Kowalski v Repatriation Commission
[2008] AATA 903
•9 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 903
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. 2007/4985 and
VETERANS' APPEALS DIVISION ) 2008/4243 Re KAZIMIR KOWALSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date9 October 2008
PlaceAdelaide
Decision The decision under review as varied by the decision of the Veterans’ Review Board is affirmed.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – eligible defence service – hypertension, ischaemic heart disease, depression and anxiety – work related stress during service – date of clinical onset of claimed conditions – nature of AAT’s inquisitorial role – evidentiary onus to adduce evidence – appropriate clinical management to be judged according to medical knowledge at time of service – whether factors in SoPs supported connection with service – decision under review affirmed
PRACTICE AND PROCEDURE – jurisdiction – application for review refers to decision of VRB instead of decision of respondent – obvious error does not vitiate application for review – held that AAT has jurisdiction.
Veterans’ Entitlements Act 1988 (Cth), ss 119(1), 120 (4) and 120B(3)
Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Fenner v Repatriation Commission (2005) 218 ALR 122
Lees v Repatriation Commission (2002) 125 FCR 331
McDonald v Director-General of Social Security (1984) 1 FCR 354
McKenna v Repatriation Commission (1999) 86 FCR 144
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Ousley v R (1997) 192 CLR 69
R v Cawthorne; ex parte Public Service Association of SA Inc (1977) 17 SASR 321
Re Cunningham and Repatriation Commission [2007] AATA 1790
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Wellington (1999) 57 ALD 507
Roncevich v Repatriation Commission (2005) 222 CLR 115
Somerset v Repatriation Commission [2005] FCA 1399
REASONS FOR DECISION
9 October 2008 Deputy President D G Jarvis 1. The applicant, Kazimir Kowalski, enlisted for National Service on 20 April 1972, and was discharged from the Army on 19 October 1973.
2. On 6 March 2007 he lodged a claim for disability pension under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) for a number of conditions that were regarded by the Repatriation Commission as major depression with co-morbid anxiety, hypertension and ischaemic heart disease. He claimed that the conditions were defence caused. The Commission rejected his claim, and he applied to the Veterans’ Review Board (VRB) for review of the Commission’s decision.
3. The VRB decided to vary the decision under review by substituting diagnoses of depressive disorder and anxiety disorder for the previously diagnosed condition of major depression with co-morbid anxiety, but otherwise affirmed the decision under review as so varied. Mr Kowalski subsequently applied to this tribunal to review the decision of the VRB.
Issues before the Tribunal
4. The issues before me are whether the conditions of depressive disorder, anxiety disorder, hypertension and ischaemic heart disease are defence caused for the purposes of the VE Act. Mr Kowalski’s service from 7 December 1972 until his discharge was eligible defence service for the purposes of his claim.
5. The parties have agreed that the diagnoses of depressive disorder and anxiety disorder are correct.
6. During the hearing I raised a concern about jurisdiction, because Mr Kowalski’s application to this tribunal is to review the decision of the VRB. However, under s 175(1) of the VE Act, where (as in this case) the VRB affirms or varies the decision of the Commission, the reviewable decision is that of the Commission. On reflection I am satisfied that I have jurisdiction, for reasons to which I will refer below.
Background
7. The following background facts are derived partly from Mr Kowalski’s evidence, and partly from the documentary material before me, including Army records, and were not disputed.
8. Mr Kowalski was called up for National Service in or about 1967. He delayed the commencement of his National Service until he enlisted on 20 April 1972, by undertaking various courses of study. He undertook training at the Puckapunyal Army Camp, and remained in the Army until his discharge on 19 October 1973. He had worked as a draughtsman for Chrysler Australia before commencing his National Service.
9. He and his wife were married in April 1970. He was depressed and anxious when he enlisted in the Army, as he was then separated from his wife; he missed her, and was concerned that she might have been left as a widow if he had been sent to Vietnam and killed in action. He said that he was not a violent person and was also troubled by constant thoughts of being sent to Vietnam either to kill people or to be killed himself. In addition, he was older than the majority of the other National Servicemen at Puckapunyal and had difficulty in doing some of the physical exercises, and was the only married person in his group. He said he hated his time in the Army.
10. After completing three months at Puckapunyal he was posted to the Bonegilla Army Camp. He found this concerning, because he had come to Australia with his parents as a refugee from Nazi Germany when he was two years old, and they had lived at Bonegilla, and had told him about going there. He said that when he went there it was winter and freezing cold. He continued to miss his wife. After about six weeks at Bonegilla, he was told that he would be a draughtsman, and he was posted to the Amberley Air Force Base in Queensland.
11. The nature of his work at Amberley changed after the change of government on 7 December 1972. The newly elected government had given a commitment during the election campaign to abolish National Service and to withdraw Australian troops from Vietnam. Mr Kowalski said that a number of National Servicemen at Amberley resigned from the Army immediately after the election. He had been working as one of three draughtsmen, and the other two resigned. Although he had also wanted to leave the Army then, he was persuaded by a superior officer to stay on, because he would then become entitled to the benefit of a war-service loan. He did stay on, but there was then a very substantial increase in his work load; he found that he was doing the work of three people. He was given unrealistic deadlines, and had to work during his lunch breaks. He was frequently rostered to do weekend pickets, but when he reported for duty, he would be told to go to the drawing office to catch up on work that he was behind with from the previous week. He resented this, because ordinarily soldiers who had been confined to barracks for disciplinary reasons would have done weekend pickets. He was also faced with a number of superior personnel all asking him to give priority to their work, and also had to interrupt his regular work with requests from officers to prepare invitation cards which were unrelated to his Army work. In addition, his working conditions were difficult, because his drawing board was too small and the drawing office was not air-conditioned. He was also criticised for not being a good draughtsman by officers who, he said, had no idea of the work he was doing.
12. Mr Kowalski said that as a result of the pressures of his work, he became stressed, and he consulted a doctor at the base. According to an attendance and treatment card included in Mr Kowalski’s service records, this occurred on 17 July 1973, and he complained of epigastric pain after food, and (apparently) that he had been experiencing this for the preceding four to five weeks. The card also indicates that his pain had been relieved by ant-acids, and that he was given Kolantyl Gel and Merbentyl (exhibit R1, T7, page 124). The card records further relevant consultations on 30 July 1973, and on 1, 10, 20 and 24 August 1973. He had a barium meal, and this revealed that he was suffering from a duodenal ulcer.
13. The notes of the consultation on 20 August 1973 indicate that he complained of night pain, and that he was under strain (or, according to an alternative interpretation of the doctor’s handwriting, stress) at work. They also indicate that Kolantyl Gel was increased to 20 mls, and that he was prescribed Librax tablets three times daily and two at night. Mr Kowalski said that at the time of his discharge, he was given supplies of Librax which lasted until 1975.
14. The doctor at the Base also put Mr Kowalski on a high fat diet which entailed his having milk and cheeses but not spicy or acidic foods. He could not remember whether he had been advised to increase his overall food intake.
15. Mr Kowalski subsequently made claims for compensation against the Army which were accepted. A report dated 7 August 1973 by his superior officer includes a statement that in that officer’s opinion, the injury arose out of employment, because Mr Kowalski had been placed under “great stress & over-employed since December 1972 when with the cessation of National Service he was performing mechanical drafting duties where previously three personnel were employed”, and the officer in charge, a Major Fenton, reported in August 1973 that the work program had been “intense” since December 1972 (exhibit R1, T25, page 260). In evidence, Mr Kowalski said that he could remember having night pain from his ulcer and having to regularly get up and have milk and cookies, but he could not be more precise as to when his night pain first started other than that it was in 1973.
16. After Mr Kowalski was discharged from the Army he resumed employment with Chrysler Australia, which was later acquired by Mitsubishi Motors Australia. He was diagnosed with hypertension by his then GP, Dr Hughes, on 24 August 1984. He continued working at Chrysler/Mitsubishi until August 1991, when he had a nervous breakdown, and he has not worked since then. He suffered a heart attack in December 1997, and had open-heart surgery in January 1998. He was diagnosed with Type 2 diabetes on 30 June 2004.
17. Dr Karl Jagermann, a psychiatrist, treated Mr Kowalski from 1991 until Dr Jagermann’s death in 1998. According to the history contained in a report from Dr Jagermann dated 23 August 1991, Mr Kowalski had an accident at work in May 1989 when he sustained a back injury and ongoing low back pain, and was absent from work for two and a half months. He claimed worker’s compensation from his employer. His claim was disputed, and later he was accused by his employer of committing fraud by absenting himself from work when in fact he had been attending a WorkCover conference. Dr Jagermann also referred to Mr Kowalski’s “more distant past” as follows:
“The examination of the more distant past revealed that Mr Kowalski had been with Mitsubishi Motors for 26 years where he was employed as a tooling analyst. Whereas he had “had an anxiety problem years ago, it was brought under control” upsetting events of the immediate past proved it otherwise with Mr Kowalski falling victim to injury, antagonism, vicissitude and rejection, promoting tension and concern and ‘distrust of everything’”. (exhibit R1, T16, at page 225)
Legislative Scheme
18. Under Part IV of the VE Act, provision is made for pensions for members of the Defence Force or of a peacekeeping force and their dependants who rendered continuous full-time service as a member of the Defence Force on or after 7 December 1972 until 7 April 1994.
