Muller and Repatriation Commission - [2000] AATA 552

DECISION AND REASONS FOR DECISION [2000] AATA 552

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/274

VETERANS' APPEALS DIVISION )

Re DENNIS MAXWELL MULLER
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date5 July 2000
PlaceCanberra

Decision      The tribunal sets aside the decision under review, and in substitution therefor decides: (a) That the veteran's conditions of lumbar spondylosis, cervical spondylosis, spondylolisthesis L5/S1 and hypertension are not war-caused. (b) That the veteran be granted pension at special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 to operate from 15 June 1998.
  ...................(Sgd.).......................
  Pamela Burton  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veteran's pension – whether certain disabilities "war-caused" – level of impairment – whether war-caused injuries "alone" cause inability to undertake remunerative work – rate of payment as percentage of general rate – whether eligible for pension at above general rate – whether intermediate or special rate.
Legislation
Veterans' Entitlements Act 1986 ss23, 24, 120(1), 120(3)
Guide to the Assessment of Rates of Veterans' Pensions (Fifth ed.)
Authorities
Repatriation Commission v Keeley [2000] FCA 532
McKenna v Repatriation Commission (1999) 86 FCR 144
Keeley v Repatriation Commission [1999] FCA 1103
Ogston and Repatriation Commission (1998) 52 ALD 392
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

5 July 2000 Pamela Burton, Senior Member

This is an application for review of the decision of the Repatriation Commission dated 2 December 1996 denying that the veteran's conditions of lumbar spondylosis, cervical spondylosis, spondylolithesis L5/S1 and hypertension are war-caused. The Veterans' Review Board ("the VRB") affirmed the decision in that respect on 8 April 1998, but set aside the decision in relation to assessment of the rate of pension, deciding that the veteran, Mr Muller, is entitled to pension at 40% of the general rate from 25 April 1996, and at the increased rate of 50% of the general rate as from 8 April 1998.
The veteran was represented by Mr Paul Crabb and the respondent was represented by Mr John Sylvestre. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents") and some medical reports and other documents tendered at the hearing. The tribunal heard the evidence of the veteran and his wife, and Dr White, psychiatrist, gave telephone evidence on behalf of the veteran. Professor Sambrook, rheumatologist, and Dr Wright, consultant occupational physician, gave telephone evidence on behalf of the respondent.
There are three issues before the tribunal. The first is whether the veteran's conditions of lumbar spondylosis, spondyliothesis L5/S1 and hypertension from alcohol abuse are war-caused. In the course of the hearing, the veteran withdrew his claim that his cervical spondylosis condition is war-caused. The tribunal accepts this withdrawal, as the evidence the veteran gave did not support that claim. The second issue is the rate of pension to which the veteran is entitled. The veteran claims entitlement to pension at 90% of the general rate effective from 16 March 1998. If the tribunal finds that the veteran is entitled to pension at 70% or more of the general rate, the third issue arises as to whether the veteran qualifies under sections 23 or 24 of the Veterans' Entitlements Act 1986 ("the Act") for pension at above general rate.
Eligible service
The Act requires that for a claim to be accepted the disability must be related to operational or eligible defence service. The veteran joined the Australian Army in 1964. It is not in dispute that the veteran served in South Vietnam between 26 May 1966 and 6 May 1967, which period constitutes "operational service" for the purpose of the Act, and that he further served in the Army during the period 7 December 1972 to 20 November 1975, constituting eligible "defence service" under the Act.
Standard of proof
The veteran does not bear any onus of proof. The standard of proof is as set out in subsections 120(1) and 120(3) of the Act in respect of war-caused conditions arising out of operational service. That is, the tribunal must find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstance of the particular service rendered.
In respect of the veteran's defence service, subsection 120(4) of the Act applies, that is, the tribunal is to decide the matter to its reasonable satisfaction and, therefore, a standard of proof on the balance of probabilities is applicable (Repatriation Commissionv Smith (1987) 74 ALR 537). The standard of proof relevant to the assessment of the rate of disability pension is also as set out in section 120(4) of the Act.
Statement of principles
Conditions of lumbar spondylosis and spondylolisthesis L5/S1
In coming to its decision as to whether or not a condition is war-caused, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority ("the RMA") from time to time, if any, in relation to a claimed war-caused condition. These SoPs state the factors that must exist for a hypothesis to be considered reasonable or for a connection to service to be probable. Pursuant to sections 120A and 120B of the Act, the tribunal cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition. However, for operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused. For eligible defence service the tribunal must be reasonably satisfied that the factor exists before the claim can be accepted.
At the hearing the parties agreed that the most recent SoPs apply in relation to all the claimed conditions (Ogston and Repatriation Commission (1998) 52 ALD 392). Since that time, however, the decision of the Full Federal Court in the matter of Repatriation Commission v Keeley [2000] FCA 532 has been handed down which, in effect, upheld the decision of His Honour, Justice Heerey, in Keeley v Repatriation Commission [1999] FCA 1103, ruling that the applicable SoPs are those in force at the time the decision under review was made. Leave is currently being sought to appeal to the High Court from the decision of the Full Federal Court and thus the question of which SoPs apply is not yet finalised. Further, it is not clear from the reasons for decision in Keeley whether the SoPs in existence at the time the decision under review was made apply only if those SoPs are more beneficial to the veteran than any more recent SoP or any amendment to the existing SoP.
The decision under review is the decision of the delegate of the respondent dated 2 December 1996. The SoPs applying at the time were SoP No. 105 (operational service) and SoP No. 106 (defence service) of 1995 as amended by SoP Nos. 334 and 335 of 1995 in relation to the claimed condition of lumbar spondylosis. The veteran claimed that his circumstances meet factor 1(f) in those SoPs, namely that he suffered a trauma to the relevant joint which resulted in permanent ligamentous instability prior to the clinical worsening of lumbar spondylosis. That was rejected by the decision-maker on the basis that there was no history of the veteran having suffered trauma to the lumbar spine. At that time there was no SoP issued for L5/S1 spondylolisthesis and the decision-maker found that all the evidence did not raise a reasonable hypothesis connecting that condition and operational or defence service.
At the time the VRB reviewed the decision, SoPs Nos. 165 (for operational service) and 166 (for defence service) of 1996 were issued by the RMA in relation to lumbar spondylosis in which the definition of "trauma to the relevant joint" in the earlier instruments was revoked. The veteran claimed that he met factor 5(f) in each SoP, which, in each is expressed as follows:
Suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis

The SoPs include a definition of trauma to the lumbar spine as meaning as follows:

An injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.

The VRB referred to SoPs Nos. 15 and 16 of 1996 which had been issued concerning spondylolisthesis L5/S1, and the fact that those instruments required severe, high energy trauma before or at the time of the clinical onset or clinical worsening of the spondylolisthesis. I assume this is a reference to SoPs Nos. 15 and 16 of 1997, which had by then been issued. At the hearing before me, the veteran relied upon factors 5(a) and 5(f) in both of those instruments being in identical terms. Factor 5(a) requires the veteran to have suffered a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture at the time of or within six weeks before the clinical onset of lumbar spondylolisthesis. Factor 5(f) requires the veteran to be:
suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of the clinical onset of degenerative lumbar spondylolisthesis
In relation to SoP No. 52 of 1998 applying to operational service, the veteran's representative suggested that factor 5(h) applied, namely: "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". In that SoP "trauma to the lumbar spine" is defined to mean:
a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs.

In relation to his defence service, the veteran relies on factor 5(f) in SoP No. 53 of 1998: "suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis". In that SoP "permanent ligamentous instability" is defined as:

continuing or recurring abnormal mobility and instability of the lumbar spine which is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine.

Since that time SoPs No. 52 (relating to operational service) and No. 53 (defence service) of 1998 concerning lumbar spondylosis were issued, further revoking the definition of trauma. By the time the matter came before the tribunal SoPs No. 27 and 28 of 1999 were issued. The factors the veteran is to meet under these SoPs also require the suffering of a trauma to the lumbar spine or permanent ligamentous instability of the lumbar spine before the clinical onset or worsening of lumbar spondylosis.
Condition of Hypertension
In relation to the condition of hypertension the delegate found on 2 December 1996 that the veteran's circumstances did not fall within the then most current SoP to sustain his claim that his hypertension was due to his consumption of salt tablets, analgesics and alcohol. On 8 April 1998 the VRB regarded SoPs Nos. 83 and 84 of 1995 as applying in relation to this condition. Of relevance was factor 1(b) which states:
Suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension

"Psychoactive substance abuse or dependence" is defined in the SoP as:

a maladaptive pattern of use, as derived from DSM-IV attracting code 303 or 304, as indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated)

At the tribunal hearing the veteran relied upon factors 5(b) of SoP No. 65 of 1998 relating to hypertension which states:
suffering from alcohol dependence or alcohol abuse involving consumption of an average of at least 300 grams per week of alcohol (contained within alcoholic drinks), at the time of the accurate determination of hypertension.

