Hayes and Repatriation Commission - [2001] AATA 412

DECISION AND REASONS FOR DECISION [2001] AATA 412

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/15

VETERANS' AFFAIRS DIVISION        )
           Re      Edmund Joseph HAYES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date16 May 2001
PlaceSydney

Decision The Tribunal – 1. Varies those parts of the decision of the Repatriation Commission ("the Respondent") dated 1 December 1997 that refer to "Anxiety – Social Phobia and Generalised Anxiety Disorder" and "Psychoactive Substance Abuse involving Alcohol" by changing the diagnoses to "Generalised Anxiety Disorder with Social Phobia" and "Alcohol Abuse"; 2. Sets aside those parts of the decision of the Respondent dated 1 December 1997, as varied, and in substitution therefor determines that the conditions suffered by Edmund Joseph Hayes ("the Applicant") diagnosed as Generalised Anxiety Disorder with Social Phobia" and "Alcohol Abuse" are war-caused conditions, pursuant to s9 of the Veterans' Entitlements Act 1986 ("the Act"), and that pension is payable to the Applicant in respect of these conditions with effect on and from 3 January 1998. 3. Sets aside the decision of the Respondent dated 5 January 1998 in respect of hypertension, and in substitution therefor determines that the Applicant's condition of hypertension is war-caused, pursuant to s9 of the Act, and that pension is payable in respect of that condition with effect on and from 3 January 1998. 4. Remits the matter to the Respondent for assessment of pension payable to the Applicant in respect of all his war-caused disabilities.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement - operational service – reasonable hypothesis – applicant suffers from war-caused "generalised anxiety disorder with social phobia" and "alcohol abuse" - whether Applicant also suffers from post traumatic stress disorder – whether Applicant met the criteria for the definitions of "post traumatic stress disorder" and "experiencing a stressor" in the Statement of Principles

Budworth v Repatriation Commission [2001] FCA 317
Re Jehn and Repatriation Commission [2000] AATA 484
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Keeley (2000) 98 FCR 108

Statement of Principles - Instrument No.15 of 1994
Veterans' Entitlements Act1986 (Cth) ss 9, 120(1), 120(3), 120A

