O'Neill and Repatriation Commission - [2002] AATA 333

DECISION AND REASONS FOR DECISION [2002] AATA 333

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/111

VETERANS' APPEALS DIVISION       )
           Re      RODNEY JOHN O'NEILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date10 May 2002
PlaceSydney

Decision      The decisions under review are affirmed.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – operational service - post-traumatic stress disorder – whether a war-caused disease – whether symptoms required by Statement of Principles satisfied – requirement for avoidance of stimuli related to stressor not satisfied – generalised anxiety disorder – whether a war-caused disease - symptoms required in Statement of Principles not present – special rate and intermediate rate Disability Pension – veteran not prevented from remunerative employment because of accepted disabilities

Veterans' Entitlements Act 1986 ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), (2), 24A(1), 25, 28, 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2)(a), (d), (e), 196D..
Statement of Principles concerning Post-traumatic Stress Disorder 3/99 and 54/99
Statement of Principles concerning Anxiety Disorder 1/2000.

Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Budworth (2001) 33 AAR 476
Re Saunders and the Repatriation Commission [2000] AATA 382

REASONS FOR DECISION

10 May 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

On 2 June 1998 Rodney John O'Neill ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a Disability Pension in accordance with the Veterans' Entitlements Act 1986 ("the Act") (T9). The conditions in respect of which he claimed were "nervous condition (PTSD?)", irritable bowel syndrome ("IBS"), "heart disease" and duodenal ulcer. He was employed at the time. He attached a smoking questionnaire.
On 11 September 1998 a Repatriation Commission ("the respondent") delegate decided to accept IBS and coronary atherosclerosis as war-caused diseases (T13). Post-traumatic stress disorder ("PTSD") and peptic ulcer disease were rejected as not war-caused. Disability Pension was to be paid at 100% of the general rate. The rejection of PTSD was because of the absence of a stressor (T13/63). The rejection of peptic ulcer disease was because there was no relevant history of cigarette smoking and there were no stressful circumstances of service. The impairment rating under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed), ( ("GARP") was 65 points. A GARP lifestyle rating of 4 was selected. No special or intermediate rate pension was payable (T13/66-67).
At this point in time the applicant had as accepted disabilities the following conditions:

muscular pain chest wall,
right pterygium,
bilateral chronic blepharo conjunctivitis,
haemorrhoids,
bilateral mixed deafness,
vasomotor rhinitis,
IBS,
burns of chest and arms, and
coronary atherosclerosis (ex TD1/1).

Not accepted were the conditions:

proctalgia fugax,
peptic ulcer disease,
skin disorder,
right knee disorder,
duodenal ulcer, and
PTSD (ex TD1/1-2).

