1. The applicant's service in the Army is 'defence service' for the purposes of s 68 of the Act.
2. The standard of proof to be applied in this matter is outlined in section 120(4) of the Act. I must determine all relevant issues to my reasonable satisfaction, and decide, on the balance of probabilities, the correct rate of pension to which the applicant is entitled.
3. To be eligible for pension at the special rate, the requirements of section 24 of the Act must be met. Section 24 provides:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; ...

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

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

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

1. Sections 23 and 25 of the Act do not apply in this matter as the applicant has not worked since the time of his discharge in 2006, and he was not over the age of 65 at the time of his claim.

1. The applicant provided a statement in support of his application and also gave extensive evidence at the hearing of this matter.
2. When commenting on his history of alcohol and cigarette use at the hearing, the applicant stated that before joining the Army he had been a social drinker and did not smoke. He commenced smoking about 8 months after he joined the army, but quit after his heart attack in 2003. He advised that his alcohol consumption increased in 1988, as his posting was quite stressful, and it peaked in 2000. He admitted that on occasion he minimised his alcohol consumption to army medical personnel, so that he could continue in his career. He also agreed that there were times in his career where he actively tried to reduce his drinking. The applicant admitted that he continued to drink alcohol as at the time of the hearing.
3. The applicant gave evidence about several incidents which he experienced during his service which caused him distress and which were ultimately accepted as the cause of his PTSD and alcohol dependence. This trauma included an incident in 1975 when the applicant was involved in attempting to help a fellow soldier whose right leg was crushed and subsequently had to be amputated; an incident in 1978 when the applicant was involved in a car accident where he was the driver, in which his friend broke his leg and had to be extracted from the car; and an incident in 1984 where he came close to being struck by shrapnel from a hand-grenade when live fire grenade practice was taking place very close by.[4]
4. The applicant also gave evidence about the stress he experienced as a result of the micro-management of him by his supervisor, who made his job extremely stressful, causing him to take up smoking again after quitting for around 3 to 6 months and causing a considerable increase in his alcohol consumption.
5. The applicant stated that when he had an angina attack in December 1999, his cardiologist Dr Cameron advised that he should change his lifestyle or he would have a major event within 5 years' time.
6. In 2003, as the applicant stated, "what had been predicted... four years earlier... became a reality". The applicant suffered a major heart attack and as a result had to undergo quadruple bypass surgery. The applicant admitted that prior to this he had still been smoking and drinking heavily.
7. After his heart surgery, the applicant completed a 6 week rehabilitation course. He continued to do rehabilitation with Dr Michael Naughton until 2005. During this time the applicant continued to consume large amounts of alcohol. He also continued to struggle with work stress, despite the fact that he had been placed on light duties by Dr Naughton.[5]
8. The applicant was offered a new posting in Queensland in October 2005 but declined primarily due to his ongoing physical and mental health problems, which would not have enabled him to carry out the necessary duties to his own high standards.[6] In this correspondence the applicant also referenced his appreciation at being offered a position in Queensland so he could continue to support his daughter with her ongoing recovery.
9. At this time the applicant decided to apply for a discharge from the Army and a transfer to the Australian Army Standby Reserve ("the Reserves").[7] The applicant gave evidence that he received advice from Dr Naughton regarding a medical discharge, and claims that Dr Naughton advised him it would be more financially beneficial to request a normal discharge or transition to the Reserves.
10. The applicant began transitioning from the Army to the Reserves in early 2006. During this transition period he experienced high levels of stress and conflict with his superiors and peers in the Reserves unit. The applicant gave further detail about this conflict when giving evidence, stating that he was not permitted to obtain training and experience for the transition, and he experienced threats from his commanding officer. Before that time he had an unblemished record with the Army, and had never been in trouble. His strong work ethic had been consistently recognised by the Army.[8]
11. In his statement the applicant explains that the stress and conflict he experienced was the main reason he failed to follow through with active employment in the Reserves. He intended to take up a position in the unit at a later date was not able to. At the hearing the applicant clarified that he remained part of the Reserves until he was contacted about maintaining his qualifications in 2016; it was at this time that he responded and advised he was not capable of performing the required duties.[9]
12. The applicant also gave evidence at the hearing about his experience of a second heart attack in 2013, 10 years after his first one. He advised that he continues to see Dr Cameron on a six-monthly basis.

1. The applicant's wife, Mrs Dorsett, gave brief evidence at the hearing regarding the applicant's alcohol consumption and her knowledge of his medical and military history. Her statement of 4 November 2014 is also before me.[10]
2. At the hearing Mrs Dorsett stated that the applicant only drank socially when she first met him, but his drinking increased around the late 1980's or early 1990's. She mentioned that his behaviour would change when his alcohol consumption increased, and he would become irritable and argumentative.