19. Section 70(1) of the VE Act provides in effect relevantly that where a member of the Defence Force is incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with the Act.
20. Under s 70(5)(a), a disease contracted by a member of the Defence Force is taken to be a defence-caused disease if the disease “arose out of, or was attributable to, any defence service”. Section 70(7) provides in effect that where, in the opinion of the Commission the incapacity of a member of the forces was due to a disease that would not have been contracted but for the member having rendered defence service, the incapacity shall be deemed to have arisen out of that disease, and the disease is deemed to be a defence-caused disease contracted by the member.
21. The issues that have arisen in the present matter are to be decided in accordance with the civil standard of proof, that is, on the balance of probabilities. This follows from s 120(4), which provides in effect that the Commission (or this tribunal, which stands in the shoes of the Commission when determining applications for review) shall decide the matter to its reasonable satisfaction. Section 120(6) provides in effect that nothing in s 120 or in any other provision of the VE Act is to be taken to impose upon a claimant or applicant for a pension “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
22. Section 120(4) is expressed to be affected by s 120B. Section 120B(1) provides that that section applies relevantly to a claim made under Part IV of the Act that relates to defence service rendered by a veteran. Section 120B(3) provides relevantly in effect that in applying s 120(4), the Commission (or, once again, this tribunal standing in the shoes of the Commission) is to be reasonably satisfied that a disease contracted by a person was defence caused only if:
“(a)the material before the Commission raises a connection between the … disease … of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the … disease … of the person is, on the balance of probabilities, connected with that service.”
Section 120B(4) provides relevantly in effect that s 120B(3) does not apply in relation to a claim in respect of the incapacity from a disease of a person if the Repatriation Medical Authority (RMA) has neither determined a Statement of Principles (SoP) under s 196B(3), nor declared that it does not propose to make such a SoP in respect of the relevant disease.
23. Section 196A provides for the establishment of the RMA. Section 196B(3) provides relevantly in effect that if the RMA is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of disease can be related to defence service rendered by members of the Forces, the RMA must determine a SoP in respect of that kind of disease setting out the factors that must exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, a disease of that kind is connected with the circumstances of that service. There is no statutory definition of the concept of an injury, disease or death being “connected with” service, but the reference in s 196B(3) to a “factor related to service” is expounded in s 196B(14). This provides relevantly in effect that a factor causing, or contributing to, a disease is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of or was attributable to that service, or the disease would not have occurred but for the rendering of that service by the person, or but for changes in his or her environment consequent upon having rendered that service.
24. Section 180A(3) enables the Commission, in circumstances where the RMA has not made a SoP in respect of a particular kind of disease, to make a determination in writing with respect to a particular class of members of the Forces in respect of (relevantly) defence service, setting out factors that must exist and be related to service before it can be said, on the balance of probabilities, that a disease is connected with the circumstances of that service. There is no suggestion that any determination has been made under s 180A that is relevant to the conditions that form the basis of Mr Kowalski’s claim in the present proceedings.
Relevant Statements of Principles
25. The RMA has made SoPs in respect of each of the conditions for which Mr Kowalski is claiming a pension or on which Mr Kowalski’s claim is based. The SoPs that are potentially relevant are as follows:
(a)Instrument No. 54 of 2003 concerning Ischaemic Heart Disease, as amended by Instrument No. 10 of 2004, which Instrument has been revoked and replaced by Instrument No. 90 of 2007 concerning Ischaemic Heart Disease;
(b)Instrument No. 36 of 2003 concerning Hypertension, which Instrument has been amended by Instruments No. 4 of 2004 and No. 12 of 2008;
(c)Instrument No. 18 of 2007 concerning Depressive Disorder, which Instrument has been revoked and replaced by Instrument No. 28 of 2008 concerning Depressive Disorder;
(d)Instrument No. 2 of 2000 concerning Generalised Anxiety Disorder and Anxiety Disorder due to a General Medical Condition, and Instrument No. 102 of 2007 concerning Anxiety Disorder; and
(e) Instrument No. 58 of 2006 concerning Gastric Ulcer and Duodenal Ulcers.
Applicant’s Contentions
26. Mr Kowalski tendered a large volume of documentary evidence in support of his claim, much of which on analysis is either repetitious, of marginal relevance, or related to a separate claim he has brought against the Military Rehabilitation and Compensation Commission. As I understand it from the material before me and the matters referred to at the hearing, Mr Kowalski contends, amongst other things, that he was infected with Helicobacter pylori bacteria at the Puckapunyal Army Camp due to sharing communal showers and using eating utensils that were not properly cleaned; that this infection, or the stress and anxiety from being overloaded with work in the Army in the period after two of his colleagues resigned following 7 December 1972, in association with the infection, caused a duodenal ulcer, with resulting pain and sleeping disorders; that the stress of his Army work caused him to develop high blood pressure, depression and anxiety; that the clinical onset of his anxiety (having been evidenced by being prescribed Librax tablets by an Army doctor at the Amberley Base) occurred at or about the time when these tablets were prescribed; that he was advised by the doctor at the Amberley Base to go on a high fat diet after he developed the ulcer; that as a result he became obese and suffers from high cholesterol; and that he developed ischaemic heart disease as a result of one or more of the following matters: his high fat diet and resulting obesity and/or high cholesterol; his hypertension; his depression; and the anxiety he experienced after being called up and the stress and anxiety he experienced in his work with the Army, which continued in his work with Chrysler and Mitsubishi after his discharge.
27. Mr Kowalski also contended that a number of the specific factors in the SoPs referred to above are applicable, so that on the balance of probabilities, the conditions in issue were connected with the circumstances of his service. I will refer below to these factors insofar as they are relevant, or raised by evidence before me. He supported his contentions with a large number of legal authorities, but many of them did not support or were not relevant to his contentions, and he did not seem to appreciate that cases dealing with claims for injury or disease relating to operational service generally involve different considerations than claims relating to defence service because of the different provisions of the VE Act in relation to such claims.
28. Two further asserted propositions pervaded Mr Kowalski’s contentions. The first was that by virtue of s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) the respondent was required to “use its best endeavours” to assist the tribunal to arrive at its decision, and as a result, it should not have been up to him to produce evidence in support of his claim; rather, this should have been done by the respondent pursuant to its obligations under that subsection and as a model litigant. The second asserted proposition was that this tribunal should have pursued its own inquiries, having regard to statements made by Moore, Emmett and Allsop JJ in Benjamin v Repatriation Commission (2001) 70 ALD 622, where their Honours said, at [47], that “(p)roceedings before the Tribunal sometimes give the appearance of being adversarial, but in substance a review by the Tribunal is inquisitorial,” and earlier comments by Brennan J to a similar effect in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424 – 5.
29. Mr Kowalski made a further submission that a document in his Defence Department Medical File records that when he enlisted, he was classified “FE”, a designation which indicates that he was fit for service everywhere, but when he was discharged, he was classified “HO”, meaning fit for home duties only. He submitted that this change was evidence that he had developed one or more incapacitating conditions, and that such condition(s) were caused by his Army service.
Consideration
30. The Commission must, of course, comply with its obligations under s 37 of the AAT Act, which include lodging and serving the documents required by that section. Those documents should include relevant evidence and documents submitted to the Commission in accordance with s 17(3) of the VE Act, and will include relevant documents under the control of the Department of Veterans’ Affairs, as well as evidence or documents obtained by the Department in the course of the investigation of the claim which it is required to undertake by s 17(1).
31. However, except to this extent, it remained necessary for Mr Kowalski to adduce evidence or documents in support of his claim. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell (supra) at 425. Nevertheless, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 358. This proposition was clearly explained by SM Todd in Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18], as follows:
“I think that this is an instance in which, while no general responsibility of proof rests upon an applicant in an application to the Tribunal for review … yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.”
32. There is no basis for Mr Kowalski’s contentions that the Commission did not comply with its obligations under s 33(1AA) of the AAT Act or as a model litigant, or for the frequent critical and abusive comments he made during the hearing about the conduct of the Commission and its representatives.
33. In Benjamin (supra), Moore, Emmett and Allsop JJ explained what they meant by proceedings in the tribunal being “inquisitorial”. Their Honours said at [47]:
“An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant …”.
