Rendell and Repatriation Commission - [2001] AATA 98

DECISION AND REASONS FOR DECISION [2001] AATA 98

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/228

VETERANS' APPEALS DIVISION       )
           Re      GARY ALAN RENDELL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member Brigadier R D F Lloyd, Member Dr Y Haslam, Member

Date12 February 2001
PlacePerth

Decision      The Tribunal affirms the decision under review in respect of pension assessment, and continues disability pension at 100% of the General Rate.
  ...........(sgd R D Fayle)...........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlement – rate of disability pension – applicant has accepted war-caused conditions of pain in right side, malaria, ischaemic heart disease, chronic anxiety state, post traumatic stress disorder and irritable bowel syndrome – whether these accepted war-caused conditions alone render the applicant incapable of undertaking remunerative work - whether applicant eligible for Special (Totally and Permanently Incapacitated) Rate of pension
Veterans' Entitlements Act 1986, s24
Forbes v Repatriation Commission [2000] FCA 328
Steel and Repatriation Commission [1999] AATA 369

REASONS FOR DECISION

12 February 2001 Mr R D Fayle, Senior Member Brigadier R D F Lloyd, Member Dr Y Haslam, Member

This is an application by Gary Alan Rendell ("the applicant") for review of decisions of a delegate and a senior delegate of the Repatriation Commission ("the respondent"), dated 14 April and 16 December 1999, in so far as they dealt with pension assessment, and as affirmed by the Veterans' Review Board ("VRB") on 7 April 2000. The effect of those decisions was that the rate of disability pension payable to the applicant under the Veterans' Entitlements Act 1986 ("the Act") continued to be assessed at 100% of the General Rate, with effect from 25 August 1998.
At the hearing the applicant was represented by Mr L Fee of the Veteran's Advocacy Service and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents", comprising T1-T32, pp1-91) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and documentary exhibits (marked A1 and A2) tendered by the applicant. Oral evidence was given by Dr Oleh Kay (psychiatrist) and by the applicant.
The Factual Background
The relevant background facts as found by the Tribunal on the basis of the T documents, and about which there is no dispute between the parties, are as follows.
The applicant was born on 25 August 1945, and served in the Australian Regular Army ("ARA") between 1964 and 1970. During that period he had operational service in Sarawak in 1966 and in South Vietnam in 1968-1969.
The applicant was in receipt of a disability pension at 100% of the General Rate with effect from November 1993, based on the following war-caused disabilities:

pain in right side
malaria
ischaemic heart disease
chronic anxiety state.

On 25 November 1998 the applicant lodged an application with the Department of Veterans' Affairs for an increase in pension and a claim for additional disabilities he described as "stress related symptoms, chronic diarrhoea, rash". These claimed conditions were subsequently diagnosed by the Department as post traumatic stress disorder, irritable bowel syndrome, cholinergic urticaria and keratosis pilaris.
On 14 April 1999 the respondent accepted the disabilities of post traumatic stress disorder ("PTSD") and irritable bowel syndrome as being war-caused. The other two conditions of cholinergic urticaria and keratosis pilaris were at the same time rejected as being war-caused. The respondent also rejected the applicant's claim for an increase in pension and continued it at 100% of the General Rate.
That April 1999 decision concerning the rate of pension was based on the total of the disabilities then accepted and these remain the disabilities accepted today. They were/are:

pain in right side
malaria
ischaemic heart disease
chronic anxiety state
PTSD
irritable bowel syndrome

and the conditions which have been rejected as being war-caused are:

cholinergic urticaria
keratosis pilaris.

