King and Repatriation Commission - [2000] AATA 1151

DECISION AND REASONS FOR DECISION [2000] AATA 1151

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/609

VETERANS' APPEALS DIVISION )
          Re      ARTHUR WILLIAM KING
  Applicant
          And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date22 December 2000
PlaceSydney

Decision        The Administrative Appeals Tribunal ("the Tribunal") varies the decision of the Veteran's Review Board of 22 March 1999 which affirmed the decision of the Repatriation Commission dated 1 July 1996 with the exception that Mr King's osteoarthrosis of the left thumb which was held to be war-caused. The Tribunal finds that Mr Arthur William King's osteoarthrosis of his left hand, left wrist, and right middle finger was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The decision to award pension at 100% of the General Rate is affirmed.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
VETERANS - whether osteoarthrosis of the hands, wrists and fingers were war-caused - applicable SoPs - eligibility for pension at the special rate –decision set aside as to entitlement and affirmed as to assessment
Legislation
Veterans' Entitlements Act 1986 ss 9, 119, 120(1), 120(3) and 120A.

Statements of Principles
Repatriation Medical Authority Statement of Principles Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995.

Case Law
Birtlesv Repatriation Commission (1991) 33 FCR 290
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Deledio v Repatriation Commission (1997) 47 ALD 261
Harris v Repatriation Commission [2000] FCA 873
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 31 AAR 150
Starcevich v Repatriation Commission (1987) 14 ALD 160

REASONS FOR DECISION

22 December 2000 Ms G Ettinger Senior Member

The decision under review by the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 1 July 1996 (T2). Mr King's application for review to the Veterans' Review Board was heard on 11 April 1997, and adjourned for the Repatriation Medical Authority to complete a review on the relationship between osteoarthrosis and trauma to the relevant joint.
The Veterans' Review Board then on 22 March 1999 (T16), refused the claim of Mr Arthur William King, the Applicant, that the osteoarthrosis he suffered in the both hands, wrists and fingers was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act") with the exception of the left thumb which was accepted.
The Applicant had previously made a claim to the Repatriation Commission on 22 January 1991 in respect of the osteoarthrosis he suffered in his hands and wrists. The Repatriation Commission refused the claim on 27 February 1991 (T6).
The Applicant, Mr Arthur William King, was represented by Ms A Toliopoulos, of the Veterans' Advocacy Service of the Legal Aid Commission, and the Respondent by its advocate, Mr R Wallis.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal were:
(a)Whether the osteoarthrosis suffered by the Applicant in both his hands, wrists and fingers was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act");
(b)Whether the Applicant was eligible for a pension at the Special Rate (section 24 of the Act).

LEGISLATIVE FRAMEWORK

The relevant legislation in relation to this matter was the Veterans' Entitlements Act 1986 in particular sections 9 and 24. Section 9 provides:
"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;
…"
Section 24 of the Act outlines the requirements to be fulfilled to be eligible for a pension at the Special Rate:
"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
…
(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 of 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 …"

The standard of proof for the operational service given to his country by the Applicant between 1 September 1951 and 9 September 1952 is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Veterans' Act.
"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.
…"
In the review of Mr King's application, I was bound to apply section 120A of the Veterans' Act because the Veteran's application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Veterans' Act applied.
"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.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."

In considering the matter, and the relevant SoP to apply, I was bound by the recent Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150, and was required to take into account Mr King's accrued rights.
The parties submitted and the Tribunal agreed, that the relevant SoPs for osteoarthrosis current at the time of the Repatriation Commission decision on 1 July 1996 was Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995.
Osteoarthrosis was defined in No.71 of 1995 as:
"a non inflammatory degenerative joint disease characterised by degeneration of the articular cartilage, hypertrophy of bone at the margin and changes in the synovial membrane and attracting an ICD code of 715."
This was amended in Instrument No.336 of 1995 and again in Instrument No.352 of 1995 and at as the date of the Repatriation Commission decision on 1 July 1996, osteoarthrosis was defined as:
"osteoarthrosis" … means a heterogenous group of clinical joint disorders associated with defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following characteristics:
(a)       a history of pain;
(b)       impaired function;
(c)       joint swelling; and
(d)       stiffness;"
The parties agreed, and I accepted, that if the Applicant were successful, the earliest date of effect in this matter was 30 January 1996.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
ITEM DATE NAME
Statement of Arthur William King Date stamped 13 September 1999          Exhibit A1
Applicant's Statement of Facts and Contentions          9 November 1999    Exhibit A2
T-Documents  Exhibit R1
Medical Report of Professor P Sambrook          26 October 1999     Exhibit R2
Medical Report of Dr G Hession with attachments of Dr Fung 29 November 1999 Exhibit R3
Respondent's Statement of Facts and Contentions with Claim for Service Pension attached     24 October 2000           Exhibit R4

