Ashby and Repatriation Commission - [2002] AATA 647

DECISION AND REASONS FOR DECISION [2002] AATA 647

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/612, 730

VETERANS' APPEALS DIVISION       )
           Re      GRAHAM ASHBY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date2 August 2002
PlaceBrisbane

Decision The decisions of the Tribunal are: 1. In matter Q2001/612 – The Tribunal sets aside that part of the decision under review refusing the applicant's claim for Post Traumatic Stress Disorder and in substitution therefor the Tribunal determines that the applicant suffers from war-caused PTSD; and 2. In matter Q2001/730 – The Tribunal sets aside the decision under review that the applicant's pension be assessed at 50% of the General Rate to operate from and including 1 February 1998 and in substitution therefor determines that the applicant's pension is to be assessed at 100% of the General Rate to operate from and including 1 February 1998.

.................(Sgd).................
Mr I R Way
Member
CATCHWORDS
VETERANS AFFAIRS – Veterans' Entitlements – whether PTSD war-caused – whether pension correctly assessed – whether applicant qualifies for the Special Rate of pension

Veterans' Entitlements Act 1986 ss 9, 24, 28, 120, 196

Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Smith (1987) 74 ALR 537
Hall v Repatriation Commission (1994) 33 ALD 454
Repatriation Commission v Deledio (1998) 49 ALD 193
Cavell v Repatriation Commission (1988) 9 AAR 539
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Strickland (1990) 12 AAR 412
Fox v Repatriation Commission (1997) 45 ALD 317
Bowman v Repatriation Commission (1990) 19 ALD 794

REASONS FOR DECISION

2 August 2002 Mr I R Way, Member

This is an application by Graham Ashby for review of a decision of the Repatriation Commission dated 23 September 1998 which determined, among other things, that the applicant did not suffer from Post Traumatic Stress Disorder (PTSD), that bilateral pterygium was not war-caused, and assessed pension at 40% of the General Rate.
The Veterans' Review Board (VRB) on 26 June 2001, affirmed the decision regarding Post Traumatic Stress Disorder, set aside the decision regarding bilateral pterygium and determined that the condition was war-caused and assessed the applicant's rate of pension at 50% of the General Rate.
This matter is contested by the applicant on the grounds that:
(a)the applicant is entitled to benefit pursuant to the Veterans' Entitlements Act 1986 (the Act) in respect of PTSD; and
(b)the applicant's pension is not correctly assessed at 50% of the General Rate and that the applicant's rate of pension should be higher and in particular at the Special Rate.
With respect to the questions of entitlement and assessment, the Tribunal had before it two sets of documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 as follows:
· Entitlement – T1 – T6 (Tribunal Reference Q2001/612)
· Assessment – T1 – T24 (Tribunal Reference Q2001/730)
The Tribunal also received into evidence the following documents:
Exhibit A1     Statement of Graham Ashby dated 7 May 2002
Exhibit R1     Dr Wainwright's Report dated 15 October 2001
Exhibit R2     Dr Wainwright's Notes
Exhibit R3     VRB Transcript 26 June 2001
Exhibit R4     Referral letter to Dr Wainwright dated 17 September 2001
Dr B Lawford and Dr J Wainwright gave evidence by telephone and the applicant gave oral evidence.
Background
The applicant was born on 7 June 1946 and submitted his initial claim for disability pension and medical treatment relating to this matter, on 1 May 1998.
The applicant served in the Australian Army from 13 December 1967 to 12 December 1973 and from 19 February 1975 to 17 September 1979.
The applicant rendered operational service in Vietnam from 10 September 1968 to 12 September 1969 and from 17 May 1970 to 9 March 1972.
The applicant rendered defence service, pursuant to the Act, from 7 December 1972 to 12 December 1973 and from 19 February 1975 to 17 September 1979.
The applicant has the following conditions accepted as service related:
·     Malignant melanoma of the skin
·     Bilateral sensorineural hearing loss with tinnitus
·     Chronic solar skin damage
·     Tinea
·     Bi-lateral Pterygium
The following conditions have not been accepted as service related:

Osteoarthrosis of the left shoulder
Atherosclerotic peripheral vascular disease
Bi-lateral Presbyopia
Hypermatropia
PTSD (the subject of this appeal)

Legislative Framework

The applicant's claim is being pursued on the basis of his operational service and not on the basis of his defence service.
Whether the applicant suffers PTSD requires the Tribunal to determine whether it is reasonably satisfied that the diagnosis of this condition in the applicant is established (see Repatriation Commission v Cooke (1998) 160 ALR 17 at 20).
If the applicant suffers from PTSD that disease is war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The relevant provisions of the Act are as follows:
"9 War-caused injuries or diseases
(1)       Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."

Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) and s 196B sets out the functions of the RMA. Section 196B (2) provides:
"(2)     If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
          (a)       operational service rendered by veterans; or
          (b)       peacekeeping service rendered by members of Peacekeeping Forces;
or
(c)       hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
          (d)       the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."
The RMA has, pursuant to s 196B(2) of the Act determined a Statement of Principles (SoP) in respect of PTSD.
It is common ground between the parties and the Tribunal accepts that the relevant SoP in this matter is Instrument No 3 of 1999 (as amended by No 54 of 1999).

Instrument No 3 of 1999 relevantly provides as follows:
"Kind of injury, disease or death
2. (a)   This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b)For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and (B) the traumatic event is persistently re-experienced in one or more of the following ways:
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
Basis for determining the factors
3.      The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.      Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.      The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
…
Other definitions
8.      For the purposes of this Statement of Principles:
'DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity."

With respect to special rate of pension the Act relevantly provides as follows:
"24 Special rate of pension
(1)       This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)       either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)       For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."
The assessment of the applicant's rate of pension is subject to the reasonable satisfaction standard of proof (s 120(4) of the Act), that is, on the balance of probabilities (see Repatriation Commission v Smith (1987) 74 ALR 537 at 546).
There is no dispute between the parties and the Tribunal accepts that the assessment period in this matter is from 1 May 1998, the date of the applicant's claim, to the present date.
Applicant's Evidence
In his written statement (Exhibit A1) the applicant stated he rendered operational service in Vietnam as a combat infantryman undertaking continual operations against the enemy as a forward scout and as a section commander. He stated:
"6. I was personally involved in some very stressful incidents due to major contacts that I had with the enemy which resulted in Australian casualties.
7. I was personally involved with dragging and carrying friends and fellow soldiers onto dust off helicopters and into armoured personal carriers for casualty evacuation. Most of my fellow soldiers were bleeding heavily and some had lost limbs.
8. I saw friends and soldiers who I knew dismembered and shockingly injured. There were soaked in their own blood.
9. I remember feeling stunned and momentarily frozen. I was frightened. It was hard to believe that what was happening was real. I remember shaking and thinking that it was my turn next. I thought that I would end up like these bodies, torn apart.
…
11. I was involved in many major contacts which resulted in Australian casualties."

The applicant in his statement went on to detail the numerous major contacts he had with the enemy which resulted in Australian casualties (KIA & WIA), including assaults on enemy bunkers, mine incidents, assaults on the enemy and by the enemy and ambushes of the enemy. The applicant described his feelings on many of these occasions as "extreme fear and nervous strain", "being paralysed with fear", "angry and shaken", "sickening and distressing", "total shock" and "severe emotional distress". With respect to recall of his contacts with the enemy he said:
"35. Recalling these events has been emotionally disturbing for me.
36. I have intrusive thoughts of my service on a daily basis. There are smells and sounds that remind me of these past events."

In his oral evidence the applicant told the Tribunal that he gets unpleasant and intrusive thoughts about his experiences in Vietnam every five to ten minutes on every day except while he is asleep. He said he has difficulty in falling asleep because of hypervigilance and being onguard wondering what might happen next. He said he is irritable and gets angry all the time, looses concentration over short periods of time, gets scared when people are behind him. He said that crowded areas, smells of decaying vegetation and the noise of helicopters caused him to think about his experiences in Vietnam. He said that he recalled both good and bad things that happened to him in Vietnam.
He said he watches the "odd few" television/video programs about the war in Vietnam, mainly to see if they accurately portray what happened.
With respect to his first tour of duty in Vietnam the applicant stated that he spent the first six months with A Coy 1 Battalion and then when the Battalion moved to Singapore he stayed on for the remainder of his twelve months tour with 5 Battalion.
With respect to his second tour of duty in Vietnam the applicant said that he had been posted to 2 Battalion on his return to Australia from his first tour and when this Battalion was sent to Vietnam he went with his Battalion. He said he did not seek a second tour of Vietnam, however when his Unit went he went.
The applicant told the Tribunal that he had returned to Vietnam with his wife (who is Chinese) on four occasions since he left the Army, on each occasion spending about three to four weeks. In his written statement he described these visits in the following terms:
"37. When I go to Vietnam it has a calming and relaxing feeling on me mentally. My time there has given me therapeutic resolve and the time to ponder whether our time there was a total waste or not.
38. One of my aims was to meet and establish a rapport with the local people that was absent 20 years before. The main thing was not becoming friends, but to instigate a dialogue so that I could begin to understand their side of the conflict and they might begin to understand ours.
39. I hoped that with those visits we could understand each others problems then and now.
40. I have spoken to quite a few former communist soldiers. They also have mental problems and difficulty adjusting to their daily civilian lives. These are exactly the same problems that I am suffering now.
41. I feel more at ease with the Vietnamese now that I understand their attitudes than with Australians back home.
42. I have now made good friends and I am happy in their company knowing that we are helping each other to adjust mentally.
43. I have spoken to other veterans who have visited Vietnam and they have also said that they felt a sense of peace when they were there. They felt that they were accepted by the local people and not treated like outcasts.
44. On my first visit I was extremely nervous, hesitant and frightened. As I have made more visits it has given me a more relaxed outlook."