On 19 May 1999 the applicant lodged with the VRB an application for review of the respondent's decision to continue disability pension at 100% and also sought review of the respondent's refusal to accept the above two skin conditions as being war-caused.
On 7 April 2000 the VRB, in its hearing of the matter, consented to the applicant's withdrawal of his earlier request for review of the decision concerning the claimed disabilities of cholinergic urticaria and keratosis pilaris, and went on to affirm the respondent's assessment of pension at 100% of the General Rate.
On 13 July 2000, the applicant applied to the Tribunal for a review of that decision in so far as it dealt with pension assessment, contending that he should have been granted the Special (Totally and Permanently Incapacitated) Rate.
The applicant's incapacity from accepted disabilities and resultant assessment of rate of pension, pursuant to s19(a) of the Act, is to be assessed from the application date – in this case 25 November 1998 – to the date of the Tribunal's decision.
The Applicant's Evidence
In written evidence in the T documents (T4, p10) the applicant listed his work history from 1973 to 1990. These were largely 'hands on' type employments but did include some managerial positions. His last full-time work was 1998-90 when he was self-employed conducting a soft drink franchise. His work history is again set out later in the T documents at T24, p53 in a little more detail, although there is some variation in the dates.
The accepted documentary evidence states that the applicant ceased full-time work in June 1990 and he had recorded at that time that the reasons for his inability to continue working as being due to "sore neck, shoulders and knees, blocked ears and prickling back".
When applying for service pension in 1990, on the grounds of permanent incapacity, the applicant stated that he was unable to work because of the following conditions (T4, p10):

Anxiety – date of onset 1970 – subsequently accepted as war-caused in 1985
Back rash – date of onset 1970
Blocked ears and dizziness – date of onset December 1989
Stiff neck and jaw muscles – date of onset 1989
Sore knees and joints.

Apart from the anxiety condition, none of the other four conditions listed above were, or have since been, accepted as war-caused.

