Rayson and Reptriation Commission

[2011] AATA 233

CATCHWORDS – PENSION – conditions of depressive disorder and post traumatic stress disorder (PTSD) claimed as war-caused – claimed to have resulted from service in the Royal Australian Navy – found not to be suffering from PTSD but suffering from major depressive disorder – whether major depressive disorder war-caused – decision affirmed.

PRACTICE AND PROCEDURE – whether Tribunal can consider Statement of Principles (SoPs) in force at the time of review by the Veterans’ Review Board – right to have review conducted based on SoP in force from time to time.

Acts Interpretation Act 1901 ss 8, 33, 50
Administrative Appeals Tribunal Act 1975 s 40(1A), 43(1)
Compensation (Commonwealth Government Employees) Act 1971
Compensation Employees’ Rehabilitation and Compensation Act 1988
Health Insurance Act 1973
National Health Act 1953
Veterans’ Entitlements Act 1986 ss 5C(1), 5D, 5Q(1), 7(1)(a), 6 to 6F, 8, 9, 13(1), 14(3), 14(4), 17, 19(1)(a), 19(2), 19(3), 19(5A), 19(5B), 19(5C) 19(5D), 19(6), 19A, 19(9), 21A, 22, 23, 24, 29(1), 32, 120, 120(1), 120(3), 120(4), 120A, 120A(2), 120A(3), 120A(4), 126(1), 128, 196B, 196B(2), 196B(7), 196B(8), 196C(4), 196CA, 196G

Guide to the Assessment of Rates of Veterans’ Pensions
Statement of Principles: number 27 of 2008; 40 of 2010; 17 of 2007; 65 of 1996; and 181 of 1996

Banovich v Repatriation Commission (1986) 69 ALR 395; 6 AAR 113
Bist v London and South Western Railway Co. (1907) AC 209
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; 66 ALJR 753
Byrnes v Repatriation Commission (1993) 177 CLR 564; 116 ALR 210; 67 ALJR 805; 18 AAR 1; 30 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261; 25 AAR 396
Esber v The Commonwealth (1992) 174 CLR 430; 106 ALR 577; 66 ALJR 373; 15 AAR 249
Fletcher v FCT (1988) 19 FCR 442; 84 ALR 295; 16 ALD 280
Giovanni Dapueto v James Wyllie & Co.; The Pieve Superiore L.R. 5 PC 482
Gover’s Case 1 ChD 182
Jebb v Repatriation Commission (1988) 80 ALR 329; 8 AAR 285
Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647
Lucas v Repatriation Commission (1986) 69 ALR 415
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484
Maxwell v Murphy (1957) 96 CLR 261
McLean v Repatriation Commission (2001) 187 ALR 158
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283; 74 ALD 366
Re Easton and Repatriation Commission (1987) 12 ALD 777; 6 AAR 558
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Repatriation Commission v Deledio (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193
Repatriation Commission v Gorton (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609
Repatriation Commission v Keeley (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401
Repatriation Commission v Thomas (2002) 37 AAR 122; 71 ALD 289
Repatriation Commission v Thompson (2001) 107 FCR 235; 63 ALD 1; 32 AAR 514
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
Shi v Migration Agents Registration Authority (2008) 248 ALR 390; (2008) 82 ALJR 1147; (2008) 103 ALD 467
Woodward and Another v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424

DECISIONS AND REASONS FOR DECISION [2011] AATA 233

ADMINISTRATIVE APPEALS TRIBUNAL      )     

)     No. 2007/0783

VETERANS’        APPEALS       DIVISION       )

Re:RACHEL RAYSON

Applicant

And:REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie

Place:  Melbourne

Date:  7 April 2011

Decision:The Tribunal decides to affirm the decision of the Repatriation Commission dated 3 May 2005 and as affirmed by the Veterans’ Review Board in a decision dated 14 November 2006.

S A Forgie

Deputy President

REASONS FOR DECISION

The late Mr Stanley Rayson lodged a claim for a pension under the Veterans’ Entitlements Act 1986 (VE Act) in respect of conditions he claimed had resulted from his service with the Royal Australian Navy (RAN).  The Repatriation Commission (Commission) refused to accept his claim on the basis that they were not war-caused and the Veterans’ Review Board (VRB) affirmed its decision.  He then applied to this Tribunal for review of the decision.  His claim was based on his contention that he was suffering from depressive disorder and post traumatic stress disorder (PTSD) and that he did so as a result of his service with the RAN.  During the course of the proceedings, Mr Rayson died and his widow and personal representative, Mrs Rachel Rayson, has continued them as she is entitled to do under
s 126(1) of the VE Act.

1. I have made two previous decisions in this matter regarding procedural matters.  The first[1] concerned the Commission’s power conferred under s 19A(1) of the VE Act to delay consideration of the application for review lodged by Mr Rayson when he had declined to sign forms asking Medicare Australia to release his Medicare and Pharmaceutical Benefits Scheme histories (Medicare & PBS histories) to the Tribunal, the Department of Veterans’ Affairs and to both his solicitors and those acting for the Commission.  The PBS histories are maintained by Medicare Australia under the National Health Act 1953 (NH Act) and the Medicare histories under the Health Insurance Act 1973 (HIA). I decided that s 19A of the VE Act does not confer powers or discretions that the Tribunal may exercise for the purpose of reviewing a decision. I also decided that the Tribunal could summons the PBS histories relying on its power under s 40(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act) but not the Medicare histories. Mr Rayson could have obtained the Medicare & PBS histories and there appear to be no limits on the use that he might make of them. I left open for further consideration the question whether the Tribunal should exercise its power to direct Mr Rayson to obtain those histories until the parties had an opportunity to consider the matter further.  In the second decision,[2] I was concerned with the submission made by Mr De Marchi on behalf of Mr Rayson that the Commission could obtain the Medicare & PBS histories using its powers under s 128 of the VE Act.  I decided that the Commission could not use those powers in view of secrecy provisions in the NH Act and the HIA.  I decided to direct Mr Rayson to obtain and lodge in the Tribunal and serve on the respondent a copy of his Medicare & PBS histories for the purpose of reviewing the decision under review.

   [1] [2008] AATA 1063; (2009) 49 AAR 189; (2008) 109 ALD 137

   [2] [2009] AATA 231; (2009) 49 AAR 254; 102 ALD 168

1. Since then, Mr Rayson has died and his widow, Mrs Rachel Rayson, has continued his application for review of the Commission’s decision as affirmed by the VRB.  She has done so as his legal personal representative as she is entitled to do under s 126(1) of the VE Act.  After hearing evidence, to which I will refer, and submissions made by Mr De Marchi on behalf of Mrs Rayson and by Mr Brown on behalf of the Commission, I have decided to affirm the Commission’s decision, which was itself affirmed by a decision of the VRB.

BACKGROUND

The Korean War

1. On the basis of the evidence of Mr Cecil Robert (BoB) Morris, who is the President of the Korean Recognition Committee, I find that he served as a stoker on HMAS Tobruk (Tobruk) from 25 June 1950 to 19 April 1956 and so served on it during both its tours of duties in North Korea.  I also find that, what Mr Morris called the Armed Truce phase and what others call the Armistice, began on 27 July 1953.  Australia lost 339 servicemen in the heavy combat phase preceding the Armistice and 18 during it.

1. Mr Morris gave evidence regarding the activities of the Tobruk.  Although I will return to that later, I find that Tobruk carried a crew of 312.  Its crew were trained to carry out more than one task and worked as a team.  Mr Morris produced a short history of the Tobruk taken from HMA Ship Histories on the Navy’s website: On the basis of that, I make the following findings of fact:

   “TOBRUK returned to Korean waters on 26 June 1953 when she reported for duty to Commander Task Unit 95.1.2 (HMS NEWCASTLE) at Taechong Do as relief to her sister ship HMAS ANZAC for west coast operations.  On 27 June she joined the screening force covering the carrier HMS OCEAN.  This duty continued until OCEAN was relieved by USS BAIROKO on 5 July.

   TOBRUK’s next mission was with Task Group 95.2 as part of the Yangdo Blockade and Patrol Group.  She reached Yang Do on 14 July where she relieved HMAS HURON.  Operations with this group continued until the close of hostilities on 27 July 1953.  On 16 July TOBRUK sank a large motor sampan suspected of operating as a minelayer.  She fired her last shots of the war on 24 July when she fired a few rounds of 4.5 inch ammunition at a radar post installation on Musudan Point between Chongjin and Yang Do.

   Although hostilities ended on 27 July 1953, TOBRUK continued to serve in Korean waters in the post war period, conducting post Armistice patrols until January 1954.  During her second tour of duty in Korean waters she steamed 26,000 miles, including some 7,000 miles before the end of hostilities.”[3]

   [3] Exhibit A at 6-7

Mr Rayson and his family

1. I find that Mr and Mrs Rayson first met in Singapore in the mid to late 1970s.  They had been penpals during 1977 and 1978.  Mrs Rayson had moved to Singapore with her parents.  They married on 6 June 1979.  Their son, Mark, was born in 1980 and their daughter, Sian, in 1981.  They lived in regional Victoria where
   Mr Rayson worked as a storeman. 

   
   

1. Mr Rayson was a devoted father to his children and wanted to give them the best education and sporting and musical opportunities he could.  He had been adopted by the Raysons as a nine month old baby.  Mrs Rayson had not known of that fact until ten or 15 years ago.

1. Mr Rayson suffered declining physical health in his latter years.  This is set out in the medical reports to which I refer later in these reasons.  For the moment, I find that Mr Rayson had an aortic valve replaced in or about 1998 and also had stents inserted and an in situ stenosis.  He has suffered from osteoarthritis and a peptic ulcer.  Mr Rayson also suffered from cerebral atrophy and his short term memory was impaired.

1. Mrs Rayson has suffered episodes of serious ill-health over the years.  In 1992, she underwent her first operation for a brain tumour, which was as large as an orange.  Eighteen months later, Mrs Rayson was rushed to the Royal Melbourne Hospital for another tumour located behind her left eye.  As a result of the surgery, she lost the sight in her left eye.  Another eighteen months later, Mrs Rayson was sent to the Peter McCallum Hospital for treatment and remained for six months.  The treatment was for a further tumour located at the top of her spine.  The tumour is as big as a thumbnail but it cannot be operated upon without causing paralysis.  Mrs Rayson has also had her left breast removed as a result of cancer and, in February 2010, a cancerous growth was removed from her right breast.

Eligibility for a pension by way of compensation for certain incapacities

1. Part II of the VE Act provides for the payment of certain pensions other than service pensions. In so far as it is relevant in this case, s 13(1) provides that:

   “Where:

   (a)…;

   (b)a veteran is incapacitated from a war-caused injury or a war-caused disease;

   the Commonwealth is, subject to this Act, liable to pay:

   (c)…;

   (d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;

   in accordance with this Act.”

1. A “war-caused disease” and a “war-caused injury” are defined in s 9 by reference to a variety of criteria. Only two are relevant in this case and they are found in ss 9(1)(a) and (b):

   “Subject to this section and section 9A, 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;

   (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

   (c)-(e)…;

   but not otherwise.”

1. It follows that, in order to be eligible for a pension under s 13(1), a

person must:

(1)be a veteran;

(2)have suffered an injury or contracted a disease;

(3)have suffered that injury or contracted that disease in the circumstances set out in either ss 9(1)(a) or (b) so that it is a war-caused injury or war-caused disease; and

(4)       have suffered an incapacity from that injury or disease.

