Re Mackay and Repatriation Commission
[2000] AATA 483
•16 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 483
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1833
VETERANS' APPEALS DIVISION )
Re MAURICE GRAHAM MACKAY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date16 June 2000
PlaceSydney
Decision The decision of the Veterans' Review Board dated 30 September 1998 is set aside and the Tribunal substitutes in lieu thereof its decision, namely: 1. That part of the decision of the Repatriation Commission dated 4 March 1996, which rejected the Applicant's claims to have the conditions of post traumatic stress disorder and psychoactive substance abuse or dependence accepted as liable to pension pursuant to the Veterans' Entitlements Act 1986, is affirmed. 2. The Repatriation Commission decision dated 12 June 1996, rejecting the claims to have the conditions of gout, alcoholic liver damage, peripheral neuropathy and diabetes mellitus attributed to service, is affirmed. 3. The Applicant is, pursuant to sections 9 and 13 of the Veterans' Entitlements Act 1986, entitled to pension for incapacity occasioned by chromic airflow limitation as and from 4 June 1995. 4. The Applicant is entitled to pension for incapacity occasioned by the diseases of chronic airflow limitation, chronic solar skin damage and bilateral sensorineural hearing loss with tinnitus at the rate of 100% of the General Rate as and from 4 June 1995.
..............................................
M D ALLEN
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim for PTSD and psychoactive substance abuse or dependence. Satisfied PTSD exists but not a reasonable hypothesis linking to service nor reasonably satisfied attributable to service as not conforming with Statements of Principles. Criticism of DSM-IV being used for forensic purposes. Assessment of pension.
Veterans' Entitlements Act 1986 - ss6C, 9, 13, 120, 120A, 120B
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Cooke 90 FCR 307
Re Budworth and Repatriation Commission [2000] AATA 127
REASONS FOR DECISION
16 June 2000 Senior Member M D Allen
By application made 17 December 1998 the Applicant sought review of a determination by a Veterans' Review Board on 30 September 1998 that:
(1)affirmed a decision of the Repatriation Commission dated 4 March 1996 that refused the Applicant's claim for post traumatic stress disorder and psychoactive substance abuse or dependence and which assessed pension at 40% of the General Rate; and
(2)affirmed a decision of the Repatriation Commission dated 12 June 1996 that refused the Applicant's claim for gout, alcoholic liver damage, peripheral neuropathy and diabetes mellitus.
When this matter came on for hearing the claims regarding gout, diabetes mellitus and peripheral neuropathy were abandoned so that the diseases to be considered by the Tribunal were post traumatic stress disorder, psychoactive substance abuse or dependence, and alcoholic liver damage.
The Veteran had both operational service and defence service. So far as operational service is concerned the standard of proof is that laid down by subss120(1) and (3) of the Veterans' Entitlements Act 1986 (the VEA), whereas for defence service subs120(4) of the VEA provides that the Tribunal must be "reasonably satisfied" that the conditions claimed are attributable to the Applicant's defence service.
As the Applicant's claims were lodged post 1 June 1994, s120A of the VEA provides that a reasonable hypothesis connecting the Applicant's injury or disease with his operational service can only exist if there is in force a so-called Statement of Principles (SOP) that upholds the said hypothesis. So far as claims arising out of defence service are concerned, s120B of the VEA provides that the Tribunal is to be reasonably satisfied that the injury or disease was defence-caused only if, where an SOP is in force, that SOP upholds the contention that the said injury or disease was connected with the Applicant's defence service. In other words, the decision as to whether it has been proved on the balance of probabilities that an injury or disease has been caused or contributed to by a veteran's defence service, has been taken out of the hands of the Administrative Appeals Tribunal and is to be decided in abstract by the Repatriation Medical Authority.
The Full Court of the Federal Court pointed out in Repatriation Commission v Keeley [2000] FCA 532 that upon review by this Tribunal, the SOP to be applied is that SOP in force at the time the original decision upon an applicant's claim was made. In this matter the original decisions were made on 4 March 1996 and 12 June 1996. The applicable SOPs are therefore Instrument No 15 of 1994, as amended by Instrument No 225 of 1995, re Post Traumatic Stress Disorder (PTSD) and Instrument No 5 of 1994 re Psychoactive Substance Abuse or Dependence. There are no SOPs in force regarding alcoholic liver damage.
