Vacchiano and Repatriation Commission [2000] AATA 14 (17 January 2000)

Last Updated: 21 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/749

VETERANS' APPEALS DIVISION )

Re Patrick VACCHIANO

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member

Date 17 January 2000

Place Sydney

Decision The Tribunal - (1) affirms that part of the decision of the Repatriation Commission dated 14 August 1997, being the decision under review, which refused the Applicant's claim in respect of diastolic apical murmur; (2) sets aside that part of the decision under review that refused the Applicant's claim in respect of twisting injury left ankle. In substitution it determines therefor that the Applicant's condition of twisting injury left ankle is war caused pursuant to s 9 of the Veterans' Entitlements Act 1986 ("the Act"). The Applicant is entitled to payment of pension in respect of all his war caused disabilities at the Special (Totally and Permanently Incapacitated) Rate pursuant to s 24 of the Act, on and from 11 December 1996.

..............................................

M T Lewis

Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - assessment - applicant in receipt of pension at 100% general rate - whether eligible for pension at Special Rate - whether accepted disabilities are substantial cause of inability to undertake remunerative work - whether loss of earnings

Veterans' Entitlements Act 1986 - ss 9, 24

REASONS FOR DECISION

17 January 2000 Mrs M T Lewis, Senior Member Dr J D Campbell, Member

1. This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 14 August 1997 which refused a claim lodged by Patrick Vacchiano ("the Applicant") in respect of diastolic apical murmur and twisting injury left ankle. In that decision the delegate accepted that the Applicant's condition of post traumatic stress disorder ("PTSD") was war-caused, and assessed that he was entitled to pension at fifty percent of the General Rate with effect from 11 December 1996. The Respondent's decision in respect of diastolic apical murmur and twisting injury left ankle were affirmed by the Veterans' Review Board ("the VRB") on 3 April 1998. The VRB set aside the Respondent's decision in respect of assessment and substituted that the Applicant's pension should be paid at eighty percent of the General Rate.

2. The Applicant lodged an informal claim for these conditions on 11 March 1997 followed by a formal claim on 18 April 1997. As all applications for review have been within time, the earliest date for payment of pension is 11 December 1996, being no more than three months earlier than the date of the Applicant's informal claim.

3. At the commencement of the hearing the Tribunal was advised by counsel for the Applicant that the condition of diastolic apical murmur was not being pursued. The Tribunal now formally affirms that part of the decision of the Respondent in respect of diastolic apical murmur.

4. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant -

* Report of Dr Mario Benanzio, orthopaedic surgeon, dated 28 September 1998 (exhibit A)

* Report of Dr Anthony Hordern, psychiatrist, dated 9 February 1999, with addendum (exhibit B)

* Reports of Dr Martha Baz, occupational physician, dated 19 February 1999 and 29 July 1999 (exhibit C)

* Jobseeker card from Centrelink date stamped 2 July 1999 and letter from Centrelink to the Applicant dated 2 July 1999 (exhibit D)

The following documents were tendered on behalf of the Respondent -

* Report of Dr Robert Lewin, psychiatrist, dated 28 January 1999, and letter of instructions from the Respondent to Dr Lewin dated 21 January 1999 (exhibit 1)

* Report of Professor Philip Sambrook, rheumatologist, dated 19 January 1999 (exhibit 2)

* Report of Dr Mark Burns, occupational physician, dated 19 February 1999 (exhibit 3)

* Clinical notes of Dr Ulf Stenback, general medical practitioner (exhibit 4)

* Decision of a delegate of the Respondent dated 18 January 1999 in respect of the Applicant's condition of irritable bowel syndrome (exhibit 5)

* Copy of file from Compensation Court of New South Wales in respect of the Applicant (exhibit 6)

The Applicant gave oral evidence at the hearing. Dr Hordern, called by the Applicant, and Dr Lewin, called by the Respondent also gave oral evidence.

5. The Tribunal was advised at the hearing that the Applicant now has a condition of sensori-neural hearing loss accepted as being related to his service. As the VRB adjourned the hearing in respect of that condition in order to obtain further evidence, we assume that it was ultimately accepted by the VRB and that the effective date also would have been 11 December 1996. The Respondent has also accepted the condition irritable bowel syndrome by its decision dated 18 January 1999 with effect from 14 September 1998. On the basis that the pension was already assessed at 100 percent of the General Rate, the Respondent determined that it was to continue to be paid at that rate (exhibit 5). The Tribunal assumes that pension was first increased to 100 percent of the General Rate when sensori-neural hearing loss was accepted with effect from 11 December 1996.

6. The Tribunal notes that irritable bowel syndrome was accepted on the basis that the Applicant already had a war-caused psychiatric condition, namely PTSD. Ironically, this condition was accepted only three days before the Respondent was apparently considering a review under s 31 of the Veterans' Entitlements Act 1986 ("the Act") in respect of that psychiatric condition (see below).

7. During the course of the hearing and after evidence was taken from the Applicant on the issue of his twisting injury to the left ankle, the Respondent conceded that the condition was related to his service. In the Tribunal's view the concession was properly made. The Tribunal will therefore set aside the decision of the Respondent in respect of twisting injury to the left ankle and determine that it is a war caused injury pursuant to s 9 of the Act with effect from 11 December 1996.

8. Having disposed of the two entitlement claims by agreement between the parties, the Tribunal does not need to consider the evidence before it in respect of twisting injury left ankle and diastolic apical murmur. The only issue remaining is whether the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s 24 of the Act.

