Lucas and Repatriation Commission - [2000] AATA 668

DECISION AND REASONS FOR DECISION [2000] AATA 668

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/623
VETERANS'      APPEALS      DIVISION)
  Re:     ROBERT WILLIAM LUCAS
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal:       Mrs H. E. Hallowes, Senior Member
  Mr    C.      Ermert,     Member
  Dr    C.      Re,           Member
Date:             7 August 2000
Place:            Melbourne

Decision:The decision of the Repatriation Commission dated 29 September 1997, which was varied by the Veterans' Review Board is further varied to provide that the applicant's psychoactive substance abuse or dependence is war-caused, with effect from 16 April 1997, and the rate of pension payable to the applicant is the Intermediate rate of pension under section 23 of the Veterans' Entitlements Act 1986 with effect from 29 May 1998.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — whether veteran suffering from post-traumatic stress disorder, generalised anxiety disorder — whether psychoactive substance abuse or dependence war-caused — service in Vietnam — defence service
rate — whether veteran entitled to special or intermediate rate
Veterans' Entitlements Act 1986 ss.22, 23, 24, 28, 120
Statement of Principles concerning Generalised Anxiety Disorder

Instruments Nº 48 and Nº 49 of 1994

Statement of Principles concerning Psychoactive Substance Abuse or Dependence

Instruments Nº 5 and Nº 6 of 1994

Statement of Principles concerning Post Traumatic Stress Disorder

Instruments Nº 15 and Nº 16 of 1994

Chambers v Repatriation Commission (1995) 36 ALD 207
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000)
Re Tinkler and Repatriation Commission (AAT 12018, 8 July 1997)

REASONS FOR DECISION

7 August 2000  Mrs H.E. Hallowes, Senior Member
  Mr   C.     Ermert, Member
  Dr   C.     Re,          Member

On 16 July 1997 the veteran, Mr R. Lucas, lodged a claim form contending that his sleep disorder, heart condition, nervous condition with substance abuse, skin condition, and hearing loss with daily tinnitus were war-caused or defence-caused, pursuant to the Veterans' Entitlements Act 1986 ("the Act"). Mr Lucas disclosed that he was born on 20 December 1945. His general practitioner Dr F. Chiew related a number of his conditions to post-traumatic stress disorder following Mr Lucas's service in Vietnam.
A copy of Mr Lucas's claim form was amongst the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which the Tribunal had before it. The documents include an undated medical report from Dr D. Nasser, consultant psychiatrist, who advised that Mr Lucas suffered post-traumatic stress disorder and alcohol dependence. He remained unstable and depressed. A further report from Dr Nasser, dated 12 August 1997, advised that Dr Nasser had obtained no history of Mr Lucas witnessing any upsetting event whilst in Vietnam but he felt that his time there was "futile and a waste".
On 29 September 1997 the Repatriation Commission advised Mr Lucas that the medical names for his claimed conditions were:
. . .

Psychoactivity substance abuse or dependence. This answers the claim for stress, sleep disorder, alcohol excess, nervous condition with substance abuse;
Ischaemic heart disease;
Bilateral sensorineural hearing loss;
Tinea.

Mr Lucas's claim for ischaemic heart disease, bilateral sensorineural hearing loss and tinea were accepted by the Repatriation Commission as war-caused or defence-caused, but his claim that his psychoactive substance abuse or dependence was war-caused or defence-caused was refused. Pension at 80 per cent of the general rate under section 22 of the Act was granted from 24 April 1997, the first pension pay day after the date of effect.

