Stewart and Repatriation Commission - [2000] AATA 1021

DECISION AND REASONS FOR DECISION [2000] AATA 1021

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1995/125

VETERANS' APPEALS DIVISION          )
           Re      Prudence Christine STEWART (Legal Personal Representative of Keith Robert STEWART, deceased)
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date22 November 2000
PlaceSydney

Decision The Tribunal – 1. Varies the decision of the Delegate of the Repatriation Commission ("the Respondent') dated 22 October 1993 insofar as the diagnosis of the claimed condition "post-meningitic epilepsy" is amended to read "epilepsy" and determines that condition is a war-caused disease. 2. Sets aside that part of the decision of the Respondent, as varied, that assessed pension payable to Keith Robert Stewart at 10 percent of the General Rate, and in substitution therefor decides that pension is payable to the estate of the late Keith Robert Stewart at 20 percent of the General Rate on and from 27 January 1993 until and including the day of his death, that being 21 July 1997. 3. Affirms the decision under review in all other respects.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – ENTITLEMENT – ambit of "decision under review" – whether required to review whole of "decision under review" – whether jurisdiction to review an accepted war-caused disease of post-meningitic epilepsy which was not considered by the VRB – further evidence not before the Commission or VRB became available prior to hearing which challenged whether post-meningitic epilepsy was war-caused – whether VRB failed to consider part of reviewable decision – application of s31 review – whether post-meningitic epilepsy correct diagnosis of claimed condition – whether condition war-caused – no Statement of Principles – whether raised facts pointed to hypothesis – whether late onset epilepsy attributable to meningitis suffered on service is a reasonable hypothesis – whether hypothesis disproved beyond reasonable doubt – whether epilepsy caused by cerebrovascular disease or alcohol consumption
ASSESSMENT – Veteran suffered from non-accepted disability of depression – whether depression could be assessed as separate condition or as part of war-caused epilepsy – no formal claim lodged – depression arose from accepted disability – whether GARP-IV or GARP-V applied – whether Veteran had accrued right to determine assessment using GARP IV – whether GARP rating for depression allowable – Veteran assessed at 10 per cent of General Rate – whether entitled to Special Rate – whether Veteran unable to work due to war-caused disease alone – whether depression contributed to incapacity to work – whether higher General Rate pension payable

Veterans' Entitlements Act 1986 - ss 9, 24, 31, 120(1), 120(3), 126, 135, 175, 196B
GARP IV, GARP V
Acts Interpretation Act 1901 – s50

Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Keeley (2000) 98 FCR 108
Yobir v Administrative Appeals Tribunal (1994) 48 FCR 246
Bramwell v Repatriation Commission (1988) 158 ALR 623
Stafford v Repatriation Commission (1995) 36 ALD 578
Repatriation Commission v Cooke (1998) 90 FCR 307
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Owen v Repatriation Commission (1995) 59 FCR 93
Sutherland v Repatriation Commission (1996) 41 ALD 243
Re Anderson and Repatriation Commission (1998) 53 ALD 467

REASONS FOR DECISION

22 November 2000 Mrs M T Lewis, Senior Member

This is an application lodged by Keith Robert Stewart ("the Veteran") for a review of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 22 October 1993. That decision determined that post-meningitic epilepsy was war-caused within the meaning of s9 of the Veterans' Entitlement's Act 1986 ("the Act") and granted disability pension at 10 percent of the General Rate. That decision also determined that essential thrombocytosis and osteoarthritis right knee were not war-caused conditions.
The Veteran sought review by the Veterans' Review Board ("the VRB"), and on 2 May 1994 the VRB affirmed that part of the decision of the Respondent in respect of essential thrombocytosis and osteoarthritis of the right knee, and adjourned the hearing in respect of assessment. Subsequently on 11 November 1994 the VRB affirmed that the Veteran's pension should be assessed at 10 percent in respect of post-meningitic epilepsy. An application for review to this Tribunal was then lodged on 3 February 1995.
The first day of the hearing in this matter was 22 May 1996. The only oral evidence taken on that occasion was from Dr Baz, occupational physician, who noted that the Veteran suffered from grand mal seizures for which he was prescribed Dilantin; he also suffered from complex partial seizures, depression and impairment of his cognitive function. Dr Baz opined that each of these were different disorders or factors within the overall diagnosis of epilepsy.
The question was raised as to whether the Tribunal could, and if it could, whether it should, amend the diagnosis of the condition "post-meningitic epilepsy", to include "with reactive depression". Dr Baz considered that in assessing the medical impairment in respect of "post-meningitic epilepsy", and in particular in considering "loss of functions", it was appropriate to assume that one war-caused condition, viz. post-meningitic epilepsy, can cross the "loss of function" boundaries contained in different tables in GARP, and that these can then be combined. At that time GARP-IV applied.
At the conclusion of Dr Baz's evidence-in-chief and at the request of both parties, the hearing was adjourned without taking evidence from the Veteran, to allow time for the parties to obtain further medical evidence in order to address consequential medical issues raised by the approach mooted by Dr Baz.
Subsequently the Veteran lodged an informal claim for depression and on 2 October 1996 and again on 14 October 1996 the Respondent invited him to make a formal claim (exhibit 10). However the Veteran did not lodge a formal claim before he died on 21 July 1997. Thereafter on 29 May 1998 his widow, Prudence Christine Stewart, became his legal personal representative pursuant to s126 of the Act (exhibit 6) and continued the application on his behalf.
The Veteran had bowel surgery on 11 July 1997. He was discharged from hospital on 20 July 1997, and died suddenly the following morning. The autopsy report stated –
The examination of the brain revealed an area of old infarct involving the superior temporal gyrus and changes in the hippocampus consistent with epilepsy. However these changes did not contribute to his death.
The deceased had died from pulmonary embolus with ischaemic heart disease as a contributing factor.
After the Veteran's death and the appointment of his widow as his legal personal representative both parties sought further medical reports. The hearing resumed on 3 September 1999 to take further evidence. At that time the Tribunal was advised on behalf of the Veteran's legal personal representative that she was not seeking to claim that the Veteran's death was caused by his war service, but she wished to pursue the assessment claim as his legal personal representative. If the Veteran was entitled to Special Rate pension under the head of this application, then on his death she would become entitled to a war widow's pension.

The Tribunal had before it documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Prudence Christine Stewart gave oral evidence at the hearing. Dr Martha Baz and Dr Paul Francis Teychenne gave evidence at the request of the Applicant. Dr Rob McMurdo gave evidence for the Respondent. Dr Ronald Joffe and Dr Christopher Arthur gave evidence by telephone for the Respondent.
The following documentary evidence was tendered on behalf of the Applicant:

Reports of Dr Martha Baz, occupational physician, dated 7 February 1996 and 6 June 1995 (exhibit A);
Report of Dr Philip Greenberg, dated 11 December 1995 (exhibit B);
Statement of Mrs Prudence Stewart, dated 23 August 1999 (exhibit C);
Employment history of Mr Keith Stewart, with summary of earnings (exhibit D);
Report of Dr Paul Teychenne, consultant neurologist, dated 4 May 1999 (exhibit E);
Reports of Dr Martha Baz, dated 27 August 1996, 13 January 1997 and 27 February 1997 (exhibit F);
Autopsy Report of Mr Keith Stewart, conducted on 21 July 1997 (exhibit G);
Letter from the Department of Veterans' Affairs to Dr Joffe, dated 17 September 1996 (exhibit H);
Report of Dr Eric Schiller, dated 4 December 1996 (exhibit J);
Death Certificate of Enid Kathleen Stewart, dated 10 March 1988 (exhibit K);
Copy of p7 of The Sydney Morning Herald, dated 21 July 1942 (exhibit L); and
Claim form (Form 1) signed by Prudence Christine Stewart dated 6 October 1998 with covering letter to the Respondent from the Applicant's solicitor dated 18 August 1999 (exhibit M).

The following documentary evidence was tendered on behalf of the Respondent:

Report of Dr Mark Burns, occupational physician, dated 17 May 1995 (exhibit 1);
Report of Dr Ronald Joffe, dated 1 June 1998 (exhibit 2);
Reports of Dr Joffe, dated 21 September 1996, 27 August 1997, 7 July 1998 and 19 August 1999 (exhibit 3);
Reports of Dr Christopher Arthur, consultant physician in clinical and oncological haematology, dated 7 March 1997, 15 April 1997 and 3 August 1999 (exhibit 4);
Reports of Dr R McMurdo, dated 15 July 1996 and 27 September 1996 (exhibit 5);
Delegate's decision dated 29 May 1998 under s126 of the Act, appointing Mrs Prudence Christine Stewart as legal personal representative of the deceased Keith Robert Stewart (exhibit 6);
Clinical notes of Dr George Selby (exhibit 7);
Report of Dr Roger Bartrop, physician in psychological medicine, dated 13 January 1991 (exhibit 8);
Report of Dr Joffe, dated 29 October 1999 (exhibit 9); and
Letter from the Applicant's solicitor to the Respondent dated 30 May 1996 purporting to be an informal claim for depressive disorder, and responses from the Respondent dated 2 October 1996 and 14 October 1996 (exhibit 10).

