Keir and Repatriation Commission - [2001] AATA 952

DECISION AND REASONS FOR DECISION [2001] AATA 952

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1167
VETERANS'      APPEALS       DIVISION
  Re:         MARJORIE MARY KEIR
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             19 November 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - depressive disorder - osteoarthrosis of the right knee - whether war-caused - whether assessment correct
Veterans' Entitlements Act 1986 ss9, 120(4)
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

19 November 2001 G.D. Friedman, Member

This is an application by Marjorie Mary Keir (the applicant), widow of George Joseph Keir (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 1 August 2000. The VRB affirmed a decision of a delegate of the respondent dated 3 February 1998, to refuse a claim for disability pension for incapacity from osteoarthrosis of the right knee and depressive disorder, and to assess pension at 40 per cent of the General Rate in respect to conditions accepted as war-caused.
At the hearing of this matter on 8 November 2001 the applicant was represented by Mr A. Larkin of Counsel and the respondent was represented by Mr G. Purcell of Counsel.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with one exhibit lodged by the applicant (Exhibit A1) and two lodged by the respondent (Exhibits R1 and R2). The Tribunal heard oral evidence from the applicant.
BACKGROUND
The veteran was born on 16 October 1912. After leaving school he became a plumber and married the applicant in 1937. On 7 April 1942 he enlisted in the Australian Army and served in various parts of Australia until his discharge on 21 February 1946. This period constitutes eligible war service for the purpose of s9 of the Veterans' Entitlements Act 1986. As a result of his war service the veteran's condition of osteoarthritis of the left knee was accepted as war-caused. Claims for depressive disorder, osteoarthrosis of the right knee, malignant neoplasm of the prostate and alzheimer's disease were rejected.
On discharge from the Army the veteran resumed casual work as a plumber until about 1950 when he joined the Melbourne and Metropolitan Tramways Board as a conductor, then a driver, where he remained until his retirement at the age of 65 years. The veteran and the applicant had three daughters. The oldest was born in 1937 and twins were born in 1948. One of the twins died in a motor vehicle accident in 1970.
In his application to the VRB the veteran claimed that he had a number of heavy falls as a result of the accepted disability to his left knee, and that this could have led to osteoarthrosis of the right knee. He also claimed to have suffered from a depressive illness related to his war service. The veteran died on 27 August 1998.
On 27 September 2000 the applicant sought review of the VRB decision by the Tribunal.
EVIDENCE
The applicant told the Tribunal that following their marriage she and the veteran lived with her parents in the Coburg area. She said that the veteran was a quiet and reserved man who came from a stern family upbringing. She told the Tribunal that he had a number of friends but did not have a warm personality and was not an affectionate person. She said that when he enlisted in the Army he was away from home for long periods. Following his discharge they built a house and the their relationship improved slightly, although his quiet disposition continued and he was unwilling or unable to discuss matters with her or anyone else. The applicant said that she noticed a considerable change in his attitude and demeanour. She said that that he became morose, would not talk to her, and became upset easily. She said that he developed a cold attitude towards her. She described the veteran as uncommunicative and unsociable, and that he would spend considerable time on his own, in his workshop, at the rear of the house.
The applicant stated that she did not recommend counselling to the veteran as he would not have reacted kindly to such a suggestion. She stated that the death of one of the twins caused significant pain and anguish for the veteran, even though he refused to discuss his feelings. She described his condition as depression, and stated that in her opinion it was the result of his war service.
With regard to the veteran's right knee, the applicant told the Tribunal that the veteran suffered frequent falls because of the injury to his left knee, leaving the right knee traumatised and restricting his movements. She said that he was stubborn and refused to use a walking-stick. She was unable to remember details of the falls, but believed that they may have occurred when he was in his 60s or 70s. Similarly, she could not recollect details of a replacement of the veteran's right knee, which apparently occurred many years ago.
CONSIDERATION OF THE ISSUES
Mr Larkin, on behalf of the applicant, acknowledged that there was no medical evidence to support the claim that the veteran suffered from a depressive disorder or an injury to his right knee as a result of his eligible war service. He asked the Tribunal to consider the available material together with the oral evidence from the applicant.
Mr Purcell, on behalf of the respondent, submitted that the only medical evidence concerning depressive illness was from Dr M. Khan, the veteran's local medical practitioner, who on 28 September 1997 stated that, in his opinion, the veteran suffered from a depressive illness caused by the death of his daughter. Mr Purcell stated that there was no evidence that would link any depressive illness to the veteran's war service. Mr Purcell also said that there was no evidence of trauma to the right knee that would connect any injury to war service. He did not seek to cast doubt on the credibility of the applicant, but submitted that in the absence of medical or other material, the oral evidence was insufficient for the applicant to succeed in her application on the balance of probabilities.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant. The Tribunal notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, in accordance with to s120(4) of the Act, that there is a disease as claimed.
The evidence relating to the veteran's depressive disorder was the opinion from Dr Khan concerning the effect of the death of the veteran's daughter, and the oral evidence from the applicant that before his war service the veteran was a quiet and uncommunicative person who kept to himself, and after his discharge from the Army he became morose and more distant. There was no psychiatric evidence as to the nature of the disorder, the date of its clinical onset or whether the condition was existing before war service and was aggravated by service.
The Tribunal finds that the applicant gave her evidence in a frank and candid manner, and she attempted to recall events concerning the veteran that occurred up to fifty years ago. Taking all relevant matters into account, the Tribunal finds that, on the balance of probabilities, there is insufficient evidence that a hypothesis has been raised connecting depressive disorder with the circumstances of the particular service rendered by the veteran. Consequently, the first step in the Deledio process has not been met. Therefore, there is no need to consider whether the three remaining steps from Deledio have been met. The Tribunal finds that the condition of depressive disorder is not war-caused.
The evidence relating to osteoarthrosis of the right knee consisted of a written statement and oral evidence by the applicant that the veteran's accepted condition of osteoarthrosis of the left knee caused him to fall heavily on his right knee on a number of occasions, resulting in limited mobility and pain. Because the evidence was inconclusive and non-specific in terms of dates and treatment required at the time, the Tribunal finds that there is no evidence of trauma to the right knee that occurred during war service, or that the condition was existing before war service and was aggravated by war service. Taking all relevant matters into account the Tribunal finds that, on the balance of probabilities, there is insufficient evidence that a hypothesis has been raised connecting osteoarthrosis of the right knee with the circumstances of the particular war service rendered by the veteran. Consequently, the first step in the Deledio process has not been met. There is no necessity for the Tribunal to ascertain whether the other steps have been met. The Tribunal finds that the condition of osteoarthrosis of the right knee is not war-caused.
In view of the Tribunal's findings and after an examination of the assessment carried out by a medical officer of the Department of Veterans' Affairs, the Tribunal finds that there is no basis for any variation of the assessment of the disability pension of 40 per cent of the General Rate with effect from 25 May 1997.
DECISION
The Tribunal affirms the decision under review.
I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  8 November 2001
Date of decision:  19 November 2001
Counsel for applicant:                 Mr A. Larkin
Solicitor for applicant:                  De Marchi & Associates
Counsel for respondent:              Nil — Mr G. Purcell
Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs