Hanley and Repatriation Commission - [2000] AATA 954

DECISION AND REASONS FOR DECISION [2000] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1612

VETERANS' APPEALS DIVISION          )
           Re      RONALD HANLEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date1 November 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution thereof finds that the Applicant qualifies for the payment of pension at special rate from 28 February 1997.

[Sgd]: Dr J D Campbell
Member
CATCHWORDS
VETERANS' ENTITLEMENTS– accepted disabilities – post traumatic stress disorder – assessment – ability to work – alone test – seeking employment
Veterans' Entitlement Act 1986, sections 23, 24, 120
Conway v Repatriation Commission (1988) 9 AAR 397

REASONS FOR DECISION

Dr J D Campbell, Member

Mr R Hanley ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board dated 15 September 1988 which set aside the decision of the Repatriation Commission ("the Respondent") dated 4 August 1997 and in substitution thereof found that pension for the Applicant's war-caused disabilities be assessed at 80 per cent of the General Rate from and including 28 February 1997.
A hearing was held before the Tribunal on 2 February 2000, with the matter adjourned at day's end to enable the Respondent to seek further clinical material. The hearing was resumed on 20 July 2000. At both hearings the Applicant was represented by Mr Smith of counsel, and the Respondent was represented by Ms Breuer, an advocate from the Department of Veterans' Affairs. Oral evidence was presented to the Tribunal by Dr Hordern and Dr Lewin, both consultant psychiatrists.
The following material was placed in evidence before the Tribunal:
Documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T14, p1-65
Statement of Mr L R Downs dated 2 February 2000     Exhibit A1
Statement of Mr C T Watts dated 4 January 2000        Exhibit A2
Medical report of Dr Hordern dated 22 June 1999       Exhibit A3
Report of Ms L Good, psychologist dated 25 January 2000    Exhibit A4
Letter from Department of Veterans' Affairs dated 17 November 1997        Exhibit A5
Applicant's statement of facts and contentions dated 6 July 1999     Exhibit A6
Applicant's list of herbal medications, undated Exhibit A7
Medical report Dr Baz dated 31 January 2000   Exhibit A8
Medical report of Dr Baz dated 1 March 2000    Exhibit A9
Medical report of Dr Lewin dated 17 May 1999 Exhibit R1
Medical report of Dr Burns dated 30 June 1999 Exhibit R2
Clinical notes from Mr P Bradley re the Applicant dated 26 February 1999 Exhibit R3

Issues

The relevant issue in this matter is whether the Applicant qualifies for a pension at the special rate.
Legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 23, 24, 120(4).
Matters Agreed
The following matters are agreed between the parties:
(a)that the assessment of the Applicant's incapacity from his war caused disabilities is 80 per cent;
(b)      that the Applicant's accepted war caused disabilities are:
(i)        fractured left thumb
(ii)       solar skin damage;
(iii)      low back pain;
(iv)      post traumatic stress disorder;
(c)       that the Applicant's non-accepted disabilities are:
(i)        polyposis coli;
(ii)      hypermetronic astigmatism;
(iii)      diverticular disease of colon;
(d)that the standard of proof in this matter is that of reasonable satisfaction pursuant to section 120(4) of the Act; and
(e)that the date of effect if the Applicant is successful is 28 February 1997.