The applicant applied for, and was granted, a service pension in September 1990 on the grounds of permanent incapacity, based on the above disabilities and the report by his LMO, Dr Ng (T6, p16). His service pension was reviewed in August 1991 by a delegate of the respondent and a determination made that it continue (T15, p34), again based on the same five disabilities as listed in para 15 above.
At about that time Dr Ng made a diagnosis that a number of the applicant's more non-specific complaints (referred to in para 14, 15 above) could result from Lyme disease (T7, pp18-20). However this diagnosis has never been confirmed and there is subsequent medical opinion which would indicate that the applicant does not have Lyme disease – including that of Dr Zilko in his report of 19 January 1991 (Exhibit A2).
The applicant did make attempts to work part-time in 1990-91 but most of these only lasted a short time. He commenced employment with a firm entitled Allpike in February 1991, but states that he worked for no more than 8 hours per week. His evidence was that he ceased this work on 7 June 1991 because "it was too strenuous" (T10-13, pp 26-29). According to his evidence this is the last occasion on which he has really undertaken any remunerative employment and he has not worked since.
During his oral evidence the applicant was, on several occasions, asked the reason(s) for his ceasing full-time self-employed work delivering soft drink in 1990. His response varied from his having allowed the granting of credit to get out of hand and resultant bad debts; getting upset with some of these bad debt customers and consequently feeling despondent; that the job wasn't interesting to him; his lack of experience in running a business; his irritable nature which he stated he'd had for a long time, but which flared up from time to time – albeit he is now controlling himself better in this regard (Transcript, pp 29-30). In his evidence he advised that his aches and pains didn't help much either. He said, in fact, that there were a whole lot of reasons why he gave up work and he couldn't pinpoint one (Transcript, p32).
With regard to the matter of a possible condition of alcohol abuse, in response to questions, the applicant described his alcohol drinking pattern over the years. In the period when he was working full-time, up to 1990, he stated that he did not drink during the day, but most evenings he would have two or three cans of beer. His main drinking night for many years has been Friday night when he "lets his hair down" and would regularly consume in the order of fifteen mid-strength stubbies on those nights.
More recently the applicant described a further regular arrangement of meeting friends on Monday afternoons and on these occasions he would drink approximately six stubbies/cans. During other evenings of the week he may have several beers if he was playing pennant bowls.
The applicant advised that his main problem now was the aches and pains and especially the cramp-type pain for which he has been prescribed medication and that does help to alleviate it.
He also had had a right rotator cuff problem which was not a service-related condition. This had been operated upon successfully, together with some muscle repair work, and he no longer had any difficulty with his right shoulder (Transcript, p40).
The applicant was questioned at some length in cross-examination and by the Tribunal concerning the degree to which his irritability was of concern. He made it quite clear that he got on with his ex-Army colleagues at all times. They met regularly and always on Anzac Day – either in Rockingham or in Perth – and he enjoyed those gatherings a great deal. He spoke with pride about those members of his old section that he had commanded in Sarawak and similarly in Vietnam (Transcript, p38-39).
He did acknowledge that he had got angry with some of his defaulting customers in 1990 when he had the soft drink business – but only with those he considered were being dishonest.
Occasionally he had become irritated by one or two members of the bowling club with whom he had a difference of opinion. He also tended to get angry when the garden hose got tangled at home and he might then give it a bit of a wrench, which he later would regret (Transcript, p35).
However he advised that he is very conscious of the control he needs to maintain over his emotions and if things are important enough he does not allow irritability to interfere or to endanger relationships (Transcript, p37).
When asked by the Tribunal to clarify how he saw his present physical problems, the applicant indicated he still had some neck stiffness, some cramping pains in the stomach, slightly increased hearing difficulty, irregularity in vision (? migraine), and some sweatiness (Transcript, pp 44-45).
When asked why he felt he presently could not undertake remunerative work, the applicant was unsure of the reason but in the end concluded that he was worried whether he would be able to handle the job. His concern was about his ability to hold a job down and was not related to his skills. He felt confident about adapting to most things if he set his mind to it and also believed he was trainable should that be necessary (Transcript, p45).
The Medical Evidence
Dr Eaton, who examined the applicant in relation to his claim for service pension in 1990, reported, among other matters, that the applicant "had stopped drinking alcohol recently", and that he had said that "he is willing to work if he can get rid of his present soreness in his muscles. [He] considers himself very fit apart from soreness" (T5, pp 14-15).
Dr Ng reported that an insect had apparently bitten the applicant in December 1989 (T7, p 17) – with subsequent development of pain and swelling in his neck and head. The applicant had reported feeling a choking sensation, paraesthesia in his feet and hands, fullness in his ears and a burning sensation in his eyes. He had a stiff neck and he complained that all his joints were painful, especially his knees. Dr Ng reported that Dr Scopa had, as a result, diagnosed Lyme disease, however the final diagnosis was uncertain (T7, pp 17-20).
In August 1991 Dr Ng again examined the applicant and reported that he was suffering from paraesthesia generally, joint pains in the neck, back and throat, as well as tinnitus (T14, p 31). Dr Ng also stated in his report that the diagnosis of Lyme disease had not been confirmed.
In January 1991 the applicant, who had been seen by Dr Zilko (immunologist) previously, was referred back to him for his opinion. His report of 19 January 1991 (Exhibit A2) is as follows:
"Thank you for referring back this man whom I saw on one occasion back in July 1990. I note he has a history of symptoms occurring since December 1989 when he was bitten by an insect and he attributes his symptoms to that event. Since then he has had stiffness in his neck and wide spread pains. His current complaints include blocking in his ears, stiffness in his neck, headaches, pains in the upper and lower limbs with a low background pain and occasional shooting pains which last several seconds. He also has some intermittent paraesthesia in his knees and legs and sensitivity of his skin to local pressure. Inquiry reveals that he has a poor sleep pattern having trouble going to sleep and often waking at 3 or 4 in the morning. He feels aching and stiff in the morning which lasts for about one hour. He has tried a variety of medications including Feldene in the past without benefit and more recently he has had a trial of Tryptanol in the dose range of 50-75 mg daily without benefit. I note he is exercising regularly walking up to five kilometres each day. I understand he sold his soft drink delivery business in July and has since been put on a pension by the Repatriation Hospital system. Recent review by Dr Hertzberg led to him being given Tryptanol.
Examination today revealed that he was a fit looking man who was well muscled and tanned. His weight was 87 kg and blood pressure was 140/80. Heart examination was normal. Examination of all his joints was within normal limits, as were cervical spine and lumbar spine movements with a full range of painless movement. Neurological examination of the upper and lower limbs including power, tone and reflexes were all normal. There was no significant tenderness of fibrositis tender points.
There is nothing to suggest that he has inflammatory problems affecting his joints or muscles. I suspect that this pain is on a neuropathic basis and feel that psychological factors may be contributing. I am afraid I have no suggestions to make apart from suggesting that he have a trial of Rivotril 0.5 – 1 mg nocte and bd on a prn basis. He is still convinced that Lyme disease is a cause of his problem and produced photocopies of papers indicated that serology may be negative in the early stages of the disease. I have indicated that his previously negative serological results make it unlikely that he has this condition but I have arranged for a further serological test for this condition again today. I have encouraged him to return to see Dr Hertzberg in a month for a follow-up appointment."

