Sneddon and Repatriation Commission - [2002] AATA 307

DECISION AND REASONS FOR DECISION [2002] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/309

VETERANS' APPEALS DIVISION       )
           Re      KENNETH JOHN SNEDDON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date3 May 2002
PlaceSydney

Decision      The decision under review is set aside. The tribunal substitutes its own decision to the effect that: (a)     The applicant suffers from post-traumatic disorder ("PTSD"); and (b)           The applicant's PTSD is war-caused; and (c) The applicant qualifies for payment of Disability Pension at the special rate; and (d)     The date of effect of this decision is 9 November 1997 such that special rate is payable in respect of all instalments of pension payable on or after that date.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - claim for post-traumatic stress disorder rejected - whether veteran experienced stressor - whether special rate or intermediate rate payable

Veterans' Entitlements Act 1986 ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period"), 20(1), 21A, 22(2), 23(1), (2), (3), 24(1), (2), 24A(1), 28, 29(1), (2), (3), (4), (5), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.

Statement of Principles 3/99 as amended by 54/99 concerning Post-traumatic Stress Disorder

Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 LD 193
Repatriation Commission v Budworth (2001) 33 AAR 476
Repatriation Commission v Binding [1999] FCA 974

REASONS FOR DECISION

3 May 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATION

On 9 February 1998 Mr Kenneth John Sneddon ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim (T4) for a Disability Pension in respect of conditions eventually described by the Repatriation Commission ("the respondent") as:

chronic airways limitation ("CAL");
psychoactive substance abuse ("PSA");
benign neoplasm of the oesophagus;
gastro-oesophageal reflux disease ("GORD");
generalised anxiety disorder with depression (in the claim form the applicant referred to post-traumatic stress disorder ("PTSD");
haemorrhoids; and
lumbar spondylosis.

On 19 May 1998 a delegate of the respondent decided (T10) to accept the claim in relation to CAL, PSA, benign neoplasm of the oesophagus, and GORD. He rejected the claims for generalised anxiety disorder with depression, haemorrhoids and lumbar spondylosis. With particular reference to the rejection of generalised anxiety disorder, he said that the condition was manifested before the applicant joined the army and was perceptible during his army training period. He said that the condition was not caused by operational service in Vietnam, that Mr Sneddon had experienced no stressful event and that the relevant Statement of Principles ("SoP") for generalised anxiety disorder was not satisfied. The rate of pension was assessed as 90% of the general rate.
On 15 May 1998 Mr Sneddon sought a review of this decision from the Veterans' Review Board ("the VRB") (T11). He challenged certain of the material in a medical report by psychiatrist Dr G R W Davies (T8, T12). He said that he had been exposed in Vietnam to personal danger and was in fear for his life on a number of occasions. His PSA had been accepted because he had suffered from exposure to stressors. His PTSD should likewise be accepted. He decided (T27) not to appeal in respect of the rejection of lumbar spondylosis and haemorrhoids as war-caused disabilities.
On 23 June 1998 a delegate of the respondent conducted a review under s 31 of the Veterans' Entitlements Act 1986 ("the Act") and decided (T13) that in Vietnam there had been no stressor affecting Mr Sneddon, there was no aggravation of a pre-existing psychiatric condition in Vietnam and his psychiatric condition did not have its clinical onset in Vietnam.
On 27 August 1998 a second s 31 review was conducted (T14) and it was decided that the SoP on PTSD was not satisfied (T16).
On 12 January 1999 the VRB decided (T28) that the decision in T10 was affirmed. The applicant was found to have generalised anxiety disorder with depression but it had its onset not within the required two years of a stressful event. Notice (T29) of this decision was sent to Mr Sneddon on 12 February 1999. This was the reviewable decision.
On 3 March 1999 Mr Sneddon filed with the Administrative Appeals Tribunal ("the tribunal") an application for review of the respondent's decision as affirmed by the VRB (T1).
RELEVANT LEGISLATION
Relevant provisions from the Act are: ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period"), 20(1), 21A, 22(2), 23(1), (2), (3), 24(1), (2), 24A(1), 28, 29(1), (2), (3), (4), (5), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service--post World War 2 service in operational areas
6C.(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
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Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
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War-caused injuries or diseases
9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
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Eligibility for pension
13.(1) Where:
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(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
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(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
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Claim for pension
(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
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(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)
Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
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Determination of claims and applications .
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19.(6) Where the Commission has, pursuant to paragraph (5)(a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
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(9) In this section:
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application day , in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20(2) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received.
assessment period , in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
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Date of operation of grant of claim for pension
20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
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Determination of degree of incapacity
21A.(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(2)The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.
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General rate of pension and extreme disablement adjustment
(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
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Intermediate rate of pension
23 (1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
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Special rate of pension
24.(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
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Continuation of rates of certain pensions
24A.(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
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Capacity to undertake remunerative work
28. In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
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Guide to the assessment of rates of veterans' pensions
29.(1) The Commission may, from time to time, prepare a written document, to be known as the "Guide to the Assessment of Rates of Veterans' Pensions" setting out:
(a) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
(b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.
(2) The Commission may, from time to time, by instrument in writing, vary or revoke the approved Guide to the Assessment of Rates of Veterans' Pensions prepared by it.
(3) A document prepared by the Commission in accordance with subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(5) The percentage of incapacity of a veteran from war-caused injury or war-caused disease, or both, ascertained in accordance with the methods referred to in paragraph (1)(b) may be nought per centum.
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(7) When a document prepared by the Commission in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, the Commission shall furnish copies of the document or instrument to the Minister and the Minister shall cause copies to be laid before each House of the Parliament within 15 sitting days of that House after the Minister received those copies.
(8) The Commission shall make copies of the Guide to the Assessment of Rates of Veterans' Pensions that has been approved by the Minister, and of any variation of that Guide that have been so approved, available upon application and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide to the Assessment of Rates of Veterans' Pensions or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
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Standard of proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
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(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
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(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
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Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
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(b) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(c)a Statement of Principles determined under subsection 196B(2) or (11); or
(d)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
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Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
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Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