Dr Nasser provided a further report to the Tribunal dated 23 September 1997 in which he advised that he had now been provided with a history that Mr Lucas "witnessed" the death of a friend and fellow engineer soon after arrival in South Vietnam. The Tribunal finds that this is incorrect. In a further report dated 1 July 1998 Dr Nasser clarified his earlier reports and he advised that he had obtained the following history from Mr Lucas:
. . . As treatment progressed, Mr Lucas revealed increasing details of his service in South Vietnam. This has included the death of a close friend of long standing that caused profound feelings of helplessness and has had a marked impact on his life since that time. He had some experience with alcohol as a young man prior to his service overseas, however he began to drink heavily whilst in Vietnam after the death of his friend. Following his return to Australia, he continued in an attempt to relieve his frustration and anger and has continued to drink heavily since. He experienced a further stressor in 1975 when one of his soldiers serving in 21 Const. Sqn. at Puckapunyal was killed and Mr Lucas was required to formerly identify the body and subsequently notify family. As a close friend he found this particularly harrowing.
On 23 March 1999 the Veterans' Review Board ("VRB") affirmed the Repatriation Commission decision with respect to psychoactive substance abuse or dependence but set aside the decision with respect to assessment and substituted a decision that pension be paid to Mr Lucas at 90 per cent of the general rate from 16 April 1997 and at 100 per cent of the general rate with effect from 7 October 1998, when Mr Lucas's general practitioner, Dr D. Unkenstein reported a deterioration in Mr Lucas's heart disease. In seeking review of that decision Mr Lucas contended that the VRB had failed to find that post-traumatic stress disorder and psychoactive substance abuse or dependence were war-caused. He contended that he is entitled to be paid pension at the special rate under section 24 of the Act. In affirming the decision of the Repatriation Commission with respect to psychoactive substance abuse or dependence, the VRB said in its reasons for decision:
Accordingly, the Board finds that the veteran does not suffer from post traumatic stress disorder as that condition is defined for the purposes of the Statements of Principles.
The Board then considered Statements of Principles No. 76 and 77 of 1998 concerning alcohol dependence or alcohol abuse, which are the relevant Statement of Principles for psychoactive substance abuse or dependence, involving alcohol. On the basis of the available material the Board finds that the definition of alcohol abuse in each Statement of Principle is satisfied.
. . .

However, having considered the definitions in the above Statements of Principles, the VRB was satisfied that the material before it did not raise a reasonable hypothesis under subsection 120(3) of the Act connecting Mr Lucas's psychoactive substance abuse or dependence involving alcohol with his service. The Repatriation Commission delegate had found that:

. . .
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of psychoactive substance abuse or dependence. As a result I find that all the evidence does not raise a reasonable hypothesis connecting psychoactive substance abuse or dependence and operational service. I am also reasonably satisfied that it was not caused by eligible defence. . . .

Applying what was said by the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000), the Tribunal is satisfied that it should consider the issues in this application under the Statements of Principles ("SoPs") in effect when the Repatriation Commission made its decision on 29 September 1997.

