Re Bob Salecich and Repatriation Commission [1991] AATA 172; 23 ALD 681 (19 July 1991)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: BOB SALECICH
And: REPATRIATION COMMISSION
No. P90/255
AAT No. 7172
Veterans' Affairs - Jurisdiction - Practice and Procedure
[1991] AATA 172; 23 ALD 681

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Mrs J.R. Dwyer(1) (Senior Member)

CATCHWORDS

Veterans' Affairs - application for increase in rate of disability pension - associated claim for additional disabilities to be accepted - decision under review rejected two out of four additional disabilities and refused application for increase - Extreme Disablement Adjustment.

Jurisdiction - question whether Tribunal had power to vary rate of pension in respect of accepted disabilities if rejection of additional disabilities affirmed - meaning of "the decision under review" - Fitzmaurice v Repatriation Commission (1989) 10 AAR 172 applied.

Practice and Procedure - applicant repatriated to Yugosalvia because of accepted disability of depressive state in 1948 - applicant did not seek review of refusal of increase of pension - substantial justice and merits of case require consideration of that issue - s.119 of the Veterans' Entitlements Act 1986 - disadvantages of age, health, language, lack of legal representation, lack of access to pre-hearing procedures of the Tribunal.

Decision under review affirmed as to part and varied as to part.

Repatriation Act 1920

Veterans' Entitlements Act 1986 ss.9, 22, 23, 24, 25, 119

Administrative Appeals Tribunal Act 1975 ss.37, 43

Veterans' Affairs Legislation Amendment Act 1988

Fitzmaurice v Repatriation Commission (1989) 10 AAR 172

Re Quoney and Repatriation Commission decision No. 6990, delivered 21 May 1991

Walshe v Repatriation Commission (1989) 18 ALD 285

HEARING

MELBOURNE
19:7:1991

ORDER

The Tribunal affirms that part of the decision of the Repatriation Commission made 27 February 1986 which rejected the claims in respect of chronic bronchitis and bilateral cateracts.

The Tribunal varies that part of the decision which refused to increase the rate of disability pension payable to Mr Salecich beyond 100% of the General Rate, to provide that from 22 December 1988 Mr Salecich has been entitled to payment of the Extreme Disablement Adjustment as provided in s.22(4) of the Act.

DECISION

This is an application for review of a decision of the Repatriation Commission in respect of an Application for Increased Rate or Payment of Disability Pension lodged on 27 September 1984. The Repatriation Commission in its decision of 27 February 1986 accepted atherosclerosis and senile dementia as service related conditions but refused to accept bilateral cataracts and chronic bronchitis as service related within the meaning of that term in the Repatriation Act 1920, and refused to grant Mr Salecich any increase in pension beyond 100% of the general rate which he was already then receiving. That decision was affirmed by the Veterans' Review Board (the "VRB") on 2 February 1990. The relevant legislative provisions are those found in the Veterans' Entitlements Act 1986 ("the Act").
Procedural Difficulties

2. The applicant was born in 1914 and originally came to Australia from Yugoslavia when he was aged 18. He enlisted in the Australian Army when he was aged 28 and served from June 1942 to September 1945. He was discharged suffering from depressive state. That condition was accepted as a service related disability under the Repatriation Act 1920 with effect from 21 August 1945. He was repatriated to Yugosalvia in 1949. At the hearing, which commenced in Sydney on 31 August 1990, the applicant was represented by Mrs Marelich, his grandniece, who gave evidence and spoke on his behalf over the telephone from Yugoslavia. She speaks excellent English, but nonetheless there are difficulties in conducting a two hour hearing over the telephone particularly as at the time it was approximately 4.00 and 5.00 am in Yugoslavia. The applicant was not well enough to be present with Mrs Marelich at that hour. The respondent was represented by Mr Shadbolt, an officer of the Department of Veterans' Affairs. The Tribunal received in evidence the documents (the "T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and further exhibits tendered during and after the hearing.

3. At the conclusion of the telephone hearing on 31 August 1990 there were a number of matters as to which further evidence was required. The Repatriation Commission and the Tribunal both sought further evidence as to Mr Salecich's smoking habits, in regard to the chronic bronchitis claim, and as to Mr Salecich's current state of health. The Tribunal requested further information from Mr Salecich and from the Repatriation Commission as to Mr Salecich's duties while unloading petrol during service, and also requested a further report, taking any such new material into account, from the medical expert retained by the Repatriation Commission. The Repatriation Commission wished to make written submissions as to the jurisdiction of the Tribunal to consider an increase in the rate of pension payable to Mr Salecich. Unfortunately, in spite of the Tribunal giving precise directions as to when this material was to be made available to it, it was not obtained until many months later.
The decision under review

4. The original application which lead to the making of the Repatriation Commission decision, now the subject of review by the Tribunal, was lodged by Mrs Salecich, through one of Mr Salecich's "wartime mates", who had visited the family in Yugoslavia. Mrs Salecich in the application for increased rate or payment of disability pension wrote:
"Because of the general state of health of my husband

Bob Salecich, I am making this application for an
increase in the war pension as he is not in a fit
mental state to do so himself.
My husband is suffering from a nervous condition
and will not discuss his mental health problem nor
will he agree to any form of treatment whatsoever.
Over the years he has become a difficult person
to live with, because he refuses any form of
treatment and he is rapidly losing his general
health, so much so that he has lost the desire to
live. He also doesn't want to work any more and not
having any other form of income, life is very
difficult." (emphasis added)

She also sent a medical certificate which required translation.

