Linton and Repatriation Commission - [2000] AATA 616

DECISION AND REASONS FOR DECISION [2000] AATA 616

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1148

VETERANS'     APPEALS     DIVISION     )
           Re      GRAHAM ALEXANDER LINTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Dr C. Re, Member

Date27 July 2000
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and substitutes therefor the decision as follows: (a) That the diagnosis asthma is amended to chronic airflow limitation; (b) That chronic airflow limitation is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act"); (c) That the applicant is incapacitated from chronic airflow limitation for which the Commonwealth is liable to pay pension in accordance with the Act; (d) That the degree of incapacity suffered by the applicant from war-caused injury or disease is assessed at 100 per cent for the purposes of payment of pension at the General Rate, from 11 October 1995.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – asthma – diagnosis amended – chronic airflow limitation – applicant served in HMAS SYDNEY during three periods of deployment to South Vietnam – whether smoking at least ten "pack years" before clinical onset of chronic airflow limitation – whether arose out of or was attributable to periods of operational service – Decision set aside.
Words and Phrases – "Chronic Airflow Limitation"; "Pack-Year".
Veterans' Entitlements Act 1986, ss. 5C, 9, 13, 120, 120A, 126, 196B
Statement of Principles Instrument No. 17 of 1994 (Chronic Airflow Limitation), as amended by Instrument No. 65 of 1994
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 49 ALD 1993
Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999

REASONS FOR DECISION

27 July 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Dr C. Re, Member
Introduction

This is an application by Graham Alexander Linton for review of the decision of the respondent dated 29 November 1995, affirmed by the Veterans' Review Board on 10 August 1998, that asthma is not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Representation
At the hearing before this Tribunal Mr Linton was represented by Mr Hyde, of Counsel. Mr Douglass, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received in evidence during the hearing.
Witnesses
In addition to Mr Linton, evidence was also given during the hearing by Professor M.C.F. Pain and Dr R. Horsley.
Professor Pain is a thoracic physician. Dr Horsley practices in the field of occupational health and rehabilitation.
Facts Not In Dispute
Mr Linton was born on 2 August 1950.
He served in the Royal Australian Navy from 10 July 1966 to 31 July 1979.
Mr Linton rendered operational service within the meaning of the Act.
His operational service covers allotment for duty in HMAS SYDNEY involving service in Vietnam for the following periods:

8 May 1969 to 30 May 1969 (22 days);
17 November 1969 to 5 December 1969 (20 days);
16 February 1970 to 5 March 1970 (17 days).

Mr Linton is a veteran within the meaning of the Act.
War-Caused Disabilities
Mr Linton has malignant neoplasm of the skin (various sites) accepted as war-caused.
Current Disability Pension
Mr Linton is presently in receipt of a 10 per cent General Rate pension.
Issue
While as stated earlier Mr Linton's application for review is in respect of a decision of the respondent that asthma is not war-caused, the parties agreed that the most significant cause of his respiratory difficulties is chronic airway limitation.
Thus, although in a strictly legal sense asthma is the claimed disability which is before the Tribunal upon review, the correct approach is for the Tribunal to proceed on the basis that the issue before it is whether chronic airway limitation arose out of, or is attributable to, Mr Linton's periods of operational service.
Standard of Proof
The standard of proof in determining the issue of causation in respect of Mr Linton's periods of operational service is that which is provided in subsections 120(1) and 120(3) of the Act. Those subsections state as follows:
"120. (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.
(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."
It should be recorded at this point that Mr Hyde informed the Tribunal that in making his claim Mr Linton relies solely upon his periods of operational service and not on any period of other (eligible) service.
Application of Subsections 120(1) and 120(3) of the Act – Methodology
In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
In order for the material before the Tribunal to raise a reasonable hypothesis, that material must point to the hypothesis. It is not sufficient that the material raise a mere possibility. The Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in section 120(3) of the Act that "the material raise a reasonable hypothesis". The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Brynes (supra) and said at p.730:
"This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

Statement of principles ("SoP")