It was the applicant's evidence that he had been to about four ANZAC dawn ceremonies in the last thirty years. He said he did not go to other remembrance ceremonies or special events as he avoids crowds. He said that he had visited Gallipoli as part of many trips to friends in the UK who travel to Turkey by campervan. In his written statement he said:
"47. Our final destination is Eceabat. Because this town is only 10 kilometres away from Gallipoli we have always stopped there for a day or 2 to honour those that served Australia during the First world War.
48. The stop at the battlefields is on the way to the beaches in the south so we do not have to go out of our way to pay our respects. After all Gallipoli is our heritage. Anzac day is commemorated to honour those that have served. I was taught that at school many years ago."

With respect to the applicant's work history, the applicant told the Tribunal that he left school in about 1962-63, worked in a supermarket for two to three years and then as a Council parks and gardens labourer before joining the Army at age 21. In the intervening years between his two periods of engagement with the Army he undertook casual labouring.
During his service with the Army the applicant said he only received basic recruit and infantry corps training. After leaving the Army in September 1979, he engaged in a mixed business, a cleaning business and a contract lawn mowing business. In his written statement dated 7 May 2002 the applicant stated:
"58. I last worked full-time as a contract lawnmower in 1986. I stopped doing that work as I felt I was getting worn out and tired.
…
60. I felt that I could not continue. I wasn't getting along with my customers. I was getting angry when they expected more of me.
61. I tried to find work, but was not successful. I signed up at Centrelink. I went and looked at the board at least once or twice per week. I also looked in newspapers. I went to a couple of job interviews. They were for working at warehouses down at the industrial estate.
62. From 1988 until 1989 worked at Seagulls as kitchen hand. This was part time work, about 4 to 5 hours per day or 24 hours per week.
63. At Seagulls I got fed up with the other workers and the supervisor. I got sick and tired of working with them. I had arguments with the supervisors.
…
65. Since I left work in 1989 I have not had another job.
…
67. I know that I am unemployable. I can't work with others around me. I feel agitated if I am in one place for too long."

In his oral evidence the applicant told the Tribunal that he had applied for "twelve, fifteen or twenty positions" in the last few years (many in light industry) and had interviews for about eight positions. He last applied for a job nine to twelve months ago as an electrical warehouse storeman and last visited Centrelink some twelve months ago. He said that he did not have any conflict in the job interviews he attended (although he did not like the attitude of some interviewers and thought they were too demanding). However, he thought his health and age played a part in his not getting a job.
When asked if there was any work he could do now he said that he possibly could but he had difficulties taking orders and getting along with others.
With respect to his non-accepted disabilities he said that he injured his left shoulder in 1966 and while this injury did not trouble him during his Army service, the effects of the injury got worse over the years to the point where his shoulder is nearly always painful and he has difficulty in lifting, particularly above shoulder level. It was the applicant's evidence that atherosclerotic peripheral vascular disease in his left leg (which involved an operation in 1978) impedes his standing and use of ladders and he can now only walk two to three hundred metres. He said the problems with his left shoulder and his left leg caused him difficulty in undertaking contract lawn mowing.
The Tribunal notes that the applicant, in September 1998, in answering questions about seeking employment in support of his claim for disability pension stated that he had, or intended to, seek employment but his disabilities would have an effect on his chance of employment, as follows: "cannot lift heavy items, with shoulder/arm – cannot stand up all day because of swollen leg – now cannot work in sunshine outdoors because of melanomas". And described how his disabilities stopped him working in any way as follows: "my aggressive attitude to others around me - unable to work in sunny outdoor conditions owing to my melanomas and skin condition" (T15 folio 68, Q2001/730).
The applicant also stated (at folio 69):
"cannot do physical work above shoulder level as not enough strength in shoulder joint to do overhead work eg painting, pruning shrubs/trees.
…
my employment would mostly be outdoors, but as I would be required to stand all day and be exposed to sunshine it would only aggravate by leg and increase the growth and extent of my melanonas."
The applicant told the Tribunal that he had not applied for service pension or any social security benefit as he would not qualify because he owned three rental properties (left to him by his mother) which grossed approximately $21,000 per annum (net $14,000 - $15,000 per annum). He said his wife last worked for a living some ten years ago. He also said that even if he did not have the rental properties he would no longer work because of his disabilities and the ownership of the rental properties is not the reason for him now not working. The Tribunal notes that the applicant on 10 June 1998 listed his present sources of income as "joint investments with my wife, funds on fixed term, property rental" (T10/folio 50 Q2001/730).
Medical Evidence
Dr Bruce Lawford, Consultant Psychiatrist, provided a written report dated 22 December 2000 (T4/67-76, Q2000/612) and gave evidence by telephone. In his written report Dr Lawford addressed the criteria to be met for a diagnosis for PTSD (as set out in the SoP in paragraph 19 above). He expressed the view that the applicant meets all of the criteria for a diagnosis of PTSD and he gave the applicant a Guide to the Assessment of Rates of Veterans' Pensions (GARP) rating of 44 impairment points for this disability. He opined:
"His only psychiatric diagnosis is Post Traumatic Stress Disorder.
I am not aware of any other condition or factors that influence his presentation.
His condition has severely affected his ability to work since leaving the Army (especially the last 15 years).
In my opinion he is unfit for remunerative employment for more than 8 hours per week."