5. After obtaining a translation of the medical certificate the Secretary of the Department of Veterans' Affairs, on 10 October 1984, wrote to a representative of Mrs Salecich, a letter which read in part as follows:

"The statement from Dr Srecko Banicevic, which
accompanied Mrs Salecich's claim, lists a number of
incapacities from which Mr Salecich is suffering.
These are senile dementia, generalised
atherosclerosis, cardiomyopathy, hypertension,
bronchitis, emphysema, aphakia postoperative on the
right side and cataract immatura on the left side.
As these conditions have not been accepted as
service-related, pension cannot be paid for them. I
have, therefore, enclosed a form to enable Mr
Salecich to claim for these as related to service.
If he is unable to do so, Mrs Salecich should do
this on his behalf."

6. On 4 March 1985 the claim form forwarded to Mr Salecich was completed, and then returned to the Department of Veterans' Affairs together with a further medical report which required translation. A memo of 10 October 1985 states that the new disabilities are:

"1. Generalised Atherosclerosis. This includes
coronary artery disease, and C.C.F.
2. Senile dementia.
3. Chronic Bronchitis.
4. Bilateral cateracts (senile)."

7. A medical practitioner reported on each of these four disabilities. On the basis of this report the Repatriation Commission on 27 February 1986, in the determination under review, granted the claims in respect of atherosclerosis and senile dementia and rejected the claims in respect of chronic bronchitis and bilateral cataracts. It also considered the application for increased pension beyond the 100 percentum rate in respect of depressive state and concluded that Mr Salecich did not qualify for either the intermediate or the special rate of pension.

8. On 20 August 1986 the Australian Embassy in Belgrade forwarded to Australia an application for Review of the Repatriation Commission's decision, completed by Mrs Salecich on 8 July 1986. That application referred only to "chronic bronchitis" in the description of the decision. The claim for bilateral cataracts has never been pursued by Mr Salecich and there is no evidence on which the Tribunal could do anything but affirm that part of the Repatriation Commission decision. On 2 February 1990 the Veterans' Review Board affirmed the decision of the Repatriation Commission without considering the issue of an increase in the rate of pension in respect of the previously accepted disabilities.

9. Two issues arose at the hearing:

(i) whether chronic bronchitis should be accepted as a
war-caused condition under s.9 of the Act;
(ii) Whether the Tribunal had jurisdiction to consider any
increase in the rate of pension payable to Mr Salecich,
even if his claim to have chronic bronchitis accepted as
a war-caused disease was not successful.

The claim for chronic bronchitis

10. Section 9 of the Act, so far as relevant provides as follows:
"(9)(1) Subject to this section, for the purposes of

this Act, an injury suffered by a veteran shall be
taken to be a war-caused injury, or a disease
contracted by a veteran shall be taken to be a
war-caused disease, if-
(a) the injury suffered, or disease contracted,
by the veteran resulted from an occurrence
that happened while the veteran was
rendering operational service;
(b) the injury suffered, or disease contracted,
by the veteran arose out of, or was
attributable to, any eligible war service
rendered by the veteran;
. . .
(d) the injury suffered, or disease contracted,
by the veteran is to be deemed by
sub-section (2) to be a war-caused injury or
a war-caused disease;
(e) the injury suffered, or disease contracted,
by the veteran:
(i) was suffered or contracted while the
veteran was rendering eligible war
service, but did not arise out of
that service; or
. . .
and, in the opinion of the Commission, the injury
or disease was contributed to in a material
degree by, or was aggravated by, any eligible war
service rendered by the veteran, being service
rendered after the veteran suffered that injury
or contracted that disease.
9(2) For the purposes of this Act, where any
incapacity of a veteran was, in the opinion of the
Commission, due to an accident that would not have
occurred, or due to a disease that would not have
been contracted, but for his or her having rendered
eligible war service or but for changes in the
veteran's environment consequent upon his or her
having rendered eligible war service -
. . .
(b) if the incapacity was due to a disease - the
incapacity shall be deemed to have arisen
out of that disease and that disease shall
be deemed to be a war-caused disease
contracted by the veteran."

11. Mrs Marelich said that Mr Salecich believed his chronic bronchitis was related to his duties of unloading fuel during war service. She described the fuel as, "special octane petrol drums for the planes and warships", and said the work was performed in very damp and unpleasant weather. She said that Mr Salecich had told her that he had constant uncontrollable coughing while in the Army and that it seemed to get worse after his discharge.

12. The service documents refer to only one occasion when Mr Salecich suffered from a cough. It is recorded at p 19 of exhibit R1 and at p 12 of the T documents. A sick report of 25 May 1945, prior to onset of the depressive state, reads:

"Cough ? ? 48 hours".
Treatment: Massage, Tussi, inhalation"

A number of subsequent medical reports, after the onset of the depressive state record "NAD", meaning "no abnormality detected", in the lungs or respiratory system.

13. It appears from the documents before the Tribunal that Mr Salecich was concerned that the rejection of his claim, to have chronic bronchitis accepted as war-caused, was based on the assumption that he had been a smoker prior to service, and that his smoking was the cause of the condition. He instructed Mrs Marelich to tell the Tribunal that he had only ever been a light smoker and that he had given up smoking before he left Australia because of problems with his cough.