I will consider the matter by reference to each of these four criteria.

A veteran with operational service

1. The first criterion is that of being a “veteran”. It is an expresion defined in s 5C(1) of the VE Act but I need only have regard to paragraph (a)(i) of it. That paragraph provides that a “veteran means (a) a person … who is, because of section 7, taken to have rendered eligible war service”. Subject to a qualification that is not relevant, s 7(1)(a) provides that “a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service”. Sections 6 to 6F set out when a person is rendering operational service but there is no need to go into their detail for it is agreed that
   Mr Rayson had operational service.

   
   

1. I find that Mr Rayson was born on 21 March 1932 and served as a cook and as a gunner with the RAN during two periods.  The first began on 14 May 1951 and ended on 14 May 1957 and the second was a further six year period from

   
   

   10 June 1959 to 8 June 1965.  It was agreed that Mr Rayson had the following six periods of operational service during the 12 years of his service:[4]

   [4] T documents at v

HMAS	PERIOD OF OPERATIONAL SERVICE	PLACE OF SERVICE (ASSIGNMENT)
Tobruk	3 June 1953 to 12 February 1954	Korea
Quiberon	23 June 1960 to 8 July 1960 15 July 1960 to 31 July 1960	Malaya (Far East Strategic Reserve)
Queensborough	24 March 1961 to 17 April 1961 22 April 1961 to 14 May 1961 24 June 1961 to 6 July 1961	Malaya and Singapore (Far East Strategic Reserve)

As Mr Rayson had operational service, he had eligible service and so was a veteran for the reasons I have given. 

The injury or disease in respect of which a pension was claimed, its attribution to operational service and incapacity

1. The second criterion to be met is that Mr Rayson suffered a disease or injury in respect of which he has made his claim.  That disease or injury must be identified.  That takes me back to his claim but before I do that, I will set out how the VE Act defines the words “injury” and “disease”.  The word:

   “injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

   (a)a disease; or

   (b)       the aggravation of a physical or mental injury.”

The word:

“disease means:

(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden or gradual development); or

(b)the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c)the aggravation of such an ailment, disorder, defect or morbid condition; or

(d)       a temporary departure from:

(i)the normal physiological state; or

(ii)the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).” [5]

[5] VE Act, s 5D(1)

1. On 29 March 2006, Mr Rayson lodged with the Department of Veterans’ Affairs (DVA) a claim for anxiety/depression and nightmares.[6] He did so in accordance with s 14(3) in Part II of the VE Act. In his claim, Mr Rayson set out how he meets the third criterion which requires a connection of the sort set out in

   
   

   ss 9(1)(a) or (b) between his injury or disease and his operational service or his eligible service, as appropriate.[7]  He wrote:

   “Whilst ‘attacked’ by American ship of [sic] Korean coast? our ship was illuminated to allow enemy vision of us.  Booby traps Dang Yong Do.?”[8]

The signs and symptoms noted by Mr Rayson were those of “Anxiety? Depression? Night Mares”.[9]  He had first become aware of them in “Approx 1952”.[10]

[6] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 36

[7] On the facts of this case, the two are the same.

[8] T documents at 36

[9] T documents at 36

[10] T documents at 36

DVA investigates claim and refers it to the Commission

1. Once Mr Rayson lodged his claim, the DVA had to investigate his claim under s 17. Once its investigation was completed, it sent that claim and the relevant material it had gathered to the Commission.[11]  That material included an assessment by Dr Gianni D’Ortenzio, Consultant Psychiatrist, dated 20 April 2006[12] as well as that part of the claim form completed by Dr Richard Hadkins, Mr Rayson’s General Practitioner.[13] 

   [11] VE Act, s 17

   [12] T documents at 47-56

   [13] T documents at 36

Task of the Commission

1. Once the DVA has referred a claim to it, the Commission must consider all matters that are relevant to that claim.[14]  Its consideration must include, but is not limited by, the evidence and documents submitted with the claim by the DVA, any that is subsequently submitted to it and any evidence it gathers using its powers under s 32 of the VE Act.[15]

   [14] VE Act, s 19(1)(a)

   [15] VE Act, s 19(2)

1. The order in which the Commission determines a claim is set out in s 19(3). It must first determine whether the claimant is entitled to be granted a pension in respect of incapacity from a war-caused injury or war-caused disease, or both.[16]  If it determines that the claimant is entitled, it must then assess the rate or rates at which the pension would have payable from time to time during the assessment period and, subject to s 19(6), the rate at which pension is payable.[17]  Section 19(6) is concerned with situations in which a rate is specified under ss 23 or 24 at some time during the assessment period.  A rate under those sections is not in issue in this case.

   [16] VE Act, s 19(3)(a)(i)

   [17] VE Act, ss 19(5A)(a) and (5C)

1. The “assessment period”:

   “… in relation to a claim … relating to a pension, means the period starting on the application day and ending when the claim … is determined.”[18]

The “application day” is the day on which the claim was received at an office of DVA in Australia.[19]  As Mr Rayson lodged his claim with DVA on 29 March 2006,[20] that is the day on which his assessment period began.

[18] VE Act, s 19(9)

[19] VE Act, s 19(9)

[20] T documents at 34

Proof of eligibility: no burden of proof but variable standard of proof

1. The fact that Mr Rayson made a claim for a pension does not impose any onus on Mrs Rayson to prove or establish his claim or, in particular, the four criteria I have identified. That is the effect of s 14(4) and is simply an affirmation of the principle generally applying in merits review of administrative decisions that, subject to any legislative provision to the contrary in a particular case, a claimant is not obliged to produce evidentiary material to support a claim. A claimant will, of course, be well advised to produce the evidentiary material he or she does have but, should he or she choose not to do so and there is no other on which he or she relies, it does not necessarily follow that the decision must be made against him or her. Instead, the decision will be made on the basis of all of the evidentiary material and considered on its merits. This follows from the fact that the concept of onus of proof is incidental to adversarial proceedings of the sort that occur in civil courts. Decisions made on claims under the VE Act are administrative decisions. Unless Parliament provides to the contrary, it is an underlying principle of administrative decision-making that the decision to be made is the correct decision according to law and on all of the evidentiary material available to the decision-maker. If it is possible to make more than one decision that is correct in that sense, the decision that is made must be the preferable decision of those correct decisions. This is also the task of the Tribunal when it reviews a decision of the Commission as affirmed or varied by the VRB or a decision substituted by the VRB for a decision of the Commission.

1. Part of the task of an administrative decision-maker in assessing the evidentiary material is to decide the facts that it establishes or proves.  He or she must have a measure by which he or she can make that decision.  It is a measure that Parliament can vary but, generally, the measure that is applied is that of the civil standard requiring the decision-maker to be satisfied that the facts are established on the balance of probabilities.  This is the same measure that the courts use in civil cases.  In criminal cases, the measure is that of beyond reasonable doubt.

1. The VE Act does not leave the matter of the standard of proof to the general law but, in its place, makes particular provision for it in s 120.  As

   
   

   Mr Rayson’s claim in respect of incapacity relates to operational service he has rendered, s 120(1) is relevant.  Again in so far as it relevant in this case, it provides:

   “Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 …, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”

1. Section 120(1) is qualified by s 120(3) and s 120(3) operates subject to s 120A.  Taking s 120(3) first, it qualifies s 120(1) by dictating when the Commission, and so when this Tribunal when reviewing its decision, will be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination.  Section 120(3) provides:

   “In applying subsection (1) … in respect of the incapacity of a person from injury or disease, …, 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)…;

   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 does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”

1. Among others, s 120A applies to claims made under Part II of the VE Act on or after 1 June 1994 and relating to operational service rendered by a veteran.[21]  Mr Rayson’s claim falls into this category.  In so far as it is relevant, s 120A(3) provides that:

   “For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by 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) ...;

   (b)...

   that upholds the hypothesis.”

   [21] VE Act, s 120A(1)(a)

1. Statements of Principle (SoPs) are determined by the Repatriation Medical Authority (RMA) under s 196B(2) using the powers given to it by Part XIA.  Despite the fact that s 120A(3) is drafted on the premiss that a SoP will have been determined under s 196B(2), it is clear from s 120A(4) that the subsection will not apply if neither a SoP has been determined nor a declaration made that the RMA does not propose to make a SoP in respect of the kind or injury suffered by the person, the kind of disease contracted by the person or the kind of death met by the person as the case may be.[22]

   [22] VE Act, s 120A(4)

1. Sections 120(1) and (3) and s 120A(3) all relate to the standard of proof required to establish the third criterion I have identified i.e. whether a person has suffered the relevant injury or contracted the relevant disease in the circumstances set out in either ss 9(1)(a) or (b) so that it is a war-caused injury or war-caused disease. They do not apply to establishing the first, second and fourth criteria. The standard of proof by which those criteria must be established is left to s 120(4), which provides in relation to claims under Part II of the VE Act:

   “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 …, decide the matter to its reasonable satisfaction.”

1. The meaning of the expression “reasonably satisfied” has been considered by the Federal Court inRepatriation Commission v Smith.[23]  After considering the authorities, Beaumont J concluded that the Tribunal:

   “... should have asked itself whether on the facts of the case, it was persuaded on the civil standard.  There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[24]

   [23] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17

   [24] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17 at 335; 547; 26

The Commission’s determination

1. On 3 May 2006, a delegate of the Commission decided that, although he was satisfied that the appropriate medical diagnosis for the claim was depressive disorder, Mr Rayson’s depressive disorder was not related to his service.  As a consequence, the delegate rejected Mr Rayson’s claim for a pension in respect of his incapacity from depressive disorder.

1. A delegate of the Commission had previously rejected a claim for pension made by Mr Rayson on 13 April 2005 on the same basis.  Part of that claim related to bilateral sensorineural hearing loss and bilateral tinnitus.  Those two claims had been accepted with effect from 13 April 2005.[25]  Mr Rayson’s medical impairment had been assessed as having an impairment rating of 20 under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP)[26] and his lifestyle rating at 2.  Therefore, he was assessed as having a 40% degree of incapacity from those two conditions.[27]  Applying s 22(2) of the VE Act, this meant that Mr Rayson was eligible for a pension paid at 40% of the general rate i.e. 40% of the maximum rate of pension per fortnight specified in s 22(3).[28]   

CONSIDERATION

[25] Mr Rayson’s additional claims made at the same time for non melanotic malignant neoplasm of the back and loss of balance were rejected: T documents at 1

[26] Prepared by the Commission under s 29(1) of the VE Act.