The Respondent contended at the resumed hearing that as a result of the findings on autopsy the diagnosis of post-meningitic epilepsy was incorrect, that the Veteran had not suffered from meningitis and did not suffer from a war-caused disease of post-meningitic epilepsy. In effect the Respondent was cross-appealing the decision of the Delegate made on 22 October 1993, being the decision under review, part of which accepted post-meningitic epilepsy as a war-caused condition. In this regard the Respondent relied on the decision of the Federal Court in Fitzmaurice v Repatriation Commission (1989) 19 ALD 291 as authority for the Tribunal having power to review the whole, or any part of, the decision under review. It was also contended for the Respondent that it was not open to the Tribunal to assess the extent of the Veteran's incapacity resulting from depression, a psychiatric disease, which had not been determined to be war-caused.
It was the Respondent's case that post-meningitic epilepsy was not the cause of the seizures suffered by the Veteran, which was his reason for discontinuing work; rather, his seizures were caused by cerebrovascular disease or excessive alcohol intake, neither of which had been established as being due to war service.
background
The Veteran was born on 29 December 1923. He served in the RAAF from 1942 to 1946 as a wireless operator in New Guinea and the islands, and at Tarakan. He claimed that in July 1942, during service at Ballarat, he suffered cerebro-spinal meningitis, and was treated with sulphonamides.
After discharge from the RAAF the Applicant studied accountancy. He then worked as a company secretary for different firms, and later performed consultancy work until his retirement in 1989. He claimed that he suffered a grand mal seizure in February 1989, another in April 1989, and a further grand mal seizure in March 1992 (T3).
legislation
Standard of Proof
120.     (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to 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.
        (2) …
      (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 the 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) …
as the case may be, if the Commission, after consideration of the whole of the evidence 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.

Evidence of Prudence Christine Stewart

Mrs Stewart is the widow of the Veteran. She met the Veteran in about 1970 when they were both employed by Waltons. At that time the Veteran's first wife was still alive. Mrs Stewart could not recall when his first wife died and she was not aware of the cause of death. She said he never discussed it with her.
Mrs Stewart said that from 1968 to 1985 the Veteran was employed as a company secretary at Waltons. He was a member of the senior executive team and over the years he had been involved in mergers and acquisitions, and was the liaison point for handling the company's legal matters. He was a qualified accountant and experienced administrator. She said he continued to use these skills in his consulting work after he left Waltons.
Mrs Stewart agreed that there was a period after 1985 when the Veteran left Waltons and before she lived with him in 1989, when she had very little contact with him. She left Waltons in 1980. She said that during 1980 to 1985 they met occasionally for lunch. Until 1989 they had merely been work acquaintances. In 1989 they became close. They saw each other socially for lunch or dinner and would sometimes have a drink. She said one or two drinks did not affect the Veteran at all.
They started living together mid to late 1989. Prior to that time she did not have intimate knowledge of him. The Veteran experienced his first grand mal seizure in 1989, before they lived together. She did not recall the Veteran having grand mal seizures when he drank a lot of alcohol, which was the history the Veteran gave to Dr Selby. She said they enjoyed a social drink and they shared a bottle of wine over two to three hours when they dined out, which they did not do regularly. She said that the Veteran "may have" drunk when she was not present but she did not think he did. She recalled he was admitted to hospital following a drug overdose that he took together with alcohol, to which she referred as his "suicide attempt".
Mrs Stewart said the drinking history obtained by Dr Selby, of 3 bottles of beer a day, a glass of wine each day, half a bottle of wine at weekends, and a bottle of whisky every four days – did not fit with her own observation. She said that sometimes when they went shopping the Veteran would buy a six pack of beer, but this was not a regular occurrence. They would also keep a bottle of whisky and a few bottles of wine in the house. She could not recall how often she replaced the bottle of whisky. She was working around this time, from approximately 8am to 7pm. She said they always went shopping together.
Mrs Stewart recalled the Veteran had been drinking one Anzac Day when he met with some ex-service people and they marched. She collected him at the club where they had been drinking and she noted that he had "a few drinks". She said he was not "obviously" under the influence of alcohol. She thought this was in 1989, but was not sure. She said she had never observed him "incapable, inebriated, unable to talk", apart from the time when he took the overdose.
Mrs Stewart said that the Veteran retired from full-time employment at Waltons on grounds of age. He then planned to seek alternative employment. He told her that he worked for McDonald Douglas Information Systems in 1987/1988. She assumed that this position involved accounting. She recalled that he also worked at NZI Investment Services Ltd in a full-time temporary position, but she was not sure of the time of that employment.
Mrs Stewart did not recall that the Veteran undertook any work between May and October 1989. From October 1989 to January 1990 the Veteran performed consulting work for National Computer Services, which involved him in a complex and detailed litigation matter. He was required to examine archived documents and liaise with the lawyers handling the matter. She did not know when the Court case occurred. It was during that time that he suffered a seizure. He attempted to continue working while on medication. However, he found that he was unable to concentrate and did not feel he was "doing justice" to the work. This was his last consulting work, and he was reluctant to leave. She observed that he was "clearly distressed by his inability … and was anxious about the fact that he wasn't able to work in the way he normally did".
Mrs Stewart said that prior to 1989 the Veteran was a quiet, reserved but capable senior executive who was socially adept and had a ready sense of humour and wit. He enjoyed attending sporting events, concerts, and dining with friends. However, after the commencement of the seizures he gradually withdrew socially and became very depressed. She said he shunned company and could not cope with crowds. He stopped driving and had to use public transport. She said it got to the stage where he could not cope in public and she needed to accompany him everywhere. She said that he would not answer the doorbell at home if he was alone. Mrs Stewart said that the Veteran's inability to continue in his consulting work after the commencement of his seizures caused a loss of income.
Mrs Stewart agreed that in late 1990 she was treated for cancer, which was distressing for both her and her husband. She said he was "anxious" about her. Although her cancer had been detected early and was never life-threatening, she did not know how her husband had perceived the situation at that time.
Mrs Stewart said that initially they lived in a unit and then moved into a house in about 1990. She said the Veteran liked living in a house. He was anxious about being able to pay off the mortgage at that time, and she had to pay it. She thought he was concerned that she had become the breadwinner.
Although Mrs Stewart recalled that the Veteran consulted Dr Ferguson of East Killara, she did not recall him having consulted Dr Bartrop, a psychiatrist, in 1991. She said that the changes she observed in the Veteran were gradual. She could not recall any particular incident around January 1991 that would have prompted him to see a psychiatrist. She said that he was concerned about his inability to continue working and gradually he became more depressed. She tried to encourage his interest in things. She bought the Financial Review and related journals for him to read in an attempt to maintain his longstanding habit, and she observed him reading the journals during the evenings or on weekends. He also continued to read the daily newspaper. She said that he enjoyed reading. She said that for about a year before he died he became very withdrawn and did not read much, but he listened to music.

