Cornish and Repatriation Commission [2011] AATA 65 (8 February 2011)

Last Updated: 8 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5781

VETERANS' AFFAIRS DIVISION		)
	Re		DAVID CORNISH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 8 February 2011

Place Melbourne

Decision

The decision of the Veterans' Review Board in so far as it refused to review a decision of the respondent with respect to right central retinal vein occlusion is affirmed. The remainder of the decision, namely the decision affirming the decision refusing an increase in pension above 80% of the General Rate, is set aside and in substitution it is decided that the applicant is entitled to pension at the Special Rate from 2 June 2003.

................[signed]......................
Senior Member

VETERANS’ AFFAIRS – Application for special rate – applicant 78 years at application day – self employed breeding cattle – s 24(2A)(e) and s 24(2B) in issue – whether accepted condition of macroglobulinaemia alone responsible for incapacity – discussion of meaning of remunerative work and last paid work and the interaction between s 24(2A)(e) and s 24(2B) – decision set aside

Veterans’ Entitlements Act 1986 ss 5Q, 15, 19, 24, 31, 135

Anderson v Repatriation Commission [2004] FCA 1009

Cavell v Repatriation Commission (1989) 9 AAR 534

Counsel v Repatriation Commission [2002] FCAFC 201; (2002) 122 FCR 476

Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1

Re Turner and Repatriation Commission [1994] AATA 355; (1995) 37 ALD 705

Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Strickland [1990] FCA 366; (1991) 22 ALD 10

REASONS FOR DECISION

8 February 2011

Mr John Handley, Senior Member

1. Mr Cornish, the applicant, was born on 30 September 1925 and is presently 85 years of age. He served in the Australian Army between 20 October 1943 and 21 November 1946.
2. On 2 September 2003, he claimed the condition of macroglobulinaemia as war-caused on the basis that he was exposed to ionising radiation in Hiroshima during operational service. On 7 November 2003, the respondent rejected the claim. On 11 October 2007, the Veterans’ Review Board (VRB) decided that the condition was war-caused. The VRB set aside the primary decision and remitted the application to the respondent for assessment of pension. On 14 December 2007, the respondent assessed pension at 60 per cent of the General Rate. Following an internal review on 19 May 2008, pursuant to s 31 of the Veterans’ Entitlements Act 1986 (the Act), the respondent increased the rate of pension to 80 per cent of the General Rate.
3. On 10 January 2008, the applicant made a claim for right central retinal vein occlusion on the basis that it resulted from his macroglobulinaemia and was therefore war-caused. The respondent rejected the claim on 3 July 2008.
4. The applicant sought review of the decision to grant him pension at 80 per cent of the General Rate and the decision to reject the right retinal vein occlusion. On 30 October 2009, the VRB affirmed both decisions. The applicant applied to this Tribunal for review of the VRB’s decision.
5. Principally, the applicant seeks a pension at the special rate. He suffers from sensorineural hearing loss with tinnitus, tinea, corns, chronic solar skin damage and macroglobulinaemia, which have all been accepted as war-caused. He also suffers from metatarsalgia and retinal vein occlusion, which have been rejected by the respondent. The applicant suffers from cervical spondylosis, hypertension and peripheral neuropathy, which have not been claimed as war-caused. It was suggested by the respondent that he also suffers from chronic renal impairment and Non-Hodgkin’s Lymphoma.
6. The assessment period for the purposes of this application commenced on 2 September 2003 when the applicant lodged his claim for macroglobulinaemia at the age of 77 years and ends on the date of this decision. Any entitlement to special rate pension will have effect from 2 June 2003, being three months before the date of claim.

LEGISLATION

7. By reason of the applicant being 77 years of age when he made his claim for an increase in pension he must satisfy the provisions of s 24(2A) of the Act. For reasons which will become obvious later, s 24(2B) must also be considered. Both of those sections are as follows:

(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.