The following SoP is also relevant: SoP 3/99 concerning PTSD.
Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.15 of 1994 and Instrument No.225 of 1995; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
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Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
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Other definitions
8. For the purposes of this Statement of Principles:
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"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
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"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
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Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Fourteenth day of January 1999.
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Instrument No.54 of 1999
Amendment of Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.3 of 1999, (Statement of Principles concerning post traumatic stress disorder), by:
A. deleting the definition of "experiencing a severe stressor" in clause 8 and inserting in its place the following definition of
"experiencing a severe stressor" in clause 8:
"'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;".
2. The amendments made by this instrument apply to all matters to which
Instrument No.3 of 1999 and section 120A of the Act apply.
Dated this Twenty-Fourth day of June 1999
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HEARING AND APPEARANCES

The tribunal convened a hearing in this matter in Sydney on 12 and 13 December 2000. Mr N Dawson of counsel represented Mr Sneddon. Mr S Modder of DVA represented the respondent. The tribunal was provided with the following documents which were taken into evidence and marked as exhibits as follows:

Exhibit TD1 – Section 37 statement and associated T documents (exhibits T1-T30) provided on 23 April 1999.
Exhibit A1 – Report by Dr G Altman, psychiatrist, dated 28 September 1999.
Exhibit A2 – Report by Dr Altman dated 8 March 2000.
Exhibit A3 – Report by Dr M Baz, occupational physician, dated 5 June 2000.
Exhibit A4 – Applicant's statement of facts and contentions, dated 4 July 2000.
Exhibit R1 – Report by Dr R D Lewin, psychiatrist, dated 30 July 1999.
Exhibit R2 – Report by Dr M Burns, occupational physician, dated 21 August 1999.
Exhibit R3 – Summary report by occupational therapist Ms B Carr, dated 7 August 2000.
Exhibit R4 – Assessment report by Ms Carr, dated 7 August 2000.
Exhibit R5 – Report by Mr J Tilbrook, Writeway Research Service, dated 23 August 2000.
Exhibit R6 – Clinical notes of psychologist Mr G Trembath.
Exhibit R7 – Clinical notes of Dr M J O'Halloran, general practitioner.
Exhibit R8 – Respondent's statement of facts and contentions, dated 8 December 2000.

BACKGROUND

Mr Sneddon enlisted in the army on 7 February 1968 (T3/9) and was discharged on 6 February 1970 (T4/26). He saw operational service in Vietnam from 3 December 1968 until 1 October 1969 (T2/3).
Prior to enlistment Mr Sneddon was educated to third form (T3/11) or gained his Intermediate Certificate (T8/43). He was born in Port Kembla and had a happy childhood (T8). He worked as a fitter and turner (T3/9).
After military service he was a fitter and turner for a short time before he embarked on a long term career truck driving. At one point he stated that he had too many employers to remember (T4/32). At the end of his employment, however, he had one employer for four years (T7). He gave up truck driving when he had severe panic attacks (T16). He finished that work in June 1995 (T4/32).
Mr Sneddon has been married twice, once for two years and then for more than 13 years (T8/43). He has two children aged six and 10 years (T7). He has had some family conflict, notably with the older children of his second wife. At one stage he assaulted a stepson and was taken to court. After that he left the family home for six months to live with his parents, but then he returned to the family (T16).
Mr Sneddon claimed a DVA Service/Invalidity Pension (T24) on 27 March 1998 claiming skills and/or training in fitting and turning, truck driving, basic computer skills and basic office skills. That pension was granted on 2 April 1998 (T26).
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal makes the following uncontroversial findings:

The applicant was born on 22 May 1947 (T4).
The applicant served in the army rendering operational service in Vietnam from 3 December 1969 to 1 October 1969 (T2/3).
The applicant lodged a valid claim on 9 February 1998 (T4).
The date of effect of any decision favourable to the applicant would be 9 November 1998 (s 20(1) of the Act).
The standard of proof in respect of claimed disabilities is proof on a reasonable hypothesis (s 120(1), (3) of the Act). As regards assessment of rate, the standard is proof to the standard of reasonable satisfaction (s 120(4) of the Act). In Repatriation Commission v Smith (1987) 74 ALR 537, 547 this was held by the Federal Court to mean proof on the balance of probabilities.
The SoPs relevant to the determination of this matter are as follows. For PTSD the current SoP is SoP 3/99 as amended by 54/99. For anxiety disorder the current SoP is 1/2000. The full Federal Court in Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195 held that the appropriate SoP to apply is that in force at the date of the decision, that is the date of this tribunal's decision in this instance. The court held also that a SoP as in force on the day of the primary decision, 19 May 1998, may be applicable if Mr Sneddon does not succeed under the current SoP. If necessary, the tribunal will address the earlier SoPs when making its detailed findings.