Background

The Applicant lodged a claim for an increase in disability pension on 19 May 1997 (T3). A decision was made by the Repatriation Commission on 4 August 1997 to increase the assessment of incapacity of the Applicant's war caused disabilities to 60 per cent, with the acceptance of post traumatic stress disorder as a war caused disability (T9). On 15 September 1998 the Veterans' Review Board increased the assessment of the Applicant's incapacity arising from his war caused disabilities to 80 per cent (T2).
Applicant's Evidence
The Applicant told the Tribunal that he was born in Seymour on 6 December 1943, leaving school at the age of 13½ to work in full-time employment in a retail chain store because of family circumstances. His duties were mainly clerical and shelf stocking and he became the relieving assistant manager. The Applicant stated that at the age of 17½ he moved to Melbourne where he continued to work until the age of 23, at which time he decided to enlist in the Army, because he "wanted a change."
The Applicant further stated that in 1967, after recruit training, he was allocated to Service Corps and late that year he was posted to Vietnam, where his duties were similar to his previous employment, namely loading stores onto trucks, convoys and stores work. The Applicant stated that he was located at Nhui Dat in tents about 100 metres away from the airstrip and was subject to incoming fire every four to five weeks. For the first four to five times he joined the others in their bunker, but later found it preferable to stay in his tent, because he thought the bunker would end up being his grave. Ever since these events, the Applicant stated that he has always sought to avoid similar circumstances and cannot wait to open the shower door in the shower cubicle.
The Applicant stated that he has never been under direct enemy fire and although he did his share of perimeter patrolling, the Applicant stated that there were several occasions which caused him much concern, namely:
(a)when he and his friend were nearly shot by friendly fire by another soldier; and
(b)when driving a forklift and loading a pallet of rockets which were fused but not primed, the case broke apart with the rockets spilling two to three feet to the ground;
On his return to Australia, he applied to return to Vietnam, because his job in Australia was uninteresting in comparison to his Vietnam experiences. The Applicant stated that he remained in the Army for 20 years, serving twice in Townsville, and once in each of Brisbane, Darwin, Canungra, Seymour and Puckapunyal. He was promoted to Sergeant, but requested reversion to Corporal towards the end of his service. The Applicant stated that during his service he was treated twice for nerves by army medical officers, who placed him on Valium for a three-month period on each occasion. This was due to the symptoms of being upset, vomiting, shaking and not being able to cope with his job. Further the Applicant stated that he drank heavily while overseas and during the late seventies and early eighties he was drinking in excess of a litre of Scotch, three or four days every week. The Applicant stated that he later tried to reduce his intake of alcohol and with new friends and more exercise has managed to abstain from alcohol since 1992, although he still experiences the temptation.
The Applicant stated that in April 1987, when he was no longer married, he left the Army and moved to Melbourne because of his general lack of physical fitness, his inability to complete half the efficiency tests, stress and anxiety. He recognised that while he was receiving a DFRBF pension he would need to find part-time employment. The Applicant stated that in the first 12 months after leaving the army he decided to travel and he went to Western Australia to see a friend. While he was there he looked around and settled in Rockingham. He purchased a house and found employment, and in due course found his army experiences of little assistance in the civilian world. It took time to learn a different way of doing things in relation to both paper and stores work.
In his first employment he worked on a canning line in which he experienced intermittent trouble with back pain as his day was spent standing on cement metal flooring. In this packaging plant employment the Applicant stated that he did not experience any particular difficulties apart from his back and that his relationship with his supervisors was good. In his next employment in a foundry, he found the supervisor to be difficult and often received unwarranted criticism or abuse. He objected to this, often by way of physical retaliation. The Applicant stated that in 1991 he secured a job in a hotel/motel as a result of answering an advertisement in the paper. The job initially involved cleaning, pool management and gardening for three hours per day three days a week, increasing to four to five and a half hours a day for five days a week. While the majority of his duties were light in nature, the Applicant indicated that he had problems with bending his back and that the attitude of the manager upset him, so much so that he grabbed him by the throat and pushed him up against a wall until he was restrained by two cooks. The Applicant considered at the time that he was doing a good job, but in hindsight recognises that he was having problems and did not realise that it was a nervous problem. He further stated that at no stage did he go looking for assistance to help him with his alcohol problems.
The Applicant stated that in 1992 he was found to have a malignant melanoma. The melanoma was removed from his leg requiring three to four months of rehabilitation. Because of the length of time involved in the rehabilitation the Applicant stated that his job could not be left open for him and he resigned. During his period of rehabilitation the Applicant thought about his future, and he made some decisions which did not involve work. One of these decisions involved travelling to Victoria to take a holiday and see his relatives. He stated that after seeing his relatives, he wandered around Victoria during 1993 and early 1994, spending four months in the Snowy Mountains in a tent, surfing and fishing. The Applicant stated that it was something he wanted to do, but he now feels he was seeking isolation from people.
The Applicant further stated that in 1994 he returned to Perth to his house and commenced looking for work by putting his name down in a lot of places, with the CES for two to three months, and chasing jobs from newspapers. This activity lasted some eight to 12 months, after which he decided to pack up and go back on the road, for at the time his back, hip and left thigh were aching.
The Applicant stated that in 1996 he sold his home and left Rockingham to live in a lodge at Fremantle, where he purchased a new vehicle, prior to driving to South Australia, Victoria and the Snowy Mountains on two occasions, never staying long in any one location. The Applicant further stated that it in April 1997 it was his intention to drive to Brisbane to see an old army friend. When passing through Coffs Harbour, he telephoned both the Vietnam Veterans' Association and the Department of Veterans' Affairs, and as a consequence of further conversations he was referred to Mr Bradley, a clinical psychologist, for assistance and counselling.
The Applicant stated that Mr Bradley asked him to relate his life story and after three to four visits, he was asked about alcohol, cigarettes and suicide. In relation to the latter, the Applicant stated that he had thought a lot about suicide, but would never do it. The Applicant stated that he was given a multiple choice questionnaire to complete; that he gave multiple answers, but he was instructed to answer with only one. After six to seven visits, the Applicant was informed that his counselling had concluded and that it was a satisfactory outcome.
About three to four weeks later, the Applicant said he became more confused and spoke again to the RSL advocate and the Vietnam Veterans' Association, who arranged for him to see another clinical psychologist, Ms Good. The Applicant stated that he was seen weekly by Ms Good, then fortnightly and later monthly, and that Ms Good said that she would discuss alcohol, cigarettes and suicide only if it was relevant. He stated that he still gets upset, nervous and aggressive; that he wants to "just get up and go" because he feels locked up; that he experiences shortness of breath and that he sometimes wants to kill someone. The Applicant further stated that he did not think he could work full-time, as he would get upset and retaliate, and that with the damage to his thumb he has trouble doing manual work. The Applicant stated that he was taking a number of herbal medications and that if he did not have his nervous problems he would be working, albeit part-time, and he would be better able to cope.
In response to questions asked in cross examination, the Applicant stated that:

his mother committed suicide when he was eight to ten years old, an event of which he has little memory and about which he thinks very seldom;
he left home at age 14½ after a physical confrontation with his stepmother;
the two children of his first marriage both died, the eldest at the age of two (as a result of a car accident in which his wife was driving) and the youngest at ten days (premature, respiratory difficulties); it took a long time to get over these two deaths and he is not readily upset now by recounting such events (although Dr Lewin reported that the Applicant had tears in his eyes when talking of the two deaths in his report in 1998;
he has assisted in two mercy killings. Firstly, a car crashed into a tree with the driver impaled on the steering wheel with his head split open revealing brain tissue. He was unable to remember details of the second incident, but while he occasionally has some remorse, feels that he did the right thing;
there were two incidents at primary school in which he kicked one individual and held a headlock on another for too long with both requiring hospital treatment; further there was an incident in which he assaulted his stepmother;
he enjoyed the comradeship in Vietnam, and this became more evident after his return to Australia, so much so that after a few months leave and returning to work to find people did not seem as interested in their jobs, he applied to return to Vietnam;
his perceptions of comradeship in Vietnam were akin to a family unit or group, albeit different in some respects; the Applicant considered that he had a close relationship with his father, brother and sister but not with his stepmother, and that his relationships with women had not been particularly successful;
the issues of the death of his two children and being informed that he had a melanoma were nowhere near as serious as what he went through in Vietnam. His Vietnam experiences started playing on his mind during the seventies as evidenced by the time he was operating a forklift at Randwick; he started it and could not proceed further because of intense thoughts relating to the ammunition incident in Vietnam;
he was referred to Mr Bradley by either the Vietnam Veterans' Association or the Department of Veterans' Affairs; he did compile some notes of his Vietnam experience for Ms Good and the Tribunal; he did enjoy attending a barbeque with other Vietnam veterans on a farming property at which some 25 to 30 people attended, yet some two months later when he saw Dr Delaforce he reported that he did not like crowds;
he has no long term friendships or associations; sleeps with the door open; experiences trouble with confined spaces and low levels of noise (including silence), but not with loud noise; he is happy wandering and more comfortable being on his own, as he does not have to deal with a lot of things; he is quite happy to not be in a relationship with a woman; and while familiar with the content of various psychiatric reports, he has never been provided with a list of psychiatric symptoms;
he does not have a problem with the concept of work and that he has worked for 30 years, albeit that as a civilian it has never taken up a full day, with part-time work being his preference since leaving the service, as there is less time involved and less chance of things going wrong; and he believes that he has made the most of what he does or has done, and he would be restricted if he had to work full-time; and
he would be unable to do full-time work because of his disabilities and he would be able to do some part-time work within limits, including informing the employer of his problems in relation to stress, pressure and his back problems; he denied having a current knee or ankle disability; and he has not looked for work in Coffs Harbour, but does do voluntary work for two hours every three weeks with the Blind Society.

