Re Boardman and Repatriation Commission

Case [2001] AATA 764

DECISION AND REASONS FOR DECISION [2001] AATA 764

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2000/968
VETERANS' APPEALS DIVISION  )          

Re      KERRY BOARDMAN       
  Applicant

And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M Sassella, Senior Member Ms N Bell, Member     

Date            6 September 2001

Place             Sydney

Decision      The decision under review is set aside.  In substitution for that decision the Tribunal decides that the Applicant's chronic alcoholism is war-caused and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 7 February 1997.   
  ..............................................
  [sgd]            Mr M J Sassella

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – disability pension – whether Applicant's chronic alcoholism is war-caused – whether material before the Tribunal points to a hypothesis connecting Applicant's chronic alcoholism to war service – whether hypothesis raised is reasonable – "stressful event" – whether Tribunal is satisfied beyond reasonable doubt that the Applicant's condition was not war-caused – special rate – whether Applicant has incapacity to undertake remunerative work for periods aggregating more than eight hours a week – whether that incapacity alone prevents the Applicant form continuing to undertake remunerative work that the Applicant was undertaking – whether the Applicant is suffering a loss of salary or wages, or earnings on his own account that he would not be suffering if he were free of that incapacity

Veterans' Entitlements Act 1986 – ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), 14(1),(3),(4), 20(1), 21A, 23, 24, 28, 120(1),(3),(4), 120A

Statement of Principles Instrument No 5 of 1994 (Psychoactive Substance Abuse or Dependence)

Re Kelly and Repatriation Commission [2001] AATA 254

Banovich v Repatriation Commission (1986) 69 ALR 395

Re Biscoe and Repatriation Commission [2001] AATA 605

Re Howe and Repatriation Commission (1999) 59 ALD 309

Repatriation Commission v Binding [1999] FCA 974

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission (2000) 62 ALD 174

Arnott v Repatriation Commission (2001) 106 FCR 83

REASONS FOR DECISION

  1. Mr John Boardman ("the Applicant") lodged an application for service pension with the Department of Veterans' Affairs ("DVA") on 7 May 1997 for "eyesight, ringing in ears, smoking and alcohol" (T8).  The Applicant lodged a further claim on 16 June 1998 in respect of anxiety state and personality disorder.  In a decision dated 20 April 1998 the Applicant's claim for "eyesight, ringing in ears, smoking and alcohol", reworded so that the claim was for refractive error, tinnitis, chronic alcoholism and retinoschesis, was refused by the Repatriation Commission ("the Respondent"), except that the claim for tinnitis was deferred pending further medical investigation (T13A).

  2. On 9 October 1998 the Applicant's claim for "anxiety state and personality disorder and shortness of breath", reworded as post traumatic stress disorder and chronic airways inflammation, was accepted with effect from 16 March 1998.  In addition it was decided to increase the Applicant's disability pension to 100 per cent of the general rate with effect from 16 March 1998 (T22).

  3. On 17 August 1999 the Respondent decided to revoke the determination of 9…

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Re Boardman and Repatriation Commission [2001] AATA 764
Case
[2001] AATA 764
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal was an appeal by the Applicant against a decision of the Repatriation Commission that the Applicant's chronic alcoholism was not a war-caused disability. The Applicant contended that his chronic alcoholism was a result of the stress he experienced while on operational service with the Royal Australian Navy in Vietnam, and that he should be awarded a disability pension at the special rate. The Tribunal was required to determine whether the Applicant's chronic alcoholism was war-caused and, if so, whether he qualified for a disability pension at the special rate.

The Tribunal found that the Applicant's evidence, when considered alongside the material before it, did raise a reasonable hypothesis that his chronic alcoholism was a result of the stress and constant fear he experienced while on operational service in Vietnam. The Tribunal noted that the Applicant began drinking alcohol in 1964, once he was 19, while in service in the Far East, due to stress. The Tribunal was satisfied that the material before it did raise a reasonable hypothesis connecting the Applicant's chronic alcoholism with his circumstances of service rendered by him.