[27] T documents at 1-2 and see also VE Act, s 21A

[28] VE Act, s 5Q(1)

Injury or disease

1. On behalf of Mrs Rayson, Mr De Marchi submitted that her late husband had suffered from PTSD.  I have considered the matter on that basis and also on the basis of the more general condition of a depressive disorder as considered by the Commission.  In either case, the condition is properly regarded as a disease rather than an injury, which is a physical or mental “…harm, detriment; damage …”.[29]  The conditions relied on in Mr Rayson’s claim fall more naturally under the description of a “mental ailment, disorder, defect or morbid condition” and so of a “disease” as defined in s 5D(1) of the VE Act.[30]

   [29] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

   [30] See [15] above

A.Medical evidence

1. The medical records reproduced in the T documents show that Mr Rayson sought medical treatment for a number of conditions and injuries over the years.  The notes cover the period from May 1951 to the date of his second discharge.  In February 1953, he suffered a serious crush injury to his little finger on his left hand and received quite extensive treatment.  In November of the following year, he sought medical treatment for a painful 5^th metacarpophalangeal joint after being hit with a cricket ball three weeks before.  The following month, he dislocated his right shoulder while playing football.  In 1955, he complained of deafness in his left ear because of a build up of wax in July and of an injury to his ankle in August after playing football.  In November 1955, he received treatment for a painful left groin over several consultations.  In February 1956, Mr Rayson twisted his left ankle and his treatment extended over five consultations in February and March 1956.  Mr Rayson spent nine days in hospital in February 1957 with a sprained right ankle.  In August 1960, Mr Rayson was examined as he was suffering from symptoms suggestive of cervical rib or costo-clavicular syndrome.  No mention is made of any depressive disorder or any other disorder of that sort.  In May 1961, Mr Rayson was diagnosed with a lesion of the lateral popliteal division of his right sciatic nerve.  A thrombosed external haemorrhoid followed in October 1961.  Mr Rayson injured his right ankle in November 1963.  In January and February 1963, Mr Rayson was admitted to sick bay for six days as a result of acute allergic bronchitis and chronic rhinitis.  In February 1964, Mr Rayson again sought advice for nasal congestion and tests were conducted to identify his allergic reactions.  A slug was removed from Mr Rayson’s arm in December 1964 after he was shot by an unknown person.  Mr Rayson was struck across the chest by a hatch cover in the following month and, as a consequence, complained of pain in his back when lifting.[31]

   [31] T documents at 2-33

1. I have examined the clinical notes of Dr Robert Campagnaro, who is a General and Respiratory Physician.  Mr Rayson consulted him during the period from 1998 to 2000 and then again in 2008.  Dr Campagnaro referred Mr Rayson to Mr Roderic Warren, Cardiologist, in January 1998.  Mr Warren reported that Mr Rayson would need an aortic valve replacement and that he had early coronary disease.[32] 

   [32] Exhibit 3 at 99

1. Dr Campagnaro first mentioned depression in his report to Dr Tom Smagas, who was then Mr Rayson’s General Practitioner, on 31 March 1998:

   “He seems a little depressed.  It is not unreasonable to feel like this after these last 2-3 months where he has been unwell and required heart surgery.  I have a fairly low threshold to give him an anti-depressant.  He is going to come to see you in about three weeks for review.  If you feel it is warranted at that stage it might be worth starting him on something for a couple of months.”[33]

   [33] Exhibit 3 at 22

1. Dr Campagnaro did not mention depression in his report to Dr Smagas dated 20 October 1998 but, on 10 November 1998, Dr Campagnaro reported to Dr Smagas that he had:

   “… given him some information regarding sleep apnoea as he is sleepy.  He is a veteran so would be covered for a sleep study if this was required.  He will think about these issues and we will discuss whether he would like to go ahead with a sleep study, on the next review.”[34]

Dr Campagnaro raised the issue of Mr Rayson’s sleep in a further report to Dr Smagas dated 15 November 1999:

“… He is feeling tired.  I suspect that it is a combination of his medication and medical problems.  He could have sleep apnoea since he snores. …”[35]

His last reference of relevance occurred in a letter to Dr Smagas on 29 Feburary 2000 when he provided a current working diagnosis.  Among those working diagnoses was “Possible obstructive sleep apnoea but improved of late” and he “… suggested that a sleep study would be easy to do and we could always perform it if his tiredness deteriorates in the future.”[36]

[34] Exhibit 3 at 19

[35] Exhibit 3 at 12

[36] Exhibit 3 at 11

1. No mention is made to depression or sleep apnoea in Dr Campagnaro’s notes when Mr Rayson was referred to him again in 4 December 2007.  The referring letter from Dr Voltaire Nadurata, a Consultant Cardiologist, refers only to Mr Rayson’s cardiac history and his persistent dry hacking cough.  Dr Campagnaro’s notes in 2007 and 2008 are all related to those issues.  On 19 February 2008, He wrote to Dr Voltaire Nadurata that the aortic valve had been replaced and that Mr Rayson had also had stents inserted and an in situ stenosis.  As to Mr Rayson’s other conditions:

   “… He has background diabetes and was a heavy smoker.  He commenced smoking in the Navy.  There is background osteoarthritis and peptic ulcer disease.  He probably has a degree of sensory neuropathy which I elicited back in 1995.  I am not sure whether he has had a stroke but a CT scan from 2002 suggested this, where as a CT in 2005 did not suggest any major cerebral damage.  There is cerebral atrophy and his short-term memory is diminishing and he is somewhat slower overall.”[37]

   [37] Exhibit 3 at 43

1. Dr Richard Hadkins, a General Practitioner, and Dr Smagas practised from the same clinic and were each consulted by Mr Rayson from time to time. 

   
   

   Mr Rayson also consulted other medical practitioners at the clinic.  Their clinical notes were summonsed and I have read them.  The notes begin at 21 July 2000 and extend to December 2007 when they were transferred to Dr Adolf Erhardt, who then became Mr Rayson’s General Practitioner.  I find on the basis of those notes that Mr Rayson’s consultations at the practice were regular.  At times they were weekly and at others monthly with the longest gap being a couple of months at the most.  I have read them and have found no reference to depression by any name or to sleep problems other than a single reference on 7 March 2006 which was made by Dr Hadkins and reads:

“form for dva

Referral re ?depression at his advocates request”[38]

[38] Exhibit 2 at 25

1. I have also looked at the medication prescribed in the individual notes and the list of them at 184 to 186 of Exhibit 2.  There is none that is used to treat the symptoms of depression, sleep problems or mood disorders of any sort.  The clinical notes contain copies of reports written by other persons including Mr Stephen Lindsay, a Urological Surgeon, Dr Nadurata and an Occupational Therapist.  None referred to any suggestion of depression or related issues.

1. Dr Erhardt’s clinical notes were also summonsed.  They extend from 1 January 2008 to 10 November 2008.  There is no reference in the notes to any depression or related issues and the medication prescribed was not prescribed for issues of that nature.[39]

   [39] Exhibit 4

1. At the request of DVA, Dr D’Ortenzio interviewed and examined

   
   

   Mr Rayson on 20 April 2006 and also spoke with Mrs Rayson.  She was present during the interview as that was both her wish and that of her husband and

   
   

   Dr D’Ortenzio noted that she had “provided considerable extra information.”[40]  In giving oral evidence, Dr D’Ortenzio explained that he spends one to 1½ hours for an assessment and then dictates his report.  It is dictated immediately after he has seen a patient.  Dr D’Ortenzio began his report by describing Mr Rayson’s psychiatric history:

   “Mr Rayson and his wife, both described a period over two years of progressive lowering of mood, associated with increased anxiety and worry about his daughter in particular.  Mrs Rayson said that he ‘he’s flat, he’s down, he has become a moaner and groaner’.  Mr Rayson said that ‘I have my ups and downs, I have problems like everyone else’.  The main problem he complained about were a loss of energy, motivation and interest.

   He said that over the last two years, he has stopped walking, he has ceased his volunteer work for the museum, he is reluctant to get out of the house and ‘haven’t even gone to the church over the last year and a half’.

   Mr Rayson says that he drops off to sleep any time that he sits down during the day, and is always a bit tired and sleepy.  He says that at night he gets off to sleep OK, but then wakes up repeatedly during the night.  He gets up to go to the toilet, at least four times during the night.  He said that during the night ‘I’m still fighting the war’.  He described dreams which are vague, and he is unable to give me much in the way of detail, but they seem to in his mind, relate to his war service experience.  His wife said that he throws his arms about, he makes noises, he shouts and she says that he also snores badly and sometimes stops breathing.

   Mr Rayson said that he is reluctant to spend time with people, doesn’t like being in groups and said ‘I’ve never mixed much’.  His wife said that over recent years, he hasn’t mixed at all and that she has found it very difficult to get him to do anything at all that involves other people.

   Mr Rayson described a long history of being uncomfortable in enclosed spaces.  He said that this began in the Navy and has troubled him through his life.  He described a specific incident during the Navy when he was locked in the refrigerator ‘as a joke’.  He said that he became very distressed in the process and it took ‘five of them to get me in there’.  He said that he had always been uncomfortable in enclosed spaces ever since.

   He says that recently because of his medical problems, he has had to have scans and he is very uncomfortable in the scanning machine becoming quite anxious and distressed.  He says that he will even become anxious and distressed at home if it is dark.  He said if he is left alone in enclosed spaces then he becomes very upset.  He said that through his twenty-six years as a storeman with the State Rivers, he’d occasionally find himself in enclosed spaces, but said ‘It was my job, I just had to get on with it.  It was terrible, but I did it.”[41]

   [40] T documents at 49

   [41] Exhibit 1 at 47-48

1. As for dreams and sleep disturbance, Dr D’Ortenzio reported that Mr Rayson had told him:

   “… that the dreams and the sleep disturbance began during the second period of his service and then diminished once he left the Navy.

   …

   Mr Rayson described himself as ‘I got busy with life, the dreams settled’.  He said that he wasn’t troubled much by war related dreams until about ten years ago, when they returned when he was in his early 60’s [sic].”[42]

In his oral evidence, Dr D’Ortenzio observed that Mr Rayson’s sleep disturbance can be a symptom of depression.  Sleep apnoea can also be a reason for a person’s struggling about in his sleep because it means that the person has stopped breathing.  His diabetes and heart surgery for a valve replacement could contribute to his fatigue and depression.  Mr Rayson seemed to manage reasonably well with them.

[42] Exhibit 1 at 49

1. Apart from being locked in a refrigerator, Mr Rayson described two other incidents that he had found particularly distressing:

   “He described two other incidents where the destroyer on which he was serving was accompanying different US ships.  They were, on both occasions, going in to shell land sites and when the destroyer got close in, they were unfortunately illuminated by shells sent over by the Americans.  The shells were meant to be sent over the target, but instead fell short and landed over the Australian ship.  He said ‘We had the Yanks behind us lighting us up like daylight, and the enemy alongside, ready to fire at us.’  He was unable to describe any specific attack that they came under, but he did describe his fearfulness that they would be attacked and that they would all die.

   He described a third incident when the ship was unsure of it’s [sic] position and ended up being ‘A mile and a half off Vladivostock [sic].’  He said that they were at Battle Stations and listening to the Skipper who was asking the Navigator where they were, he couldn’t answer, and the Skipper replaced him.  It turned out when the found out where they were, that they were in some danger as they were so close to a Russian port.  He said ‘we turned on our heels and got out of there as quickly as we could’.  He described that experience as quite frightening.

   He described the three experiences above as being ones that he thought about for many years in the period after his service, and then didn’t think about for many years.  The ones that have returned over the last ten.”[43]

   [43] Exhibit 1 at 49

1. In his oral evidence, Dr D’Ortenzio described the incidents as described to him by Mr Rayson.  Mr Rayson had found them quite frightening but had told him that he had not thought of them for a number of years.  He had only started to think of them again in the ten years before Dr D’Ortenzio saw him.  His difficulty with enclosed spaces was something that he could cope with.  In 2006, there were no difficulties with his concentration and he was able to follow everything throughout.  He was a little bit slow and became anxious when he elaborated on details.

1. In cross-examination, Dr D’Ortenzio agreed that the illumination incident would have been sufficient to constitute an event that involved a threat of death.       

