Hewson and Repatriation Commission

[2003] AATA 1241

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1241

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/973

VETERANS' APPEALS DIVISION		)
Re		ROBERT JOHN HEWSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr M E C Thorpe, Member

Date10 December 2003

PlaceSydney

Decision	The decision under review is varied so that the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence becomes a diagnosis of sleep apnoea.
The decision under review is affirmed in that no new disease is accepted as war- or defence-caused.
The decision under review is varied in that the rate of Disability Pension with effect from 23 September 2002 is 60% of the general rate in accordance with the decision of the Veterans’ Review Board dated 26 February 2003.

(sgd) M J Sassella

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Disability Pension – sleep apnoea not war-caused – sleep apnoea not defence caused – depressive disorder not diagnosed

Veterans’ Entitlements Act 1986 s 14, s 15, s 20, s 120(1), s 120(3) and s 120(4)

Statement of Principles 58/98 concerning depressive disorder

Statement of Principles 39/97 concerning sleep apnoea

Statement of Principles 40/97 concerning sleep apnoea

Benjamin v Repatriation Commission (2001) 34 AAR 270

Budworth v Repatriation Commission (2001) 63 ALD 402

Cooke v Repatriation Commission (1998) 90 FCR 307

Smith v Repatriation Commission (1987) 74 ALR 537

REASONS FOR DECISION

10 December 2003 Michael Sassella, Senior Member
Dr M E C Thorpe, Member            

RESULT

The tribunal has decided that Mr Hewson’s psychiatric disease is sleep apnoea.  It has decided also that this is not a war-caused or defence-caused disease.  This means that Mr Hewson’s Disability Pension will remain at its current level of 60% of the general rate.

BACKGROUND

1.Robert John Hewson (“the applicant”) suffers from an intervertebral disc prolapse which, with bilateral sensori-neural hearing loss, has been accepted as war-caused by the Repatriation Commission (“the respondent”).  Mr Hewson is paid a Disability Pension at 60% of the general rate in recognition of these conditions.  Disability Pensions are paid to veterans under Part II of the Veterans’ Entitlements Act 1986 (“the Act”)[1]..  Mr Hewson sought to have his pension increased by asking the respondent to accept as war-caused or defence-caused the conditions of irritable bowel syndrome, skin condition, anxiety state, depression, adjustment disorder and alcohol abuse.  The Repatriation Commission interpreted this as a claim for conditions of irritable bowel syndrome, chronic superficial dermatitis, alcohol abuse (in remission) and sleep apnoea.  It rejected all of these as war- or defence-caused conditions.  Mr Hewson appealed this decision to the Veterans’ Review Board which decided to call the conditions post-traumatic stress disorder with associated major depression and alcohol dependence and then it agreed with the Commission and rejected the claims.  Mr Hewson has appealed the Board’s decision to the Administrative Tribunal (“the tribunal”). 

[1] Hewson’s argument is that he has developed depression as a consequence of his accepted disability, intervertebral disc prolapse.  The depression should therefore be accepted as war- or defence-caused.

3.The Commission’s argument is that Mr Hewson suffers from sleep apnoea which is not war- or defence-caused.  Failing that, if the tribunal finds that Mr Hewson suffers from depressive disorder, the Commission argues that he has not experienced a psychosocial stressor, as the relevant Statement of Principles (“SoP”) requires, either at all or, failing that, within two years immediately before the clinical onset of the depressive disorder. 

4.Neither party seems to be pressing any longer that the conditions of post-traumatic stress disorder, alcohol dependence or alcohol abuse are potential accepted conditions for Disability Pension purposes.

5.The issues that arise are:

(a)Did Mr Hewson make a valid claim for a pension or increased pension?

(b)If the answer to (a) is yes, if Mr Hewson’s claim is successful what is the date of effect of any favourable tribunal decision?

(c)If the answer to (a) is yes, what is the correct diagnosis of Mr Hewson’s condition?

(d)Did Mr Hewson engage in operational service so that the reasonable hypothesis proof standard applies?

(e)If the answer to (d) is yes, is there a hypothesis linking his condition to his operational service?

(f)If the answer to (e) is yes, is there a relevant SoP?

(g)If the answer to (f) is yes, does the hypothesis accord with the requirements in the SoP?

(h)If the answer to (g) is yes, is the tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease is a war-caused disease?

(i)If the answer to (h) is yes, is the tribunal “reasonably satisfied” that the disease is a defence-caused disease?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A)Did Mr Hewson make a valid claim for a pension or increased pension?

6.Sections 14 and 15 of the Act require a person seeking a pension or pension increase to make a valid claim in writing. Mr Hewson did this on 8 May 2001.

(B)If the answer to (a) is yes, if Mr Hewson’s claim is successful what is the date of effect of any favourable tribunal decision?

7.Under s 20 of the Act the date of effect of a favourable decision is 8 February 2001, ie three months before the date of claim.

(C)If the answer to (a) is yes, what is the correct diagnosis of Mr Hewson’s condition?

8.Diagnosis is a matter for proof to the tribunal’s reasonable satisfaction (Repatriation Commission v Cooke (1998) 90 FCR 307, Benjamin v Repatriation Commission (2001) 34 AAR 270, Budworth v Repatriation Commission (2001) 63 ALD 402). Even in a case involving operational service where proof to the standard of reasonable hypothesis suffices regarding causation, proof to the standard of reasonable satisfaction is required for diagnosis. In Repatriation Commission v Smith (1987) 74 ALR 537, 547 the reasonable satisfaction standard was held by the Federal Court to equate to the civil standard of balance of probabilities. It is possible that Mr Hewson suffers from both depression and sleep apnoea.

9.In the present case Dr A Dinnen, a psychiatrist, considered in a report dated 13 September 2002 that Mr Hewson suffers from “obvious depression” for which the most obvious cause is as a consequence of his back operation, a laminectomy in 1998.  The symptoms he cited in his report that might seem to contribute to this diagnosis were:

·Mr Hewson’s self-reporting that he is extremely nervous, has very exaggerated startle response, a short temper, is irritable and restless.  Additional symptoms were habit mannerisms – he “flicks” his fingernails and scratches at the lounge when sitting.  Mr Hewson said his hands have to be active all the time.  He shouts and screams and throws things. 

·Alcohol consumption of six to 12 beers, or even more, a night.

·He has a nightmare about once a month and awakes in a hot sweat. 

·He has lost his libido. 

·Material suggesting stressors associated with his Vietnam war experience consisted of Mr Hewson seeing casualties coming into the hospital in which he was working.  He saw the war going on at night time with helicopters and mine guns firing.  He went on a convoy to collect some troops.  There were a thousand rounds of ammunition in a locked box.  He felt very vulnerable en route to meet the troops. 

·He takes Cipramil and has taken Efexor in the past.  These are prescribed anti-depressants.  He says that Cipramil helps him avoid lashing out at Mrs Hewson. 

·He always feels “down” in mood.  Mr Hewson said he tried to commit suicide once four years after returning from Vietnam.  He and Mrs Hewson were about to lose their house and their business.  He took 20 of Mrs Hewson’s sleeping tablets. 

·Mr Hewson said his memory has “gone”, that he cannot remember names.  He has no concentration. 

Mr Hewson told Dr Dinnen his depression occurs “only in stages now” because he cannot do what he wants to do. 

10.Mrs Hewson told Dr Dinnen she did not consider Mr Hewson to be a nervous worrier but he is cranky and jumps at everything.

11.Dr Dinnen addressed a diagnosis of post-traumatic stress disorder advanced by Dr G Altman, a psychiatrist.  Dr Dinnen saw features consistent with post-traumatic stress disorder but said that “at the same time it is manifest that he was not exposed to the type of combat situations which would be likely to cause such a syndrome”..  He then went on to say the diagnosis of post-traumatic stress disorder and psychoactive substance abuse (alcohol) dating from service in Vietnam was the diagnosis “but not satisfying the Statements of Principles as to causation”..  He saw depressive disorder as an additional disease and one which satisfied the SoP requirements. 

