate of the Respondent made 18 November 1998. That decision revoked the earlier decision regarding panic disorder with agoraphobia and reduced the Applicant's pension to 10% of the General Rate of pension.
In making his decision of 18 November 1998, the Delegate took into account a Statement of Principles (SoP) regarding panic disorder, being Instrument No 31 of 1998. At the time of the original decision on 2 June 1997 there was no SoP in existence regarding panic disorder.
In a letter to the Applicant dated 5 June 1998, the second Delegate had stated (T26):
"Your case has come to my attention as part of the Department's routine internal review processes whereby cases are examined to ensure that correct decisions have been made."
To accept that a review of the Applicant's case, one month after a SoP had been promulgated dealing with his condition, was entirely fortuitous, strains credulity and presumes the reader also has a belief in fairies. This is particularly so as in the letter the Delegate specifically states (T26 p103):
"Since the original decision the Repatriation Medical Authority has issued a Statement of Principles in relation to panic disorder and I must now take this into consideration."
The authority to conduct the review was subs31(6) of the Veterans' Entitlements Act 1986 (the VEA)
"Where the Commission is satisfied that:
(a)having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b)by reason of a refusal or failure of any person to comply with a provision of this Act;
(c)by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); or
(d)by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination."
Paragraph (a) of subs31(6) is an entirely unfettered power. As was pointed out by Sundberg J in Davis v Repatriation Commission 74 FCR 577 at 584:
"The fact that s 31(6) may be open to abuse (repeated reviews on any pretext), does not in my view require it to be read down."
In conducting the review the Delegate restated that:
"Since the original decision the Repatriation Medical Authority has issued a Statement of Principles in relation to panic disorder and I must now take this into consideration." (T29 p118)
At the outset of these proceedings there arose the question of whether the Delegate, in making his decision of 18 November 1998, and this Tribunal were bound to apply the SoP in force at the time the Delegate made his decision or whether the Applicant had a right to have his matter considered on the law applicable at the time of the original decision determining that panic disorder with agoraphobia was a war-caused disease. That is to say, did the SoP regime apply to the Applicant's case or could the Tribunal decide the matter on the basis that it was satisfied a reasonable hypothesis existed connecting the disease with the circumstances of the particular service rendered by the Applicant. Cf subss120(1) and (3) of the VEA.
During the course of the hearing the question as to what was the "primary" decision arose. To our minds the decision of 2 June 1997 is the primary decision, that is the decision being the first in order in a series of decisions. See The Macquarie Dictionary Third Edition where "primary" is defined in the following terms:
"1. first or highest in rank or importance; chief; principal. 2. first in order in any series, sequence, etc. 3. first in time; earliest; primitive. 4. constituting, or belonging to, the first stage in any process."
A semantic dispute as to the word "primary" is not however the answer to the question as to what law applies. To our minds the unfettered right of the Respondent to review a decision pursuant to paragraph 31(6)(a) of the VEA is constrained by the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley 98 FCR 108 in that the law applicable, that is to say what SoP is to be applied or whether there is no applicable SoP, is to be determined by what existed, or did not exist at the time of the decision under review.
In Keeley supra at p123 the majority (Lee and Cooper JJ) said:
"Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: see Esber v Commonwealth 174 CLR 430 at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ."
Cf Kiefel J at p130:
"In my view, the Statements of Principles operate generally as a bar or threshhold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case: see Maxwell v Murphy 96 CLR 261 at 278. It cannot therefore be described as relating only to procedure: see Pedersen v Young (1964) 110 CLR 162 at 169. The introduction of the second SoP affected the right to pension under s 13, as the first had."
The principals of Keeley supra were applied in another Full Court of the Federal Court in Repatriation Commission v Thompson [2001] FCA 341. In that case a SoP had been made after an application for review had been made to the Administrative Appeals Tribunal, but before the Tribunal had completed its review. The majority held that the Tribunal was entitled to apply the reasonable hypothesis test untrammelled by the SoP (ie the law as it applied at the time of the primary decision).
Emmett J at paragraphs 67 and 69 of his unreported judgment said:
"67 The reasoning of the Full Court in Keeley's Case is that there is a vested right to have the original decision reviewed on the basis of the state of affairs concerning Statements of Principles at the time when the original decision was made. …
…69 … there is a vested right to have the original decision reviewed on the basis of the state of affairs at the time of the original decision. It would follow that the Veteran had an accrued right to have the decision of the Board reviewed by the Tribunal on the basis that no Statement of Principles had been determined. Once that assumption is made, the reasoning in Keeley's Case governs the outcome of the present case."