Section 120A(1) of the Act, to which reference is made in the Note to section 120(1), provides that it applies to claims made on or after 1 June 1994. As Mr Linton's relevant claim was made after that date, section 120A is applicable. Subsection 120A(3) states as follows:
"(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."
Pursuant to subsection 196B(2) of the Act, where the Repatriation Medical Authority ("RMA") is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service, the RMA must determine a Statement of Principles ("SoP") in respect of that kind of injury, disease or death, setting out:
The factors that must as a minimum exist; and
Which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Subsection 196B(14) relevantly states as follows:
"(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)...
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)...
(f)in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(g)…"

Relevant SoP

As observed by the parties, this matter is affected by the decision of the Full Federal Court in Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999.
While the respondent views Keeley as being wrong in law and has applied for special leave to appeal to the High Court, it acknowledges that under the Full Federal Court's decision these proceedings are governed by the SoP in force at the time of the original decision. The relevant SoP in this matter is therefore:

Instrument No. 17 of 1994 concerning Chronic Airflow Limitation, as amended by Instrument No. 65 of 1994.

In accordance with subsection 196B(2) of the Act, SoP No. 17 of 1994 as amended, sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised, connecting the claimed disabilities with the circumstances of a person's relevant service. At least one of the factors set out in paragraph 1 of SoP No. 17 of 1994 (as amended) must be related to any relevant service rendered by the person.
Factor Relied Upon
The factor upon which Mr Linton relies is that which is provided for in paragraph 1(a) of SoP No. 17 of 1994 as amended. That factor reads as follows:
"1(a) smoking at least ten pack-years before clinical onset of chronic airflow limitation."
SoP No. 17 of 1994 as amended provides that:
" 'Chronic airflow limitation' means a permanent obstruction to airflow due to chronic bronchitis or emphysema, measured by:
(a)a decrease in the person's Forced Expiratory Volume in one second (FEV1) to 85% or less of the normal predicted value for a person of the same age, height and gender; and
(b)a ratio of FEV1 to Forced Vital Capacity (FVC) of 75% or less; and
attracting an ICD code of 491.2, 492.0 – 492.8 or 496.";
" 'pack-year' means 7,300 cigarettes."

Concession – Respondent

It is convenient at this point to record that the respondent does not dispute that a diagnosis of chronic airway limitation was made in respect of Mr Linton and that the clinical onset of the condition occurred at some time after 1978.
Evidence
Mr Linton stated that upon joining the Navy on 10 July 1966 he was posted immediately to a shore training establishment HMAS LEEUWIN, in Western Australia.
He remained in HMAS LEEUWIN for a period of twelve months undergoing basic training. He was then posted to HMAS SYDNEY in the rank of Ordinary Seaman. He explained that while in the SYDNEY he continued to be under training and that he was required to do various tasks throughout the ship.
Mr Linton stated that he first started smoking shortly after joining the Navy, smoking "probably up to a packet a day". However, because his training activities varied, so did his level of smoking.
After joining the SYDNEY he continued to smoke about a packet a day, sometimes more. Cigarettes were available from the ship's Canteen and were duty free.
Mr Linton's posting to the SYDNEY lasted about three months, after which he was posted to the destroyer escort HMAS PARRAMATTA. He was then posted to the shore establishment HMAS LONSDALE for a period of about two months while waiting to be posted to the shore training establishment HMAS CERBERUS. He remained under training in CERBERUS from March 1968 to November 1968.
From CERBERUS Mr Linton was posted to HMAS KUTTABUL, a shore establishment in Sydney. While in KUTTABUL he worked in the Communications Centre at Fleet Headquarters until March 1969.
From March 1969 to April 1970 Mr Linton again served in HMAS SYDNEY.
From April 1970 to March 1974 Mr Linton served in HMAS HARMAN, a Naval Communications Establishment in the ACT.
Mr Linton then served in the Mine Sweeper HMAS IBIS, from March 1974 until March 1976. While onboard the IBIS he was promoted to the rank of Leading Seaman Signals.
Mr Linton was next posted back to HMAS HARMAN, where he served from March 1976 to January 1978.
From HMAS HARMAN Mr Linton was posted to the Guided Missile Destroyer HMAS PERTH in which ship he remained from January 1978 to March 1978.
Postings then followed, first back to HMAS KUTTABUL, and then to the shore establishment HMAS PENGUIN, in Sydney.
It was Mr Linton's evidence that while serving in the SYDNEY from March 1969 to April 1970 (being a period which includes his first period of 22 days operational service), his level of smoking increased within a short period of time, from "20 to 40, sometimes 60", cigarettes per day.
Mr Linton stated that there would probably have been about 24 other Communication Branch sailors onboard the SYDNEY, nearly all of whom smoked.
Mr Linton explained that during each of the SYDNEY's deployments to Vietnam he was employed as a Signalman on the ship's Bridge, reporting to the Officer of the Watch and the Captain. He was also employed as a Signalman on the ship's Flag Deck whenever the SYDNEY was in company with other ships.
Mr Linton stated that prior to joining the SYDNEY for the second time, in March 1969, he was only 18 years of age and considered himself to be relatively fit. He was not aware of any respiratory or breathing problems. Indeed, he played touch football on the ship's Flight Deck and volley ball in the ship's hangar.
It was Mr Linton's evidence that upon return to Sydney at the end of May 1969, he "probably reduced (smoking) to an average of probably about 30, between 30 and 40", cigarettes per day.
Mr Linton stated that his level of smoking again increased and indeed began to do so as the time for the deployment became closer. When asked why the increase occurred Mr Linton stated that:
"Well, there was the ready availability of it, being duty free, and there was peer group pressure from my contemporaries, and there was the modest amount of anxiety about going into a war zone."