1. Medical records from the Army make reference to the applicant experiencing work-related stress as early as 1994. A letter from army medical doctor Dr Sue Guild to the applicant's supervisor warned, "Franky this is a situation of a heart attack waiting to happen..."[11] In 1995, medical records reflect that the applicant was still smoking and experiencing stress.[12]
2. In 2003, the applicant had a heart attack and underwent quadruple bypass surgery. By 2005 Dr James Cameron reported that the applicant had "no cardiac symptoms".[13]

1. Dr Stephen Bryce first saw the applicant on 29 June 2006, just prior to his discharge from the Army.[14] He was still the applicant's GP at the time of the hearing.
2. Dr Bryce gave evidence at the hearing that the applicant has had problems with chronic anxiety ever since he has known him, and this anxiety was connected with his PTSD. He stated that while his original notes didn't specifically mention PTSD, the applicant's symptoms were consistent with this disorder. His report dated 10 October 2014 states that the applicant's PTSD would have been present when he first saw the applicant in 2006. He has stated that the applicant's anxiety and PTSD play a significant role in a lot of his other medical issues, and he uses alcohol to control his anxiety.

1. Dr Lawford first saw the applicant on 22 August 2013. He discusses his diagnosis of PTSD and alcohol dependence disorder in his report in 2014.[15] At the hearing he spoke about the alcohol's continued alcohol consumption, stating that it had been "very, very severe" for quite some time; at times he had consumed up to 15-20 standard drinks per night prior to going to work the next morning. At the time of the hearing he was drinking around 15 standard drinks per night. In his report dated 19 March 2014, Dr Lawford stated his opinion that the applicant's drinking increased and became obvious after the 1984 grenade incident.
2. Under cross-examination Dr Lawford stated that he had gathered information about the applicant's drinking history primarily from the applicant's wife, Mrs Dorsett. He stated that there had been recent concerns about the applicant's liver function, and he had been admitted to hospital for treatment where he attended an alcohol rehabilitation program.

1. Dr Bryce's report stated clearly that the applicant's combined conditions of PTSD and alcohol dependence have prevented him from successfully re-entering paid employment.[16] At the hearing Dr Bryce elaborated on this, stating that specifically it was his severe anxiety and the fact that he was self-medicating with alcohol which made it non-viable for the applicant to obtain or hold down a job.
2. Dr Bryce confirmed at the hearing that he was still of the opinion that the applicant could not work and that the above conditions were the cause. He stated that the applicant was making a genuine effort to obtain paid employment when he first met him in 2006, including undergoing new training, but his medical problems made it difficult to turn that effort into an actual job.

1. In his most recent report of 5 August 2015 Dr Lawford considered that the applicant was "permanently unable to undertake remunerative employment".[17] He also stated that it was his service-related disabilities (i.e. PTSD and alcohol dependence) which prevented him from obtaining employment after his 2006 discharge. At the hearing he confirmed that this was still his opinion. Dr Lawford also commented on the applicant's attempts to start a new career, noting that none of these attempts led to successful employment.
2. In his report dated 13 October 2014 Dr Lawford stated that the applicant's accepted disabilities of PTSD and alcohol dependence disorder were "solely" responsible for his inability to undertake remunerative employment; he was unable to seek work, prepare a resume, attend interviews, deal with stress and be in unfamiliar surroundings.[18]

1. The applicant gave evidence that in April 2000 his second eldest daughter was involved in a car accident in the Northern Territory, and was air-lifted to Adelaide to have multiple surgeries. His wife spent some time in Adelaide with their daughter while she was in hospital.
2. Despite this, the applicant stated that he was willing to accept a new posting to Melbourne in 2003 when it was offered. He explained that his second daughter would have accompanied them and flown to Adelaide for further treatment when necessary. However, there is also evidence which indicates that the applicant had specifically requested to remain in Brisbane in 2003 when another posting was offered.[19] At the time the applicant also referred to his personal milestone of achieving 30 years in the Army (i.e. in 2005), at which time he planned to transfer to the Reserves.
3. The applicant gave evidence about his attempts to obtain employment prior to and after his discharge from the Army, particularly in the areas of journalism, photography and graphic design. He attempted and completed several TAFE certificates. After his discharge the applicant undertook general job searching online and by word-of-mouth. He found this difficult and did not formally complete any job applications.
4. The applicant also referred to his franchise attempt, stating that he looked at becoming a franchisee of Big Dad's Pies in 2005.[20] He made enquiries and had lengthy conversations with another franchise owner. He did not receive a response to his expression of interest, nor did he receive support from his family as he had been experiencing irritability and moodiness and was failing to complete tasks that he started around the house.[21]
5. In 2006 the applicant did 'on the job' training with Steelsmart Homes, which involved photography and design. He also gave evidence about his aspirations to participate in volunteer activities with the coastguard or the meals on wheels program through the RSL, and explained that he was also unable to follow through with these because of his conditions.
6. The applicant intended to start a butcher partnership with his best friend and fellow soldier Geoff Sexton, but Geoff subsequently passed away in 2009.[22] The applicant stated that Geoff's passing was "devastating", but it did not detract from his intention to gain full-time employment and continuing in the Reserves. Despite this, Dr Lawford reported that the applicant has not sought employment since 2009, due to his medical conditions.[23]