8. The respondent conceded that all of the sub-sections of s 24(2A) were satisfied except s 24(2A)(e). The applicant made a claim for an increase in pension under s 15 of the Act and he turned 65 before he made the claim. The applicant’s rate of pension exceeds 70 per cent. He is totally and permanently incapacitated because his war-caused incapacity prevents him from undertaking remunerative work for more than eight hours per week. His war-caused injury alone prevents him from continuing to undertake the last paid work that he had been undertaking before the claim was made. He was undertaking his last paid work after he turned 65 and when he ceased undertaking his last paid work, he had been undertaking it for a continuous period of at least 10 years (refer Respondent’s Statement of Facts and Contentions dated 8 August 2010).
9. Initially, the respondent argued that the applicant’s last paid work was in 1995. However, after hearing the applicant’s evidence and reading the documents, the respondent conceded that he ceased his last paid work in 2003 (Transcript of 28 October 2010, p 38).
10. The issue before the Tribunal is 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 from the war-caused incapacity. That enquiry also requires that attention be given to the provisions of s 24(2B) of the Act.

BACKGROUND

11. The applicant completed his schooling to the year 10 equivalent and joined The Trustees Executors Company as a clerk. He joined the Army in 1943 and following discharge, he resumed employment with that employer until it was eventually acquired by the ANZ Banking Group (ANZ). He became Assistant General Manager of the ANZ Executors and Trustee Company and continued his employment with the ANZ until his retirement in 1985 at age 60. He suffers from a profound hearing loss (recorded by an audiogram on 19 March 2009 as 50.3 per cent – T-documents, T21) and he ceased employment with the ANZ because of that (accepted) condition. He did not have an entitlement to superannuation and was paid a retirement lump sum.
12. The applicant said that he had always had a love of farming and intended to be a farmer in retirement. His father was a soldier settler, and operated and managed a farm until he became a salesperson for a phosphate company.
13. The applicant purchased 40 acres of farming land near Benalla in 1982. In 1985, having ceased employment with the ANZ and in the absence of a superannuation payment or pension, he intended to continue to work to earn income. He purchased the 40 acres from a neighbour, Mrs Balfour, who owned 82.5 acres of adjoining land. He and Mrs Balfour operated a type of partnership over his land and her land where they purchased beef cattle equally and shared the profits from sales equally.
14. In May 1993, having ceased his association with Mrs Balfour, the applicant commenced a Poll Hereford breeding business. His farm was registered with the Poll Hereford Society as the Kurrajong Stud. He bred Poll Hereford cattle, which he sold, as either stud stock or, if of inferior quality, to livestock markets. The applicant engaged a stock and station agent for the purposes of sales.
15. From 1993, the applicant said that he was working full-time for approximately eight hours per day, depending on the season, on the farm. In 1995, he began to suffer from profound fatigue and found it difficult to perform his duties. His general practitioner was unable to diagnose the source of the fatigue. The applicant noted that after one hour of work, he would have to take a break and he would fall asleep after lunch. He was unable to operate machinery or undertake physical work with any degree of confidence or safety. In 1998, he was diagnosed with macroglobulinaemia and the symptoms of fatigue were explained by that diagnosis.
16. The applicant said that he ceased full-time work on his stud in 1995 and by 1998 he was caretaking it (Transcript of 23 August 2010, p5). He subsequently reduced his breeding operations and by March 2003, all of the stock had been sold.
17. The applicant sold 20 acres after he sold the last of the stock. He currently owns 20 acres, over which agistment operations are conducted. The agisted cattle belong to a neighbour and the applicant does not receive income, save for some income in 2003 from sales of hay and agistment. Since 2003 he has received income from dividends and interest on investments. He also receives a service pension.
18. The applicant denied that he had ever been diagnosed with metatarsalgia and denied ever having been told of the diagnosis of renal impairment and Non-Hodgkin’s lymphoma (Transcript of 23 August 2010, p7 and p16; refer also report of Dr Ellims, 9 April 2010 (Exhibit A4)).
19. The applicant tendered his income tax returns, profit and loss statements and trading account statements for the relevant years (Exhibits A2 and A3). The trading account statements for each of the years 1997 to 2003 show a progressive diminution of stock on hand by reason of the reduction in stock naturally increasing and stock being sold. By March 2003, all of the stock had been sold. Consequently, the applicant suffered a diminution in his income and the last income earned from the stud was in the 2003 income year and the amount then declared as gross receipts was $5147.00.

