Hamilton and Repatriation Commission [2000] AATA 299 (24 March 2000)

Last Updated: 10 November 2000

DECISION AND REASONS FOR DECISION [2000] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº N98/1356

VETERANS' APPEALS DIVISION)

Re: JOHN ROBERT HAMILTON

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member Dr J. D. Campbell, Member

Date: 24 March 2000

Place: Sydney

Decision: The decision of the Repatriation Commission dated 21 July 1997, which was affirmed by the Veterans' Review Board on 13 July 1998, is set aside. The Tribunal substitutes a decision that the veteran's post traumatic stress disorder was caused by his operational and defence service and he is entitled to be paid pension at the special rate under the Veterans' Entitlements Act 1986 from 22 July 1996.

(sgd) H.E. Hallowes

Senior Member

VETERANS' AFFAIRS - post traumatic stress disorder - whether war-caused - whether defence-caused - rate of pension payable

Veterans' Entitlements Act 1986 - ss. 6, 9, 24, 28, 68, 70, 73, 120, 120A, 120B

Statement of Principles concerning Post Traumatic Stress Disorder

Instrument Nos 15 and 16 of 1994 as amended by Instruments Nos 225 and 226 of 1995

Instrument Nos 3 and 4 of 1999 as amended by Nos 54 and 55 of 1999

Keeley v Repatriation Commission (1999) 56 ALD 455

Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997)

REASONS FOR DECISION

24 March 2000 Mrs H. E. Hallowes, Senior Member Dr J. D. Campbell, Member

1. On 22 October 1996 the veteran lodged a claim for disability pension with respect to tinnitus and post traumatic stress disorder under the Veterans' Entitlements Act 1986 ("the Act"). He advised that his ship had fired thousands of rounds in Vietnam and he did not know whom he had killed. He was not coping, his drinking was bad and he had attempted suicide.

2. On 5 February 1997 the veteran provided details with respect to his incapacity when claiming service pension, describing injuries and diseases which were accepted as being war-caused or defence-caused, osteoarthritis right ankle being determined to be defence-caused on 31 October 1991; sensori-neural deafness being determined to be war-caused on 31 October 1991; right anterior knee pain syndrome being accepted as war-caused, although the Tribunal is satisfied that the delegate meant defence-caused, on 31 October 1994. The veteran also listed post traumatic stress disorder and tinnitus. He advised that he could not walk or use his legs for long periods of time. He could not hear well, suffering incessant buzzing in both his ears and he was constantly nervous and unable to communicate with people. On the same document he indicated that he had left school aged 16 years reaching Year 10 standard. During his 20 years service in the Navy he had developed skills of seamanship, weapons control and damage control. He last worked on 20 July 1995, having been employed in sales and as a cleaner/supervisor since leaving the Navy. The veteran recorded that he had arthritis in his left ankle. The veteran conceded that, following his stroke, he suffered from headaches but he stated that they had resolved. He also said that following his stroke he has had some short-term memory problems. He still has problems sleeping.

3. On 27 November 1997, Dr B. Keshava, psychiatrist, provided the respondent with a psychiatric assessment. He diagnosed the veteran as suffering from chronic post traumatic stress disorder with alcohol dependence. Dr Keshava also noted that the veteran suffered from hypertension and bilateral deafness and tinnitus, and that he was still drinking heavily when seen although he had alcohol liver disease. In Dr Keshava's opinion the veteran was not fit to work for more than eight hours each week.

4. Invalidity service pension was approved on 1 May 1997 but the veteran's claim that his post traumatic stress disorder was war-caused was refused on 21 July 1997. Tinnitus was considered as part of the veteran's sensori-neural deafness. It was determined that pension be increased to 80% of the general rate with effect from 22 October 1996.

5. On 21 July 1997 the Veterans' Review Board affirmed the decision of the Repatriation Commission that the veteran's post traumatic stress disorder was not war-caused but it set aside the decision with respect to the rate of pension payable, substituting a decision that pension be assessed at 90% of the general rate with effect from 22 July 1996.