1. In 2005 Dr Naughton referred the applicant to Dr Ian Bunce and Dr Phillip Vecchio for investigation of muscle and bone pain he was experiencing. In the referral to Dr Vecchio, Dr Naughton referred to "multiple joint pains of an obscure nature" and the effects of the pain being "sleep disruption and subsequent fatigue".[24]
2. After the applicant saw Dr Bunce on 6 September 2005, Dr Naughton commented that the applicant's main problem was "pain / sleep deprivation / fatigue", and the pain was "mainly in hands / wrists on application of pressure".[25]

1. In his report of 11 October 2005 Dr Vecchio stated that the most likely diagnosis for the applicant's pain was autoimmune palindromic arthralgia.[26] Dr Vecchio also stated his intention to trial the applicant on Plaquenil.
2. Dr Vecchio examined and treated the applicant up until the time of his discharge in 2006. He provided further reports which indicated that there had been no improvement in the applicant's multi-regional pain. In his report dated 29 June 2006, he concluded that he was not able to officially reach a justifiable diagnosis.[27]

1. Dr Bunce examined the applicant over an extended period of time, between 2005 and 2016. He has produced several reports which provide somewhat of a running commentary on the development and possible diagnosis of the applicant's muscle and bone pain.
2. In a report to Dr Naughton dated 8 September 2005, Dr Bunce confirmed a diagnosis of myelofibrosis, which was established on the basis of ultrasound evidence of an enlarged spleen and changes in his blood and bone marrow.[28] In his report of 8 December 2005 Dr Bunce commented that the applicant's symptoms continued to be "mid afternoon fatigue with myalgia and arthralgia and pruritus".[29]
3. On 3 July 2006 Dr Bunce referred the applicant to Dr Stephen Bryce for further investigation of possible chronic fatigue.[30] In this referral Dr Bunce reported that the applicant had constant and sometimes severe pain in his arms; the pain was also sometimes associated with fatigue.[31] Dr Bunce opined that the pain could be a variant of chronic fatigue, but he was not sure.
4. In his report of 31 May 2011, Dr Bunce stated that the applicant presented with symptoms of fibromyalgia and chronic fatigue.[32] He noted that the applicant had noticed no improvement in these symptoms from being on Amitriptyline and slowly increasing doses of anti-inflammatory agents.
5. Later that year on 29 November 2011 Dr Bunce again reported that the applicant's symptoms were suggestive of chronic fatigue syndrome, although its cause was uncertain.[33]
6. Dr Bunce concluded on 15 March 2016 that the symptoms the applicant described (i.e. profound tiredness, myalgia and arthralgia) were related to his PTSD and alcohol dependency conditions, and were not due to a primary bone marrow disease.[34] He determined that the applicant did not have myelofibrosis (bone marrow disease), primarily due to the absence of positive gene studies and a lack of progress. These opinions were again confirmed in the letter of Dr Bunce dated 12 April 2016.[35]

1. Dr Bryce spoke at the hearing about the applicant's history of bone and muscle pain. He stated that his understanding was that Dr Bunce was treating the applicant's myelofibrosis, and Dr Vecchio was treating the applicant's bone pain. He understood that this chronic joint and body pain had not been fully diagnosed; however, he accepted that he was aware that Dr Vecchio had described the possibility of fibromyalgia. He also spoke about his awareness of the applicant being trialled on Plaquenil, an arthritis drug, by Dr Vecchio, which was not effective.
2. When asked under cross-examination about the level of symptoms caused by the applicant's bone and muscle pain in 2006, Dr Bryce stated that the applicant, while not appearing to be an entirely well person, was trying to be positive, and the symptoms experienced by the applicant were moderate. When asked further about the contribution these issues had on the applicant's overall incapacity, Dr Bryce accepted that it was certainly plausible that it could have impacted on his ability to work, but would not have played a primary role. He estimated that there was perhaps a 10% contribution. However he clarified that fibromyalgia is thought to be strongly connected to stress levels, so while it manifests as physical pain there is often significant personal stress underlying it. When he first met the applicant, he was suffering from significant stress and anxiety, which either brought on the fibromyalgia or was at least a significant contributor to it.

1. Physician Dr Maxim Wilson wrote to Dr Bryce on 10 August 2011 regarding his opinion on diagnosis and management of the applicant's fatigue and muscle pains.[36] Dr Wilson noted that the applicant had experienced fatigue, bone pain and myalgias since 2003. He also stated that the applicant left the army in 2006 because he did not like the new job he was offered. Dr Wilson explicitly states, "he did not leave because of health reasons".[37] Dr Wilson stated his opinion that the applicant's sharp limb pain could be due to "statin myositis", and his fatigue could be due to a number of things, including his PTSD and alcohol intake together with his muscle pain. Dr Wilson stated that his myelofibrosis appeared to be dormant, and he did not consider that it contributed to his limb pains.

