Kelly and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 642

Kelly and Repatriation Commission (Veterans’ entitlements) [2016] AATA 642 (26 August 2016)

Division	GENERAL DIVISION
File Number(s)	2014/5821
Re	Irene Kelly
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	26 August 2016
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war-caused. The date of effect of the decision to grant the Applicant a War Widows pension is 9 August 2013.

..............................[sgd]..........................................

Ms A F Cunningham, Senior Member

CATCHWORDS

VETERAN’S ENTITLEMENTS – claim for war widows pension – operational service – kind of death – Alzheimer-type dementia – post-traumatic stress disorder – whether war caused – reasonable hypothesis raised on the material – decision under review set aside.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5E, 8, 11, 13, 14, 120A, 120B, 196B

CASES

East v Repatriation Commission (1987) 16 FCR 517

Forrester v Repatriation Commission [2013] FCA 898

Repatriation Commission v Deledio [1998] FCA 391

Repatriation Commission v Stares (1996) FCR 594

SECONDARY MATERIALS

DSM-IV

DSM-V

Statement of Principles concerning Alzheimer-type Dementia No. 22 of 2010

Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

26 August 2016

1. The Applicant, Irene Kelly is the widow of the late veteran, Laurence Mills who served with the Australian Army during World War II. The Applicant’s claim for a pension based on the death of her husband, who died on 27 March 2013 at the age of 94 years, was refused by the Repatriation Commission. The Repatriation Commission’s decision was affirmed by the Veteran’s Review Board on 14 October 2014 and the Applicant now seeks a review by the Administrative Appeals Tribunal.

   Issues

2. The issues for the Tribunal to determine are:

   (a)the “kind of death” suffered by the veteran within the meaning of ss 120A and 120B of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), and;

   (b)whether the death of the veteran was connected with his operational war service.

3. The Applicant’s claim was made on 9 August 2013 and accordingly the date of effect of any decision to grant her application is effective from that date.

   Service

4. The veteran enlisted in the Australian Army on 1 October 1939 and was discharged on 23 January 1946. His period of service between 1 to 29 October 1939 and between 21 January 1940 to 19 April 1940 is deemed eligible service. The period of service from 20 February 1942 to 23 January 1946 is deemed operational service under the provisions of the Act.

   Contentions

5. The veteran’s death certificate lists the diseases or conditions directly leading to death as aspiration pneumonia and dementia. It is contended on behalf of the Applicant that the “kind of death” suffered by the veteran as provided under the Act was death from Alzheimer-type dementia and that the relevant Statement of Principles (SoP) is instrument No. 22 of 2010 regarding Alzheimer-type dementia.

6. The Applicant contends that the veteran’s exposure to Category 1A and 1B stressors during war service caused him to develop post-traumatic stress disorder (PTSD). The Applicant withdrew the claim that an anxiety and depressive condition also caused or contributed to the onset of Alzheimer-type dementia suffered by the veteran.

7. It was contended on behalf of the Respondent that there is no material before the Tribunal pointing to the veteran having developed PTSD at least five years before the clinical onset of Alzheimer-type dementia.

   Legislative framework

8. Section 8 of the Act outlines in what circumstances the death of a veteran shall be taken to have been war-caused. Subsection 8(1)(b) of the Act relevantly provides that the death of a veteran shall be taken to have been war-caused if “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.

9. Section 13 of the Act contains the eligibility provisions for a pension and s 13(1) provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.

10. Section 14 of the Act provides that a dependant of a deceased veteran may make a claim for a pension in accordance with s 14(3).

11. There is no dispute that the Applicant, being the veteran’s widow is a “dependant” as defined under s 11(1)(c) and is also a “war widow”, as defined under s 5E as someone who was legally married to the veteran immediately before his death.

12. As the veteran performed operational service, the determination as to whether his death was war caused is made in accordance with the provisions of ss 120(1) and (3) of the Act. Subsection 120(1) states that the Commission, in this case the Tribunal, shall determine that the death of the veteran was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 120(3) provides that the Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground for the determination that the death was war-caused if, after considering the whole of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the veteran’s service.

13. Section 120A provides that with respect to claims made on or after 1 June 1994 relating to the operational service rendered by the veteran for the purposes of subsection 120(3), a hypothesis connecting the veteran’s death with the circumstances of any particular service is reasonable only if there is a SoP determined under ss 196B(2) or (11) that uphold the hypothesis.