When asked what specific dangers he thought he might be confronted with while on deployment in the SYDNEY, Mr Linton stated that he was not aware of any during the first deployment, but that on the third deployment he was aware of a lot of boats circling the ship, looking for "suspicious floating objects that could come down the river and might contain explosives".

As recorded earlier, the respondent does not dispute that the clinical onset of chronic airflow limitation occurred at some time after 1978. We observe that this accords with Mr Linton's evidence which was that in 1978 he experienced a "fairly severe cough" and that "I was out of breath easily under low amounts of exertion". He added that he was also "very flushed in the face and could hardly pass any air and it took some time to recover".
In cross-examination Mr Linton said that the environment in which he worked as an Able Seaman Signals was quite stressful, requiring as it did the performance of duties on the Bridge, under the eyes of officers and the Captain. He further explained that while the ship was in normal cruising stations he worked a four hour watch, meaning four hours on duty followed by eight hours off duty. He pointed out, however, that during the hours off duty there could be occasions when he would be required to perform certain other duties.
While under cross-examination Mr Linton's attention was invited to a Departmental "Cigarette Smoking" report which he completed on 9 October 1997. In that report he recorded that he first started smoking on a regular basis in November 1968 and that at that time he regularly smoked 30 to 40 cigarettes per day. That evidence, of course, is at variance with his oral evidence. However, it was Mr Linton's assertion that his recollection of his level of smoking at that time was clearer now than it was at the time he completed the report.
Mr Linton's attention was also invited to a medical examination report compiled in 1975, when he was serving in the IBIS. That report records that he was then a heavy smoker, smoking 40 cigarettes per day. He accepted in evidence that this was possibly correct.
As previously indicated, the evidence of Mr Linton was that while serving in the SYDNEY he would from time to time be required to perform duties on the ship's Flag Deck. He explained that the Flag Deck was located close to the ship's funnel, with the result that he became exposed to funnel fumes. However, apart from stating that the fumes "affected" him his evidence did not reveal in what way this was so.
During his evidence Mr Linton's attention was also invited to his smoking history as recorded by Professor Pain when the doctor examined him on 9 February 2000. In his report the doctor recorded that:
"Mr Linton said he commenced smoking in 1966 on joining the navvy (sic) and was initially smoking about 10 cigarettes a day. However during his Vietnam service days his tobacco consumption increased to about 3 packets a day and he continued this rate of smoking until about 1978 when he ceased altogether."

