Lindsay and Repatriation Commission (Veterans' entitlements) - [2022] AATA 997

Lindsay and Repatriation Commission (Veterans' entitlements) [2022] AATA 997 (4 May 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/3597
Re:Neville Lindsay
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:4 May 2022
Place:Brisbane

The Tribunal affirms the reviewable decision.
........................................................................
Member D Mitchell
Catchwords
VETERANS’ AFFAIRS – application for increase in rate of pension – special rate pension – alone test – assessment period – decision under review
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) 69 ALR 395
Clearihan v Repatriation Commission (2020) 171 ALD 559; [2020] FCA 1130
Delkou v Repatriation Commission (1986) 69 ALR 406
Jebb v Repatriation Commission (1988) 80 ALR 329
Lucas v Repatriation Commission (1986) 69 ALR 415
Repatriation Commission v Braud (1991) ALD 591
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424
Repatriation Commission v Richmond (2014) 226 FCR 21; [2014] FCAFC 124
Repatriation Commission v Watkins (2015) 228 FCR 573
REASONS FOR DECISION
Member D Mitchell
4 May 2022
INTRODUCTION

Mr Neville Lindsay (the Veteran) is seeking review of a decision made by the Veterans’ Review Board (VRB) made on 22 April 2021.[1]
[1] Exhibit 1, T Documents, T1, pages 1-5, Application for Review.
The reviewable decision affirmed a determination of the Respondent dated
[2] Exhibit 1, T Documents, T12, pages 84-88, Determination.
[3] Exhibit 1, T Documents, T1.1, pages 6-11, Reviewable Decision.
14 September 2020[2] that the Veteran was to continue to be paid the disability pension at the Intermediate Rate pursuant to section 23 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act).[3] The Veteran had sought an increase in his rate of disability pension to the Special Rate pursuant to section 24 of the VE Act.
BACKGROUND
The Veteran enlisted in the Australian Army in 1952 and served full time until 1987 and as a reservist up until April 1989.[4] The Veteran had operational service in Vietnam.[5]
[4] Exhibit 1, T Documents, T5, page 21, Claim for Disability Pension and T7, page 37, Determination, accepting application for disability pension to 70% of the General Rate with effect from 25.03.02.
[5] Exhibit 1, T Documents, T7, page 37, Determination, accepting application for disability pension to 70% of the General Rate with effect from 25.03.02.
The Veteran has, with effect from 25 March 2002, been in receipt of a disability pension paid at the Intermediate Rate in accordance with section 23 of the VE Act.[6]
[6] Exhibit 1, T Documents, T9, pages 51-56, Determination, accepting Veteran’s disability pension increase to Intermediate Rate with effect from 25.03.02.
The following conditions are accepted by the Respondent as being war-caused injuries or war-caused diseases (service-related conditions) for the purposes of the VE Act:[7]
(a)tension headaches;
(b)bilateral sensorineural impairment of hearing;
(c)conductive loss of hearing left ear;
(d)sprain or strain of the left hip and thigh;
(e)osteoarthrosis of the left ankle;
(f)cholelithiasis;
(g)gastro-oesophageal reflux disease; and
(h)folliculitis.
[7] Exhibit 1, T Documents, T2, pages 15-16, Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 997
Decision Date: 4 May 2022

CaseChat Overview and Summary

This matter concerned an application by a veteran for an increase in his disability pension rate from the Intermediate Rate to the Special Rate under the *Veterans' Entitlements Act 1986* (Cth). The veteran, who had operational service in Vietnam, had been receiving a pension at the Intermediate Rate since 2002 for several accepted service-related conditions, including tension headaches. He sought the increase due to a worsening of his tension headaches, which he claimed had become a continuous mental limitation affecting his ability to concentrate and had progressively reduced his work capacity to nil. The Administrative Appeals Tribunal was required to determine whether the veteran met the criteria for the Special Rate pension.

The primary legal issue before the Tribunal was whether the veteran's accepted service-related conditions, specifically his tension headaches, alone caused his incapacity for work from at least 2012 onwards. To qualify for the Special Rate pension under section 24 of the Act, the veteran must demonstrate that his accepted war-caused injuries or diseases are the sole cause of his inability to work. This involves satisfying the "alone test," which requires a direct causal link between the accepted conditions and the incapacity.

The Tribunal reasoned that the veteran's tension headaches, while accepted as a service-related condition, were not the sole cause of his incapacity for work. The decision noted that the condition of tension headaches was not accepted as a war-caused injury or disease in isolation. Consequently, the Tribunal concluded that the veteran had not satisfied the "alone test" as required by section 24 of the *Veterans' Entitlements Act 1986*.

Accordingly, the Tribunal affirmed the reviewable decision, finding that the veteran was not eligible to be paid his disability pension at the Special Rate.