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

Edmund Joseph Hayes ("the Applicant") lodged an application for review by this Tribunal in respect of two decisions of a delegate of the Repatriation Commission ("the Respondent"). The first is that part of the decision of the Respondent dated 1 December 1997 that refused a claim in respect of conditions diagnosed as "anxiety - social phobia" and "generalised anxiety disorder", and "psychoactive substance abuse involving alcohol". The second is a review of a decision of the Respondent dated 5 January 1998 that refused a claim for hypertension. These decisions were affirmed by the Veterans' Review Board ("the VRB") on 30 November 1998.
The Respondent conceded the Applicant's claims for anxiety - social phobia, generalised anxiety disorder, alcohol psychoactive substance abuse (as alcohol dependence or alcohol abuse), and hypertension. The only issue to be determined in these proceedings is whether the Applicant suffers from a condition diagnosed as post traumatic stress disorder (PTSD), and if so, whether he satisfies the requirements of the relevant Statement of Principles.
The parties agreed that the Tribunal should undertake its review "on the papers" and that no hearing was necessary for the purpose of taking oral evidence. The parties provided written submissions.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant relied on a report of Dr Anthony Dinnen, consultant psychiatrist, dated 7 May 1999 (exhibit A). The Respondent relied on reports from Dr Lewin, consultant psychiatrist, dated 21 September 1999 and 7 July 2000 (exhibit 1), and sundry documents from Centrelink (exhibit 2).
The Applicant was born on 4 July 1927. He enlisted in the Australian Army on 11 March 1946 and was discharged on 8 April 1948. He served in Japan from August 1947 to March 1948 and thus his service constitutes operational service. Therefore, the standard of proof to be applied in determining his claims is pursuant to ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). Hence, the Tribunal is required to determine that the Applicant's claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the conditions were war-caused if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the conditions with the circumstances of the Applicant's service.
As the Applicant lodged his claims after 1 June 1994, pursuant to s120A of the Act, the Tribunal is required to apply any relevant Statements of Principles in determining this matter.
the evidence
The Applicant lodged a claim on 23 July 1997 for conditions including one described as "anxiety (substance abuse)". His local medical officer noted that the Applicant had suffered from anxiety since 1984 and that he had first consulted him in 1988. The doctor noted that the Applicant had suffered from a "nervous breakdown" that caused him to cease work on 20 September 1984. He was retrenched at that time and subsequently, at the age of 57 years, he was granted an invalid pension.
At the time of his claim, the subject of this review, the Applicant was examined by Dr Pickering, consultant psychiatrist (T6), who diagnosed Social Phobic Disorder and Generalised Anxiety Disorder. Dr Pickering noted considerable difficulty in obtaining a detailed history from the Applicant. However, on the basis of the history he obtained he considered that the Social Phobic Disorder pre-dated the Applicant's service in Japan and the Generalised Anxiety Disorder did not appear to be a problem until 1982. Dr Pickering considered it likely that the Applicant had a depressive condition in 1982. Although the Applicant was a heavy drinker Dr Pickering did not consider that he had a diagnosable alcohol-related psychiatric disorder. He noted that the Applicant's excessive drinking commenced during his service in Japan, but he did not consider it was causally related to his service. He did not consider that the Applicant's "nervous problems" were related to his service. However he noted the history that during the Applicant's service in Japan he "saw a lot of devastation and encountered a lot of people maimed by the atomic blast".
There was no suggestion that the Applicant suffered form Post Traumatic Stress Disorder ("PTSD") until a report was provided by Dr Dinnen, psychiatrist, on behalf of the Applicant, in preparation for these proceedings. In his report dated 7 May 1999 (exhibit A), Dr Dinnen noted that the Applicant -
… gave a straight forward and credible account. He told me that he had been nervous since he came back from Japan. He said he had a bit of traumatic experience and was drinking and smoking from then on. He said he gets nervy all the time. He shakes. He cries at the drop of a hat and finds this "very very bloody embarrassing". He drinks about four or five schooners of beer a day, sometimes more and sometimes less.
The patient told me he had a nervous breakdown in 1982. He said it happened without warning. He was in Coffs Harbour and was working at an Engineering firm as a spray painter. "All of a sudden I went to pieces". He was crying, and was off work for one month. He wasn't given medication at the time, but after an attempt to return to work for 1½ days was off work for a further 6 to 8 weeks. He was then retrenched with 34 others. He saw a psychiatrist to (sic) Coffs Harbour, Dr Delaforest (sic) and also saw another psychiatrist, Dr Petersen, at the Jetty (at this point the patient was quite unsettled and emotional). Dr Petersen arranged straight away to put him on a pension and he saw various doctors about this, and remained on disability pension until he was 65 in 1994 when he took the aged pension.
