Burls and Repatriation Commission - [2001] AATA 654

DECISION AND REASONS FOR DECISION [2001] AATA 654

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1418

VETERANS' APPEALS DIVISION )
Re PETER EDWARD BURLS

Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date13 July 2001
PlaceMelbourne

Decision      The Tribunal varies the decision under review to provide: (i)   that Mr Burls suffers from PTSD which is a war-caused disease with effect from 13 November 1997; (ii)       that he has an impairment rating of 17 in respect of his PTSD; (iii)     that he is entitled to payment of pension at 60% of the General Rate from 13 November 1997.
  (Sgd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS - anxiety condition – whether PTSD - service in Vietnam – veteran not involved in combat operations –evidence of symptoms of anxiety on return from Vietnam – issue as to diagnosis and as to whether criteria in the definition in the relevant Statement of Principles were met – for clinical purposes four psychiatrists regarded veteran as suffering from PTSD – Tribunal in some doubt as to whether service stressor met definition of "a stressor" in the relevant SoP – veteran found to be suffering from PTSD which was war-caused

Assessment of PTSD
Whether intermediate rate pension payable

Veterans' Entitlements Act 1986 ss 23(1)(a),(b),(c), 120(1), (3), 120A(3),

Arnott v Repatriation Commission [2001] FCA 262

Budworth v Repatriation Commission [2001] FCA 317

Bushell v Repatriation Commission (1992) 109 ALR 30

Cook v Repatriation Commission [2000] FCA 1756

Deledio v Repatriation Commission (1997) 47 ALD 261

Gorton v Repatriation Commission [2001] FCA 286

Re Griffiths and Repatriation Commission [2001] AATA 429

Re Thompson and Repatriation Commission (2000) 60 ALD 605

Repatriation Commission v Cooke (1998) 52 ALD 1

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gosewinckel [1999] FCA 1273

Repatriation Commission v Walters [2001] FCA 228

Symons v Repatriation Commission [2000] FCA 534

Thompson v Repatriation Commission [2000] FCA 939

Williams v Repatriation Commission [2001] FCA 601

Statement of Principles

Instrument No. 15 of 1994

Instrument No. 225 of 1995

Instrument No. 3 of 1999

Instrument No. 54 of 1999

REASONS FOR DECISION

13 July 2001 Mrs Joan Dwyer, Senior Member

background

This is an application for review of a decision of the Repatriation Commission made 28 September 1998 (T15 pp36-40) and affirmed by the Veterans' Review Board ("the VRB") on 27 September 1999 (T2 ppvi-xix). The Repatriation Commission ("the Commission") refused Mr Burls' claim to have an anxiety condition, subsequently diagnosed as post traumatic stress disorder ("PTSD"), accepted as war-caused. The Veterans' Review Board affirmed that decision.
Mr De Marchi, a solicitor, appeared for Mr Burls. Mr Herman, an advocate with the Department of Veterans' Affairs, appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Burls gave evidence. Evidence was also given on his behalf by Dr Cole and Dr Parkin who are psychiatrists. The respondent called Mr Ducker, a military historian and Dr Kenny who is a psychiatrist. Dr Parkin gave his evidence over the telephone.
Mr Burls served in the Australian Army from 1967 to 1969. He served in Vietnam from 7 May 1968 to 4 February 1969. That service constitutes operational service under the Veterans' Entitlements Act 1986 ("the Act").
The circumstances in which a disease shall be taken to be war-caused are set out in s9 of the Act. The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provide as follows:
120. (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 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.
Note: This subsection is affected by section 120A
(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 or defence cause 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.
Note:      This subsection is affected by section120A
Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. Sub-section 120A(3) of the Act provides as follows:
(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 a determination of the Commission under subsection180A (2);
(b) that upholds the hypothesis.
As Mr Burls' claim was lodged after 1 June 1994, the provisions of s120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of PTSD. The Tribunal must apply the relevant SoP in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Burls' medical condition with the circumstances of his particular service.
As at the date of the decision of the Commission, 28 September 1998, the relevant SoP for PTSD was Instrument No. 15 of 1994 as amended by Instrument No. 225 of 1995. Instrument No. 15 of 1994, in paragraph 1 set out the factors, at least one of which had to exist (and be related to a person's relevant service), before it could be said that a reasonable hypothesis had been raised connecting PTSD with the circumstances of that service. Mr Burls relied on factor (a) "experiencing a stressor prior to the clinical onset of post traumatic stress disorder". The expression "experiencing a stressor" was defined in paragraph 4 of the SoP as meaning:
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror.
The SoP, Instrument No. 15 of 1994, also contains a lengthy definition of PTSD which is in substantially the same terms as the diagnostic criteria in DSM IV (A4). That definition is as follows:
"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:
(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.
The respondent in its Statement of Facts and Contentions contended, on the basis of Dr Kenny's opinion in his report of 30 June 2000 (R4), that Mr Burls did not suffer from PTSD. It also contended that he was unable to satisfy factor (a) in paragraph 1 of the SoP.
Instrument No. 15 of 1994 as amended was revoked and replaced by Instrument No. 3 of 1999, which was itself amended by Instrument No. 54 of 1999. Instrument No. 3 of 1999 requires that the claimant have experienced "a severe stressor" rather than simply a "stressor". It also gives examples of the sort of events which would qualify as stressors. They seem to be events of a more significant nature than those which Mr Burls experienced in Vietnam. The terminology would suggest that it would be more difficult to satisfy the test of experiencing "a severe stressor" than to show that a person experienced "a stressor".
Mr De Marchi and Mr Herman conducted the hearing on the basis that the relevant SoP was Instrument No. 15 of 1994. Applying Keely v Repatriation Commission (1999) 56 ALD 455, which was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532, Mr Burls is entitled to rely on the SoP which was in force when the matter was before the Commission if it is more beneficial for him. As I understand the more recent Federal Court decisions, they do not challenge that proposition. See Cook v Repatriation Commission [2000] FCA 1756, Repatriation Commission v Walters [2001] FCA 228, Arnott v Repatriation Commission [2001] FCA 262, Gorton v Repatriation Commission [2001] FCA 286, Thompson v Repatriation Commission [2000] FCA 939, Symons v Repatriation Commission [2000] FCA 534, Williams v Repatriation Commission [2001] FCA 601. Thus I will consider the matter on the basis that Instrument 15 of 1994 is the relevant SoP.
the evidence
There is some confusion in medical reports as to the exact circumstances of Mr Burls' service. The most relevant evidence is of course that of Mr Burls himself.
Mr Burls served in Vietnam from 7 May 1968 to 4 February 1969 in 12 Field Regiment. At all times he was a cook based at Nui Dat. In the course of his duties as a cook he went to Long Binh and perhaps another American base and a base where New Zealand forces were stationed. He spent some time at "The Horseshoe", which was a fire support base.
Mr Burls said that on occasions he participated in the activities of a gun crew. Mr Burls did not describe his experience manning guns in a way which suggested that it was a stressor. He said as to his experience as a member of a gun crew (trans. p11):
I didn't have to. It was just something we did. We used to take it and get up and when they have the call for the guns during the night and if we weren't on the next morning the cooks would take it in turns and we would go and fire the guns. It was just a fun thing that we did rather than being cooks.
But these were sort of operational engagements, the guns would have been in support of infantry battalions that were out there and patrols and so forth?---Exactly, yes. Yes.
And they were firing living ammunitions?---Yes, absolutely.
On enemy positions?---Yes.