SUBMISSIONS

20. Mr Niall appeared on behalf of the applicant when the hearing resumed in Melbourne. He focussed on the manner in which s 24(2A)(e) of the Act should be interpreted.
21. Mr Niall submitted that but for the war-caused disabilities, the applicant would have continued his cattle breeding operations (his last paid work). It follows that the applicant subsequently suffered a loss of earnings, on his own account that he would not have suffered but for his incapacity from his accepted conditions. It was noted that the income tax returns and profit and loss statements demonstrated gross receipts of income. The applicant relied on the decision of the Full Court of the Federal Court in Counsel v Repatriation Commission [2002] FCAFC 201; (2002) 122 FCR 476 and submitted that the applicant was not required to demonstrate profit but rather a loss of his income stream without regard to net returns.
22. It was submitted that s 24(2A)(e) is similar to s 24(1)(c) which applies to veterans who make a claim before they reach the age of 65. Mr Niall referred to the decision of the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 (Smith) where Beaumont J said at 337:

As has been said the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities.

23. The submissions then moved to considerations specifically of s 24(2A)(e) and a decision of Gray J in Anderson v Repatriation Commission [2004] FCA 1009 (Anderson) where at [49] His Honour recorded the following:

In Smith, the Full Court was dealing with what was then s 24(1)(c) of the VE Act. In a single paragraph, that provision contained (as it still does) effectively the two criteria found in s 24(2A)(d) and (e). Section 24(1)(c) deals with both the question whether incapacity from war-caused injury or disease or both, alone, prevented a veteran from continuing to undertake remunerative work and the question whether the veteran is 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. It is plain that the question formulated by Beaumont J in Smith was directed to the application of the two-stage criterion in s 24(1)(c). That part of the criterion that is constituted by the ‘alone’ test, standing by itself as it does in s 24(2A)(d), does not prompt such a question as Beaumont J suggested. It prompts an inquiry into what the last remunerative work undertaken by the veteran was, and why he ceased to undertake it. If more than one reason appears, and the reasons are not confined to war-caused injury or disease, then the ‘alone’ test will not be satisfied. If the veteran does satisfy the ‘alone’ test, it will be necessary to move to the question of loss of wages or salary, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity, as required by s 24(2A)(e). It is then that the Tribunal would need to attempt an assessment of what the veteran probably would have done if not suffering from the service disabilities. If, even without the war-caused injury or disease, and its consequent incapacity, the veteran would not have been earning, then that criterion will not be satisfied. There was no error of law on the part of the Tribunal in the present case in failing to ask the question referred to in Smith.