ptsd as a war-caused disease

Applying the approach mandated by the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 the tribunal makes the following findings as to the applicant's claim that he has PTSD and it is war-caused.
The hypothesis raised (ex A4, A2) is that Mr Sneddon suffers from PTSD as a result of exposure to traumatic events in which he was confronted by events that involved threat of death or serious injury to himself and his response involved intense fear, helplessness or horror. Those events were driving in Vietnam without an armed escort, engaging in building operations in Vietnam in the open and without support and assisting in constructing a pontoon bridge in inclement conditions beside and on a swollen river when Mr Sneddon was unable to swim.
There is a relevant SoP, ie 3/99 as amended by 54/99 and, if Mr Sneddon fails under them, possibly SoP 15/94 as amended by 225/95.
In assessing whether the hypothesis raised accords with the template in SoP 3/99 as amended by 54/99 the tribunal notes the following. First, it is necessary to ascertain whether the accurate diagnosis is PTSD. Mr Sneddon says that it is. The respondent accepts that Mr Sneddon has a psychiatric condition but considers it to have commenced pre-service and not to have been exacerbated by service.
A number of experts have diagnosed PTSD. Mr Anning, a psychologist, did on 6 March 1998 (T7). Dr O'Halloran, a general practitioner, accepted that Mr Sneddon has PTSD (T9/46). Dr K Koller, a psychiatrist diagnosed chronic PTSD (T16). Dr Altman, a psychiatrist, diagnosed PTSD on 28 September 1998 (ex A1) and confirmed that in ex A2 on 8 March 2000.
Other doctors disagreed, however. Dr Davies, a psychiatrist, wrote on 20 March 1998 (T8) that Mr Sneddon had generalised anxiety disorder with secondary depression and substance abuse. He relied on a history suggesting that Mr Sneddon had a generalised anxiety disorder before joining the army. Before service he had visited the Jenolan Caves and experienced an anxiety episode at the time. During basic army training at Moorebank he had been unable to enter a model tunnel complex.
Dr R D Lewin, a psychiatrist, wrote on 30 July 1999 (ex R1) that Mr Sneddon had anxiety symptoms in his childhood (ex R1/12). In the army Mr Sneddon had a pre-existing anxiety condition and a problem with polysubstance abuse (ex R1/13). The stressors alleged by Mr Sneddon would not, Dr Lewin said, normally result in a life long mental condition. He had faced, on his own version of events, no actual threat.
The full Federal Court in Repatriation Commission v Budworth (2001) 33 AAR 476 discussed the duty of a decision-maker in deciding whether a veteran suffers from a claimed condition. At page 483 in paragraph 19 the court said:
"The expression 'as claimed' in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which is attached, namely, 'that the veteran suffered the injury or contracted the disease". This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label 'post-traumatic stress disorder', may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).
In accordance with the Federal Court view, then, the tribunal has only to find whether, on balance, Mr Sneddon has a collection of symptoms. Of that there can be no doubt and the tribunal so finds. However, with due respect to the Federal Court, a decision-maker has to go further and identify the relevant diagnosis in applying a SoP. The tribunal finds on the balance of probabilities that Mr Sneddon does suffer from PTSD. It is swayed by the fact that both recent treating psychiatrists have diagnosed that condition and have supported their diagnoses with relevant reasoning.
From the SoP the following requirements must be replicated in the raised hypothesis:

(a)The hypothesis must suggest that Mr Sneddon experienced a severe stressor prior to the clinical onset of PTSD (clause 5(a)).
(b)The hypothesis must suggest that this experience was related to Mr Sneddon's operational service (clauses 4, 8 ("relevant service")).

The hypothesis must suggest that Mr Sneddon experienced a severe stressor prior to the clinical onset of PTSD (clause 5(a)).

Mr Sneddon's evidence that fleshed out his raised hypothesis was as follows. In T27/98 he provided a written statement. That statement included the following:
"…
4.   During my initial training in the Army was aware that I could not swim and despite my attempts to be able to, I could not....
7.   I did not drink alcohol a great deal [in my early months in Vietnam], perhaps generally two or three cans of beer a night.
8.   During my tour in Vietnam I have a recollection of hearing gunfire, which sounded to me like small arms fire, and as it was coming into Nui Dat, I knew it was enemy fire.
9.   I was sitting on my truck at the time and when I heard the gunshots I was straight out of the truck and took cover underneath. I was very close to the perimeter wire at that time.
10. This was the first and only time that I believe I was being shot at.
11. I was very scared.
12. The second occasion when I was in fear for my life was in the rebuilding of a bridge over a river on route 15, not far south of Phuoc Le.
13. The VC had blown up a bridge, which was the main access route for convoys travelling between Vung Tau and Nui Dat.
14. This was in August 1969 to the best of my memory and it was during the 'wet' season.
15. My unit was tasked to build a floating 'pontoon' bridge across the river.
16. I arrived at the site about 0700 in my truck towing a compressor that was to be used to inflate the pontoon sections of the bridge.
17. On arrival I saw that the river was swollen from the monsoon rains and that the water was running very fast.
18. During the construction stages the bridging sections were lifted off the back of trucks by a small mobile crane and then slid down the river bank to a position to where the bridge was to commence.
19. Further sections were manhandled over those already in position and then dumped into the water where they were manually bolted together extending the length of the bridge. Anyone that was near the compressor, which was going all the time, inflated the sections as they came off the truck.
20. During the construction stages I was assisting others in carrying the bridging sections across those already in position. I told my sergeant that I could not swim and he told me to just get in there and get the job done so we could all get the hell out of there....
24. I was not wearing a life jacket; I was not offered one. Nobody else wore one either and as we carried the sections further and further across the river I was terrified that I would fall in and drown.
25. There were no safety vessels down stream in case anyone did fall off. We did not wear safety lines either.
26. The construction continued all day, during the night and through the next day.
27. During the night was the worst.
28. We continued to work during the night as we had during daylight hours except that at night the bridge, and those working on it, was brightly illuminated by portable flood lighting and extremely well exposed to any enemy in the area.
29. Once again there was neither safety equipment issued nor any rescue craft waiting down stream in case of someone falling off.
30. I was in absolute terror. I knew that if I fell off I would drown. I kept having these terrible thoughts of my body being washed down stream and never found.
31. Worse still was the thought that if I did fall off and I managed to make it ashore down stream, I could be captured and tortured by the enemy....
34. Following this I commenced drinking pretty heavy. Alcohol was freely available; there was no rationing. I would drink until I could drink no more. Then I would go to sleep.
35. I was also smoking very heavily. These were the only ways that I could keep myself reasonably relaxed.
36. After this I became pretty agitated at the drop of a hat, I was becoming argumentative and I was starting do things alone, such as on leave I would not associate with others. I would just go off and drink.
37. I started to have all of these thoughts and nightmares of falling off the bridge and drowning, every night I would have them. The only sleep I could get was when I was pissed.
38. That has continued on to this day. I am traumatised by it; I can never forget it. It haunts me. Vietnam totally ruined my life.
39. I have lost so many jobs because of it; I lost my first wife and family because of it.
40. I last lost my job in June 1995. I was driving a truck for a living and I was terrified that I would kill someone as I was losing all concentration. I was having panic attacks about it and there are also a lot of bridges to cross and these reminded me of everything.
41. I could no longer cope with it so I left.
42. I tried to return to work, I have completed a basic computer course and got some work experience which led to a bit of casual work at Scobie and Glover, and engineering firm, at Unanderra, for about 3 weeks.
43. I suffered a breakdown as I could not cope and I then sought medical help.
44. I have had Apprehended Violence Orders taken out against me as I have uncontrollable rages and become violent. This is documented on the DVA files...."