9. Before considering the evidence, the Tribunal notes that Counsel for the Applicant objected to the tender of the report of Dr Lewin (exhibit 1) on the basis that it was irrelevant, and that it impended the Respondent's case. When making the primary decision, the Respondent accepted the Applicant's condition of PTSD as war caused. It was only the assessment of that condition which was before the VRB, and likewise it is only the assessment of that condition which is now before this Tribunal. Dr Lewin states in his report that the Applicant does not suffer from PTSD. On that basis he did not proceed to provide an opinion in respect of assessment of the accepted disability. It was submitted for the Applicant that Dr Lewin had ceased to become an expert witness when he failed to provide a report on the assessment issue, and instead he has become an advocate for the Respondent.

10. The Tribunal notes from the letter of instruction from the Respondent to Dr Lewin (exhibit 1), that the Respondent considered that the acceptance of PTSD as a war-caused condition in the Applicant's case was "seriously flawed as it related to the relevant Statement of Principles". The Respondent then requested his assistance in determining whether according to the Statement of Principles the grant of the entitlement was appropriate. At the hearing the Respondent's representative agreed that at the time that letter was written the Respondent was considering whether to using its power under s 31 of the Act, to review its previous decision accepting PTSD as a war-caused condition. Subsequently, the Respondent decided not to proceed to use that power in this case. The Tribunal understands the context in which the report of Dr Lewin was provided, and decided to allow his report as evidence. However, Dr Lewin's report has left the Respondent bereft of evidence about the assessment of the Applicant's psychiatric condition, which is the central issue before the Tribunal. Counsel for the Applicant also objected to the tender of the report of Dr Burns (exhibit 3) for the same reason as there was objection to Dr Lewin's report. Dr Burns assessed the Applicant's PTSD as nil because he did not consider that the condition was associated with his war service.

11. It was submitted for the Respondent that, on the basis of Dr Lewin's evidence, the Applicant suffers from a non-war related personality disorder, and consequently he did not cease work because of his war-caused disabilities alone. It was submitted that the Applicant's personality disorder is the substantial cause of his inability to work.

12. The Tribunal allowed the reports of Dr Lewin and Dr Burns as evidence, notwithstanding our grave concern about the way in which the Respondent has proceeded in this matter. If for any reason, the Respondent has accepted as war-caused a condition from which the Applicant does not suffer, and therefore a condition from which he does not suffer any incapacity, then this will be significant in considering his incapacity for work pursuant to s 24 of the Act. To use an analogy: a Veteran suffers from rheumatic heart disease, which arose from rheumatic fever, which he suffered as a child. The claimed "heart condition" is misdiagnosed as ischaemic heart disease and accepted as being war-caused on the basis of his service related smoking habit. If at a later date this error in diagnosis is established, it would surely be open to the Respondent, and the Tribunal standing in the shoes of the decision maker, to determine that the existing symptoms suffered by the Veteran are not arising from his accepted disability. On that basis, the Veteran would not be entitled to payment of special rate pension arising from any cardiac symptoms that incapacitated him from work. We would hasten to add, however, that if proper attention occurs at the time to the diagnosis of his claimed condition, then an error would not arise.

13. If indeed an error has occurred in the diagnosis of the Applicant's condition, it is ideally the responsibility of the Respondent to rectify its own errors, using the avenues provided in the Act. The Respondent is able to initiate its own reviews under s 31 of the Act, when new evidence arises to convince the Respondent that an error has occurred at the first instance. However, the Tribunal is also vested with responsibility to make the correct or preferable decision on the evidence available to it. It is for this reason that the Tribunal has accepted the evidence of Dr Lewin and Dr Burns, and has widened the scope of the oral evidence in order to consider the arguments being put by the Respondent.

14. The Respondent's failure to undertake a s 31 review, coupled with submissions that the Tribunal should make its decision on the basis of the evidence of Dr Lewin and Dr Burns, has placed the Tribunal in a difficult position. As a result, the Tribunal must firstly consider whether the symptoms from which the Applicant suffers relate to his accepted disability, before determining whether his accepted disability incapacitates him for work.

applicant's evidence

15. The Applicant was born on 4 May 1948 and is aged 51 years. He served in the Royal Australian Navy from 4 July 1964 until 16 August 1966, and served in operational areas in North Borneo, Singapore and the Malay Peninsula, and Vietnam, for a total period of approximately ten weeks.

16. Since the Applicant was discharged from the Navy in 1966 he has undertaken approximately forty jobs. Many of these are listed at T7. He said that he could not "handle holding down a job". He said that either there was friction with management or work mates, or he did not turn up for work because he was drinking. Either he would get sacked or he would leave.

17. The Applicant said that he has had two formal marriages and two long-term de facto relationships. His first marriage was in 1972, which lasted for seven months. He said he was verbally abusive. He then had a series of short-term relationships, that "went down pretty much the same track". He said -

I would get irritable and I would lose my temper and I would blame other people for my problems and punch out wardrobes and walk off and scream and rant and rave like an idiot.

Then in 1980 he developed a long-term de facto relationship. He said that she fuelled his anger because she was fairly inflammatory, and that made it worse for him. He said that the relationship was "fairly violent". He had a son from that relationship, who is now aged 15 years. He has not seen his son for four years. The relationship ceased six weeks after their son was born.

