Webb and Repatriation Commission
[2003] AATA 283
•27 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 283
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1568
VETERANS’ APPEALS DIVISION ) Re FRANCIS JOSEPH WEBB Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Dr P. Fricker, MemberDate27 March 2003
PlaceMelbourne
Decision 1. The decision under review insofar as it concerns hypertension, pterygium of right eye and bilateral presbyopia are affirmed.
2. The remaining part of the decision with respect to lumbar spondylosis and ‘nervous condition’ is set aside and in substitution IT IS DECIDED:
i) the illness or injury described as ‘nervous condition’ should be described as ‘generalised anxiety disorder’; and
ii) lumbar spondylosis and generalised anxiety disorder are war caused.
3. The application is remitted to the respondent for calculation of pension in accordance with this decision.
The Tribunal notes that during the hearing of this review the respondent conceded an injury of ‘cataract of right eye’ as war-caused and the applicant conceded it does not presently attract any impairment points.
.....…...(sgd. J. Handley).....................
Senior Member
CATCHWORDS
Veterans’ Entitlements - Whether lumbar spondylosis and generalised anxiety disorder arose out of service in Vietnam - Whether Statement of Principles satisfied - decision set aside.
REASONS FOR DECISION
27 March 2003 Mr J. Handley, Senior Member
Dr P. Fricker, Member1. The applicant applies to review a decision of the Veterans Review Board (“VRB”) made on 25 September 2001. The VRB then decided to affirm a decision previously made by the respondent on 5 October where it decided -
i) a claim made by the applicant for lumbar spondylosis, hypertension, pterygium right eye and bilateral presbyopia were not war-caused; and
ii) a claim for nervous condition be refused ‘on the ground that no incapacity could be found’; and
iii) to assess pension at 10% of the general rate with effect from 24 April 2000.
2. The applicant is presently 56 years of age having been born on 17 January 1947. He has the accepted conditions of tinea and bilateral sensori neural hearing loss. Pension is presently payable at 10% of the general rate in respect of those conditions.
3. The hearing of the application was conducted in Melbourne on 18 February. Mr Moore of Counsel appeared on behalf of Mr Webb and Mr Nyhof appeared on behalf of the respondent. Mr Webb gave evidence as did Drs Cole and Kenny who are both consultant medico-legal psychiatrists. A number of documents were received into evidence and will be referred to in these reasons.
4. At the outset, Mr Moore indicated that the review of the decision of the VRB insofar as it concerned hypertension was withdrawn.
5. With respect to the eye injuries, the respondent submitted in a Statement of Facts and Contentions lodged prior to the commencement of the hearing, that it was prepared to concede a condition of ‘cataract of right eye’. That concession was made by reason of a medical report of Dr Nave of 20 May 2002. Mr Moore agreed that that condition was war-caused and conceded that the condition of ‘cataract right eye’ was the preferable description of the applicant’s eye injury. The application for review of the conditions of pterygium and presbyopia were withdrawn. Consistent also with the report of Dr Nave, Mr Moore conceded that the condition of cataract of right eye did not attract any impairment points.
6. Accordingly the review proceeded only with respect to the conditions of lumbar spondylosis and the condition of ‘nervous disorder’ which both parties agreed at the outset should be properly described as ‘generalised anxiety disorder’.
7. The applicant was initially claiming special rate pension upon the basis that the injuries under review would be found to be war-caused and would attract the minimum number of impairment points thereby satisfying the special rate threshold. It became apparent, having regard to the concessions made by Mr Moore, that with the injuries of lumbar spondylosis and generalised anxiety disorder only remaining for review, that the applicant could not attract the minimum number of impairment points. Accordingly the claim for special rate pension by these proceedings was abandoned.
8. We are satisfied, having heard Mr Moore and Mr Nyhof and having read the medical reports and heard the evidence of the applicant, Dr Cole and Dr Kenny that the concessions were appropriate.
9. In his opening, Mr Moore said that the applicant presently lives on 40 acres of land at Woodend with his wife and one of his daughters. The property agists sheep. The applicant left school at form 5 level in 1964 and joined a saw milling business owned by his parents. He was a member of the Australian Army between 4 October 1967 and 3 October 1969 and served in Vietnam in the 110 Signals Squadron between 8 July 1968 and 9 July 1969. He also served for a short period with the 104 Signal Squadron.
10. During his 12 month period of service in Vietnam, the applicant was based at Saigon for 9 months, for 2 months at Vung Tau and 1 month at Nui Dat.