A SoP exists in relation to the condition of alcohol dependence or abuse, namely SoP No. 76 of 1998, and it sets out the factors which must exist before the condition can be related to service. It is agreed that if hypertension requires alcohol abuse under the SoP relating to hypertension, then alcohol abuse must be satisfied under the SoP for that condition (McKenna v Repatriation Commission (1999) 86 FCR 144). The veteran states that factors 5(a) and (b) in SoP No. 76 of 1998 existed at the relevant times, namely that he was (a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence; or (b) he experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence. That SoP defines "alcohol dependence" as:

The presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self-administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

It defines "alcohol abuse" in somewhat less strict terms but nevertheless requires the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The SoP indicates that the diagnostic criteria for alcohol dependence are those specified in DSM-IV as set out above.
The evidence
Spondylolithesis L5/S1

In relation to the spondylolithesis L5/S1, Dr Wright, occupational physician, in his report of 16 July 1999 (Exhibit 2), states that the spondylolisthesis is caused by the spondylosis. Professor Sambrook concedes that it is reasonable to accept that the veteran's condition could have arisen out of the lumbar spondylosis condition. Thus, if the tribunal finds that the applicant's lumbar spondylosis is war-caused, then, given the concession of Professor Sambrook, a reasonable hypothesis in respect of spondylolithesis is raised, the factors having been met under the relevant SoPs. I turn now to consider the prime issue of whether the condition of spondylosis is war-caused.
Lumbar spondylosis
The applicant's evidence is that he was sent to South Vietnam in May 1966. He was an electronics technician in the signals unit. The unit was self-contained, and it was responsible for setting up its own camps and making and maintaining its own equipment. The veteran's prime duty was to ensure that the radio equipment was working, but he was also involved in other physically heavy duties. The unit spent some 3 to 4 months in Nui Dat and a few weeks in Saigon, and some time in Vung Tau. He was required to engage in heavy manual labour as his Company established its camp at Vung Tau.
It is during his time in Nui Dat that the veteran recalls hurting his back in the course of moving a heavy generator, by dragging it with the help of one other person. He said the generator weighed about 600 kilos, and it was in a confined area and was awkward to get at. It was on timbers so that it could slide down off the pallet. The veteran said that he heard a crunching sound and felt a loss of sensation in his low back, but that he did not experience any other physical sensation at that stage. The loss of sensation lasted a few hours in which time he performed light duties which did not involve any heavy lifting. He resumed normal duties the next day. His evidence is that within days of the incident, being no longer than a week, he felt sharp pain in the low back when doing jerky movements. He described it as sharp searing pain around the belt line when twisting his body, or when he got out of balance, and indicated that this still occurs today. Otherwise the injury left him with a dull ache and a constant crunching sound.
The evidence is that during the veteran's defence service he suffered a discrete injury to his back. On 16 August 1975 in Tasmania, before he was discharged from the army, the veteran was moving drums out of a truck. The Regimental Medical Officer certified that the veteran had a "strained back" from lifting drums (T3, p.28). The drums were in a truck under a canopy and prevented the veteran from standing up straight. He took two Jerry cans at a time from the back to the front of the truck. He said that he heard "a crack" in the same place where he had felt numbness when he suffered the injury in Vietnam. However, the evidence is that on the veteran's discharge from the army, some three weeks later, he suffered no problem at that time from that injury (T3, p.16). In his oral evidence the veteran confirmed that his low back condition returned to its pre-August 1975 state. In any event, the pain from this incident lasted for only 4 to 5 days, according to the veteran's evidence.
In these circumstances, it seems that there is no ongoing disability caused by this incident in the course of the veteran's defence service, or a condition which satisfies any of the relevant SOPs. The issue remains as to whether the veteran's low back disability arose out of his operational service in Vietnam.
The veteran provided a detailed history of his experiences in South Vietnam to the VRB, in which he was not able to suggest any specific instance of trauma sufficient to satisfy the definition of "trauma" to the lumbar spine in the SOPs operating at the time of that hearing (T23, p.127). Instead, in giving the history to the VRB the veteran recounted "numerous instances of minor trauma and one instance … when he fell into a trench and received minor injuries." The VRB stated that the veteran "conceded that he could recall nothing sufficient to amount to … trauma to the lumbar spine as defined (in the SOPs)".
On 17 March 1998 the veteran wrote a history of his health problems (T22). In that history the only association he made between his low back problem and his service in Vietnam was expressed as: "[o]n returning from Vietnam in 1967 I realised that I would quickly become uncomfortable while sitting in a lounge chair. I needed to stand for extended periods of time to relieve the discomfort". He makes no mention of any incident in which he hurt his back. In giving evidence before this tribunal, the veteran explained that he took for granted that in Vietnam discomfort was taken as a norm and that it would eventually go away.
Professor Sambrook, in his report of 19 January 1999 (Exhibit 3), said:
With regard to his lower back pain he told me he was aware of back discomfort and pain from the time of his service in South Vietnam onwards and any excessive activity or movement seemed to bring out this back discomfort, but he could not recall any specific injury to his back during his service period in South Vietnam or subsequently.