18. In 1986 the Applicant married again, and they had two children. He said that their relationship "was lovely". Most of the time it was fairly peaceful "but then it had its moments of verbal abuse and aggressiveness and anger on quite a number of occasions ... and non-controllable anger ...". That relationship ended on 13 December 1994.

19. The Applicant said that since May 1995 he has had "a very good understanding friend". They live in the same house. She runs her own tank cleaning business in which, at her insistence, he has no involvement. He said that she knows he is given to violent outbursts and she is concerned about losing customers.

20. From 1980 the Applicant worked on his farm in the Bellingen area, planting and tending fruit and vegetables for market sale. In 1985 he commenced work for the State Rail Authority as a contract sleeper cutter. He felled trees under licence from the Forestry Commission, moved them with a bulldozer to an area where he removed the head and butt with a chainsaw and then loaded them on his truck. He transported them back to his farm where he cut the logs into sleepers with a saw. He undertook this work on his own, apart from having a "tailer outer" working with him to pull the log through the sawmill.

21. In 1985 the Applicant injured his back and he was off work for one to two years. He said that during that period he attended doctors and physiotherapists. He then returned to work at the sawmill on a part-time basis. He never returned to his contract work with the State Rail Authority. He said -

I had periods after that 12 months where I would try to go back to work and I found that I wasn't able to anyway but I still made bits and pieces of income right up until two or three years later.

....I still had the sawmill so as a saw miller - a sleeper cutter, you have a lot of what they call off-cuts because we didn't have the time to cut the off-cuts into scantling or smaller pieces of timber for framing of houses and that so I went back through that pile which was quite substantial and cut them up into scantling and I would resell because I had already paid the royalty for it from the Forestry Commission anyway so I had a tailer-outer and we used to cut it up into scantling and I would sell it and take it to market.

He said that he delivered the timber to customers. He used a forklift for loading the truck. When unloading, if he could not push the timber off the truck he would unload by hand. During this period the Applicant also continued selling his fruit and vegetables which he picked and packed himself. Either he took them by truck to the railway or sold them locally to restaurants. His wife assisted with this work. The Applicant also owned a bulldozer, and after some two or three years following the accident he contracted to put access roads through banana plantations and built dams and did light clearing work. He said that he did not do this work full-time -

it was only an hour here, a couple of hours there, $50 an hour for a machine. I couldn't do it anyway, it would jar the living daylights out of you".

22. The Applicant continued to perform work of this nature from the time of his return to work after his back injury until 1994, when he said he was "forced to sell everything". He said that about 1990 he started to investigate insurance selling and in 1991 he secured "a couple of agencies with different insurance companies". He said that he then proceeded for some two to three years to sell insurance contracts to people whom he knew in the timber industry. He said that this was "not really" a full-time occupation, but looking for customers is always a full-time activity. He continued selling insurance until mid 1993.

23. The Applicant then received a compensation payment from State Rail Authority, and he and his wife bought a horse-drawn vehicle operation. He said that he bought two Clydesdales and a Cobb and Co coach and truck. He used the money from his compensation payment for this, and met the shortfall by mortgaging his farm. He earned some income from the horse-drawn vehicle from weddings and exhibitions etc. He said that most of his work was on Saturdays, it was fairly remunerative, he had no competition in his locality, "everybody was happy" and he "was able to spend most of the week alone, which is the way I liked it".

24. The Applicant said that he stopped his horse-drawn vehicle operation about August 1994. After that time he did "nothing". He said, "August 1994 became a bloody nightmare". He had a disability insurance policy, and was considered by the insurance company to be severely disabled within the terms of that policy. The policy defined "severe disability" as being unable to perform the important income producing duties of his usual occupation for more than ten hours per week, and not working more than ten hours per week in another occupation (exhibit 4 p 26). He said that he relied on income from the insurance but he said, "I wasn't happy doing that so I wanted to continue doing what I thought I could, but I couldn't". He continued to receive income from that insurance policy until October 1996 when he was declared by the insurance company to be fit to return to work although he said that at that time he was still suffering from depression, anxiety and dizziness.

25. The Applicant said that he tried to continue with the horse-drawn vehicle operation. He said that he also liked the milling work and he loved farming. However "other things got in the road". He said that he was also registered with the Commonwealth Employment Service at that time. He was still trying to sell insurance contracts, but he lost agencies with the insurance companies because of disputes. He thought that if he operated from home he would not have as much friction "with hierarchy" and he could be his own boss. This prompted him to enrol in a five-day accredited course with Mortgage and General Insurance in 1994. He did not complete the course as he was asked to leave because he was disruptive and argumentative. He said that there was a lot of friction and he had an altercation with the person running the course. He said that he then tried to continue with the other insurance agencies that he had retained, but said, "I just found that I couldn't cope any more. I had enough". He said that he got angry if someone "would stand in my way" and would then "walk out in a huff". Most of the people with whom he became angry were the managers of the insurance companies. He said that he had similar problems with the horse-drawn vehicle business in dealing with the public over safety issues.

26. The Applicant's marriage broke down in December 1994 and because of Family Court Orders he was required to liquidate as many of the marital assets as he could. He then came to Sydney at the end of 1995 and tried to return to the workforce. He was buying fruit and vegetables from the markets, packing it according to individual orders and delivering the produce to various customers in their homes. He performed that work until October 1996 when he ceased as he was losing customers because he became angry with them.

