Masliczek and Repatriation Commission
[2008] AATA 251
•31 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 251
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600704
VETERANS' APPEALS DIVISION )
Re MIRON MICHAEL MASLICZEK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G. D. Friedman, Senior Member Date:31 March 2008
Place:Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – posttraumatic stress disorder – stressful events – whether condition diagnosed – osteoarthrosis of the fingers of right hand – hearing problems in right ear – whether conditions war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2008] FCA 50
REASONS FOR DECISION
31 March 2008 G. D. Friedman, Senior Member 1. Miron Masliczek made an unsuccessful claim for disability pension on the basis that post-traumatic stress disorder (PTSD), osteoarthrosis of the fingers of the right hand and hearing problems in the right ear were related to his service in Vietnam, where he was a tailor in 3 Royal Australian Regiment. Right inguinal hernia, bilateral tinnitus, ischaemic heart disease, sensorineural hearing loss of the left ear and diabetes mellitus were previously accepted by the respondent as war-caused.
2. The issues before the Tribunal are:
·What is the legal framework?
·Does Mr Masliczek suffer from the claimed conditions?
·If so, is each condition war-caused?
WHAT IS THE LEGAL FRAMEWORK?
3. Mr Masliczek served in the Australian Army as a National Serviceman from 28 September 1966 to 27 September 1968. His service in Vietnam from 20 December 1967 to 20 February 1968 and from 5 April 1968 to 27 August 1968 was operational service under the Veterans’ Entitlements Act 1986. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4. The Tribunal is first required to determine to its reasonable satisfaction whether Mr Masliczek suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). In the circumstances of this case, where Mr Masliczek has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service then is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:
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…
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11)….
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP…
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… If the Tribunal is so satisfied, the claim must fail…
DOES MR MASLICZEK SUFFER FROM PTSD?
5. In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV-TR) a diagnosis of PTSD requires that:
The person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(ii) the person’s response involved intense fear, helplessness, or horror…
Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at 74:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
This reasoning was followed in Repatriation Commission v Hill [2008] FCA 50.
6. Mr Masliczek told the Tribunal that after leaving school his father taught him to become a tailor, and was nominated for this role when he commenced National Service. He explained that he was sent to Vietnam as a tailor but this occupied only a small amount of his time. He said that he worked as a Duty Officer at Nui Dat and supervised field punishments. He also participated in daytime and overnight patrols on a monthly basis outside the base. Mr Masliczek said that his tour of duty in Vietnam was interrupted in February 1968 when he returned to Australia to be married. He re-joined his unit in April 1968.
7. Mr Masliczek told the Tribunal that there were a number of stressful incidents during his service in Vietnam that caused significant distress. The first and most significant was when he and a fellow soldier witnessed the bodies of two young Vietnamese girls they had met earlier (the bodies event). The second was when he was at a fire support base and felt that his life was in danger from the firing of rockets and mortars (the firing event). The third was when he witnessed the body of a friend who had shot himself (the shooting event). The fourth was when he was threatened with a handgun by a taxi driver (the taxi event). The fifth was the death of a friend during the Tet Offensive (the casualty event).
8. In respect of the bodies event he said that he was on patrol outside the perimeter of the base and heard a noise. He and another corporal went to investigate, and encountered two young girls who showed them rats that they had caught for food. Mr Masliczek stated that he gave the girls some of his rations and moved on, but the following day the patrol returned to the area and he was horrified to find the decapitated bodies of the children. At the scene he found ration wrappings that he recognised. He said that he was overcome by intense feelings of guilt in that his actions of giving food may have contributed to the deaths. He said that he and his colleague buried the bodies in shallow graves and returned to base camp. The other members of the patrol did not witness the event. He said that neither he nor the other corporal discussed the incident with anyone, apart from a friend whom he told shortly before his departure from Vietnam. They did not report it to their superiors. He said that he does not know the name of the other corporal.
9. Under cross-examination Mr Masliczek conceded that he could not recall the time of day he discovered the bodies; the number of personnel involved in the patrol; the type of patrol; the time taken to bury the bodies using a bayonet; and the exact location of other members of the patrol, but was adamant that the incident had occurred. He agreed that much of his description was inconsistent with his account given to the Veterans’ Review Board and to the Department of Veterans’ Affairs, but said that on occasion he says the first thing that comes into his head, particularly when he is nervous. He stated that one reason for not reporting the incident was that he did not wish to return to the scene at a later time. Mr Masliczek agreed that if the Viet Cong were responsible for the killings his colleagues may have been in danger, but he said that the Viet Cong would not attack Australian soldiers.