Medical Evidence:
Dr Cross

Dr Cross, a general practitioner, in his report dated 28 June 1997 stated that the Applicant had two main impediments to his currently obtaining employment, namely:
"…
Post traumatic stress disorder. Mr Hanley informs me that he is emotionally labile, unable to handle himself appropriately in social or work situations. Mr Hanley informs me that he loses his temper easily, becomes emotional and generally has difficulty handling the work environment.
…
Intermittent low back pain – the pain is variable in intensity, in time and in the degree of disability. There are days when the pain is only present for a brief period, whereas on other days the pain can be continuous and severe. There are even days when the pain is not present." (T6, p35)

Dr Cross also commented that it was difficult for him to determine the magnitude of either disability. Dr Cross also noted the poor function of his left thumb and his skin showed numerous small keratoses on both forearms.
Dr Delaforce

Dr Delaforce, a consultant psychiatrist, in his report dated 15 July 1999, described a further incident in which the Applicant stated that he was involved in Vietnam, namely the rupture of a bladder full of fuel causing the fuel to spill over and under the forklift that he was driving and partly onto the Applicant himself, who feared an explosion. As a result of his examination, Dr Delaforce concluded that the Applicant had the following mental disorders:
(a)mild, chronic post-traumatic stress disorder;
(b)mild agoraphobia without history of panic disorder;
(c)recurrent major depressive disorder; and
(d)prior history of alcohol dependence;

In his opinion, all disorders were probably the result of Vietnam service trauma consistent with the current distress he shows when talking about that trauma and not being distressed when talking about subsequent trauma (T7).

In a further report dated 16 December 1997, Dr Delaforce stated:
"…
On table 4.1.1 I would rate him 30 points. What makes that rating all the more appropriate is the extent to which he restricts his involvement with people in general, avoids employment, and has difficulty in relationships with women. The level of subjective and objective stress noticed is very considerably reduced because of his restricted lifestyle. Although he has not finished his course of counselling I am not confident that he could ever continue to work for 8 hours or more a week.
…" (T11, p56)

Dr Baz

In her report dated 18 June 1998, Dr Baz, a consultant physician in occupational medicine, stated the following in relation to the Applicant:
"…
Work fitness assessment:
Mr Hanley's work fitness is limited by a moderately severe back condition and significant disability due to his psychiatric disability.
These disabilities have impinged on his work fitness over many years, limiting the type of work he can undertaken [sic] and his ability to maintain regular employment.
He describes difficulty coping with the diagnosis of the malignant melanoma which would be related to his psychiatric disability.
His resignation from his last job was precipitated by the need for treatment of this condition. His subsequent lack of motivation to seek other work is, in my opinion, directly related to the effects of the post-traumatic stress disorder, difficulty with interpersonal relationships, irritability, increasing social withdrawal and depression.
The low back condition physically limits the type of work he can undertake. Very heavy work and work involving bending, twisting and lifting are likely to aggravate his back condition. However, it would not prevent him from performing alternative work, and I consider the psychiatric disorder is the significant disability limiting work fitness. The thumb fracture causes him some difficulty using hand tools, but as he is right hand dominant does not significantly affect work fitness. However, his need to avoid sun exposure because of the solar skin disease, restricts his ability to undertake labouring jobs, such as road work or grounds maintenance.
Conclusion
I do not consider Mr Hanley is fit for work because of the combination of his accepted psychiatric disability, low back pain and solar skin damage.
In my opinion these disabilities render him unfit for work of 8 or more hours duration weekly.
I do not consider that other disabilities cause him to be unfit for work" (T13, p63)

In a further report dated 1 March 2000, Dr Baz stated the following opinion:
"…
Mr Hanley has provided additional information related to his work experience at this current review.
There is a clear history of difficulty dealing with interpersonal relationships in his employment subsequent to leaving the Army. While this led to the loss of a job, it did not lead to the loss of his last job, at the hotel, in 1992.
The loss of this job was specifically related to Mr Hanley's need for surgical treatment, and post-operative care, due to the malignant melanoma.
Mr Hanley then decided to leave Perth in 1992 and travel until 1994. He then attempted to find further employment both through the CES and through his own applications, between 1994 and 1996. He was unsuccessful in these applications. He again decided to travel and has not applied for jobs since 1996.
In my opinion the psychiatric information available is consistent with the difficulty obtaining employment, and his lack of interest in seeking employment, being related to the psychiatric disorder.
In my opinion Mr Hanley lacks insight into the extent to which his irritability and difficulty with interpersonal relationships has impacted on his employment opportunities. I consider that an attempt to return to work, if he were successful in finding a position, would lead to increased anxiety and irritability, friction within the workplace, and probably lead to his dismissal.
Alternative work, which affords minimal interpersonal contact and so would not cause particular difficulty due to irritability, is generally heavy work which Mr Hanley is unsuited to because of his back condition. Mr Hanley does not volunteer any specific restrictions to work capacity due to his back condition, but his description of back pain, exacerbations and restriction to daily activities is consistent with significant restriction to the type of work he could reasonably undertake.
I consider that the psychiatric condition on its own would limit Mr Hanley to work of less than 20 hours weekly. When combined with the physical restrictions due to his back condition, and to a lesser extent the left thumb, he is effectively limited to work less than 8 hours a week.
…" (Exhibit A9)