1. Mr Rayson had told him that he had dreams but was not able to be specific.  Dr D’Ortenzio was not given a history of any heightened arousal or of any heightened avoidance factor.  Mr Rayson told him that he had two sets of dreams.  One set had occurred in the previous ten years.  He could not get any content of the dreams other than that he was fighting the war all over again. 

1. Mr Rayson’s earlier dreams related specifically to the incidents during his service.  They did not happen during his service but after his discharge.  They all settled down but even when he was having the dreams, he did not meet all of the diagnostic criteria for PTSD.  His isolated experiences of dreams were not enough to found a diagnosis of PTSD without a full hand of features.  In cross-examination,
   Dr D’Ortenzio told Mr De Marchi that Mr Rayson had not given a history that he was thrashing about in his sleep.  Therefore, he did not accept the proposition that Mr Rayson’s bad dreams were related to events in his service.  He agreed that Mrs Rayson was a good historian but repeated that he was not given a history that supported the proposition.  There was no shortage of time for him to do that.  It was just not given.  Dr D’Ortenzio said that Mr Rayson could not be clear about his dreams.  Recurrent dreams may accompany depression or sleep apnoea.  When a person becomes depressed, events in past life come to the fore.

   
   

1. Dr D’Ortenzio recorded no reference to any anti-avoidance behaviour.  Although he had misplaced his notes, he knew that his pattern was to record everything of relevance in his report.  He would have covered it properly in the interview and then in his report.  Dr D’Ortenzio did not have the letter requesting his report but he said that he rarely found them useful.  When Mr De Marchi put to him that he had been told to diagnose a depressive disorder, he replied that, even if it had, he would not have regarded that as a limiting fact.  In response to Mr De Marchi, he also said that the fact that Mr Rayson had made his claim for depression and anxiety would not have limited his diagnosis.  In any event, he did not recall that these were the conditions in relation to which Mr Rayson had made his claim.

1. Dr D’Ortenzio diagnosed Mr Rayson as suffering from a Major Depressive Episode and discounted other diagnoses including that of PTSD and anxiety:

   “I was able to consider a number of psychiatric diagnoses, predominantly anxiety based type, including Panic Disorder with or without Agoraphobia, Specific Phobias, Post Traumatic Stress Disorder and Generalised Anxiety Disorder.  Some aspects of all of these disorders were present, but he does not clearly meet the diagnostic criteria for any of them.

   In terms of Panic Attacks, whilst he has had some periods of heightened anxiety, he has not had specific repeated Panic Attacks, nor does he have any specific fear of them.

   In terms of Agoraphobia, he is certainly uncomfortable in large groups, but is also episodic with this experience, and this has not been a persistent feature.  There seems to be some degree of a Specific Phobia of being in closed places, however, he has also managed to get on with life despite that, particularly through his work-life as a Storeman, such that there was very little avoidance behaviour through his early life, there has only been avoidance behaviour in recent times.

   In terms of Post Traumatic Stress Disorder, whilst he described various incident [sic] which he found distressing, and his life was at risk, there is no history of any avoidance behaviour or persistent symptoms of hyperarousal, such that that diagnosis cannot be made.

   The diagnosis of a Major Depression over the last two years can be made, as clearly he has suffered from persistent low mood, and associated heightening of his anxiety, and generalised decrease in energy, motivation and interest and pleasure in previously enjoyed activities.  This Depression has been going on for quite some time and is in the context of a lifelong history of mild and varying anxiety symptoms, which in and of themselves fail to meet any specific diagnosable psychiatric disorder.

   His situation is confused by what appears to be a respiratory condition of Sleep Apnoea.  His wife describes considerable nocturnal disturbance, which is associated with dreams, but is also associated probably with probable respiratory obstruction.  The daytime somnolence he experiences is consistent with this, and Sleep Apnoea itself will contribute to disturbed sleep and further dreams may well occur as a result of that.”[44]

   [44] Exhibit 1 at 51-52

1. In cross-examination, Dr D’Ortenzio considered Mr De Marchi’s proposition that Mrs Rayson had said that her husband had been having nightmares.  He did not regard this as satisfying a criterion for a diagnosis of PTSD as there was no longitudinal history of his having done so.  Outbursts of anger were the same.  In themselves, they were not enough because there is a need to see whether they have been persistent.  There is a need to look to his family.  He asked Mrs Rayson about how her husband had functioned with her and the family.  He could not see any dysfunction.  Diagnosis is not a case of marking off a list.  It is about clinical judgment and he did not think that Mr Rayson was suffering from PTSD.   

1. Mr De Marchi asked Mr Michel Burge, a Psychologist, to undertake a psychological assessment of Mr Rayson.  Mr Burge has focused on PTSD as his area of expertise since he worked with the Veterans’ Counselling Service within DVA between 1989 and 1996.  Initially, he was full-time but later worked for it on a part-time basis.  He focused on the assessment so that a correct diagnosis could be made and the correct treatment would follow.  Mr Burge has conducted training programmes involving assessment and treatment. 

1. Mr De Marchi sent Mr Burge a copy of the VRB decision, SoPs for Depressive Disorder and PTSD and the T documents.  Mr De Marchi noted that:

   “It is Mr Rayson’s contention that he has suffered from ongoing nightmares, irritability and outbursts of anger since an incident in Korea when he feared for his life.  He further contends that he has suffered from depression since that time.”[45]

   [45] Exhibit C

1. Mr Burge interviewed Mr Rayson on 15 April 2008 and 13 May 2008.  Mrs Rayson was also present.  Mr De Marchi had asked him, Mr Burge wrote, to express an opinion “… whether or not … Mr Rayson is suffering from a Psychiatric condition or conditions, and whether or not these conditions may relate to his operational service in Korea. …”[46]  Mr Burge told Mr Brown that Mr Rayson had struggled to articulate his experiences.  It became challenging to tie him down in order to get him to articulate.  The fact that Mr Burge was experienced in assessment therapy meant that he was able to get Mr Rayson to open up.  Mr Rayson had been emotionally upset and particularly so when recounting events on the Tobruk.  He was not making it up, Mr Burge said.

   [46] Exhibit C at 1

1. When asked what Mr Rayson had told him about his experiences on the Tobruk, Mr Burge said that it was a case of “shifting sands”.  It was difficult to eliminate those experiences as emotionality took over.  That was consistent with a person suffering from PTSD.  Mr Rayson came from a generation that was stoic and proud. 

1. Mr Burge is of the opinion that Mr Rayson suffered from PTSD on the basis that Mr Rayson had reported a number of experiences during his operational service in North Korea that were terrifying and horrific to him and had involved exposure to threat of serious injury or death to himself and others, during his engagement with the enemy.  In his opinion, “Over the years Mr Rayson has apparently exercised extreme self-discipline to achieve success in his work life, as a spouse and as a father.  However, there have been at times associated difficulties, which are consistent with the characteristic symptoms of the diagnosis.”[47]

   [47] Exhibit C at 3

1. With regard to traumatic events Mr Rayson experienced, Mr Burge wrote in his report dated 27 July 2008:

   “Mr Rayson reported that he experienced a specific traumatic event during his service on the HMAS Tobruk in North Korea.  Mr Rayson reported that the traumatic event took place when his Ship was being illuminated by star shells by a United States Navy ship when his ship was off the shore of North Korea.  Mr Rayson reported that during this highly dangerous exposure he believed that the ship was vulnerable to being fired upon by the enemy.  He also reported that his ship may have been blown up by the star shells had the star shells ignited the HMAS Tobruk’s magazine.  Mr Rayson reported that the HMAS Tobruk’s Captain ordered the ship to move away from their present location given the apparent danger.  Mr Rayson further indicated that during his exposure to these life threatening circumstances, he experienced intense fear, horror and helplessness.  He was apparently terrified that had his ship been hit by the star shells (friendly) or enemy fire that he might have been burnt to death or drowned.”[48]

   [48] Exhibit C at 2

1. Mr Rayson’s reactions to his operational service were described by

   
   

   Mr Burge:

   “Mr Rayson reported that he has had a number of disturbing reactions with regards to his operational service in North Korea.  He reported, that he remembered most of the disturbing events.  He reported that the memories were like an image that he lived over again.  He reported that he has recurrent distressing dreams of his operational service in North Korea.  He indicated that when recalling his traumatic memories he feels trapped as though he was in a cage.  He reported that he has recurrent distressing dreams and nightmares about his traumatic experience on the Tobruk.  He said that the dreams involved water coming into the ship and bombs and shells exploding and feeling trapped.  He said that in these dreams he was trapped and did not know what to do.  In some dreams the Tobruk was on fire.  When he wakes up Mr Rayson apparently sometimes finds it hard to breathe.  He indicated that he has horrible feelings during the night.  He said that when he gets out of bed three or four times a night, he sometimes sits and watches the TV for a while but can’t get back to sleep easily.

   Mr Rayson reported that he felt disturbed when he was confronted with reminders about ships and war.  For example, he indicated that he was alarmed and highly distressed about the news of the HMAS Sydney and the way those aboard drowned.

   Mr Rayson reported that he avoids conversations about his war experience in North Korea.  He said that if others endeavour to engage him in discussions about war he changes the topic.  He reported that he avoids watching war movies.  Mr Rayson reported that he seldom socializes.  He also apparently avoids supermarkets and shopping centres.  He indicated that he does not have much of an interest in hobbies.  He reported that he has had substantial conflict within the family over the years.  He reported that he sometimes feels emotionally flat, rarely gets excited about activities and is generally withdrawn.  Mrs Rayson confirmed these family difficulties and indicated that Mr Rayson was often irritable and had angry outbursts.

   Mr Rayson reported that he has poor concentration and memory.  He said he had difficulties recalling daily activities.  Mr Rayson reported that he was constantly on the lookout for danger.  For instance he indicated that he was always worried sick that his daughter was going to smash the car.  He said that he was constantly worried about the safety of his daughter especially since she had been living alone.”[49]

   [49] Exhibit C at 2-3

1. In giving oral evidence, Mr Burge said that depression and anxiety are common accompaniments to PTSD.  He found Dr D’Ortenzio’s report confusing but noted that he had not dismissed this proposition.  Dr D’Ortenzio had gone back to the period of Mr Rayson’s service.  In Mr Burge’s opinion, it was not inconsistent with a diagnosis of PTSD if the symptoms do not appear until some years after the events.  They have low affect and develop coping mechanisms.  A person learns to avoid things such as films, places, social occasions, shopping centres and conversations.  Over time, those coping mechanisms diminish.  The paths that are followed may not be consistent and coherent.  They may be more like stepping stones than following a straight line and depend on what is happening in a person’s life.  If a person’s children misbehave, their behaviour can be a challenge to that person’s ability to control his coping mechanisms.  Mr Burge saw that in Mr Rayson and noted that he was having conflict with his family.  His presentation was fairly flat.

1. In reply to Mr Brown in cross-examination, Mr Burge said that he had not paid particular attention to Mr Rayson’s general health.  He understood that he had a number of physical conditions but, from a psychological perspective, he was not too well.  His heart condition and the insertion of a metal valve would not have had any impact upon his assessment.  Mr Burge was particularly concerned with his psychiatric and psychological condition.  In his opinion, Mr Rayson had suffered ongoing distress throughout his life.  Mr Rayson’s stroke would have had an impact upon his psychological condition but Mr Burge did not accept that it would have been dominant.  Mr Rayson was having conflicts with his daughter and with his wife,
   Mr Burge said, but could not recall what the conflict was about.  He could not recall anything of Mrs Rayson’s health issues.  When told of her medical history, Mr Burge said that, had Mr Rayson suffered from depression, that would have made a great impact.  If he suffered from PTSD, it would not have had a great impact although it would not have helped.