In oral evidence the applicant provided the following additional information. He has been in the Evesham Clinic about five or six times over 18 months. He was last there two months before the hearing for about two weeks. The Evesham Clinic cares especially for PTSD sufferers.
Mr Sneddon's role in Vietnam was limited to a driving role. He was not a combatant. The applicant could not say whether he was ever shot at in Vietnam. He had a vague memory of a bullet flying past him but he felt he could have been imagining it.
Mr Sneddon's fear relating to the pontoon bridge reflected the potential that he might fall into the river. He did not, of course, actually fall in. Mr Sneddon told tribunal member, Dr Campbell, that the river was 20 to 30 metres wide. He told Dr Campbell that in his army training they had tried to teach him to swim but they could not do it. He was forced to dive from a high tower into deep water three times during army training. He could tolerate this because there were three lifesavers available to rescue him. He recalled being pushed into the deep end of a pool at high school when he was 12 or 13. He experienced "complete and utter fear". He experienced fear of water at high school similar to that in Vietnam. There were no lifesavers at the swimming pool or at the bridge building project. He thought he was also dumped by a wave at a much younger age. He now has no issues generally with water and can take his children to the swimming pool.
In 30 years of truck driving Mr Sneddon agreed, in cross-examination, that he had negotiated many bridges.
Mr Sneddon agreed that he first drank alcohol pre-service in 1965 when aged 18.
Mr Sneddon explained his "police trouble". He had stolen a car at age 19. He had an accident in the car. He was grazed when the car turned over. He had no back or neck injury.
He described his outings at the Illawarra Yacht Club and Dapto Leagues Club. He said that he is not a loner.
Mr Sneddon had seen Mr Trembath, the psychologist, at Dr O'Halloran's suggestion. He saw Mr Trembath over three months. He saw Mr Trembath because he could not drive any more. He had "nerves" and felt that he might kill someone. He had panic attacks when driving in 1995 but these were less serious than the water-related incidents. The combination of the hours, the traffic and the effort of driving engendered stress. The drives were between Wollongong and Sydney. He carted steel and paper. He also saw psychologist Mr Anning three times over three months. Mr Trembath had recommended that he move to Mr Anning.
Dr O'Halloran also referred Mr Sneddon to Dr Davies for counselling and medication. When he saw Dr Davies he was beset by stress, unwelcome dreams, voices, the shakes and lack of concentration. He could not sleep. He found the medications somewhat helpful.
Mr Sneddon discovered Dr Koller through the Vietnam Veterans' Association ("the VVA"). He also located Dr Altman through the VVA.
As regards the building of the pontoon bridge in Vietnam, Mr Sneddon felt that this had assumed a greater significance for him in the past 10 years. He thought he mentioned it to Dr Davies but he could not recall.
Mr Sneddon could not recall much about his feelings after work ended on the pontoon bridge. He could not recall leaving Vietnam. He lost his memory for four months and it returned when he awoke at hospital in Ingleburn. For his final two months of service he was a rouseabout/driver.
Mr Sneddon told the tribunal that his nervous condition tended to worsen when he began to drink less. He used to get drunk before going home. However, the work fell away and he drank less. He said that he started to think about things.
Mr Sneddon disowned some of the material cited by Dr Davies in his reports.

Mr Sneddon said that he was aged 18 or 19 when he visited the Jenolan Caves. He told the tribunal that it caused him no stress. There was no second visit to the caves.
Mr Sneddon said he had no problem with the tunnel work he encountered in his training. He felt no apprehension or anxiety when confronted with entering a tunnel.

Oddly, Mr Sneddon said that he thought Dr Davies took from him a detailed history.

Mr Sneddon discussed his employment history. In the 1970s it had been easy to find work in Wollongong. In the 1980s it became harder when the steel works closed. Mr Sneddon did not find competition from younger workers a problem. He has had less work as he has grown older. There are just fewer jobs in the Illawarra area. He has not searched for work outside the Illawarra.
Mr Sneddon has had some experience as a cleaner. It was in the early 1980s for about a month and involved a couple of hours each morning. He coped well.
Mr Sneddon had done courier work off and on while truck driving.
At present, Mr Sneddon said, he cannot drive. The tribunal notes, however, Dr Lewin's observation that Mr Sneddon drove to see him in Bondi Junction from Wollongong. He drove alone. He said that he did this because he hates trains. He can stop and rest if he drives himself. He said that he now has access to DVA transport and he does not drive much. He finds driving cars more stressful than driving trucks because a truck offers greater protection.
Mr Sneddon did computer training through the Commonwealth Employment Service. It was high school level. He enjoyed it and found an affinity with computers. He worked for three weeks for three days a week at eight hours a day. He did data entry. This was in 1997. He would not accept a similar job now because he has the shakes. He would not be confident of avoiding mistakes and of doing the right thing by his employer.
Dr Lewin had discussed Mr Sneddon's experience taking marijuana. Mr Sneddon said that he used marijuana after he had been in Vietnam.
Dr Altman gave oral evidence. In general he was a vague witness. In answer to many questions he said that the answer would be in his reports and that he did not remember what to respond to the question. In cross-examination Dr Altman said that Mr Sneddon's general practitioner had referred him. He said that over 90% of his patients are veterans with PTSD. He then said that about 80% of his patients are Vietnam veterans.
Dr Altman's reports (ex A1, A2) make the following centrally important points about Mr Sneddon.