Mr Burls said that he joined gun crews at Nui Dat, and also at the Horseshoe. He said he never accompanied the infantry or the forward artillery people on any patrols. He said he had believed that the guns were fired in response to enemy fire.

Mr Burls, in the history he gave to the psychiatrists, had referred to firing guns at the enemy and being fired upon. He no doubt believed that is what he was doing. Mr Ducker, in his historical report, wrote (R1 paragraphs 15 and 16) that the records showed that there was no enemy mortar or rocket attack at Nui Dat while Mr Burls was in Vietnam, nor on the Horseshoe base while Mr Burls' battery was based there. Mr Ducker's report was based on thorough historical research. He spoke to officers who had served with Mr Burls' battery and checked historical records and information obtained from data bases. In his report and in his evidence Mr Ducker said that it was likely that Mr Burls assisted in the gun line on "routine harassing fire tasks".
Mr Burls summarised the experience of getting out of bed and firing guns as (trans. pp22-23):
[A] pretty big surcharge of adrenalin. You sort of get really wow and it was pretty exciting because for a cook it was something totally different, you know, and I guess I enjoyed doing it at that stage.

Later he was asked if he ever felt his life was in danger when manning the guns. He replied, (trans. p52):

I don't think so. I think because you were so busy doing something. I really don't remember to be honest with you. But I would think that I was probably so carried along with what we were doing that I didn't have time to think about getting frightened or anything else like that. I guess that would be the natural thing. I really can't answer other than that.

An incident on which Mr De Marchi placed considerable weight was an incident at Fire Support Base ("FSB") Coral. Mr Burls never served at that base, but on 13 May 1968, while he was stationed at Nui Dat, two gunners of the Regiment, Scott and Sawtell were killed during an enemy assault on FSB Coral. That was six days after Mr Burls' arrival in Vietnam. It appears from the reports of Dr Cole (A1) and Dr Kenny (R4) that Mr Burls had described Scott and Sawtell to the doctors as "mates" or "friends" of his. In his evidence he said that he thought both Scott and Sawtell served with him at Holsworthy, but it seemed that he was not a close friend of either of them although they were members of his unit. He was quite vague as to whether he had gone through Kanungra with one or both of them. He seemed to have assumed they were both married, but the Army records did not support that assumption (R1 p5).
Mr Burls said he felt sorry when he heard that Scott and Sawtell had been killed. He added (trans. p19):
Terrible. Absolutely shocking. It was just really bad. The first thing was we couldn't really believe that they had been killed because we didn't even think they were supposed to be out in the bush. We thought that there was a rule that you had to be in . . ., the country seven days before you could be sent out in the bush and of course they hadn't been and it was really sort of the people in the rest of the unit were really bitter that they, you know, in such a short time they had been sent out there and killed. Couldn't believe it and then as reports sort of came and photos came back we saw exactly what had happened, you know.

He explained further about those deaths (trans. p20):

We spoke about it all the time at The Boozer and things like that but when you are 21 years old you sort of reckon you are invincible and you sort of just get on with it. They just keep telling you that it's war and it's a consequence and you have just got to live with it. It's only when you sort of get a bit older that you realise.

Mr Burls did not, in his evidence-in-chief, say that once he had learnt of the deaths, the morning after the battle, it changed his attitude to his service in Vietnam, but from their reports it seems that he had said that to Dr Parkin and Dr Cole and also to Dr Kenny (T18, A1 and R1). Mr Herman questioned him further on the topic. He then said that immediately after the battle at Coral he was transferred to 102 Battery of the Regiment which was the battery whose members were at Coral, and he was "absolutely frightened" that he might be sent there. He said (trans. p27):
I remember I sat down and wrote letters to my mum and my dad and my sister and I gave them to somebody to post for me in case anything happened to me, you know. So yes, I guess it affected me, particularly in view of the fact that the guys that had been killed and they had been a short time and [I] suddenly realised that it was no longer a holiday in Asia. This is fair dinkum and, you know, we were sort of told it's okay going to Vietnam, everything will be fine. You suddenly realise that you are really at war and you can get killed and that frightened the hell out of us and it really had an effect on us for a long time.

Mr Burls was not sent to Coral, but his evidence does show that he was frightened that he might have to serve there, and apprehensive as to what might happen if he did have to go to Coral.

Another incident on which reliance was placed in the psychiatric reports concerned a pit of bodies of dead Vietnamese. Dr Cole (A1) and Dr Kenny (R4) referred to that incident. Dr Cole seems from the history set out in his report to have understood that Mr Burls saw a photograph of a pit full of bodies, but in his conclusion he described the incident as if Mr Burls actually had "witness[ed] the bodies". Dr Kenny had obtained a history of Mr Burls seeing "heaps of bodies" at Coral in a big pit. Mr Burls made it clear at the hearing that he had not actually seen the bodies, but had seen a photograph and that at the time he had not found it troublesome. The transcript reads, at p20:
What sort of photos were you shown?---Jesus, this big pit of bodies. They get so many – so many Viet Cong and just dead people. Just a big pit dug by a bulldozer and they just piled them in. It was like a mass grave. Yes.
How did that affect you?---At the time it didn't. I mean at the time I just looked at it and thought, yes, well, they got their just desserts.
That is the Viet Cong?---Yes. I didn't feel – you couldn't feel sympathy for them, not then anyway. Maybe now you can but I certainly couldn't then. I just was glad they were dead.

does mr burls suffer from ptsd?

