Brooking and Repatriation Commission

[2006] AATA 826

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1666

VETERANS' APPEALS   DIVISION		)
Re		WAYNE BROOKING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal MS N BELL, Senior Member
DR P LYNCH, Member

Date28 September 2006 

PlaceSydney

Decision

 The decision under review is set aside and instead the Tribunal decides:

(a)       Mr Brooking suffers from post traumatic stress disorder with associated alcohol dependence and depression;

(b)       This disease is caused by his operational service;

(c)       He should be paid disability pension at the special rate; and

(d)       This decision has effect from 5 December 2000

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

Ms N Bell

Senior Member

VETRANS’ AFFAIRS – Operational Service – War Caused Incapacity – Post Traumatic Stress Disorder – Alcohol Dependence - Alcohol Abuse – Disability Pension – Special Rate – Incapacity for Work – Psychiatric Condition – Depression

Veterans’ Entitlements Act 1986 (Cth)

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr P Lynch, Member          

1.      Mr Brooking had operational service in Malaya from 18 June 1966 to 11 August 1966.  He was stationed at Terandak Barracks with A Field Battery.  Like many of his counterparts, he considers his experiences in Malaya had a profound effect on him.  In particular, he claims, having now begun to receive medical treatment, that some of those experiences caused him to develop post traumatic stress disorder which has, together with associated alcohol dependence or abuse and depression, made him incapacitated for work.  He claims disability pension at the higher “Special” rate.

2.      The Commission rejected Mr Brooking’s claim because it considered he does not suffer from post traumatic stress disorder and that he is not incapacitated for work or incapacitated by his accepted disabilities alone.

issues

3.        Mr Brooking’s application raises issues as to both entitlement and, if entitled, assessment.  Both areas are governed by the provisions of the Veterans’ Entitlements Act 1986 (the Act).

4.        In relation to Mr Brooking’s entitlement to a pension, we must first consider, on the balance of probabilities, the correct diagnosis of his condition.  We are then guided, in the application of the Act, by the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and the steps set out in the decision of Heery J at first instance in Deledio v Repatriation Commission 47 ALD 261. Following that decision, we will consider the following issues:

(a)Whether there is a hypothesis pointed to by the material before us;

(b)If so, whether there exists a Statement of Principles that is relevant to the condition as diagnosed and whether the hypothesis conforms to the template in the SoP;

(c)If so, whether the hypothesis is disproved beyond reasonable doubt.

5.        As to assessment, we must consider the requirements in sections 23 and 24 of the Act and, broadly, whether Mr Brooking is prevented, by his accepted disabilities alone, from working for more than a certain number of hours per week.

diagnosis

Mr Brooking’s Evidence

6.        There is no dispute, and we agree, that Mr Brooking suffers from a psychiatric condition.  However, Mr Brooking maintains, on the basis of the opinions of Dr Dinnen and Dr Altman, that he suffers from post traumatic stress disorder with alcohol abuse as a feature of that disorder.  The Repatriation Commission maintains, on the basis of Dr Champion’s opinion, that Mr Brooking suffers from alcohol dependence or abuse.  The Commission has also questioned Mr Brooking’s evidence about the effect on him of stressful events he experienced during service.  It considers his evidence about this to be exaggerated. We turn to Mr Brooking’s  evidence first.

7.        Mr Brooking described a number of incidents that took place during his service.  However, the most important of those were two incidents that occurred in June 1966 when he was driving a Land Rover through a village.  Mr Brooking said, in relation to the first incident, that he was driving with a warrant officer at a slow speed, approaching a camp.  Mr Brooking said he saw people on the road ahead and thought they were crossing and so he began to slow down.  He said he noticed that people in front of him were standing still and he had no option but to stop the vehicle.  After he brought the vehicle to a stop a group of villagers appeared “out of nowhere" and surrounded the car.  Mr Brooking and the warrant officer closed the vehicle's windows and the warrant officer urged Mr Brooking to "keep the vehicle moving, try and keep calm and avoid contact with them".  Mr Brooking said the villagers had completely surrounded the Land Rover and were yelling and screaming.  They had machetes, knives and large pieces of timber and they began to bang the Land Rover with their weapons and to push it, making it rock.  Mr Brooking kept inching the vehicle along as slowly as possible to try and escape.  He said he was so terrified for his life that he soiled himself.  He said that inching out of that angry mob seemed to take a lifetime.