14. At the hearing it was pointed out to Mrs Marelich, that a medical report (at p 22 of the T documents) records that Mr Salecich stated to a doctor who examined him on 22 June 1948 that he had stopped smoking two months earlier because of the expense. That medical report contains a number of complaints of symptoms by Mr Salecich, but does not include any mention of coughing. Chest and heart are reported after examination as "NAD".

15. The Tribunal arranged for Mrs Marelich to ask Mr Salecich to provide further evidence, by letter, as to his service duties and his smoking habit. In response, the Tribunal received a letter from Mr and Mrs Salecich dated 9 September 1990, and written with the assistance of Mrs Marelich. It stated that Mr Salecich first noticed light coughing during his hospitalization in 1948, when Dr Hyslop prescribed medication, but that the coughing was irrelevant compared to the depressive condition. It stated that the coughing intensified from that time but was not diagnosed as chronic bronchitis until August 1984. Mr Salecich added in the letter that he gave up smoking for the three years of his service because of the danger of smoking in the vicinity of the inflammable petrol with which the men were working, "in open bulk drums of 200 litres". He also stated that after his return to Yugoslavia he again became an occasional smoker for approximately two years and then gave it up again because of the expense and his coughing.

16. At the hearing on 31 August 1990 the Tribunal received in evidence reports from Dr J. A Bisby who is a Consultant in Occupational Medicine and Toxicology and from Mr H.S. Milham, the Director of the Department of Defence Material Testing Laboratories. Copies of both those reports were sent to Mrs Marelich.

17. In his report of 30 August 1990, Dr Bisby wrote:

"Any excessive exposure to the volatile components of
petroleum products always and without exception
produces characteristic effects which are not only
experienced by the exposed person, but also are
evident to other persons in the area.
In summary, these effects of over-exposure to
petroleum product fumes are related to the narcotic
effect of organic chemical components. These are
listed in all standard references such as the
International Labour Organisation encyclopaedia and
the United Nations International Programme on
Chemical Safety as dizziness, light-headedness,
inco-ordination, lack of ability to perform tasks,
drowsiness, sleepiness, ataxia, and eventually
unconsciousness. These effects may also be
accompanied by headache, nausea, vomiting.
Unless inhalation exposure is so severe as to cause
the more serious of the above effects, no effects on
the lungs are ever seen. Where lung effects are
seen they are primary irritant effects. That is
they cause immediate (within minutes) coughing,
shortness of breath, respiratory distress and
production of frothy sputum. This effect, which is
technically a chemical pneumonitis, may become more
severe over the following 24 hours after exposure
and either diminishes or leads on to overwhelming
respiratory failure and death.
. . .
There are no reports in the literature of persons
occupationally exposed where chronic lung effects,
such as chronic bronchitis, obstructive pulmonary
disease, or emphysema have occurred.
In studies of workers in the petroleum industries,
including men who have spent all their working lives
loading petroleum products into road, aircraft, and
ship tanks, there are no reports of cases of chronic
bronchitis. Chronic Bronchitis from such exposures
has not been recorded in studies of service
personnel in the USA, the UK, or Australia."

Dr Bisby concluded:

"I therefore conclude beyond all reasonable doubt
that Mr Salecich's condition of chronic bronchitis
was not related to any exposure to petroleum
products or the fumes therefrom during his war service."

18. Mr Milham in his report gave some particulars as to the specification of early aviation fuels and the Benzene content. He wrote that some Benzene would vapourize with the more volatile components of aviation gasoline and therefore its concentration in the vapour could be more than in the fuel. He added that he had no knowledge of re-fuelling practices in World War 2, but, if it took place in the open air, exposure would be extremely variable and impossible to estimate.

19. These reports provided no support for Mr Salecich's claim to have chronic bronchitis accepted as war-caused under the Act. I was however concerned that the Tribunal did not have full information as to the nature of Mr Salecich's duties and that Dr Bisby appeared to be unaware of Mr Salecich's recorded coughing for 48 hours in 1945, for which treatment was prescribed, or of the fact that he claimed to have had increasing coughing since discharge from the Army. I therefore, during the hearing on 31 August 1990, requested the Mr Shadbolt obtain information from Army records as to the exact nature of Mr Salecich's duties, so that this more detailed information could be put before Dr Bisby.

20. The Repatriation Commission obtained Unit Diaries for Mr Salecich's Unit which covered much of the period from June 1943, at Port Moresby, to May 1945 at Morotai. They were forwarded to the Tribunal, which received them in evidence, to Dr Bisby and to Mrs Marelich. They show that the Unit was frequently engaged on "wharf" or "docks" work. There is no description of the goods being loaded or unloaded. Generally the docks work is described as "light" or "comparatively light" but occasionally there is reference in the diaries to "rush jobs" or "heavy demands".

