Pigdon and Repatriation Commission [2002] AATA 66 (4 February 2002)

Last Updated: 11 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 66

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/965

VETERANS' APPEALS DIVISION )

Re Brian Pigdon

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date 4 February 2002

Place Coffs Harbour and Sydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that: (1) Mr Pigdon has a war-caused condition of post traumatic stress disorder pursuant to section 9 of the Veterans' Entitlements Act 1986. (2) Pension is assessed at 100 per cent of the General Rate from and including 30 March 1997.

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

Ms SM Bullock

Senior Member

Catchwords

VETERANS' AFFAIRS - Entitlement - Operational Service - Reasonable Hypothesis - Diagnosis - Reasonable Satisfaction - Post Traumatic Stress Disorder - - Psychoactive Substance Abuse - Hypertension - Assessment - Extreme Disablement Adjustment.

Legislation

Veterans' Entitlements Act 1986 ss 5D, 9, 13, 22, 29, 31, 120(1), 120(3), 120(4), 120A.

Authorities

Repatriation Commission v Williams [2001] FCA 1195

Benjamin v Repatriation Commission (2001) 64 ALD 411

Benjamin v Repatriation Commission [2001] FCA 1879

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Re Saunders and Repatriation Commission [2001] AATA 727

Re Mulvaney and Repatriation Commission (AATA 272, 21 April 1998)

Re Powell and Repatriation Commission [2000] AATA 385

Re Maier and Repatriation Commission [2001] AATA 117

Re Repatriation Commission and Freeman [2000] AATA 727

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Budworth (2001) 33 AAR 476

Meehan v Repatriation Commission (2001) 64 ALD 366

McKenna v Repatriation Commission (1999) 86 FCR 144

Gorton v Repatriation Commission (2001) 63 ALD 723

Connors v Repatriation Commission (2000) 59 ALD 61

REASONS FOR DECISION

4 February 2002 Ms S M Bullock, Senior Member

1. This is an application for review by the Applicant, Mr Brian Pigdon, of a decision of the Veterans' Review Board ("the Board") dated 2 May 2000 (T27) which affirmed the Repatriation Commission decisions of:

a) 24 September 1997, which refused a claim for hypertension with heart failure and post traumatic stress disorder and assessed pension at 50 per cent of the General Rate (T2).

b) 24 October 1998, which refused the claim for obesity and psychoactive substance abuse or dependence (T3).

2. It should be noted that on 22 December 1998, pursuant to section 31 of the Veterans' Entitlements Act 1986, the condition of ischaemic heart disease was determined to be war-caused within the meaning of section 9 of the Veterans' Entitlements' Act 1986 with effect from 30 March 1997. Pension was increased at that time to 90 per cent of the General Rate with effect from 30 March 1997 (T26).

3. A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Coffs Harbour on 16 August 2001 and resumed in Sydney on 24 August 2001. Mr Pigdon provided oral evidence to the Tribunal and was represented by Mr B Winship, Solicitor. The Respondent, the Repatriation Commission ("the Commission"), was represented by Ms S Breuer, Departmental Advocate. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents", T1 - T35) and the following exhibits:

Exhibit Number Description Date

A1 Report by Ms F Curdie-Evans, Consultant Occupational Therapist 9 April 2001

A2 Photograph of Captain Susumi Hoshijima, First Commanding Officer, Prisoner of War Camp, Sandakan. 1946

A3 Photograph of Captain Shoichi Yamamoto, Second Commanding Officer, Prisoner of War Camp, Sandakan. 1946

R1 Report by Associate Professor R P Mattick, Clinical Psychologist, Director of Research, National Drug and Alcohol Research Centre, University of New South Wales. 7 November 2000

R2 Report of Dr N Schultz, Consultant Psychiatrist. 21 November 2000

Service History

4. Mr Pigdon served in the Australian Army from 24 July 1945 until 5 February 1947. Mr Pigdon served overseas in New Guinea and the whole of his service constitutes operational service for the purposes of the Veterans' Entitlements Act 1986.

Issues

5. The issues in this matter are:

i. Whether or not Mr Pigdon should have accepted as war-caused, the conditions of post traumatic stress disorder, psychoactive substance abuse and hypertension;

ii. What is the correct rate of assessment of Mr Pigdon's Disability Pension for accepted war-caused conditions; and

iii. Whether or not Mr Pigdon is qualified to receive the Extreme Disablement Adjustment.

Legislation

6. A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").

7. Section 5D of the Act deals with the definitions of injury and disease.

8. Section 9 of the Act deals with war-caused injuries or diseases and provides

"9 War-caused injuries or diseases

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

..."

9. Section 13 of the Act deals with eligibility for pension arising out of operational service.

10. In relation to Mr Pigdon's operational service, the standard of proof is that of the reasonable hypothesis applying subsections 120(1) and 120(3) of the Act which provide:

"120 Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

..."

11. The Tribunal is also required to apply subsection 120A of the Act for operational service to assess the reasonableness of any hypotheses in accordance with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any other relevant determinations under the Act.

12. It was agreed by the parties and accepted by the Tribunal that the relevant Statements of Principles are:

* Instrument Number 15 of 1994 concerning Post Traumatic Stress Disorder;

* Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence;

* Instrument Number 83 of 1995 concerning Hypertension.

13. In relation to the assessment of the rate of Mr Pigdon's pension, subsection 120(4) of the Act applies and as relevant, subsection 120(4) of the Act states.

"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B."

14. The Tribunal is also required to apply the "Guide to Assessment of Rates of Veterans' Pensions" ("the Guide") under section 29 of the Act, to assess any impairment and lifestyle ratings in order to determine the rate of assessment of a veteran's pension.

15. Section 22 of the Act deals with the Extreme Disablement Adjustment and it requires that veterans be at least 65 years of age, have pension assessed at 100 per cent of the General Rate and not be eligible for either the Special or Intermediate Rates. The veteran must also have an impairment rating of at least 70 points with a lifestyle rating of at least 6 points.

Evidence of Mr Pigdon

16. Mr Pigdon, whose date of birth is 13 October 1926, stated that he was 18 years old when he joined the army. He had initial training at Cowra involving learning about rifles and hand grenades and marching. Mr Pigdon later continued his training at Canungra, where training was nearer to "war conditions" and live ammunition was used with machine guns.

17. Mr Pigdon was then sent overseas, landing in Simpson Harbour, Rabaul. He was assigned to an eight-soldier tent. Mr Pigdon's first duties involved guarding a group of ten Japanese prisoners. There were day and night duties, with the day duty occurring between about 8am to 5pm. Mr Pigdon carried out his duty using a rifle but he was not issued with ammunition. The Japanese prisoners had one soldier in charge who also spoke English. There were a number of such groups of Japanese prisoners being guarded by Australian soldiers at various locations. Mr Pigdon told the Tribunal that the prisoners would usually "stand around" in a group and Mr Pigdon would keep an eye on them. He stated that he was very wary and did not trust the Japanese. On guard duty at night, Mr Pigdon was fearful because visibility was extremely low and he did not know what was going to happen next. Guarding the prisoners at night therefore was very different to day duty. Even though the war was over, Mr Pigdon stated that the Japanese were very fanatical and most unhappy about surrender. Mr Pigdon recalled that on his first day in Rabaul there was a dreadful stench. He was told that it arose from piles of dead Japanese who had suicided rather than surrender.

18. When Mr Pigdon arrived in Rabaul, there were war crime trials being held. Although Mr Pigdon did not attend the trials, he told the Tribunal that he had heard stories about Japanese atrocities and brutality committed on Allied troops including Australian soldiers. In this regard, Mr Pigdon told of the stories of the Japanese torturing of Australian and other soldiers and of starvation that was rife in the prisoner of war camps. It was in this context that a request was made for volunteers to form a firing squad to execute some Japanese prisoners. Mr Pigdon volunteered to be part of that firing squad. As it turned out however, the firing squad was not required because the prisoners were hung instead. Mr Pigdon had been given photographs of two of the Japanese soldiers to be executed and he has retained those photos to this day (Exhibits A2 and A3).

19. Mr Pigdon told the Tribunal that he had specifically heard of the Sandakan Prison Camp where many Australian, British and Indian soldiers were incarcerated. He told the Tribunal that during his tour of duty in Rabaul, he was not directly threatened by the Japanese prisoners nor had he ever shot at or killed anyone.

20. The Tribunal was told of a particular event in which Mr Pigdon, along with five other soldiers and an officer, was required to isolate a "Chinese trouble-maker" and take him into custody for questioning. Mr Pigdon explained that in the camp there were Chinese civilians and military personnel. The Chinese military were not dressed in uniforms and hence the two groups were similarly dressed. Mr Pigdon was armed with a bayonet and rifle but had no ammunition. The officer had a side arm but Mr Pigdon did not know whether he had ammunition. The group found this one Chinese man, had detained him and were moving out of the camp when a large "mob" of 500 Chinese came towards Mr Pigdon's group. Mr Pigdon was then ordered by his officer to place his bayonet half an inch from the Chinese man's neck with a further order that if the mob of Chinese surged forward, he was to push the bayonet through that man's neck.

21. Mr Pigdon told the Tribunal that he had no choice but to obey his orders and while he tried to remain calm he was extremely frightened. Mr Pigdon further stated that he thought that if the Australian soldiers faltered, there would only be one outcome and that would be death for himself, the Chinese man and perhaps others. Mr Pigdon described moving backwards with the Chinese man with Mr Pigdon's bayonet placed at the Chinese man's neck. When the Chinese mob saw the bayonet at the neck of their colleague, they stopped "because they realised what was going to happen". Mr Pigdon had to keep this up for 15 to 20 feet, before reaching safety. He told the Tribunal that he most definitely did not feel safe and was concerned particularly as he had observed the Chinese in Rabaul as "being very unpredictable". Mr Pigdon believed the Chinese mob wanted to do the Australian soldiers great harm.

22. Mr Pigdon did not agree with the statement made by Associate Professor R P Mattick in his report of 7 November 2000 (Exhibit R1), that Mr Pigdon was "as cool as a cucumber" in the incident with the Chinese. Mr Pigdon stated that he was extremely fearful for his own and others' safety. Mr Pigdon explained that he had to keep his cool because there was no other choice and reiterated that if he or any of the other Australian men had faltered, he believed they would be killed. Mr Pigdon stated that after this incident he did not talk to anyone about it. He was just so relieved to be out of the situation in one piece. He was 19 years old at the time. Mr Pigdon did not agree that this incident had had no affect on him once it was over, as Associate Professor Mattick had reported. Mr Pigdon stated that there was nothing he could do about the situation. He just had to try and accept it. He had also been told by Army Personnel that he should just try not to think about these things. This instruction was repeated to him by Army Personnel once he returned to Australia. The problem was, Mr Pigdon stated, that he did think about it but kept it to himself. Mr Pigdon told the Tribunal that he does not talk to his wife about these matters nor to his children. Further, Mr Pigdon stated that he had "got away from the RSL" because he did not want to talk about these war-experiences. He has since, however, become involved with the local RSL Club.

