Brand and Repatriation Commission - [2000] AATA 1123

DECISION AND REASONS FOR DECISION [2000] AATA 1123

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1440

VETERANS' APPEALS DIVISION       )
           Re      THOMAS ARTHUR BRAND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Dr P.D. Fricker, Member

Date19 December 2000
PlaceMelbourne

Decision      1.        The Tribunal affirms the decision under review which decided that lumbar spondylosis and osteoarthrosis of the knees are not war-caused diseases.   2.    The Tribunal varies the decision on assessment to provide that Mr Brand is entitled to pension at 40% of the General Rate with effect from 11 December 1997.
  ..……(Sgd. J.R. Dwyer).........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Lumbar spondylosis and osteoarthrosis of the right and left knee – whether war-caused – whether the material before the Tribunal points to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his service – whether hypothesis raised is reasonable – whether hypothesis raised are consistent with the template to be found in the SoP – decision affirmed.
Veterans' Entitlements Act 1986 ss 9, 120A
Repatriation Commission v Keeley (2000) 31 AAR 750
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Clarke and Repatriation Commission [2000] AATA 545
Re Thompson and Repatriation Commission [2000] AATA 635

REASONS FOR DECISION

19 December 2000 Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Dr P.D. Fricker, Member

This is an application for review of two decisions of the Repatriation Commission both made 4 June 1998. The first of those decisions decided that Mr Brand's lumbar spondylosis and osteoarthritis of the knees were not war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). It accepted post-traumatic stress disorder ("PTSD") with psychoactive substance abuse or dependence as a war-caused disease with effect from 11 December 1997. The second decided to grant pension at 30% of the general rate in respect of PTSD and psychoactive substance abuse or dependence. The decisions rejecting the claims in respect of lumbar spondylosis and osteoarthritis of the right and left knee and assessing pension payable at 30% of the general rate with effect from 11 December 1997 were affirmed by the Veterans' Review Board ("the VRB") on 14 September 1999.
The Tribunal has decided that lumbar spondylosis and osteoarthritis of the right and left knee are not war-caused diseases under the Act. The Tribunal has also decided that the rate of pension payable to Mr Brand in respect of the previously accepted PTSD with psychoactive substance abuse or dependence is 40% of the general rate from 11 December 1997.
Mr D De Marchi, a solicitor, appeared for Mr Brand. Ms T Chant, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Brand gave evidence. The respondent called Dr Kenny who gave telephone evidence. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
Mr Brand served in the Australian Army from 30 June 1965 to 29 June 1967. He had operational service in Vietnam during the period 22 April 1966 to 12 May 1967.