Mr Linton accepted that this was at variance with his evidence that when he returned to Australia from Vietnam, his level of smoking reduced but again increased prior to the next operational deployment.

As we have already mentioned, Professor Pain gave evidence during the course of the proceedings.
Professor Pain conducted a clinical examination of Mr Linton on 9 February 2000, during which he also performed lung function tests. He then provided two reports for the purposes of these proceedings, one dated 9 December 1998, the other 10 February 2000.

Professor Pain stated that Mr Linton has airflow obstruction with a small improvement through the use of a bronchodilator, which means there is an underlying asthmatic component to the chronic airflow limitation.
The doctor confirmed positively that Mr Linton suffers from chronic airflow limitation.
When asked what the major causes of chronic airflow limitation are, Professor Pain stated:
"Chronic airflow limitation can occur in – well the commonest cause is tobacco smoking, it's rare in non smokers. It can occur in some heavy industrial situations where there is a lot of air pollution and there is a form of asthma which can become very chronic so that in a sense you lose the asthmatic component and it becomes chronic airflow limitation due to chronic asthma."

He further stated that the symptoms of chronic airflow limitation are shortness of breath, which is often associated with cough which is productive of sputum.

It was Professor Pain's opinion that Mr Linton's chronic airflow limitation developed after 1978.
Dr Horsley, who we have already mentioned practices in the field of occupational health and rehabilitation, examined Mr Linton on 19 April 2000.
When asked for his views concerning Mr Linton's capacity for work Dr Horsley stated in evidence that:
"I believe that Mr Linton has a significant limitation in terms of his respiratory condition on work capacity. I don't believe that his malignant neoplasms have any direct impact on his work capacity unless he was working in an outside environment, and because his respiratory condition is such and his employment background is such that that's not at issue, I don't believe that that has an impact upon his work capacity. His respiratory condition, however, is significant and I believe that that would have an impact upon his work capacity. I believe that he is only suited to work in a sedentary role. I believe that he would need to take rest breaks on an intermittent basis. He would need to be in an environment where he is not exposed to smokers, to passive smoking. He should not be exposed to an environment where there are large temperature changes which could impact upon his respiratory system. I noted at the time of my examination that he is – he was actively job seeking through an agency and also through Centrelink and was hoping to obtain a clerical role. He had successfully gained employment for a four-month period as a sub-contractor in May of 1999 and I understand in discussion with him that this was at home, it was self-paced and he was working six to seven hours per day and I think that's probably the limit of his capacity."

We note that in this connection it was Mr Linton's evidence that from February 1999 to May 1999 he was employed full-time under contract as a technical auditor with Logistics Engineering Services. He explained that the work was of a clerical (paper work) nature; that he took the work home and that on average he worked a total of between 30 and 35 hours per week.

Dr Horsley's view was that the nature of the work which Mr Linton performed from February to May 1999 is work that he could cope with should he be fortunate enough to secure a similar contractual arrangement.
Concession – Diagnosis and Timing of Clinical Onset of Chronic Airflow Limitation
Given the evidence of Professor Pain, the respondent accepted the diagnosis of chronic airflow limitation and that clinical onset of the condition occurred at some time after 1978.
Application of SoP's- Methodology
In Repatriation Commission v Deledio (1998) 49 ALD 1993 the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) stated as follows:
"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

Whether Material Points to Hypothesis Connecting Chronic Airflow Limitation with Circumstances of Service

After consideration of the material before us, we determine that such material points to a hypothesis connecting Mr Linton's chronic airflow limitation with the particular service rendered by him.
The facts which are raised by the material and which point to a hypothesis are essentially:
(a)That Mr Linton suffers from chronic airflow limitation;
(b)That he was not a smoker prior to joining the Navy on 10 July 1966;
(c)That after joining the Navy he commenced smoking about one packet of cigarettes per day;
(d)That thereafter he continued to smoke with his level of smoking increasing to 40, sometimes 60, cigarettes per day while on his operational deployments in the SYDNEY;
(e)That immediately prior to and during his periods of deployment he experienced increased levels of apprehension and stress associated with the fact of deployment into a war zone; the nature of his duties; the environment in which he was required to perform his duties, and a degree of peer group influence onboard ship;
(f)That although his level of smoking tended to decrease immediately following each period of deployment, the level thereafter was generally in the order of some 30 cigarettes per day;
(g)That clinical onset of chronic airflow limitation occurred some time after 1978.