12.Mr Hewson saw Dr Delaforce, a psychiatrist in Coffs Harbour, who made a provisional diagnosis of obstructive sleep apnoea.  He rejected a diagnosis of adjustment disorder because of the lack of any significant stressor in the three months before October – November 2000 when Mr Hewson reported that his irritability and anger had worsened.  Irritability can be a symptom of sleep disorder.  Dr Delaforce elicited a life long propensity to anger and irritability.  Dr Delaforce said simply that Mr Hewson does not have a depressive disorder.  Dr Delaforce noted in relation to depressive symptoms:

·Mr Hewson said he had never been “depressed on nearly every day for most of the day for at least two weeks” nor had a “depressed mood on most days for most of the day for at least two years”.

·Since the late 1970s he had for most of the time lost nearly all interest in life and pleasure from life nearly every day for weeks at a time.

·Difficulty remaining sleeping was a problem two or three nights a week in the previous two years.  Tiredness had been a problem for many years but had improved somewhat in the previous five years. 

·Recently there had been occasions when Mr Hewson did not care if he might die.  Many years before, he said, he took an overdose of medication which he described as a cry for help and not done with suicidal intent. 

·“Currently the level of depressive symptoms was the worst he had experienced”. 

Mr Hewson said he had always been inclined to be irritable but he had been worse since October – November 2000 for reasons he did not know. 

13.Dr Delaforce noted that Mr Hewson lacked the basic requirements for a diagnosis of generalised anxiety disorder. 

14.Dr Delaforce did not offer a diagnosis in relation to the alcohol abuse although he recorded that Mr Hewson’s alcohol consumption rose considerably when he was in Vietnam and remained high until 1988 when he engaged in such hazardous activities as drink-driving.  There had been no alcohol related problems since 1988. 

15.Dr Delaforce recorded Mr Hewson at the examination as “generally somewhat of depressed appearance”, showing no signs of irritability but demonstrating signs of distress on three occasions, including when talking of seeing the wounded in Vietnam and when discussing his problems during schooling. 

16.Mrs Hewson told Dr Delaforce that the main problem was Mr Hewson’s agitation and restlessness, including during his sleep.  He was a “terrible snorer.  From about 2-3 years ago she had become frightened because she thought that he had died because he was breathing too slowly during his sleep”.  She said that he was currently drinking four or five beers a night and Mr Hewson’s alcohol use had never been a problem in their relationship. 

17.Dr G J Williams of the Coffs Harbour Sleep Disorders Clinic tested Mr Hewson for sleep apnoea on 9 August 2001 and on 7 September 2001 found “significant sleep apnoea with an RDI of 37 and associated arousals”.  CPAP titration led to improvement of the sleep disordered breathing.  It was noted later that Mr Hewson had a seven-day CPAP home trial from 10 to 17 September 2001 and he could not tolerate CPAP.  He was referred to a dentist for consideration for a mandibular advanced splint.  This would have assisted with tolerating the CPAP device.  Mr Hewson told Dr Delaforce in October 2002 that he did not pursue this because the splint cost hundreds of dollars.

18.Dr Delaforce saw Mr Hewson again on 11 October 2002 and reported on 15 November 2002.  Mr Hewson told Dr Delaforce that he had always had “mental/stress” problems but they were “not seen” until he had his back surgery in 1997 or 1998.  The problems were basically anger and irritability.  He cited examples of him fighting people, putting his fist through a wall at a moment of disappointment.  He referred to depression only when prompted and volunteered that he “supposed” he had depression.  He then said he regularly goes into minor depression.  He described this as, quoting from Dr Delaforce, “During the past 3 years, or perhaps 4 years, virtually daily he twice a day for half an hour to 2 hours would feel depressed.  He had never had any more frequent depressed mood than this.” 

19.Dr Delaforce described Mr Hewson’s presentation at their second encounter.  There were no indications of depressed appearance.  Generally he presented as a bright, cheerful, very alert and intelligent person.  At times he showed exceptionally good thinking.  There were no memory or concentration problems perceived at the examination.  There were no signs of distress or anxiety when detailing Vietnam service or at any other time.  He was sometimes fidgety.  Dr Delaforce noted that details Mr Hewson gave to him varied from those given to Dr Altman.  In cross-examination it was put to Dr Delaforce that he had seen Mr Hewson on both occasions when he was on anti-depressant medication.  The inference was that that explained why his presentation was not indicative of depression.  Dr Delaforce responded that the use of Efexor and Cipramil is not limited to depression.  In any event his diagnosis was not based only on Mr Hewson’s presentation.  Dr Delaforce had engaged in a lifetime assessment and he had allowed for the effect of the anti-depressants in making his assessment. 