In a report dated 18 October 1993, Dr O Kay (psychiatrist) diagnosed the applicant as suffering PTSD. He further opined that the applicant suffered from "depressive symptoms and excessive alcohol consumption" (T18, pp 38-39).
The applicant intermittently consulted Dr Kay from 1993 onwards and his report of 13 August 1997 (T23, p46) in part states:
"… Gary (the applicant) has not worked since 1989. He stopped work at that time because of sudden onset of superficial abdominal pain, probably associated with some kind of arthropod bite and subsequent muscle weakness, fatigueability and disseminated pain. The aetiology of these symptoms was never established and the possibility of Lyme disease was raised, but never proven. More recently, the possibility of prolonged post-infective reaction was also raised as was the possibility of late phenomena of envenomation by a red back spider bite. All of these diagnoses are, however, tentative and I do not believe that it can be seriously considered that he has any significant symptoms now as a result of possible insect bite some 8 years ago.
I believe that the probable cause of his fatigue and weakness is as a result of his severe Post-Traumatic Stress Disorder and chronic Alcohol Abuse (emphasis added). As you are aware, anxiety disorders are frequently characterised by weakness [neurasthenia being a term that was coined to describe this particular condition], likewise, alcohol abuse is associated with myopathies. Irrespective of that, I believe the degree of weakness he described in no significant way incapacitates him for all forms of work.
I have little doubt that he suffered from significant PTSD when he stopped work and I take the view that he stopped work because of an acute illness of unknown cause, but the sole reason he has not returned to work is his PTSD (emphasis added)."

Dr M Daly had been treating the applicant as a patient since 1992. In a report concerning the applicant's PTSD condition, dated 26 July 1997 (T25, p 61), he stated in part:
"… Over the latter years he developed muscle cramps which were painful and at times disabling and he was seen by various specialists and no cause was found despite intensive investigation. Again, with the benefit of hindsight, it has become apparent that his muscle cramps are associated with stress and his cramps have been eased by Valium and are noticeably worse when he is stressed. His cramps are a somatic manifestation of his chronic PTSD and although they were not a prime factor is [sic] causing him to cease work they are more properly considered as part of his chronic PTSD."

Dr Kay gave lengthy oral evidence at the hearing, during which he emphasised his opinion that a number of the applicant's 'physical' conditions were in fact manifestations of his accepted disability of PTSD and that they should not be regarded as conditions separate to it. This was a view that he had expressed in earlier reports contained in the T documents, the most recent of which was that dated 23 August 1999 (T28, pp 76 – 78). Reports by Dr Zilko (see para 33 above) and Dr Daly (see para 36 above) were also supportive of this assessment.
Conditions excluded from this assessment of "somatic symptoms" or manifestations of PTSD were the applicant's right shoulder (rotator cuff) problem, which in any case had subsequently been rectified by operation, and also his tinnitus/hearing loss.
The condition of alcohol abuse, earlier diagnosed by Dr Kay, was however another matter. In the latter stages of his oral evidence, as a result of questions posed during the hearing, Dr Kay advised that he had now decided to withdraw his earlier (1997) documented opinion (T23, p 46 and para 35 above) that the probable cause of the applicant's "fatigue and weakness is a result of his severe Post Traumatic Stress Disorder and Chronic Alcohol Abuse" (emphasis added). Dr Kay now believed that, as a result of further consideration and in view of the results of an electromyography ("EMG") study which showed no evidence or a resultant myopathy, his previously stated opinion concerning the cause of the applicant's fatigue being in part due to his chronic alcohol abuse was incorrect (Transcript pp 17-20).

Despite that change in opinion, Dr Kay re-affirmed that he would still diagnose the applicant as having an alcohol abuse syndrome (under DSM IV). However, Dr Kay was strongly of the view that the applicant drank at night, or at the end of the day, and not during the day. In his opinion the alcohol habit did not affect the applicant's ability to carry out remunerative work.
Dr Kay's oral evidence, in referring to so called "somatic symptoms", was that "…every (emphasis added) Vietnam Veteran has got physical symptoms and we just don't bother diagnosing it or putting it all down …". And when asked are these the sorts of things that he would normally say are part of the incapacity from PTSD, Dr Kay replied:
"Yes, they all (emphasis added) have a skin rash that comes and goes. They've seen various dermatologists, they've had various treatments, none (emphasis added) of them have worked and they've had various diagnoses applied to them, and that's the characteristic thing. Now, most of them have got headaches. The headaches get worse under times of stress. They have a typical sort of generalised anxiety symptoms of sweatiness and heart racing and that sort of stuff. They all (emphasis added) have gastrointestinal symptoms, either or both upper gastrointestinal or lower gastrointestinal. If they have lower gastrointestinal then they fulfil the criteria for irritable bowel syndrome. They all (emphasis added) have back pain, the back pathology is variable. If they are unlucky enough to have demonstrable back pathology they run into problems with the SoPs. But the back symptoms that they have is (sic) related to stress as well, as far as I'm concerned. They've put it down to Agent Orange." (Transcript, p24)