34. In Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788 President Garry Downes J and Deputy President Groom said at [18] that the reference to “inquisitorial” contained a “distinctly pejorative connotation”, and was best avoided. They then drew attention to the characteristics of this tribunal which indicate that the tribunal is based on a judicial model, and added, at [22], that the “characteristics of review in the tribunal parallel litigation in courts”.
35. In Hill v Repatriation Commission (2005) 85 ALD 1 Wilcox, French and Weinberg JJ said at [102] (omitting citations):
“The AAT was under no duty to make further enquiries, or to obtain further material in relation to the appellant’s claim. It would be unduly onerous, and unfair, to impose such a task upon it. There is nothing in the VE Act, or in any of the authorities to which our attention was drawn, which supports the existence of any such duty.”
Similarly, Professor Dennis Pearce says in his text on the Administrative Appeals Tribunal, at [7.67]:
“The AAT will reach its decision having regard to what the parties present unless the applicant has failed to call readily available evidence that the AAT sees as essential to its conclusion.
When regard is paid to the AAT’s resources, this approach is hardly surprising. It has simply not been funded to the extent that pursuit by it of an inquisitorial role is possible. It does not have investigators who can search for evidence nor persons who can perform a counsel assisting role. This is not to say that the AAT should simply sit back and act only on what the parties choose to present. Its task is to reach the right decision on the facts, not just rule on what the parties invite it to pronounce upon. But its capacity to influence the manner in which a case is presented is markedly limited.”
I find this a helpful analysis of the position of this tribunal and the approach it should adopt, bearing in mind also that under s 2A of the AAT Act, the tribunal is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
36. In the present matter, Mr Kowalski has articulated his claim on a large number of alternative or cumulative bases, some of which seem to me to be misconceived or to have little support from the evidence before me. I have, however, been mindful that Mr Kowalski is unrepresented. I have endeavoured to elicit relevant information from him, by asking him questions about a number of matters that might be relevant to his claims. Further, it seemed to me following the conclusion of the hearing that Mr Kowalski’s weight at certain periods in the past might be relevant to certain of his claims. Mr Kowalski said that the GP who had treated him after his discharge from the Army, a Dr Pearlman, is no longer in practice, and that he had been unable to obtain a copy of his notes. I was also told that neither party had endeavoured to obtain records from the GP who had treated Mr Kowalski later, from the early 1980’s until 1998. I thought that this was a specific issue that could be investigated simply and expeditiously. I accordingly arranged for a summons to be issued to the GP concerned, a Dr Hughes, for the production of his notes concerning Mr Kowalski. However, Dr Hughes advised the tribunal that he no longer has such records. Inquiries were then made of Mr Kowalski’s current GP, Dr Cheung, in case Dr Hughes had sent his records on to her, but she also advised that she too does not have the records.
37. To the extent referred to above I have initiated further inquiries, and I have not limited my consideration to the “case” articulated by Mr Kowalski. However, I make it clear that in my view it is only in limited circumstances that this tribunal should undertake further inquiries for itself.
38. For the sake of completeness, I add that I have not overlooked the approach that is required by s 119(1) of the VE Act to be taken in matters of this kind where this tribunal is standing in the shoes of the Commission. However, that section does not provide either party with an “easy route” to a favourable decision, or to disregard the relevant statutory criteria: see the comments of Mansfield J in Fenner v Repatriation Commission (2005) 218 ALR 122, at [23], and the authorities to which his Honour there refers.
39. The issues to be determined in claims for disability pension for injuries or diseases relating to defence service were referred to in Somerset v Repatriation Commission [2005] FCA 1399. In that case the Federal Court dismissed an appeal from a decision of this tribunal relating to a claim by the widow of a veteran for an incapacity pension for non-operational war service. In the course of his decision Greenwood J analysed the provisions of the VE Act to which I have referred above that deal with the issue of whether there is a connection between a veteran’s disability and the circumstances of his or her service. His Honour recounted at [28] that the tribunal had determined that where there is a SoP, the tribunal must:
“… first determine whether to its reasonable satisfaction the material put before it raises a connection between the (applicant’s) disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with his service.”
He decided that the tribunal’s approach was legally correct.
40. Under s 120B(3) of the VE Act, the tribunal is to be reasonably satisfied that the asserted disease was defence caused only if both of the statutory conditions referred to by Greenwood J apply. I consider that it does not matter which of the two conditions is considered first, and if one of the conditions is not met, then it is not necessary to consider the other condition.
41. Section 120B(3) refers to material raising a “connection” between the asserted condition and the relevant service. In Roncevich v Repatriation Commission (2005) 222 CLR 115 the High Court of Australia considered a claim by a veteran for an injury suffered during his eligible defence service, and decided that the question to be determined was whether the injury arose out of or was attributable to the veteran’s defence service, that being the question posed by s 70(5) of the VE Act. The court pointed out that the connection must be a causal and not merely a temporal one. In their joint judgment, McHugh, Gummow, Callinan and Heydon JJ said, at [27]:
“The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a casual connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
42. I will now consider the material before me in relation to each of the claimed conditions. As mentioned above, they are all the subject of SoPs. I must apply the SoP in force at the time of my decision, but if that SoP does not support Mr Kowalski’s contentions that the relevant condition is connected with his Army service, then he is entitled to rely on any earlier SoP in force at the time of the Commission’s decision: Repatriation Commission v Gorton (2001) 110 FCR 321. In circumstances where it is asserted that there is a chain of two or more diseases linking the claimed disease with service and one or more of those diseases is a disease in respect of which there is a SoP, then the factors in each such SoP apply in accordance with the terms of that SoP. This follows from the requirements of s 120B (3)(b) of the VE Act to the effect that the contention that a disease is, on the balance of probabilities, connected with relevant service must be upheld by a SoP determined by the RMA; that section has been interpreted to extend to more than one SoP where there is a chain of diseases that are the subject of SoPs: see McKenna v Repatriation Commission (1999) 86 FCR 144, at [25].
Was the duodenal ulcer connected with defence service?
43. In order to determine the chain of causation on which Mr Kowalski relies, and the applicability of certain factors in certain of the SoPs on which he relies, it is convenient first to determine whether his duodenal ulcer arose out of or was attributable to his eligible defence service, or would not have occurred but for that service.
44. Mr Kowalski pointed out that claims for workers’ compensation that he made during and after his defence service were accepted, but that is not of course determinative of his rights under the VE Act. It appears that the claims were accepted on the basis of opinions provided at the relevant time by a Dr Hugh Gilmore, a physician. In a report dated 26 February 1974, Dr Gilmore advised that in his opinion, Mr Kowalski’s duodenal ulcer had arisen as a result of the stress in his employment. He further reported that the effects of the ulcer were of a temporary nature and that it seemed that at the time of discharge in October 1973 he was symptom free and that healing could reasonably be assumed at that time. In a later report dated 20 October 1976 Dr Gilmore reiterated that the stress of employment with the Army contributed to the duodenal ulcer and that this might recur from time to time, requiring continuing treatment with ant-acids and other medications. He said that since he had seen Mr Kowalski in February 1974, Mr Kowalski had had a recurrence of ulcer pain “usually quite quickly relieved by standard ulcer treatment” (exhibit A13). Dr Gilmore said that in all probability Mr Kowalski would continue to have a recurrence of symptoms in the indefinite future, and would need regular medical supervision and supplies of medication to control the problem, and prevent further complications.
45. Dr Donald Reid, a gastroenterologist, expressly disagreed with Dr Gilmore’s opinion to the effect that stress induced the duodenal ulcer. According to an extract from a report dated 17 March 2008 (exhibit A25), Dr Reid reported:
“In 1974, the cause of duodenal ulcer was unknown. One of the theories of causation was that stress caused a duodenal ulcer. It was always debatable, even at that time, and I did not myself accept that theory in 1974. I do not accept it now. In the 32 years since then, it has become clear that duodenal ulcer is principally due to either the germ helicobacter pylori in the stomach, or to the use of anti-inflammatory tablets. The current view is that stress is not a significant causative factor in duodenal ulcer.” (exhibit A25, page 8)
46. In a report dated 16 February 2005, a physician, Dr Hetzel, after referring to Dr Gilmore’s opinion as to the relevance of work stresses in the defence force, said that the “theories of stress causing duodenal ulcer have largely been discounted,” and that in his opinion, the duodenal ulcer was “unlikely to be directly due to his military employment” and that “it seems likely that Mr Kowalski would have suffered from the condition regardless of his military employment” (exhibit R1, T 50, at page 339).
47. Two doctors gave evidence before me. Mr Kowalski called a psychiatrist, Dr Thompkins, who has treated him since 2003, and the respondent called Dr Spedding, a clinical epidemiologist. These two doctors also expressed differing views as to the cause of Mr Kowalski’s duodenal ulcer. Of the five doctors to whom I have referred in the context of the relevance of stress, I prefer the evidence of Dr Reid and Dr Hetzel, having regard to their expertise and references to the current state of medical knowledge as to the cause of duodenal ulcers.