20.Mr Hewson in 2002 told Dr Delaforce that he was interested in doing a lot of things but he was prevented by his back condition.  Never in his lifetime had he nearly every day lost nearly all of his interest in, or pleasure from, life.  In cross-examination Dr Delaforce identified that Mr Hewson was interested in, and enjoyed, drinking, communicating by email, watching television and listening to radio.  To satisfy criteria in DSM-IV[2] for depressive disorder a person must have lost almost all pleasure in life and activity every day, said Dr Delaforce.  Mr Hewson, in Dr Delaforce's view, had not lost interest to that extent. 

[2] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995).

21.Mr Hewson reported no Vietnam flashbacks and no distressing Vietnam memories.  He said that he had experienced distressing times in Vietnam  but because no actual harm had eventuated he had had no ongoing distress related to any Vietnam incident.  He avoided other Vietnam veterans but only because he did not want to involve himself in any activity glorifying the Vietnam conflict.  He reported a startle reaction from about 2001.  Dr Delaforce again excluded generalised anxiety disorder as a diagnosis.

22.Mr Hewson’s alcohol consumption had risen to nine or 10 standard drinks a day by October 2002.  He reported that no one complained of his behaviour after he had been drinking, describing himself as a quiet drunk.  He had not engaged in drink driving since 1987. 

23.Mr Hewson had been booked to see a psychologist, Mr I McCombie.  Mr McCombie was going to assess his needs for Cipramil. 

24.As regards any major depressive disorder Dr Delaforce excluded it as a diagnosis.  He allowed that “others may diagnose a ‘depressive disorder or even a ‘major depression’[3] by using excessively flexible and/or idiosyncratic criteria rather than the criteria sets in DSM-IV or just base such a diagnosis on an impression instead of the necessary evaluation that directly refers to the information in the criteria sets”.. 

[3] A term used by Dr Altman in his report.  In his report of 15 November 2002 Dr Delaforce says that this is not a diagnostic term but a shorthand expression that is “unfortunately” commonly used.

25.Dr Delaforce’s final words on diagnosis amounted to the following:

·     There is no alcohol abuse or dependence according to DSM-IV criteria essentially because the drinking has not been socially unacceptable since 1988. 

· Sleep apnoea was confirmed by Dr Williams at [17] above. Dr Delaforce commented that some of the symptoms of this disease can be mistaken as part of another mental disorder. It can generate symptoms such as concentration difficulty, irritability, personality changes, anxiety and depressive symptoms, daytime tiredness, reduced libido and reduced erections. He has hypertension and cardiac arrhythmias, conditions that can be associated with sleep apnoea. Sleep apnoea can be aggravated by alcohol consumption.

·     There is no particular personality disorder.

Dr Delaforce noted “considerable medical problems because of the intervertebral disc prolapse”.  However, Mr Hewson was adjusting “reasonably well” to them by accepting restrictions on his activities.  “The psychological difficulties he has coping with the low back condition represent normal and expected difficulties and not a mental disorder.”

26.Dr Delaforce was critical of Dr Dinnen’s report (above at [9] – [11]) in oral evidence.  He saw the diagnostic discussion in that report as vague and superficial.  Dr Dinnen had not addressed the criteria for depressive disorder.  He saw Dr Dinnen as guilty of the using an overly flexible, idiosyncratic approach to DSM-IV as discussed in [24] above.

27.Dr Altman saw Mr Hewson on about 1 May 2002 and diagnosed that he suffered from severe chronic post-traumatic stress disorder with an associated major depression and alcohol dependence.  The depressive symptoms were low mood, sleep disturbance, diminished energy, low libido, impaired concentration, low confidence and motivation, reduced enjoyment of most activities, a feeling of worthlessness, pessimism about the future and a tendency to make big issues out of minor issues.  There was no suicidal ideation.  Dr Delaforce, when he saw Mr Hewson again in October 2002, queried a number of aspects of the history taken by Dr Altman which differed  from what Mr Hewson told Dr Delaforce on two occasions.  He was satisfied after checking with Mr Hewson that the history given to him (Dr Delaforce) by Mr Hewson was accurate.  Dr Delaforce was critical of Dr Altman’s diagnoses.  Dr Altman had referred to major depression, not a term known to the DSM-IV and he had not explained how the DSM-IV criteria were met.