   
   

1. In a report dated 19 January 2010, Dr Lester Walton, a Consultant Psychiatrist, reviewed the clinical notes, to which I have referred, and the reports of Dr D’Ortenzio and Mr Burge.  He did not have the advantage of interviewing Mr and Mrs Rayson and acknowledged that was so.  He summarised the written material and observed:

   “… There is what might be described as a deafening silence regarding psychiatric phenomena in the clinical records, there being no documentation of psychiatric symptoms of those medical practitioners who were most familiar with the veteran and saw him over an extended period of time.  The psychiatric history only emerges in the context of specific medico-legal assessments conducted by a psychologist and a psychiatrist.  Furthermore, it is only the latest assessment by the psychologist which clearly identifies a service-related psychiatric disability.”[50]

   [50] Exhibit 6 at 4

1. Dr Walton considered Dr D’Ortenzio’s diagnosis to be the preferred diagnosis.  He questioned Mr Burge’s “… assertion that the veteran ‘experienced intense fear, horror and helplessness’ …” because, in his:

   “… experience it is rare for veterans to express having actually experienced “intense fear, horror and helplessness’ but they tend to emphasise one or other of these three emotions.  I note tha the veteran is also described as having felt ‘terrified’, which might be interpreted as intense fear.  However, overall, there is considerable doubt in my mind as to whether or not the veteran did actually experience a sufficiently intense subjective response to the perceived trauma.”[51]

   [51] Exhibit 6 at 4

1. Dr Walton acknowledged that:

   “The veteran does seem to have provided a history of re-experiencing phenomena in the form of nocturnal ruminations particularly.  Mr Burge documents a history of avoidance behaviour, both in terms of conversations and people, and social withdrawal.  There is a consistently documented history of insomnia but it is questionable whether or not that it is a psychiatric phenomenon or a feature of sleep apnoea, although the two conditions are not mutually exclusive.  Mr Burge documents hypervigilance.  Clearly the veteran’s psychiatric symptoms have persisted for in excess of a month and I believe it is a reasonable conclusion that he did experience significant distress.”[52]

   [52] Exhibit 6 at 5

1. Dr Walton wrote in his report that he had reservations but could not clearly state that the clinical criteria in relation to PTSD had not been met.  A source of his doubt about a diagnosis of PTSD lay in the fact that his long term physicians had not recognised it.  In particular, Dr Campagnaro had identified insomnia but not linked it with PTSD.

1. Mr De Marchi also asked Dr Rob Peterson, a Consultant Psychiatrist, for an opinion.  Dr Peterson has practised psychiatry for some 35 years and has worked with veterans for the past 20.  As with Dr Walton, Dr Peterson was unable to conduct any clinical interviews with Mr Rayson.  He did not interview Mrs Rayson or their daughter.  Consequently, he derived his information from reports by Dr D’Ortenzio, Mr Burge and Dr Walton and a statement by Mr Rayson.  In a report dated 27 July 2008, Dr Peterson concluded that Mr Rayson suffered from PTSD. 

1. Dr Peterson was of the view that Dr D’Ortenzio had not noted a clear history of any differences between Mr Rayson’s emotional state before and after his Naval service other than to note that Mr Rayson had told him “I got busy with life, the dreams settled.”[53]  He continued:

   “While it is clinically reasonable to equate disturbed sleep with the presence of Sleep Apnoea, the history clearly indicates that Intrusive distressing dreams date from the period of active service.  Mr Rayson’s description of her husband ‘throwing his arms about, makes noises and shouts’ is more congruent with nocturnal behaviour seen in Post Traumatic Stress Disorder and the duration of these phenomena would be consistent with them having arisen during Service.

   The content of these dreams was described by Mr Rayson as being related to his Service ‘I’m still fighting the war’.

   There are several distressing events listed as possible contributions to later psychological pathology but the sequence is not clear.  It appears from the clinical material supplied that being locked up in a refrigerator may have been the first.

   It is highly probable that this incident would have had a major role in the precipitation of a state of heightened anxiety that would have left him particularly vulnerable to other experiences such as the ‘star-burst’ and ‘Vladivostoc’ [sic] events that might otherwise not appear ‘extreme enough’ to result in onging psychopathology such as PTSD. 

   Dr D’Ortenzio’s report indicates that Mr Rayson states that ‘it took 5 of them to get me in there’ (the refrigerator).  This is a description of a very distressed individual being subject to severe physical manhandling who may well have been subject to ‘intense fear, helplessness and horror’ (SOP for PTSD) and (Sect B) thereafter being subject to ‘recurrent distressing dreams of the event’.  It is a common fear of Naval Veterans that they might be trapped below decks during a conflict; this incident would have severely aggravated this commonly held fear.

   ‘Avoidance’ or avoidant behaviour is well documented in this and the other reports.

   Dr Walton noted that there did not appear to be any documentation of ‘any psychiatric phenomena’ in the clinical notes of Dr R Hadkins from 1999 or
   Dr Erhardt from 2007.  Notes from early post service life would have been of value and it is probable that Mr Rayson, in common with other WW2 and Korean War Veterans would have been reluctant to discuss his service related experiences and/or any emotional sequelae with anyone, medical practitioners notwithstanding. 

   It is perhaps a reflection of his considerable experience in working with Veterans that Michael Burge was able to elicit considerably more emotionally laden material during his 2 consultations with Mr and Mrs Rayson and derive an opinion that this indicated that Mr Rayson was subject to the signs and symptoms of Post Traumatic Stress Disorder.  It is a conclusion with which I concur.”[54]

   [53] Exhibit D at 2

   [54] Exhibit D at 3-5

1. In his oral evidence, Dr Peterson said that he had found World War II veterans to be reticent in speaking about their war experiences.  Those who had served in Korea were more open and those from more recent conflicts were even more so.  Dr Peterson acknowledged that he had no direct access to the clinical presentation of the signs and symptoms of PTSD in Mr Rayson.  When asked if Mr Rayson’s history of sleep apnoea and heart condition would impede his giving his history of his service, Dr Peterson replied that it “is possible”.  At the time, he probably had a marked preoccupation with his heart issues and even a sense of impending doom regarding them.  In re-examination, Dr Peterson told Mr De Marchi that he would have been surprised if Mr Rayson had not been depressed.  Had medication been used to treat his depression, his anxiety would not have gone away.  He would not have been depressed but he would have been agitated.

1. Dr Peterson understood that Mr Rayson had been quite distressed and crying out in his sleep.  That led him to say that in giving oral evidence Mr Rayson’s service had left an indelible mark that lasted to the end of his days.  Mr Rayson’s experiences might have left him more vulnerable than might otherwise have been the case when he experienced the sampan incident described in [5] above.  The community on board ship is a closed community.  If more than one member of it has a very distressing experience, it is not long before the event is conveyed very vividly to the rest of the community.  Mr Rayson was a sensitive person and his imagination would have filled in the gaps.  The fact that he recounted the sampan incident to his wife indicated that it was a memory that had endured for many years.  This was an event that he witnessed involving death.  In Dr Peterson’s opinion, the refrigerator incident was an incident that would have been very distressing as every sailor fears being confined.  It was not suffering that would endure.

1. Dr Peterson holds Mr Burge in high regard and regards him as very experienced.  The fact that Mr Burge spoke with both Mr and Mrs Rayson would add weight to his report.  So too had Dr D’Ortenzio but, in Dr Peterson’s opinion, the report of Mr Burge had the “… flavour of a more intimate relationship with
   Mr Rayson.”  Of Dr D’Ortenzio’s report, he said that it is difficult to satisfy all the circumstances.  A report can cover too much but not in depth.  Mr Burge’s report had the flavour of someone who had more time to settle Mr and Mrs Rayson and had become more acquainted with their story.  In Dr Peterson’s opinion, the fact that there is no reference to events before Mr Rayson’s service suggests that everything relates to his service.  Mr Rayson might not have been a good historian and it may take more than one interview to obtain a complete history.

1. As for sleep apnoea, Dr Peterson agreed with Mr Brown in cross-examination that it can produce symptoms of depression.  When it covers many decades, it becomes a different thing suggesting hyper arousal. 

1. When asked whether he was surprised that Mr Burge had not mentioned issues relating to Mr Rayson’s broader health, he thought that the word “surprised” was “a bit strong”.  He would have thought it appropriate to include
   Mr Rayson’s state of health at the time of the interview and over the years.  Mr Burge should have made mention of the fact that Mr Rayson had a metal heart valve as that was a significant event.  Again, it was a “bit strong” to say that he was surprised that Mr Burge had made no mention of Mrs Rayson’s significant health issues.  He would have expected reference to them but, of necessity, any report contains significant omissions.  If Mr Burge focused on Mr Rayson’s service, other events might have suffered, Dr Peterson said.  Even so, the information should be as comprehensive as possible.

   
   

1. Dr Peterson said that it is not unusual that a clinician would not pick up on the signs of a veteran’s symptoms of PTSD for 50 years after a stressor had occurred.  It happens all the time, he said.  They are capable of managing the distress of an overwhelming event for many years but, perhaps as other parts of their lives deteriorate, they cope less well.  Sheer exhaustion can trigger the collapse of their coping mechanisms.  The frailty that Mr Rayson showed was an indication of persistent symptoms going back to his service days.  There does seem to be evidence of disturbances predating his then current illnesses.

B.       Mrs Rayson’s evidence

1. Mrs Rayson did not know her husband before he served in Korea.  Her only knowledge of him during his early life has come from speaking with his close relatives.  They have told her that he was easy going as a young man and that he enjoyed life.  He then became a person who was depressed and who lost interest in day to day living.  His relatives had told her, Mrs Rayson said, that he struggled to cope with civilian life after he was discharged from the Navy in 1957.  During those two years, he suffered weight loss.  As a consequence, he rejoined two years later.

1. In a letter in response to questions asked by Mr De Marchi, Mrs Rayson had written that her husband’s depression started long before the deterioration in her own physical condition.  He had always been anxious and suffered mood swings from the time she had first met him.[55]  In answering questions from
   Mr De Marchi, she said that, when he was suffering from one of his mood swings, he found it difficult to concentrate. 

   
   

   [55] Exhibit B at 1

1. In her letter, Mrs Rayson said that her husband had always suffered from fatigue and that this worsened in the latter years of his life.  He had always been a poor sleeper and suffered from terrible nightmares from the time they were married.  In her statement, Mrs Rayson said that her husband would wake up with a start and yell out that the ship was sinking.[56]  In her oral evidence, she said that he would shout as if someone was strangling him.  Mrs Rayson would wake her husband up and ask him what the dream was about but he would not tell her.  His intrusive dreams began when the children were young children at primary school.  That was when he first started having nightmares, Mrs Rayson said.  She could not say when he started going to the doctor as she could not remember but he never realised that he was suffering from depression.  He went to the doctor about his arthritis. 