See also Drummond J at paragraphs 7 and 8 to similar effect.
As stated above, the results of Keeley and Thompson supra is that this Tribunal is to consider the Applicant's claim on the basis that no applicable SoP was in existence.
In passing it might be pointed out that if the argument for the Respondent prevailed, no veteran or veteran's widow would be secure in their entitlement to pension. The Repatriation Medical Authority issues numerous SoPs, often amending a SoP only months after it has been issued. For example, in this matter Instrument No 9 of 1999, dated 14 January 1999, revoked and replaced Instrument No 31 of 1998 dated 5 May 1998 and was itself amended by Instrument No 58 of 1999 dated 24 June 1999. On the Respondent's submissions an entitlement to pension could be called into question each and every time medical fashions change.
In its Statement of Facts and Contentions (Exhibit R1), the Respondent conceded that the appropriate diagnosis for the Applicant's psychiatric illness was panic disorder with agoraphobia.
At the conclusion of the evidence in this matter the Respondent's Advocate reiterated that the Respondent conceded the diagnosis of panic disorder with agoraphobia was the correct diagnosis and stated that if the said psychiatric condition was accepted as war-caused then the impairment occasioned by the said disability was 39 on the Guide to the Assessment of Veterans' Pensions Fifth Edition. The Respondent also conceded that the Applicant's diabetes mellitus was caused by a smoking habit that had materially increased whilst on war service. Further, that if the Applicant's psychiatric condition was war-caused, he was entitled to pension at 70% of the General Rate as and from 1 July 1996.
For his part the Applicant, through his counsel, withdrew his claim for irritable bowl syndrome and hypertensive heart disease.
As the Tribunal stated to the parties, such concessions were properly made and reflect that the Tribunal's culture is not adversarial in the sense that one's opponent is put to proof on each and every issue despite material bespeaking as to a proper concession. The legal representatives of the parties are to be commended for the realistic approach adopted in this matter.
The events implicated in the causation of the Applicant's psychiatric illness had their genesis whilst on operational service aboard HMAS Sydney. As operational service is involved, the standard of proof in this matter is that provided for by subss120(1) and (3) of the VEA. Those subsections state inter alia that the Tribunal shall determine that the disease suffered by the Applicant was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be satisfied beyond reasonable doubt if, after a consideration of all the material before it, there is no reasonable hypothesis connecting the said disease with the circumstances of the particular service rendered by the veteran. Subs120(6) provides that there is no onus of proof on either party to this review.
In this matter, as at the time of the original decision regarding panic disorder with agoraphobia, no SoP was in existence relating to that disease. Subs120A of the VEA has no application in this matter as respects that specific condition. SoPs were in force with regard to the conditions of diabetes mellitus, psychoactive substance abuse or dependence, and hypertension.
As mandated by subs120A(3), any hypothesis that seeks to connect the diseases of hypertension, diabetes mellitus and psychoactive substance abuse with the service will not be reasonable unless the said hypothesis confirms to the relevant SoP.
In the case of panic disorder with agoraphobia a hypothesis, in order to be a reasonable hypothesis, must conform with the test set out by the majority of the High Court in Bushell v Repatriation Commission 175 CLR 408 at 414, namely:
"The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. …"
More importantly, the majority went on to add, at p414-415:
"… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s. 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. …"
More particularly, the steps to be undertaken by the Tribunal, particularly in the situation where an SoP is in existence, were set out by the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97. The particular steps, as set out in that decision, are now well known having been referred to in numerous decisions of this Tribunal and the Federal Court, and we see no necessity to recapitulate them here.
The Applicant gave evidence in these proceedings. It became abundantly clear to the Tribunal during the course of his evidence that the Applicant is severely afflicted by his psychiatric illness and the purport of any evidence given by him, particularly under the stress of cross-examination, must be tempered by an appreciation that he was in obvious distress when before the Tribunal.
That having been said, the initiating cause of the Applicant's illnesses were quite comprehensible. The Applicant had lived at home with his parents and having left school at Intermediate level, he joined the New South Wales Government Railways as a Junior Station Assistant. At age 17 he joined the Royal Australian Navy and was posted to HMAS Cerberus in Victoria for recruit training. After graduation from HMAS Cerberus, he was posted to HMAS Sydney for further training shortly before that vessel was tasked to proceed to South Vietnam in 1965 as a logistics supply vessel.
A point that needs to be made at this stage is that on the voyage to South Vietnam the Applicant was aged 18 years and 3 months and was a recent graduate from recruit training. The voyage to South Vietnam was his first posting in the Navy. He and other recent graduates from recruit training posted to HMAS Sydney were very junior and very inexperienced.