Mr Burls told Dr Kenny (R4) that he did not see himself as having a psychiatric condition. He told Dr Dowd (T13) that his service in Vietnam was "an adventure" and he did not experience "any real problems over there as far as I know". Mr Burls explained to the Tribunal that he thought he had not really been affected by his service until he filled in a questionnaire sent by the Department of Veterans' Affairs six or seven years ago. He said at trans. pp20-21:
It all happened about six or seven years ago I got a letter from the Veterans Affairs asking me to fill in all these – I mean when I came home from Vietnam I burnt all my medals, I burnt all my photos. I threw everything away. I haven't been to an RSL. I have never been to an ANZAC Day march or anything like that. I just don't go near them. I can't stand it. So they sent me this report to tick, you know, for medical things, you know, do you suffer from this, do you suffer from that.
It was a survey?---Yes.
A medical survey of Vietnam veterans?---Yes . . .
And did you tick that you were suffering ---?---Well, I ticked everything. I couldn't work out what was wrong. I just assumed I was getting old and this was all just a part of getting old. So I ticked all these things and my wife made me tick some things that I didn't want to answer but she said no, you have got to answer those and there was a chap that I had known in corps training and that I had been in Vietnam with in different units but at the same time and he was doing some work for the RSL helping veterans and I rang him up. I hadn't seen him for years and I rang him up and I said, "Look, what is going on". He said, "What do you mean". I said, "Well, I have got this survey". He said, "Yes". I said, "Well, I have ticked everything" and he said, "What do you mean, what have you got" and I told him everything that was happening and he said, "Well, why haven't you been to us" and I just said, "Well, I just thought I was getting – it was just normal, I didn't think there was anything unusual about this.

Dr Cole, diagnosed "chronic post traumatic stress disorder of a moderate degree" in his report dated 5 April 2000 (A1). In his opinion, Dr Cole wrote:
I don't think there is any real room for doubt about the diagnosis, although I note that his claim was not accepted on the basis that he had not experienced a stressor prior to the clinical onset of post-traumatic stress disorder. However, when one enquires closely into the circumstances of his service in Vietnam, it becomes apparent that it was anything but a sinecure. His mustering might have been that of a cook, but he shared the risks of the gunners and also helped to serve the guns, although he was not supposed to do so. He was made aware of the very real dangers of his position within a few days of his arrival and thereafter was constantly on edge, particularly when he was out in the bush. He was in fact fired upon by mortars, while the fact of witnessing the bodies of people who had been killed and seeing others who had been injured in action, helped to bring home to him the danger of his position. To my mind, therefore, he would have no difficulty in satisfying all the requirements of the Statements of Principle for a diagnosis of post-traumatic stress disorder.
The difficulty with Dr Cole's opinion is that it was in some respects based on an inaccurate history. The evidence of Mr Ducker is to the effect that Mr Burls was not "in fact fired on by mortars", although he may have believed he was. Mr Burls did not tell Dr Cole that he witnessed "the bodies of people who had been killed and . . . others who had been injured in action". He had told Dr Cole that he saw photographs of "bodies put in a big pit before burial".
I found Dr Cole not to be a helpful or a reliable witness. He seemed very confused as to the basis of the opinion he had expressed in his report. Mr Herman attempted to explore with him whether, if he had had a more accurate history, he would still have diagnosed PTSD. First Mr Herman suggested that the evidence established that Mr Burls had never been under enemy mortar or other enemy fire. Dr Cole said "I think he made it plain that he had no personal contact with the enemy" (trans. p65). That is contrary to what Dr Cole wrote, which was "he was in fact fired upon by mortars".
Similarly Dr Cole said that he did not think Mr Burls had suggested he was ever at FSB Coral, although in his report Dr Cole had written (A1 p2):
He had been in Vietnam for only two days when two of his mates were sent to 102 Battery and killed at Coral. He was sent there soon afterwards.
Further, Dr Cole said in his evidence, "he did not lead me to believe that he had witnessed these bodies . . .", which was accurate, but that does not explain why Dr Cole wrote in his concluding paragraph:
. . . the fact of witnessing the bodies of people who had been killed . . . . helped to bring home to him the danger of his position.
It is an issue central to this matter whether or not Mr Burls does suffer from PTSD. The Tribunal must determine that issue on the balance of probabilities (see Repatriation Commission v Cooke (1998) 52 ALD 1). Dr Cole had made that diagnosis and was not prepared to move from it, even when it was pointed out to him that in his report he had exaggerated some of the allegedly stressful factors in Mr Burls service. Dr Cole said that he would characterise learning of the deaths of Gunners Scott and Sawtell and seeing photographs of Viet Cong bodies in a mass grave as "confronting an event which involved death or serious injury". Dr Cole also said that he thought the whole experience of service in Vietnam when Mr Burls, "not unreasonably felt that his life was in danger, that he was under threat all the time from the enemy", was sufficient to cause his PTSD.
Dr Cole said that Mr Burls met the criteria in the definition of PTSD in paragraph 4 of SoP No. 15 of 1994. He said that a perception of danger is sufficient to constitute the stressor required for a clinical diagnosis of PTSD (trans. p67). Dr Cole said that neither seeing the photographs of enemy dead, nor learning of the deaths of Gunners Scott and Sawtell would, as isolated events, be sufficient to cause PTSD, but the situation was different when those events occurred while Mr Burls was himself in a combat zone. When Dr Cole was read a note of Mr Burls' evidence as to how he felt when he assisted as a member of guncrew, he said that would not be sufficient to account for the development of PTSD.
When Mr Herman asked Dr Cole to explain the matters which satisfied him that Mr Burls was exposed to a traumatic event to which his "response involved intense fear, helplessness or horror", Dr Cole said, "I can only say that he found it pretty frightening". Mr Herman put to Dr Cole that there was a difference between something which is pretty frightening and "intense fear, helplessness or horror", Dr Cole agreed that there are differences of degree and acknowledged that Mr Burls had not described "feelings of intense fear, helplessness or horror" (trans. p70).
In re-examination Dr Cole said that traditionally one looks at the whole clinical picture rather than specific events. He said that is what was done "before people invented post traumatic stress disorder". Dr Cole said that different people react differently to particular events. He said one has to consider a person's subjective response, and then look objectively at the circumstances, to determine if there is a relationship between the two.
Dr Cole said that if one looks at Mr Burls' symptoms one has to find an explanation for them. The symptoms he described in his report (A1 p4) were:
He only occasionally had difficulty going to sleep but woke several times a night and had night sweats about five nights a week. He threw himself around and had injured his wife who now slept in a separate bed. His sheets and pillows were yellow, while his mattress was rotten. His wife said that he called out in his sleep, but he could not recall his nightmares.
Although he often became depressed he never thought that life was not worth living. He found it hard to concentrate, lacked patience and had difficulty adapting to a new technology. His memory was not bad but he occasionally had difficulty making decisions, so much so that his son had remarked upon it. He checked and rechecked. He had a good appetite and had gained a little weight.
He had never had treatment for his nervous condition.
Mr Burls did give evidence of his difficulty in sleeping and said that on his return from Vietnam, he was restless and unsettled, but he did not see it as anything extraordinary. He also described his difficulty relating to people and said that he broke off with his girlfriend within a month from his return from service. He described how he attempted to burn all his medals and photos of Vietnam, although it seems his mother saved the medals. Mr Burls in his consultation with Dr Chen seems to have attributed those actions to disillusionment with the concept of an Australian presence in Vietnam. Dr Chen reported (T14 p34):
After returning from Vietnam, he burned the medals he got for his service in Vietnam but his mother retrieved them. He threw away all the photos he took there. He was age 20 when he went into the army and he understood they were needed to protect the country but when he came home, he found that it was different and that they were not even required to be there. He got bitter. He has customers who are Vietnamese now and he has no dislike for them.