11. At no time was the applicant exposed to attack nor was he in conflict, however there was local conflict in Saigon where there were some gun battles and some bombings and casualties. During his service in Saigon the applicant resided at the ‘Hotel Canberra’ and worked in the Signal Squadron, which was based at a local airfield. The applicant was driven to and from work daily by either truck or by bus, during which time he felt vulnerable. Mr Moore said that the applicant would give evidence that the airfield at Saigon was used extensively by United States aircraft. It was at that air base that the bodies of the United States soldiers were loaded in coffins onto aeroplanes and returned home. The applicant was exposed to the sight of the loading of coffins, which distressed him considerably.
12. Additionally, as a member of the Signal Squadron the applicant was required to notify Australian authorities of Australian personnel who were killed or wounded in battle.
13. Prior to service Mr Moore said that the applicant drank ‘sparingly’ but increased his consumption of alcohol during and subsequent to service. It was put that the applicant suffered alcohol dependence as a sequel to generalised anxiety disorder.
14. With respect to the back injury described as lumbar spondylosis, it was said that it had an association with service by reason of the applicant being required from time to time to fill and lift sandbags. Whilst the applicant initially claimed that he suffered back injury associated with jumping from the back of trucks, whilst carrying a backpack, Mr Webb conceded that he did not carry a backpack and did not suffer injury associated with jumping from trucks. Mr Moore said that the applicant suffered back injury which was understood to be muscular in nature only which resulted in acute pain and limitation of movement. It was said that the applicant had difficulty sleeping because of back pain and he was restricted in his work for approximately 1 month. The applicant did not seek medical treatment nor did he report it.
Francis Joseph Webb
15. Mr Webb agreed with the opening submissions made by Mr Moore. He said that he worked at the ‘Free World Building’ which was an annexe to the airport at Saigon located 6 or 7 kilometres from his hotel billet. Despite its imposing name, the ‘Hotel Canberra’ was apparently fortressed, surrounded with barb wire and was under guard.
16. As a keyboard operator Mr Webb said that he was required to send messages throughout Vietnam and to Australia and on occasions was required to notify Australian casualties and injuries. He said he found this work distressing.
17. The applicant also said that he regularly observed coffins on the back of semi-trailers being loaded onto United States aircraft. The applicant said that he understood the coffins contained the bodies of the United States personnel who had been killed in Vietnam. Mr Webb said that observing the coffins was ‘horrific’ and said that ‘with the mayhem around us, thank god I was not out in the bush with the others’.
18. When he eventually returned to Australia, Mr Webb said that he was observed by his father to have changed considerably and was described as having no drive and moping around. He was also described by his father as being a ‘follow up person’, an expression apparently referring to the applicant’s lack of initiative.
19. With respect to his back injuries, Mr Webb agreed that he did not jump from trucks carrying full military pack and therefore did not associate any back injury with activity of that type.
20. He said that his back injury occurred as a result of either filling or lifting sandbags which he would undertake on one or two occasions per week depending on the rainfall. That is to say, after periods of heavy rain, sandbags were either washed away or depleted and were required to be refilled and relaid. Mr Webb said that on each occasion that he filled or lifted sandbags he and others would make up between 70 and 80 sandbags. On one occasion he said he felt a severe twinge which he described as ‘something gave way’.. He thought at the time that it was muscular only and did not seek medical assistance. He said that because he was a young person at the time that the injury, he thought it would ‘go away’.. The injury was not reported but it did affect his sleep and movements of bending and twisting for approximately one month. Within that time he did not undertake sandbag work.
21. Mr Webb said that the back pain has continued to affect him and he continues to have treatment by way of physiotherapy. He has pain radiating into his leg. His sleep is affected by pain and the injury is exacerbated when driving a motor vehicle.
22. Prior to service the applicant said that he drank ‘moderately’, however in Vietnam alcohol was freely available and he would drink to excess. Mr Webb associated his consumption of alcohol in Vietnam as a relaxant or as a means of avoiding stress. Subsequently Mr Webb has continued to drink heavily and he now consumes 6 stubbies of beer or 6 gin and tonics and ½ a bottle of wine each day.
23. In cross-examination Mr Webb was taken to his evidence before the VRB as found within the transcript received into evidence as Exhibit 4.