21. After the unit diaries and the letter from Mr and Mrs Salecich were sent to Dr Bisby, he provided a supplementary report on 25 May 1991. He wrote:

"Mr Salecich is said to be suffering at present and
since about 1970 from Chronic Bronchitis. Chronic
Bronchitis was apparently diagnosed and confirmed
several times including in Yugoslavia in August 1984.
He was apparently discharged from the services at
the end of WWII with a medical report where the
respiratory system was said to be normal. Medical
reviews in 1959 and 1967 are said to record no
respiratory problem.
The letter dated September 1990 states that Mr
Salecich noticed a very light coughing during his
hospitalization after discharge. Mr Salecich was
apparently hospitalized in May 1945. However this
"first signs of light coughing" seems to refer to
1948. It goes on to state that Dr M Morris and Dr V
Hyslop prescribed a "light medication" to ease the
coughing although the dates of this medication are
not given. No evidence as to what condition this
might have been, or what medication was supplied is
available to me.
During his service and medical review up to 1967 there were no
reports of coughing or any chest or lung symptoms or signs. The
references to treatment are not available to me.
I note in the war diaries that medical items of note are referred to
such as 'tinea infections' and antimalarial precautions. It would be
reasonable to assume that if any personnel were affected by lung
irritation due to fume exposure that would have been recorded also.
As I previously reported, there was no over-exposure, symptoms of
narcotic or intoxicating effect, or unconsciousness recorded in
respect of Mr Salecich. Lung irritation simply does not occur
without very heavy exposure to petroleum product and consequent
immediate and obvious effects.
Further evidence against any causal connection with any fact in war
service is provided by the condition not being manifest on discharge
or in the following 10 years or more. If chronic chest disease had
resulted from war service, it is difficult to understand how it
could have been quiescent over that period."

22. Dr Bisby commented in that report that no evidence was available to him as to the alleged incident of light coughing in 1948, referred to in Mr Salecich's letter on 9 September 1990, or as to the medication supplied. I was therefore surprised that he did not mention the one documented incident when Mr Salecich was prescribed medication for a cough lasting 48 hours on 25 May 1945 while he was serving on Moratai where he alleged he was exposed to petrol fumes.

23. I asked the District Reigstrar of the Tribunal to seek a further report from Dr Bisby making specific reference to that incident. That report is dated 11 July 1991. It deals with the alleged cough in 1948 pointing out that it was "long after exposure ceased". It continues:

"A cough recorded at the time of exposure could signify irritation,
and therefore high exposure, although I would expect other
complaints such as nausea, dizziness or the like to also have
occurred. It would much more probably signify other irritants, such
as tobacco smoke, or infection. I note that Mr Salecich was
recorded in the documents as claiming to have given up smoking. I
comment that such claims are often made to doctors in authority,
because the patient believes that is what the doctor wishes to hear.
The fact that is undoubted is that he was a smoker.
I cannot comment in detail on the work practices in relation to the
duties undertaken. However, it is pertinent to note that evaporation
through the bung-hole of drums is higher in warmer climates, and
because of expansion and contraction, can be substantial.
Any filling operation done in those days would not have been
considered as any risk except that of fire or explosion. The general
procedures therefore would not have attempted to minimise inhalation
exposure, as this was not considered to be a risk. Nevertheless, the
risk would have been for other conditions, not chronic bronchitis.
Even today, inhalation of petrol fumes is not considered to be a
risk for respiratory disease, even at high exposure levels.
In operations such as drum refuelling, drum emptying, or filling, it
would be quite possible to have exposures in the 100 to 500 ppm
range for the period of the operation.
Any use of petrol to wash parts or clean up would similarly result
in high exposures in the 20 - 100 ppm range unless work practices
were designed to avoid this.
Opinion and Summary
The history of cough in 1945 may be relevant to development of his
chronic bronchitis, but the cough was probably due to smoking and
not to inhalation of petrol fumes.
I confirm my previous opinion, that Mr Salecich condition is
unrelated to his war service exposure to petroleum products and
their fumes."

24. That report leaves the evidence in a very unsatisfactory state. On the one hand Dr Bisby writes that the history of cough in 1945 may be relevant to the development of the chronic bronchitis and that operations such as drum emptying or filling could have involved high exposure to petrol fumes. On the other hand he states that the cough is unrelated to the war service exposure to petroleum products and their fumes. He appears to base this conclusion on his conviction, inspite of the evidence to the contrary, that Mr Salecich did not give up smoking during his war service and that therefore the cough is attributable to smoking, which Professor Bisby did not accept as due to service, rather than to exposure to petrol fumes. A decision as to whether or not the evidence establishes that Mr Salecich gave up smoking during his service is a matter for this Tribunal rather than for expert witnesses.

25. If this matter had not already taken almost one year I would have attempted to explore this matter further. However, Mr Salecich is now sick and almost 80 years old. He has been waiting a long time for this matter to reach a conclusion. He has not himself obtained any medical evidence supporting the hypothesis that exposure to petrol fumes can cause chronic bronchitis in later life and the expert relied on by the respondent, who appears to be very well qualified, has repeatedly stated that inhalation of petrol fumes is not considered to be a risk for respiratory disease, even at high exposure levels. I have no reason to believe any other expert would express a different view. Thus I have decided not to delay the matter further, particularly as my decision on the other aspect of this matter is favourable to Mr Salecich and should therefore be delivered as soon as possible.