The stressful aspects of Vietnam were:

(a)driving duty which required Mr Sneddon to drive from Vung Tau to Nui Dat, and return, with no escorts other than a shotgun escort next to him – this led to him driving "flat strap";
(b)when working with a carpenter and bricklayer he was sent to do repair jobs anywhere in the province by themselves – Mr Sneddon was on edge all day; he was the defence and there was no other help; the enemy was all around; and
(c)working on the floating bridge – the account is similar to that above but Mr Sneddon told Dr Altman that a couple of men fell into the river and survived;
(d)Mr Sneddon saw no one killed or wounded;
(e)Mr Sneddon's PTSD symptoms include nightmares two or three times a week relating to Vietnam or violence, recurrent distressing thoughts about Vietnam while driving, flashbacks while driving, he avoids thoughts about Vietnam, he avoids situations associated with his Vietnam experience, he is a loner and detached from others, he shows little affection to loved ones, he suffers from sleep disturbance, he has poor concentration, he is generally irritable, he has exaggerated startle reaction and is hypervigilant;
(f)he shows features indicating major depression;
(g)in 1999 he was drinking alcohol twice a week consuming 12 schooners on each occasion – after Vietnam he had for many years drunk approximately 12 beers a day for some 30 years but he had reduced in 1998-1999 because of lack of money;
(h)he had been involved in computers after he stopped driving – he worked with computers for two years and had not worked since 1997; and

he was socialising "at the club".

Dr Altman also addressed (ex A1) factors relevant to assessment of pension rate.
Mr Modder cross-examined Dr Altman. He explained that he categorised Mr Sneddon as a loner based on what Mr Sneddon had told him. He agreed that Mr Sneddon appeared to cope with socialising at the club and said that he referred to Mr Sneddon as a loner when he was outside the club environment.
Mr Modder asked Dr Altman to consider the comments of doctors dubious about Mr Sneddon's history.

Dr Lewin wrote (ex R1/12-13):
"Notably Mr Snedden gave me a different history to the history provided to Dr Davies. Since that initial psychiatric assessment, Mr Sneddon has been subjected to many different assessments. He appeared to be deliberately leading me towards a change in the diagnosis.
"The conclusions regarding diagnosis depend upon the facts in the matter. I noted that Mr Sneddon appeared to be arguing his case and the possibility that there has been a deliberate alteration in the history needs to be considered. I note that Mr Sneddon has changed psychiatrists a number of times and that he readily admits that he was unhappy with the conclusions reached by Dr Gordon Davies. The manner in which he sought out opinion likely to be more favourable to the legal case that he is arguing is a cause for some concern. There is clearly established prior history of child anxiety symptoms. I noted his own history of shyness, social phobic symptoms and the history given regarding his sister....
"If one (naively) accepts the history given by Mr Sneddon, then one would conclude that it is reasonable to change the diagnosis made by Dr Davies and diagnose an Anxiety Disorder caused by his war service.
"In my opinion, it would be reasonable to be sceptical of the changed history. I think it is also important to consider that it is very likely that Mr Sneddon had a pre-existing anxiety condition and a problem associated with polysubstance abuse. "
Dr Baz said in ex A3 at pages 7-8:
"He reports the onset of anxiety related to driving and his suddenly ceasing this type of work. He subsequently undertook a number of TAFE courses. He reports no difficulty undertaking those courses and confidence in his ability to learn easily. It was noted that this was in contrast to his reported significant difficulties with memory, with inability to remember the day, date, appointments or what he was about to do. This apparently conflicting information appears to support the conclusion that Mr Sneddon has given a history designed to lead to a particular conclusion, in keeping with Dr Lewin's observations."

Dr Altman responded without accepting the conclusions of Drs Lewin and Baz. He said that he asks his patients many questions and applies his experience in sifting the answers. He rejected the suggestion that he readily accepted a history put to him. He explained that he had seen a selection of Mr Sneddon's historical documents but not the tribunal's T documents.