1. In her report dated 16 December 2011, Dr Barrett stated that the applicant had reported overwhelming fatigue, associated with discomfort and unrefreshing sleep, and widespread myalgia and arthralgia since his bypass surgery in 2003.[38]
2. In this report Dr Barrett assessed that the applicant has chronic fatigue syndrome or fibromyalgia, explaining it as "a group of symptoms marked by generalised pain and muscle stiffness felt in different areas of the body, associated with extreme fatigue and sleep problems".[39] She further explained that the cause of the symptoms is not known, but they seem to be common in patients who have experienced particular illness or injuries, or related to emotional stress or depression, and in many situations there is no obvious cause.
3. In her report of 24 July 2012 Dr Barrett diagnosed chronic fatigue syndrome or fibromyalgia, and prescribed Pregabalin (Lyrica) to the applicant.[40] In a later report of 22 October 2012 she noted that the applicant was managing well on the present dose of Lyrica.[41]

Decision of the respondent dated 14 September 2016

1. The respondent issued a decision on the applicant's claim for 'multiple muscle pain' and 'bone pain' on 14 September 2016.[42] It was found that no medical condition was present to answer his claims, and his disability pension was continued at 100% of the general rate. In the decision the delegate of the respondent outlined that they had contracted a senior medical advisor at DVA and confirmed that, as opined by Dr Bunce and

Dr Bryce, the claimed symptoms are secondary to the accepted conditions of PTSD and alcohol abuse. The delegate confirmed that the applicant's claimed symptoms were covered by his accepted disabilities.

1. A report was sought from Dr Kevat after the decision regarding the applicant's bone and muscle pain was issued. In his report dated 30 December 2016 Dr Kevat listed the applicant's symptoms as widespread aches and pains throughout the day and during the night, fatigue, impaired concentration and irritability.[43] He stated that the symptoms were moderately severe.
2. Dr Kevat reported that the applicant's musculoskeletal pains were compatible with fibromyalgia syndrome as a secondary development to some of his other medical conditions.[44] He stated that the fibromyalgia partially restricted the applicant's capacity to undertake remunerative work, but clarified that it was not the dominant cause of his incapacity, which he attributed to his PTSD and alcohol dependency. Dr Kevat considers it a reasonable hypothesis that the emotional stress associated with the applicant's past stressful experiences, along with his heart attack, caused the development of fibromyalgia.
3. When giving evidence at the hearing Dr Kevat confirmed that fibromyalgia was definitely "a recognised diagnosis amongst rheumatologists". He clarified that the use of the word 'syndrome' means a connection of phenomenon. He explained that the symptoms of fibromyalgia (i.e. myalgia and arthralgia) can occur in other conditions, and in this instance could be attributed to the applicant's PTSD and alcohol dependence. He further explained that both fibromyalgia and PTSD are brain conditions, and as such many features of these conditions overlap. He also spoke about stress often being a very important factor in the cause of fibromyalgia, but stated that stress is not able to be identified in every case.
4. When asked how the applicant's fibromyalgia would affect his ability to work, Dr Kevat stated that his PTSD and alcohol dependency overlap with his fibromyalgia, so all of those things affect his ability to work. He clarified that fibromyalgia is not the dominant cause of the applicant's inability to work, but it partially restricts the applicant's capacity. Dr Kevat confirmed that the applicant's fibromyalgia is a secondary condition to his PTSD.
5. Dr Kevat agreed that the applicant had been prescribed Lyrica. He stated that this was a popular treatment for fibromyalgia. In the applicant's case, Dr Kevat advised that Lyrica made his life more bearable but it did not remove his symptoms.

1. A report was sought from Dr Burke regarding the applicant's bone and muscle pain.
2. Dr Burke's report of 16 February 2017 confirmed that the applicant's most severe problem is his diagnosis of PTSD and alcohol dependence.[45] He reported that the applicant's defence-caused disabilities (in particular PTSD, alcohol dependence, lumbar spondylosis and osteoarthritis of the knees) would collectively prevent him from undertaking remunerative work of more than eight hours a week.[46] He opined that the applicant's other conditions (including chronic fatigue syndrome and fibromyalgia) did not have any significant impact on his capacity to work.
3. When giving evidence at the hearing Dr Burke stated that his reluctance to say that fibromyalgia is preventing the applicant from working is primarily based on the fact that he does not necessarily agree that fibromyalgia is an accepted biomedical condition. He stated that a chronic fatigue diagnosis occurs when a patient presents with certain symptoms, and there is no scan or test to confirm the diagnosis; therefore he does not place a great deal of reliance on that diagnosis. Dr Burke stated that it could be argued that chronic fatigue is a set of symptoms with no biomedical basis, so it is an unexplained condition with no underlying pathology. In this respect Dr Burke noted that he disagrees with the opinions of Dr Barrett and Dr Kevat.
4. Dr Burke also stated that he believed an underlying psychiatric diagnosis had to be included before you made a diagnosis of chronic fatigue, because a psychiatric illness can present in exactly the same way.

1. Professor Fox provided a report to the respondent after the decision was made regarding the applicant's bone and muscle pain.
2. The report of Professor Fox dated 7 February 2017 stated that the applicant does not suffer from myelofibrosis; instead, he has (but is not suffering from) a fluctuating neutrophil count and a somewhat low platelet count.[47] He stated that there are other obvious explanations for the applicant's blood abnormalities, the first of which is that these are a direct effect of alcohol.[48] He confirmed that he has no doubt the combination of direct, heavy alcohol ingestion in conjunction with portal hypertension and splenomegaly is responsible for the applicant's blood abnormalities.
3. Professor Fox reported that myelofibrosis is a relatively rare disease, while alcohol and its effects are "extraordinarily common".[49] When giving evidence Professor Fox stated that if previous doctors had wanted to confirm that the applicant had myelofibrosis they would have done another bone marrow biopsy and other testing such as magnetic resonance imaging of the skeleton.
4. Professor Fox also reported that the applicant was not suffering from any relevant symptoms at the time, and as such the condition outlined above would not prevent him from undertaking any remunerative work.