26. On the evidence I cannot find that there is a reasonable hypothesis linking Mr Salecich's chronic bronchitis to his war service. Although I accept his evidence that a part of his unit's dock duties consisted of loading and unloading large quantities of fuel, the only medical evidence before me is that such exposure would not have affected his lungs so as to cause chronic bronchitis unless severe side effects were experienced at the time of exposure. There is no evidence of such side effects except for one attack of coughing which was not noted at the time to be connected with exposure to petrol or any other irritant. I accept Dr Bisby's opinion that if Mr Salecich had suffered chronic bronchitis as a result of service exposure to irritants then one would expect some respiratory problems or chronic bronchitis to be recorded in the 10 years after service when a number of other relatively minor conditions are mentioned in the medical records. If the chronic cough was a problem throughout that period, it is difficult to understand why it was not mentioned in the numerous medical reports on the file. That aspect of the decision under review which rejected the claim to have chronic bronchitis accepted as a war-caused disease will be affirmed.
The claim for an increase in pension

27. I indicated quite early on in the hearing that I considered the Tribunal had power to consider an icnrease in the rate of pension payable to Mr Salecich, even if chronic bronchitis was not accepted as war-caused. The decision under review, made by the Repatriation Commission on 27 February 1986, was made in response to an application for increased pension lodged on behalf of Mr Salecich but also dealt with the claim, which the Secretary of the Department of Veterans' Affairs advised had to be lodged, in respect of further conditions mentioned in the medical report which accompanied the application for an increase in pension.

28. The application lodged by Mrs Salecich sought an increase in the rate of pension on a form headed 'Application for Increase Rate or Payment of Disability Pension'. It was only when it was suggested that the medical certificate lodged with the application referred to conditions which were not accepted as war-caused and that therefore a new claim had to be lodged, that the further claim was lodged in respect of the additional conditions.

29. That additional claim was in addition to, and not in substitution for, the original application for increase. The original application made by Mrs Salecich included grounds for an increase in rate of pension for depressive state, as well as a claim that Mr Salecich's geneal health had deteriorated. The grounds for an increase in rate of pension in respect of the depressive state were:

(i) That Mr Salecich was suffering from a nervous condition which
had over the years become worse, so that he had become a difficult
person to live with; and
(ii) That he had lost the desire to live; and (iii) That he did not want to

work any more and life was very

difficult, without any other form of income.

30. The Repatriation Commission, in its determination of 27 February 1986 clearly understood that it was considering the application for increase of pension as well as the claim for acceptance of additional disabilities. It stated in its determination, "The application for increased pension also refers." In its reasons it stated:

". . . I note that the member's wife also lodged an application for
increased pension beyond the one hundred percent rate in respect of
the service related disability,depressive state."

It then proceeded to consider and refuse that application saying:

"In this respect the available information indicates
that the member has been retired for many years but
was not prevented from continuing to work solely as
a result of the service related incapacity. Medical
reports at around the time when the member ceased
working indicate that his nervous disorder would
have been a factor in him ceasing work but that he
remained capable of a less strenuous occupation.
His age at this time combined with the length of his
retirement and the nature of his work experience and
occupational skills would alone prevent him from
being a member of the workforce and it is apparant
that he would now be equally unemployable if he were
free of the accepted disabilities.
The effect of these findings is that the member
cannot qualify for consideration for pension at
either the Intermediate Rate or the Special Rate as
the accepted disabilities were not the sole fact
which prevented him from continuing to work and also
because factors other than the service related
incapacity operate which would now prevent him from
working. I am satisfied that pension is correctly
assessed at one hundred per cent of the General Rate
and I have determined accordingly."

31. The application for review by the Veterans' Review Board lodged by Mr Salecich on 8 July 1986 described the decision of the Repatriation Commission which it sought to have reviewed only as "B chronic Bronchitis". That is the only aspect of the decision which the Veterans' Review Board considered in its decision of 2 February 1990. The letter seeking review by this Tribunal against referred only to the claim in respect of chronic bronchitis.

32. When I raised the application for an increase in rate of pension in respect of depressive state with Mrs Marelich during the hearing, it appeared that she did not understand that the application for increase could proceed irrespective of the success or otherwise of the claim for chronic bronchitis. The transcript reads as follows:

"Now, the other thing is this application , he has
been, in the documents you or his wife have filled
in, he has been saying that he is challenging the
decision on not accepting chronic bronchitis. But
as I looked at the papers I saw that what his wife
had actually applied for was an increase in pension
and there are various possibilities of getting an
increase in pension even if the chronic bronchitis
is not accepted because - - -?- - - I see, there is
another way of getting an increase.
Yes, because of the effect that the depressive state
had on his ability to work? - - - Yes, I understand."

33. When I indicated at the hearing that I considered I had jurisdiction to consider the increase in rate of pension in respect of depressive state covered by the original application for increase, Mr Shadbolt sought and obtained leave to lodge written submissions. They were lodged with the Tribunal on 10 January 1991. Those dealing with the jurisdictional issue read as follows:

"(1) In response to the issue of whether or not the
Tribunal has the jurisdiction to look at the
assessment issue without setting aside the
decision under review the respondent contends
that the Tribunal has no jurisdiction to review
a decision which has not been 'reviewed' by the
VRB and the 'affirmed', 'varied' or 'set aside'
(see VEA s.175)
(2) The respondent also contends that the Veterans'
Entitlement Act clearly indicates that there is
severability of issues in the review of matters
concerning claims for disability pensions and
application for increase in disability pension:
See the separate references to claims under
s.14 (entitlement claims), claims under s.15
(rate claims) s.20 (date of operation of grant
of claim) s.21 (date of operation of grant of
application) and sub.s.177(2) (effective dates
of payment of pension or increased pension).
The Commission relies for support on the case
of Fitzmaurice v Repatriation Commission 10 AAR 172.
(3) In this matter the respondent contends that Mr
Salecich has not lodged an appeal to the
Veterans' Review Board in regard to the
assessment of the rate of his disability
pension. Mr Salecich's right of appeal to the
Veterans' Review Board in regard to the
assessment matter formally expired three months
after the date of his notification of the
Repatriation Commission's decision. The
appeals lodged with the Veterans' Review Board
and the Administrative Appeals Tribunal
requests a review only of the entitlement issue
relating to the rejection of chronic
bronchitis. Therefore, the respondent contends
that the assessment issue is not within the
jurisdiction of the Administrative Appeals
Tribunal"

For convenience of reference I have numbered the paragraphs (1), (2) and (3) although they were not so numbered in the submission.

34. There can be no dispute about the assertion, in paragraph (1) of the submission, that the Tribunal cannot review a decision of the Repatriation Commission unless it has been reviewed by the Board and affirmed, varied or set aside. However, s.175 of the Act also makes it clear that the decision which this Tribunal reviews, where the Veterans' Review Board has affirmed the decision of the Repatriation Commission is, "the decision of the Commission that was so affirmed". In this matter a perusal of the reasons of the Repatriation Commission shows that it dealt, not only with the claim for new conditions to be accepted as war-caused, but also with the application for increased pension in respect of depressive state. Therefore s.175 provides no bar to the Tribunal considering that aspect of the matter.

35. Paragraph (2) of the respondent's submission seeks to rely on Fitzmaurice v Repatriation Commission (1989) 10 AAR 172 as providing support for the proposition that the Tribunal is limited in the aspect of the decision of the Repatriation Commission which it may review. I cannot understand how the respondent claims to derive support for this submission from Fitzmaurice's case. The majority (Wilcox and Foster JJ) held tht a review embraced everything decided in the decision under review.

36. Wilcox J. said of s.175 of the Act at p 182:

"the underlying concept is that of review of "the
decision" of the Commission or Board, as the case
may be. As I see the matter, the critical question
in the present case is what constituted 'the
decision' of the Board."

His Honour continued at p 183:

"It is possible cogently to argue that, in taking the
course which it did, the Board made two separate
decisions: first, a decision to set aside the
Commission's refusals of the claims and to
substitute a decision granting the claims and,
secondly, a decision as to rate. If s 175 were
worded differently, that analysis might lead
logically to the further contention that either of
the parties could seek review, before the
Administrative Appeals Tribunal, of either of those
decisions; without thereby invoking the jurisdiction
of the Tribunal in relation to the other. But,
respectfully differing from Davies J, I have reached
the conclusion that the language of s 175 is too
intractable to permit the adoption of that further
contention."

His Honour then considered the express words of s.175(1)(b) and stated:

"It is to be noted that the subject matter of the
review is the decision made by the Board in
substitution for the Commission's decision."

At p 184 he added:

". . .any application for review must raise for the
Tribunal's consideration everything decided by the
Board in its review of the case."

37. Foster J. delivered separate reasons, but he also rejected the contention that a review before this Tribunal could be limited to one aspect only, of the decision under review. He said at p 189:

"It is quite plain, in my view, that this contention
cannot succeed unless some such words as 'or part of
the decision' can properly be read into s 175(1)(b)
after the word 'decision' where first appearing. As
the section stands, whether that word be read in the
singular or in the plural it necessarily denotes the
whole of the Board's determination both as to
entitlement and as to the rate of pension."

His Honour said at pp 189-190 that the wording of s.175(1)(b) could lead only to one conclusion, namely that an application for review to the Tribunal must embrace "the totality of the decision or decisions" the subject of the review. (emphasis added)

38. Clearly the comments of Wilcox and Foster JJ. apply also to review by this Tribunal of a decision under s.175(1)(a), and not only to review arising under s.175(1)(b). In this matter s.175(1)(a) makes clear that the subject matter of the review is the decision of the Commission that was affirmed. Fitzmaurice's case establishes that any application for review must raise for the Tribunal's consideration everything decided by the (Commission) in its review of the case. That this is a correct interpretation of Fitzmaurice's case was recently confirmed by the Tribunal, presided over by Gray J, in Re Quoney and Repatriation Commission decision No 6990, delivered 21 May 1991.

39. Notwithstanding that there were two aspects to the decision made by the Repatriation Commission on 27 February 1986, namely the application for increase in respect of depressive state and the claim to have new disabilities accepted, the words of their Honours in Fitzmaurice's case are very clear. It is the "totality" of the decision or "everything decided in the decision" which is to be considered by this Tribunal.

40. It is necessary to consider whether the fact that neither Mr Salecich nor Mrs Marelich ever specifically asked for review of the refusal to increase the rate of pension for depressive state, means that the Tribunal should not itself embark on that consideration. Section 119(1) of the Act, so far as relevant, provides as follows:
"119(1) In considering, hearing or determining and

in making a decision in relation to -
(a) a claim or application:
. . .
the Commission -
(f) is not bound to act in a formal manner and
is not bound by any rules of evidence, but
may inform itself on any matter in such
manner as it thinks just;
(g) shall act according to substantial justice
and the substantial merits of the case,
without regard to legal form and
technicalities; and
(h) without limiting the generality of the
foregoing, shall take into account any
difficulties that, for any reason, lie in
the way of ascertaining the existence of any
fact, matter, cause or circumstance,
including any reason attributable to -
(i) the effects of the passage of time,
including the effect of the passage
of time on the availability of
witnesses; and
(ii) the absence of, or a deficiency in,
relevant official records, including
an absence or deficiency resulting
from the fact that an occurrence that
happened during the service of a
veteran, or of a member of the
Defence Force or of a Peacekeeping
Force, as defined by sub-section
68(1), was not reported to the
appropriate authorities."