27. The Applicant said that since October 1996 he has been registered for work and has been actively seeking work because he would like to re-enter the workforce but he did not think he could. He provided a Job Network card which was valid from 23 October 1998 and a letter from Centrelink showing that he received Newstart Allowance from 22 November 1996 until 6 November 1997 when he was transferred to a service pension on the grounds of permanent incapacity. It was also noted in that letter that his most recent registration was on 23 October 1998, and it was still current on 2 July 1999 when the letter was written (exhibit D). The Applicant said that he had had job referrals but after having interviews and submitting resumes he was not given the jobs and no reasons were given.

28. The Applicant said that he was first treated for PTSD early in 1997 by Dr Jim Holmes, psychiatrist. He has also had counselling from Mr Gary Grant, psychologist, a service paid for by the Department of Veterans' Affairs. Mr Grant provided counselling on a fortnightly and then a monthly basis. However, the Applicant said that there were periods when he "went underground" and did not want to have any contact with anybody. He said that at those times he would drink for days at a time and -

... go up in the hills with my horses or just stay by the river, just kept away from people. I thought it better that way. That would pass and Deb would finally come up and see me and things would settle down eventually and yes, I'd come back home.

The Applicant said that this occurs "every couple of months" when he "snaps". He said that he becomes angry and irritable. He said that he cannot cope with people and wants to be left alone. He said, "I just go away and hide, become emotional, cry and have a drink ...". He said that when he is away at those times he likes to be in a nice place. He said "I pick up Scriptures and I'll read and invite the Lord back into my life and feel peace and - yes, and employ my relaxation techniques and just try and get away from the monsters that are racing around up there in the four-wheel drive". He said that sometimes he is away only for a day at a time, but at other times he may be away for several weeks. He said that he felt most at peace with the world when reading Scripture and said that he became a committed Christian in 1980.

29. The Applicant admitted in cross-examination that he had previously been charged with aggravated indecent assault to which he pleaded guilty in order to save the alleged victim, his ten year old step daughter, from having to be subjected to questions that would probably traumatise her. He said that there was a second incident at an earlier time involving another stepdaughter, but he said that was not a sexual act and he was never convicted. He also agreed that he had a history of sexual activity from the age of five or six.

30. The Applicant said that just before he went to Vietnam he was involved in trialing an Icara missile off Jervis Bay. As he and others watched the firing of the missile from their ship they then saw it turn back towards the ship "and it ditched itself in the water no more than ... a few hundred metres away from the boat". On return to Williamstown the Applicant was questioned extensively by Federal Police. The Applicant felt that somehow this was a personal attack, related to his ethnicity.

31. The Applicant gave the following evidence about his service in Borneo:

... we were patrolling some strait there off the coast of Borneo and there was a lot of activity taking place. I was plotting incoming friendly or enemy aircraft on the perspex screen for the skipper so that he could read it. I'd plot all the information for him and the ship was in top mode, doing about 30 knots and we were either being pursued or in pursuit. Now, when you're down there in the bowels of the ship you don't know what's going on. All you can do is feel what's happening and it's pretty tense and you don't know what's going to happen, whether something is going to come through the side of the ship, but where I was living was the after mess, 50 of us lived in there, which was right adjacent to the Icara and the Seacat missile magazine and the older leading hands that were with us would stir us young fellows up and say 'Well, mate, hey, it could happen any moment', and they just made the thing, the situation, even worse. Yes it was pretty tense whenever we had those manoeuvres taking place. When I was in Vung Tau in Cape St Jaques we were inside of all the ack-ack and the fire that was taking place, we were anchored offshore whilst we were ... escorting the Melbourne while she off-loaded all her troops. Every 20 minutes we had to keel-haul the ship with wire gauge to get rid of any limpet mines and that was a horrible bloody screeching noise that will stay with me for the rest of my life. Then when you come from your normal job down in the operation room they'd give you a Bren gun and stick you up on deck and that was just the last straw because then you had to, in the dark, determine - because I was awarded crossed rifles in the Navy, I was a good short, so they gave this young fellow a Bren gun and that's it, if you see anything untoward, make sure it's not one of your own but be prepared to shoot it or be shot. They weren't pretty events." (transcript 18.8.99 p52-3)

32. In cross-examination the Applicant was referred to a report of homosexual activity with a 40 year old seaman. He said that when he was serving in Borneo he was scared that something was coming through the side of the ship, and "the bastard put his hand on my prick". He said that he did not invite this sexual activity. The Applicant gave a fuller report to Dr Hordern in a letter dated 22 January 1999, the day after his interview with Dr Hordern (exhibit B). In relation to his service in Borneo he said -

During that period we engaged the enemy on various fronts, which in itself was an extremely anxious period for fear of being blown up. My apparent outward expression of concern and fear was preyed upon by an abnoxious (sic) and despicable leading hand called Bob. He would wait until we engaged with the enemy and then he would make statements like, "this could be the end matey, if something comes through the side of the ship at the Missile magazine, we'll end up a jigsaw puzzle" or "make sure you keep a F**+?!!*ing good watch out, whilst on duty, because if you miss something on the screen it'll be your fault if we cop it."

I would often lie in my bunk at night or off duty and become quite overrought (sic) with anxiety, and would just lie on my stomach and shiver and tremble. I was noticed by a kindly older seaman who took me under his wing, and tried to reassure me, only to be taken advantage of and molested.