Dr Chen diagnosed PTSD "most certainly due to his war experience in Vietnam although he does not show the full blown symptoms".

Dr Kenny obtained a similar description. He wrote that Mr Burls told him he believed "we were shafted by the Government".
Dr Parkin also gave evidence on behalf of the applicant. His report is in the T documents at T18 pp43-66. Dr Parkin was of the opinion that Mr Burls suffered from PTSD with some degree of substance abuse. He considered those conditions were secondary to Mr Burls' Vietnam experience. Dr Parkin confirmed aspects of the history given to him by Mr Burls in a telephone conversation with Mr Burls' mother. She particularly described Mr Burls' behaviour immediately after his return from Vietnam when he tried to burn his medals, although she retrieved them from the fire. She also described him having nightmares and sweating heavily at night during the period immediately after his return. Dr Parkin concluded (T18 p53)
In summary then this man has given a clear and very believable history which has been confirmed by his mother of being significantly changed since his experiences in Vietnam. I believe in particular that his reaction to the deaths in the Coral fire base and him then being posted to a forward unit and his fear about it satisfy the criteria for Criterion A of Post-traumatic Stress Disorder. In addition to that he had a near drowning experience at Canungra which I believe also satisfies these criteria.
In cross-examination Dr Parkin said that he had no recollection of the consultation with Mr Burls beyond what was in his report and the attached assessment forms. Dr Parkin did say that from re-reading the history, he had the impression that Mr Burls saw his whole time in Vietnam as being very threatening. Dr Parkin said he agreed with Dr Chen's diagnosis, which was before him, of PTSD.
Dr Kenny gave evidence on behalf of the respondent. In his report (R4) he diagnosed Mr Burls as having subsyndromal or incomplete PTSD. In his evidence he was prepared to agree when Mr De Marchi suggested to him that Mr Burls had residual symptoms of PTSD (trans. p156 of). Dr Kenny (at trans. 135-139, 157) expressed the opinions that hearing of the deaths of Gunners Scott and Sawtell, in the "overall combat zone … has a vastly different significance" to receiving the news in Australia and that Mr Burls was frightened by those deaths so as to satisfy both parts of criterion (a) of the definition of PTSD. Dr Kenny explained that being confronted with the news of the deaths in the combat area, at a time which was "adjacent" to the deaths and "reasonably adjacent in terms of location" was sufficient to satisfy the requirement of confrontation in criterion (a). Dr Kenny (at trans. 138-139) said that in his opinion having seen the horrific photos of the burial pit was less traumatic than having seen "the real thing", and that it did not have any great effect on Mr Burls. That is consistent with Mr Burls' evidence. Dr Kenny's view was that being in the setting that he perceived as dangerous was enough to trigger PTSD (157 of the transcript), but he did not diagnose Mr Burls as suffering PTSD as he was of the opinion (trans. p145) that he did not satisfy criterion (b) in that he was not suffering recurrent and intrusive recollections of the events, or otherwise persistently re-experiencing the traumatic event.
Dr Kenny did not consider that Mr Burls "persistently re-experienced" the traumatic events related to his service in Vietnam in any of the ways specified in the SoP namely: [read in via e-media]
(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
In cross-examination, Dr Kenny agreed with Mr De Marchi that the history Mr Burls had given all the psychiatrists of restless sleep, such that he had on one occasion hit his wife in his sleep, and night sweats could indicate that he was having recurrent distressing dreams of Vietnam, even though he does not remember the dreams on awakening. He also agreed that it could indicate that Mr Burls has physiological reactivity on exposure to internal cues that symbolize or resemble an aspect of the traumatic event, even though he does not have any knowledge of those internal cues.
When Mr De Marchi raised with Dr Kenny the fact that Dr Cole and Dr Parkin both felt that Mr Burls met the requirements of the PTSD definition in the SoP, Dr Kenny repeated that in his opinion some symptoms of PTSD were present "but not the full-blown syndrome". But he went on to say that if he were seeing Mr Burls as a patient he would probably say "outside of these criteria and . . . talking quite loosely" (trans p153) that Mr Burls had a mild PTSD reaction to his time in Vietnam. He said for clinical purposes, "I would regard him as having it" (trans. p154).
When Mr De Marchi read Dr Kenny Dr Parkin's notes of his conversation with Mr Burls' mother (T18 p53), Dr Kenny said he had no trouble with saying that the description given was consistent with Mr Burls having PTSD after his return from Vietnam. But he explained that it had resolved to some extent, "leaving him, in my view, with residual symptoms of post traumatic stress disorder, which I would grudgingly regard as a mild post traumatic stress disorder at this stage" (trans. p156).
consideration of evidence
While the evidence was being given I had considerable doubt as to whether Mr Burls was suffering from PTSD. That doubt arose partly because the evidence of the stressors which Mr Burls experienced in Vietnam seemed, on Mr Burl's own evidence, to fall somewhat short of the definition in paragraph 4 of Instrument 15 of 1994. I am conscious of the interpretation the Tribunal gave to the word "confront" in Re Thompson and Repatriation Commission (2000) 60 ALD 605, at p606, where a narrow interpretation was given to the word "confront" in the context of the diagnosis of PTSD. My doubts also arose because the evidence of Mr Burls did not seem to satisfy criterion (b) of the definition of PTSD in the SoP. On the other hand at the end of the evidence I had heard from all three psychiatrists that they diagnosed Mr Burls as having PTSD, even though Dr Kenny said he made the diagnosis "grudgingly", and the T documents show that Dr Chen who is also a psychiatrist had made the same diagnosis.