Dr Altman agreed that the stressors he had cited all involved threat, rather than the reality of harm. There was a threat of being shot at, a threat of falling into the river.
Dr Altman did not see Mr Sneddon's career driving trucks as inconsistent with avoidance behaviour, it having been suggested that truck driving would require him to cross bridges, an action he might avoid as reminiscent of the Vietnam bridge building episode. Dr Altman said that people with PTSD work often for many years. He has found too that many veterans like truck driving. It is an isolated type of job.
Dr Altman told the tribunal that Mr Sneddon was on his fourth admission to the Evesham Clinic and had been there a week. Regarding earlier admissions, he had had one admission for a week, two for three to five weeks and one for five weeks. Dr Altman has treated him each time. Dr Altman had seen Mr Sneddon for an estimated total of 25 hours. They had spoken about equal amounts during therapy sessions. The focus of treatment consists of medication, individual therapy of a supportive nature and group therapy several times a week. Mr Sneddon was more settled than before treatment. He was less at risk of suicide. He had improved control over anger and depression. His overall level of functioning had, however, hardly improved. Dr Altman summarised Mr Sneddon's main current problems as difficulties with his 18 year old stepson, his isolated lifestyle, his ease of irritation at home and his need for more peace and quiet than most people. Dr Altman would not expect Mr Sneddon to make a full recovery. He was aiming to help make Mr Sneddon's life more bearable.
Dr Altman had considered diagnoses other than PTSD but had progressively eliminated them. The onset was at the time when Mr Sneddon was in Vietnam. The nightmares began then. Dr Altman did not consider that DSM-IV precluded the diagnosis of PTSD merely because Mr Sneddon did not fall into the river. Common examples of stressors include a patient reacting after being merely told of a death. He thought Mr Sneddon was drinking six to eight beers a week at the time of the hearing. This had decreased since Dr Altman first saw him and has continuously fallen. Dr Altman said that alcohol aggravates Mr Sneddon's situation. It is not a cause of it. Dr Altman was counselling Mr Sneddon to cease drinking.
Dr Altman was told about the frightening events that Mr Sneddon experienced at school and in army training. Dr Altman thought that, although some of these may have predisposed Mr Sneddon to PTSD, Mr Sneddon had had no significant problems prior to going to Vietnam. Dr Altman had been unaware of these incidents until the tribunal hearing. At the date of the hearing Dr Altman had not gone "deeply" into the applicant's traumatic experiences. The tribunal pauses to state that this seems somewhat odd. Dr Altman has had considerable time to deal with Mr Sneddon and, as a stressor is central to a diagnosis of PTSD, one would have thought it a matter for thorough attention early in the history of treatment.
Tribunal member Dr Campbell asked Dr Altman to compare the difference between a combat and non-combat soldier. Dr Altman suggested that a combat soldier might be more resistant to PTSD because he would be better prepared for stress and horror than a non-combat soldier like Mr Sneddon. Dr Campbell queried whether Mr Sneddon had PTSD. There is in the SoP a requirement for intense fear, helplessness and horror. The applicant spoke of fear that he described as intense. The applicant had not ceased working until recent years. The symptoms were internalised. There were no objective symptoms. Dr Altman responded that he was satisfied as regards the diagnosis because of how Mr Sneddon had communicated his situation to him (ie Dr Altman).
Dr Altman was asked to address Dr Davies' report. He said that he had not really read that report, or Dr Koller's. He seemed reluctant to read them at the tribunal. He said it was unusual for him not to have had access to such material. It was probably a function of how the Davies and Koller reports had been sent to him.
Dr Altman did not see any evidence that Mr Sneddon had an antisocial personality (cf Dr Lewin in ex R1/13) He denied taking only a broad-brush history. He said he makes detailed, yet channelled, inquiries. Incidents such as the car stealing at age 19 and his misbehaviour at school were put to Dr Altman. These came as news to Dr Altman who said he would need to know much more before he could comment. In re-examination, Dr Altman said that Mr Sneddon's childhood actions, the car stealing, the events in a swimming pool (see paragraph 30 above), were not necessarily indicative of a personality disorder.
Mr Sneddon's representative, Mr Dawson, cited the Federal Court decision in Repatriation Commission v Binding [1999] FCA 974 as authority for the proposition that fear stemming from what may be happening can be enough for PTSD, even if the feared event was not in fact occurring. In that case the tribunal had held that there was a reasonable hypothesis in support of PTSD where the veteran was below deck on the HMAS Sydney and he experienced, rather than was confronted with, fear of death or serious injury. He was below deck and perceived a threat to his physical integrity. Marshall J did not see this as precluding a diagnosis of PTSD. Mr Dawson said that this case meant that fear was enough. There need not be actual harm.
The tribunal notes other evidence in this case. The research report secured by DVA (ex R4) provides some support for Mr Sneddon's version of events in Vietnam. From this the following appears:

The driving of vehicles between Nui Dat and Vung Tau with only a shotgun guard occurred on occasions. Drivers did fear enemy intervention, notably in the form of road mines. Mr Tilbrook, the writer, listed 12 incidents involving such road mines.
Mr Sneddon had once cited coming under small arms fire when inside the compound but near the perimeter fence. Mr Tilbrook could find nothing on this incident but he noted that "the perimeter faced outwards towards the infamous VC infiltrated village of HOA LONG" and there was a recorded incident of gunfire from the northern edge of Hoa Long on 27 August 1969.
There is considerable evidence of the incident requiring the construction of the pontoon bridge. There was evidence "that every available soldier … was thrown into this urgent task [ie constructing the pontoon bridge] with the work being carried out 'around the clock' in difficult conditions and in inclement weather" (ex R4/9). The work "was technically difficult and not without danger".
"Australian engineers had never built the U.S. Army engineer pattern bridge that was supplied by the US Army Logistic Complex at LONG BINH. The construction work had to be carried out (by day and by night) in monsoonal rain which caused a strong water flow and the pontoon sections that being joined together to span the river were constantly buffeted by water borne debris. The incessant rain made the metal surfaces of the pontoons very slippery which would have contributed to the anxiety of the Veteran (as he was not able to swim).... sniper activity was a distinct possibility. Indeed, on the night of 3 / 4 Aug 69 the Viet Cong attempted to destroy the work so far completed on the pontoon bridge by launching a flotation mine in the river which drifted towards the bridge, but fortunately the enemy mine was detected, intercepted and destroyed by a combat engineer team..
"… it is highly likely that SPR Sneddon was employed on the initial construction phase of that bridge as claimed. COL Wertheimer agreed that there was possibility of Sappers slipping from the pontoons and falling into the swift flowing river, and given that the Veteran was a non-swimmer it is accepted that he would have had a fear of falling into the water and possibly being drowned."

The tribunal finds that the hypothesis raised accords with the SoP template. The tribunal is impressed particularly by the evidence in the research report (ex R4) relating to the dangers attached to the bridge and even to the perimeter gun fire. On the basis of the raised facts, that the pontoons were slippery, that the weather was inclement, that the river was fast flowing, that Mr Sneddon could not swim, that interference from the Viet Cong was both threatened and actually occurred and that a colonel could accept that a non-swimmer such as Mr Sneddon would have a fear of falling in and, as Mr Sneddon said, being drowned, the requirements for a severe stressor were present. In making this finding the tribunal wishes to clarify that it accepts that the SoP requires both an objective threat and a subjective experiencing of fear, helplessness or horror. However, the tribunal's perception is that whether a threat objectively exists is a matter that can be resolved with reference to a reasonable person with the attributes of the applicant. Applying that principle in this case, ex R4 suggests to the tribunal that any reasonable soldier in Mr Sneddon's position, who was unable to swim, would have been exposed to a risk of serious injury or death as a result of his work assisting to construct the bridge. To this extent, it seems to the tribunal, an "egg-shell skull" principle can be applied.