In light of this finding, the Tribunal set aside the decision under review and decided that the Applicant's chronic alcoholism was war-caused and that the Applicant qualified for payment of disability pension at the special rate with effect from the first pension payday on or after 7 February 1997.

The Tribunal's decision was based on the evidence presented by the Applicant and the relevant legislation, including sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), 14(1),(3),(4), 20(1), 21A, 23, 24, 28, 120(1),(3),(4), 120A of the Veterans' Entitlements Act 1986. The Tribunal found that the Applicant's chronic alcoholism was a war-caused disability and that he qualified for a disability pension at the special rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the commencement of the hearing of this appeal, on 2 July 2001, the Applicant's representative informed the Tribunal that he would not be pressing the claim in relation to post traumatic stress disorder and that it had been agreed between the parties that the Applicant suffers from chronic alcoholism. In addition, the conditions of sensory neural hearing loss with tinnitis and chronic airways limitation have been accepted by the Repatriation Commission. Background The Applicant was born on 29 June 1945. He grew up in Lithgow and left school at the age of 15. He told Professor Breslin (Exhibit R2) that he joined the Navy for the next 20 years, becoming a petty officer/coxswain. He reported to Dr Bell (Exhibit R1) that he had no problems with either of his parents; while his father drank he was not an alcoholic and his mother was "an absolute tea-totaller". He has two other siblings but does not talk to either of them. The Applicant told Dr Bell that he had been healthy as a child, had an average standard at school and left school after attaining the Intermediate Certificate. The Applicants' service records at T5 show that he joined the Royal Australian Navy on 26 August 1962 and was discharged on 25 August 1982 after 20 years service. He was deemed to have been allotted for service in an operational area (Vietnam) as follows:"HMAS SYDNEY: from 8 June 1965 to 11 June 1965 from 28 September 1965 to 30 September 1965from 4 May 1966 to 6 May 1966" The Applicant told Professor Breslin that after leaving the Navy he worked as a labourer at an Army camp at Narrangaroo, doing gardening and tree-lopping for approximately two years. He was then unemployed for two years, and became a security guard/nightwatchman at Coles Supermarket in 1987 for five years. In 1991 or 1992 he was retrenched from this job because the Coles store where he was working was to open 24 hours a day and no longer needed a nightwatchman. The Applicant told Dr Breslin that he then tried a few odd labouring jobs, but has not done any work at all since 1997. The Applicant has never married.Hearing and appearances The Tribunal convened a hearing on 10 July 2001. Mr Dawson represented the Applicant and Ms Pacey represented the Respondent.Relevant legislation The relevant legislation is found in the Veterans' Entitlements Act 1986 ("the Act") at sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), 14(1),(3),(4), 20(1), 21A, 23, 24, 28, 120(1),(3),(4), 120A:"6C Operational service—post World War 2 service in operational areas (1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b) a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…7 Eligible war service(1) Subject to subsection (2), for the purposes of this Act: (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and……9 War-caused injuries or diseases (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …13 Eligibility for pension (1) Where: … (b) a veteran has become incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay:(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or (d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran; in accordance with this Act.…14 Claim for pension (1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). Note 1: some dependants do not have to make a claim (see section 13A). Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19(3)). … (3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b). (4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…20 Dates of effect that may be specified in respect of grant of claim for pension (1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.…21A Determination of degree of incapacity (1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.…23 Intermediate rate of pension (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. (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. 24 Special rate of pension (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. …28 Capacity to undertake remunerative work 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). …120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. …120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A). (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis.Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be."