    Evidence

14. The Applicant gave oral evidence at the hearing and her written statement was tendered into evidence. Oral evidence and a written statement were also given on behalf of the Applicant by her daughter, Michelle Williams, the Applicant’s son Andrew Ottaway, and the Applicant’s daughter Kim Flick. A written statement of Giles Flick, the veteran’s grandson was tendered in evidence however Mr Flick did not give oral evidence before the Tribunal.

15. Medical evidence was provided by Dr Anthony Dinnen, consultant psychiatrist, in the form of written reports dated 25 January 2016 and 19 April 2016 and oral evidence. The medical report from Alastair J Corbett, neurologist, dated 31 October 2014 was tendered into evidence.

16. A written medical report dated 4 March 1996 was provided on behalf of the Respondent by Dr Peter J. Morse, consultant psychiatrist. Dr Inglis Howe Synnott, consultant psychiatrist, gave oral evidence and his medical report dated 9 October 2015 was tendered in evidence.

17. The T-documents were tendered pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

18. The Applicant stated that she had first met the late veteran in 1990 after his retirement and they had married on 4 December 2005. She said that her husband infrequently discussed the war but there were events and particular occasions that would trigger his discussion and memories. Particular events such as Anzac Day, Christmas and other anniversaries generally caused a tearful and emotional response from her husband.

19. The Applicant recalled her husband’s distress and anxiety when he spoke about his bomb disposal expeditions into the jungle where the bombs were not easily recognisable and difficult to identify. The Applicant said that her husband had a particular dislike of the jungle and its tropical and wet environment. She recalled a seaside holiday when her husband displayed a fear of entering the water which brought back unpleasant memories of his skin dermatitis from which he suffered during service. When recounting events, the Applicant described how her husband would “phase-out” and stare into space unwilling to continue any conversation. These episodes could last for quite some time and on occasions for the entire day. The Applicant said that her husband did not enjoy meeting new people and was really only socially comfortable with members of his own family.

20. The Applicant considered that her husband may have been suffering from depression. She was aware of the symptoms because her first husband had suffered from depression and had received shock treatment for the condition. The Applicant’s mother had also been very depressed before she died from Alzheimer’s disease.

21. The Applicant recalled her husband telling her of an occasion when he had been with another young soldier during bomb disposal duties. This young soldier was shot and killed in the head by a sniper which was particularly distressing for her husband who blamed himself for the soldier’s death.

22. The Applicant described her husband as a very proud person who appeared to cope with his issues on his own. She was unaware that he had made a previous claim to the Department of Veteran’s Affairs for an anxiety and stress condition. The Applicant had not previously seen the medical report from Dr Morse and was unaware that her husband had consulted him in 1996. She agreed with Dr Morse’s expression that the veteran had thought that he had his feelings under control.

23. The Applicant described how her husband would sometimes wake suddenly during the night and sit bolt upright in bed. On other occasions he would be babbling in his sleep as if he was talking to someone. The Applicant said that her husband also suffered from night sweats.

24. Michelle Williams said that her stepfather, the late veteran, did not often speak to her about his war experiences. When he did talk about the war Ms Williams said that he would regress to a state of non-verbal communication, look away and appear very sad, often with tears rolling down his cheeks. She recalled two occasions when particular experiences had triggered memories and the veteran became very sad, tearful and withdrawn. Ms Williams said that whilst the veteran appeared comfortable in the company of family members, when with other persons he became withdrawn.

25. It was Andrew Ottaway’s evidence that the veteran became tearful whenever he spoke of his war experiences. Mr Ottaway recalled hearing about a particularly distressing incident when another soldier who had stood in for the veteran had his “head shot off”. The veteran was particularly distressed because the other soldier had taken his place.

26. It was Kim Flick’s evidence that the veteran discussed his war experiences with her on a number of occasions. She said this was generally following her encouragement because she understood that it would help him cope with his war experiences. The veteran had spoken to her about his experiences in the jungle – wading through mud, experiencing skin diseases and footrot between his toes, suffering dysentery, and the fear of snipers in the trees. He also spoke about hidden stakes that the guerrillas had left in the jungle. Ms Flick said that the veteran would “cry and cry” whilst describing his experiences and then “drift off into space”. She described the veteran as a lovely and kind man but who was burdened and saddened by his experiences. Ms Flick said that the veteran would also discuss his experiences with her son, Giles Flick.