   [56] Exhibit B at [4]

1. When asked in cross-examination whether her husband’s sleep problems started when the children were aged about 5 or so, Mrs Rayson replied that she was not sure.  When reminded that she had said that they had started when the children were going to school, Mrs Rayson said that he was worried about waking the children up.  It just went on like that all the time, she said.  When it was suggested to her that, for the first two or three years of their marriage there had been no evidence that he had been suffering from depression, she replied to the effect “No; because he never told anyone.”  She said that she first saw the signs some two or three years after they were married.  When he was sleeping, he would wake up screaming and she would think that it was something that she had done to make him unhappy.  Mrs Rayson could not remember an occasion on which she and her husband thought that he was depressed and could not remember an occasion on which he had gone to the doctor about depression.  Her family had never suffered depression, Mrs Rayson said in re-examination, and she did not know what to expect.  She had just thought that bad dreams were occurring for her husband.  He always dreamt that he felt trapped underneath.  He had been a cook and worked in that role at the bottom of the ship.  In his role as a gunner, he worked with another sailor to fire towards the coast,
   Mrs Rayson said.  He felt he was trapped in his dreams but she could not distinguish in what role he felt trapped.

   
   

1. In her letter, Mrs Rayson wrote that her husband never watched war movies.  She added in her oral evidence that he hated war movies.  His preference was to watch a comedy and have a laugh. 

1. To Mr Rayson’s knowledge, her husband never had any contact with his former shipmates.  If any war was reported on the television news, he would immediately get out of his chair and either change the channel or turn the television off.  In her oral evidence, Mrs Rayson said that she could not remember what his reaction had been to television reports of the war in Iraq.  By that time, it was not as necessary for him to remember as his heart was going and he was looking to his own health.

1. Her husband rarely spoke of his experience in Korea but he did tell her of an incident when the ship he was serving on sank a sampan.  He was greatly upset by that.  Mention was also made of the refrigerator incident.  It was mentioned in the context of her husband’s telling her that a person never knew his own strength until he was locked up.

1. Mrs Rayson said that she attended part of her husband’s consultation with Dr D’Ortenzio.  He had asked her about their married life and she recalled her husband telling him about the refrigerator incident and two other incidents on board ship.  She did not help him compose or to type the letter her husband wrote to his then advocate on 14 July 2006.  Mr Rayson had written in part:

   “I do not understand why Dr D’Ortenzio, Psychiatrist, folio 49 in regards to the second incident has diminished the effects of this incident on me.  It was from this incident, I believe, that has caused me to have ongoing nightmares, re-experiencing the event, irritability, and outbursts of anger, etc.’[57]

   [57] T documents at IX

1. When asked whether her husband had been worried about his daughter, Mrs Rayson replied that it had just been the teenage years that her daughter was going through.  His worry showed just how dedicated a father he had been to his children.  Their daughter was a little bit wild and he had worried about that.  He had always had a soft spot for his daughter and he took to heart everything she did, such as being with what he thought to be the wrong group.  Her husband had tried hard to stop his daughter from going to discos and from drinking and smoking.  Although she did not take drugs, he did not like her engaging in the other activities either. 

1. This had all occurred about 15 years ago during the 1990s when their daughter was about 15 years of age.  At that time, Mrs Rayson said, her husband had suffered from terrible arthritis and then he started getting heart problems.  He had a heart operation in 1998.  As a result of that, the family had to change its diet.  Her husband became much slower than he had been whether it was gardening or generally.  Even as a driver, he became more cautious.  Mrs Rayson thought that her husband’s arthritis might also have played a role in her husbands’ slowing down.

1. As to the effect of her own condition on the family, Mrs Rayson “presumed it did”.  During all the years in which she was in and out of hospital, her husband had to be mother, father, driver, dishwasher and cook for the children as well as seeing that they went to school and that he went to work as well. 

1. Mrs Rayson wrote in her letter that her husband had never discussed thoughts of suicide.  Rather, he felt that he needed to be around to support his children and, in his later years, expressed his concern for what would happen to her and the children when he died.

C. Mr Morris’s evidence

1. Mr Morris gave oral evidence.  He and Mr Rayson had struck up a friendship on board the Tobruk and had met on many occasions.  Mr Morris regarded Mr Rayson as a “fair dinkum person” and a good team player.  He fitted into what had to be an integrated team on board and certainly did everything to the best of his ability.

1. In his oral evidence, Mr Morris described an incident in which the US Battleship New Jersey (New Jersey) had fired a barrage at targets on the Korean shore.  She had 16 inch guns and fired over the top of them.  On one occasion, its targets included a train that carried ammunition along the coast.  One night, the US Battleship Missouri (Missouri) fired right over the top of the Tobruk giving the crew a heart attack. 

1. Star shells were used by the US Navy to illuminate the coastline of North Korea and beyond in an attempt to get a fix on the enemy positions.  There was a danger that the star shells would fragment.  Danger also arose from the fact that they illuminated not only the coastline but also the Tobruk and so set it up to be a target itself.  The North Korean on shore battery had a range of 5,000 metres.  Mr Morris said that he was always concerned because he would never know what was going to happen from one minute to the next.  That was particularly so if the Missouri was next to the Tobruk and decided to put up a star shell.  Its illumination was so bright that it would have lit up Sydney Harbour.  The Tobruk was never hit from the shore although others were.  It did destroy many shore batteries.

1. During these barrages, the crew of the Tobruk were in position in their alternative roles.  Mr Rayson manned one of the Bofors anti-aircraft guns situated on the vessel behind its 4.5 inch guns.  In the early days, Mr Morris had witnessed a big air fight but, once the United States and its allies had gained air supremacy, the only danger was from MIG-15 jet fighters that might slip through.  There were not a great many evacuations by 1953. 

1. Another concern were the mines that had been laid along the shore line where the water was rough.  Furthermore, the North Koreans would put out “floaters”, which were mines whose diameter was about that of a car wheel.  If they were detected on radar, they were destroyed but one had been missed with the loss of a vessel and its eight crew members.  One day, the crew of the Tobruk observed a sampan carrying women and children among its passengers.  It was common for sampans to go into the shipping lanes to fish.  This particular day, which was either 14 or 24 July 1953, the crew saw such a sampan.  The Tobruk cruised past it.  Those on the Tobruk were close enough to distinguish individual people in the hull.  They watched those on the sampan lay a couple of mines.  When it laid a third, the crew trained the Tobruk’s Bofors were trained on the sampan and blew it up.  Mr Morris said that the crew were concerned that there were women and children on board.  He added that they would have been used as camouflage as the North Koreans had no regard for their women and children.  On that particular day, he did not see any women or children but Mr Morris did see the sampan destroyed.  Mr Rayson would certainly have seen it from his position on the Bofors and could very well have been involved in it, Mr Morris told Mr De Marchi.  He told Mr Brown that he could not be sure of that and could not say that he saw him on the Bofors but he knew that he would be on it.

1. Mr Morris also gave evidence of bodies floating in the sea on a number of occasions.  Mr Rayson “probably saw them” as he had done.  Mr Morris had a vague idea of the refrigerator incident involving Mr Rayson but said that he had no memory of it.  A sailor’s greatest fear is being locked below decks and especially so if there is a battle above.  To hear that alone is disturbing to say the least, he said.

1. Mr Morris said that the Tobruk had not been off course when it sailed towards Vladivostok in Russia.  It had been despatched to pick up survivors from an aircraft but missed one.  That person was picked up by a Russian trawler.  He could not recall when that incident occurred but he knew that the captain had decided not to violate Russian national waters and had remained instead in international waters.

D.Consideration

1. On the basis of the evidence of Mrs Rayson and Mr Morris and of the material found in the T documents generally and the medical reports generally, I am satisfied that Mr Rayson experienced three events of significance during his service on the Tobruk between 3 June 1953 to 12 February 1954.  They were the incidents in which he was placed inside a refrigerator by five other seaman, the star shells fired by the New Jersey and the Missouri lit up the Tobruk as if it were daylight and the destruction of the sampan with those on board it. I accept that description of these events set out at [42] above and I also accept that memories of them remained with him throughout his life

1. Mr Rayson made no reference in his letter to the VRB or to any of the medical practitioners to his seeing bodies floating in the ocean and Mrs Rayson made no reference to his having ever mentioned them.  Therefore, I do not accept that he did see them although, of course, I do not question Mr Morris’s evidence that this occurred.

2. I accept Mr Morris’s evidence that the Tobruk sailed towards Vladivostok but that it remained in international waters when it picked up a number of persons.  In this, I prefer his evidence to the memories of Mr Rayson as reported to
   Dr D’Ortenzio.  As President of the Korean Recognition Committee, Mr Morris has clearly studied the Korean war closely.  Even more importantly on this occasion, he was on board the Tobruk at the time and had a clear memory of the events.

   
   

1. On the basis of the history he gave Dr D’Ortenzio, I also accept that Mr Rayson was uncomfortable with being confined or being present in enclosed spaces.  I also accept that he was troubled by it throughout his life and that his discomfort began after the refrigerator incident to which I have referred.  On the description of the incident that appears in the material, I do not accept that it was an event that involved any threatened death or serious injury or a threat to Mr Rayson’s physical integrity or that he perceived that it did at the time.[58] 

   [58] Although I have separated the role of the SoP from that of diagnosis of the condition, I note that the SoP 3 of 1999 as amended by 54 of 1999 and SoP 5 of 2008 both describe the kind of injury or disease in terms that include a requirement that the veteran have been exposed to a traumatic event in which “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 the person’s response involved intense fear, helplessness or horror …”.  In Stoddart v Repatriation Commission[2003] FCA 334; (2003) 197 ALR 283; 74 ALD 366, Mansfield J said at [50]; 294; 378:

   “… The adjectival clause “that involved actual or threat of death or serious injury ...” explains the nature of the event or events which must be experienced.  It contemplates an objective and assessable state of affairs.  I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause.  But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury.”

   Mansfield J concluded at [55]; 296; 379:

   “In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”

   In Woodward and Another vRepatriation Commission[2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424; Black CJ, Weinberg and Selway JJ said at [144]; 499; 357-358; 445; 450:

   “We consider that the reasoning of Mansfield J in Stoddartis persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.  That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it.  We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”

1. I have set out s 196B(2) above.[115] In essence, it imposes a duty upon the Authority to determine a SoP in respect of a particular kind of injury, disease or death if it is satisfied that there is sound medical-scientific evidence for doing so. Section 33(3) of the AI Act provides that:

   “Where an Act confers a power to make, grant or issue any instrument … the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.”

   [115] See [28] above

1. Rather than expressing a contrary intention, the VE Act expressly recognises that the power given or duty imposed by s 196B(2) is broad enough to encompass revocation and amendment of an existing SoP.  Section 196B(8) provides that if, after carrying out the investigation it is obliged to carry out under s 196B(7) in relation to, among other matters, a review of the contents of a SoP:

   “… the Authority is of the view that there is a new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death, the Authority must:

   (a)determine a Statement of Principles in respect of that kind of injury, disease or death under subsection (2) or (3); or

   (b)make a determination amending the Statement of Principles determined under subsection (2) or (3) in respect of that kind of injury, disease or death; or

   (c)revoke the Statement of Principles determined under subsection (2) or (3), and determine a new Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death;

   as the case requires.”[116]

   [116] The reference to s 196B(3) is a reference to those SoPs made by the Authority in relation to injury, disease or death that is related to eligible war service other than operational service or defence service.  It is not relevant in this case.