Accordingly, Professor Sambrook concluded that the veteran does not satisfy any of the factors listed in SoP No. 53 of 1998, stating that he "gives no history of a discrete episode of trauma that would satisfy the definition of trauma in the instrument …". If this is correct, none of the relevant SoPs are satisfied.
The veteran said in evidence that he would have mentioned the incident of moving the generator to Professor Sambrook. He suggested that Professor Sambrook did not ask him about any specific incident, but that in the course of describing the area in which his back hurt, he mentioned the generator incident. This does not accord with Professor Sambrook's recall. In giving telephone evidence, Professor Sambrook confirmed that he asked the veteran if he had suffered any specific injury or episode to which he could attribute the low back pain, and that the veteran said he was unaware of such an event. He said that the veteran explained that he had been troubled by back discomfort throughout the period he was in Vietnam without any specific episode of injury. He said that the veteran painted a picture of the continuance of low-grade symptoms of which he became first aware in Vietnam, with no specific episode, other than the 1975 event which occurred in Tasmania.
The veteran made no reference to any specific trauma or injury incident to his low back having occurred when he was in Vietnam when being examined by Dr Wright (Exhibit 2). Further, at the hearing, the veteran was not able to say that he felt pain at the time of the incident, only a "lack of sensation" occurring after the lifting incident, rather than pain. Such a lack of sensation, according to Professor Sambrook, could be a description of a numbness and might indicate nerve compression. This was highly unlikely, as the natural history of such a condition would have prevented the veteran from continuing heavy lifting the next day.
Taking the whole of the evidence into account, I conclude that the veteran did not suffer a trauma to his lumbar spine at the time of the lifting incident. I am not satisfied that the veteran's more recent recall of searing pain on jerking or twisting having occurred within a week of the particular incident is an accurate recollection. I have no doubt that the veteran undertook the work described, but his identification now of a particular lifting incident as being an event in which he suffered a trauma does not accord with the recall he has had at other times. I am satisfied that he did not suffer acute pain at the time of or immediately after the incident. It is significant that the veteran described the acute or searing pain, which he recalls occurring within a week of the incident, as only occurring when he jerked or twisted, and that otherwise, he suffered a dull ache. This is the same situation that exists today.
I further take into account the veteran's evidence that he was involved in a lot of heavy manual work from the outset in arriving in Vietnam, and that he had back discomfort throughout the whole period. It seems that the veteran suffered low back discomfort whilst carrying out heavy manual labour which cannot be attributed to any particular incident, there being insufficient evidence that a discrete injury occurred at the time of the incident described.
The relevant factors in each of the SoPs relating to spondylosis that have been issued before or since the decision under review require the happening of a trauma before the onset of spondylosis. I am satisfied on the evidence before me that the factors requiring trauma have not been met.
Hypertension
The veteran was diagnosed with, and received medical advice for, his hypertension condition in 1984 (T21). Hypertension was not present on his discharge on 7 November 1975. The factor in the relevant SOPs that the veteran is required to meet is that his alcohol abuse occurred before or at the time of the hypertension diagnosis, and that it was in the presence of cognitive changes due to his service.
The applicant's evidence is that during his operational service he developed a habit of consuming large amounts of alcohol. He said that he started drinking in quantity when he went to Vietnam. He said that he had a bottle of scotch on 2 to 3 nights a week. He attributed this to the fact that when in Nui Dat a good friend of his was blown up and killed. He referred also to another mate, "Lofty Logan" dying in action. At this time he started questioning the reason for Australia's involvement in Vietnam and he increased his drinking.