Orders

Orders of the court

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Background

Background to the litigation

The reviewable decision affirmed a determination of the Respondent dated [2] Exhibit 1, T Documents, T12, pages 84-88, Determination.[3] Exhibit 1, T Documents, T1.1, pages 6-11, Reviewable Decision.14 September 2020[2] that the Veteran was to continue to be paid the disability pension at the Intermediate Rate pursuant to section 23 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act).[3] The Veteran had sought an increase in his rate of disability pension to the Special Rate pursuant to section 24 of the VE Act.BACKGROUND The Veteran enlisted in the Australian Army in 1952 and served full time until 1987 and as a reservist up until April 1989.[4] The Veteran had operational service in Vietnam.[5] [4] Exhibit 1, T Documents, T5, page 21, Claim for Disability Pension and T7, page 37, Determination, accepting application for disability pension to 70% of the General Rate with effect from 25.03.02.[5] Exhibit 1, T Documents, T7, page 37, Determination, accepting application for disability pension to 70% of the General Rate with effect from 25.03.02. The Veteran has, with effect from 25 March 2002, been in receipt of a disability pension paid at the Intermediate Rate in accordance with section 23 of the VE Act.[6][6] Exhibit 1, T Documents, T9, pages 51-56, Determination, accepting Veteran’s disability pension increase to Intermediate Rate with effect from 25.03.02. The following conditions are accepted by the Respondent as being war-caused injuries or war-caused diseases (service-related conditions) for the purposes of the VE Act:[7](a)tension headaches;(b)bilateral sensorineural impairment of hearing;(c)conductive loss of hearing left ear;(d)sprain or strain of the left hip and thigh;(e)osteoarthrosis of the left ankle;(f)cholelithiasis;(g)gastro-oesophageal reflux disease; and(h)folliculitis.[7] Exhibit 1, T Documents, T2, pages 15-16, Section 37 Statement of Reasons for Decision. On 4 August 2020, in accordance with section 15 of the VE Act, the Veteran lodged an application for an increase in disability pension with the Respondent.[8] The Veteran provided that the reason for his application for an increase was due to a worsening of his service-related tension headaches. He reported that they had developed into a continuous mental limitation on his ability to concentrate on reading, analysing and composition and had taken his previous work assessment from 10-12 hours work a week in 2002 progressively down to nil by 2019.[9][8] Exhibit 1, T Documents, T10, pages 57-58, Email - Veteran to Respondent and T10.1, pages 59-68, Application for increase in disability pension.[9] Exhibit 1, T Documents, T10.1, pages 63-65, Application for increase in disability pension. On 4 September 2020, by email, the Veteran provided further information in relation to his application in response to a request from the Respondent.[10] The Veteran provided:[10] Exhibit 1, T Documents, T11, pages 69-71, Email Veteran to Respondent.·An undated document titled ‘Supplementary Statement of Employment History – 1988-2002’.[11]·A letter to the Respondent attaching:[12]o Incapacity Assessment, dated 10 August 2020 and was completed by Dr Christopher Andrews, general practitioner.[13]o Report, dated 5 March 2020 from Dr Paul Sandstrom, neurologist.[14]o Email dated 12 July 2019 regarding writing history of CMF/ARES.[15]o Email dated 10 December 2019 regarding writing history.[16]o 2018-19 Income Tax Return.[17][11] Exhibit 1, T Documents, T11.1, pages 72-74, Supplementary Statement of Employment History.[12] Exhibit 1, T Documents, T11.2, page 75, Letter Veteran to Respondent with attachments.[13] Exhibit 1, T Documents, T11.2.1, pages, 76-78, Incapacity Assessment, Dr Christopher Andrews.[14] Exhibit 1, T Documents, T11.2.2, page 79, Report- Dr Paul Sandstrom.[15] Exhibit 1, T Documents, T11.2.3, page 80, Email regarding writing history of CMF/ARES.[16] Exhibit 1, T Documents, T11.2.4, page 81, Email regarding Writing history.[17] Exhibit 1, T Documents, T11.2.5, pages 82-83, 2018-19 Income Tax Return.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This condition is not an accepted service-related condition (that is a war-caused injury or war-caused disease for the purposes of the VE Act) and as such it cannot be said that the Veteran’s accepted service-related conditions alone caused his incapacity to work from at least 2012 onwards right up until the date of this decision. Consequently, during the assessment period, the Veteran did not satisfy the alone test requirements of section 24 of the VE Act and therefore is not entitled to be paid his disability pension at the Special Rate.DECISION The Tribunal finds that the Veteran does not meet the requirements set out under section 24 of the VE Act and as such, is not eligible to be paid the disability pension at the Special Rate. The reviewable decision is therefore affirmed.

Ratio Decidendi

Legal Principle Established

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