lumbar spondylosis

Mr Brand's claim to have lumbar spondylosis and osteoarthrosis of the knees accepted as war-caused was lodged on 11 March 1998. Thus this matter is to be decided in accordance with s 120A of the Act. Because the original Repatriation Commission decision was made on 4 June 1998 the relevant Statement of Principles ("the SoP") in respect of lumbar spondylosis, in accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley (2000) 31 AAR 750, is Instrument No. 165 of 1996. So far as relevant that SoP provides that the factor that must, as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person's relevant service is:
(g)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.
The SoP contains a definition of "trauma to the lumbar spine" which reads as follows:
"trauma to the lumbar spine" means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;
Mr Brand's general practitioner, Dr Baxter, diagnosed him as suffering from lumbar spondylosis on 8 April 1998 (T8 p36). He noted that radiological investigation (T8 p33) showed that Mr Brand had marked L1–2 spondylosis. Dr Baxter commented "as well as full infantry load this veteran carried a wireless". He wrote that the clinical onset of the condition was approximately 1992.
The Tribunal had before it a trauma statement made by Mr Brand on 9 March 2000 (A3). It reads as follows:
1.I served in the Australian Army from 30 June 1965, to 29 June 1967. I served in Vietnam from 22 April 1966, to 12 May 1967, and have rendered operational service.
2.While serving in Vietnam I often had to jump out of helicopters hovering 5-6 feet above the ground. I was a radio operator. The radio operator and the machine gunner were always the last to get on and the first off the helicopter. The helicopter would hover above the ground, and if I hesitated I would be booted off the helicopter by the gunner.
3.On one of these occasions when I jumped out first, I landed on some rocks, jarred my knees and back at the same time. I was stunned, but forced myself to get up and get out of the way. For a while I had problems walking. My back continued to be sore for quite a while. I was in an enormous amount of pain for the first 10-12 days, when the pain in my knees and back gradually subsided, but still painful, and this pain has continued since that time, gradually continuing to worsen. On some days the back especially, causes me a lot of pain. My local doctor has put me on Feldene.
4.After service I did not go to a doctor about my knees or back for a long time, as I just put up with it. I am not the type to go to a doctor, and it took many years of suffering for me to finally decide to go.
5.My doctor told me to do more walking, but this causes pain in the knees, and then aggravates the back.
In evidence Mr Brand amplified that statement a little. He said (trans. pp8-9):
There was a whole heap of choppers coming in and as I said, it was on the side of a hill and we had to be dropped off, so none of them could land. So they had to hover for a minimum time and we had to jump out. I can't tell you the exact date, but the helicopter in front of us lost a main rotor and it went into the ground, because he was hovering too low, because the hill was so steep. Anyway, when I jumped out of the chopper, because I was carrying the radio set with all the gear, I landed awkwardly.
. . .
[B]ecause I was carrying so much gear – when you carry a radio you have got a rack that you have got to – that it is mounted on and that dug into my back and I jarred my knees at the same time. When I went to get up, I could hardly move, but the other blokes were jumping out as well and we had to move whether you wanted to or not. And from then on, as I said, that pain has been with me ever since.
. . .
Can you describe what problems that you were having in walking?---Yes, because we were going up hill, it was severe – at the time it was severe pain going down my back and my legs were all, sort of, wobbly, sort of thing for a while. But I had to go because it was the start of an operation and you couldn't hold back. I had to keep going, whether you wanted to or not.
You said in your statement that you were in an enormous amount of pain for the first 10 to 12 days. Are you able to tell the Tribunal the exact period of time that you were in pain?---No. I know it was at least that long, but after a period of time, it eased up a little bit. But as we have always been told, all along, that you don't report any injuries. And that's why I never, ever reported it.
The Tribunal asked Mr Brand whether there was a company medic with the patrol at the time of the incident. He said there was, but he did not seek treatment from him but just put up with the pain. He explained that the medic was probably looking after the people who had been in the helicopter and were injured, although he did say that none of them were critically injured (trans. p33). Mr Brand said that he camped out that week but his back was pretty sore and his knees were stiff. He said when they came into base after the 12 day patrol he was not too bad, although he did still feel the effect of the incident on his back and knees.
Mr Brand said he did not tell the Company Commander about the incident because, "I didn't know whether he would believe me, so I just didn't say nothing. That is all. Simple as that." (trans. p34). Mr Brand agreed with a comment from the Tribunal to the effect that company signallers were not readily replaceable.