8.        Approximately two or three weeks later a similar incident took place and Mr Brooking was amazed that it could have happened a second time.  He described a similar event and an identical response on his part.  He was, again, terrified and in fear of his life.  Again, he soiled himself.

9.        Mr Brooking said that after the first Land Rover incident the warrant officer simply said "what do you think of that?" Nothing more was said because, according to Mr Brooking, a soldier would never let on that he was scared.  Later that evening the warrant officer said to him "get over what happened with the Land Rover".  After the second incident, again with the warrant officer, a sergeant at the barracks asked him "how are you going?"  That was the only reference made to the second incident. Mr Brooking said he felt they were trying to gauge his reaction to see if he was coping after these events.  He described an expectation that all would be guarded about true feelings and that to express such feelings would be a display of weakness and regarded adversely.  Consequently, his response to the inquiry was "she's right".

10.      Mr Brooking said he did not mention the incidents to anyone, apart from one or two army friends, until he consulted his psychiatrist, Dr Altman, on a second occasion.  Even then, he said, he was reluctant and embarrassed.

11.      Mr Brooking said that in or around late 1966 or 1967 he began to experience nightmares and had difficulty sleeping.  He also began to drink more alcohol after the Land Rover incidents occurred.  He said his nightmares centred on the Land Rover incidents.  By the time Mr Brooking returned to Australia he was drinking 12 to 15 schooners a day.

12.      Mr Ian Leven was posted to the same barracks as Mr Brooking in Malaya.  He described some of the same incidents as had been described by Mr Brooking.  He said he has been in constant contact with Mr Brooking over the past 38 years and that when they meet for a beer Mr Brooking will generally bring up an incident concerning a cyclist and the Land Rover incidents.  He made the observation that Mr Brooking has been worried by the Land Rover incidents since his service.

13.      Mr Keith Hurry was also posted with Mr Brooking to the same barracks in Malaya.  Mr Hurry also described the incident concerning the cyclist; in addition he described his own experience driving a Land Rover in which, when he had to stop after colliding with a buffalo, he was surrounded by locals, threatening him.

14.      Mr Hurry said Mr Brooking had told him about his own Land Rover incidents when they were both in Malaya.  He said he was aware that those incidents were significant for Mr Brooking then and had become more so recently.

15.      After service, Mr Brooking had “itchy feet” and found it hard to settle down but he returned to his job with the Commonwealth Bank, commencing as a clerk, and continued to work for the Bank until 1991, by which time he was working as a junior manager, involved in lending and staff control.  He had moved around within the bank, doing relief work.  He said he was unable to cope with talking to people and found he would become angry or offended, lose his voice and “want to cause physical damage”.  He said he decided to leave before he did something he regretted.

16.      He decided to buy a small window cleaning business, doing shopfronts and some clubs, but he found the same problems in having to talk to people and deal with them and he just let the business run down.  Following that he trained and worked as a financial advisor.  Again, he found he could not talk to people and would “go to pieces”.

17.      Since then, he has not worked.  He spends his days flicking through the paper, playing solitaire on the computer and pottering around the backyard.  He does not read or watch television because his concentration is poor. Mr Brooking described his current symptoms as including nightmares, being a loner, being easily upset, having trouble sleeping, feeling claustrophobic, nauseated and low most of the time.

18.      Mr Brooking described a time in the 1980’s when he became “quite teary”, feeling depleted and as though nothing was worthwhile.  He took a couple of months off work, saw his General Practitioner and had an interview with a psychologist for the Bank.

Medical Evidence

19.      Dr Sundrasingham, Mr Brooking’s General Practitioner, referred him to Psychiatrist Dr Subhas in 1996.  In a report dated 3 July 1996, Dr Subhas concluded that Mr Brooking abuses alcohol and displays features of mixed anxiety and depression.  He found there was no evidence of post traumatic stress disorder and said Mr Brooking may need some help with his substance abuse.

20.      Dr Graham Altman, Consultant Psychiatrist, is Mr Brooking’s treating psychiatrist.  In a report dated 24 September 2002, Dr Altman noted a number of stressful incidents, including the Land Rover incidents.  He listed a range of symptoms in Mr Brooking including: nightmares three or four times a week which began soon after Malaya; recurrent intrusive distressing thoughts about war experiences; flashbacks every two months or so; avoidance of thoughts, situations and activities associated with his war experience; distress when exposed to reminders of war experiences; isolation and detachment from others; difficulty showing affection towards loved ones; sleep disturbance and relying on alcohol to help him sleep; poor concentration; irritability; exaggerated startle reaction; and hypervigilance.