10. In respect of the firing event Mr Masliczek told the Tribunal that he spent three or four days on patrol with a New Zealand artillery unit at a fire support base away from Nui Dat and that during this time he heard mortar and rocket fire at night. He said that although there were no casualties he felt frightened. Under cross-examination he said that he could not remember the name of the fire support base at which the firing occurred, or the circumstances of the firing.
11. In respect of the shooting event Mr Masliczek said that he was at an outdoor theatre with a number of other soldiers including the brother-in-law of his good friend Private Garry Polglase, when they heard a shot fired which he thought was an accidental discharge. Shortly afterwards he was told that someone had been shot. He went to Support Company lines where he entered a tent and saw blood and the body of Private Polglase, who had apparently killed himself while playing Russian Roulette. Mr Masliczek stated that he was told to leave the tent, but was extremely upset and felt ill. Under cross-examination Mr Masliczek agreed that the Investigating Officer’s report and the Board of Enquiry did not list his name among personnel present in the tent after the shooting was reported. He also agreed that his description of the body being slumped in a chair was not consistent with the official reports.
12. In respect of the taxi event he said that he had been to Vung Tau to obtain stationery and arrived back at the base the next day by taxi. He said that he gave the driver all the money he had and walked away, but then heard a click and turned to see an automatic weapon pointed at him by the driver. Mr Masliczek stated that at the time he started laughing but later realised that the weapon had misfired. Under cross-examination he agreed that he had given different accounts to various psychiatrists. Mr Masliczek also agreed that there was a curfew in place for military and civilian personnel at the time and that the incident occurred near the front gate of the heavily armed base at Vung Tau.
13. In respect of the casualty event Mr Masliczek stated that he served with B Company during the Tet Offensive. He said that he did not see any action during that time, but after he had been in Vietnam for only one month a couple of close friends, including Private Guy Godden, were killed. He said that Private Godden’s death depressed him because he was one of his best friends and they had met at an army posting in South Australia. Under cross-examination he agreed that he did not see the body, but had learnt of the death while with Company Headquarters in Vietnam.
14. Under cross-examination Mr Masliczek agreed that after discharge from the army initially he enjoyed good health and worked hard in his business as an owner/driver. He said that the work involved heavy lifting and he suffered a number of injuries and had to give up the business and sell his truck following his heart attack in 1997. He agreed that he had become depressed as a result of his circumstances and the change in his working conditions, and lodged a compensation claim for injuries to his shoulders, back and feet. Mr Masliczek agreed that in an affidavit dated 30 November 1999 (Exhibit R10) in support of his compensation claim he stated that he had become extremely depressed and was taking anti-depressants because of his multiple problems, including pain in his back, right hip, shoulders and feet. He also referred to concerns about his heart condition and an ulcer. In the affidavit Mr Masliczek made a brief reference to his army service in Vietnam, but mentioned only a right inguinal hernia that he suffered there.
15. The Tribunal had before it reports from a number of psychiatrists who have examined Mr Masliczek. In a report dated 25 November 1997 (T5 page 26) prepared in connection with a civil claim by Mr Masliczek related to a heart condition Dr B. Holwill, consultant psychiatrist, stated that Mr Masliczek told him that his main duties in Vietnam were to be that of a tailor, but as there was little such work available he spent most of his time out on patrol. Dr Holwill did not refer to specific stressful events described by Mr Masliczek, but stated that Mr Masliczek told him that he found the time in Vietnam to be very disturbing and frightening, and in particular, dealing with the dead bodies was a very noisome [harmful or disagreeable] experience. Dr Holwill concluded:
Miron presents with a clear cut chronic mild to perhaps moderate degree of post traumatic stress disorder which is clearly related to his service in South Vietnam and no other factors.
16. Mr Masliczek was referred to Dr B. Kenny, psychiatrist, in relation to his compensation claim, and in a report dated 1 December 1999 (Exhibit R12) Dr Kenny described him as significantly depressed which was a reaction to cardiovascular disease and physical problems. According to Dr Kenny:
…he served in the Army in Vietnam for some ten months, didn’t find that a particularly good experience, saw a little bit of combat, but mostly got over that but it took him some time,…
17. In a report dated 23 October 2006 (Exhibit A2) Dr E. Cole, psychiatrist, diagnosed PTSD on the basis of several stressful events described to him by Mr Masliczek. Dr Cole said that Mr Masliczek gave what appeared to be a relatively straightforward account of himself and his problems, but was rather vague about dates, times and other details. In relation to the bodies event Dr Cole stated that Mr Masliczek said they found the girls’ bodies and this was his most depressing memory. He had seen the bodies every day of his life since then and still had a sense of guilt. It was only after lodging his claim for disability pension that he had told anyone about the event, including his wife. He still had nightmares once or twice a month. Dr Cole stated:
I don’t for one moment believe that he is lying about this and I think it naïve to suggest that such an incident would necessarily have been reported.