Mr Brand in his evidence did not describe being in "an enormous amount of pain" for the first 10–12 days. When Mr De Marchi asked Mr Brand to describe the initial pain he said it was "very sharp" (trans. p34). When he was asked if his movements were in any way restricted he said, "Yes they were for a few days". He did not describe the restrictions. When asked if the symptoms were acute for the whole 12 days of the patrol he said they were, "niggly. Just niggling pain all the time – Not something that you would buckle up and collapse with, but just niggling pain" (trans. p35).
In cross-examination Mr Brand agreed that he had told the VRB that the pain from jumping out of helicopters usually lasted for a day or two, and that it did not prevent him doing his duties. He said that when he jumped out of the helicopter on the day of the bad landing his legs were more or less straight and that jarred him when he landed on rocks. He said when he hit the ground he was fairly stunned for a minute, but then had to keep going up the hill a bit more. Ms Chant asked Mr Brand whether he was able to move his legs and move up the hill after his awkward landing. He said "Eventually yes". He said it took "a few seconds" (trans. p39).
The Federal Court in Harris v Repatriation Commission [2000] FCA 873 and in Harris v Repatriation Commission [2000] FCA 1687 considered the requirements of the definition of "trauma to the lumbar spine" in the SoP for lumbar spondylosis relevant to this matter. The Full Court dismissed an appeal from the decision of Finn J who had dismissed an appeal from this Tribunal. The Full Court approved Finn J's discussion of the meaning of the definition. His Honour had said at paragraphs 30 to 32:
In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by the person.
Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of `acute symptoms and signs' of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition `of' only precedes the word `pain' in the SoP's definition I am satisfied that the definition is to be read as if `of' preceded the words `tenderness' and `altered' as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to `acute symptoms and signs of pain and/or tenderness, and [meaning `together with'] altered mobility' etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words `and where such acute symptoms and signs last for a period of at least one week') and to what, ordinarily, would be the work done by the preposition `of' in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that the construction is the one propounded by the respondent.
The requirement, then, that there be `signs and symptoms' of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: eg definition II of `sign' and that of `symptom' in the Shorter Oxford English Dictionary (`SOED'). Moreover, given the requirement that the signs and symptoms must be `acute' - ie that they be sharp or act `keenly on the senses': SOED, `acute'; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury.
The Full Court at paragraph 33 of its reasons commented:
The primary Judge observed that it was arguable that the AAT should have been prepared to assume, for the purposes of formulating a hypothesis connecting the appellant's service to his current disability, that he had suffered altered mobility. But even if that were so, it fell short of a hypothesis that the appellant had suffered acute symptoms and signs of that altered mobility, as SoP No 105 of 1995 required.
It is accepted that the process of deciding whether or not an injury or disease is war-caused within the meaning of that term in s 9 of the Act requires the four step approach laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206. The first step, is to consider whether the material before the Tribunal points to a hypothesis connecting Mr Brand's lumbar spondylosis with the circumstances of his service. Here there are three hypotheses suggested. The first, suggested by Dr Baxter, was that the full infantry load plus wireless caused the lumbar spondylosis (T8 p36). The second appears in the T documents at T6 p14. Mr Brand signed a claim stating that he believed his service caused or aggravated his back problems because of "continual multiple minor trauma serving as a signaller in an infantry battalion". The third hypothesis raised was that the problems are due to "trauma to the lumbar spine" sustained on service on one occasion when Mr Brand had a bad landing after jumping out of a helicopter, as he described in his trauma statement (A3) and in his evidence.
The second step as explained in Deledio requires the Tribunal to ascertain whether there is a SoP in force in respect of the relevant injury. As discussed in paragraph 5 of these reasons there is a relevant SoP.
The third step requires the Tribunal to consider whether the hypothesis raised is a reasonable one. The Full Court in Deledio explained how that is to be done:
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
The hypotheses raised concerning the "full infantry load plus wireless" and "continual multiple minor trauma" are not consistent with the "template" found in the SoP, as they do not contain one or more of the factors found in the relevant SoP.
The third hypothesis raised may at first appear to contain the factor of "trauma to the lumbar spine", however it is necessary that the "trauma to the lumbar spine" be trauma fitting the definition in the SoP. That definition, as Finn J explained in Harris, requires (inter alia) that the injury caused the development of "acute symptoms and signs" of:
(i)        pain
(ii)       tenderness
(iii)      altered mobility or range of movement