In his evidence by telephone, Dr Lawford told the Tribunal that he had been practising as a Psychiatrist for seventeen years. He said that the applicant had attended his practice for treatment in recent years, that he had seen the applicant approximately twelve times and that he was still seeing the applicant every two months or so. He said he treated hundreds of Vietnam veterans and in his opinion the experiences the applicant recounted were the most horrific he could imagine and would have affected the applicant. He said he disagreed with Dr Wainwright's opinion that the applicant possibly suffered from a personality disorder in that he considered that there was a change in the applicant's functioning post-Vietnam compared with pre-Vietnam and that this was not consistent with a diagnosis of personality disorder. He said the applicant was able to put on a good front and displayed avoidance characteristics which were not unusual when a veteran suffered more trauma than most and particularly where such veterans were dealing with people they did not know. Dr Lawford said that he thought that was the situation in the applicant's interview with Dr Wainwright and he disagreed with Dr Wainwright's view that there was no evidence that the applicant's response to his experiences in Vietnam involved intense fear, helplessness or horror, or that there was no evidence that the applicant had significant avoidance of stimuli associated with his experiences in Vietnam.
Dr Lawford made the point that the applicant did not volunteer for a second tour of Vietnam but rather that he went with his unit as he would feel guilty if he did not do so and thereby let his mates down. Dr Lawford also said that he had no difficulty with the applicant remaining in Vietnam during his first tour when 1 Battalion returned to Singapore after six months, in that often veterans wanted to get back at the enemy and even up the score. In respect of the veteran's return trips to Vietnam, Dr Lawford said that Vietnam veterans often go back, find some mental relief and relief of hatred from such journeys and that the applicant's actions in this regard particularly in view of his wife being Chinese, did not detract from a diagnosis of PTSD. Nor was Dr Lawford concerned that the veteran occasionally watched television shows/videos about Vietnam. He said it was not unusual for veterans to read about activities in Vietnam and seek to find out more about the war.
Dr Wainwright, Psychiatrist, saw the applicant on 3 October 2001 and provided a written report dated 15 October 2001 (Exhibit R1). In his written report Dr Wainwright opined:
"In my opinion, Mr Ashby does not have Post Traumatic Stress Disorder (Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition). While Mr Ashby may have been exposed to traumatic events in Vietnam, there is no evidence that Mr Ashby's response to these events involved intense fear, helplessness or horror. Similarly, there is no evidence, from either the history or the mental state examination, that Mr Ashby has any significant avoidance of stimuli associated with any traumas that he may have had in Vietnam. Mr Ashby showed no avoidance of a second tour to Vietnam: in fact, it is something that he wanted to do. In the last part of this second tour, he went into a dangerous area, even though he should not have done so. After leaving the Army, he then rejoined. He spoke easily about traumatic events in Vietnam, with no evidence of avoidance or hyperarousal. All these factors are not consistent with any avoidance, and avoidance is a very necessary requirement in order to fulfil the criteria for Post Traumatic Stress Disorder. Similarly, Mr Ashby showed no objective evidence of increased arousal in over 3 hours of interview: this is not consistent with Post Traumatic Stress Disorder.
It should be noted that Mr Ashby did not see the need to see a psychiatrist, or seek help for any difficulties that he may have had, prior to putting in a claim to the Department of Veterans' Affairs: this is inconsistent with any degree of psychological distress. Similarly, his treating psychiatrist sees fit to only see him every 2-3 months: this is not consistent with any degree of disability, and it is hard to imagine that any significant form of treatment could be carried out by seeing a patient every 2-3 months. Similarly, Mr Ashby is on a very small dose of antidepressant, which many psychiatrists would regard as sub-therapeutic. These facts suggest that Mr Ashby does not have a significant psychiatric disorder.
In my opinion, Mr Ashby has significant narcissistic personality traits, as evidenced by his sense of entitlement and lack of empathy with others.
In my opinion, Mr Ashby has significant antisocial personality traits, as evidenced by his irritability and aggressiveness and lack of remorse as indicated by his rationalisation of his mistreatment of others.
In my opinion, it is these personality traits which have resulted in Mr Ashby's emotional and interpersonal difficulties. Mr Ashby's developmental history, with an older, distant father and a somewhat indulgent mother, supports the possibility of personality pathology. It is interesting to note that Mr Ashby's reluctance to work became most evident after the death of his mother, and it is likely that, at that time, he felt significant feelings of abandonment, as it would appear that his mother was the only person in his life that he felt close to. It seems clear that Mr Ashby considered that he was financially able to stop work, as he had accumulated enough assets for his needs: there was therefore no financial motivation to return to work.
In my opinion, it is likely that Mr Ashby would fulfil the criteria for a Personality Disorder (Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition). However, at this time, it is not possible to be sure of this, as I have only seen Mr Ashby on the one occasion, and have only a limited history of the early developmental phase of his life.
With respect to the Repatriation Medical Authority Statements of Principles, it is my opinion that Mr Ashby does not fulfil the criteria for either PTSD, Generalised Anxiety Disorder, or Depressive Disorder. It is therefore not possible to provide an assessment of his psychiatric impairment with respect to these conditions. However, Mr Ashby does have a psychiatric impairment, due to his personality difficulties. However, these are longstanding and predated Mr Ashby's Army service."