On 25 September 1998 Mr O'Neill lodged with the Veterans' Review Board ("the VRB") an application for review (T15) of the decision in T13. He cited stress attributable to his burns as a stressor. He said that his peptic ulcers were due to his smoking. He said that he was prevented from working, even for eight hours a week, by his coronary surgery.
On 27 October 1998 a delegate within DVA wrote to Mr O'Neill to state that she had reviewed Mr O'Neill's case under s 31 of the Act and saw no reason to intervene and change the decision (T17).
On 22 December 1998 a delegate within DVA wrote to Mr O'Neill to state that (s)he had reviewed Mr O'Neill's case under s 31 of the Act and decided to grant payment at temporary special rate from 28 May 1998 until 1 March 1999 (T20). This was a reflection of Mr O'Neill's inability to work during his recuperation period following his heart surgery.
On 3 March 1999 Mr O'Neill lodged with the VRB another application for review arguing that he could not return to work and that his special rate should continue (T21).
On 25 May 1999 a delegate within DVA wrote to Mr O'Neill to state that he had reviewed Mr O'Neill's case under s 31 of the Act and saw no reason to intervene (T23). He considered Mr O'Neill's psychiatric condition not to be war-caused and he found a report by Dr K Koller, a psychiatrist, provided by the applicant in support of his case, to be of little use.
reviewable decision (1)
On 19 October 1999 the VRB handed down its decision (T24/99) on accepted disabilities. It was noted that the claim in respect of peptic ulcer was not being pursued (T24/102). Two stressors had been pressed on the VRB as a basis for the PTSD claim. These were an enemy mortar attack in Nui Dat (T24/103) and an accident in which Mr O'Neill sustained burns (T24/103-104). The VRB was critical of Dr Koller's report. It considered that the applicant's reaction to the stressors was not sufficiently extreme. It accepted that the burning incident was a stressor but that Mr O'Neill failed to satisfy the symptoms for PTSD laid down in DSM-IV, that is the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed) ( There was no suggestion of persistent re-experiencing and of persistence avoidance of stimuli (T24/108).
reviewable decision (2)
On 19 October 1999, in a second decision, the VRB decided to affirm the respondent's decision on Mr O'Neill's eligibility for payment at the special rate (T24/109). The applicant's continuing inability to work was held to be attributable to his PTSD which had been rejected as a war-caused disease
On 9 December 1999 the VRB sent the applicant written notice of its decisions (T24/98).
On 19 January 2000 Mr O'Neill lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review (T1) of the decisions described in paragraphs 10 and 11 above.
RELEVANT LEGISLATION
The relevant provisions from the Veterans' Entitlements Act 1986 are: ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), (2), 24A(1), 25, 28, 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2)(a), (d), (e), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service--post World War 2 service in operational areas
6C.(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…
Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
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War-caused injuries or diseases
9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
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Eligibility for pension
13.(1) Where:
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(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
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(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
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Claim for pension
14.(1)   Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
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(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
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Determination of claims and applications .
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19.(6) Where the Commission has, pursuant to paragraph (5)(a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
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(9) In this section:
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application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a)       the day on which the claim or application was received at an office of the Department in Australia; or
(b)       if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;
claim means a claim made in accordance with section 14;
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Date of operation of grant of claim for pension
20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
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Intermediate rate of pension
23 (1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
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Special rate of pension
24.(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
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Continuation of rates of certain pensions
24A.(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
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Temporary payment at special rate
25.(1)   Where the Commission is satisfied that:
(a)       a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b)       if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2)       Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).
(3)       The Commission may, under this section:
determination is made; and
(b)       determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
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Capacity to undertake remunerative work
28. In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
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Standard of proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
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(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
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(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
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Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
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(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)       a Statement of Principles determined under subsection 196B (2) or (11); or
(b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection.
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Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
…
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
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Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

The relevant Statements of Principles ("SoP") are SoP 3/99 and 54/99 concerning PTSD and SoP 1/2000 concerning Anxiety Disorder.
Instrument No.3 of 1999.
Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.15 of 1994 and Instrument No.225 of 1995; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
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Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post
traumatic stress disorder; or
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8. For the purposes of this Statement of Principles:
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"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
"relevant service" means:
(a) operational service; or
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Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Fourteenth day of January 1999
Instrument No.54 of 1999
Amendment of Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.3 of 1999, (Statement of Principles concerning post traumatic stress disorder), by:
A. deleting the definition of "experiencing a severe stressor" in clause 8 and inserting in its place the following definition of "experiencing a severe stressor" in clause 8:
"'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;".
2. The amendments made by this instrument apply to all matters to which Instrument No.3 of 1999 and section 120A of the Act apply.
Dated this Twenty-Fourth day of June 1999
Instrument No.1 of 2000
Statement of Principles concerning ANXIETY DISORDER
ICD-10-AM CODES: F06.4, F41.1, F41.8, F41.9
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.48 of 1994 and Instrument No.275 of 1995 concerning generalised anxiety disorder; and Instrument No.380 of 1995 concerning anxiety disorder due to a general medical condition; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, "anxiety disorder" is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
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Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
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(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
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Other definitions
8. For the purposes of this Statement of Principles:
"anxiety due to a general medical condition" means a psychiatric disorder where:
A. Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and
B. There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and
C. The anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and
D. The anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and
E. The anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social, occupational, or other important areas of functioning;
"anxiety disorder not otherwise specified" means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
…
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"generalised anxiety disorder" means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
…
"psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
"relevant service" means:
(a) operational service; or
…
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Twenty-eighth day of January 2000