24. Mr Webb was asked by one of the VRB members whether he could recall ‘having back problems during Vietnam or afterwards’. Mr Webb replied that it was ‘hard for me to remember’ but thought that he suffered injury by jumping off buses or trucks, which had a ‘jarring effect’.
25. Additionally Mr Webb was referred to part of a report of Dr Kevin Fraser dated 23 April 2002 (Exhibit B) where a history was obtained of the applicant jumping from trucks whilst carrying a full backpack, which the applicant thought had ‘jarred’ his back.
26. On reflection the applicant said that filling and lifting sandbags caused his back injury. He said that activity ‘stands out in my mind’.. He could not recall if he suffered the injury when filling or when lifting bags. Initially he said he suffered a sharp pain and it felt as if something had ‘pulled or gave way’. He said he rested for a few minutes but then continued to work filling or lifting sandbags but at a ‘reduced capacity’ in order to help his colleagues. The episode was not reported nor was treatment sought. He acknowledged that treatment was available at a Regimental Aid Post, and acknowledged also that he had attended for treatment on other occasions for colds and for sore throat. Mr Webb said that at the time of injury he did not think that it was ‘bad enough’ to seek treatment.
27. Thereafter he did not suffer any time away from his duties as a keyboard operator and continued to climb onto and jump off trucks when travelling to and from the airport as was his custom prior to the back injury.
28. Mr Webb recalled that back pain persisted for between two and four weeks after onset. Pain killing medication was not consumed.
29. With respect to the applicant’s alcohol consumption, Mr Webb said that he drank in Vietnam because it was hot, it was readily available and it relieved tension at the end of each day. He said that he found the work of sending messages concerning injured and deceased Australian soldiers to be ‘harrowing’. He acknowledged that he did not know any of the persons over whom messages were sent nor did he know their families nor were messages sent to their families. Mr Webb also acknowledged that he was not under threat of enemy contact whilst at work nor was he ever shot at nor did he return any fire. Nonetheless he said that he felt vulnerable when travelling to and from the airport in buses and trucks and there were occasions where there was gun fire and mortar attack in Saigon close to his billet at the Hotel Canberra.
30. In re-examination Mr Webb said that following the onset of back injury some work and activity was avoided, but he was not incapacitated. Mr Webb recalled that he had difficulty bending to tie his shoe laces.
31. In answer to some questions from us, Mr Webb said that he travelled to the airport in Saigon on two occasions per week over a period of 9 months. On each of those occasions he travelled within 20 metres of semi-trailers which contained the caskets and coffins of deceased United States personnel. He recalled that there was a single layer of caskets and coffins on the semi-trailers and he estimated that there were 20 caskets on the trucks on each occasion that he travelled to the airport. He said these experiences were ‘horrific’ and he was conscious of the probable reaction of the families of the deceased persons who would ultimately collect the coffins. He said there were occasions also when at the Saigon airport that he would be close to tears. He recalled that at the end of each day he drank beer with his colleagues ‘to get rid of these dreadful thoughts’.
32. With respect to the alleged circumstances of back injury, Mr Webb said that the initial application for pension was made by a representative of the Pascoe Vale RSL. He noted that the handwriting in the forms (within the T-documents) was not his. Mr Webb could not recall why he did not notify the welfare officer at the RSL of his work involving lifting and filling sandbags, however he said that with the passage of time and having been required from time to time by reason of these proceedings to reflect on his service, he recalled that his duties involved work with sand-bags and recalled the occasion where he suffered the back pain.
Edward Cole
33. Doctor Cole is a consultant medico-legal psychiatrist who provided a report to the applicant’s solicitors on 19 March 2002, following consultation on 8 March 2002.
34. In his report Dr Cole diagnosed the applicant as suffering from generalised anxiety disorder. Dr Cole reported that the applicant did experience a severe psycho social stressor within two years immediately before the clinical onset of the generalised anxiety disorder by the events in service in Vietnam. He reported the applicant was ‘particularly distressed’ by the site of caskets containing bodies of persons who had been killed in action and his ‘repeated apprehension of danger reinforced by all the precautions that were taken against enemy attack’.
35. In evidence Dr Cole said that he found the applicant as a ‘very genuine person’ and was confident that his diagnosis of generalised anxiety disorder, together with alcohol abuse, was accurate. He also acknowledged that these conditions can affect a persons memory and concentration.
36. In cross-examination Dr Cole said that in his opinion the applicant satisfied Statement of Principle No. 1 of 2000 at factor 5(a)(ii), having regard to the stressors to which the applicant was exposed and experienced in Vietnam.