6. On 17 April 1998, Dr K. Reinhardt, psychiatrist, provided a report with respect to the veteran. He obtained a history that the veteran served on HMAS Perth between September 1970 and January 1971. The ship patrolled the coast of Vietnam and any vessel in the water after curfew had to be shot. The veteran was terrified that the ship had been mined after observing divers in the water and he felt that he had no hope of survival as the ship was full of explosives. His leg was in plaster and he was stationed below the water-line. He had intrusive memories of service and his sleep was now often disturbed by nightmares. Dr Reinhardt expressed the opinion that the veteran suffers chronic post traumatic stress disorder and alcohol dependence which have caused ". . . significant impairment in social, recreational and occupational functioning".

7. Ms A. Smith, the veteran's former wife, also provided a statement on 13 July 1998. She graphically outlined the change in her former husband when he returned from service on the Perth. The veteran appeared to be unable to relate to people, other than naval or service personnel. He began to drink heavily which seemed to relax him, but it also made him morbid and bitter about what had happened in Vietnam. She stated:

"Over the years I have watched him abuse his body and mind with drug and alcohol dependence and watched him taken into hospital with the warning that he might not even live out the weekend unless the hospital could get him through it. My daughter and I have cleaned up his living apartments that have been full of faeces, vomit, rotten food, urine etc etc etc."

8. The above material is included in the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which the Tribunal had before it, together with further material lodged by both parties at the hearing. The veteran was represented by Mr N. Dawson, solicitor, the Repatriation Commission being represented by Ms M. Doggett, an advocate of the Department of Veterans' Affairs. Some of the documents refer to the veteran by the surname "Marcus". He told the Tribunal that he had served under a different name from the name he is now known by. He changed his name in 1982 which was his wife's idea.

9. The relevant legislation includes section 6 of the Act which defines operational service; section 9 which provides for war-caused injuries and diseases, in particular, paragraphs (a) and (b) of subsection (1) which provide that a disease is war-caused if it was contracted by a veteran resulting from an occurrence while the veteran was rendering operational service. Section 24 provides for special rate of pension. If a disease was contracted by the veteran which was attributable to any eligible war service rendered by him, section 68 defines defence service; section 70 provides eligibility for pension if a member is incapacitated from a defence-caused injury or disease and section 73 provides rates of pension payable. Sections 120, 120A and 120B of the Act provide the standard of proof the Tribunal must apply. As the veteran lodged his claim after 1 June 1994 the Tribunal must apply any Statement of Principles ("SoPs") determined by the Repatriation Medical Authority which are relevant to the veteran's matter.

10. The veteran gave oral evidence to the Tribunal that he was posted to HMAS Sydney which had been converted to a troop carrier in 1965. He served on the Sydney between 1966 and 1968. He undertook five trips to Vietnam on the Sydney. Because of its design the Sydney was a nightmare to serve on in the tropics. Naval personnel were given a stretcher and told to find "a hole" in which to sleep. They were second class citizens compared with the troops the Sydney was carrying. The first trip was "sort of trial and error". The Sydney remained in the delta for two or three days but as the crew's experience increased on later trips loading and unloading times improved. The veteran was an ordinary seaman whose duties included painting and steering. He also had an action station. He described the precautions taken to avoid the ship being blown up by mines. The veteran said that after leaving the Sydney he was posted to HMAS Swan and HMAS Penguin, before being transferred to HMAS Stewart on which he had served in 1963 as one of the commissioning crew. After 1970 he returned to Vietnam on HMAS Perth. By now he was a Leading Able Seaman in charge of 10 to 12 men and responsible for the loading and maintenance of guns and ammunition. Serving on an operational destroyer was totally different from serving on the Sydney. They were based in the Philippines before putting in three weeks on the gunline and entering Da Nang Harbour. Targets in the hills above Da Nang were fired on. The most frightening experience the veteran had was when he sailed to Vietnam with his leg in full plaster, having broken his ankle at Subic Bay. When the Perth stopped in waters in the demilitarized zone divers were spotted in the water. Personnel moved to the superstructure in their flak jackets in case of mines. The veteran was weighed down by the plaster and his flak jacket and felt as if he was on a floating bomb. No mines were detected by divers who went overboard but the bombardment which had been undertaken was continued for most of the night.