BACKGROUND

Mr O'Neill was born on 25 December 1946 (T9/34), the eldest of four children. He enlisted on 7 February 1968 and was discharged on 6 February 1970 (T4/15-16). He rendered operational service from 9 May 1969 until 7 January 1970 (T13/62).
Before enlisting in the army Mr O'Neill worked as a boilermaker (T4/14). He had been educated to second year in high school (T4/14). He provided a long list of employment positions he held after service (T9/36). He worked in boilermaking, welding and as a supervisor. He was self-employed for 20 years (T11/58). Dr Chen captured some interesting material on Mr O'Neill's work (ex R4/1-2) where she wrote:
"Mr O'Neill stated that he started his own business as a boilermaker around early 1973 and continued in this capacity until 1998. He had started the business in partnership with one other, and bought his partner out after six months when they did not get along. He continued then in a self-employed capacity. He worked in his own business, working in factories or construction sites until May 1998, when he was diagnosed with angina and ischaemic heart disease. Prior to that, he worked long hours, from 7:00am to 7:00pm, six days per week. He stated that he averaged 70 hours per week.
"He stated that he stopped work after Anzac Daily in late April 1998, after experiencing chest pain whilst walking home after a march on Anzac Day. He stated that he has not returned to work since. He stated that his GP has advised him to avoid heavy work in view of his heart condition. This is despite his having had a successful coronary artery bypass graft surgery. He also added that his psychiatrist, recommended by the Vietnam Veterans' Association had also advised him not to work.
"He stated that he is not seeking employment. He is receiving a service pension."
Mr O'Neill ceased work late in April 1998 (ex R4/8).
Mr O'Neill has been married twice. He told Dr Dinnen (ex A1/4) that his first marriage was from 1973 to 1987. His wife left with him the care of the three children for about two years until she then started to care for them. His first son is 28, is married and lives in the Macquarie Fields but Mr O'Neill said that he was not invited to that son's wedding. The second son is 22 and is a pastry cook living with his mother and is "not supposed to know where I'm living". Mr O'Neill recalled that during the marriage his wife would complain that he would toss and turn and was still fighting the war during the night. She would not sleep in the same bed and never accepted him with his problems. He considered that she turned their children against him. He remarried in about 1995 and has two young children, one aged around seven years and the other aged around six years. His second wife is from the People's Republic of China and is considerably younger then Mr O'Neill. He said that they have a good and happy marriage.
HEARING AND APPEARANCES
The tribunal convened a hearing in this matter in Sydney on 20 February 2001. Mr N Dawson of counsel represented Mr O'Neill. Ms P Hook of DVA represented the respondent.
The tribunal had before it certain documentary evidence marked as exhibits as follows:

Exhibit TD1 – Section 37 Statement and associated documents (ex T1-T17) provided by DVA on 26 February 2000.
Exhibit A1 – Report dated 28 April 2000 by Dr A Dinnen, psychiatrist.
Exhibit A2 – Report dated 9 November 2000 by Dr Dinnen.
Exhibit A3 – Undated statement by the applicant.
Exhibit A4 – GARP ratings by Dr K Koller, psychiatrist.
Exhibit A5 – Applicant's statement of facts and contentions dated 10 October 2000.
Exhibit R1 – Report dated 19 April 2000 by Dr D Richards, cardiologist.
Exhibit R2 – Dr Z Nanavati's clinical notes.
Exhibit R3 – Dr H Wolfenden's clinical notes.
Exhibit R4 – Report dated 30 May 2000 by Dr J Chen, occupational physician.
Exhibit R5 – Report dated 1 June 2000 by Dr N J Schultz, psychiatrist.
Exhibit R6 – Report dated 5 October 2000 by Dr M Jaffe, general practitioner.
Exhibit R7 – Respondents statement of facts and contentions dated 10 July 2000.