37. Dr Cole said that those stressors arose out of the applicant being at risk or under threat whilst travelling to or from the Saigon airport in buses and trucks. Additionally the applicant was exposed to the sight of caskets containing bodies of United States personnel (with associated feelings of relief of not having been engaged in battle) and a persisting memory 30 years later of the observations of the caskets. He also had a history of the applicant being billeted in a hotel which was re-inforced with mesh, surrounded by barb wire and under guard. He recalled that the applicant had felt as if he was in ‘gaol’, and at night the applicant was awakened by the noise of bombings, shootings and grenades. Additionally the applicant was distressed by having to communicate the Australian casualties and persons wounded which he found to be horrific.
38. Dr Cole said that he was not aware that the applicant had ever been under threat or had been fired upon, however it was the applicant’s history to him that he was in danger for a great deal of his time in Vietnam.
Barrie Kenny
39. Doctor Kenny is a consultant medico legal psychiatrist who examined Mr Webb at the request of the respondent on 14 September 2000 and provided a report dated 18 September 2000. The report is found at T-10, p.57.
40. Doctor Kenny reported that the applicant gave him a history of having ‘enjoyed his time in Vietnam’. He reported that the applicant was ‘at risk’ when he was transported to and from Saigon airport, however the applicant is reported to have told him that he did not ‘feel frightened at the time’. Dr Kenny has reported that the applicant ‘saw some bodies but only in bags’. He reported that the applicant had told him that he did drink considerable quantities of alcohol in Vietnam because it was ‘cheap’ and ‘largely out of boredom’.. He obtained a history of the applicant communicating fatalities to Australian personnel, which the applicant said was ‘somewhat worrying’.
41. He concluded that the applicant was not alcohol dependent and he did not suffer ‘any psychiatric disturbance whatsoever associated with his service experience or his time in Vietnam’.
42. In evidence Dr Kenny reaffirmed the opinions expressed in his report, however he acknowledged, having read the report of Dr Cole, (completed following a consultation almost 18 months later) that the applicant’s presentation at that interview and the opinion expressed by Dr Cole were at odds with the history that he obtained regarding the applicant’s presentation and the opinion that he expressed.
43. Dr Kenny acknowledged that within litigation and the consequent delay pending a hearing that people experience ‘psycho pathological changes’.. He acknowledged that on the history obtained by Dr Cole and apparently on the basis of the applicant’s presentation to Dr Cole, the findings and diagnosis then made were appropriate. He also acknowledged that clinicians can obtain differing histories from the same patient which may result from the patients mood, the relationship between the patient and the clinician and the ability to obtain an adequate and comprehensive history. He also acknowledged that in the period of time prior to a hearing of an application ‘repressed events raise to the surface after probing’ because patients are ‘encouraged to pathologize’.
Conclusion & Reasons For Decision
44. The primary claim made by the applicant upon the respondent, which has given rise to the appeal process culminating in this review commenced in July 2000.
45. At that time Instrument No. 27 of 1999 was in force and was entitled ‘lumbar spondylosis’. It was revoked by Instrument No. 46 of 2002 on 4 June 2002.
46. In both Instruments the relevant factor is 5(h) namely -
“suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis”.
47. In Instrument No. 27 of 1999 the expression ‘trauma to the lumbar spine’ was defined as follows-
“trauma to the lumbar spine means a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain and tenderness and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least 7 days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred ………”
48. The definition of the words ‘trauma to the lumbar spine‘ as appear in Instrument No. 46 of 2002 do not contain the word ‘acute’ as that word appears in two places in the previous definition.
49. The word ‘acute’ as it appeared in the former instrument was the subject of analysis by the Full Federal Court in Arnott v Repatriation Commission 2001 FCA 262 (refer judgment of Merkel J at paragraphs 30, 31 and 32).
50. An enquiry to determine which Statement of Principle is to apply is required having regard to the principles laid down in Repatriation Commission v Gorton 2001 FCA 1194 where at paragraph 42 and 43, Heerey J, decided that the AAT ‘must consider the reasonableness of the hypothesis advanced by reference to the Statement of Principle which ‘is in force’’ …….’.. If the current SoP ‘upholds’ the claimants hypothesis then the AAT moves pursuant to s.120(1) to consider whether it has been disproved beyond reasonable doubt”. For reasons which follow and having regard to the procedural stages which must be followed pursuant to Repatriation Commission v Deledio 1998 49 ALD 193 at 206, it is our view that Instrument No 46 of 2002 ’upholds’ the applicants hypothesis which is not disproved beyond reasonable doubt.