The patient said the breakdown was attributed to excessive drinking and smoking, but he is still not aware of any particular causes for the condition to have developed in that way.
The patient said he had a heart attack in September 1982 and has treatment for three blockages of the heart.
The patient said his marriage broke down in 1986. He then boarded with a family member in Toongabbie until he moved to Nelson Bay 18 months ago.
Service History: The patient told me that he had a good life in the services, but he believes he was affected by what he saw when he was with the occupation forces in Japan. He saw a lot of devastation at Hiroshima. This has "played on me mind." He said he saw people burnt with their eyes, with their limbs missing, blistered as a result of the atomic bomb.
The patient said he was in charge of despatch in the laundry in Japan, and was also involved with munitions. He spent half his time in the infantry and half the time in the laundry….
The patient said that when he drank in the Army it "used to kill the nerves". He said that everyone drank and it was readily available, beer costing 9 pence a bottle. They would drink 80 to 90 bottles in a night between eight to ten of them, together with the "passing trade". He said when he returned from service he was used to drinking and continued because he enjoyed it.
At the end of the interview I asked the patient to tell me more of what he saw in Japan. He said three or four of them would go in to Hiroshima or Kure or Hiro and on a couple of occasions he went to Tokyo. He said they would go into houses and would see in passing someone lying in bed with no hair and a scarred face. They would go into houses when they were fraternising with the locals, for example if one of the boys had a Japanese girlfriend. Quite often they would have someone to interpret and they would speak to them about their problems. He recalled that as many as every second or third house in Hiroshima had someone living there who had been injured by the bomb blast.
The patient told me he has dreams about Japan but not as much as he used to do.
Dr Dinnen agreed with Dr Pickering that it was very difficult to obtain a clear history from the Applicant. It appears, however, that Dr Dinnen was able to obtain a fuller history than that provided to Dr Pickering. Dr Dinnen considered that the Applicant's recollection of the scenes witnessed by him in Japan were likely to be linked with the development of an anxiety state some 20 years ago. Dr Dinnen also said:
If he was suffering from a degree of anxiety, to some extent like that of a traumatic stress disorder, as a result of witnessing the devastation in Japan, and was using alcohol to dull his senses, then it may well be that the generalised anxiety disorder which emerged in the early 1980s was a reflection of that situation… The patient himself does not describe symptoms of anxiety per se during that time, but his recollection of his emotional responses is much more in tune with the development of a suppressed form of post traumatic stress disorder. Elements of such a condition are evident even today. (Tribunal's emphasis).
Dr Dinnen considered that the Applicant's condition –
… may be related to a form of post traumatic stress disorder, of which there are still some features evident, and the generalised anxiety disorder which has been present since the early 1980s.
The Applicant was also examined by Dr Lewin, psychiatrist, on behalf of the Respondent. The history reported by Dr Lewin was consistent with that obtained by Dr Dinnen and Dr Pickering, including the Applicant's pre-service history, that caused Dr Lewin to diagnose a pre-existing anxiety disorder. Dr Lewin considered that the Applicant's pre-existing anxiety disorder was worsened by the circumstances of his service in Japan.
Dr Lewin provided a supplementary report dated 7 July 2000 (exhibit 1), specifically related to the question of PTSD. He was referred to the Statement of Principles for Post Traumatic Stress Disorder Instrument No.3 of 1999 that referred to a person having experienced "a severe stressor" prior to either the onset or the worsening of a Post Traumatic Stress Disorder. He considered that the history that the Applicant reported to him did not satisfy that definition.
The Tribunal notes that the Applicant is able to rely on his accrued rights to have this matter determined using the Statement of Principles relevant at the time the primary decision was made: Repatriation Commission v Keeley (2000) 98 FCR 108. Thus the relevant Statement of Principles is Instrument No.15 of 1994, that refers merely to "experiencing a stressor" viz.
… 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; …
The Tribunal notes the documents relating to the Applicant's claim for invalid pension in 1984 (exhibit 2). At that time he was diagnosed as having an acute anxiety state. The condition had been in existence for some two years at that stage. There was no reference in those documents of any history relating to the Applicant's service in Japan.
submissions
It was submitted for the Applicant that, applying the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307 the standard of proof in determining a diagnosis was that of reasonable satisfaction. The Respondent agreed with the Applicant's submissions on this.