Instrument No 15 of 1994 defines PTSD in terms of the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV). The most recent instrument, namely No 54 of 1999, also refers to the DSM-IV criteria. To use the DSM-IV in this manner is totally inappropriate. As the introduction to DSM-IV points at page xxiii:
"When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information concerned in a clinical diagnosis."
The introduction adds:
"Nonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the causes of an individual's mental disorder or its associated impairments."
More importantly, as is pointed out, again at page xxiii:
"The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion."
Yet it is just this that the Repatriation Medical Authority's SOPs on PTSD seek to do.
It is for the above reasons that I do not accept the approach of the Respondent in this matter which was to take the various diagnostic criteria for PTSD as set out in DSM-IV and the SOP and seek to show that the Applicant did not meet those criteria. The question of whether the Applicant does in fact suffer from a PTSD is one to be decided by the Tribunal to its reasonable satisfaction – see Repatriation Commission v Cooke 90 FCR 307. In this matter that question has been addressed by Drs Wade, Girgis and Lewin, all being medical practitioners with specialist qualifications in psychiatry. I consider the question of whether the Applicant has a PTSD is one of deciding between various clinical judgments made by the appropriate experts in the field rather than, as a layman, seeking to assess the various DSM criteria in a "cookbook" fashion.
The Applicant in this matter joined the Royal Australian Navy on 18 December 1958, aged 22 years. Prior to his enlistment he had served a period, of three months full-time and 33 months part-time in the Army under the then National Service Training Scheme. He also completed an apprenticeship at the Williamtown Naval Dockyards as a fitter and turner.
One of the vessels aboard which the Applicant was originally posted was HMAS Voyager. He was not on that vessel when it was sunk following a collision with HMAS Melbourne but had close friends on the Voyager who died as a result of this collision. Further, his place of duty on the Voyager had been in the Transmitting Room which was below decks and about the middle of the vessel. It is at this point that HMAS Voyager took the impact of the Melbourne.
Later the Applicant was transferred to HMAS Duchess, a Royal Navy vessel loaned to the Royal Australian Navy to replace the Voyager. Duchess was the same class of vessel as the Voyager and, again, the Applicant's place of duty was the Transmitting Room.
Whilst aboard HMAS Duchess, the Applicant had fears that a collision similar to that involving HMAS Voyager would occur and he would be trapped in the Transmitting Room and drown. These feelings intensified when the Duchess acted as an escort vessel to HMAS Sydney when that vessel carried troops to South Vietnam.
In his statement (Exhibit A2), the Applicant refers to the Sydney as being of the same proportions as the Melbourne with the same manoeuvring limitations. In his evidence he referred to the Melbourne but I regard this as an error as the Applicant clearly intends to refer to HMAS Sydney when he speaks of entering and anchoring in Vung Tau Harbour.
Of his experiences in Vung Tau Harbour, the Applicant said (Exhibit A2):
"12.It was pretty traumatic being there, it felt like a dangerous place, one of the major dangers were the mines and I could see the fighting in the hillside tracer bullets being fired in the hills and there was also helicopters flying about there was bombers going over, I think they were B52s. They were so close I could see them dropping things.
13.The fighting was pretty close the Vietcong were quite thick in the area were (sic) we were. We were there for four days but it was so dangerous that later on the ships would stay for one day and if they couldn't complete their unloading in one day they would go to sea overnight.
…
15.There was also continuos (sic) scare charges going off and this was very frightening especially when you are below deck and you haven't a clue what is happening.
16.The second time I went to Vietnam was much the but we were only stayed three days on that occasion. Once again I was very frightened and my feelings of hopelessness and helplessness continued."
Following its second voyage to South Vietnam as an escort vessel for HMAS Sydney, HMAS Duchess went to Hong Kong. The Applicant claims that it was on shore leave in Hong Kong on this occasion that he started to drink heavily. Previously he had been a social drinker but this time in Hong Kong he had a drinking binge for three days. His ship remained in Hong Kong for three weeks and he drank most of the time during those three weeks. Asked why he drank, he said:
"Well, I tried to drown out the thoughts that I'd experienced and it acted like a medicine on me; it was a salve; it relaxed me and got my mind off my thoughts."