24. It was submitted that the combined effect of Anderson and the respondent’s concession that s 24(2A)(d) was satisfied dictated that the only issue to be determined is whether the applicant satisfies paragraph (e). Therefore, the enquiry under paragraph (e) requires me to determine whether the applicant is prevented from undertaking his last paid work and whether he is suffering a loss of earnings that he would not have suffered if he were free from the war-caused incapacity.
25. Mr Niall submitted that the applicant ceased his cattle breeding business because of the incapacity that he suffered as a result of his war-caused macroglobulinaemia. Thereafter he suffered a loss of earnings, which he would not have otherwise suffered.
26. Paragraph 4.6 of the respondent’s Contentions record that the applicant ceased work as a farmer/stud farm operator for reasons other than war-caused incapacity or for some other reason. The reasons advanced were personal choice, his age and his non accepted disabilities, particularly his metatarsalgia.
27. Mr Niall submitted that that pleading was inconsistent with the respondent’s concession that the applicant satisfies s 24(2A)(d).
28. However, in the event that there was a finding that s 24(2B) did apply, Mr Niall submitted on the evidence that the applicant did not cease remunerative work by personal choice. It was submitted – and by reference also to the transcript of the applicant's evidence – that he did not cease work for any reason independent of the macroglobulinaemia and the contention of ceasing to engage in remunerative work because of personal choice could not be sustained.
29. Mr Niall acknowledged that the applicant was beyond the normal retirement age that might be expected of wage and salary earners, however it was open to the Tribunal to find that the applicant did not cease by reason of his age.
30. Additionally, the third proposition of the respondent, namely, ceasing work by reason of his non accepted disabilities, particularly the condition of metatarsalgia, also could not be upheld because the applicant said in evidence that as far as he was aware he had not ever suffered from that condition and if he did, it did not affect him.
31. Mr Purcell, on behalf of the respondent, submitted that s 24(2B) must be considered. He drew attention to the sections specifically being linked to s 24(2A)(e) and suggested that both of those sections must be read conjunctively. Despite the concession that the applicant satisfies s 24(2A)(d) it was submitted that entitlement under s 24(2A)(e) could only be found if there had been a cessation of engagement in remunerative work for no reason other than incapacity from the war-caused injuries.
32. The respondent submitted that the applicant ceased to be engaged in remunerative work for reasons other than his war-caused injuries. The respondent contended that the applicant suffered from a number of other illnesses and injuries, some of which were rejected and some of which had not ever been claimed which contributed to incapacity.
33. Mr Purcell also relied on an opinion expressed by Dr Horsley (refer Exhibit R2) who reported the applicant's age progressively had an affect on his capacity to engage in remunerative activity. It was conceded that the age of 65, whilst commonly being regarded as a normal retirement age, might have little application in the case of self-employed farmers. However, the time would come eventually when such persons would cease employment. Mr Purcell did concede that the applicant was engaged in remunerative activity in 2003 when he was 78 years of age.
34. The respondent noted from the medical evidence that the applicant appeared to relate all of his symptoms to the condition of macroglobulinaemia. That opinion was held having regard to a report of Dr Ellims. However, it was noted that the applicant suffered also from metatarsalgia, cervical spondylosis, peripheral neuropathy and retinal vein occlusion.
35. The respondent submitted that peripheral neuropathy affected the applicant's hands and feet and the retinal vein occlusion affected his eyesight. The cervical spondylosis (evidenced by a CT scan and by an opinion expressed by Dr Horsley) would affect his capacity to lift and the metatarsalgia would affect the applicant's feet and would cause a loss of mobility. The applicant also appears to have suffered from hypertension. Accordingly, each condition, it was submitted, would have an impact on the applicant's capacity to earn and also contributed to his incapacity.
36. In reply Mr Niall submitted that the interpretation placed on s 24(2A)(e) of importing another alone test was wrong. It was submitted that that word does not appear within the sub-section, as opposed to it appearing within sub-section (d), which the respondent conceded the applicant satisfied.
37. However, if s 24(2B) did apply as the respondent submitted the circumstances described it did not offend the applicant's claim because he did not cease to engage in remunerative work for reasons other than incapacity from his war-caused injuries. Alternatively, on the material before the Tribunal, the applicant was not prevented from engaging in remunerative work for some other reason.
38. Mr Niall submitted that Doctors Ellims and Horsley both certified total incapacity because of the macroglobulinaemia. Whilst other conditions were identified there was no material which pointed to those conditions having any contribution to incapacity at the date of claim.

REASONS FOR DECISION

39. Pension is payable within the assessment period which is defined as commencing on the application day (date of claim) and ending on the day the claim is determined (refer s 19(9) of the Act). The claim will be determined on the day this review is completed that is, the date of delivery of these reasons.
40. Section 19(5C) compels the respondent to assess the rate of pension payable from time to time during an assessment period. This provision contemplates a variation in the general rate of pension within the assessment period if the extent of the veteran's impairment alters.
41. However, this provision is modified by s 19(6) which provides that pension payable under s 24 (special rate) shall not be lower during the assessment period. I understand that provision to mean that if a veteran qualifies for special rate pension at the date of claim or at a later date within the assessment period it shall not, subject to s 24A (which does not apply to this review) be lower (than the special rate). (Refer Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591 at 594; Re Turner and Repatriation Commission [1994] AATA 355; (1995) 37 ALD 705 at paragraph 47).
42. I am therefore satisfied that the entitlement of the applicant to pension at the special rate should be assessed at the date of claim being 3 September 2003. If the applicant did not then qualify, did he qualify at a later and if so what date?
43. As may be seen above, a greater part of the closing submissions concerned the application of s 24(2B).
44. Counsel for the applicant submitted that s 24(2B) had no application because it caused enquiry into whether there was incapacity for a reason other than the war-caused injuries. However, the applicant relied on s 24(2A)(e) which was concerned with whether an applicant was suffering a loss of earnings when prevented from undertaking his last paid work.
45. Counsel for the respondent submitted that s 24(2B) did apply because it should not be found that a veteran is prevented from undertaking his last paid work (and therefore suffering consequential loss of earnings) if the cessation from engaging in remunerative work was for reasons other than the war-caused injuries.
46. Mr Purcell submitted that satisfaction of s 24(2A)(e) requires a veteran to meet two alone tests being s 24(1)(b) and s 24(1)(c), the latter, he submitted, was matched by s 24(2A)(e) (refer Transcript of 28 October 2010, p 38).
47. I have not found any authority where s 24(2B) has been discussed or analysed. I note the following:

(a) Section 24(2A)(c) – which is conceded by the respondent – will apply if s 24(1)(b) is satisfied. Section 24(1)(b) imposes an alone test when a determination is made of whether total and permanent incapacity by war-caused injury or disease renders a veteran incapable of undertaking remunerative work.

(b) Section 24(2A)(d) – which the respondent also concedes – imposes an alone test, however it differs from s 24(1)(b) because it narrows the ambit of remunerative work to the last paid work.

(c) Section 24(2A)(e) does not contain the word alone and in isolation from s 24(2B), the enquiry is directed wholly to whether war-caused injury or disease is responsible for economic loss.

(d) However, s 24(2B) compels consideration if s 24(2A)(e) is in issue, as it is in this review. It is absent the word alone but it is drafted in similar terms to s 24(2)(a)(i) and (ii). It directs an enquiry into whether a veteran ceased engagement in remunerative work for reasons other than war-caused injury or disease or whether there is incapacity for another reason.

(e) In Anderson, Gray J decided the enquiry into the application of s 24(2A)(e) (following satisfaction of the alone test in s 24(2A)(d)) is focussed on whether there is economic loss by incapacity but the enquiry is extended. In his conclusion at [49], His Honour decided:

It is then that the Tribunal would need to attempt an assessment of what the veteran probably would have done if not suffering from the service disabilities. If, even without the war-caused injury or disease, and its consequent incapacity, the veteran would not have been earning, then that criterion will not be satisfied.

(f) I understand that to mean – although His Honour did not refer to s 24(2B) that when considering s 24(2A)(e) – that consideration should be given to the hypothetical position of whether the veteran would have continued to earn but for his war-caused injury or disease precipitating incapacity. That is, if he had intended to retire or (in the case of a farmer for example, who sold his property) consideration should be given to whether those factors were responsible for the lost remuneration.

48. A veteran over the age of 65 at the date of claim and claiming special rate pension is required to traverse s 24(2A), meet some of the requirements of s 24(1), satisfy two alone tests (and one implied by s 24(2B)) and suffer loss by prevention from undertaking remunerative work being the last paid work.
49. Remunerative work is defined at s 5Q as including any remunerative activity. The last paid work within s 24(2A) is the remunerative work that the veteran was last undertaking before he made his claim or application. The last paid work is, by distinction from remunerative work, specific to the work being undertaken immediately before a claim or application is made.
50. In Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [8] the Full Court of the Federal Court decided:

In order for a decision-maker to be satisfied that the criterion in s 24(2A)(d) has been met the decision-maker must determine:

• the “remunerative work” that the veteran was last undertaking before he or she made the claim or application;
• whether the veteran is, at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work.