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

The tribunal makes the following uncontroversial findings.
The applicant was born on 25 December 1946 and was aged 51 when he lodged his claim.
The applicant served in the army and rendered operational service from 9 May 1969 to 7 January 1970 (T13/62).
The applicant lodged a valid claim on 2 June 1998 (T9).
The date of effect of any decision favourable to the applicant would be 2 March 1998 (s 20(1) of the Act).
The standard of proof in relation to whether his PTSD is a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to eligibility for special rate is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The SoP relevant to the determination of this matter is, prima facie, SoP 3/99 concerning PTSD as amended by 54/99. If the hypothesis fails in relation to the 1999 SoPs then the SoP in force at the time of the primary decision (11 September 1998), SoP 15/94 as amended by SoP 225/95 can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
ptsd as a war-caused disease
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant.
The second step is to ascertain whether there is a relevant SoP in force.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 31 AAR 270, 282 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.
"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."

Again, in Arnott v Repatriation Commission (2001) 32 AAR 445, 452-453, the full Federal Court put the matter succinctly in paragraph 27 when it wrote:
"However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."

As the tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the applicant, in the opinion of the tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP.
It is difficult not to engage in a fact finding exercise in step three of Deledio (above). There is an account given by the applicant. There is a rebuttal by the respondent where the respondent refers to evidence before the tribunal. However, the tribunal takes the correct approach to be to have regard to the applicant's version in step three and see whether that meets the SoP template.
If the tribunal finds that step three has been satisfied that means that the hypothesis raised by the applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (supra), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the respondent come into play. The tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the tribunal beyond reasonable doubt that the applicant's PTSD was not war-caused.
By the time this matter reached the tribunal the hypothesis raised was that the incident in Vietnam where the applicant received serious burns to his upper body was a stressful incident that caused his PTSD condition.
The relevant SoPs have already been identified in paragraph 28 above.
In considering whether the hypothesis is consistent with the template in the SoP the first step is to confirm the diagnosis of PTSD. The identified SoPs will not apply if the condition is not PTSD. Dr Jaffe, Mr O'Neill's general practitioner, has diagnosed PTSD (T10/51). Dr Koller found PTSD symptoms on 12 August 1998 (T11). He gave the applicant a GARP rating of 43 for PTSD in February 1999 (T22/91) and 48 in March 1999 (T24). Dr Dinnen diagnosed PTSD (ex A1). Dr Schultz agonised over the appropriate diagnosis in ex R5. He said in summary at page 9:
"If one assumes that the burning incident was frightening and that his current symptoms are related, then I believe that it is possible for him to satisfy a diagnosis of post traumatic stress disorder. However, a strong argument could equally be made against this given that he did not avoid the situation when given the opportunity and his symptoms of re experiencing and anxiety are not very specific."
Dr Schultz thought that Mr O'Neill could just as easily have a panic or phobic anxiety disorder (ex R5/9).
In accordance with Repatriation Commission v Budworth (2001) 33 AAR 476 the tribunal provisionally finds that the applicant suffers from PTSD. The only genuinely contrary opinion could possibly be Dr Schultz's and even he sees PTSD as a live option. This finding is provisional because of the definition of art of PTSD that appears in the SoP.
SoPs 3/99 and 54/99 require that the hypothesis raised satisfies the following requirements:
(a)The applicant's psychiatric condition needs to be said to demonstrate a long list of symptoms in clause 2(b) under sub-headings, traumatic event, re-experiencing, avoidance, arousal, duration and impairment of functioning.
(b)Factor 5(a) requires that the hypothesis posit that Mr O'Neill "experience[ed] a severe stressor prior to the clinical onset of" PTSD.
(c)Clause 8 requires that, in order that it can be said that the applicant experienced a severe stressor, the hypothesis must be that he "experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity". Clause 8 says that events that qualify as severe stressors include threat of serious injury or death, engagement with the enemy or witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
(d)If factor 5(a) is reflected in the hypothesis, it must be related to Mr O'Neill's relevant service. In accordance with clause 8, Mr O'Neill's relevant service would be his operational service.