After Vietnam and the period of rest and recuperation in Hong Kong, HMAS Duchess took up duties patrolling off Malaysia intercepting vessels suspected of carrying infiltrators or smugglers during the period of hostilities between Malaysia and Indonesia, known as confrontation.
During this time the Applicant experienced a fright when a small native vessel, referred to as a "kumpit", struck the side of HMAS Duchess at or about 0400 hours. At the time the Applicant was asleep in the starboard mess deck. Although in cross-examination he stated that he was aware that there was no danger to HMAS Duchess after 15 minutes, he claimed that the fright engendered by that collision remained with him for years.
The Applicant left the Navy in 1968, that is to say after 10 year's service. His evidence was that at that time he could not carry out his duties because of his drinking. Three and a half years later he re-enlisted in the Navy. He continued to drink and on one occasion, whilst aboard HMAS Yarra, was warned for discharge as his drinking had led to inadequate performance in his rank and trade.
At the age of 48 the Applicant left the Navy. He was then a Chief Petty Officer but said of his performance (Transcript p20):
"… I was under the influence of alcohol. I used to drink because I couldn't sleep. I'd wake up in the middle of the night and I'd drink. And I'd go to work, and I was still under the influence of alcohol. I used to – in fact I used to sleep it off in the car – this is when I was at Waterhen – HMAS Waterhen. And the sailors knew I drank because they used to see me in the car, and they made comments on it.
He was then asked:
Question: "So when you left in 1984, why did you leave?
Answer: "I just couldn't go on any more."
Since leaving the Navy the Applicant has not been employed.
Incidents related by the Applicant as to what he observed whilst in Vung Tau Harbour during the first visit of HMAS Duchess were referred to a historian for a report. Exhibit R6 is that report and it states inter alia:
"You specifically asked:
'Is there any evidence of 'tracer bullets being fired into the hills' during the first visit of Duchess to Vung Tau in 1965?'
ANSWER: NO.
'Is there evidence of Bombers (B52 or otherwise) dropping bombs overhead at that time?'"
ANSWER: NO. From secondary sources the earliest recorded date of use of B52 bombers was 17 June, six days after Duchess departed. (The Vietnam War: An Almanac, John S Bowman, World Almanac Publishers, 1985, p118.) Also please note that the Reports of Proceedings quoted below indicate that the monsoon season had set in and that generally the weather, therefore visibility, was poor."
Cross-examined, the Applicant also conceded that he knew that explosions beside the ship whilst in Vung Tau Harbour were defensive measures taken by the ship. He also resiled from his statement that "the fighting was pretty close, the Vietcong were thick in the area".
All in all following the report which is Exhibit R6, the cross-examination of the Applicant and my own knowledge of Vung Tau and environs, I am totally convinced that the Applicant is exaggerating as to what he alleges he saw in Vung Tau Harbour and the effect it had upon him. His evidence as to those events has no credence. As to his claims that he saw B52s dropping bombs, that is given the lie by his admission that he did not hear the explosions. If he was close enough to see the ordnance being delivered, which I doubt, he would have heard it detonate on impact.
Exhibit T40 is a bundle of documents being a copy of the Applicant's medical history records held by the Department of Defence. Those documents were not available at the hearing of this matter but were provided to the Tribunal and the Applicant's representative prior to lodgment of written submissions.
Although the Applicant stated that at HMAS Waterhen he was not adequately performing his duties because of his heavy drinking, this is not reflected in a case note when the Applicant was referred for psychiatric evaluation in October 1982. The Applicant's then commanding officer writes of him (T40 p54):
"13. …
CPO MACKAY performs efficiently as a Regulator and in his trade as an ETW. He frequently acts as WEEO and his performance is adequate. His overall efficiency is reduced by a lack of application.
14.…
I have only known this CPO for a few months. His outlook has been dominated by his recent separation, and acrimonious relationship with his spouse. He has made frequent comments of the type that few people could bear the pressure that he has been under. He is known to have reasonable social contacts and to have good friends of both sexes.
15.…
The only complaint that can be levelled against the sailor results from his membership of a clique within WATERHEN of divorced people. He frequently discusses both his problems and social life at length with other members of the clique in front of junior sailors. He is frequently on the phone discussing his or other's personal problems. He projects an image of being a 'bit of an old woman' at times."