The veteran relies on the evidence of Dr White, who attributes the veteran's heavy drinking to his war experience including the deaths of two of his colleagues as leading to the excessive alcohol consumption. However, the evidence reveals that the veteran was unaware of one of those deaths he referred to until he had left Vietnam. In relation to the other, the person referred to as "Lofty Logan", it seems that this soldier was killed in 1967, some 6 weeks before the veteran returned to Australia from Vietnam, and not in 1966 as he suggested. As to this, the respondent adduced evidence from the Veterans' Roll (Exhibit 5) indicating that the record of this soldier was the only soldier with the family name Logan who died in Vietnam at this time. On the evidence I am satisfied that the veteran experienced severe stress during the period he was serving in Vietnam. However, if he suffered alcohol abuse throughout that time, it can not be attributed to the stresses arising from the death of his friends with whom he served.
The veteran's evidence is that on returning to Australia the pattern of his alcohol consumption changed. He said that he'd go on a "2-week binge". He said that his priorities changed when he got married in 1978, and he drank less. He said, however, that at that time he still consumed more than 20 standard drinks a week. When his marriage ended in about 1982 his drinking increased. He said that he was unemployed and joined the Canberra Workers' Club and he had easy access to spirits. From January 1984 until May 1987 he increased his alcohol consumption. He said that he cut back to moderate drinking when he obtained employment with Landsat in 1985 as an electronics engineer, a job he enjoyed. However, he later resumed his heavy drinking pattern, reducing his consumption again having met his present wife in May 1987 whom he married in December 1995. Mrs Muller's evidence is that the veteran never drank much when he was with her, only at social functions. She said that he usually didn't drink at home. She said that he talked to her a lot about his drinking habits and she assumed that he drank every night when he was in the army.
Dr White did not find the condition of post-traumatic stress disorder ("PTSD"). He thought it a reasonable proposition that the veteran developed coping mechanisms for the stress he suffered in Vietnam; namely the consumption of large quantities of alcohol. In his opinion the veteran resorted to the same heavy drinking to cope with his symptoms of pain. Dr White considered that the veteran's drinking patterns since his service in Vietnam and at the time hypertension was diagnosed amounted to alcohol abuse, on the history he was given. On that history, however, he was unable to say that the veteran satisfied the diagnostic criteria A1 in DSM-IV – "recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home". As to that Dr White said that he didn't have enough information to indicate which came first. He said that the veteran's failure to fulfil those major obligations might have caused him to increase his consumption of alcohol.
Dr White could not say that the alcohol abuse in Vietnam was associated with a psychiatric condition, and was unable to confirm that the veteran satisfied the SOP which included the diagnostic criteria of the DSM-IV. Further, Dr White's attribution of the veteran's alcohol abuse in 1984 to the effect on the veteran of his experience in Vietnam and the deaths of his colleagues is based on incorrect information in relation to the timing of those events.
The veteran's consumption of alcohol satisfies factor 5(b) of SoP No. 65 of 1998, at the time he was diagnosed with hypertension in 1984. However, it does not satisfy factor 5(b) of SoP No. 76 of 1998, because he was not (a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence; and he had not (b) experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence.
Whether or not the earlier or later SoPs apply, it is not open on the evidence to conclude that at the time of the veteran's heavy alcohol consumption he was suffering psychological problems to constitute alcohol dependence or abuse under any relevant SoP. The facts and matters raised in evidence fail to establish any link between his depressive disorder and his service and alcohol abuse. I note that the veteran's accepted condition of depression arose mainly in reaction to physical pain, rather than emotional stress. I am satisfied beyond reasonable doubt that the veteran's hypertension is not war-caused.
Finding
The claimed conditions of lumbar spondylosis, cervical spondylosis, spondylolisthesis L5/S1 and hypertension are not war-caused.
Rate of Pension
The veteran is accepted as suffering from the following war-caused injuries or diseases:

bilateral tinnitus;
chondromalacia patellae of both knees;
reactive depression due to pain of musculoskeletal problems and tinnitus.

The veteran has been assessed for pension according to the Guide to the Assessment of the Rates of Veterans' Pensions (Fifth ed.) ("the Guide") at 40% of general rate, and the respondent accepts his entitlement to 50% of general rate from 8 April 1998. The veteran claims that he is entitled to 90%. If he is entitled to 70% or more, pursuant to sections 23 and 24 of the Act, it is incumbent on the tribunal to consider whether he is entitled to pension at above general rate.
In relation to the percentage degree of disability, the veteran's low back and cervical pain are not accepted war-caused conditions, and play no role in the assessment of the disability caused by the reactive depression. The assessment period is agreed to commence from 1996. Dr Wright, occupational physician, and Dr White, consultant psychiatrist, arrive at quite different levels of incapacity, on applying Table 4 of the Guide.
Dr White examined the veteran on 27 May 1996 and again on 4 December 1998, after the veteran had ceased work (Exhibit A). His assessment made in 1998 is contained in his worksheet, attachment to report of 20 July 1999 (Exhibit A).
Dr White attributes the veteran's depressive condition to his pain and inability to work. He found that the veteran's psychological condition, his consistent lack of drive, and his loss of motivation stopped him from working. He said that the veteran's negative mood was more important than his knee pain, and other musculoskeletal pains to his inability to work.
In submissions it was pointed out on behalf of the respondent that Dr White saw the veteran in December 1998 when he had just returned from Lismore, NSW where he had been unable to obtain work. He had been medically advised not to remain in Canberra. This was an unsettling time in his life. Dr Wright saw him after this, by which time the veteran had moved to Mt Gambier, South Australia, and his condition had improved a little. However, Dr White had the advantage of examining the veteran both before and after he ceased work during the assessment period. Dr White acknowledges that improvement might have taken place by the time Dr Wright assessed the veteran. It is clear that the veteran's mental condition would deteriorate if he attempted to return to work.
The difference between Dr Wright and Dr White's assessment can be accounted for by the difference times they assessed him, and the different emphasis placed by Dr Wright on his presentation, than by Dr White. This is notable in the different assessments each of the doctors gave under Table 4.1 – subjective distress – under which Dr Wright gave 3 points, and Dr White gave 15, and under Table 4.2 – manifest distress – Dr Wright gave 3 points and Dr White gave a score of 10.
Dr Wright explained in evidence that he thought the applicant "presented well and didn't look anxious or irritable" when he saw him in 1999. Dr White agrees that an occupation physician is capable of making the assessments, but says that a psychiatrist's training provides a better understanding of that condition. In his view a psychiatrist is better placed to take the history required to assess a veteran in relation to subjective distress arising out of his psychiatric condition. Dr White said that his training and skills enable him to ask the right questions in order to elicit the true picture. He took into account the fact that military personnel are taught not to express emotions, and his knowledge of the work and expertise that is required to draw out the necessary information. Dr White pointed out that despite a veteran appearing to be well, and neither anxious nor frustrated, an accurate assessment of his psychological state requires deeper probing, as a veteran often does not have his or her own internal language to describes feelings. Dr White also thought that the veteran might have improved in 1999 when Dr Wright saw him.
In Dr White's opinion the applicant's physical disabilities (particularly his back pain and tinnitus), which prevented him from undertaking his normal duties, made his depression worse. However, while he thought the back pain was significant, he saw the tinnitus also as a problem. If it were only the knee condition he did not think the veteran would be quite as depressed. He said he would have the same condition but the severity would be different.
Dr White acknowledged that the veteran's painful back and neck contributed to his anxiety and depressive condition. Some discounting of Dr White's assessed level of incapacity is appropriate to take into account the effect of the non war-caused condition. Under each of Tables 4.1 and 4.2 it is appropriate to reduced Dr White's assessment to the next point level, giving a score of 10 and 6 respectively.
Table 4.3 relates to functional loss. Dr Wright assessed this at 3 points, which seems a reasonable assessment considering Dr White noted under this head that the veteran suffered from poor concentration. Dr White, however, gave a rating of zero, as to which I assume he was influenced by the fact that the veteran is no longer working, and thus his poor concentration does not interfere significantly with the level of functioning that he would required if he was employed.