Several of these criteria are easily satisfied by the hypothesis. The incident where Mr O'Neill was burned occurred during operational service. The circumstances, which are set out below, clearly satisfy the requirement for the experiencing of a severe stressor. Mr O'Neill experienced, according to the hypothesis, an event that involved actual serious injury and a threat of death to himself. The tribunal finds that this incident involved threat of serious injury or death in accordance with the examples in the definition in clause 8 (see paragraph 44(c) above). This stressor was said to have been experienced prior to the clinical onset of PTSD. Mr O'Neill suggested a clinical onset in 1969-1970 (T9). Dr Jaffe described a severe intermittent anxiety problem since he first saw Mr O'Neill in 1983 (T9/37), so it was perceptible at that time.
The particular incident involving the burning of Mr O'Neill was described by him to the VRB. The VRB's record is as follows. "The second event related to the first and second degree burns suffered by veteran on 5 November 1969. He was involved in clearing vegetation at the Nui Dat perimeter and at the time was bare from the waist up. As part of burning-off the vegetation, the veteran threw diesoline from a tin in to the ground. This caused an explosion which ignited his trousers at the waist. He immediately dived into adjacent high grass and rolled 4 or 5 times to extinguish the fire. He suffered burns to the face, neck, chest and arms. He remembered 'bits and pieces' hanging off him. He was evacuated to the Field Hospital at Vung Tau for treatment. At the time of the incident he said his primary responses were self-preservation and horror."
The versions of the story given by the applicant to others tally with the above version. He said to Dr Schultz (ex R5/3) that he was "shit scared at the time … didn't have time to think about … I just had to save my life by diving into the grass".
The respondent accepted that the incident involving the fire and the resulting first and second degree burns constituted an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity (ex R7). However, the problem as seen by the respondent was:
"…
that the Applicant's response to that event did not involve intense fear, helplessness or horror and the Respondent relies on the report by Dr Schultz and the medical history sheet at ff. 26-29 of the T-documents. The Respondent relies on Saunders and the Repatriation Commission [[2000] AATA 382].
…"
The respondent is correct to refer to the requirements in clause 2(b)(A)(ii) of the SoP. This provision requires, in addition to the experiencing of an event that involved threatened death or serious injury or other similar threats, that "the person's response involved intense fear, helplessness, or horror", if the condition in question is to be PTSD. Clause 2 is the provision defining the condition.
The evidence on this matter before the tribunal was as follows.
Dr Dinnen gave oral evidence. He understood that a reason why it was thought that Mr O'Neill's reaction had been less intense than required was that he had returned to the field and not opted to be medivac'd back to Australia. Dr Schultz had commented to this effect. Dr Dinnen saw this refusal to be evacuated as not inconsistent with Mr O'Neill having PTSD. He had experienced about six months of service in Vietnam when burned and had only about a month to wait to see out his Vietnam commitment. Dr Dinnen would not have expected him to agitate to be returned home sooner. He thought there could also have been an element of bravado in returning to the scene of the trauma.
In his own evidence Mr O'Neill said that he declined medivac because he had only to wait a few weeks to be returned to Australia and he could do that with his intake.
Ms Hook, for the respondent, argued in the tribunal that the constellation of other symptoms required in clause 2 of the SoP were not completely satisfied according to the material in support of the hypothesis. The applicant experiences intrusive thoughts about being burned but the other requirements are met by reference to more general experiences. She relied on evidence from Drs Chen (ex R4), Dinnen (ex A1) and Schultz (ex R5) for these propositions. These require consideration.

Clause 2(b)(B) requires re-experiencing of the traumatic event in at least one of five nominated ways. Ms Hook had conceded that this requirement was met. Dr Dinnen recorded (ex A1/3) that Mr O'Neill still has thoughts from time to time of how he jumped into the grass and rolled over to put out the flames. He told Dr Chen (ex R4/4) that "the only thing that he still 'thinks about' is the 'burns'". Dr Schultz recorded (ex R5/4-5) that he has nightmares but these do not refer to the flames. He ruminates about the war but he made no reference to the burning in these.
Clause 2(b)(C) requires avoidance of stimuli associated with the trauma. In Mr O'Neill's case the avoidance criterion seems to relate to a reluctance to leave the house and go to busy places (ex R5/5). There is nothing regarding avoidance of stimuli in the reports of Drs Dinnen or Chen. There is also nothing in Dr Koller's various reports. This is difficult because the SoP requires that the hypothesis posit that there be three or more indicia of avoidance of stimuli. It is not possible to find any related to the burns incident on the account presented by or for Mr O'Neill.
Clause 2(b)(D) is satisfied. There is significant evidence that the applicant has difficulty with sleep, with startle response and hypervigilance. Dr Schultz (ex R5) and Dr Chen (ex R4) support this.