Mrs Stewart took public transport to work so there was a car available for the Veteran to use during the day, but she was unaware whether he used it. She said that in June 1995 he was still using public transport. She disagreed that he was still driving a car, as she was the driver. She could not think of any reason why he would tell Dr Baz that he had no difficulty driving his car. She said that routinely they went shopping together and she would drive. She also drove him to and from any sporting events at the time he was attending these. She said that by June 1995 their only outing was to go shopping. She said that in mid 1995 his journeys on public transport were to attend medical appointments. She could not recall whether he had continued to hold a driver's licence until he died. She said he had discussed with her his concern about having an epileptic seizure whilst driving. She said that the last work he did required him to drive one hour to and from work. This was a factor, but not the only factor, in his inability to continue to work.
medical evidence
The autopsy report noted that the Veteran had been treated for a heart condition for the previous ten years. He had had surgery for a pre-cancerous bowel condition on 11 July 1997 and was discharged from hospital on 20 July 1997. Early the next morning he was found dead, having suffered a pulmonary embolus which was found at autopsy. Neuropathological examination of the brain was reported as follows (exhibit G) –
Macroscopic examination of brain:
The brain was re-examined after fixation. The superior sagittal sinus was patent. The olfactory bulbs and tracts were present on the specimen and appeared normal. There was moderate patchy atheroma of the arteries at the base. The most severely affected artery was the right middle cerebral artery. There was severe atheroma of a branch of the right middle cerebral artery near its origin. No aneurysms were found. The arteries at the base appeared patent. The rostral basilar artery had been torn artefactually. The left vertebral artery was not on the specimen. There was a minimal groove on the inferior surface of each uncus and minimal paratonsillar grooves. The gyri were not flattened. The sulci appeared a little widened. The right mamillary body appeared to be a little smaller than the left. The right superior temporal gyrus in its middle and posterior thirds was sunken below the surface and was a little soft. The posterior communicating arteries were each approximately 2mm in external diameter. The proximal portion of the right posterior cerebral artery was smaller than the more distal portion, there apparently being a significant contribution by the posterior communicating artery. The foramina of Lushka and Magendie were patent.
The cerebrum was cut coronally. No abnormality was seen on the cut surface of the brain stem or cerebellum. There was an old infarct, partially cystic, involving much of the right superior temporal gyrus with sparing of its most anterior portion. It extended into the lateral portion of the right occipital lobe and into the insula and into the middle temporal gyrus posteriorly. There was a small focal segment of infarction 5 mm in length, in the left insula inferiorly. There was some flattening and discolouration of the head of the right caudate nucleus. The lateral and third ventricles were of normal size. The sulci generally did not appear widened. No other abnormality was seen on the cut surface of the cerebrum.
Microscopic examination of brain:
Right middle cerebral artery (main trunk):
Moderately severe atheroma.
Right middle cerebral artery (branch):
Moderately severe atheroma.
Midbrain:
A very little extraneuronal pigment in the substantia nigra.
Medulla:
No abnormality seen.
Left frontal lobe:
A few red cells in the leptomeninges focally.
Left temporal lobe:
No abnormality seen.
Right temporal lobe:
Old infarct involving grey and white matter, with a little focal calcification.
Thalamus (left, right):
Possible, slight patchy neuronal loss.
Mamillary bodies:
No abnormality seen.
Hippocampus left (anterior, posterior):
Some astrocytic hypertrophy and hyperplasia in CA4 with probable slight loss of neurones.
Right hippocampus (anterior):
Some astrocytic hypertrophy and hyperplasia in CA4 with probable slight loss of neurones.
Right hippocampus (posterior):
Very slight changes in CA4, pallor and rarefaction with reactive astrocytes in portion of the adjacent white matter, supero-laterally.
Left amygdaloid neucleus:
Astrocytes are a very little prominent.
Right amygdaloid neucleus (2 blocks):
No abnormality seen, a few lymphocytes associated with two vessels in one section.
Left striatum:
A very little extraneuronal pigment, occasional focus in the caudate nucleus with prominent astrocytes and some probable loss of neurones.
Right striatum:
Old infarction involving portion of the caudate nucleus, a very little extraneuronal pigment in the putamen.
Right cerebellar hemisphere:
Slight patchy loss of Purkinje cells.
Opinion: There is an old infarct involving the right superior temporal gyrus of doubtful significance. There are minimal changes in each hippocampus.
Dr Teychenne, neurologist, provided a report dated 4 May 1999 (exhibit E). He disagreed with the opinion in Dr Joffe's report of September 1996 (exhibit 3) that the Veteran had transient ischaemic attacks as there was no evidence to support that diagnosis - the infarcts reported at autopsy were silent and the duplex study showed minimal vascular disease. There was no evidence of vascular disease in either temporal lobe, and there was a localised infarct in one temporal lobe. The other lobe did not show evidence of cerebrovascular disease. Whilst the infarct in the right temporal lobe could have caused the complex seizure activity, he noted from the clinical records that this was not present in 1989 when the seizures started. [The Tribunal notes that Dr Joffe has changed his opinion about transient ischaemic attacks (exhibit 9)]. Dr Teychenne considered that the Veteran's description given to Dr Joffe (in his report dated 31 August 1995, T22) of the seizures was consistent with partial seizure activity and agreed with Dr Joffe that the Veteran was having complex partial seizures when assessed in 1994. At the time the seizures were occurring the Veteran was taking Dilantin 300mg per day.
Dr Teychenne was aware of the commonly reported chronology of the Veteran's seizures - that he suffered three grand mal seizures followed by complex seizure activity. However, he opined that this may be an incorrect description, and noted that the Veteran had classic symptoms of complex partial seizures which may then be followed by generalised or grand mal seizures. He noted that grand mal is a description of generalised seizures that implies the seizure activity is basically congenital, coming from the brain stem. He understood from Dr Selby's clinical notes (exhibit 7, p7) that these seizures were more likely to be secondary generalised seizures from a complex partial seizure focus, probably in the hippocampus or temporal lobe.
Dr Teychenne noted that the Veteran woke at 4.55am, which indicated that a seizure occurred when he was asleep. He said that one commonly has a temporal lobe disturbance during sleep and then a secondary generalised seizure. He considered that this could have been misdiagnosed as a grand mal seizure but is more likely a temporal lobe focus leading to generalised seizure activity. That is consistent with the EEG findings that showed mild dysrhythmia in the left temporal region.
Dr Teychenne noted that grand mal seizures occur more commonly in children or youths, with the seizure activity starting in the base of the brain and spreading to both sides. Older people are more likely to have complex partial seizures as a focus – either a temporal lobe or hippocampi focus - with the seizure activity beginning in the focus and spreading across the brain. This usually occurs when one is asleep. He opined that this hypothesis fits with the Veteran's EEG result in that there were no changes evident in the brain stem, whereas one sometimes sees changes from congenital grand mal seizures.
Having regard to the drinking history given by the Veteran to Dr Selby, Dr Teychenne dismissed alcohol as a major aetiological factor in the Veteran's seizure disorder. He opined that the complex partial seizures in 1994 were not associated with excess alcohol intake, and the earlier generalised seizures, "while possibly precipitated in the case of the episode in April of 1989 by an excess intake of alcohol, were not caused by excess alcohol intake". Dr Teychenne noted that a liver function test performed in April 1992 showed no evidence of excess alcohol intake and the autopsy did not show any evidence of liver disease secondary to excess alcohol. It would be unusual to have alcoholic brain damage while the liver (usually the first organ to be effected by toxicity) remained undamaged. While it was not necessary to have alcoholic brain damage before one could say the ingestion of excessive alcohol triggered the seizures in a person susceptible to seizures, it was necessary before one could say that it caused the seizures.
In considering whether the Veteran had ever suffered from meningitis in the absence of meningitic scarring, Dr Teychenne noted that the Veteran appeared to have suffered an episode of meningitis at the age of 18 years. At that time the Veteran had headaches and photophobia, and was treated with sulphonamides, which suggested that he might have had bacterial meningitis but this was not confirmed. Alternatively the Veteran might have suffered from encephalitis that could resemble meningitic symptoms of photophobia, headaches and fever.
In his oral evidence he said it was very unlikely that cerebrovascular disease was associated with an infarct in a specific area, eg. a temporal lobe. He noted that the other temporal lobe was normal. A CT scan in 1989, when the seizures started, did not show any evidence of cerebrovascular disease, but a meningitic scar was noted. He said that CT scans "are not bad" at picking up infarcts, particularly large infarcts. He considered that all the evidence pointed to the most likely cause of the seizures being secondary to the residual deficit due to previous meningitis.
Dr Teychenne considered it was "probable" that by the time the Veteran died he had cerebrovascular disease because "virtually everyone does" - but it was unlikely to be the cause of the seizure activity. He did not disagree with Dr Joffe that the most common cause of seizures in older people is cerebrovascular disease, nor did he disagree that the incidence of onset of seizures in later life, after meningitis at age 18 years, is low. However he disagreed that the latter was impossible.
In relation to the scarring noted, Dr Teychenne said that scarring does not necessarily occur following meningitis. He said that scarring is more dangerous when there is a blockage of the penetrating artery, as this might cause infarcts or scars within the cerebrum. He considered that hypothesis to be reasonable, given the changes seen on the hippocampus that was noted on pathology tests.
Dr Teychenne noted that there was nothing in the pathology that showed there had been a blockage in the artery, although it was very small and difficult to find. However, he considered this postulation to be correct, given the Veteran probably had a complex partial seizure disorder with secondary generalisation. This is consistent with the summary of the Veteran's hospital admission (T6) that did not show evidence of infarcts on the CT scan and EEG, which showed dysrhythmia within the left temporal region. The evidence of dysrhythmia indicates an abnormal electric function within the left temporal lobe, that could be from an abnormality either in the left temporal lobe or the hippocampus connecting to the temporal lobe.
Dr Teychenne noted that the Veteran had changes in the hippocampus, consistent with epilepsy, and which could be secondary to meningitic damage. In his report he said –
The absence of any meningitic scarring did not however, exclude meningitis as it has been reported that autopsies done on patients many years after a proven episode of meningitis may not show any evidence of meningitic scarring. The only way that meningitis may affect the parenchyma is by causing thrombosis in penetrating arteries causing small infarcts within the parenchyma. This is probably the mechanism by which meningitis may induce secondary seizure activity many years later.
The patient had evidence on autopsy of probable scars within the hippocampi … , thus there is a feasible connection between possible meningitis at the age of 18 years when doing service and the changes within the hippocampi, particularly if the patient had bacterial meningitis with thrombotic occlusion of penetrating arteries particularly arteries penetrating into hippocampi. Pathology within the hippocampi and within the right temporal lobe could lead to complex seizure activity.
The patient had an old infarct within the right temporal lobe but this did not appear to be present on CT scan of the brain when the patient first presented with epilepsy in 1989. It appeared that the infarct within the right temporal lobe occurred at a later stage and may have been associated with his essential thrombocythaemia where the patient may have had a thrombotic event in penetrating arteries that is arterial supply by the right temporal lobe. The patient was subsequently treated with Hydroxyurea to lower his platelet count and he was also placed on low dose Aspirin to decrease platelet aggregation. At one stage he was on Warfarin as he did have chronic atrial fibrillation. This was another potential cause for thrombotic complications such as cerebral emboli from the heart. The patient did have ischaemic heart disease indicated by autopsy and he was also treated for hypertension which is a risk factor for cerebrovascular disease. Thus the infarct within the right temporal lobe may have been caused by either one of these medical factors. If the patient had the infarct in the right temporal lobe between 1989 and 1994 this may have been a cause for what appeared to be complex partial seizure activity described by Dr Joffe in 1994.
However, the pathology within the hippocampus on both the right and left side could also have led to complex partial seizure activity and the pathology within the hippocampi could have been possibly due to thrombotic occlusion of penetrating arteries secondary to meningitic infection at the age of 18 years. This is a plausible hypothesis given the patient's clinical history.
Dr Teychenne noted that the Veteran had classic complex partial seizures. He said the scars were more likely to be there prior to the seizure activity. The probable scars on the hippocampi were consistent with the fact that the Veteran had certain types of seizures. Because of these he considered there was a "feasible connection" between possible meningitis and those changes.
Dr Teychenne noted that one can get thrombotic occlusion of penetrating arteries secondary to a meningitic infection, and he considered that was a plausible hypothesis to cause the changes in the hippocampi that had already been reported – he was merely hypothesising about the causes of them. Dr Teychenne did not consider that the Veteran had changes in the hippocampi consistent with meningitis, but rather the changes in the hippocampi may have been "caused by thrombosis of penetrating arteries … induced by meningitic infection".
In regard to associated changes in personality and memory, Dr Teychenne said (exhibit E) –
Epilepsy may cause changes in personality and difficulties with memory, comprehension and expression, particularly difficulties and deficits in memory function particularly if the patient suffers from a temporal lobe seizure disorder which may be associated with episodes of amnesia. Recurrent seizure activity may lead to cerebral anoxia which could result in memory deficits. Memory deficits are often the first subtle expression of anoxic cerebral damage. This may occur during seizure disorders particularly as the patient is unable to breathe for a significant period of time during a generalised seizure. Personality changes may also be associated with anoxic cerebral damage which may occur during generalised seizures, particularly persistent generalised seizures.
Dr Joffe was the Veteran's treating neurologist. He provided reports dated 21 September 1996, 27 August 1997, 7 July 1998 and 19 August 1999 (exhibit 3) and 29 October 1999 (exhibit 9). Dr Joffe did not doubt that the Veteran had suffered from meningitis in 1942, and on the basis of the clinical evidence at the time it was unlikely to have been viral meningitis, but one could not be sure. He diagnosed post-meningitic epilepsy originally, but subsequently reviewed that opinion. Originally he thought it to be unusual that there was a significant delay between the meningitis in 1942 and the onset of seizures. Whilst this is not impossible, it is unusual, and led him to believe that the Veteran's epilepsy was more likely related to a vascular than infective cause.
Dr Joffe discussed the Veteran's case with Dr Bill Evans, who performed the autopsy, which revealed the presence of vascular disease. He noted that the autopsy did not reveal any evidence of meningitis, but he considered it would be "extraordinarily difficult" to be absolutely sure that there was no evidence of meningitis. It would be necessary to "cut very fine sections, particularly through the temporal lobes in a multitude of sections to try and determine whether there was any abnormality there" and it would be "almost impossible to be sure". Even if this extremely difficult and time-consuming procedure was carried out, and there was no evidence of scarring, it would not discount Dr Teychenne's hypothesis. He opined that, given the limitations of existing technology, it would be "virtually impossible" to exclude it categorically.
Dr Joffe said it was more likely that one would have acute seizures at the time of the meningitis, rather than 42 years later, but it is more common for children than adults to have seizures with meningitis. He indicated that the latter was less likely but not impossible. He opined that the cause of epilepsy was more likely to be vascular than related to meningitis. He referred to a publication entitled Clinical Epilepsy by Duncan and Shoreman, epileptologists, who reported that bacterial meningitis carried a ten percent risk of subsequent epilepsy if seizures occurred acutely after the episode of meningitis, and a three percent risk if there was no acute seizures at a later time.
Dr Joffe noted, from a study undertaken at the National Hospital in London, that in contrast, in older persons with adult onset seizures there is a 10 to 20 percent occurrence with cerebrovascular disease. There is an increased risk if the person is over 50 years of age, in whom 50 percent related to cerebrovascular disease.
Dr Joffe considered that the Veteran's attacks were epileptic rather than transient ischaemic. In his most recent report (exhibit 9) he commented that the Veteran's duplex study was "unimpressive". Such a study does not access the small vessels within the brain - it measures the flow in the blood vessels in the neck and to some extent the degree of atheroma in the arteries. It does not indicate the flow in areas other than the neck.
Dr Joffe noted the drinking history obtained by Dr Selby. His opinion in respect of the Veteran's drinking and its relationship to his seizures was in essence similar to that of Dr Teychenne.
Dr Joffe disagreed that vascular epilepsy was rare. In his report dated 29 October 1999 (exhibit 9) he said –
It is of interest that in two studies done, one in England and reported in The Lancet in 1990, in a population-based study of 564 cases, the aetiology was unknown in 62% of cases, in 15% it was thought to be due to cerebrovascular disease, in 6% alcohol-related, in 6% cerebral tumour, 2% cerebral infection, 2% related to cerebral trauma, and other was put at 6%.
Then in a paper published in the Neurological Clinics, in 1994, from Rochester, Minnesota, again in 68.7% the aetiological cause was not found, but in the known causes, 13.2% were thought to be due to cerebrovascular disease, 5.5% developmental, 4.1% related to trauma, 3.6% to brain tumour, 2.6% to cerebral infection, 1.8% to degenerative disease and other 0.5%.