The Tribunal had before it a considerable amount of further material lodged by both parties at the hearing. Mr Lucas was represented by Mr M. Croyle, of counsel, and Mr K. Rudge, an advocate with the Department of Veteran's Affairs, appeared for the Repatriation Commission. The Tribunal was advised at the hearing that on 12 April 2000 the Repatriation Commission accepted a claim by Mr Lucas that his atherosclerotic peripheral disease, affecting both legs and renal artery, was war-caused or defence-caused and pension was continued at 100 per cent of the general rate.
Mr Lucas provided a statement to the Tribunal. He advised that he served in the Australian Army from 22 May 1968 to 29 May 1998. He served in Vietnam from 10 June 1970 to 9 June 1971. He conceded that, prior to his duty in Vietnam, he had been a moderate social drinker. He advised that within two or three months of arriving in Vietnam he found that his drinking habit significantly increased and he was drinking alcohol to excess each day due to peer pressure, boredom, the availability of cheap alcohol and stress. One of his mates was killed in action about two months after his arrival in Vietnam, although he did not witness the events leading to his friend's death, learning of it a day or two later. Mr Lucas stated that, during his whole tour of duty in Vietnam, he was apprehensive about his own safety, although he was not engaged by enemy fire. He advised that he suffers flash backs, including fear of coming into contact with landmines and his sleeping pattern is disturbed. He wakes in a sweat. After his return from Vietnam, he continued to drink alcohol, consuming six to eight stubbies, full strength beer, each weeknight and often consuming more during the weekend. He sought discharge from the Army after 30 years service because he could not cope with his duties, and his treating medical practitioners, including his cardiologist, "more or less" recommended that he cease duties because of symptoms resulting from his ischaemic heart disease.
In a further statement made on 2 May 2000, Mr Lucas advised that he had completed two years of a diploma course in auto-engineering after leaving secondary school, also undertaking six months of an apprenticeship to become a motor mechanic. He undertook clerical duties for five years before enlisting in the Australian Army. He found that he was suffering lapses of concentration before discharge. Mr Lucas had been examined by Ms S. Aitken, psychologist, whose report dated 29 February 2000, was before the Tribunal. He did not dispute the facts as set out in Ms Aitken's report.
In giving oral evidence to the Tribunal he said that on his return from Vietnam he was down-hearted, disillusioned and aggressive. He felt an outcast. There had been no debriefing. He could work alone but, if he felt that he was being watched, he rebelled. He was drinking heavily and he lost his driver's licence because of his drinking. In March 1989 he suffered a heart attack. He was treated for vascular problems and he is still under treatment. He had verbal run-ins with his superiors and he has taken to other ranks with his fists. There are problems in his marriage and he has undergone marriage counselling. He experiences shortness of breath and pain in his buttocks, and in the back of his legs. If a number of people are talking at the same time, it is as if cicadas are ringing in his head. He acknowledged being pigheaded and says that he is now too "aggro" to drive.
Since discharge Mr Lucas has registered for employment with an employment agency, but he has not worked. He has applied for jobs without success, including driving taxis, which is denied to him because of his drinking and heart condition; courier work, but in his opinion he would have problems with lifting and stairs; stores work and real estate agent work, but he has not been given any interviews. Copies of three applications Mr Lucas has made for positions were before the Tribunal. He now lives in country Victoria. He is no longer able to play 18 holes of golf. He serves on the committee of a bowling club. He visits his general practitioner on a monthly basis. He underwent surgery in December 1999 and he says that he can now walk a city block. He is still drinking six middies a day and spirits. There is some binge drinking.
The Tribunal had before it a copy of Mr Lucas's resumé which was completed for him by an employment agency. It sets out his record of service and the duties he undertook as a quarter master sergeant/logistics. He told the Tribunal that all his postings after his heart attack were to Army reserve units. The Tribunal also had before it recent income tax returns and assessments in respect of Mr Lucas. Mr Lucas has experience of computer programs, tracking stores and the movement of units. He said that in 1986 he was responsible for 320 staff but shortly before discharge only 3 or 4 staff worked to him.
Mr Lucas's wife, Mrs R. Lucas, also gave evidence to the Tribunal. She had known Mr Lucas before he went to Vietnam. She found that on his return after 12 months in Vietnam, he was a changed man. Instead of being affectionate and good with people, he was angry all the time and he drank. Before going to Vietnam, he had only been a social drinker. He can now only communicate with people if he has had a drink. She mostly does the driving as Mr Lucas gets angry in heavy traffic.