1. Under cross-examination at the hearing the applicant was asked about the bone and muscle pain he had experienced. He accepted that when he first went to see Dr Bryce he reported his fatigue and bone condition as a significant problem. He also agreed that in 2011 the bone pain he experienced troubled him greatly, and was a significant condition. He sought to clarify however that it was his understanding that when doctors diagnosed 'chronic fatigue' they were referring to symptoms, not a disorder.
2. The applicant spoke about experiencing aches and pains through both his upper and lower limbs after his heart attack in 2003. He was prescribed Tramadol at this time, but this did not work. He confirmed that he was prescribed Lyrica by Dr Barrett, and this had an almost immediate effect. He was still taking Lyrica at the time of the hearing. He also noted that the pain was beginning to increase again so he was looking to go back to Dr Barrett for another review.

1. The applicant has submitted that he meets all the criteria outlined in s 24(1) of the Act. The applicant agrees that sections 23 and 25 of the Act do not apply as he had not worked since the time of his discharge from the Army, and he had not yet attained the age of 65 or over.
2. With respect to subsections 24(1)(aa), (aab) and (a) of the Act, the applicant submits that these are met as the applicant has made a claim for an increase in pension, had not yet turned 65 when the claim was made, and the degree of the applicant's incapacity is at least 70%.
3. Regarding subsection 24(1)(b), the applicant submits that this criterion is met as several medical professionals have confirmed the applicant's permanent incapacity to undertake remunerative work. In particular, they rely on the evidence of the applicant's GP Dr Stephen Bryce and his psychiatrist Dr Bruce Lawford, who both confirmed that the applicant is unable to undertake remunerative employment.
4. The applicant notes that the fulfilment of the above criteria of ss 24(1)(aa), (aab), (a) and (b) are also accepted by the respondent, and there is no dispute between the parties as to the applicant's incapacity to work.

1. The applicant submits that he meets the criterion often referred to as 'the alone test' outlined in subsection 24(1)(c) of the Act. In this respect the applicant highlights the comments of Dr Lawford in his report of 13 October 2014, "In my opinion, his inability to undertake remunerative employment is solely due to his accepted disabilities of PTSD and Alcohol Dependence Disorder."[50]
2. The applicant's submissions primarily addressed the potential issue of the applicant's multiple muscle pain and bone pain. The applicant did not discuss any other factors which may have a bearing on the application of the 'alone test'.
3. The applicant argues that the applicant has not been clinically diagnosed with any conditions which relate to multiple muscle pain or bone pain, and any relevant symptoms or syndromes he suffers from are attributable to his defence-caused conditions of PTSD and alcohol dependence. The applicant refers to Dr Bunce's report of 15 March 2016, which confirmed that the applicant does not have primary myelofibrosis or bone marrow disease, and that his symptoms are related to his PTSD and alcohol dependency conditions; to the report of Dr Vecchio which stated that he was unable to reach a justifiable diagnosis; and to the report of Professor Fox, which concluded that the applicant does not suffer from myelofibrosis. Even the report of Dr Kevat, which suggested a diagnosis of fibromyalgia syndrome, stated that the pains were a secondary development to the applicant's PTSD. The applicant submits that the respondent's own decision confirms the lack of clinical diagnosis, as the decision stated that the symptoms outlined in the claim are secondary to the applicant's accepted conditions.
4. The submissions in reply of the applicant go into some detail about the conditions of fibromyalgia and chronic fatigue syndrome, which are both recognised conditions and each have an applicable Statement of Principles ("SoPs"). The applicant submits that the SoP for fibromyalgia (no. 14 of 2014), provides that for a diagnosis to be made, it must be established that "the pain and symptoms are not better accounted for by another medical or psychiatric condition". The applicant submits that this cannot be established. The applicant is critical of the report of Dr Sumant Kevat, which provided a diagnosis of fibromyalgia. The applicant submits that in the short 30 minute interview between Dr Kevat and the applicant, the SoP criteria, pain index and severity scale were not discussed. In his report, Dr Kevat considered that the emotional stress associated with the applicant's previous training accidents and heart attack led to the development of fibromyalgia. Under cross-examination, Dr Kevat accepted that many features of fibromyalgia overlap with PTSD, and that the symptoms of fibromyalgia could also be symptoms of PTSD.
5. The applicant does not dispute that he suffers from chronic fatigue (i.e. tiredness), and states that this is a consequence of his PTSD and alcohol dependence conditions. Dr Bunce has confirmed that the applicant's symptoms of profound tiredness, myalgia and arthralgia, were a result of these conditions. The SoP for chronic fatigue (no. 12 of 2014), includes a criterion that "the individual does not have an alcohol or substance use disorder, occurring within two years of the onset of chronic fatigue and any time afterwards". Dr Lawford has opined that the clinical onset of the applicant's alcohol dependence would have been around 1988, and continues to this day. Therefore the applicant would not satisfy this criterion.
6. The applicant has submitted that the respondent cannot satisfactorily establish that the non-accepted conditions of the applicant (i.e. his claimed multiple muscle pain and bone pain) prevent him from working. The applicant relies on the comments and opinions of several medical professionals who have examined the applicant, including those doctors who provided reports after his claim for these conditions was rejected. He highlights Dr Burke's recent report which opines that the applicant's non-accepted conditions would not prevent or restrict him from undertaking remunerative work, and therefore they don't have any significant impact on his work capacity.
7. The applicant also submits that earlier reports between 2006-2010 which led to a tentative diagnosis of fibromyalgia or chronic fatigue syndrome were not fully informed, as these doctors were not aware of the applicant's undiagnosed conditions of PTSD and alcohol dependence; this includes Dr Naughton, Dr Bunce, Dr Vecchio, Dr Cameron, and Dr Bryce. The applicant submits that he was diagnosed with PTSD and alcohol dependence disorder in February 2010 by Dr Ashim Majumdar.