18. Dr Cole concluded that the bodies event was the major factor in his diagnosis, brought out by Mr Masliczek’s emotional response during the interview. He added that the shooting event, when Mr Masliczek said he witnessed the body of a comrade who had shot himself, and the taxi event, when Mr Masliczek said that he was threatened with a gun by a taxi driver, would also constitute a severe stressor. Dr Cole referred to the casualty event while Mr Masliczek was serving with B Company during the Tet Offensive when a couple of good friends, including Gary Gooden [sic], were killed.
19. In a report dated 17 January 2007 (Exhibit R3) Dr L. Walton, consultant psychiatrist, diagnosed PTSD on the basis of a number of the events described to him by Mr Masliczek, including the bodies event, the shooting event and the firing event. Dr Walton estimated that the date of clinical onset was 1968 in Vietnam and said that the events in Vietnam caused the PTSD, which was aggravated by a life-threatening cardiac disease suffered some years later. He said that the criteria defined in the Statement of Principles are met, but with a reservation that:
…the events relied upon must be established as fact, and I am well aware of the query surrounding that proposition.
20. In oral evidence Dr Walton stated that he had accepted Mr Masliczek’s history at face value, but agreed that Mr Masliczek’s anxiety and heart condition might have caused his PTSD. He said that the taxi event, where Mr Masliczek said: I was scared at first. Once I was inside I laughed about it. and the casualty event, where Mr Masliczek told him that he had observed around five or six enemy dead but no Australian casualties, would not qualify as stressful events.
21. In a report dated 2 May 2006 (T26 page 110) Dr J. Gelb, consultant psychiatrist, diagnosed PTSD. He acknowledged that the contentious issue was whether Mr Masliczek was telling the truth about the events claimed to be stressful, and stated:
His degree of distress at describing the murder of the two young Vietnamese girls appeared genuine and I believe he should be given the benefit of the doubt regarding this incident.
Dr Gelb referred to the diagnosis by other practitioners and the range and severity of Mr Masliczek’s symptoms. In relation to the taxi event he recorded that the pistol failed to fire and he ran terrified to the gates of the base. He concluded that no cause of PTSD other than service-related matters have ever been suggested or proven.
22. Mr Masliczek stated that after discharge he returned to the clothing trade where he worked as a cutter. However he found that he did not like working indoors, so he bought a small truck and operated a business as an owner/driver for 26 years until he suffered a heart attack in 1997. He was forced to discontinue the business, and after four years without a job he obtained a position with the Corps of Commissionaires which he still occupies.
23. In a report dated 2 July 2005 (T17) on behalf of Writeway Research Services Pty Ltd Mr J. Church stated, in relation to the bodies event, that an event of this nature was a notifiable incident which would have been a matter for a full report. He said that there was no evidence to show that Mr Masliczek was a member of a patrol which found the bodies as claimed, and that overnight patrols were five-person strength rather than platoon-strength as had been claimed by Mr Masliczek. In relation to the casualty event Mr Church stated that the commander of B Company had no recollection of Mr Masliczek being attached to that unit, and that even if he was with another part of company headquarters Mr Masliczek was nowhere near the platoon when it suffered casualties, including the death of Private Godden. He concluded that it was highly unlikely that any Administration Company personnel were deployed in a hostile area during the Tet Offensive.
24. In a further report dated 21 October 2006 (Exhibit R1) Mr Church stated, in relation to the bodies event, that Mr Masliczek’s account was implausible because Administration Company did not despatch three-day patrols as described by Mr Masliczek. Further, he said that it would be inconceivable that such an incident would not be reported because an event of this nature was relevant to gaining a complete picture of the enemy’s activities in the Australian Task Force area of operation. In addition the civil authorities would need to be informed so that the parents of the children could be notified. Mr Church said that burial of two bodies within metres of the other members of the patrol without their knowledge in close country was unbelievable, especially as Mr Masliczek and the soldier were the senior members of the patrol and would be unlikely to lose sight of the remainder of the patrol in these circumstances. In relation to the firing event, Mr Church said that the description by Mr Masliczek of the mortar attacks does not accord with official records and that the officer in charge of the fire support base does not recall Mr Masliczek being part of the patrol that was present at the relevant time.
25. In relation to the shooting incident, Mr Church stated that the official enquiry listed the names of persons present in Private Polglase’s tent after the incident, and Mr Masliczek was not among them. He also raised doubt about Mr Masliczek’s version of events such as being ordered out of the tent by an officer.