Such "acute" symptoms and signs must last for a period of at least one week.

We found Mr Brand to be an honest witness and we accept what he said, but his evidence does not raise or point to the matters required in the definition in the SoP. First there is no evidence of any symptoms suffered being "acute" for more than a minute or so. As Finn J pointed out in Harris, the Shorter Oxford English Dictionary requires that for symptoms to be "acute" they must "be sharp or act 'keenly' on the senses". Mr Brand said that his pain was "very sharp" initially, but during the patrol which lasted 10–12 days became "just niggling pain all the time". He did not say that it remained sharp for at least a week. He said it took a few seconds before he could move his legs and move up the hill. He gave no evidence of acute signs or symptoms of tenderness. All he said on that issue was that his back was "pretty sore" (trans. p33) camping out at night on the patrol, "because it got cold at night" (trans. p33).
The facts that Mr Brand did not at any stage seek even a painkiller from the company medic, and that he was able to complete the patrol without requiring any assistance in carrying his heavy load, also indicate that the requirements of the definition are not raised. Further Mr Brand did not tell the Company Commander whose signaller he was, that he had any problem with pain, tenderness or altered mobility because he feared he would not be believed. That is not consistent with Mr Brand suffering "acute signs" of altered mobility or range of movement.
Thus we are obliged to find that the material before us does not raise a reasonable hypothesis. The raised hypothesis is not consistent with the "template" to be found in the SoP. As the hypothesis fails to fit within the template, the claim in respect of lumbar spondylosis must fail.
osteoarthrosis of the knees
Mr Brand relies on the same incident as having caused his osteoarthrosis of the knees. The relevant SoP for that condition is Instrument No. 71 of 1995 dealing with osteoarthrosis as amended by Instrument No. 336 of 1995 and Instrument No. 352 of 1995. The only relevant factor for localised osteoarthrosis of the knees at the relevant time was found in paragraph 2(b)(vi) which reads as follows:
suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis;