41. The Tribunal by virtue of s.43 of the Administrative Appeals Tribunal Act 1975 may exercise all the powers and discretions conferred by s.119 of the Act on the Repatriation Commission. In this matter I consider that substantial justice and the substantial merits of the case require that I pay no regard to the technicality that Mr Salecich did not refer in his application for review to the aspect of the Repatriation Commission decision denying him an increase in the rate of pension in respect of depressive state.

42. The difficulties which I have taken into account in reaching this view are those difficulties arising from the fact that the applicant is elderly, unrepresented by any lawyer, suffering from depressive state and senile dementia, resident in Yugoslavia, and no longer fluent enough in English to conduct the case on his own behalf. Another significant difficulty which I have taken into account is the fact that due to Mr Salecich being a resident in Yugoslavia, he has not had the benefit of the Tribunal's preliminary conference procedure at which his rights arising out of the review process would have been considered and clarified.

43. Mrs Marelich does speak excellent English but she is not a lawyer and is not familiar with Tribunal practices or with the provisions of the Act. It is not surprising that she did not herself seek to pursue the claim for increase in rate of pension regardless of the success of the chronic bronchitis claim.

44. Another factor I have taken into account is the difficulty that seems to have existed in advising Mr Salecich of his rights during the years between 1949 and 1984. I consider that the Repatriation Commission should have advised Mr Salecich to test his eligibility for an increase in the rate of pension payable to him, once it received medical reports on review stating that he was no longer able to work as a farmer due to his accepted disability of depressive state. The T documents include the following:

(i) a medical report dated 5 December 1959 stating that Mr
Salecich's condition had worsened with the effect that he suffered
"incapacity to perform manual work" "wholly" due to service (p 29)
(ii) a medical report dated 1 November 1967 stating:
"The patient is not able to provide for his own upkeeping." (T
docs p 36)
(iii) a medical report dated 7 June 1971 stating "the depression is
becoming worse with ageing". (T docs p 40)
(iv) two medical reports dated April and 5 June 1971 stating
"Diagnosis: Depression
I hereby declare that the patient is unfit for any kind of duty."

45. So far as the T documents reveal, none of these reports was followed up with any information to Mr Salecich about the possibility of him being entitled to pension at the intermediate or special rate. Nor was any medical review instigated in Yugoslavia to consider whether Mr Salecich was entitled to be paid pension at 100% of the general rate in respect of his depressive state, such a rate at that stage being a prerequisite to payment of pension at the higher rates.

46. In these circumstances I find that the disadvantages suffered by Mr Salecich due to his residence in Yugoslavia and his lack of legal representation are severe. I am satisfied that substantial justice and the substantial merits of the case require that the Tribunal act so as to grant to him any increase to which he is entitled on the evidence, without regard to the technicality that he has not specifically asked the Tribunal to do so. I consider that the issue of an increase in rate of pension payable in repsect of depressive state arises in this matter and that I should deal with it.

47. I turn therefore to consider Mr Salecich's entitlement to an increase in the rate of his pension in respect of his three accepted disabilities of depressive state, atherosclerosis and senile dementia. As at 27 February 1986 he was apparently already in receipt of pension at 100% of the General Rate provided for in s.22 of the Act, although the T documents do not make it clear how or when he achieved that rate.

48. The Act provides for three different rates of pension higher than the general rate. They are the Extreme Disablement Adjustment under s.22 of the Act, the intermediate rate of pension under s.23 and the special rate of pension under s.24.
Extreme Disablement Adjustment

49. The relevant legislative provision is in s.22(4) of the Act which reads as follows:

"22(4) Where:
(a) either:
(i) the degree of incapacity of a veteran from war-caused
injury or war-caused disease, or both, is determined under
section 21A to be 100% or has been so determined by a
determination that is in force; or
(ii) a veteran is, because he or she has suffered or is
suffering from pulmonary tuberculosis, receiving or entitled
to recieve a pension at the maximum rate per fortnight
specified in subsection (3);
(b) the veteran has attained the age of 65;
(c) the veteran has an impairment rating of at least 70 points and a
lifestyle rating of at least 6 points, each determined in accordance
with the approved Guide to the
Assessment of Rates of Veterans' Pensions; and
(d) the veteran is not receiving a pension at a rate
provided for by section 23, 24 and 25;
the rate at which pension is payable to the veteran is increased by
50% of the maximum rate set out in subsection (3).

50. Although it is not clear from the evidence when Mr Salecich commenced to receive his disability pension at 100% of the general rate his pension was payable at that rate at least as from 27 June 1984, the date from which his atherosclerosis and senile dementia have been accepted as war-caused. Mr Salecich satsified para 22(4)(b), as at that date as he was born on 2 January 1914 and therefore turned 65 on 2 January 1979.