Dr Joffe did not consider that the Veteran suffered from cerebral anoxia. He noted that no MRI scan was performed by Dr Selby when he saw the Veteran in 1989 and said that it is generally accepted that MRI is a far superior investigative procedure than a CT scan to detect small, especially mesial temporal ischaemic lesions. He said that the fact that the Veteran's duplex study was unimpressive would not mean that he did not have small vessel disease intracranially. The CT scan in 1989 was normal.
Dr Arthur was the late Veteran's treating haematologist for a number of years for a condition known as essential thrombocytosis ("ET") - a myeloproliferative disease that causes proliferation of bone marrow cells. He explained –
The condition causes a rise in the platelets in the blood. The platelets are normally present to cause the blood to clot and stop bleeding, so when the platelets become elevated in this condition, they can predispose to abnormal blood clotting, particularly in the arteries, and when that happens that can lead to thrombosis or occlusion of the arteries leading to consequences such as a heart or a myocardial malfunction, a stroke due to occlusion of the cerebral artery and sometimes occlusion of the peripheral arteries leading to, for example, gangrene or circulation problems in the limbs. It can also lead to abnormalities in the platelets such that they don't work properly to stop bleeding and some people may actually get excessive bleeding or bruising.
Dr Arthur said that less than 5 percent of persons with ET develop leukemia in the later stages of the disease. He could not recall whether he discussed this with the Veteran. He also said that ET can independently predispose one to cerebrovascular problems, that may "exacerbate or compound" the problem for someone who has a pre-existing cerebrovascular disease. One would be more prone to have a stroke if one had uncontrolled ET, because there would be two factors operating independently to pre-dispose to a stroke.
Because the Veteran had been diagnosed with post-meningitic epilepsy when he was first admitted in 1989 with epilepsy, Dr Arthur did not believe that ET had played a role. He noted that if ET caused infarctions it could predispose the Veteran to neurological problems - possibly epilepsy. When it was put to Dr Arthur that Dr Joffe, who originally diagnosed post-meningitic epilepsy, now opines that it was more likely that the Veteran's epilepsy was due to vascular disease, he said that in light of that the ET could have compounded it because it can be an independent factor predisposing to a stroke.
Dr Arthur said the Veteran's ET was probably under good control and therefore the bone marrow looked normal at autopsy. Hence it was less likely that ET would be compounding or having an effect on any cerebrovascular disease. Dr Arthur did not dispute the conclusion reached by Dr Teychenne, and considered his reports to be comprehensive and accurate.
Dr McMurdo, psychiatrist, examined the Veteran on 9 July 1996 and provided two reports dated 15 July 1996 and 27 September 1996 (exhibit 5). He noted that the Veteran had been an accountant and observed a slight slowing of mental functioning. On examination Dr McMurdo found the Veteran had a capacity to understand and respond appropriately, the majority of his responses were clear and coherent and he was alert and cooperative – a finding one would not expect in a person suffering significant cerebral anoxia. However, very mild anoxia may leave minimal evidence which might not be evident without detailed testing.
Dr McMurdo noted the Veteran's history of epilepsy. He said the complex partial seizures were not associated with cerebral anoxia where a prolonged period of unconsciousness occurs. He said that the grand mal seizures could have caused anoxia if repeated seizures had occurred over a long period, but there was no history of this.
Dr McMurdo opined that epilepsy does not inevitably cause depression, nor is depression a symptom of epilepsy. In his view the Veteran was depressed to some extent because of his epilepsy because it interfered with his occupation.
Dr McMurdo agreed that as the move from the Veteran's flat happened several years prior to Dr Bartrop's consultation, it could be considered a matter of receding significance. In his opinion the fact that the Veteran's first wife died from cancer and his second wife was diagnosed with cancer, were factors likely to reawaken a pre-existing grief. However, he agreed that the success of the Veteran's second wife's mastectomy would have lifted some of the weight off the Veteran.
Dr Greenberg, psychiatrist, examined the Veteran and provided a report dated 11 December 1995 (exhibit B). He noted the history of epilepsy and that the Veteran had been subject to periods of depression and general loss of interest with gradual withdrawal from social activities. He noted that the Veteran suffered from minor seizures of varied duration that did not always occur with warning that undermined his confidence. Dr Greenberg considered that the Veteran's reluctance to go out appeared to be related directly to the unpredictability of the seizures, and hence he spent most of his time at home. He then opined –
This interference with his normal life has severely impaired his self esteem and he expresses thoughts of being "worthless" to his wife since his illness started as he has not been able to work. He had always been a "fiercely independent" individual. He had planned to continue as a business adviser and consultant accountant after his retirement from full-time employment; this has not been possible. His depression is associated with a general loss of confidence in making decisions as well as grossly impairing his general enjoyment of life and social activities. His wife notes that he complains that even his favourite past time of reading has been affected by his inability to comprehend what he is reading at times.
….
Superimposed on the symptoms resulting from the epileptic condition he suffers from a Depressive State; this varies in intensity from time to time but significantly increases his general incapacity ….
Dr Baz gave oral evidence to the Tribunal on two occasions. She has provided six reports to the Tribunal in respect of the late Veteran dated respectively 6 June 1995 and 7 February 1996 (exhibit A), and 27 August 1996, 13 January 1997, 27 February 1997 and 24 August 1999 (exhibit F). In her report dated 24 August 1999 she provided an assessment using the current GARP-V. She had previously assessed using GARP-IV. Her latest report also took account of the autopsy report and Dr Teychenne's report of 4 May 1999 (exhibit E), as well as the report of Dr Greenberg. She interpreted Dr Greenberg's reference to "Depressive State" being superimposed on the epileptic condition, in the context in which it was written, to mean that there was a causal connection. Dr Baz said, in respect of post-meningitic epilepsy –
Dr Teychenne notes the cerebral anoxia which occurs with seizure activity. Anoxia (lack of oxygen) essentially affects cell function and causes cell death. Cerebral anoxia causes damage to and death of brain cells, and this is manifest by cognitive deficits and mood changes, in this case problems with memory and depression.
I would not regard this as a 'distinct and diagnosable condition', but rather 'a single condition giving rise to multiple functional losses'. Although a condition which is subject to a Statement of Principle 'should be taken as a separate disease entity', this is a 'general guide' and I do not believe it fits this particular clinical situation. (Refer GARP V pp6-9).
Seizure activity:
He has experienced complex partial seizures which are assessed using Chapter 15. The intermittent attack severity is level 5. The duration is short. This gives an intermittent grading code level E. They occur on more than 20 but less than 40 days a year. Table 15.4 allows an impairment rating of 5.
In addition a rating is applicable using Table 15.5. He satisfies the criteria for impairment rating 5 using Table 15.5 as he avoided some activities, particularly driving a car because of the seizures.
Depressive state associated with epilepsy
…..
Total: 45
Cognitive deficits:
The difficulty comprehending complex written material and slowed pace of reading warrant an impairment rating of 5 using Table 5.1