Whether There Are SoP's Determined by RMA

As we have indicated, the RMA has a SoP relevant to this matter.
Whether Hypothesis Reasonable
It is our view that the hypothesis raised by the facts set out above is reasonable in that it contains one of the factors (paragraph 1(a)) which the RMA has determined to be the minimum which must exist, and be related, to Mr Linton's service as required by subsection 196B(2)(d) and (e) of the Act. The hypothesis is consistent with the "template" to be found in the relevant SoP. That is to say Mr Linton was smoking at least ten pack years before the clinical onset of chronic airflow limitation.
Whether Incapacity Did Not Arise From a War-Caused Injury
As explained in Deledio, where the Tribunal has formed the opinion that the hypothesis is a reasonable one, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
In the circumstances the Tribunal, pursuant to section 120(1) of the Act, is required to consider whether it is satisfied beyond reasonable doubt that the incapacity of Mr Linton did not arise from a war-caused injury.
In addressing this issue we are conscious that, as demonstrated by his oral evidence, Mr Linton's recollection of his level of smoking at certain times tended to be at variance with levels recorded in medical documentation, to some of which we have referred. It is important, however, that we acknowledge that there is no onus of proof placed upon Mr Linton, nor is there to be an application of any presumption.
Having addressed the whole of the material before us we are not satisfied beyond reasonable doubt that Mr Linton's incapacity did not arise from a war-caused injury. In our view none of the facts upon which the hypothesis relies have been disproved beyond reasonable doubt and we find accordingly. That being so, Mr Linton's claim must succeed.
Assessment
In a Statement of Facts and Contentions lodged with the Tribunal in respect of these proceedings it was contended on behalf of Mr Linton that he is eligible for Special Rate pension.
In so far as is relevant, section 24 of the Act provides as follows:
"24(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
In the course of these proceedings the respondent conceded that, given the results of spirometry tests performed by Professor Pain, such results are consistent with an overall impairment rating being applied to all of Mr Linton's already accepted disabilities of 60 points, which translates into a degree of incapacity of 100 per cent for the purposes of payment of pension at the Special Rate.
It was further conceded by the respondent that the degree of incapacity of 100 per cent applies to the whole of the assessment period applicable to Mr Linton and that the effective date for the increased rate of pension is 11 October 1995, being a date six months prior to the date Mr Linton lodged his application for review by the VRB (11 April 1996).
In a work history report dated 10 April 2000 Mr Linton relevantly stated:
"When I was discharged I commenced working with the Public Service, in communications, until 1997. Although the work was sedentary, it was in an airconditioned environment, which did not agree with my chest condition. I took a retrenchment package in 1997.
In February 1999 to May 1999, I was employed as a Technical Auditor with Logistics Engineering Services.
I have been actively involved in looking for permanent employment since 1997, but have been unsuccessful so far except for the period noted in No. 3 above because as soon as I am interviewed it is obvious to the interviewer that I have a medical problem with my lungs.
I am totally restricted in doing any physical work because of my respiratory condition. This obviously restricts my suitability to some employers. I am further limited in the work I am able to perform if there is likely to be any dust present.
I verily believe that my respiratory condition prevents me from being employed, excepting in a suitable sedentary position, which so far has not been available, for more than 8 hours per week."
We have made reference above to the nature of Mr Linton's employment as recently as February 1999 to May 1999, and his capacity for that work. We have also referred to Dr Horsley's opinion as to Mr Linton's capacity for work, and indeed to the evidence of Mr Linton himself.
While it was asserted on behalf of Mr Linton that the nature of the work undertaken by him in 1999 was extremely rare and that, consequently, it was not realistic to say that he could again acquire work of a like nature, it was the respondent's submission that Mr Linton is a very experienced administrative officer.