48. However, neither Dr Reid nor Dr Hetzel gave evidence, and so their views as to the relevance of stress to the causation of the ulcer were not explored or tested in cross-examination. In those circumstances, it is difficult to arrive at any finding on that issue, but I think it unnecessary to do so in view of my analysis of the SoP concerning duodenal ulcer, and my conclusion on other aspects of Mr Kowalski’s claim, to which I will refer below.
49. Mr Kowalski also contended that he was fit when he enlisted in the Army, but was exposed to the Helicobacter pylori bacteria in his training at Puckapunyal due to communal showering and eating with utensils that had not been properly cleaned, and that the subsequent stress from overwork then caused increased gastric secretion which activated the infection and resulted in the development of his ulcer. He relies on a report of Dr Hetzel dated 22 July 2008 (exhibit A33), which confirms that he previously had that infection but that it had been eradicated many years after his discharge from the Army.
50. Mr Kowalski also referred to findings of fact made in Re Cunningham and Repatriation Commission [2007] AATA 1790 in support of his contention. However, findings of fact made in other proceedings in this tribunal do not constitute evidence in the within proceedings.
51. There is no medical evidence before me to support Mr Kowalski’s contentions as to the cause of his being infected with Helicobacter pylori, or as to how it is transmitted. In his report dated 16 February 2008 (exhibit R1, T50, page 338) Dr Hetzel said that:
“In most individuals Helicobacter pylori is contracted before the age of 5 years, usually from parents or siblings or other individuals who are in close physical contact with the patient in childhood.”
He said further:
“I am not aware of any evidence that members of the military are at any greater risk of suffering from Helicobacter pylori or duodenal ulcer than a civilian population of similar age, sex, social class or country of birth, all factors which may of course influence the presence of H.pylori and the risk of ulcer disease.”
He concluded that in his opinion it seemed likely that Mr Kowalski would have suffered from the condition regardless of his military employment.
52. I am not satisfied on the evidence before me that Mr Kowalski was infected with the bacteria during his Army service. In any event, the matters asserted by Mr Kowalski to have led to his being infected with Helicobacter pylori occurred during his training at Puckapunyal, and this preceded his eligible defence service.
53. Section 120B(3)(b) requires the Commission (and this tribunal standing in its shoes),“in applying subsection 120(4) to determine a claim”, to give consideration to whether there is a SoP that upholds the contended connection with service. The introductory words I have quoted, and s 120(4) itself, are of general application, and I think apply to determining whether the duodenal ulcer was, as Mr Kowalski contends, a link in the causation of the conditions for which he is claiming a disability pension. The Explanatory Memorandum in respect of the amendments to the VE Act that provided for the RMA and its role in making SoPs makes it clear that the RMA, and not administrative tribunals, is to be the forum for the resolution of technical medical-scientific issues of causation, and this was to ensure that there would be consistency on such issues at all levels of decision-making. The Full Federal Court in McKenna (supra) recognised and gave effect to the legislative intent in a case where (as in the present matter) the medical condition relied upon as the causative link was not itself the subject of the claim for pension under consideration. In accordance with s 120B(3) and the approach in McKenna, I must therefore consider whether Mr Kowalski’s contention regarding his duodenal ulcer is upheld by the SoP in respect of that condition, namely Instrument No. 58 of 2006 concerning Gastric Ulcer and Duodenal Ulcer.
54. The first relevant factor in the SoP is factor 6(a), namely having Helicobacter pylori infection of the stomach or duodenum at the time of the clinical onset of duodenal ulcer. There is no doubt that the clinical onset of the ulcer occurred during Mr Kowalski’s eligible defence service. However, for the reasons to which I have referred above, I am not satisfied that the infection was relevantly connected with the circumstances of his service.
55. The only other factor on which Mr Kowalski relies is factor 6(m), namely inability to obtain appropriate clinical management for duodenal ulcer. I am not satisfied on the evidence before me that this factor upholds Mr Kowalski’s contention regarding the connection of the ulcer with his service. In the light of current knowledge, the appropriate clinical management would have been to have eradicated the Helicobacter pylori infection, but the involvement of the Helicobacter pylori infection had not been discovered in 1973. Mr Kowalski was treated with ant-acid medication and Librax, and that appears to have been accepted at the time as the appropriate form of treatment.
56. Mr Kowalski also contended that his having been issued with a sufficient quantity of Librax tablets to last until 1975 constituted inappropriate clinical management. However, the issue of what is appropriate clinical management is to be determined according to the state of medical knowledge at the time of service, and not according to contemporary standards: Repatriation Commission v Wellington (1999) 57 ALD 507. It is clear that in 1973 Mr Kowalski had been given treatment that was thought to be appropriate according to the then state of knowledge of the treatment of ulcers: see the reports of Dr Gilmore of 26 February 1974, page 2, and 20 October 1976, page 2, which are exhibited as KK2 to the affidavit of Mr Kowalski sworn on 9 September 2005, being exhibit A13. In the latter report Dr Gilmore makes no criticism of the fact that Mr Kowalski had been given supplies of “standard ulcer treatment” at the time of his discharge from the Army. I accept Dr Spedding’s evidence that Librax could have been discontinued, and that any adverse effect of so doing (which, it appears, would have been minor) would not have been expected to have lasted more than one week after ceasing medication (exhibit R6, page 2).
57. The other aspect of his treatment was that he was advised to go on a high fat diet, but there is no evidence that this was inappropriate advice judged by the state of knowledge or medical practice then adopted. On the contrary, according to Dr Thompkins, such advice was the practice in the 1970’s, although it is not the present practice (transcript, page 275, line 10).
58. Mr Kowalski also suggested that the Army doctor should have referred him to a psychiatrist or a psychologist to treat him for the stress he was under. However, for reasons to which I will refer below, I find that the clinical onset of anxiety disorder did not occur until in or about August 1991; and, in any event, it seems likely that there was no need for any such referral at the time of his service, since one of the effects of the Librax medication with which he was treated was to relieve stress.
59. For the above reasons factor 6(m) does not, on the evidence before me, support Mr Kowalski’s contention. In summary, the SoP does not uphold the contention that the ulcer was, on the balance of probabilities, connected with Mr Kowalski’s service, and I am not satisfied that his duodenal ulcer arose out of or was attributable to his eligible defence service, or that it would not have occurred but for that service.
Claim for hypertension
60. I referred above to Mr Kowalski’s contention as to the connection between hypertension and his Army service (which must be confined to his eligible defence service, being his service from 7 December 1972 until his discharge on 19 October 1973). I find it unnecessary to decide whether I am reasonably satisfied that the material before me raises the connection required by the VE Act in view of the conclusion I have reached regarding the SoP concerning hypertension.
61. Clause 4 of the SoP provides relevantly that at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person serving.
62. Factor 5(a), refers to “being obese at the time of the clinical onset of hypertension.” In paragraph 15 of his written reply to the Commission’s Statement of Facts, Issues and Contentions, Mr Kowalski asserts that the Commission was “fully aware” that he was not obese at the time of the clinical onset of his hypertension. Nevertheless, I regard factor 5(a) as potentially relevant.
63. Clause 2(b) defines “hypertension” for the purposes of the SoP relevantly to mean:
“… permanently elevated blood pressure, evidenced by:
(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii)the regular administration of antihypertensive therapy to reduce blood pressure.”
64. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred with approval to the analysis of this tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, where Senior Member Dwyer concluded (at 670) that:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was subsequently specifically endorsed in Repatriation Commission v Cornelius [2002] FCA 750. In Lees, Heerey, Moore and Kiefel JJ, also said, at [16]:
“The purpose of the definition [of the injury or disease] is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from [the injury or disease]”.
65. The expression “being obese” is defined in clause 8 to mean:
“… an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres.”
There is no SoP in respect of obesity. There is a SoP in respect of morbid obesity, being Instrument No. 32 of 2003 (exhibit R10), but it was not suggested that this SoP is relevant to Mr Kowalski’s condition, or that this SoP upholds the asserted connection with service.
66. Mr Kowalski said that he is five feet ten inches tall (transcript, page 179, line 20). This equates to 1.778 metres. On that basis, his BMI would exceed 30 when he weighs 95 kilograms or more to the nearest kilogram.
67. The advocate for the Commission, Mr Crowe, helpfully extracted five records of or references to blood pressure readings taken on three separate occasions during Mr Kowalski’s Army service. There is one reference (T7, at page 175 of exhibit R1) to a blood pressure reading equivalent to the minimum figures referred to in the definition of “hypertension”. That reading was 140/90, and is contained in an in-patient case sheet apparently prepared in March 1973 when Mr Kowalski underwent a tonsillectomy. Records of his examination on 6 March 1972, being prior to the commencement of his defence service, show that he did not have high blood pressure, and that his blood pressure then was 120/80 (exhibit R1, T7, pages 150, 151, 191 and 192). Records of a medical examination on 19 September 1973 also show that he did not have high blood pressure, and that his blood pressure then was 135/85 (exhibit R1, T7, pages 127, 128, 137 and 138).