21.      On the basis of these symptoms Dr Altman diagnosed post traumatic stress disorder.  He also diagnosed associated major depression on the basis of the symptoms of low mood; sleep disturbance and diurnal variation in mood, diminished energy, low libido, impaired concentration, low confidence and motivation, feelings of worthlessness and pessimism about the future.  In addition, Dr Altman diagnosed alcohol dependence associated with Mr Brooking's post traumatic stress disorder.  He noted Mr Brooking's alcohol consumption of approximately 12 schooners of beer per weekday and 15 schooners per day on the weekend.

22.      In a report dated 18 June 2003, Dr Altman provided a more detailed history of incidents in Malaya given to him by Mr Brooking.  Mr Brooking's description, in that history, of the Land Rover incidents is consistent with his evidence to the Tribunal.

23.      Dr Anthony Dinnen, Consultant Psychiatrist, diagnosed Mr Brooking with post traumatic stress disorder with associated features of depression and alcohol abuse or dependence.  Essentially, he agreed with Dr Altman's diagnosis.  Dr Dinnen stressed, however, that Mr Brooking’s depression and alcohol abuse or dependence are not separate diseases but rather, are part of the underlying post traumatic stress disorder. The history taken by Dr Dinnen accords with the history given by Mr Brooking to Dr Altman and to the Tribunal.

24.      Dr Dinnen noted the high level of Mr Brooking’s alcohol consumption but was not surprised that he was able to maintain his employment and found this to be typical of many people with alcohol dependence or abuse.  He also noted that Mr Brooking had felt some camaraderie and enjoyment of his time in service – that Mr Brooking was even keen to go to Vietnam.  However, he said such sentiments are not at odds with being traumatised by that same thing.

25.      Professor Richard Mattick, Psychologist, was of the opinion that while Mr Brooking does not meet the DSM-IV criteria for alcohol abuse he has met the criteria for alcohol dependence.  Professor Mattick considered that the stressful events experienced by Mr Brooking on service, the Land Rover incidents, are not “sufficient” to cause post traumatic stress disorder.  He suggested that the traumatic events anticipated by the Diagnostic and Statistical Manual of Mental disorders of the American Psychiatric Association (DSM-IV) criteria are events in the nature of those that occurred in war torn Europe or the Pacific.  He conceded, however, in cross examination, that the diagnostic criteria for post traumatic stress disorder in DSM-IV include a traumatic event such as the sudden unexpected death of a family member or close friend.  Professor Mattick also saw Mr Brooking’s long career at the bank as an indication against a diagnosis of post traumatic stress disorder.

26.      Dr Champion, Consultant Psychiatrist, was of the opinion that Mr Brooking suffers from alcohol dependence or abuse but not from any other psychiatric condition.  In particular, Dr Champion considered Mr Brooking does not suffer from post traumatic stress disorder.  He reached this view, in part, on the basis of a Writeway research report that suggests there is significant exaggeration in most of the contentions Mr Brooking makes as to the nature of stressful events.  We note that the Commission did not rely on or tender a report from Writeway research and did not dispute that the events, as described by Mr Brooking, took place.  Dr Champion also considered that Mr Brooking’s many years at the Bank suggest the absence of any psychiatric disorder, at least until he left that employment and suggested that he may have left because of the introduction of new technology.  There is no evidence of this before the Tribunal.  Dr Champion also suggested the possibility of some cognitive deficits in relation to brain damage caused by high levels of chronic alcohol intake.  He noted, however, that he had administered a clinical cognitive function test in which Mr Brooking’s results were accurate but slow.  He also noted the need for neuropsychometric testing and an MRI for this to be fully assessed.

Post Traumatic Stress Disorder

27.      The diagnostic criteria for post traumatic stress disorder are set out in DSM-IV.  The criteria are:

Diagnostic Criteria for 309.81 Post Traumatic Stress
Disorder

A

. The person has been exposed to a traumatic event in which both of the

following were present:

1. 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

2. the person's response involved intense fear, helplessness, or horror.