23. Mr Pigdon also stated that he has become very distressed about, in his perception, the way that not more was done by the Australian Government to rescue Australian prisoners of war. This was one of a number of things which upset him about his war service. It was one of the most distressing things because it could have been him in a prisoner of war camp, Mr Pigdon told the Tribunal. Mr Pigdon told the Tribunal that for some considerable time, he has been waking up at about two or three o'clock in the morning and not being able to return to sleep. He does not have nightmares but thinks about war memories and his experiences. Mr Pigdon stated that he did have bad dreams in the early years after the war.

24. Mr Pigdon explained to the Tribunal that when he arrived in Rabaul he was a very naive 19 year old man but when he left, he had changed. He was less trusting, had difficulty adjusting to people and had taken up smoking and consuming alcohol. In regard to his smoking, Mr Pigdon ceased this in 1977.

25. In relation to alcohol consumption, Mr Pigdon stated that new recruits were issued with a ration of beer, two 375ml bottles per week from the Sergeant's Mess. Mr Pigdon in fact consumed more alcohol than this because the older soldiers received more beer and shared this with the younger recruits. Mr Pigdon stated that he drank steadily in Rabaul and that he would average 24 bottles of beer per week during the seven months that he was overseas.

26. When discharged from the Army in 1977, Mr Pigdon stated that his alcohol consumption increased, although his drinking was connected to his particular circumstances. In this regard, after discharge from the Army, Mr Pigdon went to live with his Uncle at Swan Hill for a period of approximately six months. Mr Pigdon stated that his Uncle did not consume alcohol and Mr Pigdon would therefore go to the local hotel to drink, which occurred once every fortnight. Mr Pigdon stated that throughout his life, in terms of his consumption of alcohol, he has always tried to be responsible. He would drink when in company who also drank. He would not consume alcohol if the company he was with or where he was living did not drink.

27. After Swan Hill, Mr Pigdon moved to East Malvern in Victoria and between 1948 to 1952, he continued his apprenticeship to become a panel-beater. Mr Pigdon agreed with the history reported by Associate Professor Mattick that in that period, he only drank on Saturdays and again wanted to be responsible in his job. In addition, Mr Pigdon estimated that during this period, he drank 30 to 40 seven-ounce glasses of beer per week. He actually did not drink much during the week and agreed that with a wage of five pounds per week, this limited his alcohol consumption. Mr Pigdon stated that when revealing his drinking habits to Associate Professor Mattick, it was not pleasant portraying himself in a bad light and accordingly, he believed that he probably minimised the estimates of alcohol consumed at various periods during his life. Mr Pigdon was clear however that he never borrowed money so that he could drink. He concluded that during this period, he never actually ceased drinking alcohol, but was limited in his alcohol consumption because of various circumstances.

28. Mr Pigdon agreed with the Respondent's proposition that he drank less after he married in 1954. In Queensland at that time, he was drinking two bottles of beer per night in summer. After living in Queensland, Mr and Mrs Pigdon returned to live in Melbourne with his parents-in-law. As Mr Pigdon's parents-in-law did not consume alcohol, he did not drink much either. "When in Rome, do as the Romans do", Mr Pigdon stated. He explained that if he had consumed too much alcohol his parents-in-law would have thrown him out. Later, when he moved to Wagga Wagga, Mr Pigdon had two children and he stated that he reduced his alcohol consumption because he undertook many activities with his children. Mr Pigdon reiterated that he would always try to be responsible about his drinking. He supposed he was an "opportunist drinker" and in any event, believed he could control his alcohol consumption well. Mr Pigdon told the Tribunal that he was never in any fights, thrown out of an hotel or charged with driving under the influence of alcohol. Mr Pigdon did recall that there was one occasion when he had consumed too much whisky one night after work and was very "hung over" the next day at work. He "just stood there". The employer at that time was "G. Hartwig & Co Pty Ltd" and it was the culture of the employees of that company to drink heavily.

29. In the 1980s, Mr Pigdon's mother-in-law commenced living with him and his wife. She was confined to a wheelchair. Mr Pigdon had stopped working by then, there were less available finances and he again consumed less alcohol. Mr Pigdon also recalled, though he was somewhat confused as to the date, that in either 1985 or the 1990s, he suffered from gout. Mr Pigdon later stated he had gout when he moved to Coffs Harbour in 1995/1996.

30. Mr Pigdon told the Tribunal that he ceased drinking in 1996 following advice from his then General Practitioner, Dr More, to stop alcohol consumption because it was interfering with his health, particularly his heart and also hypertension.

31. Mr Pigdon told the Tribunal that he first had hypertension diagnosed, he thought, in about 1985, though again these details were somewhat confused. Mr Pigdon thought the diagnosis of hypertension came from Dr Oliver in Wagga Wagga and this was when he was first prescribed with medication. Mr Pigdon has continued to take medication for hypertension ever since. Mr Pigdon believed he first consulted his present General Practitioner, Dr More, in 1988 when he first moved to Coffs Harbour. Again, Mr Pigdon indicated that he was somewhat confused about the dates of various occurrences in his life. Mr Pigdon believed that he had investigations undertaken in relation to his heart when aged 69 years which would seem to be in about 1995. He first saw a heart specialist, Dr Waites, he thought, in December 1995 and subsequently had heart surgery on 22 February 1999.

32. In terms of his current situation, Mr Pigdon described having a good relationship with his wife, children and grandchildren. Mr Pigdon stated that he keeps very much to himself though he has good relationships with his neighbours. Within his home, Mr Pigdon does not have mobility aids but he has had recent falls in the bathroom, most recently two months ago. Mr Pigdon used a walking stick after his heart surgery but not recently. There are a number of external stairs at his house, 12 steps in the front and the back and he told the Tribunal that he has also had a few falls on those steps. Mr Pigdon continues to drive his car, but only for a maximum of one hour. He can drive to Coffs Harbour from his home, a distance of 30 kilometres. Mr Pigdon stated that he mostly drives to the shops and to the chemist and locally. Further, Mr Pigdon stated that he is able to ride a bike to collect the newspaper.

33. In terms of domestic chores, Mr Pigdon shares the mowing of the lawns with his wife though these are very small areas. He carries wet washing out to the line for Mrs Pigdon but he is not able to hang out the washing. Mr Pigdon stated that he likes to keep busy by tending to the house and keeping the shed tidy. Mr Pigdon is able to prepare his own breakfast and assists his wife around the house generally, though he does not vacuum. When having to attend doctors' appointments in Sydney, he drove on one occasion but stated that he would never be able to do that again. Other medical tests in Sydney have been attended by traveling either by train or flying.

34. In relation to social activities, Mr Pigdon used to play bowls but does not do so anymore. He tends to keep very much to himself and his daughter has often told him that he should be more social and go out more. Mr Pigdon stated that he knows he should go out more but often he just cannot manage it. He said that he has been really trying not to be so isolated but there are times when he just cannot be bothered with people. Mr Pigdon is currently a member of the local RSL Club and would attend meetings once per month. He stated that he would occasionally go out with Mrs Pigdon to dinner and believed he would take her to a theatre production if she wanted to go. Mr Pigdon stated that he does not have any friends and mainly mixes with his family. When discussing social activities, Mr Pigdon stated that he often does not have the "ticker" to undertake those activities, a term which the Tribunal took to mean related not only to his physical attributes but also his emotional ability to undertake social activity. Mr Pigdon stated that so many things have happened to him over the years. He said that he would attend his 75^th Birthday in October 2002 if a party were to be held. He stated that he would have to attend because he must get over how he feels. Visitors will pop in to see his wife and Mr Pigdon stated that on such occasions he would talk to them. Mr Pigdon stated that he does not feel lonely but just "potters about". He could read for approximately half an hour, then he would undertake some other activity such as watching television or doing work around the house.

Medical and other evidence

Dr R Delaforce, Consultant Psychiatrist

35. Dr Delaforce provided a report dated 10 September 1997 (T12). Dr Delaforce noted that Mr Pigdon's service in the army had involved him in being in New Britain where he was engaged in "cleaning up" exercises, including guarding Japanese prisoners. Dr Delaforce described Mr Pigdon's involvement in some stressful incidents, mainly his being alone at night guarding Japanese prisoners and fearing being attacked. Dr Delaforce noted that Mr Pigdon did not have any psychiatric or counselling treatment or use of psychotropic medication and there were no significant problems with substance abuse. Dr Delaforce opined that Mr Pigdon did not have any mental disorder.

Dr A Hordern, Consultant Psychiatrist

36. Dr Hordern provided a report dated 6 April 1998 (T17). Dr Hordern noted that Mr Pigdon impressed as a sincere, truthful informant who gave as full and accurate an account of his recent symptoms as he was able to in the light of their very long duration ("50+ years"). Dr Hordern noted that in describing his experiences in New Britain, Mr Pigdon broke down in tears several times and stood up and walked away for a minute or two when relating, in particular, his memories of New Britain. Dr Hordern did not consider that Mr Pigdon exaggerated or dramatised his symptoms, rather he tended to down play and minimise them. Mrs Pigdon was interviewed separately and told Dr Hordern about Mr Pigdon's personality and behaviour since they had first met in 1950, four years before they were married.

37. In relation to his recent symptoms, Dr Hordern noted that Mr Pigdon stated that he had long been an "anxious" individual. Mr Pigdon did not make friends easily and kept a low profile. While he usually went to bed at about 9pm, he subsequently woke up at 3 a.m. Mr Pigdon told Dr Hordern that he seldom dreamt. Mr Pigdon further stated he seldom drove at night because he hated nights as it reminded him of his experiences in New Britain. Mr Pigdon told Dr Hordern that for a long time after his war service, he had dreamt about his experiences and had recollections of them. Dr Hordern noted Mr Pigdon's army duties in Rabaul and that the other soldiers smoked heavily causing Mr Pigdon to join them in those pursuits. Dr Hordern noted Mr Pigdon was allocated to duties at a prisoner of war camp where he estimated that there were 97,000 captive Japanese soldiers in the area. Mr Pigdon was required to guard some 12 Japanese prisoners between 9am to 5pm. The prisoners were digging up weeds and performing other tasks. At night, Mr Pigdon told Dr Hordern that he had to patrol and to guard the stores and the prisoners. Guard duties were undertaken with a rifle but without ammunition. Mr Pigdon explained to Dr Hordern that he was told about the history of the Sandakan prison camp and the gross maltreatment of Australians who were provided with insufficient nourishment, brutally punished and sent on a death march from which only two of the 2,000 survived. In Rabaul, Mr Pigdon noted that he was constantly apprehensive and never turned his back on the Japanese. There were prisoners who were tried during this time and were hanged.