Evidence

Evidence Before The Court

As to the Applicant's contention that he had a rifle "shoved up his nose", the report states that this may well have happened but that "it should not have been loaded". As to the Applicant's visit ashore with the mailman, the report allows for the possibility of this having happened but expresses doubt that the Applicant would have seen "starving children" as he had reported to the VRB. The report accepted, in relation to the contention by the Applicant, that the scare charges he heard made him fearful, and that he had probably not heard the sound of scare charges before the ship arrived in Vung Tau Harbour, but said that he and the rest of the ship's company would have become familiar with the sound shortly after HMAS SYDNEY anchored. The report also stated that the Applicant was probably woken up at times by nearby scare charge explosions.Applicant's evidence and submissions The scope of the Applicant's case is set out in the Amended Statement of Facts and Contentions dated 10 May 2001 (Exhibit A4). The Applicant contends that he suffers from a war-caused disability of chronic alcoholism and in that respect relies on the reports of Dr Ahmed dated 27 February 1998 (T13) and on the report by Dr Schmidtman dated 20 March 2001 (Exhibit A2). The Applicant also contends that he is entitled to a pension at special rate. The Applicant and Respondent were in agreement that the relevant Statement of Principles to be applied is number 5 of 1994, concerning Psychoactive Substance Abuse or Dependence (T41). The Respondent conceded that the Applicant has chronic alcoholism and the Applicant indicated at the beginning of the hearing that he did not wish to pursue the condition of post traumatic stress disorder. The Applicant gave evidence based on his statement of 30 April 2001 (Exhibit A1). The Applicant's evidence was, in essence, that he first went to sea on the HMAS SYDNEY in the Far East Strategic Reserve in 1964 and experienced stress and constant fear of attack by "communist infiltrators". He said that while there, he became aware of an incident that involved an exchange of fire between an Australian mine-sweeper and a communist vessel. The Applicant said that he started drinking alcohol in 1964, once he was 19, while in service in the Far East, due to stress. He said he began with a few pints while on shore leave in Singapore. He maintains that he had not consumed alcohol before this time. The Applicant said that on his first trip to Vietnam in 1965 his recollection is that they were not told where they were going and they simply snuck out of Sydney Harbour at about midnight. He remembered arriving in Vung Tau Harbour and that he began to get scared when they were issued with ammunition and told to watch for strange things in the water. The ship was at Defence Stations with two watches doing eight-hour shifts each. The ship was blacked out. The Applicant said that it was constantly on his mind that enemy divers might lay a mine under the ship as the ship was loaded with ammunition and petrol. The Applicant said that he had to sweep some dead bodies off pontoons next to the ship in the morning. He said that he and some others went ashore on the first day on a mail escort and at the end of the stay in Vung Tau he went to Singapore for two days "R and R" but only had a couple of beers. He was then out of operational waters for about three months.

Decision

Reasons for decision

The date of effect of the decision is 7 February 1997, the Applicant's claim in respect of chronic alcoholism having been lodged on 7 May 1997.Decision The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant's chronic alcoholism is war-caused and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 7 February 1997.

Ratio Decidendi

Legal Principle Established

The relevant legislation is found in the Veterans' Entitlements Act 1986 ("the Act") at sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), 14(1),(3),(4), 20(1), 21A, 23, 24, 28, 120(1),(3),(4), 120A:"6C Operational service—post World War 2 service in operational areas (1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b) a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…7 Eligible war service(1) Subject to subsection (2), for the purposes of this Act: (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and……9 War-caused injuries or diseases (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …13 Eligibility for pension (1) Where: … (b) a veteran has become incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay:(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or (d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran; in accordance with this Act.…14 Claim for pension (1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). Note 1: some dependants do not have to make a claim (see section 13A). Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19(3)). … (3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b). (4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…20 Dates of effect that may be specified in respect of grant of claim for pension (1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.…21A Determination of degree of incapacity (1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.…23 Intermediate rate of pension (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. (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. 24 Special rate of pension (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. …28 Capacity to undertake remunerative work 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). …120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. …120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A). (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis.Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be."