11. The veteran also described his service on the Stewart when the Stewart was despatched to Jervis Bay to pick up survivors following the Voyager collision. The Stewart tried to tow the still floating stern of the Voyager but it sank. His best mate was serving on the Voyager. They searched for bodies for 36 hours, picking up a few.

12. The veteran said that his drinking increased during rest and recreation. He was promoted to Chief Petty Officer and he left the Navy in 1981 after serving for 20 years. He found it very hard to get a proper job in civilian life. The services had "been safe", and servicemen treated civilians with disdain. He eventually obtained work through his father-in-law in the glass industry and started to do well as a sales representative but, by the early 1990s, he began to see Asians everywhere. He could not cope with people who had taken away 10 years of his life and he became angry, he lost confidence and he lost his job. He became intolerant with people who were not trained to do things properly. He could no longer drive because of his "short fuse". He did not know what was wrong with him. By 1994 he had "blown it" losing his wife and children. He does not understand why he is unable to work with people when once he lived with them in confined spaces in ships. His father had worked until he was 73 and he had intended to do likewise. He misses work. The report of his psychiatrist, Dr L. Blows was before the Tribunal and the veteran said that Dr Blows has helped him a lot. He sees him every two months. His medication has "worked wonders" and he has not had a drink since February 1998. He feels he is starting to cope better.

13. Mr Dawson asked the veteran to comment on a report by Dr N. Schultz, psychiatrist, dated 6 September 1999. The veteran had seen Dr Schultz for the Repatriation Commission. The veteran disagreed with some of the history recorded by Dr Schultz. He recalled mentioning a problem with his left hand but he denied that he had told Dr Schultz that the main reason he could not work was the problem with his left hand. The veteran suffered a stroke in October 1998 and he told the Tribunal that he sometimes drops things with his left hand, it is "not a big deal" for him. Following his stroke he has worked hard with a physiotherapist. It was his evidence that he had told Dr Schultz that his position as Chief Petty Officer always placed him under pressure, it was a "harrowing job". There were lots of fights amongst younger officers who knew "nothing" and it was one reason he "pulled the pin" and moved on. The veteran noted that Dr Schultz had recorded that "Mr Hamilton's alcohol difficulties commenced prior to the age of 16". The veteran told the Tribunal that this related to one incident when he had been caught with a bottle of beer at the age of 15 and had been sent home by police.

14. The veteran said he suffered a stroke in September 1998 shortly after he had undergone a hip replacement. His whole left side was affected. He could not come to terms with it in a hurry but he was very determined and, as already recorded, worked hard with a physiotherapist. The veteran decided to undergo bypass heart surgery in February 1999.

15. Addressing issues under the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide") the veteran said that his mobility is affected by a bit of a limp following his stroke and he does have some problems with his left arm, particularly in the winter. He is still prone to snap at and fight with his daughter and he hopes to patch up his relationship with his son. He experiences leg pain when driving any distance. He suffers from nightmares and sweats every night.

16. Dr Schultz gave evidence for the Repatriation Commission. Dr Schultz expressed the opinion that Mr Hamilton looked considerably older than his stated years. The veteran did not describe symptoms suggestive of post traumatic stress disorder to him, rather he described anxiety symptoms which were generalised but not related to any particular stimulus. He concluded that the veteran's inability to work appeared to be related to "the marked impairment of his physical problems caused by his stroke, heart attack and coronary bypass operation".

17. Dr Schultz's attention was drawn to SoP Instrument No. 3 of 1999 concerning post traumatic stress disorder which revoked Instrument No. 15 of 1994 and Instrument No. 225 of 1995 which were in effect at the date of the decision of the Repatriation Commission on 21 July 1997 which defines "post traumatic stress disorder" to mean:

". . . 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 and 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) . . .

. . ."