Dr Burns

In a report dated 30 June 1999 Dr Burns, a consultant physician in occupational medicine, stated the following in regard to the employment prospects of the Applicant:
"…
With respect to employment, I believe that Mr Hanley has significant retained employment potential. He received a shock in 1992 when he was diagnosed as having malignant melanoma and was forced to leave his casual job at that time. Since then he has adopted a lifestyle of an itinerant and has been travelling around. He has not looked for work. I believe that if he decided to set his mind to it that he would be capable of working. Unfortunately, he is also living in Coffs Harbour where there is high unemployment.
In conclusion, I do not believe that it is Mr Hanley's accepted disabilities which are keeping him out of the workforce. It is in fact a lifestyle decision." (Exhibit R2)

Dr Hordern

In a report dated 22 June 1999 Dr Hordern, a consultant psychologist, stated in relation to the Applicant's ability to work:
"…
I agree with Dr Martha Baz that Mr Hanley's psychiatric disability is a significant disability, in fact I think that his PTSD is his major disability and that it is the reason that he is unable/unfit for work. I do not disagree with the substance of Dr Robert Delaforce's report of 15.7.97 except that, in my opinion, (i) Mr Hanley's chronic PTSD has been severe, not mild; (ii) Mr Hanley's Agoraphobia is part of his PTSD; (iii) Mr Hanley's Major Depressive Disorder is also probably part of his PTSD (though I acknowledge that, with his mother's unexplained suicide at 33 when he was aged 8, he could have inherited a tendency to depression); and (iv) whilst Mr Hanley was evidently alcohol-dependent from the time of his service in Vietnam (9167-68) to 1991 or 1992, he did not have an excessive intake of alcohol prior to 1967." (Exhibit A3)

In verbal evidence before the Tribunal, Dr Hordern confirmed his opinion in relation to the Applicant's ability to work and in particular stated that the Applicant's decision to go wandering after his operation in 1992 and after a period of trying to find work in 1994 was quite "interpretable in the light of his restlessness and inability to settle into something steady." Further Dr Hordern stated that the Applicant's psychiatric condition was sufficiently severe to prevent him from undertaking work for more than eight hours per week. In answer to the question put to him in cross examination Dr Hordern stated that he considered the Applicant's principal symptoms to be irritability and restlessness and that he was not constantly hypervigilant (although there is no concrete evidence thereof). Dr Hordern confirmed that he believed that the Applicant experienced some very stressful incidents while he was in Vietnam and that he has shown avoidance, withdrawal from people, restlessness, anxiety, irritability and other symptomatology.
Dr Lewin
In a report dated 17 May 1999 Dr Lewin, a consultant psychiatrist, made the following observations and stated the following opinion:
"…
Mr Ronald Charles Hanley is a 55 year old divorced man living a rather isolated existence in Coffs Harbour. He lives in rented accommodation.
Mr Hanley has a serious and long term drinking problem. Clinical features include tolerance, withdrawal, craving for alcohol and continued drinking despite many serious consequences. There is little doubt that he had been addicted to this drug. He reports a period of prolonged abstinence.
His Alcohol Dependence Syndrome is considered to be in remission at present. He also reports that he has experienced intermittent anxiety and depressive symptoms over the years. These problems are somewhat better at present than they have been in the past. For example he reports that currently he only experiences intense anxiety symptoms with phobic avoidance features about a couple of times a year. He remains somewhat withdrawn, isolated and irritable. He describes outbursts of temper and marked irritability in social settings.
Mr Hanley reported a history of military service which involved a number of potential catastrophic incidents. He was not actually involved in combat. When I reviewed the serious of psychiatric problems, it appeared that the drinking problem was the most severe, but that there had been some Post Traumatic symptoms of Anxiety and intermittent depressive symptoms. I think it is reasonable to draw a connection between his psychiatric symptoms and his military service. I doubt that Mr Hanley's case satisfies diagnostic criteria for PTSD.
…
When I asked Mr Hanley about his reasons for ceasing work, he referred mainly to his reaction to a life threatening illness and his decision that it was important for him to make the most of his life. He described choosing to undertake his long planned trip.
The current psychiatric disability appears to be less severe than what is described in earlier reports and Mr Hanley told me that he felt that he had improved in response to treatment. I think it unlikely that his man would cope successfully with full time work, but I think it quite possible that he could work on a part time basis, perhaps a couple of days per week. I believe Mr Hanley could work 8-12 hours per week without developing any major recurrence of depressive and anxiety symptoms or without resumption of his drinking problem." (Exhibit R1)