    Medical evidence

27. The veteran had been referred by the Department of Veterans’ Affairs to Dr Morse in March 1996 in relation to his claim for benefits for “anxiety neurosis”. Whilst the veteran described feelings of sadness, tension and anxiety associated with his memories of the war, in Dr Morse’s opinion he was not suffering any major psychiatric or emotional disorder. Dr Morse was not able to make any specific diagnosis and did not consider the veteran to be depressed at that time. He said that in his experience, veterans who have served in World War II at this stage of their life start to have memories of their war service for a number of reasons.

28. In his report of 4 March 1996, Dr Morse referred to the incident described by the veteran when:

    “another Lieutenant took over his role in bomb disposal because he had to go and he keeps thinking that this Lieutenant was killed by a Japanese sniper while going out to search for and defuse live ammunition. He said at the time when he first heard it he felt guilt that if he had not come home due to the rash he would have been there and because he was more experienced, probably would not have been killed. He said this was on his mind for a period after discharge though with his wife’s help he got the anxiety and depressive reactions in response to these thoughts under control. He also said that in certain social situations the thoughts of his wartime service would come back to him, he would feel anxious, have problems talking to people, but again with his wife’s help both in terms of talking to her about it and her helping, in these particular social and other situations he was able to get in control of it. He also said that he had problems at work but with time and his wife’s help this settled down.”

29. Dr Morse went on to state:

    “The failing current memory and involvement in the day-to-day activities of life with increasing difficulties in concentration and immediate recall means they tend to lapse back to significant memories of the past, particularly those involving painful, sad, anxiety-provoking ones. Generally the person is retired, as in Mr Mills’ case, and doesn’t have any involvement with work and other activities as they had previously. There is often a change in the family circumstances so that they are not as intimately and closely involved with another person and this is certainly very significant in Mr Mills’ case for the reasons outlined above. Finally of course there has been in 1995 the 50^th anniversary of the end of the war in Europe and the Pacific. As well there is the on-going physical ill health which has not been a significant factor in Mr Mills’s case but the death of colleagues and friends with whom they served is also a constant reminder of mortality and revives memories of the war experiences. In his case the particular thought of “survivor guilt” while unrealistic is a very strong factor over the years in causing the distress he experiences.”

30. Dr Corbett provided a report in relation to the cause of the veteran’s death on 27 March 2013 and referred to the causes listed on his death certificate. Dr Corbett noted the veteran’s accepted war caused disabilities of dermatitis, conjunctivitis, allergic state, solar skin damage, bilateral sensorineual hearing loss with tinnitus, deflected nasal septum, osteoarthritis of the left hip, osteoarthritis of the right hip, lumbar spondylosis. He referred to the CT brain scan of 10 December 2012 and concluded that a diagnosis of Alzheimer disease-causing dementia was probable. He went on to state “on balance of probability the veteran’s immediate cause of death was aspiration pneumonia in the context of dementia which is likely to have been Alzheimer type and was the major predisposing factor…”

31. In his report of 25 January 2016, Dr Dinnen summarised the documentation made available to him which included the statements of facts and contentions with respect to the application for review, section 37 documents, an aged care assessment of the veteran, Greenwich Hospital records and a patient health summary from the Neutral Bay medical practice relating to the veteran, the witness statements as canvassed above and the Writeway report of 1 June 2015.

32. Dr Dinnen noted the letter from Dr Don Wilton in October 2013 in which Dr Wilton states that the veteran had severe dementia by May 2012 when he started caring for him and that he entered a nursing home in November 2012. The Greenwich Hospital records note that dementia was diagnosed in November 2011.

33. Dr Dinnen opined in his report of 25 January 2016 that:

    “It is most likely, according to my experience with veterans over many years, that Mr Mills did suffer from chronic post-traumatic stress disorder as a result of his operational service during the Second War. However, I am unable to obtain sufficient information from the documentation to allow me to make that diagnosis according to the criteria set out in the relevant Statement of Principles and the DSM V and DSM IV categorisations.”

34. He stated that in his opinion criterion (ja) of the SoP for Alzheimer-type Dementia No. 22 of 2010 (“having post-traumatic stress disorder at least five years before the clinical onset of Alzheimer-type dementia”) is clinically satisfied. However he stated that it is difficult to identify all the clinical features which would satisfy the criteria set out in the SoP for PTSD.