In his evidence by telephone, Dr Wainwright told the Tribunal that he had practised as a psychiatrist for six years, had served as a medical officer in the Army for eighteen years and was treating Vietnam veterans for PTSD.
He said he had given the applicant every opportunity to express himself during a lengthy interview of some two to three hours and had not observed the applicant experience hyperarousal or difficulties during the interview. Dr Wainwright explained the Trauma Symptom Inventory (TSI) he asked the applicant to complete and told the Tribunal that he found the results of this test inconsistent with the interview, in that the test which he said was a well validated test, showed the applicant to suffer anxious arousal and depression whereas these symptoms were not shown in the interview. Dr Wainwright said he put considerable weight on his own clinical observations as objective outcomes on which he could rely.
He said that he did not consider that the applicant was concealing his feelings and that in his experience a person with PTSD would find it virtually impossible to contain themselves for any length of time such as applied in his assessment of the applicant.
Dr Wainwright also explained that the 139 item inventory that the applicant completed was designed to assess whether an individual is attempting to exaggerate psychological distress and that an analysis of this test could not generate a psychiatric diagnosis.
Dr Wainwright said that he was not saying that the applicant was being untruthful, however his assessment of the TSI results and the 139 item inventory response suggested that care needs to be taken in uncritically accepting the applicant's self report.
Dr Wainwright expressed the opinion that the applicant had no psychiatric disorder but that he had difficulties in social relations which could be a personality disorder. He said that whether the latter was so could not be determined in one examination.
In cross-examination Dr Wainwright was taken to his written report where he stated that the applicant does have a psychiatric impairment due to his personality difficulties. Dr Wainwright, when pressed, said that what he had written in his report was not correct.
Further in cross-examination Dr Wainwright was asked if he evaluated the applicant with respect to the criteria set out in the SoP. Dr Wainwright said that he relied on objective observations rather than subjective recollections or assessments. As an example he said that there was no doubt that the applicant was exposed to traumatic events. However, he said there was no objective evidence that the applicant responded to these events with intense fear, helplessness or horror. Dr Wainwright did not accept the applicant's statement in this regard as evidence.
Further in cross-examination, Dr Wainwright was informed that the respondent had accepted the applicant's account of the incidents he had experienced in Vietnam. He was asked to assume that the applicant's description of his response to these events at the time and subsequently was correct and on this basis he was taken through each of the criteria as set out in the SoP. Within this context Dr Wainwright reluctantly agreed that the applicant meets each of the required criteria. However, Dr Wainwright said that if the history of the applicant was not consistent with the clinical examination and psychometric tests then doubt was cast on the PTSD criteria being met by the applicant.
Dr WS Wright, Consultant Psychiatrist, saw the applicant on the 2 June 1998 and provided a written report (T4/34-35, Q2001/612). In this report Dr Wright expressed the view that the applicant does not suffer from PTSD or from any other disorder.

It was the applicant's evidence that Dr Wainwright saw him for only 40 minutes and did not discuss his war experiences in any detail.
The respondent placed no reliance on Dr WS Wright's opinion in these proceedings, the Doctor was not made available for cross-examination nor were there any submissions from the respondent in respect of his report.
In view of the forgoing, the Tribunal places no weight on Dr WS Wright's opinion.
The Tribunal notes that Dr H Clifford Wright, LMO, provided medical reports in respect of the applicant where, on 27 April 1998, he provided a medical diagnosis of PTSD with date of onset 1968-72 (T4/24-29, Q2001/612) and on 25 May 1998 provided a medical impairment assessment where inter alia he reported:
"This veteran's PTSD almost precludes him doing any kind of work. His concentration is poor as is his general interest. His irritability and bad temper precluded him working with others, taking instructions or interacting appropriately with clients. "