In response to questions by the Tribunal, Dr Kay then amended his description "all", in his statement above, to mean "all of the Vietnam veterans that see psychiatrists" (Transcript, p25).

Again, when Dr Kay was asked by Mr Ponnuthurai whether the applicant's otherwise unexplained conditions, which were the issue in this matter, were things that were not separately diagnosable, he replied:
"Yeah, look I thought it stood – it stood out like a sore toe when he first came and saw me. I mean it's just if you see a rheumatologist, he's going to favour the rheumatological diagnosis until he finds there's no evidence to support it. He saw a neurologist, the neurologist thought: I know, I'll go for something clever. But there's no evidence to support it. What he's got is symptoms in the absence of science.
Right. So, what precipitated it, having this bite has precipitated it or is this something that's just hit him at the right time to make him think that that's the case? - - - Oh I think that the bite is probably a precipiter in that it's given a physical locus for the sort of the psychological symptoms to accrete around, you know a bit like a grain of sand causing the subsequent development of a pearl. There's good evidence that he was bitten by a spider and he doesn't – and although he had anxiety and depressive symptoms before it at least by Mile's history, he didn't have quite the virulent symptoms that he has now. But that's I mean, that's a common phenomena. You see that all the time in compensation cases where somebody trips over and hurts their ankle and then suddenly all the sort of psychological issues that they've had become manifest in physical things. It's difficult to – nigh on impossible to convince them that they haven't got something physically wrong with them.
So, effectively this is something that we cannot separate from his psychiatric complaint? - - - No.
It is part and parcel of the whole thing? - - - Yes. And in fact feeling physical symptoms for a psychological condition is historically and culturally the norm. I mean we tend to think that what people have always done is recognise that they feel anxious or depressed but that's not the case. Using words like 'anxiety and depression' is something that is culturally localised, essentially to the Western world, it's economically localised to relatively affluent people, and if you go to and historically localised to the past couple of centuries – before then or in other societies people, and most characteristically in China, people do not complain of psychological distress. What they complain about when things are going wrong is aches and pains, neurasthenia.
So, are you suggesting then that post traumatic stress disorder, which is a phenomena of recent times ---? - - - Yes.
- - - is really nothing and it's the physical problems that are the cause? - - - Well, we know that in previous conflicts that the manifestations were predominantly physical.
I just have trouble, Dr Kay, with your analogy because, if I understand you correctly, you were saying that somebody who's got PTSD - Post traumatic stress disorder – can have a whole lot of manifestations which are physical? - - - Yes.
But it is not possible that it can be the other way around? - - - Sorry, I'm missing the point.
Well okay. If Mr Rendell has neck problems and other physical problems that haven't been accepted is it not possible that they will cause what we call anxiety? - - - Yes.
Okay, so that's a possibility? - - - That's a possibility, yes.
So, they could co-exist? - - - Yes. I mean you can't – nobody could sensibly be absolutely certain about it.
So, PTSD can co-exist with physical disabilities? - - - Absolutely.
And they may not be causally linked? - - - Related, you're quite right." (Transcript, p25-26)
Dr Kay gave oral evidence that the applicant has an irritability problem that, although not constant, was unpredictable. He opined that this does affect his employability. Dr Kay stated that "… he has a reputation in the Veteran's community as being a difficult person. He's disliked by a lot of other Vietnam Veteran's in the Rockingham/Mandurah area." When asked: "So are you saying that that one symptom actually is a cause of him not being able to work?", Dr Kay replied: "the irritability, yes" (Transcript, p16). And later in his evidence: "… I treat a number of other Veterans that know Gary [the applicant], which is the reason why I can say that he's disliked in that community" (Transcript, p20). This evidence, however, differed markedly from the applicant's own evidence about his irritability and social relationships, especially his relationships with his ex-Army colleagues and other ex-Servicemen (see para 24-27 above and Transcript, pp 35, lines 13-37; page 37, lines 24-46; page 38, lines 16-28; and page 39 , line 22 to page 40, line 10).
The Issues
As a preliminary matter, the applicant's advocate raised the question as to whether the issue of entitlement to the conditions which had been described by the respondent and the VRB as sequelae of the applicant's accepted disability of PTSD had been properly dealt with at those levels. And he indicated that the Tribunal should address this aspect as well as the assessment matter (Transcript, pp 3-7).
After some discussion, including reference to relevant cases, the applicant's advocate indicated that he did not want to press this retrospective aspect. Aside from that, the Tribunal accepted the respondent's contention that it could only review what had actually been looked at by the respondent in its decisions and, more specifically, subsequently by the VRB. The Tribunal therefore finds that it cannot intervene by reviewing associated entitlement matters that had not been actually claimed and rejected in that process (Transcript, pp 46-47).
Hence, the issue before the Tribunal is an assessment of pension matter only – that is whether the applicant is entitled to pension at the Special Rate, pursuant to s24 of the Act, rather than be at the currently prescribed 100% of the General Rate.
The basic question that faces the Tribunal within that issue is whether some of the applicant's medical/health conditions, other than those accepted as being war-caused, were in fact separate conditions (albeit sequelae of the accepted disability of PTSD), or were the relevant ones actually manifestations of the accepted PTSD/Chronic Anxiety State.
Are the accepted war-caused conditions suffered by the applicant of such a nature as, of themselves, sufficient to have caused him to cease work and continue to prevent him from undertaking remunerative work pursuant to s24 of the Act?
The Legislation
Section 24 of the Act relevantly provides:
"(1)      This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)      either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)        section 25 does not apply to the veteran.
(2)      For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