Dr Baz also assessed a lifestyle rating averaging 5.

Dr Baz opined that epilepsy is a "single condition … giving rise to a multiple function loss". In her view a 'multi-system condition' is one which caused many different problems in different bodily systems where one is required to assess all the different problems. She considered the chemical nature of depression and the electrical nature of epilepsy, both of which occurred in the same body system – the brain. On this basis Dr Baz justified treating depression as being so intimately related to epilepsy to be part of that condition and therefore not needing a separate entitlement claim. However she conceded that epilepsy did not necessarily lead to depression.
A report was obtained by the Respondent from Dr Mark Burns, occupational physician, dated 17 May 1995 (exhibit 1) following an examination of the Veteran. Dr Burns assessed the Veteran's "post-meningitic epilepsy" using GARP-IV Table 5.1.1 at 10 impairment points. GARP-IV was in use at the time Dr Burns conducted his examination. He also assessed a lifestyle rating of 1. The combined rating provided a general rate assessment of 20 percent. Dr Burns provided the following conclusion to his report –
Following my discussions with Mr Stewart, it became obvious that his major concern was that his memory and concentration are now poor. He otherwise feels perfectly well between his episodes of partial complex seizures. As far as his work is concerned, he was in fact operating at a very high level prior to developing the epilepsy. He has now lost all confidence in being able to performed (sic) at this level. I believe that if memory and concentration testing were done that he would probably fall within the normal range, but this is significantly below where he was functioning previously. Thus, using the 4th Edition of the Guidelines, Mr Stewart does not fair (sic) very well on the impairment ratings. Unfortunately, though, he is no longer capable of performing at the high levels required to be a Company Secretary. Thus, even though he only receives a 20% capacity rating, his post meningitic epilepsy has in fact stopped him from working at his previous occupation.
Surprisingly, Dr Burns did not obtain any history about depression or alcohol abuse, nor presumably did he perceive the Veteran to be depressed. When Dr Baz examined the Veteran only five days previously (exhibit A) she noted a reduction in self-esteem and increased social withdrawal.
The Requirements of the Guide to Assessment of Repatriation Pensions
The Tribunal notes the following relevant explanatory references in GARP-V (pp6-9), to which Dr Baz made reference in her report –
If there is a multisystem condition in which a single condition gives rise to multiple functional losses, then such a single condition is to be rated using several Functional Loss tables. The separate ratings are only to be combined with each other in the final combining of all ratings from all accepted conditions. …
…
As a general rule, ratings from Chapters 14, 15, and 16 are not to be combined with any impairment ratings for the same condition derived from one or more system specific chapters. The impairment ratings from the system-specific chapters and the non-system specific chapters are to be compared and the higher impairment ratings is to be selected.
…
Conditions and their sequelae
Only the clinical features of an accepted condition may be taken into account in making an assessment. If the accepted condition causes some other distinct and diagnosable condition (sequela), the symptoms of the sequela cannot be taken into account when assessing the original accepted condition. Sequelae can only be assessed when they have themselves been separately determined to be war-caused or defence-caused.

submissions of the parties and consideration of evidence by tribunal

For convenience, written submissions were provided to the Tribunal after the adjournment of the hearing. All submissions were finally lodged by 21 June 2000.
Jurisdiction – What is the "decision under review"?
It was submitted for the Applicant that the decision of the VRB (T12) was a review of the "decisions under review" viz:
The determinations of the Repatriation Commission of 22 October 1993:
1. That essential thrombocytosis and osteoarthritis right knee are not war-caused within the meaning of Section 9 of the Veterans' Entitlements Act 1986; and
2. That pension is payable at ten percent of the General Rate with effect from 27 January 1993.
It was submitted that the application for review by the VRB did not raise for re-consideration the delegate's favourable finding that post-meningitic epilepsy was war-caused. Davies J stated in Fitzmaurice v Repatriation Commission (1989) 19 ALD at 301:
Once a favourable determination as to entitlement has been made under Section 19(2) that determination continues to apply unless a review is undertaken by the Commission under Section 31(4) or (6).