38. Mr Pigdon had also told Dr Hordern that just prior to going to New Britain, his mother died from a long-term fatal illness. He was very upset when describing this to Dr Hordern and broke down in tears. Mr Pigdon further described to Dr Hordern a difficult situation in which he was involved in a confrontation between Chinese civilians and Chinese Military. Mr Pigdon told Dr Hordern that there were some 2,000 Chinese present and his comrades had to take prisoner one "Chinaman". Mr Pigdon stated that his officer had told him to fix his bayonet and if necessary to stick it into the Chinese prisoner's neck. The point of the bayonet touching the Chinese prisoner's neck had quietened the "Chinaman" and quelled the crowd, Mr Pigdon recalled.

39. On discharge from the Army in February 1947, Mr Pigdon related to Dr Hordern that he had been restless and unsettled. At that time, he was smoking cigarettes heavily and drinking to excess. Mr Pigdon told Dr Hordern that his frequent nightmares of his army experiences in Rabaul became less frequent but that he still had intrusive recollections about his time there and never lost his fear of the dark. Mr Pigdon told Dr Hordern that he always avoided talking about his experiences and that he was jumpy and tense at times but had combated these feelings, burying himself in his work.

40. Mrs Pigdon told Dr Hordern that her husband was shy, gentle and introverted. He seldom spoke to Mrs Pigdon of his experiences during the war but he had occurrences of malaria. He had over the years disclosed to Mrs Pigdon some of what she had described of his "horrific experiences". He had had bad dreams, Mrs Pigdon thought, after they were married in 1954. Mrs Pigdon also noted that when her husband spoke about his mother, he would often talk about his experiences in New Britain and she surmised that in his mind the two painful and distressing experiences were linked.

41. Dr Hordern diagnosed Mr Pigdon as suffering from a chronic moderately severe post traumatic stress disorder resulting from the impingement of the series of traumatic experiences during his army service in Rabaul. In 1946 he was a 19 year old who had left school to go to work in the family bakery at the age of 13 and had never been away from home before. Dr Hordern noted that post traumatic stress disorder as he had diagnosed, met the diagnostic criteria for the American Psychiatric Association's Diagnostic and Statistical Manual, (4th edition) with ICD code 309.01. Further, Dr Hordern concluded that in Mr Pigdon's case, his post traumatic stress disorder was engrafted on an unresolved grief reaction resulting from the death of his mother. Dr Hordern assessed the Guide rating (4^th edition) at 30 points. Dr Hordern concluded that it was unlikely that Mr Pigdon would improve or respond to treatment. He did recommend that Mr Pigdon would benefit from unburdening himself about his feelings and that this could probably be most appropriately done with Dr A More, Mr Pigdon's General Practitioner. If Mr Pigdon was to become more overtly depressed and his insomnia persisted, treatment with an anti-depressant such as "Aurorix" and an hypnotic may be beneficial.

42. In making his conclusions, Dr Hordern noted the opinion of Dr Delaforce in his report of 10 September 1997. Dr Hordern noted that as Dr Delaforce did not appear to have obtained an adequate psychiatric history from Mr Pigdon, his report was of little value. Dr Hordern opined that Mr Pigdon's demeanour at interview and the account provided by Mrs Pigdon at a separate interview "clinches" the diagnosis of post traumatic stress disorder.

Dr M G Miller, Consultant Physician

43. Dr Miller provided a report dated 12 May 1998 (T17, p102). Dr Miller noted that in relation to Mr Pigdon's claim for post traumatic stress disorder, Dr Hordern had diagnosed post traumatic stress disorder. Dr Miller noted a history from Mr and Mrs Pigdon of Mr Pigdon being "anxious and rather obsessional", having trouble with early wakening but not having nightmares now, although they were present in the earlier years. Dr Miller noted that Mr Pigdon suffers from weekly flashbacks to his war service ever since he had to patrol the prison quarters in the dark in Rabaul. He has problems with the dark and Dr Miller noted that Mr Pigdon is a worrier and has problems mixing. Dr Miller reported a history of Mr Pigdon preferring to be alone. Dr Miller also noted a history of gout which improved considerably when Mr Pigdon gave up alcohol and also a history of hiatus hernia which was treated surgically in 1985. At that time, gallstones were found and removed. Mr Pigdon reported no symptoms now referable to his hiatus hernia. Dr Miller noted Mr Pigdon's shortness of breath which he considered related not only to his accepted condition of chronic-bronchitis but also to his obesity and hypertensive heart disease. Dr Miller concluded that if Mr Pigdon's claimed disability of post traumatic stress disorder was accepted as being related to his war-service, then he considered Mr Pigdon's alcohol abuse would satisfy the Statement of Principles. Further, Dr Miller concluded that Mr Pigdon's hypertension would then satisfy the Statement of Principle for hypertension referable to his alcohol consumption.

44. In relation to Mr Pigdon's accepted conditions, Dr Miller opined that the total impairment would be 33 points rounded to 35, made up of 23 points for chronic bronchitis, 5 points for his non-melanotic malignant neoplasm of the skin, 3 points for bilateral sensori- neural hearing loss and 5 points for tinnitus. The relevant lifestyle rating, Dr Miller concluded, would be 3 and this would produce a Disability Pension at 60 per cent of the General Rate.

45. If post traumatic stress disorder was considered to be an accepted condition, then Dr Miller opined that the appropriate rating would be 29 points and the lifestyle rating would increase to 4 points. Further, Dr Miller opined that if Mr Pigdon had accepted as war-caused conditions, obesity and ischaemic heart disease then this would attract a cardio-respiratory impairment rating of 40 which, with the 29 points for post traumatic stress disorder and the other accepted conditions, would produce an impairment of 57 points with 10 points for impotency, attracting a combined impairment rating of 67 impairment points with a lifestyle remaining at 4 points which would produce a Disability Pension at 100 per cent of the General Rate. Dr Miller concluded that Mr Pigdon did not satisfy the criteria for Extreme Disablement Adjustment.

Associate Professor R P Mattick, Clinical Psychologist, Director of Research, National Drug and Alcohol Research Centre, University of New South Wales

46. Associate Professor Mattick provided a report dated 7 November 2000 (Exhibit R1). Associate Professor Mattick interviewed Mr Pigdon with the aim of assessing his psychological well being, his alcohol consumption and the relationship of two stressful events which may have occurred during his period of operational service. Associate Professor Mattick noted that Mr Pigdon denied any personal, family or social problems or life stresses apart from the death of his mother, which he told Associate Professor Mattick was "devastating". Associate Professor Mattick took a history of Mr Pigdon's service in Rabaul noting his guard duty of Japanese prisoners, volunteering for a firing squad and of having to take a Chinese civilian in for questioning while being confronted by a surging crowd of Chinese. Associate Professor Mattick noted Mr Pigdon's orders to push his bayonet into the neck of the Chinese man if the crowd surged forward. Associate Professor Mattick recorded that in relation to the incident with the Chinese man, Mr Pigdon stated he was "cool, cool as a cucumber" and that there was no effect on him from this incident on service.

47. Associate Professor Mattick reported that Mr Pigdon was caused emotional distress when hearing from the War-Crimes Tribunal about what had happened to Australian prisoners of war at the hands of the Japanese. He noted such atrocities as servicemen being bashed, starved, tortured and sometimes beheaded. Associate Professor Mattick noted that Mr Pigdon did not report nightmares. Mr Pigdon was worried by the fact that the Australian military did not try to rescue Australian soldiers held prisoners by the Japanese.

48. In relation to Mr Pigdon's drinking history, Associate Professor Mattick noted that Mr Pigdon consumed alcohol in New Britain, consuming two large bottles of cascade beer which were issued each week. Mr Pigdon was able to obtain more beer than the ration through older servicemen and estimated that he drank three large bottles of beer per day. Associate Professor Mattick noted discrepancies in the discussion about beer consumption. This confusion had also been noted by the Board.

49. Associate Professor Mattick recorded Mr Pigdon's history after discharge from the Army as living at Swan Hill in Victoria with an uncle who did not drink. Mr Pigdon reported going to the local hotel every fortnight. He did this in similar fashion for approximately six months. Mr Pigdon then moved to East Malvern and recommenced his training as a panel beater. Mr Pigdon reported to Associate Professor Mattick that he would drink at a hotel once per week on a Saturday staying all day and consuming between 30 and 40 seven or ten ounce glasses of beer. Mr Pigdon's alcohol consumption was limited because at that time he earned only five pounds per week. Mr Pigdon also stated to Associate Professor Mattick that he was responsible in his job so far as the consumption of alcohol was concerned. Mr Pigdon reported that he next moved to Melbourne and drank daily after work, consuming six to eight seven ounce glasses of beer during one hour up to 6pm. Mr Pigdon stated to Associate Professor Mattick that he drank heavily because of the people he associated with through his work.

50. Associate Professor Mattick noted that after Mr Pigdon married in 1954, he moved to Queensland and reported to Associate Professor Mattick that he drank less there. His consumption at this time involved one dozen bottles of beer per week. Once a week, Mr Pigdon reported going to a hotel and having one glass of beer on the way home. This pattern continued for approximately five years. Associate Professor Mattick's history was that Mr Pigdon then returned to Melbourne and lived with his parents-in-law who did not drink. Next, Mr and Mrs Pigdon moved to Wagga Wagga and they lived on top of a panel beating shop, "G Hartwig & Co Pty Ltd". Mr Pigdon stated that he did not drink much because he had two children. At night he would have a schooner of beer at the local hotel and stay longer if he was meeting someone in relation to business. Once a week he would consume six or seven middies of beer. Associate Professor Mattick noted that some 15 years later, Mr Pigdon was diagnosed with hypertension.

51. Mr Pigdon had reported that staff at G Hartwig & Co Pty Ltd drank heavily and twice per month, the staff would have a social event. Mr Pigdon would drink whisky on such occasions but he "never made a habit it". Mr Pigdon stated that he drank once or twice per month in that fashion for two years, ceasing because he was worried that drinking whisky would cause him harm and "besides, I always tried to be responsible and I worked hard".