The Full Court of the Federal Court in Cooke held that the issue whether a disease existed was to be decided to the reasonable satisfaction of the Commission or on review the Tribunal. Mr Herman drew to the Tribunal's attention the decision of Budworth v Repatriation Commission [2001] FCA 317 (Madgwick J, 29 March 2001). It was delivered between the first and resumed days of hearing of this matter. In Budworth, Madgwick J dealt with an issue of diagnosis which was more complex than that considered by the Full Court in Cooke. His Honour held that the Tribunal had been in error in concluding on the balance of probabilities that the events and reactions described by Mr Budworth did not provide a traumatic stressor such as to allow a diagnosis of PTSD. Madgwick J held that the balance of probabilities standard applied only to the question whether or not a disease exists. He appears to have accepted a submission on behalf of Mr Budworth that once it was determined that he suffered a disease, "if any issue relating to the diagnosis of that disease is dependant on the hypothesis as to its connection with operational service, following Cooke, that must be determined on the reverse criminal standard."
Madgwick J, in Budworth, explained at paragraphs 39 and 40:
The diagnosis of a particular condition may be dependent on its supposed wartime causation, as appears to be the situation in this case. In such circumstances, where questions of such causation are themselves bound up in the question of diagnosis of a particular disease, the reverse criminal standard should be applied if on the balance of probabilities the decision-maker finds that a disease exists. The Full Court in Cooke saw difficulties of proof of such causational issues as underlying the rationale for the more liberal approach. On the respondent's submissions, it would be possible, in effect, to determine on the balance of probabilities that claimed symptoms, given a particular medical label by doctors and accordingly so labelled by the applicant, were not war-caused because causation goes to diagnosis, when had that particular label not been used by the applicant, the question whether the symptoms (assuming they were not so negligible as not to comprise an "ailment" or a "disorder" (c.f. s 5D definition, words of large import)) were war-caused would require proof to the contrary beyond reasonable doubt. So much is unlikely to have been intended by the legislature to turn upon so little.
In my opinion, what the AAT did was to refuse the claim on the basis of, as it were, a "rolled-up" issue of causation, in that the AAT found that nothing that the applicant experienced whilst on service would give rise to PTSD and therefore that he did not suffer that particular disease. The only stressors said to give rise to PTSD were alleged war-related events. In such a circumstance, where a decision-maker under the Act is actually obliged to look to the issue of causation to determine whether the diagnosis is correct, there is, as I have indicated, much to be said for the view that it must apply the reverse criminal standard.
It appears from the Federal Court decision in Cooke, that the Court there did not perceive that there would be any difficulty in applying the reasonable hypothesis standard of proof to issues of causation, and the balance of probabilities standard of proof when deciding whether a veteran has a (specified) disease. The explanation may well be that the relevant definition of anxiety condition did not incorporate issues of causation, in the way that they are incorporated in the diagnostic criteria for PTSD, which are set out in the relevant SoP.
Of course the AAT must apply Cooke rather than Budworth if there is any conflict between those two decisions, but in so far as Budworth addresses an issue which did not arise in Cooke, Budworth is binding on the Tribunal.
Madgwick J, in Budworth, said that the AAT, if it found that a veteran did not have a specified disease, was obliged to consider alternative diagnoses. However, even before the decision in Budworth I had asked Dr Cole, and on the resumed hearing I also asked Dr Kenny, whether they would consider any diagnosis other than PTSD applicable to Mr Burls. That was done in Re Griffiths and Repatriation Commission [2001] AATA 429 where the doctors changed their diagnosis to one which was easier for the veteran to establish. That did not happen in this matter. Dr Cole replied (trans. p75):
Well, we are just playing with, you know, descriptive quantities and concepts. You know, these things have no real existence. They are based on what people tell us and preferably upon what people tell us without our having to grill them about it and, you know, suggest the answers and I have, you know, in my own mind I have a clear picture of what I would describe as a post traumatic neurosis and what I used to describe as a post traumatic neurosis before DSM appeared on the scene. I also have a picture in my own mind of what I regard as a chronic anxiety state and there can be overlap between the two. But I think in this sort of jurisdiction the usual thing is that, well, if you cannot get up with a post traumatic stress disorder you can hope to get up with a chronic generalised anxiety disorder. But again we are not dealing with real entities. We are dealing simply with categories that committees have dreamt up.

He did not go on to say whether or not Mr Burls could be diagnosed as having a generalised anxiety disorder.