It was noted that Wilcox J in Fitzmaurice (supra) used the phrase "everything decided by the Board in substitution for the original decision". It was submitted that this indicated that it was only part of the original decision reviewed and decided by the VRB which was now the subject of review by the Tribunal.

Whilst the Tribunal had all the powers of the Commission, as exercised by the delegate, it was submitted the delegate had a limited power under s31 to review a favourable decision. It was clear from Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453 that the Tribunal had only the original decision-maker's powers and nothing more. It was submitted that the delegate had very limited power to review a favourable decision.
It was submitted that the late Veteran did not seek review under s135 of the Act, of that part of the decision of the delegate in relation to post-meningitic epilepsy, and consequently it was neither affirmed nor set aside by the VRB. Thus it was not part of the decision under review as defined in s175(1) of the Act.
Following the VRB's decision to affirm the Commission's decision to reject the claimed conditions of essential thrombocytosis and osteoarthritis right knee, only a review of assessment of rate of pension in respect of the accepted disability of post meningitic epilepsy remained. The VRB affirmed the Commission's assessment of 10 percent. Wilcox J noted in Fitzmaurice (supra at 308) that the subject of review by the Tribunal was the decision substituted by the VRB.
It was submitted that this was not a case where the Applicant needed to raise any arguments of estoppel based on the Commission's acceptance of post-meningitic epilepsy. The application before the Tribunal pertained to assessment of the post-meningitic epilepsy itself. It was submitted that the case of Langley v Repatriation Commission (1993) 43 FCR 194 did not assist the Respondent. In that case, Lockhart and Beazley JJ said (at 201):
There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the Commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s 31 of the Act) the Commission cannot review the earlier determination; but it may consider afresh the facts which underpinned the earlier determination where it is necessary to do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination.
It was submitted for the Respondent that during the course of its consideration of the Veteran's claim the VRB requested a report from Dr Joffe, neurologist, who reported his findings on 31 August 1994. The Commission's decision, which was affirmed by the VRB on 11 November 1994, included a finding that the late Veteran suffered a war-caused disease, namely post-meningitic epilepsy. That aspect of the matter came under question when Dr Joffe reviewed his 31 August 1994 opinion in light of findings made during an autopsy of the late Veteran's brain tissue. The autopsy findings, in particular the absence of any evidence of post-meningitic scarring in the brain, prompted Dr Joffe to conclude that the Veteran's late-onset epilepsy was attributable to cerebrovascular disease and not to meningitis.
The Respondent submitted that the issue of whether the late Veteran suffered post-meningitic epilepsy was properly before the Tribunal in these proceedings for the following reasons:
(a) A first instance decision which was affirmed on review remains an "operative decision" (Yobir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 250). Section 175(1)(a) of the Act specifically provides that the decision to be reviewed by the Tribunal is "the Commission's decision that was so affirmed".
In Fitzmaurice (supra) the Full Federal Court considered the meaning of the word "decision" in the phrase "the decision made by the Board in substitution for the decision so set aside" [see s175(1)(c)]. Wilcox J held at 309 that "decision" in that phrase encompasses "everything decided by the Board in substitution for the original decision of the Commission". Foster J took a similar view at 313, finding that the subsection referred "both to the decision granting a pension and the consequential assessment of the appropriate rate".
Applying the reasoning in Fitzmaurice, mutatis mutandis to s175(1)(a) of the Act, the result must be that "the decision of the Commission that was so affirmed" means the Commission's decision on entitlement and assessment, that is, that the decision under review includes the Commission's decision that the Veteran's epilepsy was attributable to meningitis suffered during the war.
(b) The circumstances of the present case resemble those in Bramwell v Repatriation Commission (1988) 158 ALR 623, where evidence on a matter which had not been an issue before either the Commission or the VRB became available prior to the Tribunal hearing. Citing s25(4) and s43(1) of the AAT Act, Weinberg J held that it was open to the Tribunal to consider that matter, and necessary that it do so. Similarly, in the present case, the fact that there was no post-meningitic scarring found during the autopsy of the late Veteran's brain was not known when either the Commission or the VRB made their decisions.
The Tribunal considers that Fletcher (supra) is authority for the proposition that the Tribunal has all the powers of the Commission, as exercised by the Delegate in making the primary decision. The Tribunal determines that the decision under review, under the head of this application, is the whole of the decision of the Delegate of the Repatriation Commission dated 22 October 1993, including that part that determined that the Veteran's post-meningitic epilepsy was war-caused.
Section 135 of the Act provides for a person who has made a claim for pension to seek review by the VRB if "dissatisfied with any decision of the Commission in respect of the claim or application" and indeed, the Tribunal notes that by application dated 1 December 1993, the Veteran did so. In his application he described the decision he sought to be reviewed, viz. "I wish to have the above determination reviewed by the Veteran's Review Board", that being "Determination dated 22 October 1993". That letter makes it clear that the whole of the decision by the Delegate was the subject of the application for review by the VRB.

On the authority of the Federal Court in Stafford v Repatriation Commission (1995) 36 ALD 578, the Tribunal considers that the whole of the decision of the Delegate was to be reviewed by the VRB (at 585). In the words of Northrop J in Stafford (at 585), the decision of the VRB in that matter -
Affirmed the decision under review, but wrongly attempted to limit the material it was required to review. This error cannot be used to support a submission that the whole or part of the decision of the commission had not been affirmed by the board in the terms of s175(1)(a) and thus to limit the scope of review by the tribunal.
The Tribunal finds that it has jurisdiction to review that part of the primary decision that accepted post-meningitic epilepsy as war-caused. This is consistent with the decisions of the Federal Court in Fitzmaurice (supra) and Fletcher (supra).
Moreover, in circumstances such as those in this case, being facts that were not before the Commission when the decision to grant pension in respect of post-meningitic epilepsy was made, the Commission also had power to review pursuant to s31(6) of the Act, that it did not choose to exercise. The Tribunal notes that at the time a s31(1) review could have been made the findings of the autopsy performed after the Veteran's death on 21 July 1997 were not available. The Respondent apparently chose not to review pursuant to s31(6) of the Act after the autopsy report became available, but instead proceeded under the head of the Veteran's application for review by this Tribunal, to seek review of the primary decision to accept post-meningitic epilepsy as war-caused.
The Tribunal notes the submissions made on behalf of the Applicant regarding the decision of the Federal Court in Langley (supra). The Tribunal is of the view that Langley does not assist the Applicant nor the Respondent. In Langley the Court commented on the relationship between a new claim for a condition and an earlier determination of another claim the subject of which had some relationship to the condition in the later claim. The issue now before the Tribunal bears little resemblance to the relationship of the claims in Langley, and gets no assistance from that decision.
Diagnosis of Claimed Condition and Whether Post-Meningitic Epilepsy is War-Caused.
The Tribunal must first consider the issue of diagnosis. While the claim was for "grand mal seizures" it is the responsibility of the Secretary, and the Tribunal standing in the shoes of the Secretary, to establish the correct diagnosis. The Tribunal relies on the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307 that the diagnosis of the claimed condition must be made on the balance of probabilities. Although the decision under review defined the diagnosis as "post-meningitic epilepsy", on the evidence before it the Tribunal cannot now be reasonably satisfied that the Veteran suffered from post-meningitic epilepsy. Nevertheless, the Tribunal is reasonably satisfied that the Veteran suffered from a form of epilepsy, and the diagnosis of the claimed condition should be "epilepsy".
Turning to the issue of causation, it was submitted for the Respondent that whilst both Dr Joffe and Dr Teychenne agree that the Veteran had cerebrovascular disease at the time of his death, Dr Teychenne rejected Dr Joffe's attribution of the Veteran's epilepsy to that disease, because neither a CT scan nor a duplex study demonstrated the presence of cerebrovascular disease at the time when he first experienced seizures. Those assertions of Dr Teychenne were answered in a report of Dr Joffe (exhibit 9) and subsequently in his oral evidence. Dr Joffe explained that a CT scan would not be sufficiently sensitive to show the presence of that disease, and the duplex study was directed to the neck arteries and gave no information regarding cerebral vascular disease.
It was submitted for the Respondent that the opinion of Dr Joffe was soundly based on the available evidence regarding the Veteran, on research, and on personal expertise. In contrast, Dr Teychenne's opinion rejected the known evidence and the most likely causation – that is, the evidence that the Veteran suffered from cerebrovascular disease and cerebrovascular disease was the most probable cause of late-onset epilepsy. It was submitted that Dr Teychenne's opinion was not based on evidence, but on postulated damage that he assumed to have occurred in the Veteran's brain during a war-time episode of meningitis.
It was submitted for the Applicant that there was sufficient evidence to support the finding that the Veteran's post-meningitic epilepsy was war-caused. The opinions of Dr Joffe and Dr Teychenne both involved postulation. It was not correct to say that Dr Teychenne "rejects the known evidence and the most likely causation" - there was no "known evidence" at the time of onset of the seizures.
In respect of alcohol abuse, it was submitted for the Applicant that on the opinion of Dr Teychenne, although seizure activity may have been triggered by alcohol, alcohol was not the cause of the Veteran's epilepsy. There was no evidence at autopsy of alcohol related liver damage. In order for alcohol ingestion to have been implicated as a cause of seizure activity the Veteran would need to have been drinking sufficient amounts to cause liver damage as well.
It was submitted for the Respondent that Dr Joffe's evidence revealed a preference for a more statistically probable cause of seizure activity and a reluctance to share the conclusions of Dr Teychenne. Dr Joffe said the most likely explanation of the seizures was cerebrovascular disease.
The Veteran served in the Royal Australian Air Force from 1942 to 1946, including service overseas, and as such he had operational service. In considering the issue of whether the Applicant's condition was war-caused, the submissions of the parties paid little attention to the legislation under which the Tribunal is required to determine that issue, that is, that applying s120(1) and (3) of the Act, there is a reasonable hypothesis that the condition claimed was war caused unless it can be shown beyond reasonable doubt that it was not war caused. In Byrnes v Repatriation Commision (1993) 177 CLR 564 the High Court summarised the relationship between s120(1) and s120(3) as follows (at 571):
(1) First sub-s (3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war-service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not an issue at this point.
The High Court then said that if a reasonable hypothesis is established, subs (1) of s120 is applied. Applying the test outlined in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414, the Tribunal must first consider whether the evidence raises a reasonable hypothesis within the meaning of s120(3) of the Act; namely, whether the evidence points to some fact or facts ("the raised facts") which support the hypothesis and would allow the hypothesis to be regarded as reasonable if the raised facts are true.