Submissions

It was submitted for the applicant that the applicant satisfies the diagnostic criteria for PTSD; and that the applicant meets the requirement of the relevant SoP concerning PTSD. On this basis it was submitted that the applicant's PTSD should be taken into account in assessing his rate of pension and that Dr Lawford's assessment of 44 points should be included in the applicant's overall impairment points.
This being so it was contended that the applicant clearly meets s 24(1)(a) of the Act. Furthermore in the light of Dr Lawford's opinion that the applicant's PTSD alone prevents him from working more than eight hours per week it was submitted that the applicant meets s 24(1)(b) of the Act.
In respect of s 24(1)(c) of the Act it was submitted that the applicant was entitled to the ameliorating provisions of s 24(2)(b), that he ceased work as a consequence of his PTSD, that he is unable to engage in any further work because of his PTSD and that his non-accepted disabilities do not effect his inability to engage in remunerative work. It was further submitted that the applicant met the criterion of genuinely seeking to engage in remunerative work in that he had applied for many positions, had attended 8 interviews and also had registered with the CES. As such it was submitted that the applicant should be paid pension at the Special Rate with date of effect 1 February 1998. In considering whether the applicant, at the relevant time, was genuinely attempting to find and/or engage in remunerative work the Tribunal was referred to the matter of Hall v Repatriation Commission (1994) 33 ALD 454 where his Honour Justice Spender held:
"(iv) The question of whether a veteran has been 'genuinely seeking to engage in remunerative work, [and] that he or she would, but for that incapacity, be continuing to do so seek' ….in s 24(2), had to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans were permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such a person be genuinely seeking work seemed to involve something of a charade. While it might be that H was advised to pursue his attempts at seeking employment through the CES, by advice which focussed on any realistic prospect that such work might be obtained, the report by the CES did not seem to cast doubt on H's willingness to accept work if any might be found for him."
It was submitted for the respondent that the Tribunal must first determine if a psychiatric condition exists and, if so, whether this condition is PTSD. In this case it was contended the most likely diagnosis is personality disorder and that the applicant's clinical presentation in Dr Wainwright's examination, his returns to Vietnam in recent years, his watching of television shows/videos about Vietnam and the lack of any indication of stress in the applicant when giving evidence to the Tribunal were all not consistent with a person who was hypervigilant and reliving his war time experiences. As such it was submitted that the applicant did not meet the necessary criteria for a diagnosis of PTSD.
In respect of payment of pension at the Special Rate it was contended that even if the applicant suffered war-caused PTSD, there were significant non-accepted disabilities which were factors in the applicant deciding to give up work and that this was seen by the applicant as a viable course of action because of his income from rental properties. It was further submitted that the applicant could not demonstrate that he was actively seeking work and that on the occasions when he saw prospective employers there was no evidence that psychiatric conditions, were the substantive reason for not getting a job. Rather it was the state of the labour market which led to his unemployment.
It was submitted for the respondent that the decisions under review should be affirmed.
Consideration
The first question to be addressed by the Tribunal is whether the applicant suffers a psychiatric condition meeting the description provided in paragraph 2 of Instrument No 3 of 1999 (as amended by No 54 of 1999) concerning PTSD.
As is often the case in matters such as this, there is conflicting medical opinion about the applicant's psychiatric condition, if any. On the one hand Dr Lawford, Consultant Psychiatrist, and Dr Clifford Wright, LMO, both are of the view that the applicant suffers from PTSD. On the other hand Dr Wainwright, Psychiatrist, is of the view that the applicant does not suffer from a psychiatric impairment rather that he suffers from personality difficulties.
Central to assessing the weight to be given to these conflicting reports is the acceptance or otherwise of the applicant's history of events in Vietnam and his description of his feelings and responses to these events.
At the outset it needs to be said that the respondent, after considering the available histories of Battalion operations in Vietnam at the relevant time, has accepted that events as set out by the applicant in his written statement did occur.
The applicant's description of his feelings and responses to these events is of a subjective nature and it is here that the medical opinion diverges. Dr Lawford, the applicant's treating specialist and Dr Clifford Wright clearly are of the view that the applicant has honestly portrayed his feelings and responses. Dr Wainwright, while not saying that the applicant is not telling the truth, has cast doubt on the applicant's subjective statements because of inconsistencies, as he sees them, in the applicant's clinical presentation and testing; and the applicant's activities such as visiting Vietnam and watching television shows and videos about the Vietnam war.
The Tribunal is satisfied that the applicant did experience horrific events in Vietnam. The Tribunal is of the view that it would be remarkable if a young man such as the applicant was at the time, did not respond to these events with intense fear and/or horror. In this respect the Tribunal accepts the applicant's evidence that he did indeed respond with intense fear and horror as he has stated.
These findings give weight to the credit of the applicant. So does Dr Lawrence's explanation for the applicant revisiting Vietnam and watching television shows/videos about Vietnam, which the Tribunal accepts as reasonable. While the Tribunal is troubled by the inconsistencies found by Dr Wainwright in the applicant's clinical presentation compared with the applicant's subjective views about his responses and feelings, and the applicants lack of demonstrated stress or loss of concentration during approximately one and a half hours of giving evidence to the Tribunal, nevertheless the Tribunal accepts Dr Lawrence's explanation that the applicant has heightened avoidance characteristics and can put on a good front when confronted by new situations or new faces.
After careful consideration of all of the material before the Tribunal is satisfied, on balance, that the applicant's responses and feelings as given by him in his written and oral evidence, truly reflect his responses and feelings to and about his experiences in Vietnam.
That being so and given Dr Wainwright's agreement that the applicant suffers PTSD if the applicant's claimed subjective responses and feelings are accepted, the Tribunal is reasonably satisfied that on all of the medical evidence before it, the applicant meets the diagnostic criteria for PTSD as set out in the relevant SoP.
Turning then to consideration of the applicant's hypothesis that the applicant's PTSD is war-caused. Following the steps set out in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, the Tribunal is satisfied that all of the material before it points to the hypothesis contended for the applicant; that there is in force a relevant SoP (Instrument No 3 of 1999 as amended by 54 of 1999) and that the hypothesis is consistent with the template in the SoP in that Factor 5(a) is satisfied and is related to the applicant's operational service.
After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied beyond reasonable doubt that the applicant's PTSD is war-caused.
In respect of assessment of rate of pension, the Tribunal accepts Dr Lawford's assessment of 44 impairment points for the applicant's PTSD. As such, the applicant's total impairment points are 60, derived by combining the 44 points for PTSD and the 30 points as calculated by the VRB for his other accepted disabilities. The Tribunal notes that this rate of impairment results in assessment of pension of 100% of the General Rate.
While the Tribunal is satisfied that the applicant suffers from PTSD the question remains as to when this condition has been diagnosed. Clearly the applicant's post traumatic stress symptoms are rooted in his experiences in Vietnam, in the late 1960s/early 1970s. The only medical evidence before the Tribunal about the onset of PTSD is contained in the reports of Dr Clifford Wright and Dr Lawford, both reports being the outcome of assessments in the late 1990s. Dr Wright is of the view that the onset of the applicant's PTSD occurred during his service in Vietnam probably in 1969. Dr Lawford has opined that the duration of the applicant's disturbance is of many years and has affected his work especially in the last fifteen years. The Tribunal notes that the applicant continued to serve in the Army until 1979 and thereafter ran a mixed business which he sold in 1983 because he could not renew the lease. There is no evidence of any of his activities during this period being affected by PTSD. On the applicant's evidence it was not until he engaged in a contract lawn mowing business in 1986 that he began having some difficulties in dealing with customers. The only other evidence of the applicant having difficulty in dealing with people relates to the interviews he had with prospective employers in the "last few years". After consideration of all of the material before it, the Tribunal is satisfied that for the purposes of consideration of this matter the applicant's PTSD has existed since 1986.
Turning then to consideration of Special Rate pension. His Honour Justice Burchett in Cavell v Repatriation Commission (1988) 9 AAR 539 stated:
"To distract the Tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."