Dr Kenny, at trans. p149, refused the invitation to consider a diagnosis of generalised anxiety disorder or adjustment disorder. He had written in his report that he would not be prepared to introduce any other psychiatric diagnosis for Mr Burls, but preferred to say that he had some symptoms of a mild PTSD. He said that was still his opinion.
As already set out above, Dr Kenny in cross-examination slightly shifted his position so that he was prepared to say that Mr Burls had probably had PTSD after his return from Vietnam and was now left with mild residual symptoms which he would "grudgingly regard as a mild post traumatic stress disorder" (trans. p156). Dr Cole and Dr Parkin both diagnosed Mr Burls as suffering from PTSD, related to the circumstances of his service in Vietnam. Dr Chen, at T14, in a report dated 21 September 1998 also diagnosed PTSD. The only psychiatrist who did not is Dr Dowd in a report of 5 September 1998 (T13). However Dr Dowd did not give evidence and so his opinions were not tested.
Mr Herman submitted that on the evidence criterion (a) of the definition of PTSD was not satisfied. He referred to Repatriation Commission v Gosewinckel [1999] FCA 1273 where Weinberg, J at p 21 stated that "the AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP".
There is some difficulty in the Tribunal attempting to apply the diagnostic criteria in the SoP in a way inconsistent with that which is adopted by all the medical witnesses experienced in the relevant specialty. That difficulty is particularly apparent when the SoP has simply repeated the accepted medical diagnostic criteria. Those issues were discussed by Dr Cole at trans. p73-75, by Dr Parkin at trans. p85-86 and by Dr Kenny at trans. p139 and at 147-149.
Logic seems to require me to accept the evidence of four psychiatrists as to the appropriate psychiatric diagnosis for the applicant. In Bushell v Repatriation Commission (1992) 109 ALR 30 at 47 Brennan J said:
It would be an exceptional case in which it would be right for the AAT, forming its own view of competing medical theories, to hold an hypothesis of connection favouring entitlement to be unreasonable, when the hypothesis is supported by "a responsible medical practitioner, speaking within the ambit of his expertise".

It seems to me that those comments apply with even more force where the issue is one of diagnosis rather than of causation, and where there is no competing medical theory as all the psychiatrists agree; but only a competing legal submission by Mr Herman, based on the comments of Weinberg J in Gosewinckel. I find that Mr Burls does suffer from PTSD.

The next issue is whether that PTSD is war-caused. The hypothesis relied on by Mr De Marchi is that Mr Burls' PTSD is a consequence of the circumstances of his service in Vietnam, by reason of Mr Burls having "experienced a stressor" during that service.
Mr De Marchi relied on the decisions of the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as to the application of SoPs. The Full Court, at p205, approved the following passage from the reasons of Heerey J, at p275:
The particular claim … has to fit the template laid down in the SoP. …. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proven or known facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more of the facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant.
The Full Court in Deledio, at p206, set out the course which the Tribunal is to take where the reasonable hypothesis standard of proof applies and where there is a relevant SoP:
1.    The Tribunal must consider all the material which is before it and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage.
2.     If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11) … .
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.
4.   The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
In this matter the hypothesis relied on by Mr De Marchi is a reasonable hypothesis within the meaning of that term in s 120(3) of the Act. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that Mr Burls' PTSD is not war-caused. I accept Mr De Marchi's submission that I cannot be so satisfied. I have some doubts and reservations about whether the circumstances of Mr Burls' service in Vietnam satisfy factor (a) in paragraph 1 of the SoP, but I certainly cannot be satisfied beyond reasonable doubt that they do not. Thus the claim to have PTSD accepted as a war-caused disease must succeed.
The decision under review will be varied to provide that PTSD is a war-caused disease.
assessment
The Commission on 13 November 1997 accepted bilateral sensori neural hearing loss and peptic ulcer disease as war-caused and assessed Mr Burls' entitlement to pension in respect of those diseases and tinea, which had been accepted previously, at 30% of the General Rate with effect from 13 November 1997. The VRB on 22 September 1999 adjourned the assessment issue to seek further information. The respondent in its Statement of Facts and Contentions at paragraph 1.4 advised that at a resumed hearing on 15 August 2000 the VRB substituted a decision that Mr Burls was entitled to pension at 40% of the General Rate from 13 November 1997 in respect of his accepted conditions. The Tribunal was not provided with a copy of that VRB decision at the hearing, but it requested and received a copy while writing these reasons. That document, and the attached medical certificate have been marked as T22 and attached to the T documents. No review has been sought of the VRB decision on assessment, but now that PTSD is accepted, a further assessment must be done.
The Tribunal obtained very little assistance from the parties on the question of assessment. Mr De Marchi sent a letter to the Tribunal in the following terms:
Please note that further to the Statement of Case dated the 16 August 2000, Mr Burls total impairment points are now assessed at 50 points pursuant to the following table.

Condition      Table   Impairment Points
Post Traumatic Stress Disorder        4        33
Ulcer   6.1.6    5
Hearing Loss 7.1      3
Tinnitus         7.1.11 10
Tinea   11.1     5

The combined impairment rating is 48 rounded up to 50. This converts to a degree of incapacity of 90% on a lifestyle rating of 4.
However, our client's lifestyle rating is now assessed at 4.5 and this converts to a pension incapacity at 100% of the general rate.