1. The applicant submits that in the event s 24(1)(c) of the Act is not met, the applicant fulfils the criteria outlined in the ameliorating provision of s 24(2)(b) of the Act.
2. The applicant argues that the applicant's incapacity is the substantial cause of his inability to seek and obtain remunerative work. He refers to the report of Dr Lawford which confirms this, and states, "The veteran was unable to seek work due to his problems."[51]
3. The applicant submits that a decision should be made to set aside the decision of the respondent and substitute that the applicant be paid disability pension at the special rate with effect from 1 August 2013.

1. The respondent accepts that the applicant satisfies the criteria pursuant to subsections 24(1)(a) and (b) of the Act.

1. The respondent submits that the applicant does not satisfy the requirements of s 24(1)(c), also known as the 'alone test'.
2. The respondent accepts that the remunerative work that the applicant was undertaking prior to his discharge was that of a soldier, quartermaster and logistics officer. They submit that the different types of employment investigated by the applicant after his discharge cannot be taken into account because they were never undertaken. They refer to the case of Sheehy v Repatriation Commission [1996] FCA 1516, which found, at [26]:

"... the "remunerative work that the Veteran was undertaking" must have been "performed" or "successfully undertaken" or "effectively undertaken"."

1. The respondent relies on Repatriation Commission v Richmond [2014] FCAFC 124, in which the Full Court said in respect of s 24(1)(c):

"To qualify for the special rate, the preventative effect must arise from the veteran's war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate." [para 58]

"While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans." [para 65]

1. The Court also referred to Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at [63]:

"The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under section 24(1)(c) of the Act."

1. Richmond has been followed in several other recent cases,[52] and was approved in Repatriation Commission v Watkins [2015] FCAFC 10 at [61].
2. The respondent argues that the applicant does not meet the 'alone test' requirements of

s 24(1)(c) of the Act because his conditions of fibromyalgia and chronic fatigue syndrome contribute to the 'preventative effect'. The respondent relies on Dr Kevat's diagnosis of fibromyalgia in his 30 December 2016 report. Dr Kevat reported that the applicant's fibromyalgia syndrome caused moderately severe symptoms of widespread aches and pains throughout the day and during the night, fatigue, impaired concentration and irritable mood. He advised that the condition "partially restricts" the applicant's capacity to undertake remunerative work. 3. The respondent's submissions outlined the applicant's medical history with respect to his multiple muscle pain and bone pain, highlighting the numerous references to the symptoms he has experienced since 2005. 4. Dr Kevat gave evidence that fibromyalgia was "definitely" a recognised diagnosis amongst rheumatologists. The respondent submits that this, along with the evidence of Dr Barrett and Dr Bunce, proves that fibromyalgia and chronic fatigue syndrome are both recognised diseases. The respondent disputes the relevance of Dr Burke's opinion on chronic fatigue syndrome and fibromyalgia as he has some doubt about whether these conditions have a biomedical basis. They contend that the evidence of the specialist rheumatologists (i.e. Dr Kevat and Dr Barrett) should be given greater weight than the evidence of Dr Burke. 5. In their submissions the respondent refers to comments made by Finn J in Owen v Repatriation Commission (1995) FCA 1428 at [38]:

(3) The wording of s 24(1)(c) in its reference to the veteran being prevented from continuing to undertake remunerative work "by reason of incapacity from that war-caused injury ... alone" likewise precludes a converse form of reasoning which would allow the effects of an injury which was not determined to be war-caused to be attributed wholly to an injury that was so determined merely because the two injuries could be shown to be causally related. For the purposes of s 24(1)(c) the relevant incapacity is that of the injury determined to be war-caused alone and not that as well of any causally related but not war-caused determined injury."