35. Dr Dinnen wrote a further report on 19 April 2016 after reading Dr Morse’s report of 4 March 1996. Dr Dinnen’s closing comment was:

    “That report married with the information which was previously provided confirms my opinion that the late veteran indeed did suffer from post-traumatic stress disorder from the time of his service overseas as described.”

36. In his oral evidence to the Tribunal Dr Dinnen said that the contents of Dr Morse’s report assisted him to “fill in a lot of gaps”. Evidence was led from Dr Dinnen regarding the diagnostic criteria in paragraph 3(b) of the SoP for PTSD. Dr Dinnen referred to the evidence in the historian’s report and that from family members regarding the veteran’s wartime experiences and in particular the account of the death of the young lieutenant and the deaths and injuries of other soldiers in the veteran’s unit. Dr Dinnen accordingly considered that paragraph 3(b)(A) of the SoP for PTSD is satisfied.

37. In Dr Dinnen’s opinion there is evidence to satisfy all of the criteria in paragraph 3(b)(B) in that the veteran persistently re-experienced traumatic events from his operational service. In particular Dr Dinnen referred to the evidence from family members regarding distressing recollections of events, the Applicant’s evidence regarding the veteran’s disturbed sleep and night sweats and the evidence of his distress of particular circumstances which triggering memories of the jungle environment and so forth.

38. Dr Dinnen also considered that the evidence satisfies a number of the criteria in paragraph 3(b)(C) of the SoP for PTSD. He relied on the evidence from family members regarding the veteran’s efforts to avoid thoughts, feelings or conversations associated with his wartime experiences as well as activities or places. Dr Dinnen relied on the evidence from Dr Morse of the vetern’s markedly diminished interest and participation in significant activities. Also the evidence of family members regarding signs of the veteran’s detachment and estrangement from others and how he would appear distant and often stare into space for considerable periods of time. The evidence that the veteran suddenly burst into tears at his 80^th birthday celebrations reflected his increased emotionality according to Dr Dinnen.

39. With respect to criterion 3(b)(D) Dr Dinnen referred to the evidence regarding the veteran’s sleep disturbance, difficulty concentrating and often going into a “brown room” as satisfying subparagraphs (i) and (ii). It was Dr Dinnen’s opinion that paragraphs (E) and (F) are met on the available evidence.

40. Dr Dinnen noted the contents of the report prepared by Dr Inglis Synnott who did not consider that the veteran suffered a psychiatric condition. Dr Dinnen said that whilst he respected Dr Synnott’s opinion, he did not agree with it. He considered that Dr Synnott had not given sufficient weight to the nature of the veteran’s service and the evidence and statements provided by family members.

41. Dr Dinnen referred to his extensive experience and work with thousands of veterans, including World War II veterans, and his experience with examining PTSD. In his opinion Dr Morse had not considered the alternative diagnosis of PTSD because he was considering the veteran’s claim for “anxiety neurosis”. Dr Dinnen stated that Dr Morse does not possess his experience and familiarity with post-traumatic stress disorder. Nor did Dr Morse have access to the material that was made available to Dr Dinnen, in particular the statements and evidence of family members. Dr Dinnen considered that Dr Morse may have reached a different conclusion if this evidence had been made available to him at the time. Dr Dinnen accepted Dr Morse’s statements that the veteran had thought that he “had it all under control” and the evidence that he had not informed family members of his claim, suggested that the veteran was “continuing on and trying to cope with his condition”.

1. Dr Synnott maintained that experiencing periods of psychological distress including symptoms of anxiety, sadness or depression is not an automatic indication that a person has a psychiatric condition. He pointed out that many servicemen who were exposed to similar conditions and experiences as the veteran do not go on to develop a psychiatric illness and that this often depends on a person’s vulnerability. Dr Synnott said that whilst a patient may describe symptoms that are consistent with a psychiatric illness, the assessment needs to be objectively undertaken by a psychiatrist in order to make a diagnosis.