As demonstrated by his work history, Mr Linton was employed as a Public Service officer from March 1979 to 1997, during which time he worked in the field of communications. We further note that it was Mr Linton's evidence that the auditing work which he undertook in 1999 also involved work of a clerical nature.
We agree with the respondent's submission. It follows, therefore, that in addressing Mr Linton's work capacity it is appropriate that the Tribunal should do so in the context of work of an administrative or clerical nature.
As we have recorded at paragraph 59 above, Dr Horsley's evidence included his views on Mr Linton's capacity for work and the type of environment in which he considered Mr Linton would need to work given his respiratory problems.
In his closing address on behalf of the respondent Mr Douglass had this to say concerning the views expressed by Dr Horsley:
"The restrictions that Dr Horsley places on Mr Linton's work capacity we say are not such as to render that position – the attainment of that – or the attaining of that sort of work so rare as to be academic. For instance, one restriction is that there shouldn't be a great fluctuation of temperature. We would say that pertains to most modern office buildings, with the rare exception when the airconditioning systems actually break down in summer time.
There is a restriction that there be no smoking in the work environment. I think the Tribunal can take judicial notice of the fact that most modern work environments preclude – certainly, in a clerical capacity – smoking, which explains the clusters of smokers one can observe, in the city, crowded into doorways and alley ways. The other restriction was that Mr Linton not be required to walk a great distance, and we say that that is one that can be readily accommodated with car parking, and even the provision of public transport. That is not a restriction that makes the job so rare as to be unattainable.
A further factor, we say, that militates against the argument that this position was rare is the fact that Mr Linton actually managed to get one. It is clearly a position that is available out there. We would say self employment on a contract basis in this age of outsourcing is not one that one could say there is a vanishingly small probability of obtaining it. The fact that the contract terminated after a fixed term, we say also places Mr Linton in some difficulties, in that there is a – for the purposes of section 24(1)(c) – factor operating other than his accepted disabilities which has caused him to terminate his employment, that being the expiry of the contract.
It has no connection with his accepted disabilities or with his respiratory condition. It was simply that the contract was for a limited period of time. Similarly, the employment in 1997 was terminated through redundancy. There was no resignation. It was a redundancy in the Australian Public Service. We would say that if the Tribunal were to accept the chronic airway limitation, in this case, we would say the maximum rate of pension attainable by Mr Linton is 100 per cent of the General Rate that 24(1)(b), which talks about work capacity in terms of eight hours per week, we say is an assessment of work capacity not employability.
Dr Horsley has assessed work capacity as greater than eight hours per week – well, greater than 20 hours per week – and certainly Mr Linton doesn't disagree with that assessment, in terms of the sort of work he had been performing in 1999. Additional to this, as stated before, there is a difficulty with factors other than his accepted disabilities causing him to cease work in 1999."

We are in general agreement with these submissions and find accordingly. It follows that the qualifications of section 24(1)(b) and (c) of the Act in respect of the Special Rate pension are not satisfied.
Decision

The decision under review in respect of asthma will be set aside and in substitution therefor the Tribunal will decide as follows:
(a)That the diagnosis asthma is amended to chronic airflow limitation;
(b)That chronic airflow limitation is war-caused within the meaning of section 9 of the Act;
(c)That Mr Linton is incapacitated from chronic airflow limitation for which the Commonwealth is liable to pay pension in accordance with the Act;
(d)That the degree of incapacity suffered by Mr Linton from war-caused injury or disease is assessed at 100 per cent for the purposes of payment of pension at the General Rate, from 11 October 1995.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Mr A. Argent, Member
Dr C. Re, Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  28/6/2000
Date of Decision  27/7/2000
Counsel for the Applicant        Mr Hyde
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr Douglass
Solicitor for the Respondent    Department of Veterans' Affairs