1. French J quoted Owen J with approval in Husband v Repatriation Commission (2000) FCA 356 at [60]. In this case French J considered that while the applicant's condition of chronic fatigue syndrome was probably related to his accepted disability of leptospirosis, the fact that it was not an accepted disability as at the hearing date meant that those symptoms could not be regarded as ongoing effects of leptospirosis.
2. The respondent submits that s 24(1)(c) is not met as the applicant's fibromyalgia and chronic fatigue syndrome contribute to the 'preventative effect', and contributed substantially to the applicant's unemployment since the time of his discharge. They submit that the conditions cannot be considered symptoms of the applicant's accepted defence-caused conditions. In the absence of a determination that the conditions are defence-caused, the respondent submits that the 'alone test' is not satisfied.
3. In their submissions the respondent addressed their own decision of 14 September 2016, which reached a conclusion that the applicant did not suffer from diagnosed fibromyalgia or chronic fatigue syndrome. The respondent submits that this decision was reached as a result of very limited medical material; they contend that the reports of Dr Bunce and Dr Barrett were not provided. They go so far as to submit that with the benefit of these further reports it is likely that the respondent would have accepted the diagnosis of one or both of these conditions.
4. The respondent also contends that the 'alone test' is not met due to the applicant's age and lack of recent work experience, which would be significant impediments to obtaining new employment.

Loss of salary, wages or earnings - s 24(2)(a)(i)

1. The respondent submits that the applicant should not be taken to be suffering a "loss of salary or wages, or of earnings" under s 24(1)(c) as he ceased remunerative work for reasons other than his incapacity from his defence-caused conditions. The respondent notes that the applicant was not medically discharged from the Army, and the applicant's major medical problem at the time of discharge was his fibromyalgia and chronic fatigue syndrome.[53] The respondent has also drawn attention to the fact that the applicant has previously referenced a personal milestone of 30 years in the Army, which would have been reached in 2005 shortly before his discharge.

1. The respondent submits that the applicant also fails to satisfy the criterion outlined in subsection 24(2)(b) of the Act. The respondent contends that the genuine seeking of remunerative work must be proximate to the assessment period. They also argue that the applicant's incapacity was not the substantial cause of his inability to obtain work. The respondent considers that a variety of other factors prevented the applicant obtaining work, including the existence of his muscle and bone pain, his age, his lack of recent work experience, the death of his friend, the lack of support for his franchise idea, a lack of training and professional experience in his chosen fields, and his preference not to take a job out of Brisbane for family reasons.

1. It is not in contention, and the Tribunal accepts, that the applicant meets the threshold criteria in order to qualify for the special rate of pension.
2. I have to determine whether section 24(1)(c) of the Act is met. This one criterion in contention is often referred to as the "alone" test and requires that "the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking..."
3. In Repatriation Commission v Watkins [2015] FCAFC 10, the Full Court of the Federal Court of Australia referred to the decisions of Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21, Repatriation Commission v Hendy [2002] FCA 602; (2002) 76 ALD 47 and Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364 and reaffirmed the settled principle that:

"...if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the "alone" requirement will not be satisfied." (at [41])

1. In this context the reference to "war-caused factors" is taken to be a reference to defence-caused factors.
2. The respondent accepts that the work that the applicant was undertaking was as a soldier, quartermaster and logistics officer. At the time of his voluntary discharge the applicant had a medical assessment and the assessment did not warrant him being discharged medically. The medical assessment enabled him to be transferred to the Army Reserve. The applicant was not employed after his retirement. There is no evidence that the applicant was by reason of an accepted condition prevented from "continuing to undertake remunerative employment" within the meaning of s 24(1)(c) of the Act. In his 2009 pension application, the applicant remarked that he had "retired from military service"; that application does not make reference to any mental health condition.
3. While the applicant has not made a claim for payment of pension at the intermediate rate of pension, in my view he is not entitled to pension at that rate as I am not reasonably satisfied that he meets the requirements of the "alone" test in section 23 of the Act.