The tribunal finds that the SoP is not met by the hypothesis raised. It is satisfied that the applicant's immediate response to the fire incident did involve helplessness and horror on the basis of the applicant's history presented to Dr Schultz. However, the SoP requirement for three or more indications of avoidance of stimuli is not reflected in any aspect of the hypothesis that has been raised.
This means that the PTSD condition, if that is what it is, is not a war-caused condition in accordance with ss 120(3) and 120A(3) of the Act. The tribunal so finds.
In accordance with the Federal Court decisions in the Gorton and Williams cases (above) the tribunal has considered the earlier PTSD SoPs and ascertained that the applicant's hypothesis fails to conform to them for the same reason as it failed under SoP 3/99. Clause 4 of SoP 15/94 defines "post-traumatic stress disorder" so as to require in paragraph (c) the satisfaction of at least three avoidance of stimuli criteria of a similar nature as those in the current SoP.
That does not relieve the tribunal from an obligation to consider whether another disease might be war-caused as a result of Mr O'Neill's war-time trauma. The Federal Court in Budworth (above) required that a decision-maker consider the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted and ascertain whether they are war-caused.
anxiety disorder as a war-caused disease
The tribunal considers that Mr O'Neill may suffer from anxiety disorder and that the hypothesis raised may support that as a war-caused disease.
Clause 2(b) of SoP 1/2000 includes generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified within this SoP. Clause 8 of that SoP defines these terms. Of these the generalised anxiety disorder may be satisfied by the hypothesis. This requires excessive anxiety and worry occurring on more days than not for at least six months about a number of events or activities. There are additional requirements which will be considered below.
The tribunal has rejected anxiety due to a general medical condition, a form of anxiety disorder included in the SoP, because there has been no discussion in the material of a medical condition being the source of anxiety.
The definition in clause 2(b) excludes "the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia". The problem is that Dr Schultz suggested that Mr O'Neill's condition could just as easily be diagnosed as a panic or phobic anxiety disorder. If the condition is one of these SoP 1/2000 would not be applicable.
The tribunal finds that Dr Schultz did not finally diagnose the condition as panic disorder or phobic anxiety disorder. It was a possibility. The tribunal considers that that leaves open the possibility of generalised anxiety disorder. In accordance with the definition is clause 8, a number of features must be demonstrated. These features, and how they are reflected in the material about Mr O'Neill, are:

Excessive anxiety and worry occurring on more days than not for at least six months and these are about a number of events or activities. This may be problematic. Dr Jaffe (T10/51) recorded anxiety in public places or on busy roads and in heavy traffic. Dr Dinnen (ex A1/3) recorded Mr O'Neill as saying that he gets "a bit nervous. I don't like crowds. I don't go shopping. …" Dr Schultz (ex R5/5) recorded that he gets "a bit uptight and on my high horse". His wife could tell when he was not taking his medication. He reported sometimes becoming "sweaty and anxious and gave an example of sitting on a packed train to go to the" VRB. For Dr Chen (ex R4/4) the applicant also spoke of "strange moods" and disliking going out to shops and travelling by train. There was no mention of anxiety as such. While it would be preferable for these symptoms to be tied more closely to Vietnam and the burns incident, the SoP does not explicitly require that as it did in the PTSD context.
The veteran must find it difficult to control the worry. This is not an explicit part of the hypothesis advanced. The material provided for him by Dr Jaffe might suggest that he has no difficulty in that he was receiving no treatment. However, that was in 1998. He now sees Dr Koller every three months and takes Zoloft. He becomes "stroppy and toey" if he misses his Zoloft. However. it seems that he can control his worry with treatment and medication.
The veteran's anxiety and worry must be associated with at least three symptoms from a list of six including restlessness or feeling keyed up and on edge, being easily fatigued, concentration problems, irritability, muscle tension, sleep problems. Mr O'Neill has cited sleep problems and irritability but it is difficult to find a third symptom from what he has said.