51. The condition of macroglobulinaemia is an insidious and extensive disease affecting bone marrow, the liver and spleen and precipitating fatigue and lassitude. From the medical evidence and the evidence of the applicant it appears that he first noticed – and was affected by – symptoms of the disease in 1996, he was diagnosed in 1998, and the progressive effects of it caused total incapacity from 2003.
52. The reports of Dr Ellims satisfy me that the nature of the disease was the cause of incapacity from 2003.
53. The reports of Dr Horsley, following examination of the applicant and review of the medical evidence in 2003 – seven years later – satisfy me that her conclusions of the macroglobulinaemia being the primary disability are accurate, if not understated, bearing in mind that she also considered a number of other conditions which I cannot find on the medical evidence existed in 2003 or if any did, I cannot be satisfied that they contributed in any degree to the commencement of incapacity.
54. The applicant did suffer a retinal vein occlusion in 1998 for which he was treated by Dr Radford. It was his opinion that whilst that condition had a relationship to the macroglobulinaemia, the long term consequence of it has been an affect on the applicant's vision. Reading glasses have been prescribed for that purpose only, however, there does seem to be an affect on peripheral vision (refer VRB Transcript at page 13-14). There is nothing from the applicant's evidence to the VRB or in other reports which would indicate that the affect on his vision by the retinal vein occlusion had any contribution to the commencement of incapacity.
55. The applicant apparently has been treated for hypertension and the clinical notes of his general practitioner lodged with the Tribunal commence at December 2003. The first consultation in the notes is dated 11 December 2003 and records that the applicant then attended for a check of blood pressure and repeat of scripts. The blood pressure then recorded was of 175/90. On 17 February 2004, the blood pressure was measured at 140/80. On 19 March 2004, it was 120/80 and on 10 May 2004, 140/90.
56. I cannot discern from the clinical notes (Exhibit A7) of the applicant's general practitioner that hypertension caused any contribution to incapacity. In a letter dated 17 July 2009 Dr de Crespigny, the general practitioner, reported to DVA – in respect of the claim then being considered for acceptance of right central vein occlusion – that the applicant had suffered hypertension from 1972 but over that time his blood pressure has been controlled to normal levels... Later in that report he recorded, this man's blood pressure dating back for many years has been entirely normal on treatment.
57. The applicant does suffer from cervical spondylosis. A CT scan of 23 July 2009 reported degenerative changes at four levels. Dr Horsley was of the opinion that the capacity of the applicant to lift would be affected.
58. I can find nothing which points to cervical spondylosis affecting the applicant in 2003. It is likely then, when the applicant was 78 years of age, that he would have some degree of degenerative disease but nothing points to any contribution to incapacity by the spondylosis (assuming that it did then exist).
59. There were some enquiries being made by the respondent concerning a condition believed to have been suffered by the applicant of chronic fatigue syndrome (CFS). It would appear that the applicant's symptoms of fatigue and lassitude associated with his macroglobulinaemia gave rise to a suspicion of CFS. Dr Radford in a report of 23 April 2008 (T-documents page 40) was satisfied that CFS had never been diagnosed and I am satisfied that the applicant has never suffered from it.
60. It would appear that the applicant also suffers from peripheral neuropathy but I can find nothing which would point to that condition existing in 2003. In his report of 23 April 2008 Dr Radford refers to that condition and concluded that it had not ever been formally investigated. He also reported that the applicant has recently had some numbness in his fingers, which impair his ability to work with his hands. Dr Horsley reported on 24 May 2010 that peripheral neuropathy had been diagnosed three or four years ago and it affected his hands and feet. Dr Ellims reported on 24 April 2008 that the applicant had a problem with the symptoms of peripheral neuropathy which were due to the macroglobulinaemia (T-documents page 66).
61. I wonder, with respect, whether the peripheral neuropathy in effect does affect the applicant's feet. Dr Radford did not report that the effects of that condition extended beyond the applicant's hands and the evidence to the VRB by the applicant in October 2009 (refer Transcript of 23 August 2010, p 15) suggested that only the hands were affected by the condition. At page 21 of the Transcript there is a reference to one hand only being affected.
62. The applicant has suffered from metatarsalgia which may be the explanation for discomfort affecting his feet (rather than peripheral neuropathy). However the metatarsalgia has apparently been treated by a podiatrist and orthotic inserts for his shoes have been obtained. The affect, if any, by metatarsalgia would appear to be minimal because in evidence at the hearing the applicant said as far as he was aware he had not ever suffered from the condition. Dr Horsley did not conclude that metatarsalgia contributed to incapacity and again there was nothing from her report or elsewhere which would point to metatarsalgia contributing to incapacity at 2003.
63. Dr Ellims reported on 9 April 2010 that the applicant also suffers from renal impairment secondary to Non Hodgkin's Lymphoma. The applicant said he was not aware that those conditions had been diagnosed. There is nothing which would point to either of those conditions existing at 2003 and therefore there is nothing which would permit me to conclude that either condition, even if they did then exist, made any contribution to incapacity at the date of claim.
64. The applicant also suffers mouth ulcers, apparently related to the macroglobulinaemia. The condition is painful and affects his ability to eat certain foods but nothing from the materials lodged points to that condition as having had any affect upon incapacity at 2003.
65. The respondent contended the applicant ceased cattle breeding by personal choice. I disagree. The applicant impressed me as a witness of truth with a strong commitment to farming. He described it as his love. I have no reason to doubt and nothing was advanced which would indicate that but for the macroglobulinaemia he had any intention to cease cattle breeding. The operation was small scale both in terms of acreage and cattle numbers but he did engage an agent to seek buyers and to conduct sales. The business was remunerative. Prior to contracting macroglobulinaemia the applicant successfully pursued cattle breeding without any affect from the disabilities previously accepted as war-caused.
66. For the above reasons, I am satisfied the applicant's age would not have impaired his ability or intention to pursue cattle breeding beyond 2003 but for the macroglobulinaemia.
67. It might be inferred or not unreasonably assumed that the applicant at the age of 78 in 2003 might have been on the verge of retirement or did intend to retire. I do not draw that conclusion. In addition to his passion for farming, he did not receive a superannuation package or a pension when he resigned from the ANZ. His intention was to keep working and earning income from cattle breeding. His only other income was modest sums from investments. The facts disclosed point to the applicant continuing to undertake remunerative work beyond 2003 (refer Repatriation Commission v Strickland [1990] FCA 366; (1991) 22 ALD 10 at 17). At a practical level the loss of remunerative income is attributable to the accepted war-caused disease of macroglobulinaemia (refer Cavell v Repatriation Commission (1989) 9 AAR 534 at 539).