68. There appear to be no further records of blood pressure tests during Mr Kowalski’s Army service. The one isolated reading of 140/90 in March 1973, to which I referred in the preceding paragraph, does not constitute “permanently” elevated blood pressure within the meaning of clause 2(b) of the SoP. I am not satisfied on the material before me that the clinical onset of hypertension occurred during Mr Kowalski’s defence service.
69. As I said above, Mr Kowalski was unable to obtain the notes of his consultations with the GP who treated him after his discharge from the Army. However, there are records available of Mr Kowalski’s blood pressure from and after 25 February 1982, when according to a report dated 20 August 1998 from his then GP, Dr Hughes, his blood pressure was 140/90 (exhibit R1, T12, page 213). Dr Hughes’ report records one further reading in 1982, only one reading in 1983 and three further readings in 1984 up to and including a reading on 24 August 1984, when Dr Hughes diagnosed hypertension, and prescribed one Tenormin tablet per day. Each of the above readings indicated hypertension. Dr Hughes’ report also records blood pressure readings on various dates until July 1998.
70. I find from the above evidence that the date of clinical onset of hypertension was 24 August 1984, being the date of diagnosis referred to in Dr Hughes’ report. Under factor 5(a), I must consider whether Mr Kowalski was obese at that time.
71. There is no evidence before me as to Mr Kowalski’s weight as at 24 August 1984. Mr Kowalski gave evidence that he thought he was overweight when he enlisted (transcript, page 101, line 45). A question he put to Dr Spedding (a witness called by the Commission) suggests that he thought that his weight increased from 72 kilograms in 1972 to 78 – 79 kilograms on discharge in 1973. He gave a similar history to Dr Hetzel, according to that doctor’s report of 27 August 2008 (exhibit A38). Mr Kowalski also said that his weight increased after his discharge from the Army as a result of his high fat diet, and that he used to have trouble with his weight in the 1970’s; but then he lost a lot of weight in the 1990’s, and got down to 70 kilograms because of stress (transcript, page 142, line 11).
72. Doctor Cheung provides helpful information in a form dated 27 August 2007 (exhibit R1, T48, page 333). This form records that Mr Kowalski first became a patient of her practice on 3 January 1995, and provides details of when Mr Kowalski’s BMI went into and out of the ranges 30–35 and 35–40. The first date referred to is 19 November 1998, when his BMI is stated to be 30.4, and the cause of obesity is said to be “poor diet, high in fat and lack of exercise”. The dates subsequently referred to by Dr Cheung conclude on 23 August 2007, when his weight is shown as 102 kg, and his BMI 32.2.
73. In a report to Dr Cheung dated 11 July 2003, Dr Thompkins refers to a “full hand of neurovegetative changes including weight gain (24 kg since 1995), combined with decreased appetite” (exhibit R1, T42, at page 313). Other doctors who have provided reports refer to Mr Kowalski’s weight at different times from and after 1998. For example, Dr Hetzel reports a weight of 91 kilograms in 1998, 91.2 kilograms in January 2000, 100 kilograms when he first saw Mr Kowalski in 2002, 94 kilograms in July 2002 and 111 kilograms in August 2008 (see exhibit R1, T50, page 338, and exhibit A38, page 1). Dr Reid recorded a weight of 106 kilograms as at 17 March 2006 (see exhibit A36, page 4).
74. However, Mr Kowalski was unable to say what his weight was at any particular point in time prior to these more recent records, and in a form entitled “Claimant Report – Obesity” (exhibit R1, T40, page 307) Mr Kowalski says:
“2.I do not remember my weight from 1972 onwards, however in 2006 my weight was at a peak of about 108 kgs.”
Further, the references to his weight having increased during his Army service appear to be incorrect. Prior to his enlistment, on 6 March 1972, his weight is recorded as 170 pounds, which equates to 77.3 kilograms (exhibit R1, T7, page 151). On 19 September 1973, shortly before his discharge, his weight is recorded at 79 kilograms.
75. As mentioned above, because of the potential relevance of weight to the claims both for hypertension and ischaemic heart disease, and because neither party had made any inquiries of Dr Hughes to ascertain whether he had any record of Mr Kowalski’s weight during the period for which Dr Hughes was treating him, I took steps to endeavour to obtain Dr Hughes’ records, to see whether he had recorded Mr Kowalski’s weight in the period prior to the clinical onset of hypertension. However, those attempts proved futile.
76. After considering all of the evidence before me, I am not satisfied that Mr Kowalski was obese at the time of the clinical onset of hypertension.
77. Even if Mr Kowalski was obese at that time, it is not clear that his obesity was “related to” or “connected with the circumstances” of his service within the meaning of clause 4 of the SoP or the preamble to clause 5. In the present matter, those expressions should, I think, be interpreted as referring to the relationship to or connection with service that would confer an entitlement to pension under s 70 of the VE Act, that is, so as to refer to a requirement that the hypertension arose out of or was attributable to Mr Kowalski’s defence service (see Roncevich, supra), or would not have occurred but for that service. It seems likely that his weight would have increased to the same extent whether the dietary advice came from the Army doctor or some civilian doctor whom he would presumably have consulted if he were not in the Army when his ulcer occurred. It appears from the evidence before me that being put on a high fat diet (as well as being provided with ant-acid tablets and anti-cholinergic medication) was the conventional method of treating duodenal ulcers at the time of Mr Kowalski’s service. Accordingly, I think it probable that he would have been given that dietary advice whether he was in the Army or not at the time, and whether he had seen an Army doctor (as in fact occurred) or a civilian doctor, and there is no reason to think that the increase in his weight would have been any different; and as I have said above, I am not satisfied that his duodenal ulcer arose out of or was connected with his eligible defence service. However, as I am not satisfied that he was obese at the relevant time, it is not necessary to express a concluded view about the possible connection of obesity with service.
78. Mr Kowalski also relied on factor 5(b) in the SoP in respect of hypertension. In its form as amended when the claim was lodged, this read as follows:
“(b) consuming an average of at least 300 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than average of 300 grams per week of alcohol; or …”.
This factor was later further amended by Instrument No. 12 of 2008, but in a way that is less beneficial to Mr Kowalski, and in accordance with Gorton (supra) I will not apply the later amendment.
79. For the reasons referred to above, I find that the clinical onset of hypertension occurred on 24 August 1984. There is no evidence that Mr Kowalski was consuming an average of at least 300 grams per week of alcohol at that time, or that that consumption could not be decreased to less than that amount.
80. The last factor relied upon by Mr Kowalski was factor 5(k), which reads:
“(k) undergoing treatment with a drug for a condition for which the drug cannot be ceased or substituted and which drug has caused an increase in blood pressure, at the time of clinical onset of hypertension; or …”.
81. Mr Kowalski relied on having been prescribed Librax for his duodenal ulcer. I am not satisfied, for the reasons referred to above, that his duodenal ulcer was not connected with service in the relevant sense. In any event, on my above findings, the time of clinical onset of hypertension was 24 August 1984, and by then Librax had been taken off the market. The evidence before me does not meet the requirements of factor 5(k).
82. Other factors in the SoP refer to the clinical worsening of hypertension, but there is no evidence that Mr Kowalski had a pre-existing condition that was worsened.
Depressive disorder
83. Mr Kowalski relied in support of his claim for major depression on a particular document included in his medical service records. A copy of this document appears in exhibit R1 at page 136, as part of T7. It is a form of notification of medical assessment dated 25 September 1973, and records a decision of the Medical Board made on 19 September 1973. An original copy of the document is included in the original medical service record file (exhibit R3). This original copy is an A5 size document. The file also includes an A4 size photocopy of the document, and the words “MAJOR DEPRESSION” have been written in black biro on this A4 copy. Mr Kowalski contends that these words must have been written by a doctor, and that the doctor who wrote the words must have accepted that Mr Kowalski was suffering from major depression. He also contends that in exercise of its inquisitorial powers, this tribunal should make further inquiries and ascertain who wrote the words in question, and when.
84. In his evidence, Dr Thompkins said that that expression was not used by the medical profession until the late 1980’s, so that the words would have been written in “in the late 1980’s/early 1990’s or even later” (transcript, page 270, line 39). It follows that the relevant words would not have been written on the A4 copy, whether by a doctor or any other person, during Mr Kowalski’s service with the Army, and are not of probative value. I think it unnecessary for this tribunal to make any further inquiries as to when the relevant words were written on the form, or by whom, or to direct the Commission to make any such further inquiries.
85. I now turn to the question of whether the relevant SoPs in respect of depressive disorder uphold Mr Kowalski’s contention that his major depressive disorder is, on the balance of probabilities, connected with his eligible defence service.
