Kwaterski and Repatriation Commission
[2004] AATA 847
•2 August 2004
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2004] AATA 847
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/603 & S2003/604
VETERANS' APPEALS DIVISION ) Re CLEMENT KWATERSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date2 August 2004
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – Extreme Disability Adjustment – special rate – if veteran’s condition of osteoarthrosis is war-caused – operational service – reasonable hypothesis – pension properly assessed at 100 percent of general rate – reasonable satisfaction – standard of proof – decision affirmed
Veterans’ Entitlements Act 1986 ss 22, 120, 120A
Statement of Principles Instrument No 81 of 2001
ORAL REASONS FOR DECISION
2 August 2004 Senior Member WJF Purcell 1. This is an application for review of two decisions of the Repatriation Commission (the Commission). The first, of 13 August 2001, refused the veteran’s claim for generalised osteoarthrosis, pernicious anaemia and hypertension, and continued his Disability Pension at 30 percent of the general rate with effect from 14 June 2001. The second, dated 1 July 2002, accepted the veteran’s claim for chronic sinusitis, malaria, chronic bronchitis, otitis externa and post-traumatic stress disorder, and increased his Disability Pension to 100 percent of the general rate with effect from 26 January 2002. On 14 October 2003, the Veterans’ Review Board (VRB) affirmed the decision of 13 August 2001 in relation to generalised osteoarthrosis, and affirmed the decision of 1 July 2002 in respect of assessment of pension.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the veteran, who did not attend the Hearing, but represented himself and gave his evidence by way of telephone link-up. Mr Doube appeared for the Commission.
3. The veteran, who is 82 years of age, served in the Australian Army (the Army) as an infantryman with the 25th Battalion during WWII from 4 June 1942 until 14 December 1945. As he served outside of Australia, his entire service is operational service.
4. A perusal of the T documents discloses that by 31 October 1983, when he was 60 years of age, he had a history of generalised aches and pains in the joints. He lodged his first claim for this condition on 26 November 1985, on the basis that the harsh conditions he endured in New Guinea and on Bougainville, sleeping in wet clothes for weeks and other deprivations, caused his condition. The consultant rheumatologist reported that the condition was due to degenerative changes consistent with increasing age, and the claim was rejected.
5. The veteran lodged a further claim on 10 March 1986, which was rejected. The VRB affirmed the decision on 8 January 1988 and in the course of its decision stated:
“…
Mr Kwaterski had been examined in October 1983 by Mr W.R. Hill, Rheumatologist, who reported:
“A 60 year old man retired. 1 years with 2-3 year history of generalised aches and pains. Examination unremarkable except slight varus knees. Lack 1º of full extension (? Lifelong)
Hands Dupuytren’s left right.
Hebenden’s/small Bouchard’s.
Shoulders chronic rotator cuff tendonitis left right with slight loss movements. Neck slight restriction.
Lumbar spine normal.
AssessmentMild/moderate degenerative changes consistent with age and occupation.”
The Departmental Medical Officer noted that the veteran considered the lengthy periods of being in wet clothes during his service, particularly on Bougainville, caused the arthritis. However he agreed with Dr Hill that the condition was due to degenerative changes consistent with age. He added:
“In my opinion the incapacity has not been caused by sleeping in wet clothes during service, nor to any other conditions of service during the eligible period.”
The Board noted that in his appeal, Mr Kwaterski reiterated the opinion that extensive periods of living in wet and muddy clothes, often without sufficient and proper food, caused his arthritis. However, although the Board has a great deal of sympathy with the discomfort and hardship endured by Mr Kwaterski during these periods of service, the weight of medical opinion in evidence virtually rules out the likelihood of these circumstances being responsible for the onset of his generalised osteoarthritis some twenty years later.
…” [T22/108-109]
6. The applicant lodged a further claim on 14 June 1993. He stated in support of his claim that:
“We were all told by a medical officer that 80% of us would be affected with arthritis due to the harsh conditions that we had to put up with in New Guinea and Bougainville.” [T26/118]
The claim was rejected on 14 September 1993 and the VRB affirmed the decision on 3 June 1994. The applicant lodged a further claim on 2 December 1999, which was also rejected on 7 January 2000, and the decision was affirmed by the VRB on 12 November 2000.
7. On 14 June 2001 the veteran lodged a claim for pension in respect of, inter alia, arthritis. The diagnosis of “generalised osteoarthrosis” was recorded, and on 13 August 2001 the Commission rejected the claim. On 26 April 2002 the veteran lodged a further claim for pension in respect of emotional and behavioural disorder. The diagnosis of post-traumatic stress disorder was recorded, and on 1 July 2002 the Commission accepted that condition as war-caused with effect from 26 January 2002. In the same decision, the Commission assessed pension payable for that condition, together with the veteran’s other war-caused conditions, at 100 percent of the general rate, with effect from 26 January 2002. The veteran requested a review of both decisions by the VRB.
8. On 14 October 2003 the VRB affirmed the decision of 13 August 2001 in respect to generalised osteoarthrosis, and affirmed the decision dated 1 July 2002 in respect of assessment of pension.
9. In relation to his generalised osteoarthrosis, the veteran maintains that his condition relates to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard 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.
(2) …
(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.”
10. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(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.
…”
11. In relation to assessment of pensions s 120(4) of the Act provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
12. The hypothesis propounded by the veteran is that his osteoarthrosis relates to his operational service. There is a Statement of Principles in force, and in accordance with that Statement of Principles at least one of the factors set out in clause 5, must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the veteran’s relevant service. The relevant Statement of Principles for osteoarthrosis is Instrument No 81 of 2001. The veteran has not asserted in his claim that any of the factors set out in clause 5 is satisfied.