52. After the diagnosis of hypertension, Mr Pigdon thought that his alcohol consumption decreased. He also noted that if the weather was cold, he would drink less than if it was warm. He may have consumed a schooner of beer on hot days five days per week but did not drink much over weekends. During 1983, 1984 and 1985, his pattern of consumption gradually changed from the time his mother-in-law came to live with the family. Mr Pigdon stated to Associate Professor Mattick that his mother-in-law required a wheel chair and his alcoholic consumption tapered off because his mother-in-law was very ill and he was trying to make do financially. At that stage Mr Pigdon had no pension through he had retired. Once or twice a week at that time he would have one or two schooners of beer but he did not classify himself at that time as a drinker as he could not afford it. In 1987, Mr Pigdon attended the Red Rock Bowling Club where he played bowls and consumed ten middies of beer once or twice a week, but not at other times. He did not attend hotels but would take 12 cans of beer home to drink and these cans would last one week or more with him consuming one or two cans per night. As Mr Pigdon was suffering gout, his consumption decreased but in 1995 or 1996 his coronary heart symptoms were also increasing. Mr Pigdon had told Associate Professor Mattick that his life was changing because of gout and coronary heart disease. Eventually, beta-blocking medications were prescribed and his drinking "naturally tapered off especially as I stopped beer because of the gout". Mr Pigdon was told by medical practitioners that he should not drink, so he stopped. He did recall that on one occasion after coronary artery by-pass surgery, he did drink. Mr Pigdon then suffered a clot and he has not drunk any alcohol since that time.

53. Associate Professor Mattick assessed Mr Pigdon for alcohol abuse under DSM IV and opined that on the evidence, Mr Pigdon does not suffer from alcohol abuse. His use of alcohol has not resulted in any failure to fulfil major role obligations at work and he has not used alcohol in situations where it would be physically hazardous. Mr Pigdon also denied alcohol-related legal problems or interpersonal problems.

54. In relation to a diagnosis of alcohol dependence under DSM IV, similarly Associate Professor Mattick noted that Mr Pigdon did not have any marked tolerance or withdrawal symptoms and denied any persistent desire or unsuccessful attempts to cut down or control his drinking. Mr Pigdon also denied being drunk for long periods of time or spending long periods recovering from his drinking. Again Mr Pigdon denied that he has given up any important social, work or recreational activities because of his drinking and denied that he has used alcohol despite having persistent or recurrent physical or emotional problems caused or worsened by alcohol. Therefore Mr Pigdon is not alcohol dependent, Associate Professor Mattick concluded.

55. Associate Professor Mattick also assessed Mr Pigdon for post traumatic stress disorder under DSM IV and in terms of the relevant Statement of Principles, Associate Professor Mattick opined that Mr Pigdon did not experience any events which represented actual or threatened death or serious injury to himself or anyone else and he did not react to events described earlier by him with intense fear, helplessness or horror. Further, Associate Professor Mattick noted that Mr Pigdon denied having upsetting memories of the events that occurred in Sandakan and he further noted that Mr Pigdon had stated that while he was in Wagga Wagga, he "always squashed it out of my memory" and it only came to mind recently, so he decided not to go to RSL meetings. Dr Miller reported of Mr Pigdon that he also denied having any unpleasant dreams or flashbacks and denied that if he were reminded of any events he would become anxious or upset. He stated that he was not able to think of Sandakan. Mr Pigdon denied having any sense of a foreshortened future and also denied avoiding activity, places or people and denied that he had any loss of memory of events. While Mr Pigdon noted he suffered sleep disturbance when he thought about soldiers in Sandakan, he denied irritability or any problems with hyper-vigilance, exaggerated startle response or lack of concentration. He denied that he was distressed day to day and stated "life goes on". Associate Professor Mattick could find no signs of depressive disorder or of Dr Hordern's diagnosis of post traumatic stress disorder. Associate Professor Mattick noted that Dr Hordern did not address the post traumatic stress disorder diagnostic criteria. Associate Professor Mattick also noted that when he examined Mr Pigdon, he sat comfortably, calmly and laughed often when recalling war experiences. There was no evidence of any "anxiety or distress".

56. Associate Professor Mattick concluded that while others had diagnosed post traumatic stress disorder, in his opinion, Mr Pigdon was not exposed to any events which qualify as traumatic events under the criteria for post traumatic stress disorder either under DSM-IV or under the relevant Statement of Principles. Mr Pigdon had never met the criteria for post traumatic stress disorder, Associate Professor Mattick opined. Thus Associate Professor Mattick concluded that Dr Hordern and Dr Miller were in error and their reports were wanting in detail. While not denying Dr Miller's report that Mr Pigdon may have been fearful and was distressed by the fact that Japanese servicemen had committed atrocities, this does not constitute a post traumatic stress disorder and does not mean that Mr Pigdon is generally distressed. It does indicate that when he thinks about this event he becomes distressed. This is not, in Associate Professor Mattick's opinion, the equivalent of a psychological or ongoing emotional disturbance or disorder. While Mr Pigdon was also emotionally upset because of the death of his mother, Associate Professor Mattick again did not believe that Mr Pigdon suffered a psychiatric disorder because of that event. Associate Professor Mattick further concluded that while Mr Pigdon has drunk heavily from time to time, this has not been caused by war events and he does not meet the criteria for alcohol abuse or dependence.

Dr N J Schultz, Consultant Psychiatrist

57. Dr Schultz provided a report dated 21 November 2000 (Exhibit R2). Dr Schultz noted of Mr Pigdon's service in Rabaul, that he realised what horrors the prisoner of war camps had caused Australian prisoners because he saw many of them when he arrived in Rabaul and heard stories about what would have happened had the Japanese won the war. Dr Schultz noted Mr Pigdon's duties of guarding Japanese prisoners in the camps and releasing them and also of the ongoing war crime trials. He heard stories of cannibalism, starvation and brutality. Further, Mr Pigdon reported to Dr Schultz that he had realised that the Australian Government could have rescued Australian prisoners of war from their plight and he felt angry that the Government did nothing to help them. When he returned home to Australia in 1946, Dr Schultz reported that Mr Pigdon said that "he felt affected by his experiences". Dr Schultz further noted that Mr Pigdon stated:

"...The war had a terrible effect on me. I tried to live with it like everyone else. I joined the RSL but did not go to meetings because I didn't want to talk about it. If I did 't talk about it, I would cope better. By doing this I managed to cope for about fifty years and "then things went wrong". (Exhibit R2,p3)

58. Dr Schultz asked Mr Pigdon to tell him how things went wrong and Mr Pigdon stated,

"...It's pretty hard to explain, in fact I don't think I can..."

59. At interview, Dr Schultz reported that Mr Pigdon displayed no distress and seemed relaxed and comfortable. There was no evidence of formal thought disorder or delusional or suicidal ideas. Dr Schultz noted Mr Pigdon's history of guarding and managing the Japanese prisoners who were waiting trials for war crimes. Many of these people were executed by hanging but Mr Pigdon was not directly involved in that. Dr Shultz opined that after the war Mr Pigdon appeared to have settled into normal life with a job that he enjoyed and succeeded at. He had a wife and family with whom he enjoyed and maintained good relationships. Mr Pigdon had leisure activities with his family within normal limits. Dr Schultz acknowledged that Mr Pigdon has had excessive alcohol use in the past but does not drink at all now and has not done so for more than two years. Mr Pigdon did not at that time satisfy the DSM-IV criteria for an alcohol related substance abuse disorder, Dr Schultz concluded.

60. Dr Schultz noted that Mr Pigdon stated that he currently feels quite well, has a good social life, enjoys attending the RSL Club, does not have problems with anxiety and enjoys family life. He did not report symptoms consistent with post traumatic stress disorder, Dr Schultz concluded and Dr Schultz could not identify any other evidence of psychiatric or emotional disorder. The only emotional disturbance that Mr Pigdon reported was of his feelings of anger towards the Australian Government for failing, in his view, to take steps to protect the Australian soldiers who were held as prisoners of war.

Ms F Curdie-Evans, Consultant Occupational Therapist

61. Ms Curdie-Evans assessed Mr Pigdon on 16 January 2001 and provided a report dated 9 April 2001 (Exhibit A1).

62. Ms Curdie-Evans reported that Mr Pigdon is a man who provided information with a significant amount of detail. He reported to her that it had taken some time for him to regain "his composure" since attending previous medical assessments. He felt that he would not have been able to attend an examination by Ms Curdie-Evans had there not been time between the assessments, as he reported that these assessments had caused a significant psychological response.

63. In relation to post traumatic stress disorder, Ms Curdie-Evans provided a history of Mr Pigdon's suffering from flashbacks as a result of episodes he witnessed in service. He stated that he felt "guilty" and that the events he experienced "did affect my life". He stated that it has made him "quiet" and he avoids people. He stated that he had been able to cease drinking and smoking and these were the main processes of managing his stress. He stated that he has attempted to confront the feelings that he has been experiencing and has been using a book "How to Handle Stress". Mr Pigdon stated that he has been applying techniques from this book and there have been some changes within his life. He told Ms Curdie-Evans that he had previously ceased attending the RSL as this was a reminder of his service and it upset him.

64. In relation to Mr Pigdon's accepted disabilities, Ms Curdie-Evans noted that for chronic bronchitis, Dr A More had indicated that Mr Pigdon was symptomatic at a level of 3/4 METS. At an age of 74, which was the time of Ms Curdie-Evans' assessment, a functional impairment rating of 36 points was considered appropriate. From a spirometry test of 12 October 1998, FEV1 of 1.7 and FVC of 1.8 were indicated. Ms Curdie-Evans assumed a height of 168 centimetres and a weight of 88.5 kilograms. He was 72 years of age at the time of the assessment. The expected FVC is 3.61 and FEV1 is 2.52. These provided a percentage FVC of 50 per cent and FEV1 of 68 per cent. Using the percentage for FVC and with reference to Table 1.4 of the Guide, an impairment rating of 55 points was given. Following the processes of Chapter 1 of the Guide, Ms Curdie-Evans assessed an overall impairment of 55 points and using Table 1.10, a further 5 points was applied.

65. In relation to non-melanotic neoplasm of the skin, Ms Curdie-Evans stated that the appropriate impairment is 10 points under Table 11.1 of the Guide.

66. In relation to bilateral sensorineural hearing loss with tinnitus, the most recent audiogram of 14 August 1997 indicated an age adjusted hearing loss of 5.1 per cent providing an impairment rating of 3 points (rounded). Tinnitus was assessed under Table 7.1.11 at 5 points.

67. In relation to ischaemic heart disease, Ms Curdie-Evans assessed an impairment rating of 20 points but as this specific Table impairment rating was of less value, the cardio-respiratory rating of 55 points was used.

68. In relation to the non-accepted condition of post traumatic stress disorder, if this were to be accepted, Ms Curdie-Evans opined that the appropriate assessment would be 28 points. Hypertension, if accepted, would attract a rating of 5 points under Table 2.1.1, Ms Curdie-Evans opined.