86. He relies first on factors 6(a) and 6(b) of Instrument No. 28 of 2008, being the SoP currently in force concerning depressive disorder. These factors refer to experiencing “a category 1A stressor” or “a category 1B stressor” within two years before the clinical onset of depressive disorder.
87. The expression “depressive disorder” is defined in clause 3(b) as follows:
“(b) For the purposes of this Statement of Principles, “depressive disorder” means a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. This definition is limited to major depressive episode, recurrent major depressive disorder, dysthymic disorder, depressive disorder not otherwise specified, substance-induced mood disorder with depressive features, or mood disorder due to a general medical condition with depressive features, or with major depressive-like episodes …”.
The definition continues by defining the episode or disorders referred to, and the relevant definitions include reference to the applicable diagnostic criteria.
88. Mr Kowalski gave evidence as to his concerns and unhappiness from the time when he was first called up in 1967 up to the time of completing his defence service in 1973, but I am not satisfied that he had symptoms prior to or during his service that would meet the relevant diagnostic criteria referred to in clause 3(b) of the SoP. Further, there is no evidence before me that Mr Kowalski was diagnosed with any depressive disorder prior to or during his defence service. Mr Kowalski gave evidence that he had been referred to a psychologist by his former GP, Dr Hughes, in the early 1980’s, but he had been unable to trace this psychologist, and I have not been provided with a report from him. Mr Kowalski said that he had had a few sessions with the psychologist who attempted to “calm him down”, but this did not help and he was then put on tablets to reduce his blood pressure (see transcript, page 159, lines 10 – 30). I am not satisfied from this limited information that the clinical onset of a depressive disorder, or of an anxiety disorder, occurred at or about the time when these events occurred. It appears that his depressive disorder was diagnosed in 1991, when he was referred to Dr Jagermann.
89. I referred above to the meaning of “clinical onset”. Mr Kowalski relied on his stress at work after 7 December 1972, and on a medical report dated 20 August 1976 from Dr Gilmore, in which that doctor said that there were no restrictions on his capacity for employment, other than “aspects of employment which would … by its very nature impose unreasonable stress on him” (see the copy report exhibited to the affidavit of Mr Kowalski sworn on 17 May 2005, being exhibit A11). Mr Kowalski also said in evidence that the stress that he had experienced with his work in the Army continued after his discharge, because his work at Chrysler/Mitsubishi continued to be intense and stressful, and he was concerned about being retrenched due to staff cuts.
90. These matters may be relevant to Mr Kowalski’s argument that there is a causal link between defence service and his mental breakdown in 1991. However, they do not constitute evidence of symptoms from which a diagnosis of major depression could be made.
91. In a report dated 8 August 2008, Dr Thompkins expressed the opinion, on the basis that he accepted Mr Kowalski’s history, that the events Mr Kowalski described that occurred during his eligible defence service within Australia “constitute at the least a substantial cause of his psychiatric conditions of depressive disorder and anxiety disorder” (exhibit R1, T43, at page 323). In a report of 11 July 2003, being soon after he commenced treating Mr Kowalski, Dr Thompkins said that Mr Kowalski appeared to have been chronically depressed ever since 1991 (see exhibit R1, T42, at page 313). In later reports Dr Thompkins sought to displace any suggestion that he was then inferring that Mr Kowalski had not suffered from the psychiatric conditions prior to 1991. For example, in a report dated 14 April 2005 (exhibit R1, T14, page 218), Dr Thompkins says:
“To the best of my knowledge, it is the case that ever since your time in the Army you have never been free of psychiatric symptoms. This appears to be amply borne out by the transcript of Doctor Jagermann’s evidence in the hearing dated 6th May 1993.”
92. At my request, Dr Thompkins provided a copy of the transcript to which he there referred, and this copy is exhibit A35. I note that the transcript he provided is incomplete. However, it does not in my view support Dr Thompkins’ opinion. On the contrary, the transcript indicates that in Dr Jagermann’s opinion, the dysthaemia, which led him to prescribe medication to relieve depression and anxiety which he diagnosed after seeing Mr Kowalski in August 1991, was caused by events connected with Mr Kowalski’s employment at Mitsubishi Motors. The same report of Dr Thompkins of 14 April 2005 was also based on Mr Kowalski’s understanding of “judicial determinations … of an absence of psychiatric decompensation attributable to (his) time with Mitsubishi”.
93. Dr Thompkins does not, however, explore that understanding, or refer to having obtained a history from Mr Kowalski that excluded other possible causes of his condition. In my assessment, Dr Thompkins’ opinion was affected by his relationship with Mr Kowalski as his treating psychiatrist, and the later reports to which I have referred above can be interpreted as attempts to appease Mr Kowalski, or to assist him to agitate his cause. I accordingly have concerns about the objectivity of Dr Thompkins’ assessment, and I prefer the contemporaneous opinion expressed by Dr Jagermann at the time of Mr Kowalski’s mental breakdown in 1991. Dr Jagermann’s views are also expressed in a report dated 23 August 1991 to Mr Kowalski’s then GP (see exhibit R1, T16, page 223).
94. In any event, the above matters relate to the question of the causal connection between Mr Kowalski’s service and his depression. Apart from Mr Kowalski’s reference to his having been referred to a psychologist, which I have dealt with above, there is no evidence to suggest that Mr Kowalski was treated for depression prior to 1991, or that Mr Kowalski had symptoms that would have led to a diagnosis of depression prior to 1991. Indeed, in his evidence, Dr Thompkins acknowledges that the “caseness”, or symptoms to satisfy a diagnosis, of Mr Kowalski’s depression seem to have been noticed in the late 1980’s or early 1990’s (transcript, pages 227, line 7 and 280, line 12). I find that the clinical onset of Mr Kowalski’s depression occurred in or about August 1991.
95. The expressions “a category 1A stressor” and “a category 1B stressor” are defined in clause 9, and refer to certain specific events which are, as the definitions say, “severe traumatic events”. Mr Kowalski relies in support of factors 6(a) and 6(b) on an event which occurred when he was stationed at Amberley. He said that his wife had informed him by telephone that she had been sent home from work because she was sick. He then went home to see her, having obtained prior permission to do so from two superiors, but another officer saw him driving through Brisbane and was not aware that he was doing so with prior permission. When Mr Kowalski returned to the base he was escorted by two soldiers holding machine guns to report before a Major to hear a charge of being AWOL. He said that he was shaking and experienced “intense fear, helplessness and horror”. When he was asked in cross-examination to explain these feelings, he said that he had seen people charged at Puckapunyal, and they had been confined for seven days as a penalty, and he was concerned that that would happen to him. He gave evidence further that it was most unusual to see arms at the Amberley Air Force Base, and he felt helpless. He said that later, on 16 August 1991, when he was accused of defrauding his employer when he had attended a WorkCover review panel meeting, he had a “flashback” to this event, because he had also done nothing wrong at the time of the 1991 incident. He relies on an affidavit (exhibit R1, pages 230 – 231, T18) in which he further describes the event.
96. I find that this event does not meet the requirements of the definition of either a category 1A stressor or a category 1B stressor for the purposes of factors 6(a) or 6(b). Further, I do not accept Mr Kowalski’s evidence that he experienced intense fear, helplessness or horror at the time, or that he found the event traumatic. I think it likely that he derived this description of the event, as well as his use of the expression “flashback”, from his admitted practice of reading reported cases on the internet, and that (whether consciously or unconsciously, due to his perception of the correctness of his cause) he moulded his evidence as to the description of the event in an endeavour to assist his cause.
97. Mr Kowalski does not appear to have relied on factor 6(h), namely experiencing “a category 2 stressor within the six months before the clinical onset of depressive disorder”. This expression is defined in clause 9 to mean:
“… one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry”.
One of the events listed reads relevantly:
“… having concerns in the work … environment including: on-going disharmony with fellow work … colleagues, … perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace … environment.”
The difficulties which Mr Kowalski described in his work as a draughtsman with the Army in 1973 are arguably consistent with that event in the definition of “a category 2 stressor”.
98. However, I have found that the clinical onset of Mr Kowalski’s depressive disorder occurred in or about August 1991, and having regard to the opinion of his then treating psychiatrist, Dr Jagermann, it is likely that they were caused by issues at Mitsubishi Motors, and not the stresses of his Army work many years earlier.
99. Mr Kowalski further relies on factor 6(a)(v), which is having a “clinically significant psychiatric condition” within one year before the clinical onset of depressive disorder. This expression is defined to mean:
“… any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner”.
Reference to DSM-IV-TR is to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, (Fourth Edition, Text Revision) (see clause 9, definition of “DSM-IV-TR”).