28.In oral evidence Mr Hewson updated matters.  He said that he feels useless because he cannot do things and this makes him feel depressed.  He reiterated that he is irritable, fidgets and cannot concentrate.  He copes with sleep apnoea by sleeping for two hours in the afternoon.  He still takes Cipramil on prescription from general practitioner Dr Duguid.  His drinking is back down to six beers a day.  He said he noticed his psychological condition about four years ago, 18 months after the intervertebral disc prolapse operation.  In cross-examination Mr Hewson agreed that he had had what he described as depression for 10 years, as noted in Dr Duguid’s clinical materials.  Mr Hewson said that it was more severe now. 

29.We note that SoP 58/98 concerning depressive disorder[4] defines depressive disorder as:

(A) the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:

(i) major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and

(ii) dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and

(iii) depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSMIV diagnostic criteria for other specific mood disorders,

attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.

[4] is thus a close connection between the DSM-IV treatment of depressive disorder and what the SoP sees as a depressive disorder.  From the above material we find the following regarding the types of depressive disorder identified in the SoP (which mirror those identified in DSM-IV):

·     There is no major depressive disorder because there is no evidence of the presence of two or more major depressive episodes.  Mr Hewson’s histories, notably those given to Dr Delaforce in examinations over a considerable time period, have not suggested major depressive episodes.

·     There is no dysthymic disorder because there has not been the necessary neurovegetative signs, social withdrawal, cognitive impairment and suicidal ideation. 

·     There is no depression not otherwise specified, basically because Mr Hewson does not suffer depression of any kind, if Dr Delaforce’s opinion is to be preferred.

31.We have concluded that Dr Delaforce’s evidence is to be preferred to that from Drs Altman and Dinnen in this instance.  Dr Delaforce has gone to great lengths to conduct searching interviews with Mr Hewson and to relate the material from these at all times to the criteria in DSM-IV.  He was vindicated by Dr Williams’ tests in first identifying the likely existence of sleep apnoea.  His criticisms of the reports of Drs Altman and Dinnen appear justified.  Dr Altman appears to have accepted rather too readily the presence of indicia required for a diagnosis of post-traumatic stress disorder.  When quizzed by Dr Delaforce Mr Hewson disowned some of the matters accepted by Dr Altman.  Some of the indicia relied on by Dr Altman were presented to Dr Delaforce as of little impact or as having had an impact far too late in the piece.  Dr Dinnen’s report had some problems also.  He seems to have found post-traumatic stress disorder as both justified and not justified on Mr Hewson’s evidence.  He opted for a diagnosis of depressive disorder without explaining how this applies under DSM-IV.  He described the condition as “obvious”. 

32.Significant in our view is the fact that, asked to describe his symptoms, Mr Hewson invariably identified his nervousness, irritability and restlessness as primary.  This was so in his sessions with Dr Dinnen, Dr Delaforce and Dr Altman.  Likewise Mrs Hewson referred to problems of restlessness and agitation as the main mental problem when interviewed by Dr Delaforce.  Neither Mr nor Mrs Hewson spontaneously highlighted depression as an issue.  As Dr Delaforce noted, the anxiety and irritability had bedevilled Mr Hewson for many years, and well before the period after his back surgery. 

33.We are therefore, in the terms of s 120(4) of the Act, “reasonably satisfied” that Mr Hewson’s psychiatric condition is solely sleep apnoea. As Dr Delaforce pointed out, this condition can be mistaken for other psychiatric conditions because of some of its symptoms.

(D) Did Mr Hewson engage in operational service so that the reasonable hypothesis proof standard applies?

34.Mr Hewson engaged in operational service from 25 March 1971 to 24 February 1972 in Viretnam. Section 120(1) and (3) of the Act thus apply and mean that Mr Hewson’s sleep apnoea will be a war-caused injury if there is a reasonable hypothesis linking the disease to his operational service.

(E) If the answer to (d) is yes, is there a hypothesis linking his condition to his operational service?