A discharge summary signed by a Surgeon Lieutenant Commander states (T40 p57):
"Admitted on 3.10.82 with reactive depression and alcohol problems. He also suffers from gout and is on Allopurinol.
Following treatment with Benzodiazepines and a tricyclic anti depressant and psycho-social counselling, he made a good recovery and was discharged on 25 10 82 without the need for any CNS medication."
Subsequent medical reports make no mention of any psychiatric disturbance but do refer to gout and alcohol intake.
Dr Wade, Psychiatrist, saw the Applicant on 18 June 1999. In his opinion the Applicant suffers from a PTSD together with a secondary depressive disorder and an alcohol dependency as that illness is defined in DSM-IV, although in Dr Wade's opinion the alcohol dependency is really a symptom of chronic PTSD.
In evidence in chief Dr Wade stated that the Applicant had a continuum of stress during his naval career. The Voyager collision was the initiator and then the Applicant experienced stress by having his place of duty in a position where, if there was a collision such as with the Voyager, his chances of survival were small. These stresses, plus Vietnam, combined so that the collision between HMAS Duchess and the kumpit was "the straw that broke the camel's back" and the Applicant developed a PTSD as a result.
Asked whether, after a minor collision, he would still opine for a PTSD rather than some other diagnosis, Dr Wade replied (Transcript p52):
"I think within my clinical judgment, that in these situations it's the uniqueness of an individual's meaning. And I think anyone else who had his particular experiences is very likely to have the reaction. Other shipmates around him may not have, but they didn't have his particular set of experiences. And it's the meaning of the individual that it comes down to when it does come to these fear reactions."
Cross-examined regarding the criteria in DSM-IV that for a PTSD to be present the patient has to have experienced a "severe stressor", Dr Wade stated that that was a subjective test not objective.
Finally, Dr Wade was questioned as to the appropriateness of the DSM-IV definition. After confirming that the DSM was an epidemiological tool, he stated that the Applicant could be diagnosed as having major depression, a generalised anxiety disorder and probably also a disassociation disorder, however, in his opinion this group of illnesses was best accounted for under current conventions by the diagnosis of PTSD.
Document T11 is a report by Dr Girgis, Psychiatrist, to the Applicant's general practitioner dated 3 February 1996. The history taken by Dr Girgis states:
"Because of the ship's Damage Control requirement, to preserve watertight integrity, they had to go to a condition called A.B.C.D. State 3. This called for the closing of all water-tight doors and hatches. They were effectively locked down, including an 18 inch diameter escape hatch, which is in the event of having to escape, be opened overhead with a spanner.
…
His great fear, which has haunted him for years since, was in the event of being shelled, torpedoed, mined, rocketed or rammed by another vessel, that his fate would be similar to his ship mates aboard the Voyager.
The prospect and the threat of being helplessly trapped brought about bouts of claustrophobic anxiety. Another part of his duties was to maintain the Soner hull outfit which housed the ship's soner. This was positioned in the lowest part of the ship actually passing through the keel. To him this was very terrifying experience working down there during the threat."
And having taken this history, Dr Girgis concluded:
"Mental Status Examination: Mr Mackay is suffering from 'Post-traumatic stress disorder'. He is showing the three major features (DSM IV): the re-experiencing of the trauma through dreams and waking thoughts; emotional numbing to other life experiences, including relationship; and associated symptoms of autonomic instability, depression, and cognitive difficulties, such as poor concentration and memory deficits. He is not fit for work and his prognosis is guarded."
At the request of the Respondent, the Applicant was examined by Dr Lewin, Psychiatrist, on 31 May 1999. After taking a history consistent with the Applicant's evidence in this matter and examining the Applicant, Dr Lewin opined (Exhibit R2):
"I considered whether Mr Mackay's alcohol dependence arose as a consequence of military service. It is possible that he had a Reactive Anxiety Disorder during the period of his military service and that he used alcohol initially to medicate himself. I found no clear evidence of any continuing psychiatric disorder such as a Post Traumatic Stress Disorder. There was no history of a severe stressor within the history of his military service as described to me."
And concluded:
"At the present time I diagnosed Alcohol Dependence Syndrome. I did not diagnose any separate Anxiety Disorder or Depressive Disorder. The symptoms that Mr Mackay describes are symptoms related to his drinking problem and I noted that his complaints could reasonably be explained on that basis alone.