In oral evidence to the Tribunal, Dr Lewin, in noting the difference in clinical history given by the Applicant to the Tribunal and that given to Mr Bradley, a clinical psychologist who saw him in consultation on five or six occasions shortly after he arrived in Coffs Harbour, stated that this could mean a number of things including a more accurate history being detailed to the Tribunal or a significant change in clinical status. Nevertheless, Dr Lewin is of the opinion that Mr Bradley had concluded that at that time that the Applicant was not in need of psychological intervention. Dr Lewin further commented that the Applicant was distressed during his consultation when talking about the death of his two children, but did not show outward signs of distress when talking about his war service. In further discussing the changing clinical situation Dr Lewin made the following observations:
"Specifically, he complained to me of anxiety symptoms, not mingling easily, isolating himself, being somewhat temperamental, nervous and easily upset, bodily symptoms of arousal. The sort of GAD, general anxiety type symptoms. He didn't volunteer depressive symptoms, such as obsessive compulsive symptoms, such as Post Traumatic Stress syndromes. Your question was how this temporal, this change over time, explained. The first, and in my view, the most likely explanation is that he has an anxiety disorder, that that's been present for a long time, and that has followed the usual clinical course of an anxiety disorder, which is to wax and wane over time. It is quite the usual thing for a generalised type of anxiety disorder to follow a waxing and waning course, an episodic course, over the last cycle. If that is the correct diagnosis, then that is likely to be an inherent or genetic condition made worse by life experiences from time to time, and we've got a list of life stressors to call upon in this gentleman's case. The second is that, perhaps, there are a number of different conditions. That's another likely thing. The third is that there has been some sort of social process which modifies and changes the clinical presentation. Clearly, if you put somebody through a treatment program that is an intensive treatment program, you change the way they think and feel, if that treatment program is successful. That's usually the aim of the treatment program. Similarly, if one subjects an individual to a series of medical examinations where they're asked generally leading questions in a highly emotionally charged atmosphere, it is not remarkable to suspect that that would change the manner in which that person presents during subsequent examinations. The process of social moulding influenced by a variety of social factors is not hard to understand in that context."

Other Evidence

In a letter to the Applicant dated 17 November 1997, the Department of Veterans' Affairs informed the Applicant that he had been granted a service pension (invalidity) as a result of all his disabilities, whether service related or not, because of a permanent incapacity to work. (Exhibit A5)
Two statements made by Mr Downs (Exhibit A1) and Mr Watts (Exhibit A2) attest to the Applicant's irritability, mood swings and sore back. They also attest to his desire to be reclusive at times, and meticulous in his approach to many activities.
Submissions: The Applicant
Counsel for the Applicant submitted that the Applicant does have an assessment of 80 per cent for incapacity arising from war caused disabilities. It was further submitted that the Applicant was granted a service pension (invalidity) on 17 November 1997 on account of all his disabilities causing permanent incapacity to work. Similarly the Applicant has had accepted as a war caused disability the psychiatric condition of post traumatic stress disorder, and other war caused disabilities of low back pain, solar skin damage and fractured left thumb.
Counsel submitted that the evidence from Drs Delaforce, Baz and Horden, with the exception of Dr Burns, is that the Applicant has an ability to work for less than eight hours per week because of the war caused psychiatric condition. Accordingly it is submitted that this collective opinion, as well as Dr Lewin's evidence that the Applicant can only work for eight to twelve hours per week on account of the war-caused psychiatric condition, means that section 24(1)(b) of the Act is satisfied.
In relation to section 24(1)(c) of the Act, Counsel submitted that there are no other significant health problems causing him particular incapacity and that there are no other external circumstances which have occurred which are not explainable as a consequence of his accepted war caused psychiatric disability. The Tribunal was also directed to the matter of Conway and Repatriation Commission (1988) 9 AAR 397, in which the Full Federal Court found that once a disability had been found to be directly war caused, it was unnecessary to consider the issue of an aggravation of a pre-existing condition.
Submissions: The Respondent
The advocate for the Respondent submitted that the Applicant did not satisfy section 24(1)(c) in that the Applicant ceased undertaking remunerative work for reasons other than incapacity arising from war-caused disabilities. In this regard it was submitted that the Applicant ceased work for reasons of a personal lifestyle change and/or a response to the diagnosis and treatment of the serious condition of malignant melanoma. In making such a contention, the Respondent relies upon the history as given by the Applicant, the opinion of Dr Burns and the statement made by the Applicant to Dr Lewin in detailing his reasons for leaving work in 1992.
Consideration and Findings
The Tribunal notes the statutory framework in this matter, which provides:
"24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)either
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods of aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