Dr Unkenstein has been treating Mr Lucas since 1998. He gave evidence to the Tribunal by telephone. In his opinion Mr Lucas's chances of finding employment are low due to his age and physical state. Although Mr Lucas could perform sedentary work with low stress despite his reduced cardiac performance and peripheral vascular disease, any stress or tension in a work situation would aggravate his angina. Dr Unkenstein considers that Mr Lucas would be able to attend work on most days. His reliability at work however would depend on his cardiac state. He is not treating Mr Lucas for his alcohol dependence nor his anxiety symptoms and Mr Lucas is not on medication for those conditions. Dr Unkenstein mainly treats him for his circulatory problems. He was not aware that Mr Lucas had lost his driver's licence on several occasions due to his blood alcohol reading nor that he frequently does not drive due to road aggression. In his opinion, if Mr Lucas's evidence with respect to his alcohol intake which he gave the Tribunal is correct, it is unlikely that he would be able to attend work regularly. Cardiac testing undertaken by a cardiac specialist demonstrates that Mr Lucas would be unable to perform heavy physical work. His psychiatric problems may prevent Mr Lucas working if he became agitated or distressed. Dr Unkenstein said that the recent surgery Mr Lucas has undergone has improved the symptoms of his peripheral vascular disease significantly although he noted Mr Lucas became breathless after walking approximately 100 metres. The Tribunal had before it reports by Dr Unkenstein dated 25 June 1999 and 9 May 2000.
The Tribunal also had before it a report by Dr E. Cole, psychiatrist, dated 20 September 1999, who had examined Mr Lucas for medico/legal purposes.   In his written report Dr Cole concluded that Mr Lucas's nervous symptoms
. . . are consistent with his suffering from a post-traumatic stress disorder although he would appear not to have been exposed to any single traumatic event threatening his life or physical integrity and involving tense fear, helplessness and horror.   . . .   For my part, I feel that the diagnostic criteria are rather too rigid and I would accept that he suffers from what would formerly been called a post-traumatic neurosis, even if he does not meet all the DSM 4 requirements.   Alternatively, one could argue that he meets the requirements for a diagnosis of a generalised anxiety disorder that can reasonably be attributed to war service in Vietnam.
His drinking pattern satisfies the requirements of the Statement of Principles for a diagnosis of alcohol dependence.   . . .
Dr Cole gave oral evidence to the Tribunal that Mr Lucas had symptoms consistent with post-traumatic stress disorder related to his service in South Vietnam and the death of his friend in Puckapunyal but neither of these events were life threatening experiences for Mr Lucas. Dr Cole said it may therefore be reasonable to say that Mr Lucas has a chronic generalised anxiety disorder under the SoPs. Having taken a history from Mr Lucas, Dr Cole said that he would not classify Mr Lucas's reaction to events as severe fear or horror but rather that Mr Lucas had experienced some fear and apprehension. Dr Cole was taken through the definition of "post traumatic stress disorder" in the SoPs, Instruments Nº 15 and Nº 16 of 1994 concerning Post Traumatic Stress Disorder and he conceded that he had not asked the questions necessary for him to establish that diagnosis without doubt, but in his opinion many of the criteria are met.
Turning to the SoPs concerning Generalised Anxiety Disorder Instruments Nº 48 and Nº 49 of 1994, Dr Cole said that he thought Mr Lucas's condition satisfies the definition of generalised anxiety disorder under the SoPs as Mr Lucas is excessively anxious more often than not, which has lasted for periods longer than six months and he had given a history of finding it hard to control his symptoms and he could not distract himself; this is associated with feelings of restlessness and being on edge. In his opinion Mr Lucas's alcoholism is secondary to his generalised anxiety disorder as he uses alcohol to relieve symptoms. Dr Cole referred to Mr Lucas's dreams as relating to flash backs to Vietnam as he avoids pot holes in the road because they remind him of mines, and he is easily startled by noises, pointing to a chronic generalised anxiety disorder. Dr Cole conceded that Mr Lucas may also be worried about unemployment and his health but in his opinion these are not the sole causes of his condition. Dr Cole saw no inconsistency between his diagnosis of generalised anxiety disorder and Mr Lucas's stable work history.
Mr Lucas has been treated by Dr C. Murdoch, cardiologist, whose report dated 29 March 2000 was before the Tribunal. He advised that Mr Lucas suffered a large myocardial infarct in 1989 with hypokinesis of his heart wall, which was not entirely explained by Mr Lucas's coronary artery disease and which may be due to his alcohol consumption. In Dr Murdoch's opinion, Mr Lucas would be able to perform a sedentary occupation with his cardiac symptoms. Mr Lucas told the Tribunal that he disagreed with Dr Murdoch's opinion. He said that, during his Army service, he had staff to carry out the duties and he merely acted in a supervisory capacity, making sure that policy was implemented. He said that he would like to work but could not guarantee his attendance.
Professor R. Harper, cardiologist, examined Mr Lucas on 3 March 2000 at the request of the respondent. He reported that:
. . . Ever since the heart attack Mr Lucas describes a reduced exercise tolerance with the development of chest pain and shortness of breath on exertion. His description of the chest pain would be consistent with angina.
These symptoms have progressed. . . . he gets symptoms at a level of activity corresponding to 3-4 METS, although this is not entirely consistent with his exercise performance as documented by various exercise tests which have shown better exercise tolerance.