Note: In children, this may be expressed instead by disorganized or

agitated behaviour

B

. The traumatic event is persistently reexperienced in one (or more) of the

following ways:

1. recurrent and intrusive distressing recollections of the event, including

images, thoughts, or perceptions. Note: In young children, repetitive play

may occur in which themes or aspects of the trauma are expressed.

2. recurrent distressing dreams of the event. Note: In children, there may be

frightening dreams without recognizable content.

3. acting or feeling as if the traumatic event were recurring (includes a

sense of reliving the experience, illusions, hallucinations, and dissociative

flashback episodes, including those that occur on awakening or when

intoxicated). Note: In young children, trauma-specific reenactment may

occur.

4. intense psychological distress at exposure to internal or external cues

that symbolize or resemble an aspect of the traumatic event

5. physiological reactivity on exposure to internal or external cues that

symbolize or resemble an aspect of the traumatic event

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:

1. efforts to avoid thoughts, feelings, or conversations associated with the

trauma

2. efforts to avoid activities, places, or people that arouse recollections of

the trauma

3. inability to recall an important aspect of the trauma

4. markedly diminished interest or participation in significant activities

5. feeling of detachment or estrangement from others

6. restricted range of affect (e.g., unable to have loving feelings)

7. sense of a foreshortened future (e.g., does not expect to have a career,

marriage, children, or a normal life span)

D.

Persistent symptoms of increased arousal (not present before the trauma), as

indicated by two (or more) of the following:

1. difficulty falling or staying asleep

2. irritability or outbursts of anger

3. difficulty concentrating

4. hypervigilance

5. exaggerated startle response

E.

Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1

month.

F

. The disturbance causes clinically significant distress or impairment in social,

occupational, or other important areas of functioning.

28.      The Commission has conceded that the events, including the Land Rover incidents, occurred as claimed by Mr Brooking. However, it does not agree that the events were stressful to the degree claimed by him.  The Commission pointed to Mr Brooking’s failure to mention the incidents to anyone before seeing Dr Altman, his stated desire to return to Vietnam and his long term employment at the Bank as indicators that he was not traumatised or affected by the incidents as he now claims.

29.      We are mindful of the evidence of Dr Dinnen that it is not unusual for a person with a psychiatric condition to maintain their employment over a long period.  We also note the difficulty Mr Brooking had in doing so.  Dr Dinnen’s evidence as to the phenomenon of a traumatised person’s willingness to return to the place of the trauma was also persuasive.

30.      The failure of Mr Brooking to mention the incidents which, he said, were in his mind since their occurrence gives pause for thought.  However, we note his evidence that he has spoken of the incidents to Mr Leven and Mr Hurry and their evidence that Mr Brooking had spoken of them regularly since service.  We do not consider his failure to mention the incidents on his claim for pension to be significant and we are not surprised that he did not elaborate on them with any health professional until his second consultation with Dr Altman.  We note and accept Mr Brooking’s evidence that he has never spoken of them to his wife.

31.       We prefer the diagnoses made by Drs Dinnen and Altman.  We consider they take proper account of the effect on Mr Brooking of the incidents he experienced.  We are mindful that Dr Altman is a treating Psychiatrist and we are concerned by Dr Champion’s apparent reliance in his analysis on conclusions reached by Writeway as to the occurrence of the events described by Mr Brooking.  We consider the diagnoses made by Drs Dinnen and Altman are supported by the evidence given by Mr Brooking to the Tribunal and the histories taken by them from Mr Brooking.  When set against the diagnostic criteria for post traumatic stress disorder in DSM-IV that evidence and history support the diagnoses.

32.      The question of the effect of the incidents on Mr Brooking requires particular mention.  His evidence was that he was so terrified for his life that he soiled himself.  The matters raised by the Commission are not sufficient to displace this clear evidence.  We do not consider that a failure by Mr Brooking to mention the incidents before he began to receive treatment from a psychiatrist is an indication of anything sinister or underhand.  We accept his evidence and consider that it indicates that his response to the incidents involved intense fear, helplessness or horror in accordance with the DSM-IV diagnostic criteria.