Oral evidence was given by the Applicant, Mr Arthur William King.
EVIDENCE OF THE APPLICANT, MR ARTHUR WILLIAM KING
Mr King, whose date of birth was 5 August 1931, and whose statement date stamped 13 September 1999 was before the Tribunal at Exhibit A1, gave oral evidence before the Tribunal. He said that prior to enlisting in the Australian Army, he worked on a station at Wee Waa. Mr King said that he joined the Army at aged 18 and went to Korea on 1 September 1951, where he was in the infantry as a forward scout, and where he saw active service.
Mr King said that, on 7 October 1951 whilst involved in Battle 317, he and another man carried a wounded solider back from the front line. The wounded solider, Driver Hutton, weighed approximately 14 stone according to Mr King, whilst he himself weighed only 8 stone. Mr King said that as they carried the injured soldier, there was artillery exploding overhead, which forced them to dive for cover. He said that it took approximately an hour to carry the wounded man back to base as they had to dodge artillery on up to twelve occasions. Mr King said that on one such occasion he hurt his left hand diving into a hole, indicating to the Tribunal the area from the left thumb to the wrist. He said that they tried to dig in a position however, the hills were all rocky and they were prevented from obtaining cover.
Mr King said that he wrapped up his injured left wrist following the incident and after obtaining a bandage from a fellow soldier, he returned to the front line. Mr King said that approximately ten to twelve days after the injury his left hand was still sore and he had it bandaged when he went on ("Rest and Recreation") R&R to Japan for five days. He said that his left hand hurt and that he continued to use the bandage for support. Mr King said that he could not dig for some time after his injury, neither carry ammunition, and had to handle his gun and worked unwinding barbed wire with one hand. Mr King said that he had a few twinges on his right hand but it was not as bad as the left.
Mr King also recalled another incident in which he injured his right hand in a 40 foot fall down the side of a hill while going through 4 Platoon to an outpost. He said that as he fell he reached out with both hands to try and hold onto anything that would slow his fall. Mr King also told the Tribunal that in the course of the fall, a magazine of bullets fell from his pouch. When he tried to look for the magazine that had fallen out of his pouch, another soldier stepped on his right hand. Mr King said that his right hand hurt all over and both hands were numb and sore from the cold. However, he was not able to get to a RAP as the Chinese Army was very active in the area, winter was severe, and he was virtually cut off from the base.
Mr King informed the Tribunal that when he was able, he consulted an Indian dentist to have teeth extracted. He said that he told the dentist that he had "a crook hand", and that the dentist replied that they all had crook hands.
Mr King also said that being in Korea during the winter of 1951-2, caused additional problems for his hands. He said that he was required to dig trenches in frozen grounds to establish new positions. The size of each trench was approximately 6 x 6 feet deep, and sometimes gelignite was used to blow a hole in the ground to start the trench. On other occasions Mr King who carried a pick, and his friend a shovel, would dig the trench by hand. Mr King commented that the American shovels issued to the soldiers were "useless". Of the frozen ground, Mr King said that "concrete would have been softer". He also said that the big gloves they were issued to keep their hands warm were too bulky to enable them to dig properly. Mr King said that when he was required to dig he would use thin gloves to protect his hands from sticking to the metal of the pick, which would leave them very vulnerable to the cold. After the trenches were completed, it was necessary according to the Applicant to erect barbed wire fences to protect them, which necessitated the use of wire cutters in extremely cold weather.
Mr King told the Tribunal that he suffered pain in his hands from the constant digging and the extreme cold, and that "the winter was a killer". Mr King also said that he remained in the trenches from late December 1951 to mid April 1952, "until the winter was on the way out".
Mr King said that he returned to Australia in September 1952 following an injury to his leg whilst playing rugby against New Zealand soldiers. Mr King said that he was discharged from the Army in 1953 on medical grounds due to his leg injury.
He said that following his discharge, he retrained as a butcher and worked at Fairfield and then Bass Hill, later becoming the manager of Bass Hill. Mr King said that butchering was hard work and was hard on his hand particularly when he cut pieces of heavy meat. He told me that he left butchering in 1966 because "the winter beat him", which he found very upsetting because he considered himself a good butcher. Mr King, in his statement at Exhibit A1, said of his decision to leave butchering that:
Over the years I had a lot of trouble with both hands and legs as the work was very heavy it was getting a lot harder to cope with the pain in my hands and legs especially in the winter months. It was very demanding and in the end I spoke to the owner of the shop and told him that I could not give my customers a good service. I felt I was letting my workmates down as I could not break up bodies of beef etc. and they did part of my work for me.
I reluctantly left my trade, but felt That (sic) I had no choice as my boss said that butchering is a dangerous trade if you are not fit."
Mr King told the Tribunal that he had always wanted to have his own shop and that prior to finishing up as a butcher had his eye on a shop in Villawood around the corner from his home. He said that due to problems with his hands, he could not proceed with his plan.
I noted that in his statement at Exhibit A1, Mr King stated that:
Leaving butchering was very upsetting as all my drams (sic) were gone as I had hoped to own a butcher shop one day. I know that if I didn't have my disabilities I would be still be working as a butcher.
I was a good tradesman and a lot of people asked me to work for them on apart (sic) time basis like Saturday mornings, but the way my hands were I just couldn't."
Mr King said that after leaving butchering, he sought employment with the Registrar General in the Land Titles Office ("LTO"). He said that he was required to file the large Certificates of Title and retrieve the large books required for searches. Mr King said that although he was unhappy with the work he was doing, he stayed in the job for twenty years, because there was nothing else he could do. In 1986, aged 55, and following the advice of his doctor, he accepted early retirement.