In Professor Harper's opinion Mr Lucas's cardiac status would not preclude him from obtaining clerical work associated with light physical duties. Nuclear stress tests on Mr Lucas's heart have not shown impairment of heart circulation and there is very little coronary vessel disease on angiography. Mr Lucas does not require bypass operation or angioplasty. Mr Lucas had not mentioned his peripheral vascular disease to him but Professor Harper noted that in exercise testing he reached a good level. He could find no physiological reason for Mr Lucas's angina, although he said that it was conceivable that Mr Lucas may suffer shortness of breath on exertion. He was unsure why new treatment with one of the class of drugs known as ACE inhibitors had not improved Mr Lucas's symptoms, saying that psychological factors may be involved as well.

As well as having Ms Aitken's report, the Tribunal heard oral evidence from her. In her opinion Mr Lucas suffers from an alcohol dependence disorder. His symptoms satisfy the diagnostic criteria in the relevant SoPs. Mr Lucas also reported to her some symptoms suggestive of post-traumatic stress disorder but almost certainly some of these symptoms, in her opinion, are due to his alcohol abuse. She noted that he was not exposed during service to a traumatic event of the nature specified in the relevant SoPs. He had not responded with helplessness or horror to any event and he did not persistently re-live the traumatic events through flashbacks or nightmares. His reaction to his service in Vietnam was a normal one. When asked to express an opinion as to whether Mr Lucas suffered generalised anxiety disorder Ms Aitken said that she could not find any evidence of that. Mr Lucas had displayed no anxiety about his later years in the Army. She noted that he was discharged from the Army due to his inability to reach the required fitness level, not because of his alcohol dependence disorder and she did not think that that disorder would preclude him from working.
In addressing the Tribunal Mr Rudge invited it to vary the decision under review with respect to the issue whether Mr Lucas suffers from psychoactive substance abuse or dependence which is war-caused or defence-caused. In light of the evidence before it, the Tribunal will so do being satisfied that Mr Lucas suffers from psychoactive substance abuse or dependence and that Instrument Nº 5 of 1994 connects his disease with his war service, a reasonable hypothesis having been raised.
The next issue for the Tribunal to determine is whether Mr Lucas suffers from post-traumatic stress disorder and/or generalised anxiety disorder applying subsection 120(4) of the Act, that is, the Tribunal must be satisfied of these matters to its reasonable satisfaction (Repatriation Commission v Cooke (1998) 52 ALD 1).
In deciding whether Mr Lucas suffers post-traumatic stress disorder and/or generalised anxiety disorder, the Tribunal should determine the matter applying the meaning of those psychiatric conditions provided by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association, from which the definitions in the relevant SoPs are derived.
The Tribunal accepts the contentions of Mr Rudge being reasonably satisfied that Mr Lucas does not suffer the above psychiatric conditions, meeting those descriptions. Turning first to the issue whether Mr Lucas suffers post-traumatic stress disorder, the Tribunal finds that he was not exposed to a traumatic event in which:
. . .
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
. . . (Instruments Nº 15 and Nº 16 of 1994)

The events described by Mr Lucas in his evidence, which he reflects upon, do not fall within the above description. He was not present at the events which distress him although he may conjure up images of what may have occurred. He did not describe images to the Tribunal. Dr Cole agreed that Mr Lucas had not told him that he experienced, witnessed or was confronted by events involving actual or threatened death or serious injury. Dr Nasser originally obtained no history of Mr Lucas witnessing upsetting events in Vietnam. Dr Nasser reported that the death of Mr Lucas's friend in South Vietnam caused him profound feelings of helplessness and that he found the death of his friend in Puckapunyal particularly harrowing. Ms Aitken did not find that Mr Lucas suffered from post-traumatic stress disorder although the Tribunal accepts Mr Croyle's contention that psychiatrists may be in a better position to diagnose post-traumatic stress disorder.