The tribunal could proceed to consider other elements in the definition of generalised anxiety disorder but, on the material considered thus far, Mr O'Neill's hypothesis does not accord with the SoP requirements. This is unfortunate because, in the tribunal's view, the requirements for a "severe social stressor" have been advanced in Mr O'Neill's material about the burns incident.
The tribunal has considered the earlier SoP on generalised anxiety disorder (SoP 48/94 as amended by 275/95) and has ascertained that the requirements causing difficulty under the current SoP are requirements also in the earlier SoP. The tribunal therefore finds that the hypothesis does not conform to the requirements in the SoP concerning anxiety disorder. The tribunal therefore finds that the applicant has no war-caused disease of anxiety disorder.
any other psychiatric disease as a war-caused disease
Consistently with the requirements in the Budworth case (above), the tribunal has considered whether the collection of symptoms experienced by the applicant might suggest some other, perhaps indeterminate, psychiatric condition that could be regarded as war-caused, whether or not it is covered by a relevant SoP. The tribunal has found that there is no such condition, given the evidence and the hypothesis advanced. Although the applicant suggested other possible stressors at various times to the VRB and to doctors, these do not take the analysis very far. To a large degree they relate to the general unease and uncertainty of service in Vietnam and do not constitute stressors as required for PTSD or anxiety disorder. There is also Mr O'Neill's understandable and very credible evidence to Drs Chen and Schultz in which he relied very heavily on the burns incident as the relevant stressor. The tribunal considers that it has fully examined the potential for that stressor to have led to a war-caused psychiatric disease and has been unable to find for the applicant in that respect.
assessment of rate of disability pension
The applicant receives a pension paid at 100% of the general rate. There were submissions made on GARP ratings at the hearing but the tribunal sees little point in considering these as the existing assessment is for a 100% pension. He is seeking payment of an earnings related special or intermediate rate pension. The tribunal will consider his possible entitlement to special rate, the more generous rate, in the first instance. Section 24 of the Act sets out the criteria for special rate. Several criteria are clearly satisfied.
The applicant, as found earlier, has made a claim under s 14 of the Act for a pension (s 24(1)(aa) of the Act). As found earlier, he was aged only 51 when he lodged his claim (s 24(1)(aab) of the Act).
Mr O'Neill's degree of incapacity from war-caused injury or disease has been determined to be 100%, that is over 70%, as required by s 24(1)(a) of the Act.
It is necessary to have recourse to s 28 of the Act to apply the requirement in s 24(1)(b), that is that Mr O'Neill's incapacity from war-caused injury or disease must be "of such a nature as, of itself, alone, to render [him] incapable of undertaking remunerative work for … more than 8 hours a week". The tribunal makes the following findings:

Mr O'Neill's vocational, trade and professional skills, qualifications and experience are in the fields of boilermaking, welding and the supervision and management of such activities (see paragraph 17 above). Dr Chen supports this proposition (ex R4). He told Dr Schultz that he had for the previous 15 years been involved in building hot rods (ex R5/5) but the tribunal would not regard that as a skill in the intended sense.
The remunerative work that a person with Mr O'Neill's skills and experience might reasonably undertake would be the types of manual work he did before he stopped in May 1988.
Left to its own devices the tribunal would consider that Mr O'Neill's accepted disabilities would have the following effects on his capacity to undertake boilermaking and welding. Mr O'Neill has a range of accepted conditions. They include conditions that would impede him from suitable work. Chest wall pain would militate against lifting. His eye problems would make welding extremely difficult and would be a liability in boilermaking. His deafness would be a potential problem in these types of work. It could be a safety issue. His coronary atherosclerosis has apparently been largely remedied through surgery (Dr H Wolfenden, T18; Dr Richards, ex R1). Otherwise, the heart condition would prevent Mr O'Neill from heavy lifting. It is unclear from the material before the tribunal when the chest wall and eye problems were accepted as war-caused and it seems that Mr O'Neill may have worked on for a period despite them, although possibly in the supervisory/managerial function. If he continued the manual work despite these conditions, the tribunal would expect that he did so unsafely. However, Dr Chen (ex R4) provided an expert opinion that after recovery from his heart surgery "he would have been able to return to work on a part-time basis for 20 hours per week, doing selected boilermaker duties, such as welding, and gradually increasing to full time 40 hours per week and full duties over a three-month period". She saw his non-coronary accepted conditions as "relatively minor". Given Dr Chen's detailed analysis, and the fact that he had worked for many years with the conditions other than the coronary disease, the tribunal finds that the applicant's war-caused disabilities are not of such a nature as, of themselves, to render him incapable of undertaking (suitable) remunerative work for more than eight hours a week.