100. Mr Kowalski claims that he was suffering from anxiety as a result of the concerns he described arising from being called up, and his excessive work load. However, for reasons to which I will refer below, I am not satisfied that Mr Kowalski was suffering from an anxiety disorder prior to the clinical onset of his depressive disorder, or if he was, that either of the two relevant SoPs concerning anxiety disorder uphold his contention that that disorder was, on the balance of probabilities, connected with his eligible defence service.
101. Mr Kowalski also relies on factor 6(a)(viii), which is having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder. “Chronic pain” is defined in clause 9 to mean:
“… continuous or almost continuous pain, which may or not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”.
102. Mr Kowalski gave evidence of his duodenal ulcer having caused pain during his defence service, but I am not satisfied for the reasons referred to above that his duodenal ulcer was connected with his defence service in the relevant sense. In any event, there is no evidence that Mr Kowalski had chronic pain of at least six months duration prior to August 1991, being on my above finding the approximate date of the clinical onset of his major depression, or if he did, that any such chronic pain was connected with his defence service. Factor 6(h) does not support the contended connection with service.
103. Finally, Mr Kowalski relies on factor 6(a)(ix), which is “having a sleep disorder for the one year before the clinical onset of depressive disorder”. The expression “a sleep disorder” is defined in clause 9 to mean:
“… a dyssomnia, a sleep disorder related to another mental disorder other than depressive disorder, a sleep disorder due to a general medical condition or substance-induced sleep disorder, as defined in DSM-IV-TR”.
Mr Kowalski refers to having difficulty sleeping during his eligible defence service, but there is no evidence before me that he had a sleep disorder within the meaning of that definition prior to the clinical onset of his major depression in or about August 1991. If he did, it appears from his evidence that it was related to his duodenal ulcer, but I have found above that his ulcer was not connected with his defence service in the relevant sense.
104. Factor 6(t) refers to inability to obtain appropriate clinical management for depressive disorder, and Mr Kowalski asserted that he should have been referred to a psychologist during his Army service. However, this would only have been the case if the clinical onset occurred then. I have found that it did not. This factor does not therefore support the contended connection with service.
105. The factors in the SoP that refer to the clinical worsening of depressive disorder presuppose that there was a pre-existing depressive disorder, but there is no evidence that this was Mr Kowalski’s position either before or during his defence service.
106. Instrument No. 28 of 2008 concerning Depressive Disorder superseded Instrument No. 18 of 2007, and as explained in Gorton (supra), Mr Kowalski would be entitled to rely on that superseded SoP if it was more beneficial to him. However, this does not appear to be the case, and Mr Kowalski did not rely on that SoP.
107. I accordingly conclude that the SoPs in respect of Depressive Disorder do not uphold Mr Kowalski’s contention that his depression was, on the balance of probabilities, connected with his eligible defence service. For the reasons referred to above, and on the evidence before me, it also seems unlikely that Mr Kowalski’s depression was relevantly connected with his service, but in view of my conclusions as to the SoPs, it is not necessary for me to determine that issue.
Anxiety disorder
108. The factors potentially relevant to the SoP concerning Anxiety Disorder (Instrument No. 102 of 2007) are factors 6(a)(i), (ii), (iv), (v) and (viii), and 6(e). These factors correspond with factors 6(a)(i), (ii), (v), (vi) and (viii), and 6(t) of the SoP concerning Depressive Disorder (Instrument No. 28 of 2008), except that a period of five years is referred to in factor 6(a)(v) compared with a period of only one year in factor 6(a)(vi) of the SoP concerning Depressive Disorder. The definitions of the expressions “a category 1A stressor”, “a category 1B stressor” and “chronic pain” are the same in each SoP.
109. The expression “anxiety disorder” is defined in clause 3(b) of the SoP to mean “generalised anxiety disorder; anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified”, and the definition goes on to define each of those disorders.
110. Mr Kowalski relies on the stress caused by his defence service in support of his claim that he suffers from anxiety disorder at that time. He refers to being treated with Librax tablets in August 1973, and relies on comments made by Dr Reid in a medical report dated 20 March 2006, where he referred to the use of Librax during the 1970’s, and said:
“Librax is no longer available in Australia. Librax is a mixture of Chlordiazepoxide (anti-anxiety drug) and Clinidium Bromide (anticholinergic-spasmolytic drug). The theory was that by treating anxiety, hopefully reducing gastic (sic) acid and by reducing spasm, the combined tablet would help both anxiety and duodenal ulcer. There was never a good empirical evidence base for this. My opinion is that it was probably given to Mr Kowalski in 1973 for anxiety.
He described to me much anxiety and nervous tension before and during his Army service and his desire not to be in the Army. He says he was also over-worked in the Army and stressed, and these altogether led to anxiety. I note his assertion but cannot make any other useful comment about them.” (exhibit A36, page 8)
111. It is not clear why Dr Reid says that Librax was probably given to Mr Kowalski in 1973 for anxiety, when in the previous sentence of his above report he described the combined purpose of the two components of the medication. The Army’s doctor’s notes do not refer to a diagnosis of anxiety, but appear to record that Mr Kowalski was “under stress at work”, or “under strain at work”, depending on how the doctor’s handwriting is deciphered (see the notes of the attendance on 20 August 1973, as recorded in exhibit R7). It is clear that there was a diagnosis of a duodenal ulcer, and this was confirmed by a barium meal on 31 August 1973 (see exhibit R1, pages 128 and 136), and by the reports of Dr Gilmore of 26 February 1974 and 20 October 1976, to which I have referred above. However, there is no reference to Mr Kowalski suffering from an anxiety disorder.
112. There is, as I have said, contemporaneous evidence that Mr Kowalski was over-loaded and stressed at work, and I accept that this was the situation. However, that evidence, and the comments made by Dr Reid to which I referred above, do not constitute evidence that Mr Kowalski was exhibiting symptoms from which a clinical diagnosis of anxiety disorder could have been made prior to his mental breakdown in August 1991. Mr Kowalski described the stress he was experiencing at work, and difficulties with sleeping, but not symptoms on which a diagnosis of anxiety disorder as defined in the SoP could be made. Furthermore, the report of Dr Gilmore of 26 February 1974 indicates that at the time of his discharge in October 1973, Mr Kowalski was symptom free, and there is no reference in that report or in his subsequent report of 20 October 1976 to Mr Kowalski suffering from any condition of anxiety.
113. As mentioned above, in his report of 8 August 2007 (exhibit R1, T43, page 316), Dr Thompkins expresses the view that the events during Mr Kowalski’s eligible defence service “constitute at the least a substantial cause” of his psychiatric conditions, and he was referring to anxiety disorder (as well as depressive disorder). However, Dr Thompkins does not refer to or describe symptoms occurring during Mr Kowalski’s service that would support a diagnosis of anxiety disorder either at that time or at any other time prior to his mental breakdown in 1991. In his evidence, Dr Thompkins gave a general description of symptoms that would indicate a diagnosis of anxiety disorder (see transcript, page 278, line 1). He also suggested that Mr Kowalski’s anxiety “caseness” might pre-date that of his depression, and mentioned the possibility of an interaction between events when he was two years old at the Bonegilla migration camp and “being marched off at gun point in 1973” (a reference to the asserted stressor to which I referred in paragraph 95 above). However, Dr Thompkins added that this was “speculation” (transcript, page 280, lines 12 – 16).
114. I am not satisfied on the state of the evidence before me that the clinical onset of anxiety disorder occurred during Mr Kowalski’s service, as he contended. I referred in paragraph 88 above to Mr Kowalski’s evidence as to being referred to a psychologist, and as mentioned, I am not satisfied that the clinical onset of anxiety disorder occurred at or about the time of that referral. I find that the date of clinical onset of Mr Kowalski’s anxiety disorder occurred at or about the time of his mental breakdown in August 1991.
115. For the reasons to which I have referred above in the context of the SoP for Depressive Disorder, I find that the SoP concerning Anxiety Disorder does not uphold Mr Kowalski’s contention that his anxiety is, on the balance of probabilities, connected with his eligible defence service. It is therefore unnecessary for me to decide whether there is a relevant connection between Mr Kowalski’s anxiety disorder and his service.
116. The SoP in respect of Anxiety Disorder that was in force when Mr Kowalski lodged his claim was Instrument No. 2 of 2000. The factors in that SoP are somewhat different from the factors in the later SoP. In particular, the earlier SoP refers to a definition of “severe psychosocial stressor”. However, Mr Kowalski did not rely on this earlier SoP, and it does not uphold the contended connection of anxiety disorder with service.
117. Mr Kowalski also submitted that the decision of the Repatriation Commission was deficient in that it did not refer to the SoP in respect of anxiety disorder. However, the diagnosis on which the delegate proceeded was that of major depression with co-morbid anxiety, and it was only later when the Commission’s decision was reviewed by the VRB that the diagnosis was changed to depressive disorder and anxiety disorder. In any event, hearings in this tribunal are a hearing de novo; the tribunal’s function is to arrive at the correct or preferable decision, and not to consider the correctness or otherwise of the decision under review. This means that an applicant is entitled to seek to have the decision under review set aside on grounds that might be quite different from the grounds relied upon unsuccessfully before the original decision-maker, and the respondent is entitled to support the decision under review on a basis that is different from the grounds on which the primary decision was made.