In his written report Dr Cole went no further than saying that "one could argue" that Mr Lucas meets the requirements for a diagnosis of generalised anxiety disorder. Dr Cole said that Mr Lucas gave him a history which points to him being excessively anxious more often than not for a period of more than six months. He is restless and on edge and cannot distract himself, other than by turning to alcohol. Ms Aitken noted that Mr Lucas had first seen a psychiatrist following his heart attack in 1989 when he consulted Dr A. Williams, psychiatrist. He was given some medication at that time. In 1996 he was, again, referred to a psychiatrist, Dr Nasser, but, following discharge and his move to country Victoria, he has received no psychiatric treatment. Dr Unkenstein is not treating Mr Lucas for anxiety symptoms.
The Tribunal is not satisfied that any anxiety Mr Lucas has causes him "clinically significant distress or impairment in social, occupational or other important areas of functioning". Dr Williams's clinical notes in 1989, which were before the Tribunal, do not support a finding that Mr Lucas had excessive anxiety and worry over a period of 6 months. The history is that he was moody and irritable. His myocardial infarct had come as a complete surprise to him because he had seen himself as being "a healthy man" with a successful 21-year career in the Army behind him.
Being reasonably satisfied that Mr Lucas does not suffer post-traumatic stress disorder or generalised anxiety disorder, the Tribunal turns to consider the rate of pension payable to him. Subsections 24(1) and (2) of the Act provide:
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)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(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.
. . .

Section 28 provides:

28 In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Section 23, which provides for the intermediate rate of pension, is similar in its terms to section 24 but paragraph 23(1)(b) provides:

23(1) This section applies to a veteran if:
. . .
(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
. . .

Subsection 23(2) provides:

23(2) Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking — if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
. . .

Mr Lucas has not yet turned 65 years. The degree of his incapacity has been determined to be at least 70 per cent since 24 April 1997. An issue arises under paragraphs 23(1)(b) and 24(1)(b) of the Act as to whether he is totally and permanently incapacitated by his war-caused injuries and disease so as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently, or, whether he is incapable of undertaking remunerative work for periods aggregating more than eight hours.
At the commencement of the assessment period Mr Lucas was working full-time. He was discharged from the Army on 29 May 1998. Despite his psychoactive substance abuse, he was able to continue with his Army service even when he was living alone in Sydney for a period of three years. He has considerable experience in the supervising, recording and distributing of stores. Mr Lucas is able to drive to his local shops in the town where he lives. It is his preference not to drive when traffic may be congested to avoid becoming upset. Mr Lucas does not appear to have provided the same history to Dr Unkenstein, who has been treating him since 1998, with respect to his alcohol dependence as he gave to the Tribunal. There can be no dispute that Mr Lucas cannot perform heavy physical work and the evidence points to him avoiding work where he may become agitated or distressed. Recent surgery has improved his peripheral vascular disease. Dr Murdoch expressed the opinion that, despite his coronary heart disease and cardiac symptoms, Mr Lucas would be able to perform sedentary work. In Professor Harper's opinion Mr Lucas's cardiac state would not preclude him from obtaining clerical work associated with light physical duties. Ms Aitken was also of the opinion that clerical work would be suitable for Mr Lucas.
Mr Rudge referred the Tribunal to what was said by the Full Federal Court in Chambers v Repatriation Commission (1995) 36 ALD 207, at pages 218 and 219, with respect to section 28 of the Act, and to what was said by the Tribunal in Re Tinkler and Repatriation Commission (AAT 12018, 8 July 1997).   In Chambers, the Full Federal Court had this to say:
. . . The phrase "remunerative work" is defined in the widest terms, to mean "any remunerative activity".   Thus the ultimate inquiry to which s 28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity.   It is in relation to this inquiry that s 28 specifies the matters — and the only matters — that are to be taken into account.   The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience.
. . .
[T]he effect of s 28 is to exclude a number of matters which otherwise might have been relevant to the determination required by s 24(1)(b).   Such matters as depressed labour market conditions are excluded from consideration for the purposes of s 24(1)(b).
. . .
Section 28(b) focuses attention upon the range of employment opportunities that a hypothetical person with the skills, qualifications and experience referred to in s 28(a), might reasonably undertake.
. . .
It should also be observed that the primary question posed by para (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience "might reasonably undertake".
. . .   The criterion is a broad one which relates to categories of employment and not to particular occupations.   It is concerned with a range of occupations open to the person described, . . .