This scenario would take place whenever a stressful situation evolved during periods of enemy hostility.

33. The Applicant said that he had good relationships with his peers on service. In respect of his relationship with his superiors, he thought he stood up for what he believed was right.

34. The Applicant agreed that there was an incident on service when he was charged with the theft of a camera. The camera had been reported missing in March 1966 in Borneo. He said that it had been hanging on the door of the operations room for some time, and he used it to take photographs when he went ashore in Hong Kong. He said he did not consider that he had done anything wrong in using the camera. He replaced it every time he used it, and so did others who also used it. He said "everybody was using the camera". The Tribunal notes from the addendum to the report of Dr Hordern (exhibit B) that the Applicant was subsequently convicted of the theft and sentenced to prison for 42 days. He described to Dr Hordern the experiences he had while incarcerated, including physical abuse and sexual molestation. He was discharged from the Navy at the end of his period of imprisonment. The Tribunal notes that at the time of his discharge medical examination the Applicant's emotional stability was marked "abnormal". He was discharged - services no longer required (T3, p13). His evidence was that he felt victimised over that incident.

medical evidence

Dr Hordern

35. The Applicant relied on a report of Dr Hordern, psychiatrist (exhibit B). In oral evidence Dr Hordern said his opinion was based on three hours of interview with the Applicant. Dr Hordern considered that Dr Holmes, whom the Applicant had consulted for treatment, was an experienced psychiatrist, and he agreed with Dr Holmes that the Applicant suffered from PTSD.

36. Dr Horden considered that the Applicant's prior sexual conduct, referred to in Dr Lewin's report (exhibit 1), was irrelevant. He noted that the Applicant enlisted in the Navy at the age of 16 years. Furthermore, he was in a dangerous situation and he had a very frightening experience with an Icara missile to which Dr Lewin made no reference. He noted that other sailors "took advantage of" the Applicant. He also noted that "homosexual behaviour in the Navy is not very unusual".

37. Dr Hordern noted the psychiatric significance of the Applicant being unable to settle after he was discharged from the Navy. He had had about forty different jobs, his interpersonal relationships were "pretty chaotic", and he had been married three times. He did not consider that the Applicant's behaviour during the post-service period could be related to any other type of psychiatric disorder other than PTSD. He did not agree with Dr Lewin that the Applicant has a psychopathic personality or personality disorder. He considered that psychopathic personality was an aberration of personality that usually occurs before the age of 10 years and persists through life. The history obtained by Dr Hordern of the Applicant's pre-enlistment personality was that he was very happy and well-adjusted, he had friends, he was fond of doing things with his father, he was fond of shooting and was a good marksman. Dr Hordern noted that Dr Lewin also obtained a history that the Applicant had a very happy early life. Dr Hordern considered that although one could say that the Applicant exhibited psychopathic behaviour after he left the Navy, he was of the view that that was a symptom of PTSD. Dr Hordern did not obtain any history of the Applicant not being able to control aggression and anger when he was young. He was well behaved at school, he had no neurotic traits, and he went straight into the Navy after leaving school. He noted that the Applicant was the youngest rating on the ship and Dr Hordern considered that he was "bullied", "picked on" and "oppressed". He said "I think his Naval experiences broke him".

38. Dr Hordern diagnosed chronic severe PTSD. He said: "The experiences Mr Vacchiano had in 1965 and 1966 in the Navy and in the Correction Establishment in Hong Kong broke him. He has been unwell since that time and now will probably never fully regain his health" (exhibit B). In his oral evidence he noted that the Applicant encountered a number of incidents, including the arousal of his anxiety by the older sailors in the context of his knowledge of being in close proximity to where the Icara missiles were hanging, which constituted initiating traumatic events. He said that although the Applicant was involved in some childhood sexual activities, that would not mitigate the unpleasantness for the Applicant of the homosexual activity initiated by the older sailor.

Dr Lewin

39. In his report (exhibit 1) Dr Lewin opined that the Applicant was not suffering from PTSD or any other psychiatric illness caused by his service. Both in his report and his oral evidence, Dr Lewin opined that the diagnosis was not sustained. He said that he looked for possible alternative explanations of the Applicant's symptoms, and said that there were many features suggesting a long term pattern of behaviour disturbance and personality disorder which could arise in the context of a history of childhood abuse. He concluded that there was no psychiatric illness arising as a consequence of the Applicant's Naval service.

40. Dr Lewin commented in his oral evidence that the Applicant's symptoms of dizziness, irritability and nausea were symptoms associated with many psychiatric conditions, and they also occurred in the absence of any psychiatric illness. He said that a diagnosis of personality disorder is not one that would specifically explain anxiety symptoms of this sort. He said that if a diagnosis of personality disorder were correct, it most likely would have been clearly evident by adolescence. He said that it is "quite possible" that the Applicant has a PTSD arising from other periods of his life but not from his Naval service. He said that on careful review of the history of the Applicant's Naval service he found no specific evidence of any incident which would have satisfied the first diagnostic criterion of PTSD and in the absence of such a traumatising event one cannot make the diagnosis. On this issue he disagreed with Dr Hordern. He acknowledged that he obtained a significantly different history from the Applicant from that which Dr Hordern had obtained. However, Dr Lewin then said -

On the basis of the history that [Dr Hordern] records, and leaving aside the qualifications that I raised about the factual basis of the history, one might come to that conclusion, that he had developed a chronic post-traumatic stress disorder.