In cross examination, Mr King said that he left the LTO due to problems in his hands as he found it difficult to cope with searching through the 20-30 large volumes of Certificates of Titles that he was required to do each day.Mr King said that he reported his difficulties to his manager and if his hands were very painful, he would bandage his hands.
Mr King said that he did take some time off, but that he was embarrassed to advise of the nature of his sick leave. He said that although he was told by people with whom he worked to write down "war disability", he would generally say he was absent from work due to sinus or some other illness.
Mr King, when questioned, said although he suffered from sinus especially in spring and although he found it very uncomfortable working in the dusty basement of the LTO, he carried on working regardless.
He said that during his employment with the LTO, one of his knees was replaced, necessitating three months leave from work. He said that it was necessary to have the other knee operated on shortly after he retired. Mr King also said that he suffered a few falls whilst at the LTO when his legs slipped out from under him causing him to fall down the stairs.
When questioned about his work, Mr King told the Tribunal that he would still be butchering if he could. He said that he had not sought any other work since leaving the LTO because he could not do any work.
Mr King also said that he purchased a little caravan so he and his wife could travel around Australia; however, due to the problems in his hands he could not open it up and was forced to sell it.
MEDICAL EVIDENCE
The medical evidence in this case consisted amongst others, of reports of Dr Woodhouse, Departmental Medical Officer, dated 5 February 1991 (T5); Dr I Meakin, Orthopaedic Surgeon, dated 22 August 1991 (T7); Professor P Sambrook, Rheumatologist, dated 26 October 1999 (Exhibit R2); Dr M Baz dated 22 July 1996(T13), Dr G Hession, Physician, dated 29 November 1999, and x-ray reports of Dr P Fung of investigations conducted between 1996 and 1999.
Dr Woodhouse diagnosed "osteoarthritis both hands and wrists" and opined that there "… is no reasonable association between his service and his O/A hands and wrists. It is the result of age, wear and tear and factors other than his service."
Dr Meakin opined that Mr King required a silastic trapezium implant.
Professor Sambrook had examined the Veteran and provided a medical report in 1996 and again in 1999. I note that Professor Sambrook referred in his later report at Exhibit R2, to SoP Instrument No.41 of 1998, which is not the applicable SoP in this case. I have examined both the SoP to this case and No.41 of 1998 and find that notwithstanding the reference to No.41 of 1998, Professor Sambrook's report was quite relevant and of value in relation to Mr King.
"I would consider the Veterans' Review Board has been unduly restrictive in their application of the Statement of Principles based upon the facts presented. In particular it (sic) important to note that the trapezium forms part of the wrist or carpal joint and so at the very least, osteoarthrosis of the left wrist should be accepted. There is also the x-ray appearance of an old un-united fracture of the right third proximal phalanx and again I would again this (sic) consider this is consistent with the history of injury to the fingers and hands provided by Mr King and so again osteoarthrosis of the right third finger should be considered to be met by virtue of factor 5(d) of instrument 41/1998. I think these fractures are evidence of trauma to his hands and wrists, especially given that the x-ray appearance is generally out of proportion to his age."

Dr Hession, who examined the Applicant for the purposes of addressing the VRB decision dated 22 March 1999, noted in his report dated 29 November 1999, that the Applicant had a "constitutional tendency to degenerative osteoarthrosis". However, he opined that "there does not appear to be a reasonable hypothesis linking osteoarthrosis of Mr King's right and left wrists and osteoarthrosis of his left and right hands and fingers."
Dr Fung, in his x-ray report dated 29 August 1996, noted that the Applicant suffered from "established osteoarthritic change in the joints".
Dr Baz opined as follows in her report at T13:
"The work he previously undertook as a butcher involved prolonged standing and heavy carrying. In my opinion he is not fit for this work because of his accepted knee and back conditions. The history he gives of leaving work in 1966 because of his accepted disabilities is consistent with his current clinical presentation.
In my opinion Mr King's disabilities render him unfit for work of eight or more hours duration weekly in areas in which he is skilled and experienced.
I consider that the accepted disabilities together with the osteoarthritis in the wrists and hands alone cause him to be unfit for work of eight hours or more duration weekly.
In my opinion there are no other, non-accepted disabilities which prevent Mr King from working."

SUBMISSIONS AND CONCLUSIONS

I must take into account the evidence, submissions, case law and relevant SoPs to make the correct and preferable decision in determining whether the Applicant's osteoarthrosis of the hands, wrists and fingers was war-caused within the terms of the legislation, and whether Mr King is eligible for pension at the Special Rate pursuant to section 24 of the Act.
I noted that Mr King served his country on operational service in Korea from 1 September 1951 to 9 September 1952. It was therefore appropriate in considering whether Mr King's claimed condition was war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
application of principles in repatriation commission v deledio (1998) 83 fcr 82
The Full Federal Court in Repatriation Commission v Deledio (supra) held that:
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

With respect to determining when an hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

I turned then to decide whether applying the principles set out above, the material before me raised an hypothesis connecting Mr King's osteoarthrosis of the hands, wrists and fingers with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue. I was mindful also that the Respondent conceded a hypothesis could be found linking Mr King's condition to his war service.
Nonetheless it was duty to consider this issue. It was clear to me from the medical evidence that the Applicant suffers from serious osteoarthritic changes in both hands and wrists. In this respect, I noted the comments of Dr G Cohen, radiologist, who x-rayed Mr King's right and left wrists and hands on 16 October 1990 (T4/25), and opined that:
"1. There is an old ununited flake fracture of the base of the proximal phalanx of the right 3rd finger.
2. There is an old ununited flake fracture of the lateral surface of the left trapezium .
3.There are mild osteoarthritic changes in occasional interphalangeal joints.
4.There are osteoarthritic changes in both the left and right scapho-trapezium joints, and in both first carpo-metacarpal joints.
The osteoarthritic changes are of slightly increased extent in comparison with films of 4 years ago."