Ischaemic Heart Disease
118. I first consider whether the SoP currently in force concerning ischaemic heart disease upholds Mr Kowalski’s contention that that disease, on the balance of probabilities, arose out of or was attributable to his eligible defence service.
119. The first relevant factor is factor 6(a). This refers to having hypertension before the clinical onset of ischaemic heart disease. The expression “ischaemic heart disease” (IHD) is defined in clause 3(b) of the SoP to mean “a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries”.
120. There is no evidence of symptoms of IHD prior to December 1997, when Mr Kowalski developed chest pain and was admitted to the Flinders Medical Centre and was found to have suffered an acute myocardial infarction (see exhibit R1, page 209, T10). I find that the clinical onset of ischaemic heart disease occurred then. As mentioned above, he was diagnosed as having hypertension on 24 August 1984, and I am satisfied from the report of Dr Hughes dated 20 August 1998 (exhibit R1, page 213, T12) that Mr Kowalski was suffering from hypertension at the time of the clinical onset of his IHD. However, for the reasons referred to above, the SoP in respect of hypertension does not uphold Mr Kowalski’s contention that hypertension was connected with his eligible defence service. As a result, his claim for IHD is not upheld by factor 6(a).
121. Mr Kowalski was diagnosed with diabetes mellitus on 30 June 2004 (exhibit R1, page 238, T19). This is a date subsequent to the clinical onset of IHD. There is no evidence before me that this factor applies.
122. The next relevant factor is factor 6(c), which refers to being obese for “at least five years within the 15 years before the clinical onset of (IHD).” The expression “being obese” is defined in clause 9 in the same terms as the definition in the SoP concerning hypertension, to which I referred in paragraph 65 above. The revoked SoP, Instrument No. 54 of 2003, is more favourable to Mr Kowalski than the current SoP, in that factor 5(c) of that SoP only required being obese for at least two years within the fifteen years before the clinical onset of IHD. Mr Kowalski can therefore rely on this SoP: Gorton (supra). I referred in some detail to the evidence before me as to Mr Kowalski’s weight at various times since he left the Army (see paragraphs 71 to 75 above). This evidence indicates that Mr Kowalski was obese at different times prior to the clinical onset of IHD, but I am not satisfied that he was obese for at least two years within the fifteen years immediately before the clinical onset of IHD.
123. In his witness statement Mr Kowalski contends that factor 6(d) applies to his claim for IHD (exhibit A21, page 12, para 4.2). This factor is having a waist to hip circumference ratio exceeding 1.0 for at least five years within the 15 years before the clinical onset of IHD. There is no evidence before me to uphold this factor.
124. The next factor raised by the material before me is factor 6(f), which refers to having dyslipidaemia before the clinical onset of IHD. Mr Kowalski contends that he developed high cholesterol as a result of being put on a high fat diet by the Army doctor in 1973. The condition “dyslipidaemia” is defined in clause 9 of the SoP as follows:
“‘dyslipidaemia’ generally means evidence of a persistently abnormal lipid profile after the accurate evaluation of serum lipids following a 12 hour overnight fast, and estimated on a minimum of two occasions as a:
(a) total serum cholesterol level greater than or equal to 5.5 mmol/L; or
(b) serum triglyceride level greater than or equal to 2.0 mmol/L; or
(c) having a high density lipoprotein cholesterol level less than 1.0 mmol/L;”
125. In support of his contention, Mr Kowalski relies on a medical report from his current GP, Dr Cheung, dated 26 August 2007. This refers to blood tests for lipid levels on various dates on and after 28 December 1997, and the readings indicate that he was suffering from dyslipidaemia after that date. It may well be that his cholesterol increased as a result of his high fat diet. However, there is no evidence that he was suffering from dyslipidaemia as defined in the SoP prior to the clinical onset of IHD, and his claim is not supported by factor 6(f).
126. Mr Kowalski also relies on factor 6(m), which refers to having “clinically significant depressive disorder” for at least five years before the clinical onset of IHD. The expression “clinically significant” is defined in clause 9 to mean “sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.”
127. For the reasons referred to above, I have found that Mr Kowalski’s depressive condition is not upheld by the SoP in respect of depressive disorder. As a result, having regard to McKenna (supra) and clause 8 of the SoP, factor 6(m) does not uphold Mr Kowalski’s contention that his depressive disorder was, on the balance of probabilities, connected with his eligible defence service.
128. Finally, Mr Kowalski referred to in his witness statement to a contention that “possibly” factor 6(o) of the SoP in respect of IHD applied. This factor refers to using a drug “belonging to the selective cyclo-oxygenase 2 inhibitor class of drugs” for a continuous period of at least for seven days before the clinical onset of IHD, and where the last dose of the drug was taken within the seven days before that clinical onset. There is no evidence before me that upholds this factor.
129. I find that neither the current SoP nor the revoked SoP concerning IHD upholds Mr Kowalski’s contention that his IHD is, on the balance of probabilities, connected with his eligible service. In view of this finding, it is unnecessary for me to consider whether the material before me raises a connection between the IHD and his eligible defence service within the meaning of s 120B(3)(a) of the VE Act.
Jurisdiction of the tribunal
130. As mentioned in paragraph 6 above, during the hearing I raised a concern as to jurisdiction, because the application for review refers to the decision of the VRB instead of the decision of the Commission. To overcome my concern I suggested that Mr Kowalski should lodge a fresh application to review the decision of the Commission. He did this, and I made an order, with the consent of the Commission, to extend the time for making the new application. I then gave directions to the effect that the existing proceedings and the new proceedings should be heard together, with the evidence in each case being treated as evidence in the other.
131. My approach is, I think, supported by R v Cawthorne; ex parte Public Service Association of SA Inc (1997) 17 SASR 321, where an issue arose as to the validity of the appointment of an Industrial Magistrate to be an Industrial Registrar for the purposes of considering an application by an association of employees for registration under industrial legislation. Bray CJ referred, at page 329, to the “venerable principle of the common law” that the acts of a de facto officer done in the apparently regular execution of his office are valid. In that case, the Magistrate had given a direction that all of the material that had been before him on an original defective hearing should be treated as material in a new hearing, and this course of action was approved. His Honour referred to provisions in the relevant legislation which gave the Magistrate wide powers to admit evidence.
132. The provisions referred to by Bray CJ are similar to s 119(1)(f) and (g) of the VE Act, and s 33 of the AAT Act. I think that a combination of those provisions support the course of action I adopted in the present matter, and the directions to which I referred in paragraph 130 above.
133. As there is no issue of jurisdiction in relation to the new application, and in view of the conclusion I have reached, it is not necessary for me to determine whether I had jurisdiction by virtue of the original application. However, on reflection, I think that the original application was sufficient. Instruments should be construed in accordance with the maxim falsa demonstratio non nocet, that is, an imperfect or inaccurate description will not vitiate an instrument. This doctrine was applied in Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353, where an error in the description of land in the instrument of transfer was held not to affect the validity of the transfer (see Gibbs J at 448 – 449). Similarly, the doctrine was applied where there was an obvious error in warrants which derived their force from statute, and where the process of issuing a warrant was described as a step in an administration process: Ousley v R (1997) 192 CLR 69, at 87.
134. I think that the application of the falsa demonstratio maxim in the present circumstances is also supported by Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, where Gaudron and Kirby JJ, after referring to a provision similar to s 119(1)(g) of the VE Act, said at, [76], that it would be an error of law for the Refugee Review Tribunal to decline jurisdiction because of some technical error in the application for review. Section 119(1)(g) requires the Commission (and this tribunal standing in its shoes) to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities.
135. The above common law maxim applies where the intention of the person who made the instrument is clear. In the present case Mr Kowalski clearly intended to invoke the jurisdiction of this tribunal because he was dissatisfied with the decision of the VRB. The error he made in referring to the wrong decision was an obvious error, and should not render his application for review ineffective.
Conclusion
136. I have carefully considered Mr Kowalski’s many contentions. His general contention based on the changed classification from FE on enlistment to HO on discharge, to which I referred in paragraph 29 above, does not meet the evidentiary burden on him to adduce evidence sufficient to establish his claim. I have concluded that the conditions for which he is claiming a disability pension were not defence caused.
Decision
137. The decision under review as varied by the decision of the Veterans’ Review Board is affirmed.
I certify that the 137 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
Lisa Wunderer AssociateDate/s of Hearing 1 and 2 July, 5 and 6 August, 28 and 29 August, and 11 September 2008
Date of Decision 9 October 2008
Applicant In person
Advocate for the Respondent Mr A Crowe
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