However, he added -

When one evaluates the quality of the nature of the stress that was reported by Mr Vacchiano, I take a different view. He clearly describes that set of circumstances as satisfying the diagnostic criteria. I do not hold to that opinion. ..... I was given factual material in terms of documents and reports, which Dr Hordern I understand was not provided with, in particular the material from Dr Delaforce, and there were significant factual differences in the history that the patient gave me when compared with the history recorded by Dr Hordern oe the one hand, the history he gave to me and the history that he gave a number of years earlier to the first examining psychiatrist.

41. The Tribunal notes from exhibit B that the Applicant did provide Dr Hordern with information about the sex assault charges in a postscript to a letter to Dr Hordern, written on the day after his consultation with Dr Lewin. The Tribunal is satisfied, therefore, that Dr Horden was aware of these incidents when he wrote his report.

42. The Tribunal notes that the Applicant consulted Dr Delaforce in 1993 in relation to the charge of sexual assault, and in 1995 in relation to stress arising from his marriage break-up and difficulty in obtaining access to his children (exhibit 4, p 53 and p72). Neither report made mention of his Naval service as such and any difficulties he had there. Dr Lewin said that he placed a great deal of importance on the difference between the information contained in those reports and the information provided to him. The Tribunal notes from a letter that the Applicant wrote to Dr Hordern (addendum to exhibit B) that he felt forced by Dr Lewin to provide details of the sexual events and that he was resistant. The Tribunal notes that Dr Lewin, in his oral evidence, acknowledged that any sexual deviation was not the issue before this Tribunal. However, at the same time, he found that report to be important because it was "the first psychiatric assessment uncontaminated by later assessments". He also acknowledged that one could understand the Applicant "demurring from rather unpleasant and adverse issues that are raised there".

43. Dr Lewin also disagreed with the findings of Dr Holmes in his report of 27 June 1997 (T13) for the following reasons -

The factual basis, the evaluation of the history and my own opinion that the stressors reported would not satisfy the diagnostic criteria.

44. Dr Lewin said that the diagnosis of personality disorder best described the Applicant's condition, and he said that it was possible that the Applicant also had a low-grade anxiety disorder. He also said that on the basis of the Applicant suffering from a personality disorder, one must also factor in the likelihood that the Applicant's history is "not altogether reliable". He considered it likely that the Applicant had the personality disorder at the time he enlisted in the Navy. He noted that people who have a personality disorder are more vulnerable to distress in general, and commonly develop an adjustment disorder or some other disorder in response to a stressor.

45. Dr Lewin said that he interviewed the Applicant for one and a quarter hours as the basis of making his assessment. In cross-examination Dr Lewin was taken to a number of assertions or assumptions he made in his report which led to his conclusion that the history provided by the Applicant may not be reliable. Without needing to detail the cross-examination here, it is sufficient to say that the Tribunal considers that the cross-examination demonstrated the lack of substance underpinning that section of his report headed "Background History from Other Sources" (exhibit 1, p11-12) (transcript 19 August 1999, pp 9-18).

46. In respect of his diagnosis of personality disorder, Dr Lewin said that the Applicant gave him a history of a happy childhood, but he said that he would not rely on that history. He said that he based his diagnosis on his clinical experience, and noted the history given to Dr Delaforce, which had not been given to Dr Lewin, in respect of sexual allegations made against the Applicant. He then said that he based his diagnosis on -

a gestalt or a set of responses and features that I observed here. The characteristic psychological defence in the type of personality that I'm describing, which is an antisocial personality, is the defensive projection and denial, and that was the pattern of response that he exhibited. The problems in his life were characteristically described as problems caused by others, who misunderstood him and weren't prepared to see his point of view. Even where there was a proven episode of his behaviour, he suggested that really it wasn't like that at all and there were these other more insubstantial, but I think, significant pieces of evidence which fitted best with the diagnosis of anti-social personality disorder and clearly what one does is make the best one can of limited information. I would have perhaps been better informed if I had had a longer examination or of more information or whatever, but all the information that I had, led me to the conclusion that I reached. You do the best you can with what you've got.

Dr Holmes

47. Dr Holmes has provided psychiatric treatment for the Applicant since 2 April 1997, having been referred by his local doctor. He reported to the Respondent on 27 June 1997 (T13) in respect of the Applicant's entitlement claim for "anxiety/PTSD". Dr Holmes noted symptoms including: flashbacks, violent dreams, irritability, anxiety, hypervigilance, exaggerated startle response, tension headaches, insomnia, instability in employment, social avoidance and inability to sustain close long-standing personal relationships. He obtained a history of the Applicant's service in the Navy, which the Tribunal finds to be consistent with the history that the Applicant gave to the Tribunal. In respect of traumatic events, Dr Holmes noted that "there were numerous minor incidents and although there were no major ones he constantly expected to be set upon. He said his anxiety was increased by the lack of information from his superiors". Dr Holmes opined that the Applicant has suffered from PTSD since serving in Vietnam.

submissions

48. It was submitted for the Applicant that the Tribunal should rely on the psychiatric reports that indicate that the Applicant suffers from PTSD, which is the substantial cause of his ceasing work or ceasing to be engaged in remunerative work. It was submitted for the Applicant that there was no basis for the conclusions reached by Dr Lewin in his report. There is a clear history that he is suffering from PTSD. He has probably had his disruptive behaviour for years.