Trauma to the relevant joint is defined in paragraph 6 as follows:

'trauma to the relevant joint' means a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;

Mr Brand in his trauma statement and in his evidence said that the hard landing on the occasion described, did jar his knees and that the pain in his knees and difficulty walking continued for 10-12 days. Ms Chant pointed out that Dr Hall, to whom Mr Brand was sent by his own solicitor, in his report of 9 June 2000 (A2) had obtained a history of the relevant incident causing trauma to the back but wrote that Mr Brand had no clear recollection of any knee injury during the course of his military service. However in his next sentence Dr Hall wrote "he does recall having had some knee pain when he returned to work in storeman's duties immediately after his national service."
Mr Brand in his evidence said that his knees did suffer trauma in the difficult landing and that he had pain and problems walking for a while after the injury. However he said nothing about "acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movements of the knee". For the reasons given in respect of the claim for lumbar spondylosis we find, applying the four step approach laid down in Deledio, that the hypothesis raised in respect of osteoarthritis or osteoarthrosis of the knees is not a reasonable one because it does not fit the "template" in the relevant SoP. The evidence of Mr Brand does not raise the matters required by the definition of trauma to the relevant joint. There is no evidence of tenderness or swelling of the joint. Nor did he describe acute symptoms of altered mobility or range of movement of the knees lasting for at least one week. Thus the claim in respect of the knees must also fail.
assessment of rate of pension
The second reviewable decision related to the assessment of the rate of pension in respect of the accepted PTSD with psychoactive substance abuse or dependence. The VRB assessed pension as payable at 30% of the general rate on the basis of the reports of Dr Parker (T20 pp95–109) and Dr Thacore (T12 pp46–48)
We had two additional reports from Dr Cole and Dr Kenny. There is a considerable discrepancy in the assessments of Dr Cole, who examined Mr Brand at the request of his solicitor, and Dr Kenny, who examined Mr Brand at the request of the Repatriation Commission. In cross-examination Dr Kenny was prepared to agree that he had somewhat under assessed Mr Brand, particularly in regard to the effects of his PTSD on his employment and occupation. In fact both Dr Kenny, in his report of 21 June 2000 (R1), and Dr Cole, in his report of 17 March 2000 (A1), gave a rating of nil on Table 4.4, Occupation, in the Guide to the Assessments of Rate of Pension ("GARP").
Mr Brand gave evidence as to the effects of his irritability on his employment and occupation. Although he had worked throughout the period from his discharge from the Army in 1967 until he was retrenched in December 1998 when his employer sold the business (A7), he said that he had disputes with the foreman at Firth Cleveland, the employment to which he returned after his service and in his last employment with Brimarco. He said he had worked at Firth Cleveland before he enlisted, and had not had conflicts then, but he seemed to have disputes or become irritated with his foreman when he returned to work there after his discharge from the Army. Mr Brand also said that although he was asked to become a foreman at Firth Cleveland, he refused.
The fact that Mr Brand's temperament created some problems in the workplace is confirmed by a letter from his last employer, Mr Cooper of Brimarco, dated 23 March 2000 (A7). Mr Cooper wrote:
Mr Tom Brand was employed by my Company for approximately 4 years as a vehicle builders assistant.
During this period Tom carried out his duties to the best of his ability and to the standard required by the Company.
Unfortunately Tom had some underlying problems which we were to learn about.
(1)Instructions for the job in hand not properly given would cause him to become unsettled and difficult to handle leading to arguments with foreman leading hands.
(2)Tom when working on concrete floors ladder and scaffolding suffered pains in back and legs which was of concern to him.
Tom was a genuine person with good talent and served the Company well.
We are satisfied that neither Dr Cole or Dr Kenny have assessed appropriately on Table 4.4 of GARP which relates to the effect of PTSD on Mr Brand's occupation. Both psychiatrists gave nil ratings. Mr Brand's own evidence as to the effect of his irritability in the workplace, was supported by the letter from Mr Cooper. Mr Brand said he believed that his personality difficulties were the reason he was not re-employed after Mr Cooper sold the business. The respondent had obtained a letter (R4) from Brimarco Industries. That letter says that about 17 employees remained with the company and 10 were terminated. Mr Kelly, who wrote the letter, suggested that Mr Brand was not re-employed because of a lack of qualifications. Mr Brand rejected that suggestion. Mr Kelly wrote that he could not ascertain the exact reason as the people involved in the decision whether or not Mr Brand should be re-employed, were no longer with the Company. He referred to Mr Cooper, the previous Managing Director, and Mr Plucke, the previous Administration Manager, as people who were better informed than him on this issue.
We find on the evidence of Mr Cooper and Mr Brand that Mr Brand's irritability and difficult personality post-service, did play a part in the loss of his job. We find they are symptoms of the PTSD. The description of PTSD in the relevant SoP Instrument No. 16 of 1994 does include in (d)(ii) "irritability and outbursts of anger". Accordingly we consider the appropriate rating on Table 4.4 to be 5. That applies in the following circumstances:
An employed veteran will have major difficulties at work, which may be manifested by job modification or restriction of career opportunities. The disorder may contribute to the loss of a job.
It is necessary to give a rating on each of the Tables in Chapter 4 of GARP.
As to Table 4.1 for Subjective Distress, both Dr Kenny and Dr Cole gave a rating of 6 which applies where there are:
Frequent symptoms causing moderate distress. The veteran will sometimes be unable to distract himself or herself from the distress.