It was submitted for the Applicant that the Tribunal must decide whether the Applicant suffers from PTSD and if so, whether the disease was contributed to by service. The Applicant relied on the report of Dr Dinnen (exhibit A) as evidence that he suffered from PTSD. It was also submitted that Dr Lewin does not state that the Applicant does not suffer from PTSD. The Tribunal should find on the balance of probabilities that the Applicant does suffer from PTSD.
It was submitted for the Applicant that he satisfies factor 4 of the Statement of Principles No 16 of 1994. The Tribunal notes that as this is a matter to which s120(1) and (3) of the Act applies, the relevant Statement of Principles for Post Traumatic Stress Disorder is Instrument No.15 of 1994. Factor 4 is the same in Instrument Nos.15 and 16 of 1994.
With respect to the definition of post traumatic stress disorder it was submitted for the Applicant that his experiences in Hiroshima meant that he was confronted with the serious injuries and loss of physical integrity of atomic bomb victims, thus satisfying factor 4(a)(i). It was submitted that this experience had a profound emotional effect on him, causing immense distress, thus satisfying factor 4(a)(ii). The reports of Dr Dinnen and Dr Lewin were cited as descriptions of the sights seen by the Applicant.
It was submitted for the Respondent that the diagnosis of the claimed condition is Generalised Anxiety Disorder with Social Phobia, and Alcohol Dependence, and that these conditions are attributable to his operational service. The Respondent cited the Tribunal's decision Re Jehn and Repatriation Commission [2000] AATA 484 as authority for the proposition that the Tribunal must be reasonably satisfied that a disease or injury exists before proceeding to apply the reasonable hypothesis test provided in ss120(1) and (3) of the Act, and that the Applicant must meet all six of the criteria specified in the Statement of Principles as a definition of PTSD.
It was submitted for the Respondent that the Applicant does not satisfy the definition of experiencing a stressor, nor does he satisfy the criteria in (a)(i) of the definition of post traumatic stress disorder of Instrument No.15 of 1994, viz.
"experiencing a stressor" means the following (derived from DSM-IV):
(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;
"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 that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(ii)the person's response involved intense fear, helplessness, or horror; and
It was conceded for the Respondent that the Applicant met criteria (b), (c), (d), (e) and (f) of the definition of post traumatic stress disorder under factor 4 in Instrument No.15 of 1994. It was accepted that, as detailed in the history described by Dr Lewin, the Applicant had seen and met with persons in Hiroshima who had suffered from serious injury as a result of the atomic bomb dropped on Hiroshima. It was also conceded that the Applicant had satisfied the requirement in the Statement of Principles for reacting with "intense horror".
However, it was submitted for the Respondent that the Applicant does not meet paragraph 4(a) in the definition of experiencing a stressor or paragraph 4(a)(i) in the definition of post traumatic stress disorder, in the relevant Statement of Principles. The Respondent relied on the history described by Dr Lewin to reject the proposition that the Applicant had knowledge of the victims of the bombing facing a "long and horrifying" death. In his report dated 21 September 1999 (exhibit 1) Dr Lewin noted the Applicant's history that he "did not give these things a second thought", that is, the dangers of radiation. He has taken an interest in this only more recently and this has been "a constant source of alarm".
It was conceded for the Respondent that Dr Lewin raised the "possibility" that the Applicant could also suffer from PTSD in addition to Generalised Anxiety Disorder, although he noted in his report dated 7 July 2000 (exhibit 2) that "clinical features of that diagnosis were not manifest during the examination I conducted". It was submitted that, given the somewhat guarded conclusions of Dr Dinnen about the diagnosis of PTSD and Dr Lewin's opinion that such a diagnosis was only a possibility, it could not be concluded that it is more likely than not that he suffered from PTSD.
It was submitted for the Respondent that the Applicant's experience while serving in Japan of seeing and meeting people who had been seriously injured in or around the Hiroshima area did not connect the Applicant with the event that caused the serious injury or threat to their physical integrity, in that there was no physical or temporal connection. The fact that the Applicant saw or met seriously injured persons in the Hiroshima area was not enough to connect him to the stressor and therefore he could not satisfy the definition of experiencing a stressor. It was also submitted that the same argument applies in not meeting the definition of post traumatic stress disorder in criteria 4(a)(i). Similarly, it was submitted that the term confronted with in the same definition must be interpreted in the context of the Applicant having some physical, geographical or proximate temporal relationship with the event in question.