The 'raised facts' in this matter include the following:

Record of the Veterans' admission to Ballarat Base Hospital in June 1942, indicating that the Veteran suffered from meningitis on service.
On the evidence of Dr Teychenne, meningitis can cause seizures, and this is possible even after a delay of 42 years following meningitis.
There is EEG evidence of dysrythmia within the left temporal region indicating an abnormal electric function within the left temporal lobe, consistent with epilepsy, which could be secondary to meningitic damage.

The Tribunal finds that, pursuant to s120(3) of the Act, the abovementioned 'raised facts' point to a reasonable hypothesis that the Veteran suffered meningitis during his service, and that his late onset epilepsy could be attributed to the meningitis he suffered in 1942. That hypothesis is not "contrary to scientific fact", nor is it" fanciful or untenable"; Byrnes (supra).
Having found that a reasonable hypothesis has been raised, the question is whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the disease was war-caused. Applying Byrnes (supra) at 571, this can occur in two ways; either the facts raised to support the hypothesis are disproved beyond reasonable doubt, or a further fact arises that is inconsistent with the hypothesis, and this fact is proved beyond reasonable doubt.
The Respondent attempted to show that the Veterans' late onset epilepsy was caused by a factor other than the meningitis suffered in 1942. The Respondent postulated that the Veteran's drinking or alternatively cerebrovascular disease caused his epilepsy. The later proposition was coupled with the fact that there was no evidence of post-meningitic scarring found at autopsy. The Tribunal notes the evidence of Dr Teychenne that the lack of evidence of post-meningitic scarring at autopsy merely indicated that the sections examined at autopsy failed to show such evidence. It did not mean that post-meningitic scarring could not have been present in areas of the brain not examined in the sections. Hence the Tribunal finds the lack of autopsy evidence does not disprove the hypothesis.
The Tribunal notes the discrepancy in the evidence between the drinking history provided by the Veteran to Dr Selby and that provided by Mrs Stewart to the Tribunal. Taking this discrepancy into account, together with the medical evidence and the autopsy report, the Tribunal finds that the Veteran's drinking was not at the level to cause liver damage and that, at most, his drinking triggered rather than caused the seizures. The Tribunal finds that fact also does not disprove the hypothesis beyond reasonable doubt.
Whilst the Tribunal accepts the evidence of Dr Joffe as to the high incidence of cerebrovascular disease in the aetiology of epilepsy in older patients, there is no evidence to prove, beyond a reasonable doubt, that cerebrovascular disease was the cause or the only cause of this Veterans' epilepsy or that it was not caused by the meningitis he suffered in 1942. The Tribunal notes that there was no evidence of cerebrovascular disease in 1989 at the time the Veteran first reported his seizure.
As a reasonable hypothesis has been raised that the Veterans' meningitis was the cause of his late onset epilepsy, and this hypothesis has not been disproved beyond a reasonable doubt, the Tribunal finds that the Applicant satisfies s9(1)(b) of the Act.
Whether the late Veteran's Depression was a Separate Condition or Whether it can be Assessed as part of the War-Caused Epilepsy
It was submitted for the Applicant that any depression suffered by the late Veteran was a direct organic consequence of his post-meningitic epilepsy, which itself was an organic disease. On the opinion of Dr Baz, which was sustained under cross-examination, it was submitted that the Veteran would not have suffered depression if he had not suffered from epilepsy.
The evidence of Dr Greenberg was that the depressive state was "superimposed" on the accepted disability. Dr McMurdo considered that other factors in the Applicant's life contributed to his depression, but it was submitted that the Veteran was also suffering from mood disorder that was directly related to his epilepsy. Based on these opinions, Dr Baz concluded that the Veteran's depression was part of the accepted condition. In addition it was submitted that Dr Teychenne observed that "epilepsy may cause changes in personality and difficulties with memory" (exhibit E).
The Applicant questioned whether the fifth edition of GARP was the appropriate one to be used in assessing the late veteran, in light of the Full Federal Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108. Whilst it was conceded for the Applicant that the assessment period started at the time of the lodgement of the claim and ended at the time of the determination, it was submitted that there were two reasons for not adopting that approach in this particular case -
(i) The Veteran died prior to the review of the matter and to utilise an edition of GARP that came into force some years after his death would not be logical.
(ii) As at the date of the Veteran's death, certain rights accrued to his estate. It was submitted that those beneficiaries had a right to have his claim determined in accordance with the law as it was at the date of death. Even if one was to argue that assessment pursuant to GARP was a procedural matter, the Full Court in Keeley (supra) addressed that point at paragraph 40 where it stated its view, referring to s120A and s196B but expressing the same concept clearly, viz.;
… those provisions involve more than alterations of a procedural character in that they purport to define the scope of liability of the Commonwealth under the Act by, in effect, confining the claim a claimant may present.

It was submitted for the Applicant that by adopting GARP-V, the Respondent limited the diagnosis of the late Veteran's disease by excluding any factor relating to depression.

It was submitted for the Respondent that no claim for war-caused depression had been made, and the question of whether the late Veteran suffered from a war-caused depression could not be determined in the absence of a claim. Accordingly, any assessment of that condition could not be made until it was determined that it was a war-caused condition. Consequently, a GARP rating for depression could not be included in any assessment made in the present proceedings. It was submitted for the Applicant in reply that a claim for depression was lodged on 18 August 1999 and that the only response was a verbal acknowledgment of acceptance on 7 December 1999.
It was submitted for the Respondent that the way in which Dr Baz had used GARP-V in the present case was erroneous, for the following reasons:

Her method of assessment in respect of epilepsy offended against the rule that ratings from chapters 14, 15 and 16 were not to be combined with ratings for the same condition derived from system specific chapters.
Depression was a "distinct and diagnosable condition" and could not therefore be treated as sequelae. The introduction to Chapter 4 of GARP-V provided that:
Where the emotional and behavioural effects of other accepted conditions are such that they warrant a separate psychiatric diagnosis, that psychiatric condition may only be assessed under this chapter if the condition has been accepted as war-caused or defence-caused.
When applying the tables in this chapter, only the effects of the psychiatric condition are to be taken into account.