I concluded that there was no relationship between his alcohol addiction and his military service. On that basis I did not find any psychiatric impairment under the GARP V system."
At the outset I cannot reconcile Dr Lewin's statement that the Applicant may have used alcohol to medicate himself during his military service and the conclusion that there was no relationship between his alcohol addiction and his military service. Questioned about this in evidence in chief, Dr Lewin stated that if the Applicant had developed a reactive anxiety condition during his service and there had been a significant change in his drinking habit in that period, there may be a link between alcohol dependence and service.
Cross-examined regarding the link between service and alcoholism, Dr Lewin stated that the key issue was the temporal relationship. For the collision between HMAS Duchess and the kumpit to have been a cause, a knowledge of the Applicant's drinking habit at the time would have had to have been obtained. He did not believe that a single event would have caused the Applicant's alcoholism. Further, any anxiety symptoms experienced by the Applicant during service would have settled when the stressor (ie sea going service) was removed.
Both Dr Wade and Dr Girgis have examined the Applicant and both opine that he is suffering from a PTSD. Dr Lewin is contrary but, having heard both Dr Wade and Dr Lewin give evidence, I was more persuaded by Dr Wade as to why in the case of this veteran a diagnosis of PTSD is appropriate. I therefore find as a fact that the Applicant does suffer from a PTSD.
Were this matter one of a claim against the Department of Defence, pursuant to the Safety, Rehabilitation and Compensation Act 1988, that the Applicant does suffer from a PTSD would involve the further determination as to whether that PTSD was caused or contributed to by his naval service and, on the opinions of Drs Wade and Girgis, liability would have been found against the Commonwealth. As, however, the claim is made pursuant to the Veterans' Entitlements Act 1986, s120A and s120B of that Act impose an additional test. As explained in Repatriation Commission v Deledio 83 FCR 82 at 97, having found as a fact that the Applicant does have a PTSD, I can only be satisfied that there is a reasonable hypothesis connecting the said disease with his service, (or be reasonably satisfied of a connection with defence service) if the hypothesis or the state of reasonable satisfaction is consistent with the "template" to be found in the appropriate SOP.
In this matter the relevant SOP for PTSD is Instrument No 15 of 1994. In that document it is stated that to link PTSD with service the Applicant must have been:
"(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder;"
Experience a stressor is defined in the SOP at paragraph 4. As:
" 'experiencing a stressor' means the following (derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror;"
Deputy President McMahon, in Re Budworth and Repatriation Commission [2000] AATA 127, said at para 62 et seq:
"62. … The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of 'intense fear, helplessness or horror". This is an extremely high level of reaction to extremely traumatic stressors.
63. The types of incidents in the minds of the authors which could amount to such objective stressors include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp and so on. All of these incidents readily suggest the necessary level of 'extreme traumatic stressor'. Dr Spragg instanced the trauma of the holocaust, the experience of prisoners of war working of the Burma-Thailand Railway and the experience of prisoners of war in captivity in Changi. The authors of DSM IV appear to have had such high level stressors in mind when these criteria were developed.
64. The response to the stressor must be not merely a general apprehension or a relief to be out of a perceived dangerous situation. The response must be so intense as to cause the symptoms appearing in criteria B, C and D."
In this matter, although the SOP referred to is earlier than the SOP adopted by Deputy President McMahon, I adopt as a matter of conformity his analysis of the various criteria with the exception that in the SOP applicable to this case the word "extreme" does not appear.
I am satisfied that none of the events referred to by the Applicant in his evidence amounted to a severe stressor as that term is defined in the SOP. The bump in the night from the kumpit was, objectively speaking, nothing and the Applicant was soon aware that it was inconsequential. I am firmly of the opinion that he is exaggerating his Vietnam experiences and, in any event, he never experienced anything like the situations referred to in the passage quoted above from Re Budworth supra.
I accept that the Applicant may have had some anxiety whilst in the Transmitting Room aboard HMAS Duchess but I accept Dr Lewin's opinion that this would have been during his naval service. There is no evidence that this continued post service – compare, for example, the reports from HMAS Waterhen referred to previously which implicate his divorce in any psychiatric state.