As an example of how ill trained the Applicant was is his evidence that although as a Dental Assistant his action station aboard HMAS Sydney was assisting the Dental Officer in the treatment of casualties in the ship's wardroom, he never found out, nor was he shown, where the wardroom was.
During the voyage to South Vietnam on one night the ship started to go faster than normal, faster than the Applicant had ever experienced before. He looked out over the quarterdeck and could not see the two escorting vessels. He asked a Chief Petty Officer why and was told that the sonar had picked up something that could not be identified and that the escorts were probably in a searching pattern.
At this the Applicant became very agitated. He imagined that a Russian submarine was going to sink the ship and he started to shake - he felt he had to get out of where he was. He took himself to the heads and shut himself in a cubicle. He could feel his heart and chest beating. After 10 minutes the feeling went away.
That night the Applicant could not sleep. He stayed awake in his hammock, saying his rosary. He was praying that the ship would not get torpedoed. Although the Applicant gave evidence in chief that it was at this time his Chief Petty Officer let him paint out the vegetable locker at night and so sleep in the daytime, it appears that occurrence may have been during the voyage from rather than to Vietnam but, to our mind, nothing turns on that.
Exhibit R11 is a report by a researcher regarding the voyage of HMAS Sydney to Vung Tau and return in September/October 1965. In that report it is noted that several "false alarm" sonar contacts on passage from Manus Island to Subic Bay kept the destroyer escort screen "on its toes". This is not quite a Russian submarine with hostile intent but a question not explored was sailors' rumours and their effect upon impressionable 18 year olds. The services have a long history of feeding alarming rumours to new recruits or re-enforcements.
Two days after the submarine incident HMAS Sydney arrived in Vung Tau Harbour. There the Applicant experienced the sudden explosions which were explosive charges dropped over the side of the vessel at irregular intervals in order to discourage hostile swimmers from attacking the ship by laying limpet mines to the hull.
During the whole of the time HMAS Sydney was in Vung Tau Harbour the Applicant did not emerge onto its flight deck as his place of duty did not require him to be there. He did see parts of the harbour and mainland through open hatches.
Whilst in Vung Tau Harbour the Applicant saw a Unites States cruiser firing its guns and saw explosions where the rounds impacted. He also heard other firing and he became frightened as he did not know who was shooting at who, nor was he told. He again lapsed into a frightened state and retreated to the heads staying there until he had composed himself.
After HMAS Sydney left Vung Tau Harbour the Applicant felt a feeling of relief that they were heading away from a war zone but still felt some anxiety. In addition he felt that he had "escaped death". During the whole of the time HMAS Sydney was in Vung Tau Harbour he had been very conscious that the ship had a cargo of aviation fuel, petrol, oil and lubricants plus ammunition for resupply to 1 Australian Task Force.
During the voyage back to Australia the Applicant experienced other sudden attacks triggered by various things, for example exhaust fumes.
The Applicant remained as part of the crew of HMAS Sydney until December 1965 when he was posted for further training to HMAS Cerberus. From Cerberus he was posted to HMAS Nirimba, the Apprentice Training School at Quakers Hill Sydney as a Dental Assistant. After some two and a half years service he was discharged from the Navy at his request. A psychologist's report at that time referred to both the Applicant and his then wife as being "immature".
After leaving the Navy the Applicant had a series of jobs, eventually returning to the New South Wales Government Railways in 1974. He left this employment in 1989. At that time he was having increasing difficulty in coping with his employment. He stated that he was having panic attacks and could no longer go to work. Some of these panic attacks occurred on the way to work. Although his position at the New South Wales Government Railways was marked for redundancy, he was unable to continue with his employment and resigned. Had he been able to continue until his position was made redundant (which it was after he had left) his benefits would have been greater than on a voluntary resignation.
Following the voyage to and from South Vietnam, the Applicant appears to have next experienced a panic attack not long after his marriage in 1966. He described feeling faint, hyperventilating and being in a cold sweat. He drove himself to Parramatta Hospital but by the time he had arrived at that hospital the symptoms had abated so he did not enter the Casualty Department. We find it significant that at the time of this attack, the Applicant had been told he was coming up to sea time again.
The first recorded panic attack affecting the Applicant is in June 1971 when he was admitted to what was then Ryde Soldiers Memorial Hospital. Notes on admission refer to incidences of chest pain prior to that admission.