That letter from Mr De Marchi was somewhat misleading. It appeared to refer to assessments which had been determined by the Repatriation Commission or the VRB, but the issue of acceptance of PTSD and the appropriate rating for PTSD was a matter for the Tribunal. Although Mr De Marchi states that Mr Burls' lifestyle rating "is now assessed at 4.5", he does not state who made that assessment. The VRB in its decision of 15 August 2000 used a lifestyle rating of 2. Further Mr De Marchi has asserted a 10 impairment point rating for tinnitus while the VRB gave a rating of 5. He has additionally claimed 3 impairment points for hearing loss, but these were not given by the VRB. The respondent had not addressed the issue of assessment, save that Dr Kenny assessed the mild PTSD at 8 impairment points.
The Guide to Assessment of the Rates of Veterans' Pensions ("GARP") provides for assessment of impairment for emotional and behavioural conditions in Chapter 4. The first task is to determine an impairment rating on each of Tables 4.1 to 4.8.
Table 4.1 assesses Subjective Distress. Dr Cole assessed Mr Burls at 10 on this Table referring to his nightmares and night sweats and "other nervous symptoms". Dr Parkin chose a rating of 3 which applies where there are recurring symptoms causing mild distress and the applicant can distract himself from the distress on most occasions. He noted "Remembers the events. Gets pretty cut up. Tears. [He cried talking about it]. It just goes away 10 minutes. Distracts himself." Dr Kenny chose a rating of 2. He made the point that Mr Burls did not relate his "sweatiness etcetera" to exposure to events that remind him of service. That comment was consistent with Mr Burls evidence.
Mr Burls was distressed in the witness box. He appeared distressed with the hearing process. He did not mention any problems caused by an inability to distract himself from distress in a situation other than the Tribunal hearing, either in his evidence or to any of the psychiatrists.
I find that a rating of 3 on Table 4.1 is appropriate.
The next Table is 4.2 which relates to "Manifest Distress". Dr Cole gave Mr Burls a rating of 10. Dr Parkin gave a rating of 6. He noted that the distress is sometimes apparent and that staff in the newsagency joke about Mr Burls' panicking. Dr Kenny gave a rating of 3. I find that 6 is the appropriate rating on Table 4.2. The description for that rating is:
Distress is apparent, and/or the veteran's pre-occupation with the symptoms is noticeable to astute observers or persons familiar with the veteran.
Table 4.3 looks at "Functional Effects". Dr Cole and Dr Kenny rated Mr Burls at nil. Dr Parkin gave a rating of 2 which is appropriate when there is moderate interference with function in some everyday situations, but perhaps Dr Parkin had not looked at the explanation of the sort of factors which are to be taken into account when giving a rating on Table 4.3. There is no evidence that Mr Burls has any difficulty with any of the matters set out in the explanation to Table 4.3. A rating of nil is therefore appropriate.
Table 4.4 deals with "Occupation". Dr Cole and Dr Parkin gave a rating of 1, but Dr Kenny considered a rating of nil was appropriate. Mr Burls has not taken days off work and has been able to work in spite of his PTSD, but he said he has recently reduced his working hours and has had a loss of productivity at work. I consider a rating of 1 is appropriate.
Table 4.5 deals with the "Domestic Situation". Dr Cole gave a rating of 3. He noted:
He flies off the handle very quickly and argues with his wife and children. Fortunately his wife is very placid and when he comes home looking for an argument she sends him to bed.

The ratings for one, two and three on Table 4.5 are as follows:

ONEOccasional Friction with family members.
TWOFrequent discord with family members.
THREEFrequent conflict with family members.

Mr Burls gave no evidence as to his domestic situation, but taking into account the evidence of the three psychiatrists, it seems that the problems in the home are less significant than "conflict", but that they are more than "occasional". I find there is "frequent discord" and thus 2 is the appropriate rating.
Table 4.6 looks at "Social Interaction". Dr Cole gave a rating of 5 noting:
He does not go out very much, but feels secure at the shop. He cannot bring himself to go to parties where he does not know people. He has only one or two close friends. He does not go out to dinner very often and does not entertain.

Dr Parkin gave a rating of 3 with the comment (Tdocs p62):

Barely goes out. Doesn't go to parties – last Oct 98. Has a friend he sees weekly.

I consider that the appropriate rating is, as Dr Parkin said, a rating of 3, for significant reduction in social interaction.

Table 4.7 looks at "Leisure Activities". Dr Cole gave a rating of 5 noting that there was a loss of interest in most recreational pursuits. Dr Parkin gave a rating of 3 for significant reduction in recreational activities. He noted (T docs p63):
Fly fishing – as often as he can once a fortnight. Used to go to footy – now doesn't except for twice a year. Watches T.V. Plays with cars. Dropped off caravanning. Significant reduction.

Dr Kenny gave a rating of 2 noting:

There is some loss of interest in recent years (whether due to the effects of his service is uncertain).

I consider that a rating of 3 is appropriate.

Table 4.8 looks at "Current Therapy". Mr Burls does not see and has not seen a psychologist or a psychiatrist for treatment. Dr Cole rated him at 1 saying that Mr Burls could well benefit from psychiatric treatment. Dr Parkin rated him at 2. Dr Kenny rated him at 0. I find a rating of 1 is appropriate.
Having determined an impairment rating from each of Tables 4.1 to 4.8, step two in calculating an impairment rating for a psychiatric condition requires me to find the highest three impairment ratings from Tables 4.3 to 4.8. They are:
Table 4.5  2
Table 4.6  3
Table 4.7  3

Step 3 requires that I add together the impairment rating from Table 4.1, of 3, the rating from Table 4.2, which in this case is 6, and the three impairment ratings obtained at step two, which total 8. That makes a total of 17, which was the rating suggested by Dr Parkin. In accordance with the directions at pages 90 and 91 of the GARP, I find that Mr Burls has an impairment rating of 17 for PTSD.
combined impairment rating

Mr Herman did not challenge the impairment ratings for the previously accepted conditions in Mr De Marchi's letter of 24 January 2001. I have therefore accepted them for this assessment. The ratings to be taken into account are now:
PTSD  17
Tinnitus  10
Ulcer  5
Tinea  5
Hearing Loss  3

Those impairments give a combined impairment value on Table 18 of 35. Using the lifestyle ratings in the shaded area, the higher of which is three, that gives an entitlement to pension at 60% of the general rate. Mr De Marchi, in his letter to the Registrar of the Tribunal of 24 January 2001, asserted that Mr Burls' "lifestyle rating is now assessed at 4.5". It is not clear from Mr De Marchi's letter whether that assessment was made by Mr Burls' doctor or by another person.There is no evidence which satisfies me that the lifestyle ratings in the shaded area are not appropriate in this matter.
intermediate rate pension

On my calculations Mr Burls is entitled to payment of pension at 60% of the general rate, and thus s 23 of the Act does not apply to him. There is no evidence that it has been determined, by any determining body that Mr Burls has a lifestyle rating of 4.5. If he did he would be entitled to payment of pension at 80% of the general rate from the date of that rating and would not be disentitled to payment of pension at the intermediate rate by virtue of s 23(1)(a)(i) of the Act. However, I find on the evidence that Mr Burls would still not be entitled to intermediate rate pension, even if as Mr De Marchi claimed during the hearing, the degree of his incapacity was at least 70%. That is because the evidence did not satisfy me that s 23(1)(b) or (c) applied to Mr Burls. I include my reasoning on this issue because the matter was explored with written submissions.
I do not find that Mr Burls' incapacity from war-caused disease is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. Mr Burls said that until recently he had worked very long hours, up to 80 hours a week, in the newsagency. He said he has recently cut down his hours and is now only working 15-20 hours a week. When he saw Dr Parkin on 28 April 1999 he said he had no problem at work. Dr Parkin wrote (T18 p53):
He is working full time in his own business and will continue to do this. It forms a process of occupational therapy for him.