With respect, the Tribunal adopts this approach in consideration of this matter.
In the light of the above findings that the applicant, pursuant to s 21A of the Act suffers a degree of incapacity of at least 70%, the Tribunal finds that the applicant satisfies s 24(1)(a).
The applicant has no trade or professional skills. However, he has vocational experience as a security guard; parks, gardens and general labourer; in contract lawn mowing; in shop keeping; in cleaning; and as a general handyman. The Tribunal is satisfied that it is these kinds of work rather than any particular job that the applicant might reasonably be expected to undertake (see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402).
There was no dispute between the parties that if the Tribunal were to find that the applicant suffers from PTSD then the Tribunal should accept Dr Lawford's opinion that the applicant is unfit for employment for more than eight hours per week. On all of the material before it and in the light of the foregoing, the Tribunal is reasonably satisfied that the applicant's PTSD is of such a nature as of itself alone to render the applicant incapable of undertaking remunerative work, as described, for a period aggregating more than eight hours per week. As such the Tribunal finds that the applicant satisfies s 24(1)(b) of the Act.
The crucial question then is whether the applicant meets the criteria as set out in s 24(1)(c). In order to meet the criteria the applicant must establish that:

it is by reason of incapacity from that war-caused injury or war-caused disease, or both, alone that the veteran is prevented from continuing to undertake remunerative work that the veteran was undertaking; and
that has led to 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.

Section 24(2)(b) is an ameliorating provision applying to applicants under the age of 65 (as is the case here) which modifies the alone test such that the applicant can meet the first limb of s 24(1)(c) if:

the applicant has not been engaged in remunerative work but has been genuinely seeking to engage in remunerative work; and
the applicant's war-caused disabilities were the substantial cause of his inability to obtain remunerative work in which to engage.

Section 24(2)(a) narrows the second limb above in that the applicant will not meet the alone test if either of the following apply:

the veteran has ceased to work for non-war related reasons; or
the veteran is prevented from working for some other reasons.