Findings on Material Questions of Fact and Consideration of Issues

It is common ground that the conditions prescribed by paras (aa), (aab), (a) and (d) of s24(1) of the Act are satisfied in the present case and the Tribunal so finds. The question for the Tribunal's determination is, therefore, whether paras (b) and (c) of s24(1) are also satisfied.
The condition prescribed by para (b) of s24(1) of the Act is that the Veteran must be "totally and permanently incapacitated" in the sense that "the Veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the Veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week."
The medical evidence before the Tribunal supports the proposition that the applicant is incapable of undertaking remunerative work. Dr Kay opined that the applicant is incapable of working because of his accepted PTSD/Chronic Anxiety State. In so doing, he opined that the applicant's other complaints of: back rash, stiffness, sore joints, dizziness and stomach cramps are somatic manifestations of his accepted anxiety disorders, and that they are not separate (and non-accepted) disabilities. Dr Kay's opinion in this regard is also supported by some other documented medical evidence before the Tribunal.
The respondent's view in this respect is that these additional conditions are sequelae of the applicant's accepted anxiety disorders and as such they should not be taken into account as if they were accepted disabilities by the Tribunal. They would first have to be separately claimed by the applicant and accepted by the respondent as war-caused.
The respondent did, however, concede that if, based on the evidence, the Tribunal were to be satisfied to it's reasonable satisfaction that these sequelae can be viewed in fact as clinical features or symptoms of the applicant's accepted anxiety disorders, then they could be taken into account in assessing the appropriate rate of pension: see Steel and Repatriation Commission [1999] AATA 369.
Based on the evidence, the Tribunal finds that the sequelae of the back rash, stiffness, sore joints, stomach cramps and dizziness are somatic features/symptoms of the applicant's accepted disabilities of PTSD/Chronic Anxiety State.
However, this finding does not result in the "alone" test having been met in this case. There is the question of the applicant's alcohol abuse, in particular, a problem that Mr Rendell has and which Dr Kay confirmed in his oral evidence. Dr Kay opines that this should also be regarded as part of the applicant's PTSD and, in any case, he now believes that it is not a factor in the applicant's inability to undertake remunerative work. The respondent contends that the alcohol abuse/dependence condition is not a symptom of PTSD, albeit it could be a sequelae, but that there is a Statement of Principles issued by the Repatriation Medical Authority in respect of alcohol abuse and it should properly be regarded by the Tribunal as a separate identifiable condition. Unlike the "somatic sequelae" referred to in paras 52-55 above, which it may be possible for the Tribunal to view as clinical features/symptoms of PTSD, the respondent contends that the alcohol abuse condition must be separately claimed for as a war-caused disability.
The Tribunal agrees with the respondent's contention in this regard concerning the applicant's alcohol abuse condition and finds that it is a separate disability which is not accepted as war-caused as at the date of its decision.
As to the effect of this condition on the applicant's ability to undertake remunerative work, the evidence before the Tribunal is both unclear and somewhat contradictory. However, on careful consideration, the Tribunal finds that the applicant's tendency to over-indulge in alcohol, as portrayed in his evidence and also the evidence of Dr Kay before he chose to amend it at the hearing, is an appropriately significant factor in his employability and ability to work.
The Tribunal is concerned about the obvious discrepancy between Dr Kay's evidence and that of the applicant regarding the applicant's level of irritability in relation to working (and socialising) with others. The oral evidence of the applicant, as a result of detailed and purposeful questioning by the Tribunal, is vastly different to that opined by Dr Kay in his oral evidence and also in some of the documented evidence as well (paras 43-44 above). The Tribunal is convinced that this difference was not a matter of the applicant "painting a preferable picture" in his oral evidence. As a consequence, the Tribunal finds that the "irritability factor" is not one that could be classed as a major inhibitor to the applicant successfully undertaking all remunerative work.
Following on from that, despite some opinion to the contrary by Dr Kay, the Tribunal finds that it was not so much the "irritability factor" which caused the applicant to cease full-time work in 1990, but more his mismanagement of the business – in which he admitted, in his evidence, he was somewhat out of his depth. And in his evidence, the applicant also cited the fact that the work didn't adequately interest or satisfy him either – as was the case subsequently when he tried other work for short periods.
The applicant must satisfy all elements of s24(1). As already indicated, he does satisfy the requirements of s24(1) (a) and (d) and, based strictly on the medical evidence, it is possible that he may satisfy the requirements of s24(1) (b). However, based on other evidence already discussed, the Tribunal has some reservations about this: see paras 56-60 above.
With regard to s24(1)(c), this condition in the Act comprises the following elements:

the veteran was undertaking remunerative work;
the veteran is prevented from continuing to undertake such remunerative work by reason of incapacity from the relevant war-caused injuries or war-caused disease, or both, alone; and
by reason of being so prevented, the veteran is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity.

There is no dispute that the applicant was undertaking remunerative work, albeit it dates back to 1990 for substantial employment, with some subsequent attempts for short periods at lighter work.
As to the second abovementioned element of s24(1)(c), the Tribunal finds from the evidence that it was not his accepted war-caused disabilities (including the clinical features/symptoms of PTSD referred to in para 55 above) which, alone, prevented the applicant from continuing or resuming remunerative work. Other significant factors were also involved, that is: his own inadequate managerial experience/skill, dissatisfaction with and lack of interest in the type of work involved, and some alcohol abuse difficulties. The latter condition not being one that was/is accepted as war-caused.
By virtue of that finding and also pursuant to s24(2), the Tribunal is not satisfied that the applicant is suffering a loss of salary, wages or earnings that he would not be suffering if it were not for his accepted disabilities alone. In this regard the Tribunal referred to Nicholson J in the Federal Court decision of Forbes v Repatriation Commission [2000] FCA 328.
Accordingly, the Tribunal determines that the applicant does not satisfy the necessary requirements of para (c) of s24(1) of the Act.
All aspects of s24(1) of the Act must be met to satisfy the requirements for granting the Special Rate of pension. As the applicant fails to do so, the Tribunal finds that he is not eligible for that rate, but that his disability pension should continue at 100% of the General Rate.
Decision
For the above reasons the Tribunal affirms the decisions under review, in so far as they deal with pension assessment, and that the applicant continue to be paid pension at 100% of the General Rate.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member
Brigadier R D F Lloyd, Member
Dr Y Haslam, Member
Signed:
................................(sgd S Railton)...............................
Associate
Date/s of Hearing  16 January 2001
Date of Decision  12 February 2001
Counsel for the Applicant        Mr L Fee
Solicitor for the Applicant
Counsel for the Respondent    Mr C Ponnuthurai
Solicitor for the Respondent