CONCLUSION

68. For all the above reasons I am satisfied:

(a) at the date of claim the applicant was prevented from undertaking remunerative work being cattle breeding by the war-caused disease of macroglobulinaemia alone;

(b) cattle breeding was the applicant’s last paid work and was being undertaken immediately before the claim was made;

(c) but for the incapacity the applicant would have continued breeding cattle and earning income;

(d) the applicant has suffered a loss of earnings on his own account that he would not have suffered if he was free from that incapacity;

(e) the applicant has not suffered incapacity and loss of earnings for any reason other than the war-caused macroglobulinaemia; and

(f) the applicant is therefore entitled to pension at the special rate from 2 June 2003 being three months before the application date of 2 September 2003.

69. The decision of the Veterans' Review Board made on 30 October 2009 in so far as it decided not to increase pension above 80% of the general rate is set aside and in substitution for it, the decision made in paragraph 68(f) above will be substituted.

RIGHT CENTRAL VEIN OCCLUSION

70. The respondent rejected the claim for right central vein occlusion by a decision made on 3 July 2008 (T-documents page 58). I assume it was posted to the applicant on the same day, being a Thursday. It was correctly addressed and there is no evidence that it was returned. I am satisfied in the ordinary course the applicant would have received it on or about 7 July 2008, the following Monday.
71. The application for review of that decision was lodged with the VRB on 22 July 2009 (T-documents page 108).
72. Section 135(4) of the Act imposes a 12 month limit on lodgement with the VRB of applications for review of decisions of the respondent. There is no provision for extending that 12 month period.
73. The application was therefore lodged out of time. The VRB had no power to review the respondent's decision and its decision to refuse review was properly made. The decision of the VRB made on 30 October 2009 in so far as it concerned right central vein occlusion is affirmed.
    

I certify that the seventy-three [73] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr John Handley, Senior Member

Signed: ............................[signed]............................................

Associate Grace Horzitski

Dates of Hearing 23 August 2010 at Wodonga

28 October 2010 at Melbourne

Date of Decision 8 February 2011

Counsel for the Applicant Ms F. Ryan at Wodonga

Mr R. Niall at Melbourne

Solicitor for the Applicant Williams Winter Solicitors

Counsel for the Respondent Mr G. Purcell