So far as the Applicant's alcoholism is concerned, Dr Wade believes this to be a symptom of his PTSD. If this is so, it cannot by itself be accepted as due to service when the PTSD is not. The stream cannot rise higher than the source.
The SOP relating to Psychoactive Substance Abuse or Dependence, Instrument No 5 of 1994, gives as the causative event:
"(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;"
The term "stressful event" is defined as:
"means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."
The definition of "stressful event" in Instrument No 5 of 1994 should be read in conformity with the definition of "experiencing a stressor" in Instrument No 15 of 1994. That is to say the test is an objective one, not subjective. I find as a fact that this Applicant did not have any stressful events of such severity or magnitude so as to conform with the definition of the term "stressful event" in the SOP. Apart from the fact I regard the Applicant as exaggerating his experiences in Vietnam, even on his own evidence he did not experience combat. As far as the collision is concerned it was, as stated above, objectively, a minor event. Any feelings of anxiety whilst in the Transmitting Room would have dissipated when sea going service ceased but, in any event, it cannot be compared to actual combat.
There is no evidence to point to the Applicant having a psychiatric condition prior to the clinical onset of his alcoholism. He may well have been anxious whilst in the Transmitting Room of HMAS Duchess but the term "psychiatric condition" is defined in Instrument No 5 of 1994 as a psychiatric illness attracting a diagnosis under DSM-IV. As stated, there is no evidence that his apprehensions amounted to a psychiatric illness.
For the reasons outlined above therefore I am satisfied that no reasonable hypothesis exists connecting the Applicant's PTSD and psychoactive substance abuse or dependence with his operational service, nor am I reasonably satisfied that the said conditions are attributable to his defence service. As neither of these conditions can be attributed to service, the consequential illness of alcoholic liver damage cannot be so attributed.
The matter of assessment of pension was also before me but as the claimed conditions of PTSD and psychoactive substance abuse or dependence, and alcoholic liver damage are not attributable to service, any assessment of pension must be with regard to his accepted disabilities of chronic solar skin damage, bilateral sensorineural hearing loss with tinnitus and chronic airflow limitation.
In his report of 7 October 1999 (Exhibit R3) to the Respondent, Dr Mark Burns, Occupational Physician, assesses the Applicant's impairments for his accepted disabilities. He finds that the Applicant has an impairment rating of 55 points (rounded) and a lifestyle rating of 5, giving an incapacity of 100%. I see no reason not to accept the Respondent's expert's assessment of degree of incapacity.
Dr Baz, Occupational Physician, in her report of 3 August 1999 (Exhibit A6), implicates the Applicant's alcoholism and anxiety as the main causes why he cannot work. Dr Burns agrees that alcohol abuse is the reason the Applicant is not working. Pension at either the Special or Intermediate Rates is therefore not an issue as the Applicant cannot meet the criteria that any inability to undertake remunerative work is due to disabilities accepted as pensionable under the VEA alone.
The decision of the Veterans' Review Board dated 30 September 1998 will therefore be set aside and the Tribunal substitutes in lieu thereof its decision, namely:
(1)That part of the decision of the Repatriation Commission dated 4 March 1996, which rejected the Applicant's claims to have the conditions of post traumatic stress disorder and psychoactive substance abuse or dependence accepted as liable to pension pursuant to the Veterans' Entitlements Act 1986, is affirmed.
(2)The Repatriation Commission decision dated 12 June 1996, rejecting the claims to have the conditions of gout, alcoholic liver damage, peripheral neuropathy and diabetes mellitus attributed to service, is affirmed.
(3)The Applicant is, pursuant to sections 9 and 13 of the Veterans' Entitlements Act 1986, entitled to pension for incapacity occasioned by chromic airflow limitation as and from 4 June 1995.
(4)The Applicant is entitled to pension for incapacity occasioned by the diseases of chronic airflow limitation, chronic solar skin damage and bilateral sensorineural hearing loss with tinnitus at the rate of 100% of the General Rate as and from 4 June 1995.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic .....................................................................................
AssociateDates of Hearing 14 March 2000 - Coffs Harbour
22 March 2000 - Sydney
Date of Decision 16 June 2000
Solicitor for the Applicant Ms A Toliopoulos,
Legal Aid Commission of New South Wales
Advocate for the Respondent Ms S Breuer,
Department of Veterans' Affairs
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