35.It is difficult to see such a hypothesis.  None was presented on Mr Hewson’s behalf.  For Mr Hewson it was argued that he suffers from depressive disorder consequent upon his laminectomy.  The respondent argued that the condition is sleep apnoea and not depressive disorder and that there is no hypothesis linking sleep apnoea to service.

36.We could identify no hypothesis.  Anticipating issues (f) and (g), even if there is a hypothesis, it would have to be consistent with the factors set out in paragraph 5 of SoP 39/97 concerning sleep apnoea[5].  In our view none of the myriad factors in SoP 39/97 agree with any of the facts raised in this matter.  The factors are:

[5] The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting sleep apnoea or death from sleep apnoea with the circumstances of a person’s relevant service are:

(a) suffering from chronic obstruction of the upper airways at the time of the clinical onset of sleep apnoea; or

(b) being obese at the time of the clinical onset of sleep apnoea; or

(c) suffering from hypothyroidism at the time of the clinical onset of sleep apnoea; or

(d) suffering from acromegaly at the time of the clinical onset of sleep apnoea; or

(e) suffering from congestive cardiac failure at the time of the clinical onset of sleep apnoea; or

(f) suffering from a central nervous system disorder involving the upper or mid cervical cord, brain stem, cerebrum or extrapyramidal system at the time of the clinical onset of sleep apnoea; or

(g) suffering from autonomic neuropathy at the time of the clinical onset of sleep apnoea; or

(h) being infected with human immunodeficiency virus (HIV) at the time of the clinical onset of sleep apnoea; or

(j) suffering from chronic obstruction of the upper airways at the time of the clinical worsening of sleep apnoea; or

(k) being obese at the time of the clinical worsening of sleep apnoea; or

(m) suffering from hypothyroidism at the time of the clinical worsening of sleep apnoea; or

(n) suffering from acromegaly before the clinical worsening of sleep apnoea; or

(o) suffering from congestive cardiac failure at the time of the clinical worsening of sleep apnoea; or

(p) suffering from a central nervous system disorder involving the upper or mid cervical cord, brain stem, cerebrum or extrapyramidal system at the time of the clinical worsening of sleep apnoea; or

(q) suffering from autonomic neuropathy at the time of the clinical worsening of sleep apnoea; or

(r) being infected with human immunodeficiency virus (HIV) at the time of the clinical worsening of sleep apnoea; or

(s) inability to obtain appropriate clinical management for sleep apnoea.

37.We therefore find that there is no hypothesis and, logically, no reasonable hypothesis connecting Mr Hewson’s operational service with his sleep apnoea.  We therefore find that Mr Hewson’s sleep apnoea is not a war-caused disease. 

38.For completeness we note that Mr Hewson engaged in defence service from 7 December 1972 until he was discharged on 6 January 1976. We find that Mr Hewson’s sleep apnoea is not a defence-caused disease. To find that the condition is defence-caused we would have to be satisfied on the balance of probabilities of there being such a connection (s 120(4) of the Act). That would require us to be reasonably satisfied that at least one of the factors in clause 5 of SoP 40/97[6] was present in Mr Hewson’s situation.  The factors in clause 5 of SoP 40/97 are the same as those quoted in [36] above.  We have already found that none of those factors is applicable. 

[6] Hewson’s disease is sleep apnoea.  We have found that there is no connection between Mr Hewson’s operational or defence service and his sleep apnoea.  He therefore qualifies for no increase in his Disability Pension because of this condition.

DECISION

40.The decision under review is varied so that the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence becomes a diagnosis of sleep apnoea.

41.The decision under review is affirmed in that no new disease is accepted as war- or defence-caused.

42.The decision under review is varied in that the rate of Disability Pension with effect from 23 September 2002 is 60% of the general rate in accordance with the decision of the Veterans’ Review Board dated 26 February 2003.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member and Dr M E C Thorpe, Member

Signed:         .......................................................................................
  Associate

Date of hearing  1 August 2003
Date of decision  10 December 2003
Counsel for the applicant          Mr Neale Dawson 
Solicitor for the applicant          R L Whyburn & Associates, Solicitors
Advocate for the respondent     Mr Jim Marsh
Solicitor for the respondent      Department of Veterans' Affairs