49. It was not the Respondent's case that we should look behind the decision of the delegate in respect of acceptance of PTSD and it would not be appropriate for the Tribunal to do so of its own motion. However, because of the Respondent's evidence from Dr Lewin, its case was in effect that notwithstanding that the Applicant has an accepted war-caused condition of PTSD, he does not suffer from that condition or any other war-caused psychiatric condition.

does the applicant suffer from post-traumatic stress disorder?

50. The Tribunal has noted the way in which PTSD has become part of the decision now under review. It is within the power of the Tribunal to change the diagnosis of the accepted psychiatric condition, if the Tribunal is satisfied that it was not the correct diagnosis.

51. On the evidence before us we remain reasonably satisfied that the Applicant suffers from PTSD, and that his symptoms are consistent with those outlined by Dr Holmes at the time of the acceptance of the condition by the primary decision maker. The detailed history provided by the Applicant to Dr Hordern, together with written statements provided by the Applicant and appearing as an addendum to Dr Hordern's report (exhibit B), satisfy the Tribunal that there were incidents during the Applicant's operational service that he found to be significantly traumatic. The Tribunal finds that there is an element of subjectivity to the experience of trauma - what one person finds traumatic because of his/her vulnerable personality, another may be able to handle because of his/her particular personality strengths. Indeed there is a wide spectrum of coping ability within the population at large in respect of a perceived life-threatening event. One should not lose sight of the fact that the Applicant was aged 17 or 18 years at the time of his operational service. That surely had an effect on his vulnerability.

52. The Tribunal notes the evidence of Dr Lewin that the Applicant suffers from a personality disorder. Due to Dr Lewin's difficulty in sustaining the cogency of his opinion about this diagnosis under cross-examination, we give very little weight to his evidence. There is insufficient evidence for the Tribunal to be reasonably satisfied that the Applicant suffers from a personality disorder. However, even if Dr Lewin's diagnosis was correct, then on the basis of that diagnosis and relying on the opinion of Dr Lewin, a person with a personality disorder would be more vulnerable to stress. Hence, if the Applicant had a pre-existing personality disorder it would merely have increased his vulnerability to the stressful events that he experienced on his operational service.

53. The Tribunal referred earlier to the Respondent's option to use s 31of the Act to review the acceptance of PTSD as war-caused. In light of the evidence now before us, we consider that this is not a matter where one would expect that option to have been used. However, it is of concern that evidence of the nature of Dr Lewin's report was relied on by the Respondent in going to such lengths to continue to deny liability. Dr Lewin's evidence amounted to no more than a conflict of medical opinion, which on cross-examination was shown to be very light in weight. If it is to have any weight in changing the diagnosis of the Applicant's condition it needs to do more than to provide an alternative opinion. It needs to demonstrate why the other medical opinions are wrong, and it does not come close to doing so. That being so, it would be appropriate for the Respondent now to accept that the Applicant suffers from this war-caused disability, as the Tribunal is required to do, and to consider his eligibility for Special Rate pension on that basis.

the legislation in respect of special rate pension

54. Section 24 of the Act, insofar as is relevant, provides -

(1) .......

(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) .....

(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) ......

(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.

.........

the evidence in respect of eligibility for special rate pension

55. At all relevant times the Applicant has suffered from a condition appropriately diagnosed as PTSD, he continues to suffer from that condition, and it has already been accepted as a war-caused condition. The Applicant also suffers from irritable bowel syndrome, a twisting injury of the left ankle and bilateral sensori-neural hearing loss, all of which are war caused conditions. Those conditions have already been assessed at 100 percent of the General Rate, and there is no evidence before the Tribunal to suggest that any of those conditions have improved since the assessment was made. Therefore, the Applicant meets s 24(1)(a) of the Act.

56. In respect of s 24(1)(b), the evidence of Dr Baz, occupational physician, is that the Applicant is unfit for work of eight or more hours per week because of his war-caused disabilities alone. For reasons outlined the evidence of Dr Lewin does not assist the Tribunal in respect of assessment.

57. Dr Burns, occupational physician (exhibit 3), described the considerable difficulty that he had in obtaining an adequate history from the Applicant, and noted inconsistency in various parts of the documentary evidence provided to him. He concluded from his examination of the Applicant and the documentation provided to him, that the Applicant did not suffer from PTSD associated with his service. Dr Burns also noted that on that point "I tend to agree totally with Dr Robert Lewin's report dated 28 January 1999". He considered that the Applicant did not have an adequate stressor during his operational service, and therefore he assessed a nil impairment rating for PTSD. He said "I cannot agree with the delegate of the Department that he has PTSD associated with his short military service in Vietnam". Notwithstanding this, Dr Burns said that he considered that the Applicant has "significant psychological problems" which were not associated with his "short period in Vietnam".

58. Dr Burns excluded the Applicant's psychiatric condition from his assessment of war-caused disabilities. He considered that the Applicant's psychological problems and musculoskeletal problems together would probably make him unemployable. He made no distinction between the Applicant's back condition, which is not an accepted disability, and his left ankle condition, which now is an accepted disability. Overall, Dr Burns' report was of little use to the Tribunal in assessing the Applicant's eligibility for Special Rate pension.

59. Dr Baz noted in her report (exhibit C) that PTSD was an accepted disability, and she based her assessment on that premise. She concluded as follows:

On 19 February 1999:

In my opinion Mr Vacchiano is unfit for work of 8 or more hours duration weekly as a result of his accepted disabilities.