In summary, it was submitted for the Respondent that the Applicant can only satisfy the definition of stressful event in the Statement of Principles for Generalised Anxiety Disorder; he does not meet the definition of experiencing a stressor for the purpose of the Post Traumatic Stress Disorder Statement of Principles.
the case law
The parties have relied on the decision of the Full Federal Court in Cooke (supra) and Tribunal decisions that have interpreted Cooke as requiring the Tribunal in reasonable hypothesis cases to consider the issue of the diagnosis of the claimed condition to its reasonable satisfaction. After the parties' submissions in this matter were received the Federal Court decision in Budworth v Repatriation Commission [2001] FCA 317 interpreted the Full Court in Cooke and came to a conclusion different from the Tribunal's previous interpretation. The parties were then invited to make further submissions on this issue but both declined.
Madgwick J in Budworth (supra) said, at paras. 37-41:
37.The definition in s 5D of the Act of "disease" refers to any physical or mental ailment, disorder, defect or morbid condition, and it is clear that the first question that the AAT needs to ask is whether or not the applicant suffers from a disease. It is trite that the Act is beneficial legislation and should be construed accordingly. When the threshold requirement is that the veteran be suffering from a disease, this should not be interpreted to mean necessarily a disease having a particular medical description which may be claimed to exist. Claimant veterans are not necessarily insightful, articulate, legally advised, medically advised or, in either respect, well advised. Veterans are not to be defeated because they or their advisors inadequately or incorrectly describe their diseases, whether or not they or their advisors resort to medical labels. A claimant whose advisors offer one diagnosis is not to be defeated if the decision-maker prefers another, provided that there is a disease and there is some reasonable basis for thinking that it is war-caused. No doubt it is with considerations such as these in mind that ss 14, 17, 19, 32 and 119 take the form they do.
38.I do not, of course, mean that commonsense should be abandoned in this matter. If a veteran claims to have a "nervous" condition and a particular psychiatric diagnosis is offered by his/her advisors, neither the Secretary nor the decision-maker need be concerned to investigate tonsillitis. But, in a case like the present, the inquiry should be: does this claimant have any emotional or mental disorder or condition that would fall within the broad range of maladies apt to be comprehended by the lay description employed in the claim form and/or of which the particular diagnosis, then or later offered, is an example.
39.I agree with the submissions of the applicant that Cooke does not stand as authority to the contrary. Whether a matter is one of diagnosis or one of causation will not necessarily be capable of resolution by a "bright line" test. 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 legislation to turn upon so little.
40.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.
41.In this case, it appears that the applicant has some sort of mental disorder and, on a fair reading of its reasons, this was accepted by the AAT. The AAT acknowledged that there was medical evidence that suggested that the applicant'' psychological symptoms could be explained by some category of psychological illness other than PTSD. The AAT also stated, in its concluding remarks: "[h]owever his psychological condition should be diagnosed, explained or categorised it cannot, on any view, be correctly described as PTSD"" The reasoning of the AAT, as I understand it, is that although the applicant may, and even probably appears to, suffer some type of mental ailment, when regard is had to his actual experiences during his Vietnam service, there is no evidence of a sufficiently intense subjective reaction of fear or of an extremely traumatic stressor to enable the diagnosis of PTSD, the disease his advisors claimed that he had. This clearly goes to issues of causation and should have been determined on the reverse criminal standard. (Tribunal's emphasis)