After careful consideration of the material before it the Tribunal is satisfied that the applicant ceased remunerative work in 1987 and that the applicant has not worked since.
The Tribunal is satisfied on the applicant's own evidence that his non-accepted disabilities of Osteoarthrosis of the left shoulder and Atherosclerotic Peripheral Vascular Disease of the left leg were significant factors causing the applicant to cease to engage in remunerative work. In his claim for Disability Pension lodged on 1 May 1998 the applicant stated in respect of all claimed disabilities (including injuries to his left shoulder and left leg), that he has constantly had difficulties in performing all of his duties and activities.
The Tribunal is also of the view that the applicant's substantial absence from the workforce since 1987 in itself creates a considerable difficulty in respect of the applicant obtaining employment during the relevant period of assessment.
After careful consideration of the material before it, the Tribunal is satisfied, on balance, that the applicant's war-related incapacities "alone" have not prevented the applicant from continuing to work and therefore the applicant does not satisfy the criteria contained in s 24(1)(c) unless the ameliorating provisions of s 24(2)(b) apply.
In respect of the ameliorating provisions of s 24(2)(b) the first question to be asked is whether the applicant has been genuinely seeking to engage in remunerative work that he would, but for that incapacity, be continuing to seek to engage in remunerative work. In addressing this matter the Tribunal notes what his Honour Justice Spender held in Hall as set out in paragraph 61.
The Tribunal also is mindful that Davies and Ryan JJ, in Repatriation Commission v Strickland (1990) 12 AAR 412, said that s 24(1)(c) of the Act:
"obliged the AAT to investigate what is, in certain respects, a highly artificial complex of facts."

It is within the context as set out in paragraph 88 above, and particularly paragraph 76, that the Tribunal has carefully considered all of the material before it and the submissions of both parties and has formed the view that at the relevant time the applicant has been genuinely seeking to engage in remunerative work that he would, but for that incapacity, be continuing to seek to engage in remunerative work.
In arriving at this view, the Tribunal is mindful that the applicant has stated that he applied for twelve, fifteen or twenty positions in the last few years and was interviewed for eight of these positions, his last interview being nine to twelve months ago. As part of his claim for disability pension the applicant, on 10 June 1998, stated that he was not registered with the CES. His evidence at the hearing was that he had registered with Centrelink in recent years but the last time he visited Centrelink was twelve months ago. The Tribunal had no evidence from Centrelink before it such as applied in Hall.
The word "genuinely" in s 24(2)(b) of the Act indicates the need for some objective signs of active pursuit of remunerative work. While the Tribunal has some difficulties with the inconsistencies in the applicant's evidence and his lack of precise recall, nevertheless his oral evidence about applying for work and registering with the CES is uncontroverted and the Tribunal accepts his evidence. Accordingly the Tribunal finds that the applicant's efforts indicate that he was genuinely seeking to engage in remunerative work and as such the applicant meets the first limb of s 24(2)(b) of the Act.
Turning then to the second limb of s 24(2)(b) of the Act. In respect of "substantial cause", in Fox v Repatriation Commission (1997) 45 ALD 317, Kiefel J stated at 319-320:
"The words 'the substantial cause' require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be 'a substantial cause' has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as 'substantial' …. The definite article in s 24(2) of the 1986 Act … requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work."

With respect the Tribunal adopts this approach.
In this matter, as has already been found by the Tribunal, there is a number of substantial causes for the applicant's inability to obtain work namely, the veteran's war-caused incapacities; his non war-caused orthopaedic and vascular disabilities; and his age/length of time out of the workforce.
In Bowman v Repatriation Commission (1990) 19 ALD 794 at 797 it was stated that the meaning of "the substantial cause" requires a decision as to which of two "substantial" causes was the "predominate" cause.
In this case the Tribunal is of the view that the applicant's non war-caused disabilities and his age and length of time out of the work force are of equal significance to his war-caused incapacities and as such the Tribunal finds on balance, that his war-caused incapacities are not the substantial cause of his inability to obtain remunerative work.
Accordingly the Tribunal is reasonably satisfied that the applicant does not satisfy the requirements of s 24(2)(b) of the Act.
It follows from the above findings that the Tribunal is reasonably satisfied that the applicant does not satisfy s 24(1)(c) of the Act and therefore pension is not payable at the Special Rate. In summary then the Tribunal finds that:
(a)the applicant suffers from PTSD and this PTSD is war-caused;
(b)the applicant does not satisfy the requirements of the Act such that his disability pension should be paid at the Special Rate;
(c)the applicant's Disability Pension should be paid at 100% of the General Rate with date of effect 1 February 1998.

The decisions of the Tribunal are:
(a)In matter Q2001/612 – that part of the decision under review refusing the applicant's claim for Post Traumatic Stress Disorder is set aside and in substitution therefore the Tribunal determines that the applicant suffers from war-caused PTSD; and
(b)In matter Q2001/730 - the Tribunal sets aside the decision under review that the applicant's pension be assessed at 50% of the General Rate to operate from and including 1 February 1998 and in substitution therefore determines that the applicant's pension is to be assessed at 100% of the General Rate to operate from and including 1 February 1998.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  18 June 2002
Date of Decision  2 August 2002
Counsel for the Applicant        Mr O'Gorman
Solicitor for the Applicant         Gilshenan and Luton, Lawyers
Solicitor for the Respondent    Mr Smith, Departmental Advocate