In Re Tinkler, the Tribunal said, at paragraph 79:

79. As to whether Mr. Tinkler might reasonably undertake such work, it was his view that he would become frustrated working at such a low level. However, that is not to the point. The point is whether, having regard for the matters referred to in subsection 28(1)(a), the undertaking of employment by Mr. Tinkler as a clerk or book-keeper would be reasonable.

The Tribunal will follow what was said in Chambers' case rather than what was submitted to it by Mr Croyle who suggested that the issue before the Tribunal is not a theoretical one, but rather one as to whether real jobs are available to Mr Lucas with his multiple war-caused diseases. Certainly, the issue as to whether Mr Lucas has been genuinely seeking to engage in remunerative work must be addressed in a realistic way having regard to the nature and extent of his incapacity, but that is an issue arising under paragraph 24(1)(c) rather than paragraph 24(1)(b) of the Act. A hypothetical person with his skills, qualifications and experience might reasonably undertake a range of duties involving transportation and distribution of stores, supervision of other staff and the carrying out of monthly financial reconciliations/inventory control, that is, stores, clerical or administrative duties.
The evidence before the Tribunal with respect to Mr Lucas's ischaemic heart disease and peripheral vascular disease point to some reduction in his capacity to undertake the kinds of remunerative work referred to in section 28(d) of the Act. His psychoactive substance abuse has, on his evidence, affected his concentration but the Tribunal finds he has the capacity to work for part of each day, five days a week, or for longer periods each day on fewer days each week with breaks between. The Tribunal is reasonably satisfied that Mr Lucas has since discharged from the Army, had a capacity to undertake remunerative work on a part-time or intermittent basis. His resumé sets out his skills, qualifications and experience. He served with the Army for 30 years, albeit that he may have perceived his more recent duties in the Army as being carried out in a protective environment. In his exercise testing he reached a good level although he may suffer some shortness of breath. The Tribunal is reasonably satisfied that Mr Lucas has had a capacity to work up to 20 hours each week since he ceased work with the Australian Army on 29 May 1998.
The Tribunal is also satisfied that Mr Lucas has been genuinely seeking to engage in remunerative work, his war-caused incapacity being the substantial cause of his inability to obtain work on other than a part-time basis or intermittently and that he has therefore suffered a loss of salary.
The Tribunal will vary the decision under review to reflect the concession made by the Repatriation Commission with respect to Mr Lucas's psychoactive substance abuse or dependence and grant him the intermediate rate of pension under section 23 of the Act, with effect from 29 May 1998 when he was discharged from Army service.
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
Mr   C.    Ermert,     Member
Dr   C.    Re,          Member
(sgd)       Catherine Thomas
              Personal Assistant
Date of Hearing:  23.05.00
Date of Decision:  07.08.00
Counsel for the Applicant:           Mr M. Croyle
Solicitor for the Applicant:           Messrs Williams, Winter & Higgs
Solicitor for the Respondent:       Mr K. Rudge, Departmental Advocate