51. The applicant’s claim with respect to back injury commenced by him asserting that injury arose by reason of frequently jumping from the rear of a truck over a distance of 1 ½ metres carrying full military pack. A similar assertion was made in his claim form which was completed with the assistance of a welfare officer of the Pascoe Vale branch of the RSL. The evidence at the VRB was confined to injury occurring in those circumstances only. Prior to the hearing in this Tribunal, the applicant completed proofs of evidence where he asserted back injury for the same reasons and by lifting and filling sand bags.
52. At the hearing, the applicant’s claim was put only on the basis of back injury by reason of lifting and filling sandbags.
53. Mr Webb explained that he initially overlooked the work in Vietnam of filling and lifting sandbags and the memory of it returned later, after he talked with colleagues.
54. We do not understand why the applicant would have signed a statement at 23 January 2003 recording in some detail the frequency of jumping from the back of the truck and the weights of the military pack that he was then wearing. In truth, whilst he did jump from the back of the truck on many occasions it was whilst carrying a rifle only.
55. Having observed the applicant in evidence, having read a number of other documents including the medical reports and having heard the evidence of Drs Cole and Dr Kenny, we are satisfied that the applicant was careless in the documents that he signed which in fairness were not prepared by him. The claim form completed at the Pascoe Vale RSL was completed by a Welfare Officer and the statements lodged prior to the hearing were completed by his solicitors. Had the applicant exercised reasonable care in reading these documents before he signed them, the attack upon his credit at the hearing may not have occurred. Similarly, if the VRB had been more expansive in its questioning, it may have unearthed the significant episode in service, which gave rise to the back injury, namely lifting and filling sandbags.
56. The applicant did not attempt to conceal or hide his history of lifting and filling sandbags. He gave a history of that activity to Doctor Fraser at consultation on 18 April 2002. There is reference also to lifting and filling sandbags in a trauma statement dated 20 March 2002 and again in a further statement of 23 January 2003.
57. It is not surprising - having regard to the evidence of Dr Kenny - that the applicant would in early 2002 - apparently for the first time - refer to back injury lifting and filling sandbags when in consultation with Dr Kenny in September 2000 he did not report any back injury. Dr Kenny explained that by litigation ‘repressed events rise to the surface after probing’ and applicant’s are ‘encouraged to pathologize’.
58. The emergence of this history may also be consistent with the opinion expressed by Dr Cole that persons suffering generalised anxiety disorder and alcohol abuse have affected memory and poor concentration.
59. Although the respondent conceded that the applicant did suffer lumbar spondylosis, the four stages of analysis prescribed in Deledio must be followed.
60. It follows that there is material before us pointing to a hypothesis between injury and the circumstances of injury namely lumbar spondylosis arising out of lifting and filling sandbags. There is - for the foregoing reasons - a Statement of Principles in force determined by Repatriation Medical Authority.
61. On the material heard and read we are satisfied that the hypothesis raised is reasonable. We have made this finding because we are satisfied that the hypothesis is consistent with the template within the Statement of Principles. The applicant did suffer a trauma to the lumbar spine before the clinical onset of lumbar spondylosis. There is material before us which points to the immediate manifestation of low back pain whilst either filling or lifting sandbags. The pain continued for a period of between two and four weeks. During that time the applicant did suffer symptoms and signs of pain and tenderness and altered mobility and range of movement of the lumbar spine. The clinical onset of lumbar spondylosis would appear to have been at or about the time of the onset of back pain. Factor 5(h) therefore exists as a minimum and the third stage of Deledio is therefore satisfied.
62. With respect to the fourth stage, we are not satisfied beyond reasonable doubt that the injury was not war-caused.
63. We are invited by Mr Nyhof to find that the applicant did not suffer a ‘trauma to the lumbar spine because the applicant was not incapacitated, he did not seek treatment and did not consume medication’. Satisfaction of trauma to the lumbar spine does not require a period of incapacity or convalescence nor attending for treatment. At best, these features are relevant only to finding as a fact whether the injury occurred at all in the circumstances as described. We are satisfied that the applicant is a witness of truth and we are satisfied and find as a fact that the back injury did occur in the circumstances as described at the hearing and as given in the history to the doctors prior to the hearing, namely it arose either filling or lifting sandbags. We also accept the applicant’s explanation of the reasons why he did not attend for treatment nor consume pain relieving medication nor report it.