In relation to Table 4.4 – occupation – I accept that the veteran is unable to work by reason of his reactive depression. Dr White notes here the veteran's poor concentration and forgetfulness, and his poor coping abilities in the presence of any stress. He lacks motivation and the tinnitus causes significant difficulties. I am satisfied on the evidence that the veteran ceased work primarily because of these conditions, and that these alone were sufficient to prevent him from continuing to work. Had the veteran merely suffered pain in his low back and neck, neither that pain nor his anxiety and depression relating to the limitations that pain caused him are likely to have led or required him to cease work. I accept that he cannot work because of his war-caused conditions, and that a score of 8 is appropriate.
In relation to Table 4.5 – domestic situation 5 – Dr Wright acknowledges that a score of 6 is appropriate, while Dr White gives a score of 2. Dr White is in the best position to assess the veteran's domestic situation and the level of conflict he has with his family. He notes that the veteran's wife is still supportive. I accept his assessment of 2.
In relation to Table 4.6 – social interaction – Dr Wright scores 2 and Dr White 5, reflecting the difference between minor and substantial reduction in social interaction. Dr White explains that the basis of his assessment is that the veteran is socially withdrawn. The evidence of the veteran's wife supported this. Again, Dr White is in a better position to assess the veteran's ability to interact socially.
In relation to Table 4.7 – leisure activities – the different scores given by the two specialists are 2 and 5. I accept Dr White's score of 5, reflecting that the veteran has a loss of interest in most, rather than merely some, recreational pursuits.
In relation to Table 4.8 – current therapy – both specialists arrive at 3 points. I accept this assessment.
Adding the scores of the first two tables with the highest three readings on Tables 4.3 to 4.8 results in an assessment of 34. This score is to be combined with the impairment ratings for the veteran's other accepted conditions as assessed by the VRB (T23), which I accept are appropriate. These are scores of 10 for bilateral tinnitus, 5 for chondromalacia patellae of the left knee, and 20 for reactive depression. Under the Combined Values Chart, Scale 18.1 this gives a combined impairment rating of 54, rounded up to 55.
The combined impairment rating converts to a degree of incapacity according to the shaded areas of Scale 23.1 of the Guide of a lifestyle rating of 3 or 4. However, information is available in relation to the veteran's lifestyle rating as he completed a life style self-assessment (Exhibit D) on 2 August 1997. The self-assessment came to a rating of 5.
In relation to the self-assessment the respondent says that the veteran's life is more satisfactory that the self-rating of 5 would show. It is submitted that while the veteran has given up most of his recreational activities he still enjoys his computer, plays music and does some woodwork and plays with the children.
The self-assessments made by the veteran are consistent with Dr White's observations and assessments of the veteran's lifestyle when he saw him in 1988. In the normal course a self-assessment rating of only one level higher than the shaded area of Scale 23.1 might be regarded as a reasonable assessment. However, the veteran's lifestyle has improved a little since his move to Mt Gambier. In all the circumstances it is appropriate to accept a lifestyle rating of 4.
Converting the veteran's impairment rating with a lifestyle rating of 4 provides a 90% degree of incapacity. Having concluded that the veteran is entitled to pension of 90%, of general rate, it is necessary to consider whether he is eligible for above general rate under sections 23 or 24 of the Act.
Whether above general rate
The Legislation
Sections 23 and 24 of the Act makes provision for a veteran under the age of 65, and who has an assessed degree of incapacity of 70% or more, to receive a pension at above general rate in certain defined circumstances. Section 23 provides for an intermediate rate of pension where the veteran is unable to engage in a remunerative occupation except on a part time basis or intermittently. Section 24 provides for special rate where the veteran is regarded as being totally and permanently incapacitated - unable to engage in a remunerative occupation for more than 8 hours a week. The relevant provisions provide:
23(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'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
(c)       the veteran is, by reason of incapacity from 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 from that incapacity; and
(d)       section 24 or 25 does not apply to the veteran.
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.
23(3)    For the purpose of paragraph (1) (c):
(a)       a veteran who is incapacitated from war-caused injury or war-                 caused disease, or both, to the extent set out in paragraph (1) (b) 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:
(i)        if 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;
(ii)       if the veteran is incapacitated, or prevented, from   engaging in remunerative work for some other reason; or
(iii)      if the veteran has been engaged in remunerative work on              a part-time basis or intermittently for reasons other than his or her   incapacity from that war-caused injury or war-caused disease, or   both; 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.
…
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.
24(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.