We find that rating of 6 is appropriate.

As to Table 4.2 for Manifest Distress, Dr Cole gave a rating of 6 which is appropriate where:
Distress is apparent, and/or the veteran's pre-occupation with the symptoms is noticeable to astute observers or persons familiar with the veteran.

Dr Kenny gave a rating of 3. He referred only to Mr Brand's excessive drinking. He noted "His excessive drinking is obvious to those close to him, don't [sic] seem to have affected his life in other respects". We consider that Dr Cole's rating is more appropriate. We bear in mind particularly, the evidence about Mr Brand becoming distressed in the home about matters that others would not take in such a personally upsetting way. Mr Brand gave as examples of things that distress him, a cup sitting on the edge of a table, a knife with the blade up or leaving a door half open. Mr Brand said he does fix those things, but then he "ticks off" whoever is responsible and ends up "getting into strife myself". Mr Brand said he then stays "niggly for the rest of the day" (trans. p28). We find that the rating of 6 is appropriate.

As to Table 4.3 which relates to Functional Effects, Dr Cole gave a rating of nil and so did Dr Kenny. That is clearly appropriate. The note at the foot of the page explains that "functional effects" in substance means the veteran's ability to look after his own personal needs. There is no suggestion that Mr Brand is not able to do that effectively. We rate Mr Brand Nil on Table 4.3.
As to Table 4.5 Domestic Situation, both Dr Kenny and Dr Cole gave a rating of 1 on the basis that there has occasionally been some friction with family members. We consider that to be an appropriate rating.
As to Table 4.6 which looks at Social Interaction, Dr Cole gave a rating of 5 and Dr Kenny a rating of 1 explaining, "he's had occasional friction with other people at work". Having heard the evidence from Mr Brand and considering the letter from Mr Cooper we feel that Dr Kenny underestimated the effect of the friction at work and also underestimated the reduction in social interaction due to irritability and difficulty concentrating. Mr Brand said he had a reduced ability to react to people in different roles and to follow the thread and purpose of a conversation and to respond suitably to remarks. Mr Brand's self assessment on Table 4.6 was 3 which applies where there is "significant reduction in social interaction". He agreed with the history obtained by Dr Cole that he only sees about two friends and very rarely goes out. Dr Cole gave a rating of 5 which applies where there is "substantial reduction in social interaction". There was little evidence as to Mr Brand's social activities before the reduction in social activities. We consider a rating of 3 is appropriate.
As to Table 4.7 for Leisure Activities, Dr Cole gave a rating of 8 and Dr Kenny gave a rating of 1. Rating 8 applies where virtually all recreational activities have been abandoned. That seems to be overstating the position. Rating 1 applies where there is some loss of interest in activities previously enjoyed. Mr Brand gave very little evidence on this issue. However it seems to us that a rating of 3 for significant reduction in recreational activity is probably the most appropriate.
As to Table 4.8 for Current Therapy, Dr Cole gave a rating of 2 because Mr Brand does have some occasional supportive therapy given by his doctor, Dr Baxter. He said he does discuss his problems with Dr Baxter. We consider that to be more appropriate than Dr Kenny's rating of Nil for current therapy.
The introduction to Chapter 4 of GARP explains the way in which the ratings from Tables 4.1 to 4.8 are to be combined. The first step is to determine an impairment rating from each of Tables 4.1 to 4.8. We have done that as follows:
4.1      Subjective Distress 6
4.2      Manifest Distress     6
4.3      Functional Effects    0
4.4      Occupation   5
4.5      Domestic Situation 1
4.6      Social Interaction     3
4.7      Leisure Activities     3
4.8      Current Therapy      2
The second step is to find the three highest impairment ratings from Tables 4.3 to 4.8. Those are 4.4 Occupation 5, 4.6 Social Interaction 3 and 4.7 Leisure Activities 3. Step 3 requires us to add together:

the impairment rating from Table 4.1 6
the rating from Table 4.2 6
the three impairment ratings obtained at step 2 i.e. 5, 3 + 3 11
Total 23

Thus Mr Brand has an impairment rating of 23 for his PTSD.
psychoactive substance abuse or dependence

Mr De Marchi submitted that Mr Brand is entitled to a separate and additional rating under Chapter 4 for psychoactive substance abuse or dependence. He referred to the Introduction to Chapter 4 of GARP which has a section headed "substance abuse" and which states:
If substance abuse is an accepted condition in its own right, it is to be assessed by applying Tables 4.1 to 4.8.
The Tribunal however referred Mr De Marchi to the second paragraph of the Introduction to Chapter 4 which states:
Only one final rating is to be determined using this chapter for any psychiatric condition or combination of psychiatric conditions. . . .

The Tribunal also referred to earlier decisions on the issue (see Re Clarke and Repatriation Commission [2000] AATA 545 at paragraphs 38 to 41 and Re Thompson and Repatriation Commission [2000] AATA 635 at paragraphs 70 to 71).

It is clear from the reports of the psychiatrists that their assessments do cover the effects of Mr Brand's excessive alcohol consumption. The instruction in the Introduction to Chapter 4 is quite clear. There may only be one final rating on that Table for any combination of psychiatric conditions. We consider that the effect of the passage on which Mr De Marchi relied is simply to clarify that psychoactive substance abuse or dependence is assessed under Chapter 4. We are satisfied that Mr Brand is only entitled to one assessment on Chapter 4 taking into account both of the accepted conditions. That is what has been done to arrive at the rating of 23 impairment points.
assessment of pension
Looking at Table 23.1 of GARP, an impairment rating of 23 is rounded up to 25. That corresponds with lifestyle ratings of 1 or 2 in the shaded area. There was no evidence to indicate that that is not the appropriate lifestyle rating. An impairment rating of 23 with a lifestyle rating from the shaded area converts to a degree of incapacity of 40%. We consider that to be the appropriate rating in this matter.
The decision under review deciding that lumbar spondylosis and osteoarthrosis of the knees are not war-caused diseases will be affirmed. The decision on assessment will be varied to provide that Mr Brand is entitled to pension at 40% of the General Rate with effect from 11 December 1997.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Mr I.L.G. Campbell, MC, Member
Dr P.D. Fricker, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 October 2000
Date of Decision  19 December 2000
Solicitor for the Applicant         Mr D. De Marchi
For the Respondent                 Ms T. Chant, departmental advocate