consideration of the evidence and findings of fact

Presumably the Applicant was seeking to have a condition of PTSD accepted as being war-caused in addition to the concession made by the Respondent that the conditions of Generalised Anxiety Disorder with Social Phobia was war-caused.
Dr Dinnen noted that the Applicant did not describe symptoms of anxiety per se during his service in Japan, "but his recollection of his emotional responses is much more in tune with the development of a suppressed form of post traumatic stress disorder. Elements of such a condition are evident even today". Dr Dinnen then concluded –
There is a reasonable hypothesis that this condition may be related to a form of post traumatic stress disorder, of which there are still some features evident, and the generalised anxiety disorder which has been present since the early 1980's.
Leaving aside Dr Dinnen's reference to "reasonable hypothesis" which is a consideration for the Tribunal to make and not one for a person providing expert medical evidence, the Tribunal notes Dr Dinnen's reference to "a form" of PTSD and that "some features" are still evident. The Tribunal interprets this to mean that the condition now present had its roots in "a form of" PTSD, that only some features of that condition are still evident, and that the condition Generalised Anxiety Disorder has been present since the early 1980s. This interpretation is consistent with the Generalised Anxiety Disorder Statement of Principles that requires that "excessive anxiety and worry does not occur exclusively during PTSD". If excessive anxiety and worry occurred exclusively during PTSD episodes then the Statement of Principles for Post Traumatic Stress Disorder would be applied. The Tribunal understands that both Generalised Anxiety Disorder and PTSD are anxiety disorders. Moreover, there is no suggestion that some features of the Applicant's disability are excluded by the diagnosis accepted by the Respondent. The Tribunal also notes that until Dr Dinnen examined the Applicant and provided his report dated 7 May 1999 (exhibit A) there was no suggestion that the diagnosis of the Applicant's claimed condition was PTSD. The Tribunal finds that Dr Dinnen is doing no more than indicating that the Applicant's condition still has features of PTSD present. The Tribunal finds that this is consistent with a diagnosis of Generalised Anxiety Disorder to meet the claimed condition.
However, in the alternative, if Dr Dinnen was asserting that the Applicant currently suffers from a condition that can now be diagnosed as PTSD, then, applying the reverse criminal standard of proof to the issue of diagnosis, the Tribunal must consider whether the raised facts meet the relevant Statement of Principles.
In applying the raised facts to the definition in the Statement of Principles regarding "experiencing a stressor", the Tribunal finds that the "event" witnessed by the Applicant was seeing the victims of the atomic bomb blast with their physical disfiguration. However, the event of seeing those victims was not a threat to their life or physical integrity per se. The event that threatened their life or physical integrity had occurred some years previously when the atomic bomb was dropped on Hiroshima. Similarly, the same argument applies in relation to the definition of "post-traumatic stress disorder" in the Statement of Principles. The Tribunal agrees with the Respondent's submissions that the Applicant fails to meet factor 1(a) of the Statement of Principles for Post Traumatic Stress Disorder and therefore the Tribunal finds that no reasonable hypothesis has been raised in respect of PTSD.
While the Tribunal has taken into account and applied the case law of Cooke (supra) and Budworth (supra), this matter is one that turns on the interpretation of the facts and/or the application of the Statement of Principles.
It is not clear what motivated the Applicant's representative to pursue the issue of PTSD in this case when the Respondent had conceded, and properly so in the view of the Tribunal, that the Applicant suffers from Generalised Anxiety Disorder with Social Phobia, and Alcohol Dependence and that these conditions are war-caused. The Applicant stands to gain nothing more by pursuing the diagnosis of PTSD. There are no psychiatric symptoms suffered by the Applicant that would be excluded from assessment by virtue of the diagnoses already accepted by the Respondent. Moreover, the Applicant's case was entirely dependent on the evidence of Dr Dinnen that was somewhat equivocal about the currency of the Applicant's PTSD as a diagnosable entity.
The Tribunal finds that the Applicant does not now suffer from PTSD, but in the alternative, if he does suffer from PTSD this condition is not war-caused. The Tribunal also finds that all the Applicant's psychological symptoms are attributable to his Generalised Anxiety State with Social Phobia and his Alcohol Abuse.
The Tribunal determines that those parts of the decision of the Respondent dated 1 December 1997 in respect of "anxiety – social phobia", "generalised anxiety disorder" and "psychoactive substance abuse involving alcohol" are varied so as to read "generalised anxiety disorder with social phobia", and "alcohol abuse". Noting the concession made by the Respondent, the Tribunal determines that those conditions are war caused pursuant to section 9 of the Act.
Noting the concession made by the Respondent in respect of hypertension, the Tribunal will also set aside the decision of the Respondent dated 5 January 1998 and determine that the Applicant's hypertension is war-caused pursuant to section 9 of the Act.
The applications to the VRB in respect of both decisions were out of time, and therefore the earliest date of effect for payment of pension in respect of all these conditions is 3 January 1998, being a date not earlier than six months before the Applicant lodged his applications for review by the VRB.
The Tribunal will remit to the Respondent the issue of assessment of the rate of pension payable to the Applicant in respect of all his war-caused disabilities.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date of Hearing       Nil
Date of Decision  16 May, 2001
Representative for the Applicant   Mr R Sherlock, Legal Aid Commission
Solicitor for the Respondent        Mr G Wright, Department of Veterans' Affairs