Similarly when he saw Dr Cole on 5 April 2000, Mr Burls did not tell him about any difficulty he had working full-time in the newsagency.

Dr Kenny on 29 June 2000 obtained the following history:
He said he's really had enough of this business, enjoying it less and less. He said it's the technical changes that really worry him and more and more of the onus of the business falls on his wife.
In his evidence Mr Burls confirmed that the technological change in the business is a difficulty for him (trans. p38), and also said he no longer arrives at 4.30 a.m. to open the shop but probably arrives at work at about 8.00 a.m. and goes home at about lunchtime. Mr De Marchi pointed to Dr Cooper's opinion in his report (R3) as supporting his client's case on this issue. It is evidence which I have taken into account, but I do not find it to be decisive.
Mr Burls' PTSD may have played a part in his decision to cut back his hours, but he has had that condition on the evidence since his return from Vietnam and for many years has worked very long hours in the business. In fact Mr De Marchi put to Dr Kenny that the PTSD has been resolving and is now less severe than it was previously. I find that while the PTSD is a contributing factor to Mr Burls' reduced hours of work, his difficulty with technological change, his age, his growing tired of working such long hours, and the fact that he has other staff available now (trans. p39), are also playing a part in his recent decision to work shorter hours. Thus I find that it is not incapacity from war-caused disease "alone" that renders him incapable of undertaking remunerative work otherwise than on a part-time basis.
As to s 23(1)(c), I do not find on the evidence that Mr Burls is prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from war-caused disease alone. As stated in the preceding paragraph, I find that other factors such as difficulty with technological change, age, availability of other staff and tiredness after many years of working very long hours are also contributing to any incapacity which may exist. Further the evidence does not establish that by reason of incapacity Mr Burls is suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if he were free of incapacity. Mr Burls said that his taxation returns have not changed. "I am still earning – I am not drawing less money from the business than I was ever drawing" (trans. p47).

On the first day of hearing there were no taxation returns before the Tribunal. They were produced because I had indicated that I would expect to see them if I were considering a claim for special or intermediate rate pension. I said (trans. p49):
But those taxation returns are very easily available to him and if they prove the fact then they should be put before the Tribunal. My view will probably, I am not precluding going the other way, but I think my view would probably be that that is the usual way of proving a loss of earnings and that there is not really any good reason why it should not be proven in that way and therefore I would probably not be satisfied without seeing them.
On the resumed day of hearing some tax returns were produced to the Tribunal (A5). Mr De Marchi did not attempt to show how they demonstrate the loss of salary, wages or earnings required by s 23(1)(c). That is not surprising in view of the fact that Mr Burls wrote to Mr De Marchi, in a letter dated 1 October 2000 lodged with the Tribunal (A3(b)):
Our income from the business has not dropped, but the money that we have to spend has, as we have had to pay people to do things for us (Personal things, not business) that in the past we did ourselves.
I gave leave to the respondent to lodge a submission in respect of those tax returns, and to Mr De Marchi to respond to that submission. The respondent lodged a submission containing an analysis of the returns. The respondent submitted:
2.From the Applicant's individual tax returns, it would appear that he is paid a salary by . . .., the trustee for the Burls Family Trust, which operates the . . . Newsagency. This salary has remained unchanged at . . . per annum since the 1997/98 financial year. Accordingly, it cannot be said that the Veteran has suffered any loss of salary and wages due to a deterioration in work capacity (which the respondent submits cannot be established in any event).
3.Even if the situation of the business as a whole is considered, no deterioration in the financial viability of the business can be shown, as the table below shows:
[table deleted]
4.Sales figures for the . . . Newsagency have actually consistently improved since 1996/97, a fact incompatible with any argument that the Applicant's deterioration in health (if any) has detrimentally affected his business.
5.While the gross profit figure deteriorated between 1996/97 and 1997/98, this is a consequence of an increase in stock held and an increase in the cost of stock purchases. The respondent submits that these factors are impossible to link in any meaningful way to the health or otherwise of a business proprietor and simply reflects an increase in the cost of purchases which has not been fully passed on to customers. In any event, the deterioration in gross profit seems to have been a temporary phenomenon, . . . .
6.The change to wages paid . . . is trivial both in absolute terms and in percentage terms (wages as percentage of sales were . . . respectively in the years from 1996/97 onwards). There is no evidence that any diminution in work capacity on the part of the Applicant had to be compensated for by way of increased employment (and hence wage payments) to other staff.
7.In terms of net profit, the Applicant's business appears to have become more profitable throughout the assessment period. This again contradicts any argument that a deterioration in the Applicant's health has prejudiced his business and caused him loss. Even the loss recorded in 1997/98 can be more readily explained in terms of increased operating costs (particularly depreciation, motor vehicle expenses and repairs) than in terms of the impact (if any) of the Applicant's health.
8.Accordingly, the respondent submits that the Applicant has not suffered any loss of wages or business income as a result of the deterioration of his accepted disabilities (if any) and therefore cannot meet the requirements of subsection 23(1)(c).
[some deletions have been made for privacy reasons]
In reply Mr De Marchi wrote:
The Applicant has read the submission of the respondent on Special Rate.
The Act is framed so as to provide for compensation if the veteran's incapacity is of itself alone of such a nature as to cause him to suffer a loss.
This is a broader test than that which the Commission attempts to apply by reference to the books of accounts.
It is submitted that given the evidence of the Applicant, he clearly meets the test of loss of remuneration by reason of his accepted disabilities.
I accept the submission of the respondent and find that the loss of salary, wages or earnings required by s23(1)(c) has not been established.
I find that neither s 23(1)(a)(i), nor 23(1)(b) or 23(1)(c) applies to Mr Burls. Thus he is not entitled to payment of pension at the intermediate rate.
The decision under review will be varied to provide:
(i)that Mr Burls suffers from PTSD which is a war-caused disease with effect from 13 November 1997;
(ii)that he has an impairment rating of 17 in respect of his PTSD;
(iii)that he is entitled to payment of pension at 60% of the General Rate from 13 November 1997.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Grace A. Carney
  Personal Assistant
Date/s of Hearing  8 February and 4 April 2001
Date of Decision  13 July 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr D De Marchi
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr K Herman