I was also mindful of the opinion of Dr G Hession, in his report dated 29 November 1999 which was before the Tribunal at Exhibit R3, where he opined that:
"Mr King has evidence of osteoarthritis affecting many joints throughout his body. It is clear that he has a constitutional tendency to degenerative osteoarthritis, which is common in the community."

Dr Hession detailed the extensive history of surgery on Mr King's hands. Such procedures would not have been required if Mr King did not suffer a significant problem with his hands and wrists as found by the doctors who examined him. Dr Hession recorded at Exhibit R3 that:
"He has had a series of operations over the past 12 years and added that this is the first year since 1991 when he has not been required to enter hospital for operations on his hands, five on the left hand and two on the right. He stated that his first operation was a silastic implant in one or other wrist, probably the left, so far as I could judge. The silastic implant was later removed and ultimately bone grafts were inserted on two separate occasions. More recently, the interphalangeal joint of his left thumb was fused. A silastic implant was also inserted into his right wrist and a fragment of bone was removed."
I noted the evidence of the Applicant regarding his service in Korea, particularly the conditions during the winter of 1951-52 and accepted that Mr King suffered injury to his left hand in an incident occurring on 7 October 1951, when he dove into a hole to avoid overhead artillery whilst carrying an injured solider back from the front line. I accepted also from Mr King's evidence that he injured his right hand in one of a number of falls he sustained during service, including one where his right hand was stood on by a fellow soldier.
I also accepted that he suffered injury to his hands and wrists as a result of the extreme cold being approximately -20ºC during the winter months. I also find that digging trenches in the in frozen ground, of which he said "concrete would have been softer", in light gloves would also have affected his hands and wrists.
In this respect, I was mindful of the opinion of Professor Sambrook, who, in his medical report dated 26 October 1999, opined from the radiological evidence available that:
"I think these fractures are evidence in support of the history provided by Mr King that he suffered multiple discrete episodes of trauma to his hands and wrists, especially given that the x-ray appearance is generally out of proportion to his age."

I noted and agreed with the Respondent's submissions that the Applicant was a credible witness and that his "evidence was consistent with his representations throughout his application". I also noted that the Repatriation Commission accepted osteoarthrosis of the left thumb as war-caused on 30 January 1996.
From all the material before me, the evidence of Mr King, the medical evidence before the Tribunal and the submissions of the parties, I found that there was an hypothesis connecting the condition of the Applicant with his service.
I had then to consider whether there was an appropriate SoP which applied in relation to Mr King's situation, and whether a reasonable hypothesis could be raised.
As discussed earlier in these reasons, the relevant SoPs for osteoarthrosis current at the time of the Repatriation Commission decision on 1 July 1996 was Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995. Therefore, in applying Keeley (supra) in my decision-making, I found there was an appropriate Instrument for these purposes, and I had to apply it.
I had also to decide whether the hypothesis was reasonable and consider whether the development of the Applicant's osteoarthrosis of the hands, wrists and fingers was consistent with the template in the SoP.
The factors raised in the SoPs are, of course, those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition of the Veteran, in this case, Mr King's osteoarthrosis of the hands, wrists and fingers with the circumstances of his service.
The applicable SoP was:
· Osteoarthrosis: Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995.
Osteoarthrosis was defined in No.71 of 1995 as:
"… a non inflammatory degenerative joint disease characterised by degeneration of the articular cartilage, hypertrophy of bone at the margin and changes in the synovial membrane and attracting an ICD code of 715."
This was amended in Instrument No.336 of 1995 and essentially reproduced verbatim in Instrument No.352 of 1995, which follows:
"osteoarthrosis" … means a heterogenous group of clinical joint disorders associated with defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following characteristics:
(a)       a history of pain;
(b)       impaired function;
(c)       joint swelling; and
(d)       stiffness;"
The minimum factors required to relate the Applicant's osteoarthrosis of the hands, wrists and fingers with his war service are outlined in Factor 1 of the SoP as amended and follow, as relevant:
"…
(b)for localised osteoarthrosis only,
…
(vi)suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis; or …"