It was also submitted for the Respondent that the statement in GARP-V (p9, para. 2) that "As a general guide, a condition that is the subject of a Statement of Principles… should be taken as a separate disease entity" did not offer the Applicant in this case the opportunity to deviate from that instruction in order to have depression assessed as part of a claim for epilepsy. This was because of para. 3, p9 which stated :
To the extent of any inconsistency between an instruction in "How to Use this Guide" and a specific instruction concerning a particular matter in another chapter of this Guide, the specific instruction in that other chapter is to apply to that particular matter.
The Respondent also referred the Tribunal to the decision of the Federal Court in Owen v Repatriation Commission (1995) 59 FCR 93 in respect of the issue concerning a need to claim for any new condition that is said to arise from an accepted disability (at 99):
The provisions of the Act, s175(1)(a), and of the Administrative Appeals Tribunal Act … all contemplate the Tribunal's power of review being limited to review of the decision in respect of which application is able to be made to it … Central to the present appeal is thus the issue: what is the "decision" in respect of which application for review to the Tribunal was made?
The answer to this in my view can be simply put. That decision is the response which, in conformity with the Act, needs to be given to the question raised for the Commission by the applicant in his claim for pension … While the Act does not in terms require an applicant to provide an accurate particularisation of the disability claimed to be war-caused, it clearly contemplates that claims for pensions will be made referable to particular injuries or diseases … and the claim form itself is constructed so as to lead towards particularisation.

And at 100:

2. Where it is suggested a new injury is war-caused because it is causally related to, or has been contributed to by, an already determined war-caused injury, it is open to a veteran to make a claim under the Act for a determination that that new injury is in fact war-caused within the terms of the Act, s9. In other words the legislative scheme itself allows for an injury causally related to a war-caused injury to be found to be a war-caused injury … In this way the Act permits a veteran to add to the available war-caused injuries of which account may be taken under s24.

The Respondent also referred the Tribunal to the decision of the Federal Court in Sutherland v Repatriation Commission (1996) 41 ALD 243 on this same point.

On the issue of whether the Veteran's depression arose out of his epilepsy, it was submitted for the Respondent that the Veteran made frank disclosures about himself when dealing with specialist medical practitioners about matters that were unknown to his spouse. Dr Selby, who first treated the Veteran for epilepsy, obtained a history of alcohol abuse that clearly surprised Mrs Stewart. Notwithstanding her disbelief, it was submitted that there was no reason for rejecting the accuracy of that history. It was submitted that it was not in the Veteran's interests to misrepresent his drinking habits to Dr Selby.
Similarly it was submitted that the list of issues that the Veteran raised in 1991 with Dr Bartrop, psychiatrist, when his depression first became manifest, should be afforded considerable weight as the only available insight into his mental state. It was submitted that Dr Bartrop recorded that list after his first psychiatric examination of the Veteran - it referred to "…moving out of his flat, the current property market, the loss of his first wife with metastatic cancer and his second wife's mastectomy at the end of last year…".
It was submitted for the Respondent that on the evidence of Dr McMurdo, the condition of epilepsy did not set a train in process that led to depression. The Applicant's proposition that depression was an organic illness, and that it was a direct organic consequence of epilepsy was not put to Dr McMurdo in cross-examination and was not supported by any evidence before the Tribunal.
It was submitted for the Applicant in reply that the assessment approach contended by the Respondent elevated form over substance at the cost of perspective and reality.
The Tribunal agrees with the submissions for the Respondent on this issue. In order for it to consider the Veteran's depression as part of the constellation of his war-caused conditions, he would need to have claimed it as a war-caused disease. GARP-V is quite clear on that issue.
The issue of whether an applicant has an accrued right to be assessed using the GARP in place at the time of his claim has already been considered by the Tribunal Re Anderson and Repatriation Commission (1998) 53 ALD 467. That decision was made by Mathews J sitting as President of the Tribunal. It is a leading case, although not legally binding on the Tribunal. Notwithstanding that, for the reasons set out by Matthews J in that case, the Tribunal considers that once GARP-V came into effect (18 April 1998) the Tribunal is required to apply it to its decisions in reviewing assessments made under an earlier GARP. In Anderson Mathews J held that the legislation displays a clear contrary intention to the application of s50 of the Acts Interpretation Act 1901.

The Veteran was alerted to the possibility of the need to make a claim for depression on the first day of the hearing of this matter. Indeed, his solicitor, on his behalf, lodged an informal claim soon afterwards (exhibit 10). As the Respondent's letters to the Veteran about the informal claim were dated 2 October and 14 October 1996 (exhibit 10), and as he did not provide a completed Form 1 before his death on 21 July 1997, the Tribunal considers that this issue can be taken no further.
Assuming for a moment that the Veteran's depression arose from his war-caused epilepsy, there are still a number of insurmountable problems for the Applicant. Firstly, in order for the effective date to be backdated to the date of the informal claim the Veteran was required to lodge the formal claim within three months of the Respondent's notification to him that it was required, that is, three months from 14 October 1996. Although it is contended for the Applicant that a claim was lodged on behalf of the Veteran's Legal Personal Representative on 18 August 1999, the Respondent has no record of its lodgement.
In any event, even if the Tribunal accepted that it was lodged then, it is not open to the legal personal representative to initiate a claim. Section 126 of the Act merely enables the legal personal representative to pursue any claim already lodged by the Veteran. The claim, therefore, is ultra vires. However, even if it was not, the earliest date from which pension could be paid in respect of the claimed condition is a date not earlier than three months before the date the claim was lodged. That is a date not earlier than on or about 18 May 1999. As this date is almost two years after the Veteran's death, even if a formal claim for depression could have been lodged by the Veteran's legal personal representative in 1999 and even if depression was accepted as being war caused, and acknowledging that the Veteran's depression contributed to his inability to work, any entitlement to payment of pension at the Special Rate would cease on the day of his death. Therefore the Applicant could not obtain any advantage by pursuing this route.

Assessment

It was submitted for the Respondent that alcohol abuse and cerebrovascular disease were the more probable causes of the Veteran's inability to work.
The Tribunal finds that insofar as any abuse of alcohol by the Veteran had the effect of stimulating his epilepsy, then his drinking aggravated his epilepsy. The fact that he had epileptic seizures triggered by his use of alcohol does not detract from any impairment arising from the Veteran's epilepsy. Once the condition has been accepted as war-caused, the particular behaviour that triggered the seizures is of no consequence. Similarly, the fact that the Veteran suffered from cerebrovascular disease that may also have contributed to his seizures is of no consequence.
The main problem for the Applicant is that the Veteran's depression was a significant factor in his medical impairment and incapacity to work. That fact has become an insurmountable hurdle in not meeting the requirements of s24 of the Act. Without going into any other issues which may remain open, when considering the major role of his depression in his incapacity to work, the Veteran fails to meet the provisions of s24(1)(c). On this basis Special Rate pension is not payable.
The Veteran was assessed at ten percent of the General Rate in respect of epilepsy. Under the head of this application the Tribunal is also required to consider whether a higher General Rate assessment is payable. Dr Baz has assessed an impairment rating of 5 for each of Table 15.4 and Table 15.5 of GARP-V. In accordance with the explanatory references in GARP-V those ratings from Chapter 15 are not to be combined with any impairment ratings for the same condition derived from one or more system specific chapters. The Tribunal finds Dr Baz's use of Table 5.1 to assess the Veteran's comprehension difficulties cannot be allowed. As Dr Baz assessed an impairment rating of 5 using Table 5.1 for cognitive deficits, which is lower than the assessment she made using the tables from Chapter 15, then the tables in Chapter 15 are to be preferred. This provides a combined impairment rating of 10 and the Tribunal accepts that assessment.
Dr Baz has assessed a lifestyle rating averaging 5. However this includes many features relating to the Veteran's depression, which the Tribunal finds cannot be included in the lifestyle assessment. The alternative open to the Tribunal is to assess the lifestyle rating using the shaded area in Chapter 23. By applying the shaded area the Tribunal assesses a General Rate assessment of 20 per cent.
The assessment under review is 10 percent. Therefore the Tribunal sets aside the decision of the Respondent dated 22 October 1993, and in substitution decides that a disability pension of 20 percent of the General Rate is payable to the estate of the late Veteran with effect on and from 27 January 1993 until the date of his death, that being 21 July 1997.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  22 May 1996, 3 September 1997, 10 November 1999
Date of Decision  22 November 2000
Counsel for the Applicant        C.A Vindin
Solicitor for the Applicant         Kenneth Harrison Solicitors
Counsel for the Respondent    R.Henderson
Solicitor for the Respondent    S. Fhaolain, Dept. of Veterans' Affairs