The finding in relation to s 24(1)(b) actually disposes of s 24(1)(c) also. However, for the sake of completeness, in considering s 24(1)(c) of the Act it is necessary to ascertain a number of matters. Foremost is whether the accepted disabilities alone prevent the applicant from performing the suitable remunerative work, or whether other factors operate also to prevent him from doing that work. Of the non-accepted disabilities, only Mr O'Neill's anxiety condition would adversely affect his capacity for work. The others might make his life less comfortable but that is as far as they go. Dr Koller declared Mr O'Neill unemployable in February 1999 (T22) but the report has all the signs of preparation in haste and he did not clearly explain the role of what he regards as PTSD in this. Dr Dinnen wrote on 28 April 2000 (ex A1/5), "I do not believe the patient is employable because of this condition in combination with his cardiac problems …" This is rather too ambiguous to be helpful given that the cardiac surgery was successful and the psychiatric condition is not war-caused. However, in ex A2 he clarified that the PTSD would not of itself prevent Mr O'Neill from working. Dr Schultz (ex R5/9) considered that:
"Mr O'Neill ceased work after an episode of angina which revealed coronary artery occlusion and was treated suitably with a bypass procedure. Mr O'Neill's operation seems to have been successful and he no longer has angina. After this procedure most people would be able to return to their usual life functions....
"In the future it is likely that Mr O'Neill will have ongoing psychiatric difficulties in much the same way that he has for much of his life. Notably even though they have been present, he has managed to cope with these symptoms and [they] have not prevented him from working or maintaining relationships over extended periods, his son excepted. In my view the post traumatic stress disorder does not prevent Mr O'Neill from working in his usual occupation as boilermaker or, any other occupation that he may choose...."
Dr Dinnen endorsed this view. Dr Chen said, "I do not consider that his non-accepted and non-claimed disabilities would have prevented him from working during the assessment period, that is from 2 March 1998 until present. The history indicates that his psychological/psychiatric status did not prevent him from being [a] self-employed boilermaker prior to April 1998, and working long hours. He had discontinued work after being diagnosed with ischaemic heart disease, and not for any other reason.... His alleged post traumatic stress disorder does not prevent him from undertaking remunerative work. The other mentioned conditions would not prevent him from working full-time and participating in full employment as boilermaker. His right knee condition is mild and does not cause significant disability."
Section 24(1)(d) is satisfied. Since 1 March 1999 the applicant has not been in receipt of a temporary special rate under s 25 of the Act.
Given the findings related to s 24(1)(b), there is no ambit for applying the ameliorating provision in s 24(2) of the Act.
CONCLUSION
In relation to the first reviewable decision the tribunal has found that the applicant has no war-caused psychiatric condition. This finding accords with the decision under review.
In relation to the second reviewable decision, the tribunal has found that the applicant does not qualify for payment at the special rate. This is essentially because of the finding that he can engage in suitable remunerative employment for extended hours despite his accepted disabilities. That finding would apply also in relation to s 23(1)(b) of the Act to preclude payment at the intermediate rate. This finding also accords with the decision under review.
DECISION
The decisions under review are affirmed.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 February 2001
Date of Decision  10 May 2002
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    Ms P Hook, DVA
Solicitor for the Respondent    Mr J Marsh, DVA