In preliminary consideration, the Tribunal observes that the Respondent devoted particular effort to questions and issues surrounding the matter of whether post traumatic stress disorder was the correct diagnosis for the Applicant's war-caused accepted disability. The Tribunal, while appreciating the Respondent's intent and the apparent inconsistent history and clinical appreciation contained within Mr Bradley's notes when compared with material and clinical appreciation in later clinical reports, notes the following:

the acceptance of the diagnosis of post traumatic stress disorder as a war caused disability by the Repatriation Commission;
the acceptance of the diagnosis of post traumatic stress disorder associated with the decision of the Department of Veterans' Affairs to grant the Applicant a service pension (invalidity) in November 1997;
the diagnosis of the Applicant's psychiatric condition as post traumatic stress disorder by both Drs Delaforce and Hordern (both consultant psychiatrists); and
the nomination by Dr Lewin that the Applicant had a series of psychiatric problems and these include alcohol dependence, some post traumatic symptoms of anxiety and intermittent depressive symptoms; Dr Lewin further believed it was reasonable to draw a connection between his psychiatric symptoms and his military service, but he doubted whether the Applicant's case satisfies the diagnostic criteria for post traumatic stress disorder; and Dr Lewin in oral evidence (contained in paragraph 28) gave his opinion as to the issues involved in the apparent inconsistent history and clinical appreciation as contained in Mr Bradley's notes and later reports from assessing doctors.

The Tribunal, having considered the material referred to in paragraph 37, the Applicant's history as given to the Tribunal and the various clinical reports contained within the evidentiary material, finds that there is no evidence, which upon proper consideration would allow the psychiatric diagnosis to be altered and therefore confirms that the Applicant's war caused psychiatric disability is properly diagnosed as post traumatic stress disorder.
The Tribunal further notes that the Applicant's war caused disabilities have been assessed as having an incapacity rating of 80 per cent. Accordingly the Tribunal finds that subsection 24(1)(a) of the Act has been satisfied.
In relation to the Applicant's work ability, Dr Baz, Dr Delaforce and Dr Hordern all believe that the Applicant is unable to undertake remunerative employment for more than eight hours per week. Dr Lewin states that the Applicant has an ability to undertake remunerative work for eight to twelve hours per week, when considering only the psychiatric impairment. Dr Burns considered the Applicant to have significant retained employment potential. In November 1997 the Department of Veterans' Affairs granted the Applicant a service pension (invalidity) as a consequence of assessing all his disabilities and finding a permanent incapacity for employment. Further the advocate for the Respondent in final submission conceded that the Applicant was unable to undertake remunerative work for more than eight hours per week because of his war caused disabilities.
Upon consideration of all the evidence, the Tribunal finds that the Applicant is unable to undertake remunerative work for more than eight hours per week because of his war-caused disabilities. The Tribunal concludes that the Applicant satisfies subsection 24(1)(b) of the Act.
In addressing the issue of the Applicant's undertaking of remunerative work pursuant to subsection 24(1)(c) and as nominated in subsection 24(2)(a) of the Act, the Tribunal notes the history as given by the Applicant that he was unable to maintain his casual work in the hotel in 1992 because of a period of rehabilitation of some three to four months that was required after an operation to remove a newly diagnosed melanoma. His position could not be left unfilled during this period. After the operation the Applicant leased his house and travelled to Victoria to see relatives and then essentially adopted a lifestyle of wandering. He spent some months in the Snowy region before returning to Western Australia in 1994 where, once re-established, he attempted to seek work. This was unsuccessful so in 1996 he relocated, moved to Fremantle, bought a new car and commenced travelling again, arriving in Coffs Harbour in early 1997.