At the request of the Department of Veterans' Affairs the Applicant consulted Dr Delaforce, Psychiatrist, on 3 February 1997. Dr Delaforce's report to the Department of Veterans' Affairs, following that consultation, is at Document T12 of the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975. In that report Dr Delaforce refers to the Applicant as being markedly distressed throughout the interview. Dr Delaforce diagnosed the Applicant as suffering from panic disorder with agoraphobia and opined that a reasonable hypothesis connecting the said panic disorder with agoraphobia and alcohol dependence with service stress could be presented.
Exhibits A5 and A12 are reports by Dr Delaforce to the Applicant's solicitors. In Exhibit A5 Dr Delaforce comments:
"I note the following from the Veterans' Review Board Decisions and Reasons of 19 July 1999 (page 6, paragraph 3).
'Because the period of eligible service is so short the veteran is not entitled to consideration of aggravation in relation to claimed disabilities.'
That may be so, but it does not mean, or should not mean, that the period was too short from a psychiatric point of view for the stressors to result in a mental disorder by way of aggravation of Mr Keevers' preexisting mental health."
With this comment we must agree. Dr Delaforce then goes on to opine:
"I conclude that there is a reasonable hypothesis connecting the stress he experienced during his eligible and operational service in September and October 1965 to the onset of his Panic Disorder With Agoraphobia."
Dr Delaforce also gave evidence to the Tribunal. He stated that in his opinion the onset of the Applicant's panic disorder was not in 1971. Referring to the incidents aboard HMAS Sydney, he said that the Applicant's symptoms were very marked at the time indicating extreme fear. Whereas it may be ridiculous now to think that a Russian submarine was present, to the Applicant it was very real. He referred to the Applicant as being very junior and without much training at the time and reiterated his opinion that the Applicant's panic disorder with agoraphobia had its genesis in the attacks suffered by the Applicant aboard HMAS Sydney.
Support for Dr Delaforce's opinion is found in the report of Dr Wade, Psychiatrist, of 12 July 2000 (Exhibit A4). In that report Dr Wade states inter alia:
"The problem though for Mr. Keevers in this situation is that although he may have been correct to a certain extent to the danger in his assessment of the danger there wasn't the experience of more overt activity or incident of the ship he was on actually coming under fire or being hit by enemy fire, yet within his own system he still saw things as being severely stressful as far as believing and reacting to the situation in an 'as if' situation as if the ship had been torpedoed or as if the ship had come under heavy fire and was in some way ignited. So to a certain extent this is about Mr. Keevers' own personal reactions which he may have shared with a small percentage of the crew to the extent that he suffered, the severe stress is real for him but within possibly the general naval population it probably showed that Mr. Keevers was more sensitive to experiencing a severe stressor in terms of perceiving situations as being more dangerous than perhaps the average naval rating may have. Certainly though this perception seems to be the basis of him suffering this Panic Disorder and other related disorders such as agoraphobic behaviour, alcoholic dependency behaviour which especially through lifestyle changes also added to hypertension and hypertensive heart disease as well as Diabetes mellitus and Irritable Bowel Syndrome symptoms.
In my ongoing assessment of Christopher Keevers I could not see him to be fit to perform any remunerative work due to predominantly to his anxiety symptoms and agoraphobic behaviour and overall a lot of phobic avoidance in his life. …"
Dr Delaforce also considered that the Applicant was currently unable to work as he was very severely impaired mentally.
In this regard the Tribunal notes that although the Applicant was admitted to St John of God Hospital earlier this year for treatment for alcoholism, that treatment was unsuccessful. That he was not suitable for treatment was, in the opinion of Dr Delaforce, consistent with his opinion as to the prognosis of the Applicant's illness.
As pointed out in Bushell's case supra, a reasonable hypothesis connecting a veteran's illness with service will exist if the raised facts support the hypothesis and those facts can be regarded as true. If the hypothesis is put forward by a medical practitioner who is eminent in the relevant field of knowledge, conflict with other medical opinions is not sufficient to reject the hypothesis as unreasonable.
In this matter the Applicant has raised facts, which facts have not been negatived beyond reasonable doubt and support the hypothesis contended for by Dr Delaforce. This hypothesis is also supported by another Consultant Psychiatrist, Dr Wade. No challenge was made to the qualifications or expertise of these two medical specialists and so far as Dr Delaforce is concerned he was originally asked by the Respondent to supply reports, consequently it must be assumed that the Respondent has no quarrel with his expertise.