Dr Schultz said that he had considered the SoPs and the only traumatic event relevant to the definition of post traumatic stress disorder in the SoPs was the fear expressed by the veteran when mines were being cleared, however, the veteran had not described a response to him which involved helplessness and being frozen by fear, rather his description was one of being frightened and concerned. For a post traumatic stress disorder to occur Dr Schultz would anticipate the event being a sudden event rather than one which occurred over a number of hours. It is an event which you can do nothing about; where you feel that you are about to die and your response would be simultaneous. He had obtained a history from the veteran of being distressed generally by his service in the Navy rather than any specific event. Although the veteran dreams each night of the mine incident, they are neither recurring nor causing the veteran intense psychological distress. The veteran had not been anxious as he spoke during the consultation. Although, in his opinion, the veteran may satisfy clause 2(c) of the definition in the SoPs, any numbing of general responsiveness could be explained by other factors such as his alcoholism and personal life. When it was put to Dr Schultz that the veteran's memory of the consultation was different from his, he said that his report was not word for word with what was discussed at consultation but he took notes in point form which reflected what was said.

18. The factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of a person's service are:

"(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or

(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c) inability to obtain appropriate clinical management for post traumatic stress disorder."

Dr Schultz again said that a specific event was normally applicable. Dr Schultz expressed the opinion that the veteran had a history of difficult delinquent behaviour when he was young including trouble with the police and Dr Schultz based this opinion on more than the incident when the veteran was caught with a bottle of beer. During the course of the consultation the veteran had not volunteered symptoms of post traumatic stress disorder to Dr Schultz, rather, he had to lead him into his Vietnam experiences. The veteran had not appeared to be reticent in giving his evidence but under cross-examination Dr Schultz agreed that, in treating a patient, and through further consultations, a person may "open up more" and in those circumstances, a diagnosis may be reviewed. He agreed that the veteran's circumstances may fit the criteria under the SoPs but, in his opinion, it would not be a typical application of post traumatic stress disorder criteria. After perusing Dr Blows' report, he did not change his diagnosis. The veteran had not raised the Voyager collision with him. The medication the veteran had been prescribed was anti-depressive and is not proved as a treatment for post traumatic stress disorder.

19. The documents included the SoPs with respect to post traumatic stress disorder both with respect to operational service and defence service which were revoked by Instrument Nos 3 and 4 of 1999. Those earlier Instruments are not dissimilar from the present SoPs although the relevant factors now provide for a severe stressor as opposed to "experiencing a stressor" under the 1994 SoPs. Both the 1994 and 1999 SoPs provide that post traumatic stress disorder means a psychiatric condition following the description derived from DSM-IV. The variation in the meaning of "experiencing a stressor" is slightly expanded on.

20. The Tribunal had before it a report from Dr Keshava dated 17 May 1999 (see also paragraph 3 above). Dr Keshava noted that he had first seen the veteran on 15 November 1996 and subsequently on 6 February and 4 April 1997 and 12 March 1999. He provided a history with respect to depression, drinking to excess, the veteran's heart attack which he suffered on 2 October 1998 and the stroke which had occurred the following day. The veteran was virtually housebound, had weakness on his left side and his speech was badly affected. He has had a hip replacement and experienced pain in both hip joints. He also suffers from recurrent bilateral headaches which "virtually cripples him". Dr Keshava expressed the opinion that the veteran's physical condition had deteriorated grossly since originally seen. He diagnosed post traumatic stress disorder with substance abuse and depression. In his opinion the veteran is not fit to engage in paid work for eight hours per week solely due to his war-caused conditions. The prognosis is poor.

21. The veteran had been examined by Dr M. Baz, occupational physician, who provided a report to the Tribunal dated 20 May 1999. In her opinion the veteran has significant psychiatric impairment affecting all aspects of his life-style and, although the veteran has made a good recovery from his stroke he has significant ischaemic heart disease. She noted that he was continuing to experience pain in his right ankle and knee and that he was distressed by headaches. In addressing issues under section 24 of the Act, Dr Baz expressed the opinion that the veteran's post traumatic stress disorder rendered him unfit for work because of its effects on his motivation and interpersonal relationships. She did not think that his musculoskeletal conditions significantly affected his capacity to undertake the work he had undertaken as a sales representative in the glass industry. She noted his treatment for ischaemic heart disease and thought that he could perform clerical duties if his ischaemic heart disease is successfully managed. However, the substantial cause of his lack of fitness for work is his psychiatric condition with some contribution from his other accepted disabilities.