In assessing this behaviour of the Applicant the Respondent argues that it has been the Applicant's desire to effect a lifestyle change as a consequence of the melanoma diagnosis, the operation, as well as his war caused disabilities that have prevented him from continuing to undertake remunerative work. In so stating The Respondent relies upon the opinion of Dr Burns at paragraph 25 and in part to that of Dr Lewin at paragraph 27. The Applicant, on the other hand, argues that his war-caused disabilities alone prevent him from undertaking remunerative work. In assessing these matters the Tribunal notes the evidence of the Applicant as regards his post army employment and the increasing evidence of the Applicant's irritability, aggressiveness and particular, almost obsessive behaviour. The Tribunal further notes that this behaviour pattern resulted in less than harmonious relations with his employer and certainly was observed by his associates, as described in their statements before the Tribunal. The Tribunal also takes note of the evidence that the reason for his departure from his last place of remunerative employment was not one of choice, but one arising from the need to have a surgical excision of his melanoma. Thereafter the Applicant embarked on a holiday, which over time turned into two years of wandering and living in isolated circumstances. After two years the Applicant returned, tried to re-establish himself in Western Australia and sought employment. After a period he sold up and in 1996 again commenced a roaming lifestyle, essentially ending in Coffs Harbour, where he has stayed for the last three years.
This behaviour has been addressed by the various medical consultants, with Dr Burns being of the view that the actions of the Applicant have as much to do with a desire for a lifestyle change as they do with his war-caused disabilities. Dr Lewin was in the Tribunal's view more cautious when he expressed the view that it would be understandable for an individual to reassess priorities when a diagnosis of melanoma had been made. However as with all the psychiatric opinion in this matter, he cautions that the causes of his various psychiatric conditions are variable. and that in latter years with the benefit of treatment, the conditions are obviously somewhat improved.
The Tribunal, in noting the opinion of Dr Delaforce that the Applicant's psychiatric conditions commenced immediately following his Vietnam service, with the Applicant having a major depressive disorder for weeks at a time between the 1970s and 1993 or 1994, also notes the opinion of Dr Baz and Dr Hordern which in effect conclude that the Applicant's adoption of a wandering lifestyle, and his disinterest in actively seeking a job after his melanoma was an integral part of his psychiatric condition.
The Tribunal, having considered all the views enunciated, does find that the totality of the medical evidence, and in particular the psychiatric evidence, indicates that the Applicant has had a serious psychiatric condition since the early 70s, with a plethora of symptoms and diagnoses including alcohol dependence, depression, anxiety and agoraphobia with panic attacks and post traumatic stress disorder. Further the Tribunal finds that there has been an intermittency of some of the features of depression and that with treatment there has been some amelioration of his symptomatology. In assessing the behaviour from the time of the melanoma incident, the Tribunal finds that such behaviour is an integral part of the Applicant's psychiatric condition, being behaviour which has allowed him to cope with his psychiatric condition and the stress of every day living, including the issue of being told he had a melanoma. In making such a finding, the Tribunal has considered the evidence of the Applicant, and preferred the opinions of Drs Delaforce, Hordern and Baz. As regards the opinion of Dr Lewin, the Tribunal was assisted by his evidence in better understanding the complexities of early childhood sensitising, added military stresses and later civilian stressful experiences which the Applicant has faced, and the complex interaction between these experiences and how they affect an individual. The Tribunal considered Dr Burns' opinion superficial in the light of the complex psychiatric scenario. Finally the Tribunal, having considered that there is negligible incapacity associated with the Applicant's non war-caused disabilities, concludes that the Applicant's inability to work arises from the incapacity of his war-caused disabilities.
In summary the Tribunal finds that the Applicant is by reason of incapacity from war caused disabilities alone "prevented from undertaking remunerative work that he was undertaking and is by reason thereof suffering a loss of salary or wages on his own account". Further, because the Applicant's behaviour post the 1992 melanoma incident was an integral part of his war-caused psychiatric condition, the Tribunal concludes that the Applicant's situation does not attract any of the factors nominated in subsection 24(2)(a), with his attempts to secure work in 1994-1996 being considered in light of his psychiatric condition.
Determination
The Tribunal sets aside the decision under review and in substitution thereof finds that the Applicant qualifies for the payment of pension at special rate from 28 February 1997.
I certify that the   preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing   2 February 2000
Date of Decision   1 November 2000
Counsel for the Applicant         Mr Smith
Advocate for the Respondent Ms Breuer