1. If, after carrying out that investigation the Authority decides that there is no new sound medical-scientific evidence about that kind of injury, disease or death or that which is available is not sufficient to justify the making of a SoP or the amendment of a SoP, the Authority must make a declaration in writing that it does not propose to make a SoP or to amend it as the case may be.[117]

   [117] VE Act, s 196B(9)

1. Clearly, s 196B(8) contemplates that a determination of a new SoP after review, whether in substitution for an earlier SoP or not, is a determination made under s 196B(2).  Sections 196B(8)(a) and (c) expressly refer to the determination’s being made under that provision.  Consequently, the determination is not made under s 196B(8).  The power to amend a SoP after a review is not so clear.  Section 196B(8)(b) refers to the making of a determination amending the SoP determined under s 196B(2).  It could be argued that s 196B(8)(b) is the source of the Authority’s power to make the amendment.  Equally, given the structure of ss 196B(8)(a) and (c) and their reference to the power in s 196B(2), s 196B(8)(b) could be read as a reference to the power inherent in s 196B(2) to amend a SoP previously made under it.  That interpretation would seem to be preferable given the reference in s 120A(2) to the determination under s 196B(2) and to the fact that a notice under s 196G must be given whether the Authority is investigating whether it should make an initial SoP or whether it is reviewing an existing SoP.  Given that the clear intention underpinning
   s 120A(2) is to ensure that the Commission is making its decision on the latest medical-scientific evidence, it would be strange if it did not ensure that was the case when the Authority amended a SoP as well as when it revoked a SoP and determined a new one in its place.

1. It follows that the two events that s 120A(2) specifies as the events ending the limitations upon the Commission’s power to determine a claim are events that can certainly be met in relation to the Authority’s making a new SoP when none existed before and can arguably be met when it reviews an existing SoP.  Therefore, the limitation imposed upon the Commission applies in either circumstance.  That limitation is then to be read with the stricture found in s 120A(3) that, in essence for the purposes of this case, a hypothesis connecting a disease contracted by a person with the circumstances of service rendered by that person “is reasonable only if there is in force … a Statement of Principles determined under subsection 196B(2) … that upholds the hypothesis.”  If the Authority has neither determined a SoP nor declared that it does not intend to do so, s 120A(3) does not apply.  That is the effect of
   s 120A(4).

1. Although this is not a case in which I am aware that there is a current notice under s 196G, I would make my own observation that, had there been such a notice, I would have felt constrained by s 120A(2) to defer consideration of the matter until the Authority had made a declaration or determined that it did not propose to do so. I would feel constrained because, although s 43(1) of the AAT Act provides that the Tribunal may exercise all the powers and discretions conferred by the VE Act upon the person who made the decision, it is equally true that, in the absence of express statutory provision, the Tribunal has no greater power than that person had. Section 120A(2) refers to the Commission’s not determining a claim in certain circumstances. Perhaps that is thought to be a reference to the Commission in its role and not to the role of the Tribunal on review or of the VRB, which, like the Tribunal:

   “… may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission …”[118]

   [118] VE Act, s 139(3)

1. I do not think that the reference in s 120A(2) is intended to be read in that limited way. Section 19(3) of the VE Act prescribes the way in which the Commission must determine a claim for a pension and it is difficult to see why the Tribunal and the VRB are not equally bound by the provision. They are, after all, reviewing the Commission’s decision to decide whether or not it was the correct or preferable decision. That is so even though the Tribunal is reviewing the Commission’s decision as affirmed or varied by the VRB or as set aside and substituted by the VRB. Section 19(3) provides:

   “The Commission shall determine a claim for a pension as follows:

   (a)first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:

   (i)the incapacity of a veteran from war-caused injury or war-caused disease, or both; or

   (ii)the death of a veteran that was war-caused;

   (b)then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).”

The references to s 19(5A), (5B), (5C) and (5D) are all concerned with assessment of the rate of pension payable in certain circumstances. If it is Parliament’s intention that the Commission should defer its decision until it can have regard to the SoP as based on the latest medical-scientific evidence and as the Tribunal stands in the shoes of the Commission, I can see no reason why the powers of the Tribunal are not equally limited.

1. It seems to me that the powers of the VRB are equally limited.  Once the VRB has reviewed the decision, it affirms or varies the Commission’s decision or sets it aside and substitutes another.[119]  It is not the VRB’s decision that the Tribunal is asked to review but the Commission’s decision as affirmed or varied by the VRB or as substituted by the VRB.[120]  The role of the VRB has no impact upon the right recognised in Keeley and Gorton to have the Commission’s decision determined by reference to the SoP current at the date of its decision even if its decision has been substituted or varied at a later date.  When regard is had to those cases and to
   

   [119] VE Act, s 139(3)

   [120] VE Act, s 175

   sections 120A(2) and (3), there is no room to consider a SoP that was in force when the VRB reviewed the Commission’s decision but is no longer in force when that is the task of the Tribunal.  The VRB and the Tribunal have the common task of deciding what decision the Commission should have reached in the first place.  Their duty to decide that question correctly is the claimant’s right to have it determined according to the SoP in force at the time.  They have the common task of deciding that question according to the SoP in force at the time they made their respective decisions.  The clear provisions of ss 120A(2) and (3) mean that the claimant cannot accrue a right to have the question determined by reference to the SoP in force when the VRB decided the question when a notice has been given under s 196G and a different SoP is in force when the Tribunal reviews the decision.

1. Putting aside the accrued right recognised in Keeley and Gorton, the upshot of this analysis is that, provided a notice has been given under s 196G, both the Commission and the Tribunal may only make a decision by reference to the SoP in force at the time that it makes its decision.  Does that mean that there is no room to accrue a right to have the Commission’s decision reviewed by reference to a SoP that existed after the Commission made its decision and before the Tribunal reviews that decision?  I do not think that it does.  The principles that led to the Federal Court’s conclusions apply equally to review by the VRB.  The VRB is bound to have regard to the SoP in force at the time that it reviews the Commission’s decision and, if the veteran is unsuccessful, it is bound to then have regard to the SoP in force at the time the Commission made its decision.  As the VRB has that duty, does not the veteran have a correlative right to have the VRB carry out its task properly?  It is a task that mirrors the task referred to by Mason CJ, Deane, Toohey and Gaudron JJ in Esber when referring to the right of a claimant for compensation to have the decision of the then Commissioner for Commonwealth Employees’ Compensation replaced by the decision he should have made had he properly applied the law as it stood at the time he made his decision. That was a right that the High Court found accrued to the claimant according to the principles in s 8 of the AI Act despite the repeal of the legislation under which he made his claim. It would seem to accrue no less to a veteran according to similar principles found in s 50 in relation to a legislative instrument such as a SoP which is revoked after the VRB had carried out its review.

1. When tested against the notions of fairness, that would seem to be the right result.  It would be unfair if one veteran were to succeed at the level of the VRB because it properly applied the law at the time and yet another, who did not succeed because the VRB did not apply the same law correctly, could not have the decision reviewed in light of that law.  Although all tribunals strive to apply the law correctly, an individual’s rights should not be dependent upon their success in doing so.  They should, instead, be dependent on the application of the law in a consistent fashion and this can only be achieved by recognising a right to have a decision reviewed in light of the SoP in force at the time of the VRB’s review.

1. The same reasoning would also lead to the conclusion that a veteran accrues a further right to have his claim assessed by reference to the SoP in force at the time the Commission made any review of its decision either before the VRB or the Tribunal reviewed it.  The Commission may carry out such a review under s 31 of the VE Act.  The right accrues on the making of the decision under s 31 just as it does on the making of the VRB’s decision.  Therefore, if a SoP in force at the time the Commission made its decision were amended on two occasions before the VRB made its decision, the right that accrues would be to have the matter determined by the SoP as amended on the second occasion, as that would be the SoP in force at the time of the VRB’s decision and, sequentially, the SoP in its original form would be the SoP as it existed when the Commission made its decision.  No right would accrue in relation to the SoP as amended on the first occasion.  This is an approach that seems consistent with the requirement in s 120A(3) that a hypothesis is only reasonable if any SoP that has been determined upholds that hypothesis and with the law as set out in Keeley and Gorton.

1. I can understand that this could be thought to be an unfair outcome if there had existed a SoP more favourable to a veteran than a SoP in force at the time of the Commission’s, VRB’s or Tribunal’s decision.  It seems to me, however, that Parliament has decided that it prefers to have claims determined on the basis of the most current medical-scientific evidence.  In doing so, it has ruled out the possibility of a person’s accruing a right to have a claim in respect of incapacity from an injury or a disease or in respect of a death determined by reference to a SoP other than, as the Full Court determined in Keeley, that in force at the time the Commission made its decision or, as it determined in Gorton, that in force when the Tribunal reviews the Commission’s decision or, as is yet to be adjudicated upon by the Federal Court but arguably, at the time the VRB or the Commission itself reviewed its decision. 

C.The hypothesis

1. The hypothesis put forward is that Mr Rayson’s Major Depressive Disorder resulted from, or was attributable to, one of the three incidents to which I have referred.  The first step is to consider whether there is material that points to that hypothesis.  It is not a case of finding facts but simply looking for material pointing to it.

1. There is material that points to Mr Rayson’s having experienced the star shell incidents in which he was fearful and another in which he was an eyewitness to an event in which people in a sampan were killed.  The material points to his being upset by the sampan incident.  It also points to his exhibiting symptoms that might be indicative of his suffering from depression after he left the Navy.  They took the form of disturbing dreams.  Even though those dreams settled until later life, Dr D’Ortenzio’s report of them remains material that points to Mr Rayson’s continuing to suffer from disturbed sleep in the intervening period lies in the report of Mr Burge and in the letter written by Mrs Rayson.  Both point to the content of those dreams relating to incidents in his service as does the letter from Mr Rayson.  Material that points to his suffering from symptoms of depression in later years lies in the report of Dr D’Ortenzio regarding Mr Rayson’s persistent lowered mood, decrease in energy, motivation, interest and pleasure in activities and mild and varying symptoms of anxiety.

D.The Statements of Principles: identifying the SoPs

1. Having identified the hypothesis and the material pointing to it, the next step is to identify any SoP that relates to the Major Depressive Disorder suffered by Mr Rayson.  The relevant SoP that is currently in force and that would seem to relate to the condition is SoP 27 of 2008 (SoP 27) as amended by SoP 40 of 2010.  The amendments made by SoP 40 of 2010 are not relevant.  SoP 27 is about depressive disorder by which it means:

   “… a group of psychiatric conditions which are manifested by a dysphoric mood.  The mood disturbance is prominent and persistent.  This definition is limited to major depressive episode, recurrent major depressive disorder, dysthymic disorder, depressive disorder not otherwise specified, substance-induced mood disorder with depressive features, or mood disorder due to a general medical condition with depressive features, or with major depressive-like episodes …”[121]

   [121] SoP 27, cl 3(b)

1. The expression “major depressive episode” is defined in clause 3(b) of SoP 27 to mean:

   “… a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):

   A.Five (or more) of the following symptoms have been present during the same two-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.  Symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations, should not be included.

   (1)depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful).  In children and adolescents, it can present as irritable mood;

   (2)markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others);

   (3)significant weight loss when not dieting or weight gain (e.g., a change of more than five percent of body weight in a month), or decrease or increase in appetite nearly every day.  In children, consider failure to make expected weight gains;

   (4) insomnia or hypersomnia nearly every day;

   (5)psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down);

   (6)fatigue or loss of energy nearly every day;

   (7)feelings of worthlessness or excessive inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick);

   (8)diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others); or

   (9)recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.

   B.The symptoms do not meet criteria for a mixed episode.

   C.The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

   D.The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).

   E.The symptoms are not better accounted for by bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than two months or are characterised by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.”