The tribunal finds that the hypothesis has suggested that the veteran has experienced the matters required for PTSD in clause 2(b)(A)-(D) of the SoP. There are suggestions of re-experiencing, avoidance and arousal. Despite Mr Modder's efforts to dislodge avoidance by referring to Mr Sneddon crossing bridges in his truck, it seems to the tribunal that riding across an established, solidly built bridge in a truck is very different from the experience Mr Sneddon had when assisting to build a floating pontoon bridge over a running river. Likewise, it may be that Mr Sneddon's time at the local club is inconsistent with him living an isolated existence. However, it is consistent with Mr Sneddon having a limited circle of acquaintances with whom he can feel comfortable and enjoy some modicum of companionship. There is nothing to suggest that he is fully functional, socially, outside this environment.
The hypothesis must suggest that this experience was related to Mr Sneddon's operational service (clauses 4, 8 ("relevant service")).

The tribunal finds this requirement met. The tribunal has decided that the template in the SoP is met as regards the presence of a severe stressor and the other essentials for PTSD. The tribunal finds that the veteran experienced the severe stressor in a way related to the operational service he rendered in Vietnam. He was ordered to do the work as part of his duty as a soldier.
Mr Sneddon will be taken to suffer from a war-caused disease, PTSD, unless the tribunal can be satisfied beyond a reasonable doubt that the disease was not war-caused. The main evidence relevant to this fourth step in the Deledio (supra) analysis is the evidence that he suffers from a disease he has had since childhood and the evidence that he has massaged his history to maximise his chance for a favourable outcome.
In assessing the medical evidence from Drs Davies and Lewin the tribunal concludes that the applicant very probably did suffer from a psychiatric disease in his younger years. However, it considers that there is not sufficient evidence to prove beyond a reasonable doubt that he does not suffer from PTSD and that his PTSD was not caused or contributed to by his operational service. It is conceivable that Mr Sneddon's pre-existing condition predisposed him to suffering disproportionately in Vietnam, particularly in his work on the pontoon bridge. The existence of a predisposing factor does not neutralise the statutory liability of the respondent for the war-caused outcome of Mr Sneddon's exposure to the risks to life and safety on the pontoon bridge.
assessment of rate
General rate

The tribunal has decided that the applicant has the condition of PTSD which is war-caused. It is necessary to accord a rating for this disease under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed), ( ("GARP"). The experts who have attempted GARP assessments are Drs Altman (ex A1), Baz (ex A3), Lewin (ex R1) and Burns (ex R2).

GARP table 4.1, "subjective distress", finds the doctors suggesting ratings of between 15 and three. The rating of 15 requires that the veteran suffers persistent symptoms causing considerable distress with relief being difficult even with a high level of support and reassurance. Dr Baz justified this rating on the basis of considerable distress related to anger, depression and irritability. Dr Altman did not explain his rating of 15. Dr Burns selected 10, very frequent symptoms causing moderate distress with the veteran often unable to distract himself from the distress. However, Dr Burns also does not fully explain his rating. Dr Lewin recommended a three rating. "Three" requires recurring symptoms causing mild distress from which the veteran can distract himself on most occasions. Dr Lewin noted evidence of a degree of irritability and some sleep disturbance. Mr Sneddon does not remember the content of the dreams and has no intrusive recollections. He can put thoughts of Vietnam out of his mind. He told Dr Lewin that he did not think there was much wrong with him but others thought his behaviour somewhat unusual. The tribunal notes that Mr Sneddon saw the main barriers to his working as essentially physical, that is the shakes and a fear of making errors because of the shakes. He has looked for work since leaving truck driving. Dr Lewin's assessment of three appears fair in the total circumstances. The tribunal recalls Dr Altman's evidence (paragraph 55 above) that Mr Sneddon's irritability and depression have been reduced through his treatment at Evesham.
GARP table 4.2, "manifest distress", finds the doctors recommending ratings between 15 and six. The doctors who explained their ratings did so as follows. Dr Baz awarded 10 because Mr Sneddon's distress would be obvious to casual observers in his abusiveness and aggression. Dr Lewin said that his irritability and distress are evident to his partner and children, there having been episodes of violence in the home. The tribunal gains the impression from the totality of the evidence, but perhaps notably from Drs Altman and Lewin, that it did not suggest obvious and continuous problems of aggression and irritability outside the home. The tribunal considers that Dr Lewin has again selected an appropriate rating, six. The essential difference is that a six rating reflects that the distress is visible only to astute observers and those familiar with the veteran. A 10 rating requires that the distress be evident to casual observers.
GARP table 4.3, "functional effects", finds doctors' ratings from five to nil. Dr Baz relied on difficulties with memory and anxiety and alcohol consumption as matters that would interfere with function in everyday situations and opted for a two rating. Dr Lewin rated this at nil because Mr Sneddon can care for himself and make his way around with no difficulty. GARP sees a nil rating as meaning minimal or no interferences with most aspects of living. A two rating suggests moderate interference with function in some everyday situations. The tribunal considers that there may be some minimal interference, notably in Mr Sneddon's enthusiasm for driving. However, it considers that Dr Lewin's rating again best reflects Mr Sneddon's situation.
GARP table 4.4, "occupation", finds doctors' ratings from eight to not applicable. Dr Altman opted for eight because Mr Sneddon cannot work, which is the GARP descriptor for this rating. Dr Baz (six) wrote that the anger, anxiety and depression have significantly impacted on work fitness. Dr Lewin saw this table as not applicable because Mr Sneddon has not worked for a number of years. It appears, especially from Dr Baz's report, that Mr Sneddon may have some work potential but that it is seriously hampered by his psychiatric condition. That seems to be the determinant as to whether he can work or not. In that situation the tribunal considers that Dr Baz's rating of six is justified.
GARP table 4.5, "domestic situation", sees doctors' ratings all in agreement at three. This reflects the GARP descriptor, "frequent conflict with family members". The tribunal considers this rating best captures the nature of Mr Sneddon's problems within his family.
GARP table 4.6, "social interaction", finds doctors' ratings of between two and five. Dr Lewin (two) noted that Mr Sneddon continues to drink in company and does not report agoraphobic symptoms. At the same time there appears some level of social withdrawal. GARP describes a two rating as meaning a minor reduction in social interaction. Dr Baz (three) saw a significant reduction in social interaction related to Mr Sneddon's anger and detachment from others. The five ratings are unexplained. The tribunal considers that Dr Lewin has best justified his suggested rating.
GARP table 4.7, "leisure activities", finds doctors' ratings of between two and five. Dr Lewin (two) noted some reduction in Mr Sneddon's usual activities. Dr Baz (three) noted a significant reduction in interest in activities. The tribunal considers that Dr Baz has captured the applicant's evidence better in this regard. The descriptor for a three rating in GARP reflects Dr Baz's assessment.
GARP table 4.8, "current therapy", finds doctors' ratings between five and three. Dr Lewin (three) noted that Mr Sneddon had been seen on an outpatient basis intermittently over the previous four or five years. His treatment had included cognitive behavioural treatment and medication, all on an outpatient basis. Dr Lewin does not seem to have taken account of Mr Sneddon's considerable treatment at the Evesham Clinic. The tribunal considers that the five rating in GARP better reflects Mr Sneddon's position in that it refers to intensive specialist psychiatric treatment on an outpatient basis, including medication and/or inpatient hospital care for short periods. The other doctors, apart from Dr Lewin, opted for a five rating.