The phrase "trauma to the relevant joint" is defined in Instrument No.352 of 1995 as:
"… a joint injury 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, swelling, tenderness, and altered mobility or range of movement of the joint, 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 (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered."
Ms Toliopoulos submitted that the Applicant suffered a number of injuries to his hands and wrists during his twelve months of operational service in Korea in extreme conditions of -20ºC during the winter months of 1951-2. Of Mr King's left hand injury sustained as a result of diving into a hole for cover from overhead artillery while carrying an injured solider back to safety, Ms Toliopoulos submitted that the injury lasted in excess of the seven days in satisfaction of the definition of trauma in the relevant SoP. She submitted that the effects of the injury were consistent with the template requiring "acute symptoms and signs of pain, swelling and tenderness, and altered mobility or range of movement of the joint".
Ms Toliopoulos submitted that the circumstances surrounding the injury sustained by the Applicant to his left hand whilst carrying a wounded soldier was sufficient to meet the requirement of the relevant SoP and thus, sufficient to relate his osteoarthrosis of the left hand and wrist with his operational service. She referred to the Applicant's evidence that following the incident Mr King suffered pain, swelling, tenderness and altered mobility.
I noted Mr King's evidence which I accepted, that he suffered immediate pain after diving into a hole when he was carrying the wounded soldier, and that this continued for some 10 – 12 days and further that his left hand and wrist were still bandaged when he went on R&R leave to Japan for five days. I noted also that Mr King said in evidence that he was unable to carry ammunition, work with barbed wire or dig with his left hand due to the pain.
Ms Toliopoulos directed me to the comments of Professor Sambrook in his report dated 26 October 1999, where he opined:
"I note Mr King's case was considered by the Veteran's Review Board in March of this year and it was accepted that the episode Mr King described, when he fell whilst helping to carry a stretcher down from Hill 317, was likely to correspond with the x-ray appearance of a fracture of the left trapezium.
…
I would consider that the Veterans Review Board has been unduly restrictive in their application of the Statement of Principles based on the facts presented. In particular it is important to note that the trapezium forms part of the wrist or carpal joint and so at the very least osteoarthrosis of the left wrist should be accepted."
As to the injuries to both hands sustained by the Applicant, Ms Toliopoulos directed my attention again to the medical reports of Professor Sambrook which were before the Tribunal at T12/44 and Exhibit R2. Professor Sambrook in his report of 20 December 1996 had recorded the following history from the Applicant regarding the injuries to his hands:
"He told me that in 1951, he injured his right knee playing foot ball and subsequently underwent a meniscectomy. Because of this he was subsequently prone to falling and indeed during his service in Korea, fell over on many occasions and in the process injured his hands. This happened frequently as he was required to do patrols over rough terrain. He did attend the RAP because of these falls, but believes that nothing was written down about any injuries. He believes that the requirement to dig trenches and do patrol work in freezing temperatures, experienced in Korea during winter, may have also damaged his hands further.
He also told me that whilst in Korea, he was required to put up barbed wire frequently, using an instrument like a heavy pair of pliers which, in cold weather with the effect it had on the barbed wire, meant he would frequently injure his hands when the instrument came away from the barbed wire whilst manipulating it.

Of the relationship between the Applicant's war service and his osteoarthrosis of his hands, wrists and fingers, Professor Sambrook stated that:
"… it seems that Mr King has sustained multiple episodes of trauma to his hands during his service period, including his period of service in Korea, by virtue of frequent falls, digging trenches and putting up barbed wire. The exposure to cold weather in the Korean winter per se, would not cause osteoarthritis, but may exacerbate the likelihood of trauma, as described above in relationship to the putting up of barbed wire. Mr King's exposure to boxing in the Army would also have been a possible contributing factor to the development of precocious osteoarthritis of the wrists and hands."
I was mindful also of Professor Sambrook's opinion that:
"I think these fractures are evidence in support of the history provided by Mr King that he suffered multiple discrete episodes of trauma to his hands and wrists, especially given that the x-ray appearance is generally out of proportion to his age."
Mr Wallis for the Respondent submitted that the Applicant did not satisfy the definition of 'trauma' contained within the SoP concerning Osteoarthrosis, Instrument No.71 of 1995 as amended by Instrument No.336 of 1995 and No.352 of 1995 in respect of the osteoarthrosis he suffers in his left and right hands, wrists and fingers. Mr Wallis drew the attention of the Tribunal to the decision of Finn J in Harris v Repatriation Commission [2000] FCA 873 where Finn J noted, in respect of an application involving lumbar spondylosis, that:
"30 In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by the person.
31 Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to "acute symptoms and signs of pain and/or tenderness, and [meaning "together with"] altered mobility" etc. When one has regard to both the balance of the sentence in which the definition appears (and particularly to the words "and where such acute symptoms and signs last for a period of at least one week") and to what, ordinary, would be the work done by the preposition "of" in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed …
32. The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of or, phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" – ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury."
Mr Wallis submitted that the interpretation of the definition of trauma in Harris (supra) was binding on the Tribunal. He further submitted that in coming to a decision as to whether the Applicant's osteoarthrosis of the hands, wrists and fingers was war-caused, evidence of past injuries alone was insufficient to meet the SoP in circumstances where the definition contained within that SoP as judicially considered was not also met. In this regard. Mr Wallis said that the definition required that the Applicant have suffered a trauma involving the development within 24 hours, of acute symptoms and signs of pain and swelling and tenderness and altered mobility or range of movement of the joint lasting in excess of a week. For Mr King to be successful in his appeal, Mr Wallis submitted that each of the elements must be satisfied to meet the definition of trauma in the SoP.
According to Mr Wallis, if Mr King could not satisfy the definition of trauma, then his application for review would fail pursuant to step three of Deledio (supra) which provides:
"If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail."

Mr Wallis directed my attention to the report of Dr Hession dated 29 November 1999, where he opined that:
"Mr King has evidence of osteoarthritis affecting many joints throughout his body. It is clear that he has a constitutional tendency to degenerative osteoarthritis, which is common in the community."
Dr Hession, in respect of Mr King's history of an injury sustained whilst carrying a stretcher, further opined:
"With regard to the alleged fall when assisting in weight bearing a stretcher in Korea, there appear to be several aspects to consider. He informed me that he did not have the opportunity to attend the RAP, whereas it is stated elsewhere that he did so. This may or may not be significant. It appears to be reasonable to assume that, if significant swelling had existed at the time and he had attended RAP, x-ray would have been advised or at least a follow up medical examination would have been recommended. On the other hand, the detection or a suspicion of a fracture without displacement can be very difficult in the early stages so that, although some bony damage may have occurred, he could have been reassured. Presumably two or more weeks elapsed before symptoms subsided, during which time he wore a bandage on the wrist. Nevertheless, the fact that he did not seek medical attention for very many years or report symptoms after he returned from leave in Japan suggests that the injury referred to above was not of major consequence and that significant symptoms developed a long time after war service due to constitutional factors and probably the effects of trauma, to his hands from boxing. I have noted that he did not box during his period of eligible service."
Mr Wallis submitted that Mr King's symptoms in his hands, wrists and fingers had only really started in 1990 following an operation. He said that up until that time, the Applicant was able to garden and work in the LTO lifting and filing large volume of certificates of title.
In considering whether the Applicant's osteoarthrosis of the hands, wrists and fingers was war-caused within the terms of the legislation, I took into account the evidence, submissions, case law and requirements of the SoP concerning Osteoarthrosis, namely Instrument No.71 of 1995 as amended by Instruments No.336 of 1995 and No.352 of 1995. The minimum factor required to relate the Applicant's osteoarthrosis of the hands, wrists and fingers with his war service was that he suffered "…a trauma to the relevant joint before the clinical onset of osteoarthrosis".
As a preliminary matter, I noted the comments of the Respondent at T9/36-41, that there were no service medical records referring to an injury sustained by the Applicant to his right and left hands, wrists or fingers. The Respondent, in its decision dated 1 July 1996, stated the following in respect of each of the claimed areas:
"There is no record in your service medical records of you having sustained an injury to your [left wrist, right wrist, left hand or fingers, right hand or fingers] Any injury sufficient to cause osteoarthrosis would not go unreported."