Alcohol related Condition and Depression

33.      We consider Professor Mattick’s evidence to be of most assistance in relation to Mr Brooking’s alcohol related condition. In this respect, we note and are persuaded by, his opinion, expressed by reference to the DSM-IV diagnostic criteria for alcohol abuse and alcohol dependence, that Mr Brooking has alcohol dependence.  We also note that while all medical expert witnesses concluded that Mr Brooking suffered from an alcohol related condition, it was only Professor Mattick who distinguished which of the two conditions he suffers from.  We also note Mr Brooking’s evidence that he is currently not drinking to excess.  However, we also accept the evidence of Drs Altman and Dinnen that Mr Brooking’s alcohol related condition, is associated with his primary or underlying condition of post traumatic stress disorder.  In addition, we accept the opinion of Drs Dinnen, Altman and Champion that Mr Brooking has a depressive disorder secondary to his primary psychiatric condition.  In the opinion of Drs Dinnen and Altman, the primary condition is post traumatic stress disorder.  Dr Champion considers any depressive disorder to be secondary to Mr Brooking’s longstanding alcohol related condition.

34.      On this basis we find that Mr Brooking suffers from post traumatic stress disorder with associated alcohol dependence and depression.

hypothesis

35.      The hypothesis put forward by Mr Brooking is simply that the incidents experienced by him during his service, and in particular the Land Rover incidents, were stressful events which caused him to suffer post traumatic stress disorder.  We have already canvassed much of the material before us concerning those events and their effect on Mr Brooking.  We are satisfied there is material before us that points to the hypothesis.

sop and relevant factor – a severe stressor

36.      We have found the appropriate diagnosis of Mr Brooking’s psychiatric condition is post traumatic stress disorder with associated alcohol dependence and depression.  The Statement of Principles relevant to the condition of post traumatic stress disorder is SoP No. 3 of 1999.  The factor in that SoP that has most relevance to Mr Brooking’s circumstances and the hypothesis he has raised is factor 5(a) which requires:

“(a)     experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; …”

37.The term “experiencing a severe stressor” is defined in the SoP as meaning:

“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.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty

clearance, atrocities or abusive violence;”

38.      The Commission submitted that, while it accepts that the Land Rover incidents occurred, they did not have the effect on Mr Brooking that he contends and that he exaggerated the effect of the incidents.  This submission must go to diagnosis rather than to war causation as the definition of a severe stressor in SoP No. 3 of 1999 does not mention the effect of the stressor on the veteran.  In any event we have found, in the context of diagnosis and on the balance of probabilities, that he was affected by the stressors in the way required by the diagnostic criteria.

39.      The Commission, relying on Dr Champion’s evidence, also submitted that the Land Rover incidents were not “sufficient” to give rise to post traumatic stress disorder.  This submission must be considered in the context of the definition of “severe stressor” in the SoP.  That definition lists a number of events that would qualify as stressors, for purposes under the Act, and includes “threat of serious injury or death”.  The incidents described by Mr Brooking, including being surrounded by a group of people brandishing machetes and lumps of wood, clearly amount to such a threat.

40.      We are satisfied, therefore, that the hypothesis conforms to factor 5(a) of the SoP.  This means the hypothesis is reasonable.

disproved beyond reasonable doubt?

41.      It remains, on the question of entitlement to pension, to examine whether the hypothesis, or some element crucial to it, is disproved beyond reasonable doubt.  The matters raised by the Commission (inconsistencies in Mr Brooking’s evidence, failure to mention the incidents before his consultation with Dr Altman and failure to mention them in his claim) do not disprove the hypothesis beyond reasonable doubt.  There are no other matters to be considered in this respect.

42.      This means the reasonable hypothesis stands and Mr Brooking’s post traumatic stress disorder with associated alcohol dependence and depression is caused by his operational service.

assessment – special, intermediate or general rate?

43.      In order to qualify for a rate of pension other than the general rate, Mr Brooking must satisfy, broadly, three criteria:

a)    His incapacity must be assessed at least at 70%; and

b)    His incapacity from war caused conditions alone must be responsible for him being unable to undertake remunerative work for more than eight hours per week (for special rate) or 20 hours per week (for intermediate rate); and

c)    His war caused incapacity alone must be the cause of his loss of wages, salary or earnings that he would not be suffering if he were free from that incapacity.

44.      There is no dispute that Mr Brooking has incapacity assessed at 70% or more.  The Commission concedes, as well, that Mr Brooking is unable, because of his accepted disabilities, including his psychiatric condition, to work more than 20 hours per week.  The Commission submitted, however, that Mr Brooking’s non accepted ankle condition contributes to his inability to work for more than 20 hours per week.