22. Dr Blows reported on 21 October 1999 (see paragraph 12 above). The veteran was referred to him by his local doctor and Dr Blows has seen the veteran on a number of occasions. Dr Blows continues to prescribe the anti-depressant Luvox for the veteran. The veteran ceased drinking in February 1998 and alcohol is not an issue with respect to his present health. The destruction of water-borne craft in Vietnamese waters has played on the veteran's mind. He described nightmares to Dr Blows including one in which he is on board ship. Dr Blows has diagnosed post traumatic stress disorder based on the DSM-IV. He set out the criteria suffered by the veteran:

"DSM - IV

The criteria suffered by Mr. Hamilton is marked in bold type.

POST TRAUMATIC STRESS DISORDER

A. The person has been exposed to a traumatic event in which both of the following are present:

1) 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.

2) the person's response involved intense fear, helplessness, or horror.

B. the traumatic event is persistently reexperienced in one (of more) of the following ways:

1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.

2) recurrent distressing dreams of the event.

3) acting, or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated).

4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.

5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.

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:

1) efforts to avoid thoughts, feelings, or conversations associated with the trauma.

2) efforts to avoid activities, places or people that arouse recollections of the trauma.

3) inability to recall an important aspect of the trauma.

4) markedly diminished interest or participation in significant activities.

5) feeling of detachment or estrangement from others.

6) restricted range of affect (e.g. unable to have loving feelings)

7) sense of a foreshortened future (e.g. does not expect to have a career, marriage, children, or a normal life span).

D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

1) difficulty falling asleep or staying asleep.

2) irritability or outbursts of anger

3) difficulty concentrating

4) hypervigilance

5) exaggerated startle response

E. Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month.

F. The disturbance causes clinical significant distress or impairment in social, occupational, or other important areas of functioning."

The veteran has described his involvement in searching for bodies and attempting to salvage the Voyager after its collision with the Melbourne to Dr Blows. His best mate went down with the forward section of the Voyager.

23. Mr Dawson put to the Tribunal that it should find that the veteran suffers post traumatic stress disorder which is war-caused accepting the evidence of the medical practitioners who have treated the veteran rather than the opinion expressed by Dr Schultz after one consultation. He contended that the substantial cause of the veteran being prevented from continuing to undertake remunerative work that he was undertaking is his war-caused diseases and that by reason thereof the veteran is suffering a loss of wages. On the other hand, Ms Doggett put to the Tribunal that it should rely on the evidence of Dr Schultz and find that the veteran does not suffer from post traumatic stress disorder. The Tribunal does not accept the submission made by Ms Doggett with respect to the reports from Dr Keshava and Dr Reinhardt. The history provided by the veteran to various doctors is not so inconsistent as to persuade the Tribunal that it should not accept what was put to it by the veteran at the hearing. A considerable period of time has elapsed since the veteran's service, the legislation is beneficial legislation and the Tribunal is satisfied that Dr Reinhardt's opinion was not predicated on the history he obtained from the veteran that his parents were alcoholics, a contention denied by the veteran at the hearing.