Additionally, in an earlier decision of the Respondent dated 27 February 1991 (T6) refusing the Applicant's claimed conditions of osteoarthrosis in his hands and wrists, the Delegate noted that:
"Mr King's service documents contained nothing by which I could relate his osteoarthritis of the hands and wrists to his service. Despite a number of medical examination reports in his departmental file representing examinations from the time of his service to date, this is the first mention of his claimed disabilities."
I further noted the comments of Dr Hession that the Applicant::
"… informed me that both hands bothered him from the time of his discharge but, at the time, he made no mention of hand or wrist pain.
… the fact that he did not seek medical attention for very many years or report symptoms after he returned from leave in Japan suggests that the injury referred to above was not of major consequence …"
Notwithstanding, I was mindful that section 119 of the Act enabled the Repatriation Commission, and, therefore, this Tribunal, to take into account the unavailability of medical records when ascertaining the existence of facts. Specifically, section 119 provides that:
"119     Commission not bound by technicalities
(1)In considering, hearing or determination, and in making a decision in relation to:
(a)a claim or application …
the Commission …
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause, or circumstance, including any reason attributable to:
(i)     the effects if the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)     the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
In this respect, while I noted that there was no record of Mr King receiving treatment in respect of injuries to his right and left hands, wrists and fingers at the time of the injury, I accepted the evidence of the Applicant that when he consulted an Indian doctor to have teeth extracted, he advised him that he had "a crook hand" and that the doctor replied that they all had crook hands. I found Mr King to be a witness of truth.
I further accepted that the Applicant, during his service in Korea, was not able to access the RAP due to the extreme conditions and the ongoing hostilities but that he was able to wrap his left hand and wrist up in a bandage obtained from a fellow soldier, which Mr King said he continued to wear until after he returned from R&R leave. I am mindful that at the time of the injury the Applicant was engaged in hostilities and was required at the front line.
I was mindful that Mr King had suffered football injuries and had boxed although there was little evidence regarding the boxing before the Tribunal. However, I noted Professor Sambrook detailed in his report dated 20 December 1996, an incident in which the Applicant injured his hand:
"In addition to his exposure in Korea, he did do boxing whilst in the Army, fighting in the Interservice Titles and doing regular boxing at one time during a recruitment drive. He recalled that on one occasion he considered he injured his hand whilst boxing and did attend a hospital in Newcastle in regard to this."
I was mindful that Professor Sambrook had considered Mr King in relation to a later SoP, No.41 of 1998 which did not apply in this case, but having reviewed it, I did not consider that reference invalidated anything he had diagnosed. I also noted and preferred the medical evidence of Professor Sambrook, who in his report at T12 before the Tribunal, opined that:
"Because of the development of osteoarthrosis as seen in Mr King's, in his carpus and not just the first carpo-metacarpal joint, is quite unusual and out of proportion to the veteran's age, I think that there is a strong likelihood that the veteran's service, by way of trauma, during his Korean service or boxing, have caused or materially aggravated the development of degenerative changes in his wrists …
As a general comment, it seems that Mr King has sustained multiple episodes of trauma to his hands during his service period, including his period of service in Korea, by virtue of frequent falls, digging trenches and putting up barbed wire. The exposure to cold weather in the Korean winter per se, would not cause osteoarthritis, but may exacerbate the likelihood of trauma, as described above in relationship to the putting up of barbed wire. Mr King's exposure to boxing in the Army would also have been a possible contributing factor to the development of precocious osteoarthritis of the wrists and hands".