2. Dr Synnott explained that World War II veterans were on the whole welcomed home and encouraged to get on with their lives and whilst many had psychological distress, they did not develop psychiatric illnesses. In his opinion the veteran suffered grief and psychological distress upon the death of his first wife which should not be confused with post-traumatic stress disorder. The veteran’s psychological distress was evidenced by his symptoms of tearfulness, crying, night sweats and sleep disturbance. Dr Synnott considered that in later years the veteran suffered a depressive anxiety condition that was connected with the deterioration in his physical and cognitive health. Dr Synnott relied on the findings of Dr Morse who saw the veteran in 1996 and did not consider that he suffered from a psychiatric condition.

   Consideration

3. The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio [1998] FCA 391 (Deledio) provided guidance in the form of four steps that the Tribunal should follow in determining the connection of the veteran’s death with his service in accordance with the above provisions of the Act. Those four steps are as follows:

   1)The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

   2)If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the [Repatriation Medical Authority] under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

   3)If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

   4)The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

4. The hypothesis raised by the Applicant is that as a result of the veteran’s experience of severe stressors during service, he developed PTSD which was connected with his death from Alzheimer-type dementia.

5. Writeway Research Service Pty Ltd prepared an historical research report on the veteran’s World War II service dated 1 June 2015 (“the Writeway report”). The author, Major Ian Hawke RFD concluded at paragraph 9 that the available records did not readily identify or demonstrate that the veteran had experienced a Category 1A stressor (i.e. experiencing a life-threatening event). He stated however that bomb disposal is inherently stressful and that there is a high probability that the veteran’s experiences included his involvement with one or more Category 1A stressor incidents.

6. At paragraph 10, Major Hawke said that it is almost inevitable that the veteran would have experienced Category 1B stressors (i.e. being an eye-witness to a person being killed or injured, viewing corpses or critically injured casualties). He noted that the Australian War Memorial Roll of Honour lists five members of the field company who died whilst the veteran was posted to that unit. As the field company was a fairly small and close-knit unit, Major Hawke concluded that these five unit members would have been known to the late veteran and some may well have been close friends. Further, he stated that there were undoubtedly non-fatal field engineer task work accidents involving “men in close personal relationship and who were important or influential in the veteran’s life”. Major Hawke also referred to the presence of other stressors such as the difficult mountainous jungle terrain, hostile climate, fauna (snakes, pythons, spiders) and a range of endemic health hazards (malaria, dengue fever, skin diseases etc.). He noted that the availability of medical treatment in the case of injury or illness would have been an ongoing concern. Major Hawke stated that the veteran’s service record does not show any entries or reported injuries.

   Findings

7. The “kind of death” suffered by the veteran must be determined on the balance of probabilities. The conditions which led to the veteran’s death as stated in the death certificate are aspiration pneumonia and dementia. Dr Corbett said in his report dated 31 October 2014 that the veteran’s immediate cause of death was “aspiration pneumonia in the context of dementia which is likely had to have been out Alzheimer-type and was the major predisposing factor”. Dr Wilton had noted that the veteran had severe dementia by May 2012.

8. The Tribunal is accordingly satisfied that the kind of death suffered by the veteran as provided for in sections 120A, 120B and 196B of the Act was Alzheimer-type dementia.

9. In accordance with the Deledio four step process as outlined above, the first issue for determination is whether the material in the form of evidence before the Tribunal points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. The Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594 at 601 said that “a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”. In Forrester v Repatriation Commission [2013] FCA 898, Mortimer J at [30] pointed out that “whether material ‘points to’ or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption”.

10. The hypothesis advanced on behalf of the Applicant is that, as a result of the veteran’s experience of severe stressors during service, he developed PTSD which was connected with his death from Alzheimer-type dementia.

11. On the basis of the evidence presented, the Tribunal is satisfied that a hypothesis is raised which can connect the veteran’s service to his kind of death from Alzheimer-type dementia.

12. In accordance with step two of Deledio the Tribunal is to ascertain whether there is in force any relevant SoP issued by the Repatriation Medical Authority under ss 196B(2) or (11). The SoP applicable to the kind of death suffered by the veteran is instrument No. 22 of 2010 concerning Alzheimer-type dementia.

13. Step three of the Deledio process directs that where a SoP is in force, the Tribunal must form an opinion whether the hypothesis raised is a reasonable one by considering whether it is consistent with the template found in the SoP.