The GARP rating resulting from these scores in chapter four is 23.
There has been no challenge to the lifestyle rating from GARP (chapter 22) applied by the respondent (ex A4), a rating of four (T10). Dr Baz would favour a four rating with PTSD accepted as war-caused. Dr Burns would favour a four with the PTSD and lumbar conditions accepted. There appears no reason for any increase in Mr Sneddon's lifestyle rating.
There has been no challenge to the GARP impairment ratings for the earlier accepted disabilities in T10. These were:

CAL 24 points
PSA 23 points
GORD and benign neoplasm of the oesophagus 20 points

The GARP combined values chart in chapter 23 prescribes an overall impairment rating of 64 points. This is rounded to 65 points. The GARP conversion to a degree of incapacity in chapter 23 results in a per-centage incapacity of 100.
Mr Sneddon will therefore qualify at the very least for payment of Disability Pension at 100% of the general rate (ss 21A, 22(2) of the Act).
Special rate

The applicant has also argued (ex A4) that he qualifies for payment at intermediate or special rate. The tribunal will consider the special rate provisions in s 23 of the Act in the first instance.
The tribunal finds that the basic requirements for special rate are met. Mr Sneddon has lodged a valid claim (T4) as required by s 24(1)(aa) of the Act. He was aged under 65 (he was 50) when he lodged that claim (s 24(1)(aab) of the Act). His degree of incapacity is at least 70% (it is 100%) (s 24(1)(a)(i) of the Act).
Sections 24(1)(b) and 28(a) of the Act require an assessment of Mr Sneddon's vocational, trade and professional skills, qualifications and experience. There is considerable evidence on this. Mr Snedden himself in T24 listed his skills and training as fitter and turner, truck driver, basic computer skills and basic office skills. This was in 1998.
The occupational therapist's reports (ex R3) concluded that Mr Sneddon has the capacity to perform basic clerical tasks at a level considered acceptable in industry. This assessment concentrated on his physical capacities and accepted that he had not fully completed his training at TAFE. The tribunal is not clear that this was correct. Other material tended to suggest that Mr Sneddon had completed his TAFE course and worked for a time utilising his TAFE skills. Dr Baz (ex A3) considered Mr Sneddon fit for computer work on the basis of his "currently accepted" disabilities. These did not then include PTSD. His psychiatric disabilities, if included, would preclude Mr Sneddon from work, in Dr Baz's opinion. Dr Burns (ex R2) saw the computer industry as an appropriate work area for Mr Sneddon but considered his PTSD as a barrier to him working in that capacity.
The tribunal finds that the most realistic type of work to assess the applicant against is computer clerical work. It finds that the collection of accepted disabilities, but most notably his PTSD, prevents the applicant from working at least eight hours a week at such work. This disposes of s 24(1)(b). The tribunal finds that the applicant satisfies the requirements of that paragraph.
As regards s 24(1)(c) of the Act, the tribunal finds that the applicant is by reason of his combination of war-caused diseases prevented from continuing to undertake his computer clerical work. Primarily it is the newly accepted condition of PTSD that has this effect. His major non-accepted disability, lumbar spondylosis, might prevent him from the heavier work involved in truck driving, and, if truck driving were taken to be the relevant remunerative work undertaken by the applicant, then he might not have satisfied s 24(1)(c) of the Act. However, the applicant's lumbar spondylosis does not affect him in doing clerical work. It is largely his PTSD that has a deleterious effect.
The tribunal finds that the applicant is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the war-caused incapacities. He was receiving remuneration when working and is not in receipt of replacement income from insurance or any other source. These and the above several findings are sufficient to satisfy the requirements in s 24(1)(c) and s 24(2) of the Act.
CONCLUSION
The tribunal has found that Mr Sneddon qualifies for payment of Disability Pension at the special rate. The tribunal has found that he suffers from PTSD as a war-caused disease. This disease, in association with the other diseases accepted as war-caused, when considered in combination suffice to qualify Mr Sneddon for a special rate pension.
DECISION
The decision under review is set aside. The tribunal substitutes its own decision to the effect that:

(e)The applicant suffers from post-traumatic disorder ("PTSD"); and
(f)The applicant's PTSD is war-caused; and
(g)The applicant qualifies for payment of Disability Pension at the special rate; and
(h)The date of effect of this decision is 9 November 1997 such that special rate is payable in respect of all instalments of pension payable on or after that date.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  12 and 13 December 2000
Date of Decision  3 May 2002
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         Whyburns, Solicitors
Advocate for the Respondent Mr S Modder, DVA Advocacy Unit
Solicitor for the Respondent    Mr J Marsh, DVA