45.      First, we turned to the question of whether Mr Brooking can work more than eight or 20 hours per week.

46.      Dr Dinnen, whose diagnosis we accepted, considered Mr Brooking cannot work more than eight hours per week.  He allowed for the possibility of part time work, perhaps after further treatment, but he regarded it as unlikely.  Dr Altman considered Mr Brooking to be unable to work at all.

47.      Professor Mattick, having found no psychiatric disorder other than alcohol dependence, found Mr Brooking had no incapacity for work and concluded he is simply not interested in working.  This does not sit well with Mr Brooking’s uncontroverted evidence of his attempts, after he left the Bank, to establish his window cleaning business or his work as a financial adviser.  It also runs counter to the concession made by the Commission as to his incapacity from his psychiatric condition.

48.      Dr Champion, having diagnosed alcohol dependence/abuse and depression, concluded Mr Brooking’s current work capacity is consistent with working for two to three hours per day at an activity that is not cognitively or psychologically taxing, such as window cleaning.

49.      Dr R Chase, Occupational Physician, considered Mr Brooking could not work for more than 20 hours per week but could work for more than eight hours per week.

50.      On balance, we consider Mr Brooking is, because of his incapacity, unable to work for more than eight hours per week.  In reaching this conclusion, we are mindful not only of the medical evidence, but also of Mr Brooking’s evidence.  We accept that he left his work at the Bank because of his inability to deal with people – a feature of his psychiatric condition.  He discarded his window cleaning business and his work as a financial advise for the same reason.  This later work was of short, part time duration and even that was beyond him.

51.      We now turn to the question of whether Mr Brooking’s accepted disabilities alone, and particularly his psychiatric condition, are responsible for his inability to work for more than eight hours per week.  The non accepted condition contended by the Commission as contributing to this inability is his ankle condition.

52.      Dr Peter Giblin, treating Orthopaedic Surgeon, gave a diagnosis of stiff subtalar joint following a fractured oscalsis in 1992.  He said this has resulted in “a little bit of stiffness and arthritis, but the condition is quite stable and can be expected to remain so for the foreseeable future”.  Referring only to his ankle, he assessed Mr Brooking as fit for work, given his education, training and experience.  He added that Mr Brooking’s ankle does not preclude him from undertaking reasonable full time employment of a sedentary, as opposed to a heavy labouring, nature.

53.      The Commission made much of this last qualification of Dr Giblin’s, submitting that it means the ankle contributes to Mr Brooking’s incapacity to work and so precludes him from qualification for the special or intermediate rate of pension.

54.      However, we note Mr Brooking’s evidence that, some six months after the injury to his ankle, he resumed window cleaning, having made an adjustment to the way he climbed ladders.  We also note, in any event, that Mr Brooking’s “remunerative work that he was undertaking” is not limited to window cleaning, but includes his work at the bank and his work as a financial adviser.  In addition, we note Dr Chase’s description of Mr Brooking as a highly skilled and experienced man.  On this basis, we do not consider Mr Brooking’s ankle contributes, in practical terms, to his inability to work.  His inability to do the jobs of window cleaner, financial adviser or bank officer, or jobs of that nature, arises from his psychiatric condition.

55.      We conclude, therefore, that Mr Brooking should be paid at the special rate of pension.

conclusion

56.      In conclusion, we consider that Mr Brooking suffers from post traumatic stress disorder with associated alcohol dependence and depression and that condition is due to his operational service.  As to the assessment of Mr Brooking’s rate of pension, we consider he is incapacitated at a percentage of 70% or more and, due to his war caused incapacity alone, he is unable to work for more than eight hours per week and suffers a loss of earnings exclusively as a result of this incapacity.

decision

57.The decision under review is set aside and instead the Tribunal decides:

(a)Mr Brooking suffers from post traumatic stress disorder with associated alcohol dependence and depression;

(b)This disease is caused by his operational service;

(c)He should be paid disability pension at the special rate; and

(d)This decision has effect from 5 December 2000.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ………………. [Sanjiv Shah] ………………
              Associate

Dates of Hearing  2 August 2006

Date of Decision  28 September 2006

Counsel for the Applicant         Neale Dawson
Solicitor for the Applicant          Greg Isolani

Advocate for the Respondent   Adrian Crowe