69. The combined impairment rating for Mr Pigdon's accepted conditions is:

Condition Guide Reference Impairment Points

Ischaemic Heart Disease and Chronic Bronchitis Chapter 1 55 points

Non-Melanotic Malignant Neoplasm of the Skin Table 11.1 10 points

Bilateral Sensorineural Hearing Loss Chapter 7 3 points

Tinnitus Table 7.1.11 5 points

TOTAL 63 points

70. For the accepted conditions, Ms Curdie-Evans assessed a lifestyle rating of 4 points which would then provide for the accepted conditions, a Disability Pension at 100 per cent of the General Rate. With the acceptance of post traumatic stress disorder rated 28 points and hypertension rated at 5 points, the combined impairment rating would be 74 points with a lifestyle rating assessed by Ms Curdie-Evans at five points. This would also provide a Disability Pension at 100 per cent of the General Rate but there would be no Extreme Disablement Adjustment as Mr Pigdon did not satisfy the statutory requirements. Ms Curdie-Evans noted that access to new Spirometry and audiograms would be beneficial in the calculation of Mr Pigdon's impairment rating.

Submissions

71. Mr Winship submitted that his first contention is that Mr Pigdon is entitled to a pension at 100 per cent at the General Rate. There was some discussion about the appropriate date of effect, with Mr Winship concluding the date of effect should be 30 March 1997, although he noted that Ms Curdie-Evans did not assess Ms Pigdon until 9 April 2001. Ms Breuer noted that the Respondent had no problem with the 100 per cent being backdated to the earlier date as long as there was evidence to support such an assessment. Ms Breuer was not going to put any submissions on that point, rather, her submissions on assessment would be on the Extreme Disablement Adjustment. It was further noted that Dr G M Miller had reported on Mr Pigdon on 12 May 1998 (T17). Critical to Mr Winship's submission was the acceptance of post traumatic stress disorder, whereas the subsequent claims for hypertension and psychoactive substance abuse were not so critical, he contended.

72. Considering the relevant Statement of Principles for Post Traumatic Stress Disorder, Mr Winship submitted that there are a number of symptoms which satisfied the diagnostic criteria. In this regard, Mr Winship referred to Mr Pigdon having persistent symptoms of increased arousal and of having difficulty in staying asleep. There is a long history of that and also of outbursts of anger. The anger was certainly indicated during the course of the Tribunal hearing, Mr Winship submitted. Going through the diagnostic criteria, Mr Winship submitted that Mr Pigdon satisfied the requirements of post traumatic stress disorder.

73. Mr Winship claimed that Mr Pigdon suffered a stressor, as defined, prior to the clinical onset of post traumatic stress disorder and that the circumstances of Mr Pigdon's service satisfied Factor 1(a) of the Statement of Principles, Instrument Number 15 of 1994. The onset occurred at sometime after he set foot in New Britain, Mr Winship contended. Factor 1(a) of Instrument Number 15 of 1994 states:

"...

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

...

"experiencing a stressor" means the following (derived from DSM-IV):

(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's or other people's, physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror;..."

74. Mr Winship contended that when Mr Pigdon arrived in New Britain, he was put in charge of guarding a group of Japanese prisoners of war and subsequent to that, there are a number of stressful events. Mr Winship submitted that Mr Pigdon experienced, witnessed and was confronted with a number of events which involved actual or threatened death or serious injury to himself and to others.

75. Referring to Dr Hordern's report, Mr Winship contended that Dr Hordern took a very similar history to the Respondent's psychiatrist, Dr Schultz and also to Associate Professor Mattick. Mr Winship noted that Dr Hordern's opinion as a Consultant Psychiatrist was that Mr Pigdon suffered chronic moderately severe post traumatic stress disorder resulting from a series of traumatic experiences from his Army service in Rabaul. Dr Schultz noted these events occurred when Mr Pigdon was 19 years old and who had been prior to service, working in the family bakery.

76. Mr Winship submitted that Mr Pigdon was a young inexperienced and vulnerable man who had had the protection of the family unit up to the point that he joined the Army. Upon arrival in Rabaul, Mr Winship submitted that Mr Pigdon was immediately confronted by the enemy in a frightening situation. Mr Winship noted Mr Pigdon's evidence that he grew to hate the Japanese and was shocked at the stench which he experienced on arrival, emanating from decomposing Japanese bodies. In those circumstances, Mr Pigdon was required to guard the enemy whom he did not trust. Mr Pigdon was fearful, particularly at night when walking through the camps and guarding the prisoners.

77. Of particular significance was an incident when, in Mr Winship's submission, Mr Pigdon was confronted by either serious injury or actual death to either himself or others. The incident occurred when he had to go into a mob of Chinese and extract a trouble-maker. The five hundred strong Chinese were intent on not allowing this individual from being removed from their presence. This would have been very frightening for a 19 year old man of such vulnerability and background, Mr Winship submitted.

78. Referring to the reports from Associate Professor Mattick and Dr Shultz, Mr Winship submitted that there were a number of inconsistencies. Mr Winship submitted that the Tribunal should not confine its attention only to the documentary evidence but take into account the Applicant's oral evidence to the Tribunal. Specifically, Mr Winship referred to page 4 of Associate Professor Mattick's report at paragraph 5.5. In Mr Winship's submission, there was a mob of Chinese people and from Mr Pigdon's evidence, there was only one trouble-maker removed, with the consequence that the mob moved forward in order to protect that person. In relation to Associate Professor Mattick's statement that Mr Pigdon was as "cool as a cucumber" during this event, Mr Winship submitted that this was not supported by Mr Pigdon's evidence and it seems that Associate Professor Mattick misinterpreted the meaning of what Mr Pigdon had said. As a general proposition, Mr Winship submitted that doctors' reports should be looked at for diagnostic purposes and to test the balance of probabilities in terms of being satisfied as to the diagnosis of the condition.

79. Mr Winship further referred to Associate Professor Mattick's conclusion at point 9.6 and his belief that Mr Pigdon was not exposed to any event which would qualify as a traumatic event as either defined in DSM-IV or the relevant Statement of Principles. Mr Winship strongly disagreed with this conclusion, given Mr Pigdon's evidence. Further, Mr Winship contended that a clinical psychologist can only really give an opinion as to whether diagnostic criteria for post traumatic stress disorder are satisfied or not. Many of the things in Associate Professor Mattick's report negative to Mr Pigdon were explained by the Applicant in his evidence and it was clear that Associate Professor Mattick had put a different emphasis on Mr Pigdon's statements. It was simply not true on all the evidence, Mr Winship submitted, for Associate Professor Mattick to be able to conclude that Mr Pigdon was not threatened with actual death or serious injury, particularly when noticing the incident involving the Chinese man. Further, Associate Professor Mattick's statement that Mr Pigdon denied having upsetting memories of events or unpleasant dreams and flashbacks was also not true, noting Mr Pigdon's evidence to the Tribunal and to other medical practitioners. Mr Winship reminded the Tribunal of how genuinely upset Mr Pigdon had become on a number of occasions when discussing various aspects of his operational service. Mr Winship also noted Associate Professor Mattick's record of Mr Pigdon's laughing when talking about his experiences and referred the Tribunal to the fact that Mr Pigdon was far from laughing when providing evidence to the Tribunal. He was in fact crying.

80. Mr Winship referred the Tribunal to Dr Shultz' very brief report. Mr Winship submitted that Dr Shultz' reporting of the facts was not inconsistent with other evidence provided by Mr Pigdon, yet Dr Schultz was incorrect in his reporting that Mr Pigdon's duties involved the releasing of prisoners. He was not involved in that at all but was involved in guarding Japanese prisoners.

81. Mr Winship urged the Tribunal to consider that while Mr Pigdon was not involved in incidents of hanging or shooting any Japanese prisoners or subjected to the atrocities of a prisoners of war camp, he was horrified by the stories that he heard and this impacted so strongly upon him that he was willing to volunteer for a firing squad to execute two Japanese prisoners. Fortunately, Mr Winship submitted, Mr Pigdon did not have to undertake these duties. The Tribunal should not however underestimate the impact of the setting and context of service for Mr Pigdon in New Britain. Mr Pigdon has not forgotten any of this and has in fact kept photographs of the two Japanese Captains whom he volunteered to shoot. Mr Winship further submitted that Mr Pigdon did not only report distress concerning the Australian Government's failure to rescue Australian prisoners of war, but also he reported the other specific incident of trying to extract the Chinese man from the Chinese mob in addition to the trauma of his guard duties.

82. In relation to Mr Pigdon's claim for psychoactive substance abuse or dependence, Mr Winship submitted that there is evidence that Mr Pigdon never consumed alcohol before he went to Rabaul. It was during his operational service that he commenced his alcohol consumption and noted that he could obtain as much alcohol as he wanted from the Sergeant's mess and the older soldiers.

83. Mr Winship submitted that Mr Pigdon satisfied Factor 1(a) of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994. Factor 1(a) of this Statement of Principles states:

"...

(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;

...

"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.

..."

84. Mr Winship submitted that there is a great deal of evidence that Mr Pigdon was drinking large amounts of alcohol in Rabaul in order to assist him to cope with his service.

85. In relation to the date of onset of psychoactive substance abuse, Mr Winship submitted that the Statement of Principles deals with daily use but it was difficult to quantify the amount of alcohol he consumed. In Mr Winship's submission, Mr Pigdon continued to use alcohol right through until 1996 when he ceased because of medical problems. In further discussion with the Tribunal about the onset of Mr Pigdon's psychoactive substance abuse, Mr Winship made the general submission that he takes exception to having to abide strictly with every single word of the Statement of Principles. All Mr Pigdon knows and has given in evidence is that he started to drink on service and continued to use alcohol to cope with his feelings of stress from service.

86. In relation to Factor 1(a) of the relevant Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Mr Winship submitted that there is much evidence of Mr Pigdon having subjective symptoms of increased stress while he was in Rabaul for seven months and that this has stayed with him for the rest of his life. So much so, that he cannot talk about it to some people without crying.

87. In relation to the claimed condition of hypertension, Mr Winship submitted that Mr Pigdon's circumstances satisfied Factor 1(b) of Instrument Number 83 of 1995 which states:

"...

(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension..."

88. Mr Winship acknowledged that he may not be able to put a strong submission in relation to hypertension and noted that the Tribunal would, if this condition were accepted, have to accept firstly that Mr Pigdon had psychoactive substance abuse as a war-caused condition. If this was accepted, then the relevant factor for hypertension required daily consumption of alcohol and the evidence was that there was no clear statement by Mr Pigdon that he actually consumed alcohol on a daily basis. Further, in relation to the issue of the onset of hypertension, Mr Winship noted that there was no clear evidence about the actual date of onset, though the date of 1985 had been mentioned as being an occasion when Dr Oliver in Wagga Wagga had diagnosed high blood pressure and prescribed medication.