The veteran was born on 28 March 1946. His application for an increase in pension was lodged with the respondent in 1996; that is, he was under the age of 65 when the application was made and he therefore complies with the provisions of subsection 24(1)(aa) and (aab). I have found that he satisfies subsections 23(1)(a) and 24(1)(a). The issue remains as to whether the veteran satisfies subsections 23(1)(b), 23(2) or 24(1)(b). If so, it follows that he has suffered a wage loss under subsections 23(1)(c) and 24(1)(c) from mid June 1998 when he ceased work, or effectively from 15 June 1998.
On being discharged from the army in 1975 the veteran was employed in various positions. The veteran worked for Wormwald Security between November 1987 and February 1993 when he was laid off. He was unemployed then, except for some part-time cleaning until May 1994 when he was employed by AWA Services as a computer technician until he ceased work in June 1998. In this last position the veteran provided on-site services to government departments, business and home computing (see history taken by Dr Wright in his report of 26 July 1999, Exhibit 2). Restructuring in AWA occurred and he was unable to cope with the nature of the work. His evidence is that his condition of tinnitus made it very difficult for him to work. He was slow and he also suffered pain in his knee, neck and back. He moved to Lismore and looked for a job. He was offered a job driving a truck but he was unable to take it because of his knee condition. The veteran returned to the Canberra region and did not look for a job. He accepted medical advice that he should not stay in Canberra because of the effect it had on his physical and mental health. Since March 1999 he has been living in Mount Gambier in South Australia.
Thus, the veteran last worked in mid June 1998, and has not actively sought work since. From March 1999 the veteran has been in receipt of a disability support pension, having been certified as disabled by Dr Williams on 15 March 1999 (Exhibit B).
Dr Wright assesses the veteran's current incapacity at 50%. In coming to this level of disability he eliminated the effect of the veteran's low back condition, which he sees as a significant disability. He sees the veteran's widespread degenerative condition of the spine, and most significantly the lumbar region, as having the most effect on his ability to work. He agrees that the anxiety depressive condition, and the knee pain and tinnitus from which the veteran suffers, are sufficient reason in themselves for the veteran being unable to work more than 20 hours a week. This view supports the veteran's entitlement to pension at intermediate rate under section 23.
Dr White assesses the veteran as totally incapacitated for work by virtue of his depressive condition, relating to the pain from which he suffers from his accepted conditions. Dr White acknowledges that the veteran's neck and lower back pain affected his decision to cease work in June 1998 with AWA. However, Dr White thinks that this aspect of his difficulties was not important to his decision to leave. In his view the veteran found that he could not cope, the change in his work affecting his physical ability to work, mainly as a result of the tinnitus, which compounded his depression.
I prefer Dr White's assessment of the effect of the veteran's reactive depression on his ability to work. Dr Wright saw the veteran after he had moved to Mt Gambier and was more comfortable in that environment and not working. If the veteran were to return to work his mental and physical health is likely to be substantially worse.
The veteran is not able to work. I find that his war-caused conditions of tinnitis, chondromalacia patellae of both knees and depressive condition have prevented him from working in the areas for which he is reasonably skilled and qualified, as an electronic technician, a truck driver, or in labouring work. His neck and low back problem on their own are not likely to have prevented him from doing some suitable work in any of these capacities, so long as he was free to change his position from time to time. Though pain from all of his conditions play a role in his depressive condition, being unable to work and the loss of self-esteem that results, is a significant cause. He said in evidence that he felt worthless when he couldn't work. He is only 54 years old, and, not being able to work has left him feeling that he has little purpose in life.
As a consequence the veteran has suffered a wage loss as a result of his war-caused injuries alone and qualifies for pension at special rate under section 24.
Date of effect
It is agreed that the earliest date of effect of any decision favourable to the veteran is 16 March 1998, six months before the date the application for review by this tribunal was lodged, leave having been granted for it to be lodged out of time (subsection 177(2)(b) of the Act). However, the veteran was still employed at that time, ceasing work some time in mid June 1998. Until that time he does not satisfy subsection 24(1)(b) of the Act. It is appropriate, therefore, that the increase in pension to which the veteran is entitled operates from 15 June 1998.
Decision
The tribunal sets aside the decision under review, and in substitution therefor decides:
(a)That the veteran's conditions of lumbar spondylosis, cervical spondylosis, spondylolisthesis L5/S1 and hypertension are not war-caused.
(b)That the veteran be granted pension at special rate pursuant to section 24 of the Act to operate from 15 June 1998.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member.
Signed:   .....................................................................................
  Associate
Dates of Hearing  2-3 August 1999
Date of Decision  5 July 2000
Counsel for the Applicant        Mr Paul Crabb
Solicitor for Applicant               Snedden, Hall & Gallop
Counsel for the Respondent    Mr John Sylvestre
Solicitor for the Respondent    Advocacy, Department of Veterans' Affairs