The hypothesis contended for by Drs Delaforce and Wade also has the benefit of logic. The Applicant was accepted into the Royal Australian Navy at age 17 and no doubt was the subject of psychological assessment at that time. He was not rejected for entry on psychological grounds. At age 18 years and 3 months, and not long out of recruit training, he was a crew member on a vessel tasked to sail into a war zone. The vessel, with its cargo of reinforcements and supplies, would have made an attractive target and although tales of Russian submarines have the air of unreality, the Applicant was only 18 and it is his perception of events that must be considered. We accept his evidence that he suffered a panic attack whilst on the way to South Vietnam and another attack whilst his ship was at anchor in Vung Tau Harbour. Vung Tau Harbour was an anchorage where the sights and sounds of war were manifested. To opine, as do Drs Delaforce and Wade, that these events are connected with his later mental illness does not require any great flight of imagination. As was said by Rich ACJ in Adelaide Stevedoring Company Limited v Forst 64 CLR 538 at 563, 564, namely that there is a presumption that flows from the observed sequence of events and a court (or tribunal) can begin its investigation from the stand point of presumptive inference which the sequence of events would naturally inspire in the mind of any common sense person uninstructed in pathology (in this matter psychiatry can be substituted for pathology).
The decisions under review will therefore be set aside and the Tribunal will substitute its decision that the Applicant's panic disorder with agoraphobia is a war-caused disease.
Exhibit R1 is the Respondent's Statement of Facts & Contentions. In that document the Respondent conceded, after referring to the reports of Associated Professor Mattick (Exhibit R1 p5):
"If the Tribunal accepts that the Applicant's panic disorder is caused by his operational service, the Respondent accepts that the Applicant satisfies factor 5(b) of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument 5 of 1994 and 5(a) of the Statement of Principles concerning hypertension, Instrument 64 of 1998."
At the hearing the Respondent conceded that the Applicant's smoking habit materially increased whilst on operational service. Factor 5(c) of Instrument No 47 of 1996 states that a factor raising a reasonable hypothesis connecting type 2 diabetes mellitus with operational service is smoking at least 10 cigarettes per day for at least 20 years, and continuing to do so within the 10 years immediately before the clinical onset of diabetes mellitus.
The Applicant smoked at the required level after his smoking habit materially increased whilst on operational service in 1965. He ceased smoking in 1986 and had been diagnosed as having diabetes mellitus type 2 in 1979. He therefore fulfils the criteria in factor 5(c).
The Respondent also conceded that if the Applicant's panic disorder with agoraphobia was accepted as caused by operational service then the Applicant had been entitled to pension for incapacity occasioned by all war-caused injuries and diseases at 70% of the General Rate as and from 1 July 1996.
Pursuant to subs24(1) of the VEA, as the Applicant was entitled to pension at 70% of the General Rate, consideration must be given as to whether he is entitled to pension at the Special Rate as provided by s24. The Respondent, in its Statement of Facts and Contentions, conceded that if the Tribunal assessed pension at 70% of the General Rate of pension then the Applicant fulfilled the criteria for the grant of pension at the Temporary Special Rate as provided by s25 of the VEA.
The criteria for the grant of pension at the Temporary Special Rate are:
"(a)a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;".
In other words, the only difference in criteria between sections 24 and 25 is that for the grant of pension at the Temporary Special Rate, the incapacity is, as stated, temporary only. Given the evidence of Dr Delaforce in this matter, and in particular the failure of the Applicant to complete his treatment at the St John of God Hospital, we are reasonably satisfied that the Applicant's state will not improve to the level that he can re-enter the workforce. On the material before us we are also satisfied that this state existed ever since the Applicant was forced to leave his employment with the New South Wales Government Railways in 1989. In 1999 Ms Curdie-Evans, a Consultant Occupational Therapist, opined that (T31 p129):
"… he would be unable to obtain suitable employment for any hours as a result of his psychiatric disorder alone."
Having regard to all the material before us, we are reasonably satisfied that the Applicant has fulfilled the criteria for the grant of pension at the Special Rate as and from 1 July 1996.
The decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision, namely:
THAT the Applicant, Christopher Scott Keevers, is entitled to pension for the war-caused diseases of panic disorder with agoraphobia, psychoactive substance abuse or dependence, hypertension, diabetes mellitus and bilateral sensorineural hearing loss with tinnitus as and from the first day of July 1996;
AND THAT pension is to be paid for incapacity occasioned by all war-caused injuries and diseases at the Special Rate pursuant to s24 of the Veterans' Entitlements Act 1986 as and from the said first day of July 1996.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr M E C Thorpe, MemberSigned: Kwai-Ling Wong .....................................................................................
AssociateDate/ of Hearing 28 and 29 May 2001
Date of Decision 22 June 2001
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Ms E Sadlier, Legal Aid Commission
Advocate for the Respondent Ms S Breuer, Department of Veterans' Affairs
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