89. In relation to Mr Pigdon's consumption of alcohol, the evidence was that he would consume alcohol on some days during the course of a week. Therefore, Mr Winship submitted that he could not put any strong contention that Mr Pigdon was drinking on a daily basis but certainly the submission was that Mr Pigdon was drinking a great deal in an average week. There was considerable evidence that Mr Pigdon undertook binge drinking of numerous seven-ounce glasses of whisky and on one occasion, on a Saturday, Mr Pigdon had lost count as to his whisky consumption. It would be unfair, Mr Winship asserted, that if psychoactive substance abuse was found to exist, then hypertension was not accepted because Mr Pigdon was not drinking every single day, meaning Monday, Tuesday, Wednesday, Thursday and the like.

90. Turning to the further matter of assessment, Mr Winship submitted that there was ample evidence to support a General Rate assessment to 100 per cent. In relation to qualification for Extreme Disablement Adjustment, Mr Winship noted that Mr Pigdon is over 65 years of age. On all of the evidence provided by Mr Pigdon, and noting the assessments by Dr Miller and Ms Curdie-Evans, Mr Winship submitted that Mr Pigdon reached an impairment rating of 70 points. Dr Miller is, from his curriculum vitae, clearly a physician who has extensive medical experience and clinical practice and has been dealing with veterans for in excess of 15 years. Dr Miller also has a great deal of experience with geriatrics and persons suffering from alcohol abuse and dependence. Accordingly, Dr Miller's opinion should be highly regarded.

91. Considering the Lifestyle Effects, Mr Winship submitted that Mr Pigdon satisfied a rating of six points but he did not go through each individual lifestyle effect. Mr Winship referred the Tribunal to the important beneficial nature of the Act and that with this in mind, and considering in an objective way all the evidence, the Tribunal should be able to conclude that Mr Pigdon satisfied the six points of the various lifestyle categories. The Extreme Disablement Adjustment would then be payable with effect from the date of Ms Curdie-Evans' report, 9 April 2001, Mr Winship submitted.

92. Mr Winship concluded his submissions by discussing the way in which the veterans' jurisdiction is tending, in that it is becoming very legalistic and far removed from what he considered to be the beneficial approach which should be taken in veterans' matters, not reliant on more and more legalisms and legal interpretations.

93. Ms Breuer's submission first dealt with post traumatic stress disorder. Ms Breuer submitted that Mr Pigdon does not have any psychiatric condition and relied upon reports of Dr Delaforce, Dr Schultz and Associate Professor Mattick. While Ms Breuer noted that Mr Pigdon was truthful, that did not assist him in satisfying the Statement of Principles concerning Post Traumatic Stress Disorder which was required by the legislation. Ms Breuer submitted Mr Pigdon was a veteran who was most upset and angry with the manner in which Australian prisoners of war were treated by the Japanese in addition to the fact that the Australian Government should have done more to rescue them. Ms Breuer submitted that it was when discussing those matters that Mr Pigdon cried and it was the only time that he showed stress. Ms Breuer noted that when Mr Pigdon was questioned about his lifestyle and asked how he felt, he would always discuss his feeling concerning the way Australian prisoners of war were treated. Mr Pigdon is a person, Ms Breuer submitted, who needs to express those feelings but that does not mean that he has a psychiatric disorder. People become angry and upset about various things in their lives and that is normal, Ms Breuer contended. The issue for the Tribunal is however, whether or not Mr Pigdon's feelings, including his anger and distress are pathological, that is, actually a disease or rather whether his expressions of distress are a normal reaction.

94. Considering specifically the diagnostic requirements for post traumatic stress disorder as required in the relevant Statement of Principles, Ms Breuer relied on the decision by Whitlam J in Benjamin v Repatriation Commission (2001) 64 ALD 411, in which the standard of proof for diagnosis must be decided on the balance of probabilities. This was supported by the decision in Repatriation Commission v Gosewinkel (1999) 59 ALD 690. Ms Breuer noted that Whitlam J in Benjamin v Repatriation Commission (supra) had the benefit of the decision in Repatriation Commission v Budworth (2001) 33 AAR 476 and Meehan v Repatriation Commission (2001) 64 ALD 366 and Whitlam J disapproved of both of those decisions in Benjamin (supra). While there were differences of opinion in the Federal Court at the time of hearing in relation to what standard of proof should be applied to the issue of diagnosis, Ms Breuer submitted that whatever standard of proof the Tribunal used, there needs to be evidence which went to each element of the diagnostic criteria in the Statement of Principles. Ms Breuer submitted that it was not possible to infer or invent evidence and in this regard relied on the Federal Court decision in Connors v Repatriation Commission (2000) 59 ALD 61, which noted that each element within the factor of the Statement of Principles must be met.

95. Ms Breuer submitted that the Tribunal must determine a date of onset for post traumatic stress disorder, at which time all the diagnostic criteria have been met. The Tribunal was referred by Ms Breuer to the decision in Re Robertson and Repatriation Commission (1998) 50 ALD 668. In that case, the Tribunal concluded that the clinical onset of a disease is either when a person becomes aware of some feature or symptom which enables the doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

96. Looking at the requirements of the diagnostic criteria contained within the Statement of Principles, Ms Breuer first considered paragraph a(i) which requires that for post traumatic stress disorder to be present, 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. Ms Breuer stated that this is an objective test. The Federal Court decision in Repatriation Commission v Budworth (supra) did not address, in Ms Breuer's submission, that aspect of the Tribunal decision but subsequent decisions have consistently held that paragraph (a)(i) is an objective test while paragraph (a)(ii) is a subjective test. This conclusion was considered in a number of Tribunal cases including Re Mulvaney and Repatriation Commission (AATA 272, 21 April 1998); Re Powell and Repatriation Commission [2000] AAT 385 and Re Repatriation Commission and Freeman [2000] AATA 727.

97. Referring to the objective test in (a)(i), in terms of the Australian prisoners of war, and the way they were treated, Ms Breuer submitted that Mr Pigdon did not experience or witness or was not confronted with such treatment. Mr Pigdon learnt of the treatment of Australian prisoners of war but it was not a threat to him nor did not cause him harm, Ms Breuer submitted. He was upset and distressed but that was not the meaning contained within the objective test of (a)(i). Ms Breuer reminded the Tribunal that the issue to be considered was whether or not the veteran had post traumatic stress disorder which is a serious and often lifelong psychiatric condition. That is what Associate Professor Mattick and Dr Schultz were contemplating when writing their reports.

98. In terms of the definitional requirement contained in paragraph (a)(ii), which is the subjective component of a person's response to a trauma involving intense fear, helplessness or horror, Ms Breuer submitted that the Tribunal did not hear evidence from Mr Pigdon that that was how he responded. He was upset and distressed, but he did not express feelings of intense fear, helplessness or horror. Specifically in relation to the Japanese, Ms Breuer submitted that Mr Pigdon did not respond with intense fear, helplessness or horror. For discussion of these issues, Ms Breuer referred the Tribunal to the decisions in Re Saunders and Repatriation Commission [2000] AATA 727 and Re Maier and Repatriation Commission [2001] AATA 117.

99. Ms Breuer submitted that in relation to the incident with the Chinese man, while the Tribunal might consider there was more of a direct threat to Mr Pigdon, this event occurred after the War. From Mr Pigdon's evidence, Ms Breuer submitted that the way he described it, it was a situation that was quickly and easily contained and therefore it could not be considered an incident that involved serious threat or injury as required by paragraph a(i). Furthermore, in relation to paragraph (a)(ii), while Mr Pigdon did say that he was scared, there was no evidence of his responding with intense fear, helplessness and horror. Ms Breuer submitted that there was a difference between being scared and a person responding with intense fear, helplessness and horror and reminded the Tribunal that post traumatic stress disorder is a serious psychiatric condition with life-long consequences. Once Mr Pigdon had experienced the particular event, as he told Associate Professor Mattick, he then got on with his duties. There was no evidence at any point that he did not do this. The manner in which Mr Pigdon behaved was appropriate to the circumstances and therefore he did not meet diagnostic criteria (a)(ii).

100. Referring to the other diagnostic criteria contained within the Statement of Principles concerning Post Traumatic Stress Disorder, Ms Breuer submitted that Mr Pigdon does not, on the evidence, show the persistent symptoms sufficient to meet the criteria. In this regard, Ms Breuer noted that there was no evidence that Mr Pigdon has dreams. While Ms Breuer noted that Mr Pigdon woke up at night at about 2 or 3 am, his evidence was also that now when he woke up, he was not thinking about his army service. The Tribunal must be mindful, Ms Breuer submitted, that it has to decide whether Mr Pigdon has a psychiatric condition today as opposed to a psychiatric condition sometime ago. Both Dr Schultz and Associate Professor Mattick report that Mr Pigdon does not have dreams or nightmares about his service and that is what Mr Pigdon also said. Dr Hordern's report differs because Dr Hordern actually reports that Mr Pigdon has nightmares or dreams about his service, but Ms Breuer noted that this was not the evidence to the Tribunal. There is also no evidence that Mr Pigdon experienced any reliving experiences and there is no evidence that Mr Pigdon has any avoidance behaviour in relation to prisoners of war (paragraphs (b) and (c)), Ms Breuer submitted. While he did avoid the RSL for some time, Mr Pigdon has now gone back to the RSL. He was in fact angry with the RSL because of its lack of interest. In terms of the criteria contained in paragraph (d), Ms Breuer submitted that there is no evidence of irritability, outbursts of anger, difficulty in concentrating, hypervigilance or a startle response. In terms of the diagnostic criteria contained within paragraph (e), there is no evidence that the symptoms were endured for more than one month. Further, in relation to paragraph (f), there is no evidence that the disturbance caused clinically significant distress or impairment in social, occupational or other important areas of functioning. From Dr Schultz' opinion, it is clear that Mr Pigdon's working life was not affected, nor was his home life, Ms Breuer contended. While Mr Winship asserted that Mr Pigdon was distressed and upset about some awful things which had happened on service, being angry and upset and distressed does not mean that Mr Pigdon has a psychiatric disturbance, Ms Breuer further submitted.

101. Ms Breuer submitted that Associate Professor Mattick, Dr Schultz and Dr Delaforce found no psychiatric condition. Dr Schultz and Associate Professor Mattick acknowledge that Mr Pigdon is upset and angry and has had some unpleasant experiences, but that does not equate with pathology. Dr Miller, who is neither a psychiatrist nor psychologist, makes it clear in his report that he is not qualified to comment in relation to whether or not Mr Pigdon has post traumatic stress disorder.

102. Ms Breuer submitted that if the Tribunal were to find that Mr Pigdon does have post traumatic stress disorder, then it must determine whether or not there is a reasonable hypothesis connecting the condition to service and in this regard, must consider Factor 5(a) of the Statement of Principles.