He has other disabilities which limit the type of work which he can reasonably undertake but which would not, in the absence of the accepted disability, preclude him from full-time work.

On 29 July 1999:

In my opinion the physical disabilities, involving the left ankle and low back, impact on Mr Vacchiano's fitness to operate a horse-drawn vehicle in an employed capacity. They do not preclude him from alternative work he has undertaken, for example in insurance sales.

The psychiatric disability causes him to be unfit for his work as a coach driver and also insurance sales.

I consider it causes him to be unfit for work of 8 or more hours duration weekly.

The other disabilities limit the type of work he can undertake but would not preclude him from full-time work in areas in which he has experience.

60. Dr Baz noted that the Applicant's vertigo, at least in part, might be related to his PTSD. In respect of work fitness Dr Baz opined that -

Mr Vacchiano has had considerable difficulty maintaining regular work since discharge from the Navy. The psychiatric information available is consistent with this difficulty being directly related to the post-traumatic stress disorder.

He sustained a back injury while undertaking labouring work in 1985 for which he received Workers' compensation. He subsequently obtained work as an insurance salesman in the early 1990's. He resigned from this work because of difficulties with interpersonal relationships. He subsequently operated a tourist business which involved driving a horse-drawn coach. He ceased this work because of problems with balance, his ankle, concern for the safety of his passengers and irritability.

In my opinion the substantial cause of Mr Vacchiano's inability to work is the post-traumatic stress disorder. While his physical disabilities restrict the type of work to which he is physically suited there exist a number of occupations consistent with his skills and experience which would be available to him if not for the post-traumatic stress disorder.

While he was unsuited to the work of coach driver because of the risk of the left ankle giving way, with the attendant risk of harm to passengers and himself, as well as possible contribution to difficulty with balance due to a central neurological problem, the post-traumatic stress disorder also impinged on his ability to undertake that type of work because of irritability and difficulty dealing appropriately with customers.

He is unsuited to the labouring work he has undertaken previously because of the history of low back pain and low back injury as well as the left ankle problem and difficulty with balance.

However the insurance sales work he previously performed, sedentary work and alternative clerical duties would not be precluded by the extent of back pain he describes, the risk of the left ankle giving way, the pain in the left ankle or the mild possible neurological balance abnormality.

In my opinion he is unsuited to sales work, or alternative clerical work, because of his irritability and social withdrawal. Attempts to return to that type of work are likely to lead to an increase in irritability, anxiety and panic. He is unlikely to perform his duties adequately, to be a disruptive influence in the work place because of the post-traumatic stress disorder symptoms.

I do not consider he would be able to maintain regular employment in any work situation to which he was otherwise physically suited, but in the absence of the post-traumatic stress disorder, he would be fit for full-time work in physically suitable work.

61. On the basis of the Applicant's oral evidence and the documentary evidence of Dr Baz, the Tribunal finds that the Applicant is unfit for remunerative work of more than eight hours per week because of his war-caused disabilities alone. Thus, he meets s 24(1)(b) of the Act.

62. It was submitted for the Applicant that he wants to work, and even after he sustained a crush fracture of one of his vertebrae in 1985 he had returned to work within twelve months of that injury. The Applicant has not yet reached the age of 65 years, and he is still looking for work. The closest he came to being able to work was when he undertook the course of financial adviser, and because of his disruptive behaviour he was asked to leave. He suffers from a back condition, which is not an accepted disability, which "flared up" in January 1999 but which had resolved with treatment by March 1999. The Applicant sought to rely on the ameliorating provisions of s 24(2)(b) of the Act.

63. The Tribunal notes that the Applicant has continued at all relevant times to seek work and that he is under the age of 65 years. Therefore he can invoke the ameliorating provisions of s 24(2)(b) whereby his accepted disabilities are required to be the substantial cause of his inability to obtain remunerative work. Whilst his back condition precludes him from continuing to work as a saw-miller and bulldozer driver the Tribunal finds on the evidence that it does not preclude him from other work which he has already undertaken, such as insurance sales and horse-drawn coach driver. In considering all the evidence before the Tribunal, we find that the Applicant is prevented from continuing to undertake the remunerative work that he was undertaking substantially because of his war caused disabilities, and because of this he is suffering a loss of salary or wages.

64. Neither party in submissions considered whether the Applicant's receipt of disability insurance payments until 1996 precluded his entitlement to special rate pension. The Tribunal notes that these payments ceased a short time before the Applicant lodged his claim, the subject of this review. He had, by the time of lodgement of his claim, commenced seeking work and was in receipt of unemployment benefit. In any event, his eligibility for disability insurance payments rested on less stringent criteria than for Special Rate pension. The Tribunal finds that the Applicant's receipt of that payment does not affect his eligibility for Special Rate pension during the relevant period.

65. The Applicant meets the provisions of s 24 of the Act, and therefore he is entitled to payment of pension at the Special Rate, and he was so entitled at the effective date, being 11 December 1996.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs MT Lewis, Senior Member.

Signed: .....................................................................................

Associate

Date/s of Hearing 18 and 19 August 1999

Date of Decision 17 January 2000

Counsel for the Applicant Mr Hill

Solicitor for Applicant Mr Winship, Rockliffs Solicitors & Attorney

Counsel for the Respondent N/A

Solicitor for the Respondent Mr Wallis, Department of Veteran's Affairs