26. In relation to the taxi event, Mr Church stated that several aspects of Mr Masliczek’s account are not plausible. For instance all necessary stationery was purchased through Ordnance supply system, so there was no need to go to Vung Tau township. Further, there was a night curfew throughout Vietnam applying to civilians as well as Army personnel, so Mr Masliczek could not have stayed out all night. Mr Church also concluded that an incident such as this would be unlikely as it would have occurred in full view of the armed sentry at the main gate of the Vung Tau base, and would have been reported to authorities.
27. In oral evidence Mr Church stated that, contrary to the assertion by Mr Masliczek, there were many documented reports that the Viet Cong attacked Australian soldiers. Under cross-examination he agreed that in war situations army personnel did not always follow all military rules and procedures.
28. Ms L. Masliczek, wife of Mr Masliczek, told the Tribunal that when they were married in 1970 she was aware that Mr Masliczek had served in Vietnam, but he did not discuss this aspect of his life. She said that she observed many problems faced by Mr Masliczek, including nightmares and difficulty in sleeping. She confirmed that for many years he did not seek counselling or psychiatric treatment. Under cross-examination she agreed that Mr Masliczek had been depressed as a result of his heart condition and employment issues following his heart attack in 1997.
29. In assessing the claimed stressors, the Tribunal takes into account that the descriptions given by Mr Masliczek to medical practitioners and to the Veterans’ Review Board and the Department of Veterans’ Affairs have varied widely and contain many inconsistencies. The Tribunal notes that Mr Masliczek conceded that sometimes he has said the first thing that has come into his head. In his 1999 affidavit in support of his civil claim he did not mention any stressful events in Vietnam, and referred to depression arising from his heart condition and employment issues. He did not mention any major stressful events to Dr Kenny, referring to cardiovascular disease and physical problems. He told Dr Holwill about dealing with the dead bodies, although there is no objective evidence that he encountered any bodies.
30. In respect of the bodies event the Tribunal accepts Mr Church’s evidence that such an incident would have been a notifiable occurrence, as it could have had serious consequences for the security of the Australian Task Force. There was no corroboration of such a significant event and the Tribunal finds the circumstances as described by Mr Masliczek to be inconceivable, particularly the failure by Mr Masliczek and his unnamed colleague to report the matter because they did not want to return to that location; the claim of burial of two bodies with a bayonet without the rest of the patrol being aware, although they were only metres away; and the failure to mention the event to psychiatrists or anyone else until relatively recently. The Tribunal finds that the account given by Mr Masliczek was neither truthful nor accurate, and that the bodies event did not occur, so was not a traumatic event as defined in DSM-IV-TR.
31. In respect of the firing event the evidence from Mr Masliczek was vague and his account of the details such as dates and circumstances of the mortar and rocket fire does not accord with the official records of the fire support base where he claimed to have come under fire. The reports from Dr Gelb and Dr Cole make no mention of the event. The Tribunal finds that the firing event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.
32. In respect of the shooting event the evidence from Mr Masliczek was contradicted by the records of the investigation and Board of Enquiry as described by Mr Church, which concluded that the death of Private Polglase might have resulted from the accidental discharge of his weapon. The Tribunal prefers the accuracy of the official version of events and finds that Mr Masliczek did not enter the tent or see the body in the aftermath of the incident. Consequently the Tribunal finds that the shooting event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.
33. In respect of the taxi event Mr Masliczek’s evidence to the Tribunal was that he started laughing at the time before realising that the weapon had misfired. He told Dr Walton that he was scared at first but laughed about it when he was inside the base. He told Dr Gelb that he ran terrified to the gate. Dr Walton did not consider the incident to be a stressful event. The research by Mr Church indicates that a curfew applied to service personnel and civilians, including motor scooter taxis, and that the main gate at the Vung Tau base was heavily protected by armed sentries. Such an incident would have been taken seriously by authorities and investigated. The Tribunal finds that the taxi event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.
34. In respect of the casualty event Mr Masliczek’s evidence to the Tribunal was that he learned of Private Godden’s death after a month in Vietnam. He told Dr Walton that the death seemed quite unreal but did not appear to have had a lasting impact on him. Dr Gelb, Dr Walton and Dr Cole referred to the event but did not consider the incident to be a stressful event. The Tribunal accepts that Mr Masliczek knew Private Godden from a posting in South Australia, although the evidence suggests that the relationship was not necessarily a particularly close one. There is no doubt that Mr Masliczek was saddened by the death of an acquaintance. However on all the material the Tribunal finds that the casualty event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.