103. In relation to the incident with the Chinese man, Ms Breuer submitted that there was no evidence one way or another that this occurred. Mr Winship was critical of Dr Shultz and Associate Professor Mattick in their reporting of this incident, but Ms Breuer submitted that in terms of those reports, Dr Schultz and Associate Professor Mattick can only report on what has been given to them and this should not be cause for criticism. Mr Winship had also raised that the evidence provided to the Tribunal is preferable to that provided in a clinical interview. Ms Breuer strongly disagreed with this submission, noting that in a clinical environment, there is a particular structure to the questions. Ms Breuer concluded that Mr Pigdon did not satisfy Factor 5(a) and therefore a reasonable hypothesis was not raised connecting post traumatic stress disorder to service.

104. In relation to the issue of psychoactive substance abuse and the relevant Statement of Principles, Instrument Number 5 of 1994, the evidence from Mr Pigdon was that he consumed a great deal of alcohol but there was no consistent pattern with his drinking. The fact that Mr Pigdon drank a lot does not mean that he satisfies the diagnostic criteria for psychoactive substance abuse which refers to the continued use of, in this case, alcohol, despite knowledge of having a persistent or recurrent social occupational, psychological or physical problem, for example, driving while intoxicated. The diagnostic criteria must be met Ms Breuer submitted. Mr Pigdon never took any time off work because of drinking and he had told Associate Professor Mattick that he was responsible in terms of his drinking habits. On the evidence, Mr and Mrs Pigdon never argued about Mr Pigdon's drinking and he never got into fights as a result of his alcohol consumption. Further, Mr Pigdon was never in any trouble with the law because of his drinking and he would not borrow money to consume alcohol if he could not afford it. The evidence clearly indicates that Mr Pigdon had control of his drinking, Ms Breuer contended.

105. Ms Breuer submitted that Mr Pigdon's responsibility towards his alcohol consumption was also evident when his mother-in-law moved into the family home in the 1980s. When he ceased work, Mr Pigdon's alcohol consumption decreased because he could not afford it. When Mr Pigdon was concerned about the effects of whisky, he also stopped drinking it. Mr Pigdon told the Tribunal and Associate Professor Mattick that he would never let his alcohol consumption affect his family obligations. Furthermore, Mr Pigdon's evidence was that he did not drink much alcohol when it was cold and in particular, he did not drink when he had bronchitis. When Mr Pigdon was diagnosed with his heart problems he reduced his drinking on medical advice and ceased drinking altogether in 1996. Thus, in relation to the diagnostic criteria, Ms Breuer submitted that Mr Pigdon did not satisfy the criteria contained in paragraphs (a) or (b). On neither the balance of probabilities nor on the reasonable hypothesis standard of proof, Ms Breuer submitted that Mr Pigdon did not meet the diagnostic criteria. The Respondent relied on the reports of Associate Professor Mattick and Dr Schultz in support of this contention. Associate Professor Mattick clearly went through all the diagnostic criteria for psychoactive substance abuse as well as dependence and came to the conclusion that he did not meet either definition. Ms Breuer noted that Dr Schultz did not find a diagnosis of psychoactive substance abuse, nor did Dr Delaforce or Dr Hordern. The only medical support seemed to come from Dr Miller. Ms Breuer submitted that Dr Miller is not an expert in psychoactive substance abuse.

106. Ms Breuer further submitted that Mr Winship seemed to place the onset of alcohol abuse in Rabaul but there is no evidence that there is an onset of a drinking problem within the space of seven months.

107. If the Tribunal did accept that there was a diagnosis met for psychoactive substance abuse, then Ms Breuer submitted that in relation to Factor 1(a) of the relevant Statement of Principles, which requires the experiencing of a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, it is clear that the Applicant does not have the condition now as he had stopped drinking in 1996. Thus, even if the Tribunal found that Mr Pigdon did suffer from psychoactive substance abuse, no doctor or psychologist is stating that he currently has that condition. In relation to the definition of a stressor, Ms Breuer submitted that Mr Pigdon may possibly meet the definition as it is not difficult. The Respondent submitted however that one must look at Mr Pigdon's drinking history holistically and in such circumstances, his heavy drinking could not be attributed to his service. Ms Breuer contended that Mr Pigdon's evidence indicated that he was a follower rather than a leader and he would drink according to the circumstances that he was in. In the panel beating industry, there was a culture of heavy drinking. Mr Pigdon drank heavily in those circumstances. Other circumstances where Mr Pigdon's relatives or in-laws did not drink militated against Mr Pigdon consuming alcohol. On service, Ms Breuer submitted that Mr Pigdon drank because those around him also consumed alcohol. Therefore the connection to service is only a temporal one. An increase in alcohol only occurred after service and then there were periods of increase and decrease depending on, for example, his living and financial circumstances and the weather. Ms Breuer concluded that Mr Pigdon has never met the diagnostic criteria for psychoactive substance abuse in the form of alcohol and that Instrument Number 5 of 1994 was not satisfied.

108. Ms Breuer next considered the condition of hypertension and the relevant Statement of Principles, Instrument Number 83 of 1995. Referring to Factor 1(b) which would require that Mr Pigdon suffered psychoactive substance abuse involving the daily consumption of alcohol before and continuing at least until the accurate determination of hypertension, Ms Breuer submitted that as the Statement of Principles for Psychoactive Substance Abuse was not satisfied, therefore, noting the decision in McKenna v Repatriation Commission (1999) 86 FCR 144, that as the chain of Statements of Principles was not met, then Factor 1(b) of the hypertension Statement of Principles was not met. Furthermore, on the issue of the requirement of there being a daily consumption of alcohol, this was complex and there were two issues. Ms Breuer submitted in this regard that it is not clear from the authorities that the term "daily consumption" actually means every day and referred the Tribunal to the Federal Court decision in Gorton v Repatriation Commission (2001) 63 ALD 723, in which Stone J noted that daily consumption did not mean every day. In Mr Pigdon's case, the Respondent submitted that he did not drink consistently and that there needs to be a consistent pattern of drinking. Therefore, in relation to Factor 1(b), Ms Breuer submitted that it was not met. Furthermore, there is some difficulty in determining whether the accurate date of onset of hypertension was 1985 or 1988. Another issue in relation to psychoactive substance abuse relates to the fact that if the Tribunal found that Mr Pigdon met the diagnostic criteria for psychoactive substance abuse but agreed that the daily consumption issue had not been satisfied, then there would be an issue of determining what was the correct Statement of Principles and certainly the Federal Court decisions in Gorton and Williams (supra) would indicate that the later Statement of Principles should be considered.

109. Ms Breuer concluded however, that the Respondent considers that because Mr Pigdon does not meet the diagnostic criteria in the Statement of Principles for Pschoactive Substance Abuse, then he is not able to meet the specific Factor 1(b) of the Hypertension Statement of Principles and therefore hypertension could not be found to be war-caused.

110. In relation to assessment, Ms Breuer submitted that it is very clear that Mr Pigdon does not satisfy the requirements for Extreme Disablement Adjustment. Ms Breuer stated that she did not have any specific submissions on impairment points.

111. In relation to lifestyle rating and the various tables under Chapter 22 of the Guide, in relation to the "Personal Relationships" category, Ms Breuer submitted that Mr Pigdon spent time with his family and has a good relationship with his wife, children and grandchildren. He does not have a large social circle but his immediate relationships are good. Ms Breuer submitted that the correct rating would be 3 points to indicate moderately affected personal and social relationships.

112. In terms of the "Mobility" category, Ms Breuer noted that Mr Pigdon drives twice a week to the shop and helps his wife with the shopping. He is also able to ride a bicycle and has no problems catching the train or an aeroplane for appointments in Sydney. Ms Breuer submitted that the appropriate rating would be 4 points and although it is generous, it took note of the fact he has fallen on a number of occasions.

113. In relation to Mr Pigdon's "Recreational and Community Activities", Ms Breuer submitted that the appropriate rating would be 4 points to reflect that he does not have much social activity, apart from his going to the RSL Club meetings and plans for future dinners and taking out his wife.

114. In relation to "Domestic Activities", Ms Breuer noted that Mr Pigdon shares the mowing of the lawn with his wife and he is involved in tidying up the house inside and out. He tries to keep busy and assist Mrs Pigdon in taking out the washing. It appeared to Ms Breuer that there is a partnership between Mr Pigdon and his wife in that if one member of the couple could not do an activity, then the other would undertake it. Ms Breuer submitted that the appropriate rating would be 5 points.

115. Applying the processes of the Guide, Ms Breuer submitted that the appropriate lifestyle rating is 4 points and therefore Mr Pigdon does not satisfy the Extreme Disablement Adjustment criteria.

116. Finally, Ms Breuer commented on Mr Winship's discussion of "the beneficial nature of the legislation". Ms Breuer submitted that this term seems to be misused. All that the term means is that there are some ambiguities in the legislation that can be interpreted in a way favourable to the Applicant. Ms Breuer submitted that this does not mean that the legislation can be ignored and in fact, in Federal Court decisions, it is clearly stated that the legislation must be applied.

Findings

117. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, the legislation and case law. The Tribunal found Mr Pigdon to be an honest and forthright witness and while there were some inconsistencies or gaps in his evidence, the Tribunal considered these to be attributable to Mr Pigdon's inability to recall details from the past and not reflective of any attempt to mislead the Tribunal.

Entitlement Issues

118. Mr Pigdon is claiming Disability Pension for the conditions of post traumatic stress disorder, psychoactive substance abuse and hypertension.

Post traumatic stress disorder

119. The Tribunal must first determine whether or not, in relation to the relevant Statement of Principles, Instrument Number 15 of 1994, Mr Pigdon satisfies the diagnostic criteria. The standard of proof for determining such matters is that of reasonable satisfaction as provided in subsection 120(4) of the Act, as discussed most recently in the full Federal Court decision of Benjamin v Repatriation Commission [2001] FCA 1879. Considering the definitional requirements of post traumatic stress disorder contained in paragraph 4 of the relevant Statement of Principles, the Tribunal finds that Mr Pigdon was exposed to a traumatic event when ordered to form part of a group of soldiers to take into custody an alleged Chinese dissident. This event involved Mr Pigdon being ordered to place a bayonet at the neck of a Chinese man and being ordered to stab this into the man's neck if a surrounding mob surged forward. The Tribunal notes Associate Professor Mattick's reference to Mr Pigdon's reporting that he was "as cool as a cucumber" but the Tribunal, on all of the evidence, both given at the Tribunal hearing and in the documents, considers this statement by Associate Professor Mattick is a misunderstanding or misinterpretation of Mr Pigdon's true situation. The Tribunal understands that Mr Pigdon believed that he had to follow through the orders of his Commanding Officer and that he had to try to be as calm as possible in order to survive. Furthermore, the Tribunal notes the contradiction in Dr Schultz' report at page 3 where he refers to the low impact of his operational service on Mr Pigdon but fails to report the incident concerning the Chinese man.