64. In the circumstances, that part of the decision of the VRB insofar as it concerns lumbar spondylosis is set aside and in substitution we are satisfied that that condition is war-caused.
65. With respect to the condition of generalised anxiety disorder, Instrument No. 1 of 2000 was introduced on 28 January 2000 and it has been in force throughout the assessment period.
66. Factor 5(a)(ii) is the applicable factor and it reads-
“experiencing a severe psycho social stressor within the two years immediately before the clinical onset of anxiety disorder”.
67. The words ‘severe psychosocial stressor’ are defined at paragraph 8 of the Instrument as follows-
“severe psychosocial stressor means an identifiable occurrence that evokes feelings of substantial distress in an individual for example being shot at, death or serious injury of a close friend or relative, assault (including sexual assault) major illness or injury, experiencing a loss such as divorce or separation, loss of employment major financial problems or legal problems”.
68. There is material before us which points to the hypothesis connecting service with generalised anxiety disorder. There is also a Statement of Principles in force. The first two stages of Deledio are therefore satisfied.
69. We are satisfied that the hypothesis raised is reasonable because it is consistent with the template found within the Statement of Principles. We have reached this conclusion because there is material which points to the applicant having experienced a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder. We are satisfied that the clinical onset occurred at or about the time the applicant returned to Australia when he was then observed by his father to be lethargic, inefficient and lacking initiative.
70. The third stage therefore having been satisfied, we are then required to make findings of fact as determined by the fourth stage of Deledio.
71. Having found (refer above) that the applicant is a witness of truth, we are satisfied that he was exposed to a number of events and circumstances which he found - and described - as being ‘horrific’.. He described his reaction towards having to forward messages and other communications to Australian authorities reporting death or injury of Australian personnel. Under questioning from us he described - in detail - observing the loading of caskets and coffins of deceased United States personnel from the back of a semi trailer into a transport aircraft on each of the two occasions per week he attended the Saigon airport, over a period of 9 months. He estimated that the semi trailers loading the aircraft contained 20 coffins. He recalled memories of relief at not having been engaged in battle but extreme sorrow at the likely reaction of the families of those deceased persons. On occasions he recalled being close to tears. He recalled that he would drink alcohol with colleagues at the end of each working day to relieve the stress and the intrusion of those thoughts. Mr Webb told us that he felt like he was a ‘sitting duck’ when travelling to and from the airport on the back of the truck or in a bus and recalled being woken at night from the sound of bombings shootings and grenades in or around Saigon.
72. Throughout his service in Vietnam, Mr Webb said that he felt as if he was in danger yet he acknowledged that he was not ever fired upon nor did he return fire.
73. The words ‘severe psychosocial stressor’ are defined as meaning ‘an identifiable occurrence that evokes feelings of substantial distress in an individual’. All the words thereafter appearing in the definition are put up by way of example and are specifically described as being examples. They may assist in the interpretation of events which might evoke feelings of substantial distress in an individual, however for our part, at both a subjective and objective level, we are satisfied that each event described by Mr Webb, giving rise to the condition of generalised anxiety disorder were events which amount to an ‘identifiable occurrence’ that in fact did ‘evoke feelings of substantial distress’ in him. We are satisfied that the events described in service amount to a ‘severe psychosocial stressor’ and it follows that the severe psychosocial stressor was ‘experienced’ within two years before the clinical onset of anxiety disorder.
74. In the circumstances we are not satisfied that this hypothesis has been disproved beyond reasonable doubt and the claim must in the circumstances succeed.
75. It follows that that part of the decision of the Veterans Review Board with respect to ‘nervous condition’ must be set aside and in substitution for it, we have decided that the condition should be properly described and diagnosed as generalised anxiety disorder and that that condition is war-caused.
76. Having regard to a combination of the concessions made by both parties (refer earlier) and to our findings with respect to lumbar spondylosis and generalised anxiety disorder, the application should be remitted to the respondent for assessment of pension entitlement in accordance with these reasons.
I certify that the seventy-six preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. Handley, Senior Member and
Dr P. Fricker, Member
Signed: .......................................................................................
AssociateDate/s of Hearing 18 February 2003
Date of Decision 27 March 2003
Counsel for the Applicant Mr Moore
Solicitor for the Applicant De Marchi & Associates
Solicitor for the Respondent Mr Nyhof, departmental advocate
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