I was satisfied from the evidence before me that Mr King's osteoarthrosis of his left hand and left wrist fell within the definition of trauma in the relevant SoP, in that I accepted his account of his injury, the immediate pain suffered as he described it, the duration of the acute pain and the altered mobility he described which I have noted in the paragraphs above.
I accepted the comments of Professor Sambrook that:
"Osteoarthritis can be a degenerative wear and tear condition, but the involvement of the scaphoid bone is atypical for age related osteoarthritis and suggest other factors are operative here in its expression. These could include the episodes of trauma described above or his boxing exposure."
I was satisfied from the evidence of the Applicant that he sustained "suffered multiple discrete episodes of trauma to his hands and wrist, especially given that the x-ray appearance is generally out of proportion to his age."
As I was satisfied that Mr King suffered from osteoarthrosis to the left hand, left wrist and fingers, and the right third finger resulting from a trauma involving the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling and tenderness, and altered mobility or range of movement of the joint lasting at least one week, it was sufficient for me to find that a reasonable hypothesis had been raised connecting his osteoarthrosis of his left hand, left wrist and fingers and his right third finger with the circumstances of the service rendered by Mr King. I also considered that based on the evidence, before me, in particular the medical and radiological studies, the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
I then proceeded to consider section 120(3) of the Veterans' Act, deciding that the reasonable hypothesis had been raised linking Mr King's osteoarthrosis of the left hand, wrist and right third finger with his operational war service because on consideration of the whole of the material before me, and as detailed above, the situation fitted the template in SoP Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995.
Applying sections 120(1) and 120(3), I could not be convinced beyond reasonable doubt that the injuries sustained by Mr King during his operational service were not causally connected with Mr King's osteoarthrosis of the left hand, left wrist and fingers and middle finger of the right hand in satisfaction of by Factor 2(b)(vi) of the SoP No.352 of 1995.
I was therefore satisfied that Mr King's osteoarthrosis of the left hand, left wrist, fingers of the left hand, and right middle finger was war-caused within the terms of the legislation and that his claim for these should succeed.
WHETHER MR KING QUALIFIES FOR PENSION AT THE SPECIAL RATE PURSUANT TO SECTION 24 OF THE ACT
I noted at T14/62, the Veteran Review Board's findings as follows:
"The Board was satisfied that Mr King's General Rate of pension was appropriately at the level of 100%. The Board noted that there were no submissions for any higher rates of pension. The Board reviewed the evidence and was satisfied from the material available to it that there were no grounds for entitlement for either the Special Rate of pension or the Extreme Disablement Adjustment. In these circumstances the Board saw no reason to address the question of any increase in any of the impairment ratings or lifestyle ratings at this time."
As I have found Mr King's osteoarthrosis of the left hand, left wrist and right middle finger was war-caused, and as both parties made submissions with regard to Mr King's eligibility to be paid the disability pension at the Special Rate pursuant to section 24 of the Act, I considered his situation in that regard. I noted that as relevant section 24 follows:
"24 Special rate of pension
(2)This section applies to a veteran if:
(bb)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
(iii)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
(d)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
(e)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings of 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
(iii)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.
…"
I noted that Mr King's date of birth was 5 August 1931, and he was 64 years of age at the time when his application was made on 30 April 1996 (section 24(1)(aab) of the Act).

There was no disagreement between the parties, and I accepted that Mr King had been found to be at least 70 percent incapacitated in a previous determination (section 24(1)(a) of the Act).
I then turned to consider whether pursuant to section 24(1)(b) of the Act, Mr King was totally and permanently incapacitated, that is, that his incapacity from war-caused injury or war-caused disease, or both, was of such a nature as of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
I also had to consider whether Mr King pursuant to section 24(2)(b) "… ceased to engaged in remunerative work for reasons other than his … incapacity from that war-caused injury …" or "… incapacitated, or prevented, from engaging in remunerative work for some other reason."
I had the T-documents, exhibits, medical reports, submissions of the parties and other written evidence regarding Mr King's accepted medical conditions before me in considering my decision. I also had, of course, the evidence Mr King gave at the Tribunal regarding how his disabilities affected him. I had the opportunity of assessing Mr King's evidence and I accepted him as a witness of truth. I noted that Mr Wallis agreed that Mr King's evidence was entirely credible.
I noted from the T-Documents that Mr King's accepted disabilities were as follows:

Osteoarthrosis left knee;
Right chrondromalacia patellae with patellectomy;
Lumbar invertebral disc lesion;
Post Traumatic Stress Disorder;
Osteoarthrosis of the left thumb.

In making my decision, I have found that his osteoarthrosis of the left hand, left wrist and the right middle finger was also war-caused.
Mr King's non accepted disabilities were as follows:

Bilateral pes planus with callosity of the right foot;
Anxiety state;
Hypochlorhydria.