1. As the applicant was under 65 years at the time of his claim, the ameliorating provisions of sections 23(3) and 24(2) of the Act are relevant. At the commencement of the assessment period at the time of claim the applicant was not engaged in remunerative employment and had not been in work since his retirement in 2006.
2. In Smith v Repatriation Commission [2014] FCAFC 53; (2014) 142 ALD 410 at [69] the Full Court of the Federal Court of Australia emphasised that regard can be had to the circumstances and efforts to obtain employment which took place before the assessment period.
3. There is medical evidence that the accepted conditions prevented the applicant from obtaining employment after his retirement in 2006. In his report Dr Lawford remarked, "Much of the problem related to his inability to obtain work from 2006." He concluded: "It is reasonable to say that his service-related disabilities, that is PTSD and alcohol dependence disorder, prevented him from obtaining employment from 2006 onwards". Dr Lawford stated that this was a reasonable hypothesis based upon the fatty liver of the applicant which would indicate that the alcohol consumption of the applicant had been heavy for a considerable period of time. Dr Lawford stated that he had first seen the applicant in 2013 and based his opinions on the information provided to him.
4. I am not reasonably satisfied that the applicant was incapacitated after his retirement. The opinion of Dr Lawford was not based on his own examination at the time of retirement. There is contrary medical evidence that upon his discharge the applicant was certified as fit for the reserves.
5. Dr Bryce was the family GP of the applicant between 2006 and 2008 and then from 2011. In his report Dr Bryce remarked: "Unfortunately, the combined conditions of PTSD alcohol dependence prevented him from successfully re-entering paid employment. This would explain why he did not successfully transition into civilian life". Dr Bryce stated that the applicant was making an effort in his retirement to do some extra training but his medical problems made it difficult to complete the training. However, the applicant was able to complete TAFE courses. The applicant stated that it was an important priority for him to complete the TAFE courses and, in evidence, he referred to "those qualifications that I gained at TAFE". Dr Bryce was not the treating doctor for the whole period after the applicant retired but was presumably well aware of the intent of the applicant in entering business in a franchise or partnership. In cross-examination Dr Bryce confirmed that when he saw the applicant in the middle of 2006 he was "hopeful that he was going to make it into civilian life".
6. The ameliorating provisions of sections 23(3) and 24(2) of the Act apply where an applicant "who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work". On the state of the evidence before me there is no probative evidence of the applicant actually seeking to engage in remunerative work. The evidence of the applicant before the VRB was that he had not made any written job applications. It is evident that the medical conditions of the applicant did not preclude him exploring business opportunities after his retirement. In giving evidence the applicant stated that he had lodged an expression of interest online to be a franchisee, which was not answered. He also stated that he had explored the possibility of entering a business partnership with his close friend.
7. The applicant attended TAFE courses to upskill him in the areas of graphic design, digital imaging and freelance journalism. He also did some training in digital photography in the steel frame industry. One TAFE course qualified him to be a journalist, but there is no evidence of him seeking such employment. The applicant acknowledged before the VRB that there were many people wanting to pursue work in his preferred field of 4WD journalism.
8. For the ameliorating provisions to apply, one requirement in ss 23(3)(b) and 24(2)(b) of the Act is not met; incapacity must be the substantial cause of the applicant's inability to attain remunerative work. The applicant informed the VRB that he was offered employment in logistics in Canberra but did not want to move his family. There was no mention of the applicant not being able to accept the position because of medical reasons. There is no suggestion that the mental health condition of the applicant prevented him from exploring the business opportunities of the franchise and partnership. After his discharge the applicant was able to complete TAFE qualifications. This is not a case where the applicant had, after his discharge, endeavoured to obtain employment and had to cease employment for medical reasons.
9. On the evidence before me I am unable to be reasonably satisfied that the ameliorating provisions apply in this case.

1. After having reviewed the considerable documentation that is in evidence I am reasonably satisfied that the applicant is not eligible for the payment of the pension at the special rate.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..................................[Sgd]..................................

[3] Exhibit A, T-Documents, T15, at p. 82.

[4] Exhibit A, T-Documents, T9, at p. 45-47.

[5] Exhibit C, statement of Mr Dorsett dated 31 August 2015, at p. 1.

[7] Exhibit D, Application for Transfer to the Reserves dated 27 October 2005.

[8] Exhibit I, Army Personnel file of the applicant.

[9] Exhibit P, letter of the applicant dated 11 October 2016.

[10] Exhibit A, T-Documents, T16, at p. 88.

[11] Exhibit F, Defence medical records, at p. 4.

[12] Exhibit F, Defence medical records, at p. 1.

[13] Exhibit H, army medical documents, at p. 25.

[14] Exhibit A, T-Documents, T16, at p. 85.

[16] Exhibit A, T-Documents, T16, at p. 85.

[17] Exhibit B, report of Dr Lawford dated 5 August 2015, at p. 3.

[18] Exhibit A, T-Documents, T16, at p. 86-87.

[19] Exhibit I, Army Personnel file of the applicant, at p. 28.

[20] Exhibit A, T-Documents, T14, at p. 81.

[21] Exhibit C, statement of the applicant dated 31 August 2015, at p. 2.

[22] Exhibit A, T-Documents, T14 at p. 80.

[23] Exhibit A, T-Documents, T16, at p. 86.

[24] Exhibit H, army medical documents, at p. 38.

[28] Exhibit H, army medical documents, at p. 37.

[32] Exhibit H, Dr Bryce correspondence file.

[34] Exhibit K, report of Dr Bunce dated 15 March 2016.

[35] Exhibit L, report of Dr Bunce dated 12 April 2016.

[36] Exhibit H, Dr Bryce clinical notes, at p. 60.

[37] Exhibit H, Dr Bryce clinical notes, at p. 61.

[42] Exhibit N, decision of DVA dated 14 September 2016.

[43] Exhibit R, report of Dr Sumant Kevat dated 30 December 2016.

[45] Exhibit Q, report of Dr Nicholas Burke dated 30 December 2016.

[47] Exhibit S, report of Professor Richard Fox dated 7 February 2017, at p. 3.

[50] Exhibit A, T-Documents, T16, at p. 87.

[52] Beezley v Repatriation Commission [2015] FCAFC 165 at [45]; and Summers v Repatriation Commission [2015] FCAFC 36 at [194].

[53] Per the reports of Dr Bunce in 2006 and Dr Barrett in 2011.