14. The factor relied upon by the Applicant in paragraph 6 of the SoP is subparagraph (ja) (“having post-traumatic stress disorder at least five years before the clinical onset of  Alzheimer-type dementia”). The Tribunal is not at this stage concerned with findings of fact however if the Applicant’s material does not fit the relevant template it should be rejected. The hypothesis raised must be “…more than a possibility, not fanciful or unreal, consistent with the known facts. It was a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.” (East v Repatriation Commission (1987) 16 FCR 517 at 532-3)

15. There is medical evidence as outlined above, notably that of Dr Dinnen that supports this factor being that the veteran suffered from PTSD for at least five years before the onset of his dementia.

16. The Tribunal accordingly accepts that the material points to a hypothesis which is more than a mere possibility connecting the death of the veteran with the circumstances of his service.

17. Step four of the Deledio process directs that the Tribunal considers whether or not it is satisfied “beyond reasonable doubt” that the veteran’s death was not war caused as required under s 120(1) of the Act.

18. It is at this stage that the Tribunal is able to consider the weight of evidence before it in determining whether the veteran suffered from PTSD. It is conceded on behalf of the Respondent that if the Tribunal finds that the veteran suffered from PTSD, then the Applicant’s claim is made out. The Respondent maintains however that the evidence does not support a finding that the veteran suffered PTSD. It relies on the medical evidence of Dr Morse who found that the veteran did not suffer a psychiatric condition and Dr Synnott who contended that Dr Morse, having seen the veteran in 1996, was in the best position to make a diagnosis.

19. Dr Dinnen on the other hand contended that Dr Morse was not necessarily best placed to make a diagnosis of PTSD and that he was assessing the veteran’s condition in light of his claim for anxiety neurosis. It was submitted on behalf of the Applicant that given Dr Dinnen’s considerable experience with World War II veterans and experience in dealing with patients suffering from PTSD, his evidence should be preferred.

20. Initially Dr Dinnen was not prepared to positively confirm a diagnosis of PTSD. However, after considering the contents of Dr Morse’s report and the further evidence of family members, Dr Dinnen considered that the diagnostic criteria for PTSD as set out in DSM-IV and repeated in the relevant SoP for PTSD, being No. 5 of 2008, were satisfied in the veteran’s case. Dr Dinnen stated that he was satisfied on the basis of the Writeway report, which outlined the nature of the stressors that the veteran would have encountered during his operational service, in particular, his likely exposure to fatalities and the injuries of other members of his unit, that the veteran did suffer chronic PTSD as a result of his operational service.

21. The Tribunal is satisfied on the basis of the material contained in the Writeway report of 1 June 2015 as outlined above, that it is highly likely that the veteran was exposed to Category 1B stressors as defined in the relevant SoP and potentially Category 1A stressors on account of his bomb disposal activities. Dr Dinnen describes the Writeway historical report as “compelling” and states that “it is almost certain, beyond argument, that the late veteran was exposed to significant combat trauma while serving in New Guinea and Bougainville.”

22. Upon receipt of the further information contained in Dr Morse’s report and the evidence of family members, Dr Dinnen was able to confirm a diagnosis in accordance with the DSM-V-TR criteria as detailed in the evidence above.

23. The Tribunal is satisfied, given Dr Dinnen’s considerable experience with World War II veterans and PTSD, that he was well placed to make a diagnosis despite the fact that he did not see the veteran in person and was reliant upon written material including previous medical reports and statements made by family members. Dr Dinnen gave a considered diagnosis in accordance with the required DSM-IV criteria which in his opinion was satisfied in the veteran’s case.

24. The Tribunal accepts Dr Dinnen’s evidence that it is likely that the veteran suffered from PTSD on account of the experiences and stressors encountered during his operational service and that the symptoms were present from the time when he concluded his service.  Accordingly, and for all of these reasons, the Tribunal cannot be satisfied beyond reasonable doubt that the death of the veteran was not war caused.

    Determination

25. The Tribunal is satisfied that the material points to a hypothesis that the veteran’s death was war caused and that the Applicant is accordingly entitled to a War Widows pension. The decision under review is therefore set aside and in substitution the Tribunal decides that the veteran’s death was war-caused. The date of effect of the decision to grant the Applicant a War Widows pension is 9 August 2013.

I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cunningham

................................[sgd]........................................

Associate

Dated 26 August 2016

Date(s) of hearing	19 and 20 April 2016
Counsel for the Applicant	Tim Saunders
Solicitors for the Applicant	Kemp & Co Lawyers
Solicitors for the Respondent	Department of Veterans' Affairs