51. In regard to para 22(4) it is necessary to refer to the evidence given by Mrs Marelich at the telephone hearing, to the lifestyle report completed by Mr Salecich with the assistance of Mrs Marelich and by Dr Milovajski, and also to the Combined Impairment Assessment made by Dr Evans, a Senior Medical Officer (Appeals) with the Department of Veterans' Affairs on 12 December 1990. Dr Evans rated Mr Salecich as having a lifestyle rating of 6 points determined in accordance with Table 16 of the 'Guide to Assessment' of Rates of Veterans' Pension as follows:

Mobility 6
Personal Relationships 4
Employment and domestic activities 7
Recreational and community activities 7
Total 24
Average 6

Dr Evans also assessed Mr Salecich as having an impairment rating of 71 points.

52. Dr Evans also advised:

"6. Veteran, now aged 76 years, would appear to be eligible for the
Extreme Disablement Adjustment (EDA).
7. (a) In regard to your request as to the dates, the above
assessment would be applicable from the date of examination, i.e.
2/11/90.
(b) There was no information on file to show that there had been any
significant change in veteran's accepted disabilities in recent
times, (i.e. since 1988). It may be reasonable to say that current
impairment and lifestyle ratings could well be applicable from
22/12/88, - (a back period of two years).
It would not be worthwhile to try and obtain further medical
reports, from veteran's LMO, for the period 1988-1990. Time and
expense involved in such an exercise coupled with language nuances
lost in translation, would not necessarily guarantee obtaining the
required information, - (i.e. appreciable change).
(c) Therefore, recommend that the impairment and lifestyle ratings
of 2/11/90 be effective and 22/12/88."

53. Dr Evans' assessment was lodged with the Tribunal by the respondent together with the material completed in Yugoslavia on which it was based. None of that material was dealt with in the respondent's written submission. However, at a directions hearing conducted on the telephone on 21 December 1990 with Mr Shadbolt, it having proved impossible to contact a relative of Mr Salecich who lived in Sydney, Mr Shadbolt said it was the respondent's submission that medically Mr Salecich was entitled to the Extreme Disablement Adjustment, but that the respondent disputed the Tribunal's jurisdiction to award that adjustment.

54. I accept Dr Evans' assessment and the evidence on which that assessment is based. I also, for the reasons set out above, am satisfied that I do have jurisdiction to award an increase in the rate of pension payable to Mr Salecich. On the evidence of Dr Evans, Mr Salecich is entitled to be awarded Extreme Disablement Adjustment from 22 December 1988. That is the day when the provisions covering payment of Extreme Disablement Adjustment were inserted in the Act by the Veterans' Affairs Legislation Amendment Act 1988.

55. The Federal Court in Walshe v Repatriation Commission (1989) 18 ALD 285 confirmed that the Extreme Disablement Adjustment is available to a veteran, even though the application for increase was lodged prior to 22 December 1988. Of course it is not payable from a date earlier than 22 December 1988. There is therefore no point in considering Mr Salecich's possible qualification for the adjustment at any earlier date.

56. Under s.22(4) of the Act, the Extreme Disablement Adjustment is only payable to a veteran who is not receiving a pension at a rate provided for by ss.23, 24, or 25. Mr Salecich is not receiving pension at any of those rates, but it is necessary to consider whether he is entitled to receive pension at any of those rates. Section 25 cannot assist Mr Salecich as it is payable in respect of temporary incapacity and it is clear that his incapacity is permanent.
Intermediate and Special Rates of Pension

57. Sections 23 and 24 of the Act provide for the payment of the intermediate and special rates of pension. The only significant difference between the two is that the intermediate rate is paid where a veteran can still work on a part-time basis or intermittently. The evidence satisfies me that at all relevant dates since September 1984 Mr Salecich has been totally incapacitated for work, so therefore s. 23 is not relevant.

58. Section 24 only allows for payment of the special rate of pension if the Tribunal is satisfied, amongst other things, that:

"(c) the veteran is, by reason of incapacity, from that war-caused
injury or war-caused disease, or both, prevented from continuing to
undertake remunerative work that the veteran was undertaking and is,
by reason thereof, suffering a loss of salary or wages, or of
earnings on his or her own account, that the veteran would not be
suffering if the veteran were free of that incapacity."

59. The difficulties facing Mr Salecich in establishing entitlement to the special rate of pension under s.24 of the Act are:

(i) That on the medical evidence and the statements of Mr and Mrs
Salecich and Mrs Marelich I am satisfied that his chronic bronchitis
contributed to his incapacity at all relevant dates since June 1984;
and
(ii) That his age as at 1984 was 70 and I can not be satisfied on
the evidence that it was not also a factor preventing him from
continuing to work as a farmer.

Mr Salecich is accordingly not entitled to pension at a rate provided for in ss.23, 24 or 25 of the Act. Pension is therefore payable to him at the Extreme disablement Adjustment rate.

60. Accordingly, that part of the decision of the Repatriation Commission made 27 February 1986 which rejected the claims in respect of chronic bronchitis and bilateral cateracts will be affirmed. That part of the decision which refused to increase the rate of disability pension payable to Mr Salecich beyond 100% of the General Rate is varied to provide that from 22 December 1988 Mr Salecich has been entitled to payment of the Extreme Disablement Adjustment as provided in s.22(4) of the Act.