35. In view of its findings on each of the claimed stressors, the Tribunal is reasonably satisfied that Mr Masliczek was not exposed to an event or events that could be described meaningfully as traumatic as is required for a diagnosis of PTSD, and the Tribunal concludes that Mr Masliczek does not, and did not, suffer from PTSD.
36. The Tribunal accepts that Mr Masliczek suffers from a psychiatric condition. He has a collection of symptoms that can be diagnosed as general anxiety disorder or depressive disorder. However, the Tribunal finds that the stressful events described by Mr Masliczek either did not occur or do not amount to a category 1A stressor or a category 1B stressor within the meaning of the Depressive Disorder Instrument or the Anxiety Disorder Instrument. It follows that the psychiatric condition suffered by Mr Masliczek cannot be linked to his operational service in Vietnam.
DOES MR MASLICZEK SUFFER FROM OSTEOARTHRIS OF THE RIGHT HAND?
37. The Veterans’ Review Board reviewed the medical evidence contained in the service medical records and concluded that there was no evidence of osteoarthrosis of the right hand. The Board amended the diagnosis to osteoarthrosis of the fingers of the right hand based on an x-ray of the right hand dated 19 July 2004 which confirmed osteoarthrosis of the fingers.
38. In a report dated 1 March 2007 (Exhibit R2) Dr R. Horsley, occupational physician, said that the x-ray dated 19 July 2004 showed moderate arthritic change in the interphalangeal joints of the fingers. She also referred to an earlier x-ray dated 29 July 1998 which confirmed slight degenerative changes in the distal interphalangeal joints.
39. On all the available material the Tribunal finds that Mr Masliczek suffers from osteoarthrosis of the fingers of the right hand.
IS OSTEOARTHROSIS OF THE FINGERS OF THE RIGHT HAND WAR-CAUSED?
40. In his claim Mr Masliczek said that the painful thumb and finger joints right hand were service-related because he played volleyball while in the army in Vietnam and frequently suffered trauma to the right hand.
41. The discharge medical examination on 19 September 1968 records: Sprain R thumb Jun 68 - sporting injury - no sequelae. An x-ray report dated 4 November 1968 of the fourth finger of the right hand noted: No fracture or dislocation is seen. The interphalangeal joints appear normal.
42. In relation to the first step from Deledio, after considering Mr Masliczek’s evidence and the x-ray reports, the Tribunal determines that the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him. Therefore he does not satisfy the first step.
DOES MR MASLICZEK SUFFER FROM SENSORINEURAL HEARING LOSS IN THE RIGHT EAR?
43. In his claim Mr Masliczek referred to hearing problems - right ear. He told the Tribunal that he has a hearing deficit which he attributed to exposure to gunfire and explosions. He said that he has difficulty communicating in a crowd and where considerable background noise is present. The ringing in his ears comes and goes.
44. Dr Horsley stated in her report that Mr Masliczek has a mild loss of hearing and suffers from bilateral tinnitus. She referred to an audiogram dated 25 August 2004 which confirms a greater right-hand deficit than left-handed deficit, and a mild high frequency loss to the right ear. She said that an audiogram dated 25 May 2005 gave a different picture, with a 0.3% total loss bilaterally.
45. In a report dated 10 October 2006 (Exhibit A1) Mr G. Themistoklis, audiologist, stated that he assessed Mr Masliczek and found the hearing loss on the right side to be very slight, with hearing thresholds on that side normal up to and including 4KHz, and some drop at 6 and 8 KHz. Mr Themistoklis concluded that:
…the current claim for hearing problems is covered by the accepted disability of sensori-neural hearing loss on the left ear and no further disability may be attributed to the right ear.
46. In a report dated 23 August 2006 (Exhibit R9) Ms E. May, audiologist, stated:
Pure Tone Audiometry showed a mild to moderate high frequency, sensorineural hearing loss in the left ear. The right ear is essentially normal apart from a slight dip at 8kHz. Mr Masliczek was surprise[d] that his right ear was normal as he reports that he can’t hear as well with the right ear and that it often feels blocked.
47. The Tribunal takes into account that Mr Masliczek suffers from sensorineural hearing loss of the left ear. However the Tribunal accepts the evidence from the audiologists and finds that Mr Masliczek does not suffer from sensorineural hearing loss in the right ear.
DECISION
48. The Tribunal affirms the decision under review.
I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
signed: Mara Putnis
Associate
Dates of hearing: 19 October 2007, 21 January 2008, 25 March 2008
Date of decision: 31 March 2008
Advocate for the applicant: Mr D. De Marchi
Solicitor for the applicant: De Marchi & Associates
Counsel for the respondent: Mr G. Purcell
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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