120. The Tribunal accepts Mr Pigdon's evidence that he feared for his life in this situation and had been ordered to kill the Chinese man if certain circumstances occurred. Objectively, this situation was very real and the Tribunal accepts the evidence that there was actual or threatened death or serious injury to Mr Pigdon, those serving with him and the detained Chinese man. Furthermore, the Tribunal also accepts Mr Pigdon's evidence that he was fearful for his life. Thus he experienced intense fear as is required by the definition.

121. Turning to the other DSM IV diagnostic criteria, in relation to whether or not Mr Pigdon experienced the traumatic event in one or more ways, the Tribunal finds that based on all of the evidence, including that of Mr Pigdon and Mrs Pigdon's evidence to Dr Hordern, that Mr Pigdon had distressing dreams of this event and also has intrusive thoughts and distressing recollections. In relation to criteria (c) as to whether or not Mr Pigdon has persistent avoidance of stimuli associated with the trauma, the Tribunal finds from the evidence that Mr Pigdon does try to avoid thoughts or feelings or conversations as discussed in (c)(i) and this was apparent from evidence to the Tribunal to Dr Schultz and Dr Hordern. Associate Professor Mattick's report of Mr Pigdon seems to be at odds with the majority of the other opinions and Mr Pigdon's evidence. Dr Delaforce does not provide any history and Dr Schultz does not deal with the Chinese mob incident. Mr Pigdon has until recently avoided the RSL Club because it arouses recollections of the trauma. He still finds these situations difficult and does not like discussing his operational service experiences (paragraph (c)(ii)). Mr Pigdon has markedly diminished interest in activities (paragraph (c)(iv)). Mr Pigdon's daughter has said to him that he should become more involved and socially active. In relation to criterion (d), Mr Pigdon has difficulty staying asleep and wakes up at 2 or 3 a.m. He also suffers from irritability.

122. The Tribunal concluded that disturbance has occurred for more than one month and has caused distress, in particular, to the social areas of functioning (criteria (e) and (f)).

123. The Tribunal notes the criticism of Dr Hordern that he did not deal with the diagnostic criteria for post traumatic stress disorder. Referring to Dr Schultz' report, he clearly concludes that he is satisfied in relation the DSM IV criteria on all of the evidence to him from Mr Pigdon, Mrs Pigdon and the documents, that Mr Pigdon does satisfy the diagnostic criteria.

124. Accordingly, the Tribunal is reasonably satisfied that a diagnosis of post traumatic stress disorder is confirmed and that the onset of this condition occurred sometime after service but certainly was present by the time he married in 1954.

125. Turning to the Statement of Principles, the Tribunal considers that Factor 1(a) is relevant which requires that Mr Pigdon experienced a stressor as defined, prior to the clinical onset of post traumatic stress disorder. The Tribunal considers that Mr Pigdon experienced a stressor in the event of being required to take into custody for interrogation a Chinese man. As has been previously detailed, there was objectively an event which was very real with the possibility of death or serious injury to Mr Pigdon and/or others. Mr Pigdon was required to bayonet a man if a surrounding Chinese mob surged forward. He was fearful for his life and the Tribunal considers that this indicates intense fear. The Tribunal finds therefore that Factor 1(a) of the Statement of Principles is met on the material and hence a reasonable hypothesis within the meaning of subsection 120(3) of the Act is raised.

126. The Tribunal must then determine if it can accept sufficient of the facts as are required to support the raised hypothesis. There is nothing to dispute that the event involving the Chinese man and the mob occurred. Associate Professor Mattick considers that Mr Pigdon's reactions did not involve intense fear and that he was "cool as a cucumber". The Tribunal does not accept on all the evidence that this is correct and believes the more accurate situation is that Mr Pigdon considered that he must remain calm in order to try and deal with the orders given him. The Tribunal notes as more persuasive the opinions and reports of Dr Hordern and Dr More, General Practitioner. Dr Shultz did not take any history of the Chinese mob incident, yet recorded that Mr Pigdon had symptoms of avoidance and distressing thoughts. Dr Delaforce provides no history at all and his report is of little benefit to the Tribunal. While the Tribunal notes Associate Professor Mattick reports a different reaction, this is not consistent with the majority of the other evidence and accordingly, pursuant to subsection 120(1) of the Act, having reviewed all of the evidence and material before it, the Tribunal is not satisfied beyond reasonable doubt for the purpose of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Pigdon's post traumatic stress disorder was war-caused with effect from 30 March 1997.

127. The assessment of this condition is dealt with later in the decision.

Psychoactive Substance Abuse

128. The Tribunal sees its task as first deciding whether or not it can be satisfied that a diagnosis of psychoactive substance abuse is present; that is, does Mr Pigdon meet the diagnostic criteria contained at paragraph 4 of the Statement of Principles Instrument Number 5 of 1994.

129. Mr Pigdon's evidence is that he drank heavily from time to time. He stated that he commenced alcohol consumption during the war and drank to forget his war experience. Mr Pigdon's evidence was that he was responsible in his drinking and his drinking habits were linked to various circumstances such as who he was living with, his financial situation, the weather and his responsibility as a parent and an employee. Mr Pigdon was never charged for driving under the influence, was not subject to any alcohol-related employment problems and did not suffer any legal consequences as a result of his drinking. When Mr Pigdon's health was found to be affected by alcohol and he was given medical advice to cease alcohol consumption, he did so. While Mr Pigdon may have drunk heavily from time to time, it was never to the extent in the Tribunal's view, which would meet the diagnostic criteria. Accordingly, on all the evidence, the Tribunal is reasonably satisfied that Mr Pigdon did not and does not meet the diagnostic criteria for psychoactive substance abuse. In such circumstances, the Tribunal has found that as Mr Pigdon does not meet the diagnostic criteria for psychoactive substance abuse, then he cannot be found to have a war-caused psychoactive substance abuse problem in the form of alcohol abuse.

Hypertension

130. Turning to the claim for the condition of hypertension, the factor relied upon in Instrument Number 83 of 1995 concerning Hypertension is Factor 1(b). As the Tribunal has found that Mr Pigdon does not have a war-caused psychoactive substance abuse condition, then this factor cannot be met and therefore no reasonable hypothesis was raised linking hypertension to service. The Tribunal considers that no other Factor, on the available evidence is met. Although Dr Miller and Ms Curdie-Evans discussed obesity, there is no material available to the Tribunal which could lead it to the conclusion that there is a war-caused obesity leading to hypertension.

Assessment

131. The Tribunal has found that there is a war-caused condition of post traumatic stress disorder with effect from 30 March 1997. The Tribunal considers that there should be a stepped assessment involving two periods, firstly, from 30 March 1997, the date of effect of the section 31 review, until 8 April 2001 and secondly, from 9 April 2001, the date of the assessment by Ms Curdie-Evans. The Tribunal notes that Dr Hordern has assigned an impairment rating of 30 points for post traumatic stress disorder. Ms Curdie-Evans assessed this condition at 28 points and Dr Miller assessed post traumatic stress disorder as attracting an impairment rating of 29 points. The Tribunal has arrived at an assessment of post traumatic stress disorder based on all of the evidence.

Table Impairment Rating Reasoning

Table 4.1 Subjective Distress 10 points To reflect moderate disturbance but having an ability to distract himself from time to time.

Table 4.2 Manifest Distress 10 points To reflect obvious distress and a preoccupation with symptoms, evident to casual observers and people unfamiliar with Mr Pigdon.

Table 4.3 Functional Effects 3 points To reflect moderate interference with functions in many every day situations.

Table 4.4 Occupation Nil points

Table 4.5 Domestic Situation 1 point To reflect occasional friction with family members

Table 4.6 Social Interaction 3 points To reflect significant reduction in social interaction

Table 4.7 Leisure Activities 3 points To reflect significant reduction in recreational activities.

Table 4.8 Current Therapy 3 points To reflect that Mr Pigdon has counselling from his General Practitioner

132. Applying the requirements of Chapter 4 of the Guide, the impairment rating is composed of ten + ten + three + three + two providing an impairment for post traumatic stress disorder of 28 points.

133. Thus the Tribunal finds that the combined assessment with effect from 30 March 1997 is:

Condition Guide Reference Impairment Points

Ischaemic Heart Disease and bronchitis Table 1.4, 1.2 and Chapter 1 40

Bilateral sensorineural hearing loss Chapter 7 3

Tinnitus 7.1.11 5

Non-melanotic malignant neoplasm of the skin 11.1 10

Post traumatic stress disorder Chapter 4 28

Combined Impairment Rating Scale 18.1 64 points rounded to 65

134. Considering the Lifestyle Effects at that time, and noting the lifestyle rating provided at the section 31 review, the Tribunal does not consider there is any evidence to cause the lifestyle rating of 4 points to be disturbed.

135. Accordingly, with a lifestyle rating of 4 points and combined impairment of 65 points, this produces a Disability Pension at 100 per cent of the General Rate from 30 March 1997. There is no qualification for Extreme Disablement Adjustment at that time as the statutory criteria of having at least 70 impairment points and a lifestyle of at least 6 are not satisfied.

136. Turning to the second period for which there is a comprehensive assessment provided by Ms Curdie-Evans, the Tribunal finds the following impairments.

137. In relation to the conditions of ischaemic heart disease and bronchitis, the Tribunal notes Dr More's spirometry undertaken on 12 October 1998 (T20) and based on this raw data for FEV 1 and FVC as noted by Dr More and a METS of 3 to 4 at age 72 when the test was undertaken, applying the requirements of Chapter One of the Guide, the Tribunal considers that the appropriate rating is 55 points. The impairment ratings for the remaining conditions of post traumatic stress disorder, bilateral sensorineural hearing loss, tinnitus and non-melonotic malignant neoplasm of the skin remain the same and when combined according to Scale 18.1 of the Guide, produce a combined impairment of 73 points rounded to 75. The Tribunal considers that the lifestyle rating remains appropriate at 4, applying the various requirements of Chapter 22. A combined impairment rating of 75 points with a lifestyle rating of 4 provides a Disability Pension remaining at 100 per cent of the General Rate. Mr Pigdon still does not satisfy the requirements for the Extreme Disablement Adjustment.

138. In conclusion, based on all of the evidence available to the Tribunal and for the reasons set out above, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that the decision under review should be set aside and in substitution therefore, the Tribunal decides that:

(1) Mr Pigdon has a war-caused post traumatic stress disorder condition with affect from and including 30 March 1997;

(2) Disability Pension is assessed at 100 per cent of the General Rate from and including 30 March 1997.

I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member.

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

Associate

Dates of Hearing 16, 24 August 2001

Date of Decision 4 February 2002

Representative for the Applicant Mr B Winship, Solicitor, Rockliffs Solicitors

Representative for the Respondent Ms S Breuer, Departmental Advocate