1. There is material in the evidence of Dr D’Ortenzio, Mr Burge and
   Mrs Rayson pointing to Mr Rayson’s suffering from the symptoms referred to in clause 3(b)A(1), (2), (4), (5) (in the sense of observable psychomotor retardation) and (6).  There is no material pointing to Mr Rayson’s symptoms meeting those for a mixed episode or of being due to the symptoms of a direct physiological effects of a substance.  There is material pointing to its being due to the effects of a general medical condition being that related to Mr Rayson’s heart but I do not need to explore that further.  The symptoms are not accounted for by bereavement. 

   
   

1. There is no significant difference between the criteria for a Major Depressive Disorder set out in SoP 27 and its predecessors SoP 17 of 2007 (SoP 17).  SoP 65 of 1996 (SoP 65), which came into operation on 18 April 1996 is a little different.  It states in clause 2(b) that, for its purposes, a depressive disorder means that:

   “(A)     the person has had two or more major depressive episodes, as defined in DSM-IV, separated by an interval of at least two months; and

   (B)the person’s major depressive episodes:

   (i)are not better accounted for by schizoaffective disorder, as defined in DSM-IV; and

   (ii)are not superimposed on schizophrenia, schizophreniform disorder, delusional disorder, or psychotic disorder not otherwise specified, as those conditions are defined in DSM-IV; and

   (C)the person has never had a manic episode, a mixed episode, or a hypomanic episode unless all the manic-like, mixed-like, or hypomanic-like episodes are substance or treatment induced or are due to the direct physiological effects of a general medical condition;

   attracting ICD code 296.3, 300.4 or 311.”

1. Whichever description is used, Mr Rayson’s Major Depressive Disorder would seem to fall within it.

E.The Statements of Principles: the factors connecting condition with service

1. Beginning with SoP 27, clause 5 states that, subject to clause 7, at least one of the factors in clause 6 must related to the circumstances of Mr Rayson’s service.  In so far as it has relevance to this case, clause 6 states:

   “The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder … with the circumstances of a person’s relevant service is:

   (a)for major depressive disorder …,

   (i)…

   (ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or

   (iii)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or

   (iv)-(ix)…

   (x)having a sleep disorder for the six months before the clinical onset of depressive disorder; or

   (xi)…

   (xii)…”

1. A “sleep disorder” means “… a dyssomnia, a sleep disorder related to another mental disorder other than depressive disorder, a sleep disorder due to a general medical condition or a substance-induced sleep disorder as defined in DSM-IV-TR”.[122]  The material does not point to Mr Rayson’s suffering from a dyssomnia or a sleep disorder relating to another mental disorder.  It does point to his suffering from a sleep disorder due to a general medical condition relating to his heart.  There is, however, no material pointing to his heart condition being related to Mr Rayson’s service.  Therefore, the hypothesis is not consistent with the factor in clause 6(a)(x).

   [122] SoP 27, clause 9

1. A category 1A stressor referred to in clause 9:

   “… means one or more of the following severe traumatic events:

(a)       experiencing a life-threatening event;

(b)being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)being threatened with a weapon, being held captive, being kidnapped, or tortured”.

1. There is material pointing to Mr Rayson’s being exposed to an event that could have been life-threatening if the star shells had fragmented or if the Tobruk had been fired on but there is no material pointing to events of that sort having occurred.  There is also material that he witnessed an event that was life-threatening to others and was in fact an event that ended their lives.  It would seem, though, that the life-threatening event that is experienced is a reference to an event that threatens the veteran’s life rather than that of another.  That interpretation is consistent with the fact that the other two events described as Category 1A stressors relate to actions directed against the veteran.  It is also consistent with the fact that Category 1B stressors all relate to events witnessed by the veteran either as an eyewitness or as an attacker but not as the object of actions directed against him or her.  Therefore, I have concluded that the material does not point to his having experienced as Category 1A stressor.

1. A category 1B stressor referred to in clause 9:

   “… means one or more of the following severe traumatic events:

   (a)being an eyewitness to a person being killed or critically injured;

   (b)viewing corpses or critically injured casualties as an eyewitness;

   (c)being an eyewitness to atrocities inflicted on another person or persons;

   (d)killing or maiming a person; or

   (e)being a an eyewitness to or participating in, the clearance of critically injured casualties”.

1. The material does point to Mr Rayson’s experiencing the first two of these events.  Whether he experienced the third depends upon the way in which it is interpreted and there is no need to do that for the relevant event is that of the sampan incident.  That is the incident that is also relevant in the first two events described as Category B stressors.  The material does point to Mr Rayson’s having experienced a Category 1B stressor.

1. Whether a category 1A or 1B stressor, that stressor must have been experienced within the five year period before the clinical onset of the depressive disorder.  The expression “clinical onset’ is not defined in any of the SoPs but it has been considered by the Full Court of the Federal Court in Lees v Repatriation Commission[123] when it said:

   [123] [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484; Heerey, Moore and Kiefel JJ

“13.  The first ground raises for consideration the meaning of the expression “clinical onset” in SoP1.  It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson & Repatriation Commission (1998) 50 ALD 668 and Re Witten & Repatriation Commission (1998) 54 ALD 605.  It was also considered by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.  In that matter a veteran had engaged in repetitive work maintaining small arms and subsequently developed carpal tunnel syndrome.  The relevant Statement of Principles provided that the clinical onset of the carpal tunnel syndrome had to be no more than 30 days after the repetitive work ceased.  Her Honour said at [26]:

Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression ‘clinical onset’ as used in clause 5(a) of the SoP.  The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:

‘… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present….’

By inference the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook in his report of 6 March 2001.  Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression ‘clinical onset’ in clause 5(a) of the SoP.  For present purposes, therefore, Professor Sambrook’s opinion that ‘[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993’ (see [8] above) may be disregarded.

The opinion her Honour was referring to in the first sentence concerned whether the Tribunal was satisfied the material before it pointed to the relevant repetitive activities not having ceased more than thirty days before the clinical onset of the respondent’s carpal tunnel syndrome.

14.    The meaning of ‘clinical onset’ was also referred to by Weinberg J in Repatriation Commission v Gosewinckel [1999] FCA 1273, (1999) 59 ALD 690 in the context of SoP48 and generalised anxiety disorder.  His Honour said at [64] and [67]-[68]:

The SoP requires the presence of a number of distinct symptoms, of which “clinically significant distress” and “restlessness or feeling keyed up or on edge” are only part.  Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present. 

The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP.  Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of “purely medical … issues” out of the hands of bodies such as the AAT – Explanatory Memorandum to Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3.  Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable – see Deledio v Repatriation Commission (supra) at 411-2.  An hypothesis that fails to fit within the template will be deemed not to be “reasonable”, and the claim will fail.

The hypothesis which the AAT found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP.  The AAT could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran’s generalised anxiety disorder was not war-caused.

15.    Counsel for the appellant submitted that in relation to a disease of gradual onset, which might include generalised anxiety disorder, one should approach the question of clinical onset within the two year period on the footing that it would be sufficient if only one of the prescribed symptoms may have manifested itself.  It was submitted that this aspect of the applicable Statement of Principles was not directed to diagnosis but only causation.

16.      However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme.  In relation to SoP1, the definition of ‘generalised anxiety disorder’ does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest.  The exception to this statement is par C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified.  The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder.  While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service).  This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.  In our view, the Tribunal did not err in its approach to the meaning of the expression ‘clinical onset’.”[124]

[124] [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484 at [13]-[16]; 335-337; 72-73; 488-490

1. The material points to Mr Rayson’s seeming a little depressed in March 1998.  That is found in Dr Campagnaro’s report to Dr Smagas.  He does not make a diagnosis at that time and no further reference to depression although he does refer to sleep apnoea and snoring in other notes between 1998 and 2000.  No reference is made to depression until 2000.  The material on which it could be said that there was a feature or symptom enabling a doctor to say that Mr Rayson was suffering from Major Depressive Disorder does not occur until 2004.  That material is found in the report of Dr D’Ortenzio when he considered the time of onset of Mr Rayson’s Major Depressive Disorder and concluded that:

   “The date of onset is really quite unclear.  His Depression seems to have come on in the last 1½ to 2 years.  The sleep disturbance, perhaps over a longer period of about 10 years.  The sleep disturbance, his heart disease and operations have all occurred through this period where there has been an exacerbation of his sleep disturbance and sleep related dreams.’[125]

That is a date well outside the five year period.  Even if I were to take the first mention in the medical notes as the date of clinical onset, that would also be well outside the five year period.  That date would be a date in the first months of 1998. 

[125] Exhibit 1 at 53

1. As there are no other factors that are relevant to Mr Rayson’s circumstances, that means that the hypothesis that has been put forward to draw the causal link between his Major Depressive Disorder and his service is not consistent with, and so does not fit the template provided by, SoP 27.

1. I have also looked to the earlier SoPs.  SoP 17 is expressed in similar terms to those used in SoP 27.  The same line of reasoning would lead me to the same conclusion.  SoP 65 is the earliest of the SoPs and it is the least generous to a veteran.  It is concerned with a depressive disorder of the kind suffered by Mr Rayson.  The relevant factor is set out in clause 5(c) and reads:

   “The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder … with the circumstances of a person’s relevant service are:

   (a)       …

   (b)experiencing a severe psychological stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

   (c)-(h)…”

A “severe psychological stressor” means:

“… an identifiable occurrence that evokes feelings of substantial anxiety in an individual or which is perceived as stressful, for example, being shot at, experiencing a loss such as divorce, separation, severe illness or injury, assault, legal problems, loss of employment, major financial problems, death or serious injury in a close friend or relative.”[126]

The definition was amended with effect from 9 December 1996 by SoP 181 of 1996 (SoP 181) to read:

“‘severe psychological stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (not including sexual assault), severe illness or injury, experiencing a loss such as a divorce or separation, loss of employment, major financial problems or legal problems”.

[126] SoP 65, clause 7

1. Whether the factors are as expressed in SoP 65 or SoP 181, they must have been experienced within the two years immediately before the clinical onset of depressive disorder.  Even if the material points to Mr Rayson’s having experienced a severe psychological stressor, it does not point to his having done so within that two year time-frame.  The incidents on which he relies are related to his service but date back to the 1950s; some forty years earlier.  Therefore, the hypothesis put forward on behalf of Mrs Rayson does not support there being a causal link the causal link between her late husband’s Major Depressive Disorder and his service.  It is not consistent with, and so does not fit the template provided by, SoP 65 or by SoP 65 as amended by SoP 181.

F.        The hypothesis is not reasonable

1. As the hypothesis is not consistent with the templates provided in the various relevant SoPs, I have concluded that the hypothesis put forward on behalf of Mrs Rayson is not reasonable.  Therefore, I am not satisfied that he has suffered a war-caused injury or a war-caused disease.  Consequently, his claim for a pension must be refused as any incapacity from which he suffered as a result of Major Depressive Disorder was not incapacity from a war-caused injury or disease.

DECISION

1. For the reasons I have given, I affirm the decision of the Repatriation Commission dated 3 May 2005 and as affirmed by the VRB in a decision dated 14 November 2006.

I certify that the one hundred and eighty one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           .......................................................................
  Leah Berardi, Associate

Dates of Hearing  25 and 26 November 2010

Date of Decision  7 April 2011

Solicitor for the Applicant            Mr D De Marchi

De Marchi & Associates

Solicitor for the Respondent         Mr D Brown

Australian Government Solicitor