I then turned to consider the reasons why Mr King had left his employment as a butcher, what he had done since that time, and why he had left his position at the LTO at age 55, before the usual retirement age. I have taken into account the Applicant's evidence and medical evidence as noted above in these Reasons for Decision, and I have not sought to reproduce them all in this section.
However I noted Ms Toliopoulos submitted that the Applicant left his employment as a butcher due to problems he was experiencing with his hands and knees. She said that the job was physically demanding and the Applicant was no longer able to cope with the level of exertion required particularly in his hands.
In this respect, I noted that Mr King, in his statement at Exhibit A1, said of his decision to leave butchering that:
Over the years I had a lot of trouble with both hands and legs as the work was very heavy it was getting a lot harder to cope with the pain in my hands and legs especially in the winter months. It was very demanding and in the end I spoke to the owner of the shop and told him that I could not give my customers a good service. I felt I was letting my workmates down as I could not break up bodies of beef etc. and they did part of my work for me.
I reluctantly left my trade, but felt That (sic) I had no choice as my boss said that butchering is a dangerous trade if you are not fit."
I also noted that Mr King had said in evidence that he had always wanted to have his own shop and that prior to finishing up as a butcher had his eye on a shop in Villawood around the corner from his home. He said that due to problems with his hands, he could not proceed with his plan, also that he had left the trade because he felt he could not carry out his work without danger to himself and others. He said that due to his osteoarthrosis, carrying large sides of meat and dealing with knives was too difficult and dangerous.
I further noted that in his statement at Exhibit A1, Mr King stated that:
Leaving butchering was very upsetting as all my drams (sic) were gone as I had hoped to own a butcher shop one day. I know that if I didn't have my disabilities I would be still working as a butcher.
I was a good tradesman and a lot of people asked me to work for them on apart (sic) time basis like Saturday mornings, but the way my hands were I just couldn't."
As to his position at the LTO, Ms Toliopoulos submitted that the Applicant had trouble managing the butchering work load due to problems with his hands and knees. I accepted that Mr King was upset at having to leave butchering because he liked it and hoped to own his own shop. I also noted that he then spent the next 20 years working at the LTO where his work was of a physical nature.
I noted that the Applicant's position with the LTO involved the filing and retrieving of the large volumes of Certificates of Title required for searches and that Mr King gave evidence of finding it difficult to cope with searching through the 20-30 large volumes of Certificates of Titles that he was required to do each day. I also noted that Mr King said that he reported his difficulties to his manager and if his hands were very painful, he would use bandages to strap them. He also said that he fell several times due to his knee problems.
I noted that Mr King said that he did take some time off from work at the LTO, but that he said he was embarrassed to advise of the nature of his sick leave. He said that although he was told by people with whom he worked to write down "war disability", he was embarrassed and would generally say he was absent from work due to sinus or some other illness.
I was mindful of the comments of the Delegate of the Respondent in an earlier decision dated 27 February 1991 and before the Tribunal at T6, that:
"I note that his leave record from the Attorney-General's Department during 1965 to 1986 shows leave taken for an injured left wrist in November 1980 and October 1982."
In support of Mr King, Ms Toliopoulos directed my attention to the medical report of Dr M Baz dated 22 July 1996 (T12) and the report of Dr Sambrook dated 26 October 1999. Dr Baz had opined:
"… in my opinion Mr King's accepted disabilities render him unfit for work of eight hours or more hours duration weekly in areas in which he is skilled and experienced.
I consider that the accepted disabilities together with osteoarthritis in the wrists and hands alone cause him to be unfit for work of eight or more hours duration weekly.
In my opinion there are no other, non-accepted, disabilities which prevent Mr King from working."
Professor Sambrook said that:
"I noted that Mr King is currently aged 68 and this may be relevant to an assessment of his ability to engage in remunerative work, given a normal retirement age of 65. However, aside from this consideration, because of digital dexterity and reduced grip strength, Mr King has significant effects of his disability to engage in remunerative work either as a butcher or in a clerical capacity."

Mr Wallis, submitted on behalf of the Respondent that Mr King left work because of the dusty environment at the LTO which affected his sinus and that is was not his war-caused disabilities alone which caused him to retire early. He emphasised that Mr King had not sought work since leaving the LTO and that he could not be held to be suffering a loss of earnings. Mr Wallis also drew attention to the fact that after leaving butchering, allegedly due to his war-caused injuries, Mr King then worked for some 20 years at the LTO.
Mr Wallis drew attention to the report of Dr Baz and her comments on the contribution of age in relation to retirement age for a butcher. As relevant I have noted her opinion:
"Mr King's age of 64 years would, in the absence of his disabilities, cause difficulty obtaining clerical work. It would not have precluded him from continuing with work as a butcher nor prevent him from working particularly on a part-time or relieving basis as a butcher now."
In coming to a decision, I was guided by their Honours' at 299 in Birtlesv Repatriation Commission (1991) 33 FCR 290 who stated:
"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from 'continuing' a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word 'continuing' in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and other subparagraphs apply, then s 24 is applicable to that veteran."
I was also mindful that in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J said with regard to the "alone" test:
"The tendency of that is to distract the tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
I was not satisfied that Mr King's incapacity from war-caused disabilities was of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. I found from his evidence and the submissions made on his behalf that he could undertake remunerative work for more than eight hours per week, and that he left the LTO due to sinus problems and his dislike of the work, and not solely because of his war-caused disabilities.
I noted that Mr King has not sought work since taking an early retirement from the LTO. I cannot find that he satisfies section 24(1)(c) of the Act in that he does not suffer loss of earnings due to not undertaking remunerative work by reason of incapacity from his war-caused conditions. I find that Mr King is not assisted by the application of section 24(2) of the Act.
I find that although the Applicant did satisfy me that his osteoarthrosis of his left hand, left wrist and right middle finger was war-caused, he is not eligible for pension at the Special Rate.
No submissions were made with regard to section 23 of the Act but I considered also whether Mr King's accepted disabilities alone would prevent him from working in remunerative employment for twenty or more hours a week. Based on the same evidence as I used to assess Mr King's capacity to work in relation to section 24 of the Act, I was similarly not satisfied that he would satisfy the tests in section 23 of the Act.
Therefore, I find that the Applicant's pension should be continued at 100% of the General Rate.
DECISION
The Administrative Appeals Tribunal ("the Tribunal") varies the decision of the Veteran's Review Board of 22 March 1999 which affirmed the decision of the Repatriation Commission dated 1 July 1996 with the exception that Mr King's osteoarthrosis of the left thumb which was held to be war-caused.
The Tribunal finds that Mr Arthur William King's osteoarthrosis of his left hand left wrist, and right middle finger was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The decision to award pension at 100% of the General Rate is affirmed.

I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  25 October 2000
Date of Decision  22 December 2000
Counsel for the Applicant        N/A
Solicitor for Applicant               Ms A Toliopoulos
Counsel for the Respondent    N/A
Advocate for the Respondent Mr R Wallis