13. In support of his application to this Tribunal, the veteran enclosed a letter dated 11 December 2003, which reads as follows:
“I have received the report from the Veterans Review Board & am disgusted at some of the things that were brought up at the hearing & what I was supposed to have said which are not true.
I don’t think the Board has any idea of what happened in New Guinea & also on Bougainville. In fact I don’t believe anyone knows what happened unless they were involved in that sort of situation
I have enclosed a copy of the letter I have sent to the Veterans Review Board. I have been trying to get a T.P.I. or E.D.A. as I am crippled up with arthritis, & will have to think about getting a gopha to get about.
…” [Exhibit A2]
His letter to the VRB of 11 December 2003, reads as follows:
“I have received the report regarding the hearing 14/10/03 & am disgusted at some of the reports & accusations in that report.
During the war I had two tours of duty in New Guinea & also served on Bougainville for twelve months as a bren gunner with the 25 Infantry Battalion. On the second tour of duty to New Guinea, we landed at Madang, & prior to doing a barge landing at Hansa Bay, we were given a booster cholera & tetanus injection, & and our Medical Officer Capt Aicken told us, that the majority of us would be crippled with arthritis, by the time we were 55 years old. This information has been ignored by the Dept Veteran Affairs & also the Veterans Review Board. In your report you stated that I had said the cholera & tetanus injections could have been the cause of my arthritis.
I would like to make it quite clear that I have never ever stated this, but have made mention what our Medical Officer had told us about being crippled by the time we were 55.
The other point was regarding our LMO Dr du Plessis. He wasn’t even in Australia in 1972, & has only been in Australia less than ten years. During the time he was in Wudinna, I was never examined by him, so he wouldn’t know wheather [sic] I had arthritis or a cold.
We were sent to Bougainville in November to take over from the Americans, who had established a base on the island. We started our push against the japanese soon after, & were releaved [sic] on Friday 13th april. In all that time I never had any dry clothes. It was the wet season, & everything was continually wet including our bedding.
As well as fluid in both knees, I had a skin problem, due to being wet all the time. I also had dysentery, & it was nearly 6 weeks before I could get some Sulphaguarnadine. None of this is on any medical reckords [sic] because we couldn’t leave the are[a] because of the Japanese being everywhere, & it wasn’t safe. Whenever we captured an enemy position, there was faeces everywhere, & you had to watch where you put your feet plus there were dead enemy that hadn’t been burried [sic].
Our food consisted of a tin of bully beef & a packet of biscuits, which you shared with 2 of your mates. Compared with what our boys were issued with in Vietnam, you wouldn’t give this to your dog.
You also mentioned a lack of trauma. I can tell you there was no lack of trauma, not only if you were injured, but also to be next to one of your best mates when they were killed next to you, & this happened quite a few times. I was involved in 6 ambushes when, the forward scout was killed, & the one next to him was either killed or seriously wounded.
Just before we were releaved [sic], we had captured a jap position on the Buin Road & the next morning our group of about 50 were completely surrounded by two and a half thousand of the enemy. They had us surrounded for 4 days, in that time we had nothing to eat. On the fourth day it started to rain in the afternoon, & our commanding officer told us to pack all our gear & if it was still pouring we would try and get away, & we walked right past the enemy & got away. Had we stayed any longer they would have killed the lot of us. Now tell me there appeared to be a lack of trauma.
I still have night mares, & wake up in the night, thinking about what happened in New Guinea & Bougainville.” [Exhibit A1]
14. The applicant maintains that the harsh and wet conditions in New Guinea and Bougainville were the direct cause of the condition, and in addition that the medical officer told them at the time of their booster cholera and tetanus injections, that the majority of them would be crippled with arthritis by the time they were 55.
15. The Commission contends that none of the factors in clause 5 of the Statement of Principles for Osteoarthrosis apply in this case, because of the veteran’s war service, and there is no reasonable hypothesis pointed to by the facts in this case linking generalised osteoarthrosis to the veteran’s service. The Commission contends also that pension payable for the veteran’s war-caused conditions is appropriately assessed at 100 percent of the general rate.
16. The Commission submits that the veteran was not undertaking his last paid work after he had turned 65 years of age, and accordingly he does not satisfy the criteria necessary to qualify for payment of the pension at the special rate in accordance with s 24 of the Act. In addition, the veteran does not have an impairment rating of at least 70 points under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) for his war-caused conditions, and he does not have a lifestyle rating of 6 under GARP for his war-caused conditions. He cannot qualify for the extreme disability adjustment (EDA) pension under s 22 of the Act which as far as is relevant for the purpose of this review provides:
“(1)This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4) Where:
(a) either:
(i)the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b) the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
(5)For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a)the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b)amounts are being deducted from the pension under section 30P, 79 or 205; or
(c) the pension has been suspended under subsection 31 (6).”
17. It is not in dispute that the operational service rendered by the veteran as a bren gunner in New Guinea and Bougainville was hazardous, dangerous and undertaken in the most difficult terrain, and in terrible weather conditions. But in 1994, Statements of Principles were incorporated into the legislation, and at least one of the factors set out in clause 5 must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the veteran's relevant service.
18. In this matter I am satisfied, beyond reasonable doubt, that none of the factors set out in clause 5 of the Statement of Principles for osteoarthrosis has been satisfied. In relation to the assessment of the rate of pension, it is clear on the evidence that the major disability affecting the applicant's lifestyle is the osteoarthrosis condition, and that unless that condition was to be accepted as war-caused, the lifestyle rating would not be increased. I am satisfied on the evidence that the veteran’s Disability Pension is properly assessed at 100 per cent of the general rate.
19. For these reasons the Tribunal affirms the decisions under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 2 August 2004
Date of Decision 2 August 2004
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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