24. The Tribunal turns first to the diagnosis in this matter and whether the veteran suffers from post traumatic stress disorder and if so, whether his post traumatic stress disorder is defence-caused or war-caused. The Tribunal accepts the evidence of his treating doctors in preference to that of the respondent's specialist who saw him on only one occasion. The veteran may also be suffering from depression and have received medication for depression but the Tribunal finds on the balance of probability that he also suffers from post traumatic stress disorder. The Tribunal accepts the veteran's evidence and having considered his description of experiences he had during both operational service and defence service, the Tribunal finds that the veteran suffers from post traumatic stress disorder. He satisfies the description of that psychiatric disease as set out in Dr Blows' report. The veteran was exposed to traumatic events on the Perth during operational service when he had his leg in full plaster and divers were spotted in the water and Vietnamese boats sunk and during defence service on the Stewart when picking up survivors of the Voyager collision during defence service. During the time the Perth was stopped in the demilitarised zone and divers were spotted, there was a threat of serious injury to the veteran and his evidence satisfies the Tribunal that he responded with a sense of helplessness and fear. He has intrusive recollection of other events when the physical integrity of others known to him was threatened. The evidence points to him consuming alcohol to avoid his recollections not only to do with the incident on the Perth but also to do with his distress in reflecting on other circumstances in which he was involved, both during his war service and his defence service and what has happened to him since leaving the services. The Tribunal finds that he avoids social contact and he was distressed when he began to "see Asians everywhere". The Tribunal accepts the evidence of Dr Blows that the veteran has a markedly diminished interest in participating in significant activities. He is estranged from others and he is unable to have loving feelings. The Tribunal further finds that he has difficulty sleeping and concentrating and it accepts his evidence with respect to his irritability and outbursts of anger.

25. The Tribunal also finds that the veteran has raised a reasonable hypothesis connecting his post traumatic stress disorder with the circumstances of his operational service satisfying factor 5(a) of SoP Instrument No. 3 of 1999. The Tribunal considers that it should decide this matter before the Full Federal Court hands down its decision in the appeal in Keeley and Repatriation Commission (1999) 56 ALD 455 as to whether the SoPs in effect at the time the Repatriation Commission determined the matter should be applied by the Tribunal or the SoPs now in effect. The more recent SoPs requiring a "severe stressor" are more difficult for the veteran to meet but, a reasonable hypothesis has been raised connecting the veteran's post traumatic stress disorder with the circumstances of his operational service. The veteran experienced a severe stressor when trapped in a full leg plaster on board the Perth in waters adjacent to the demilitarised zone. The Tribunal will not also consider whether he also satisfies the revoked SoPs. The veteran was confronted with an event involving a threat to his physical integrity. Likewise, the Tribunal finds on the balance of probability that, during his defence service, he was confronted with threats to others' physical integrity. Friends died.

26. The Tribunal now turns to consider whether the veteran is entitled to be paid pension under section 24 of the Act. Section 24 of the Act provides, so far as relevant:

"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.

..."

Section 28 provides:

"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)."

27. The veteran has not yet turned 65 years of age. The degree of his incapacity is at least 70% by a determination already in force before the Tribunal's finding that his post traumatic stress disorder is war-caused and defence-caused. The Tribunal finds that the veteran's incapacity from war-caused and defence-caused injury and disease is such to alone rendering him incapable of undertaking remunerative work for more than eight hours per week. The veteran has demonstrated skills in selling and industrial cleaning. He acquired skills during service but they have been of limited use in civilian life apart from skill in managing people which has been affected by his war-caused diseases. The veteran is so impaired as a result of his war-caused and defence-caused injury and disease, most particularly his post traumatic stress disorder, his incapacity for work in the occupations for which he is skilled means that he is incapable of undertaking remunerative work. His hearing problems and osteoarthritis of the right ankle and knee pain are also contributing factors.

28. Turning to paragraph 24(1)(c) of the Act and subsection 24(2), the veteran has satisfied the Tribunal that he would have continued in employment or to seek employment but for his incapacity rising from defence and war-caused injury and disease. In Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997) Deputy President McDonald said at paragraph 25:

"25. With respect sub-clause (b), there was no suggestion that the veteran had been seeking work since he had taken his redundancy. As was commented on in Re Martin and Repatriation Commission (1987) 13 ALD 83 and Re Harpley and Repatriation Commission (1996) 20 ALD 64 an inherent difficulty arises if s.24(2)(b) is applied literally in circumstances where a veteran is, because of his/her war-caused injuries or diseases, disabled from working, in being required to seek work. The Tribunal pointed out the rationale for the inclusion of sub-clause (b) in Martin as follows:

'It is not there to provide a further hurdle for veterans who were engaged in remunerative work before their retirement due to incapacity. Its role was described as a 'ameliorating' one in Re Sanfead and Repatriation Commission (1986) 11 ALN N77. It is there to cover the case of a veteran who was unemployed but genuinely seeking to engage in remunerative work when his incapacity from war-caused injury or disease became such as to prevent him continuing to undertake remunerative work. It allows such a veteran to satisfy the requirements of s.24(1)(c) even though at the relevant time he was not undertaking remunerative work. If s.24(2)(b) were not in the Act, veterans who had been unemployed at the time when their incapacity became so severe as to remove their capacity for work would never be able to qualify for pension at the special or intermediate rate.' (p.95)

The inherent difficulty has also been pointed out by Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 at 461 in the following terms:

'It seems to me that the question of whether a veteran has been "genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek" has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.'

In the instant case, the veteran ceased work as the result of not being able to continue because of suffering from the accepted disability of headaches. The evidence, including that from Dr Pointon, indicates that that condition has, if anything, increased in severity since his retirement. In those circumstances the Tribunal accepts that, while the veteran may have been willing to continue working, he has been precluded from working as the result of the accepted disability. Accordingly, the Tribunal is satisfied that the provisions of s.24(2)(b) are satisfied."

29. The Tribunal finds that the substantial cause of the veteran's inability to obtain remunerative work is his incapacity arising out of his accepted disease and injury. Other diseases do affect him and have had a greater impact on him in the past. The veteran underwent a total left hip replacement in September 1998. He has suffered both a heart attack and stroke affecting his left side and speech. He suffers from headaches. Dr Baz notes that the veteran's affect was depressed and his presentation was agitated when she examined him on 11 February 1999. She formed the opinion that his resistance to joint movement appeared to be related to his agitation more than any underlying physical disability. He had a pronounced limp. Dr Baz expressed the opinion that the veteran's significant psychiatric impairment affected all aspects of his lifestyle. In her opinion he had made a good recovery from his stroke. His significant ischaemic heart disease was currently under therapy. Dr Baz concluded by expressing the opinion that the veteran's post traumatic stress disorder rendered him unfit for work because of the effect of his war-caused and defence-caused diseases on his motivation and interpersonal relationships and his ability to attend work regularly which was borne out by the veteran's evidence to the Tribunal. She did not think that his musculoskeletal conditions significantly affected his capacity to undertake work involving driving. He has made a good recovery from his stroke and the Tribunal finds that is so, having had the opportunity to observe the veteran at the time of the hearing, and it accepts his evidence that he has worked very hard with physiotherapists to overcome those effects. Dr Baz was of the opinion that, if the effects of the veteran's ischaemic heart disease are successfully managed, that condition should not preclude him from work. It is his psychiatric condition which is the substantial cause of his inability to work, his other accepted disabilities contributing as well.

30. Dr Reinhardt expressed the opinion, as noted in paragraph 7 above, that the veteran's post traumatic stress disorder caused significant impairment to the veteran's occupational functioning. It was the veteran's evidence that he could no longer drive because of his "short fuse" rather than his non-accepted war-caused physical disabilities. He acknowledged that he still has a limp following his stroke and he has some problem with his left arm. However, the totality of the evidence satisfies the Tribunal that, applying the ameliorating provisions of subsection 24(2) of the Act to his circumstances, he should be treated as having been prevented by reason of his incapacity from war-caused and defence-caused diseases and injury from continuing to undertake remunerative work.

31. It is for these reasons that the Tribunal will set aside the decision under review and substitute a decision accepting the veteran's post traumatic stress disorder as war-caused and granting him pension under section 24 of the Act from 22 July 1996.

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H.E. Hallowes, Senior Member

Dr J. D. Campbell, Member

(sgd) Catherine Thomas

Personal Assistant

Date of Hearing: 29.10.99

Date of Decision 24.03.2000

Solicitor for the Applicant Mr N. Dawson, Messrs R.L. Whyburn & Associates

Solicitor for the Respondent Ms M. Doggett, Department Advocate