You and Repatriation Commission [2009] AATA 19 (13 January 2009)

Last Updated: 13 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 19

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V200600504

VETERANS APPEALS DIVISION		)
	Re		KENNETH YOU

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Miss E.A. Shanahan, Member

Date 13 January 2009

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
Member

VETERANS’ AFFAIRS - generalised anxiety disorder – war-caused conditions - reasonable hypothesis - special or intermediate rate attracted.

Veterans' Entitlements Act 1986

Statement of Principles

Instrument Nº 1 of 2000 concerning generalised anxiety disorder

Instrument Nº 101 of 2007 concerning generalised anxiety disorder

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Repatriation Commission v Cooke (1998) 30 FCR 307

Repatriation Commission v Budworth (2001) 26 ALD 285

Fogarty v Repatriation Commission [2003] FCAFC 136

Keeley and Repatriation Commission ([1999] FCA 1103; 1999) 56 ALD 455

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Repatriation Commission v Codd [2005] FCA 888

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

REASONS FOR DECISION

13 January 2009

Miss E.A. Shanahan, Member

1. Mr You receives a disability pension at 90 per cent of the general rate for his Bilateral Sensorineural Hearing Loss, Chronic Obstructive Airways Disease, Impotence and Lumbar Spondylosis. Mr You applied to the Repatriation Commission (the Commission) to have his generalised anxiety disorder (GAD) accepted as being war-caused for payment of the disability pension at the special rate. On 14 September 2005 the Commission denied his claim. That decision was affirmed by the Veterans’ Review Board (VRB) on 3 May 2006. Mr You has now applied to the Administrative Appeals Tribunal for a review of the decision of the VRB.
2. Mr You was represented by Mr De Marchi, solicitor; and the Repatriation Commission (on the first two days of hearing) by Mr K Herman and (on the final day of hearing) by Mr K Rudge, advocates from the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (The T documents). The parties tendered the following documents:

For the applicant:

Statement of the employment history of Mr You - Exhibit A1

The report of Mr M Burge dated 18 June 2007 – Exhibit A2

Copies of Mr You’s taxation returns – Exhibit A3

The report of Dr John Cooper psychiatrist dated 26 March 2008 – Exhibit A4

For the respondent:

The T documents – Exhibit R1

The clinical notes of Dr Brian Smith (pages 1 to 82) – Exhibit R2

The report by Mr B Morgan of Writeway Research dated 21 October 2006 – Exhibit R3

Mr You’s Defence Personnel Service documents (pages 1 to 168) – Exhibit R4

The discharge summary relating to Mr You’s in-patient treatment at the Repatriation General Hospital Hobart from 23 April 1969 to 2 May 1969 – Exhibit R5

The transcript of the VRB hearing (3 May 2006) – Exhibit R6

Mr You’s Army psychological record – Exhibit R7

Documentation relating to Mr You’s employment by the AIMS Corporation – Exhibit R8

The report of Dr Robyn Horsley dated 2 November 2006 – Exhibit R9

The report of Dr Nigel Strauss psychiatrist dated 16 November 2006 – Exhibit R10

3. Mr You, Mrs You, Mr Michael Burge, Dr Robyn Horsley, Dr Nigel Strauss and Dr John Cooper gave evidence before the Tribunal.

BACKGROUND

4. Mr You served in the Australian Army from 13 March 1967 until 30 November 1990 with operational service in South Vietnam from 27 March 1968 until 28 December 1968. Throughout his Army career his duties were clerical. Following retirement from the Army he obtained employment with the Corps of Commissionaires as a Security Officer and then in Administration. In 2001 he joined Charter Resources as a Security Officer and he remained in this role with the AIMS Corporation. He resigned on 25 February 2005 after being refused leave to attend a heart health program and to visit his seriously-ill mother.
5. In South Vietnam Mr You was a Company Clerk with the 1st Royal Australian Regiment (1st RAR). He was not involved in any fighting but performed occasional picquet duties. He claimed exposure to three stressors caused his GAD. First, a general fear relating to being in a war zone, particularly as he is of Chinese origin and he felt he could be mistaken for a Vietnamese; secondly, he witnessed his mentor and someone he idolised, a sergeant Slim O’Shea, experience a severe emotional response to the news of his cousin’s death in South Vietnam; and thirdly, as part of his designated duties, Mr You was required to identify three Australian Army personnel killed in action. Mr You did not know the deceased personally and identified them by comparing their faces with company photographs.
6. Prior to his acceptance in the Army, Mr You underwent psychological assessment. Later, during his 30 years of defence force service, similar assessments took place to determine his suitability for promotion. On several occasions, including in his pre-enlistment assessment, he was said to be an unsuitable personality, initially for enlistment and later for promotion.
7. Shortly after his return to Australia in March 1969 Mr You was hospitalised for nine days for investigation of abdominal pain. The cause of this pain was never elucidated. He later attributed his symptoms to nerves. He had been required to continue his clerical duties and, in his opinion, not given sufficient leave to allow him to relax, meet and get to know his future in-laws.
8. It was not until 2000 or 2001 that he felt he needed medical help for his nervous disorder. Despite coping well with work, he was in conflict with his wife and his children at home. Mr You contacted the Vietnam Veterans’ Counselling Service (VVCS) and subsequently underwent 100 counselling sessions. He did not see a psychiatrist for treatment and has never taken psychotropic medication. Mr You sought the disability pension at the special rate, claiming his resignation in February 2005 and his inability to work thereafter were due to his war-caused anxiety disorder.
9. Mr You has had a very active role in the Scouts for 30 years, being a District Commissioner until the late 1990s. He continues to train scout masters on a voluntary basis for up to eight hours per week. He has also been involved in an angling club for many years. Following a falling out with other club officials, he now confines himself to recreational fishing. Mr You and his wife have travelled overseas since his retirement and holidayed more frequently. He is now in receipt of a defence force pension, disability pension at 90 per cent of the general rate and has a small superannuation holding, most of which he has transferred to his wife’s superannuation. His wife who worked part-time for most of their marriage is no longer in the work force and her income is unknown. Mr You has estimated that his reduction in income since ceasing work is of the order of $10,000 to $15,000 per annum.
10. Psychiatric opinions have been obtained for medico-legal purposes. Doctors Rose and Strauss found no evidence of a psychiatric disorder. Mr Burge, a psychologist, diagnosed a GAD. Dr Cooper found no psychiatric disorder when he first saw Mr You in 2004. One year later he diagnosed a mild chronic anxiety disorder consistent with GAD. Both Mr Burge and Dr Cooper opined that the clinical onset of Mr You’s psychiatric disorder was within two years of his operational service.

ISSUES

(a) Does Mr You have a psychiatric disorder? If so, what is the appropriate diagnosis and what was the date of clinical onset. Is the condition war-caused?
(b) If the answers to the above questions are affirmative, did Mr You cease work because of his accepted disabilities alone and thereby qualify for the special rate of pension?

11. The parties did not raise the question of whether Mr You qualified for the intermediate rate of pension. However, the Tribunal will consider that question.

EVIDENCE BEFORE THE TRIBUNAL

MR YOU

12. Mr You’s evidence is summarised under Background. In his oral evidence he described his emotional response to Sergeant O’Shea’s devastating reaction to the news of the death of his cousin Private Slattery as a big shock. Mr You had idolised Sergeant O’Shea, whom he saw as a role model and mentor. Mr You resolved not to put himself in a similar situation and thereafter avoided getting to know the people around him. He intentionally kept his distance. This approach had helped him when he was required to identify Australian soldiers killed in action. He did not know any of the three individuals he identified. When asked if he was horrified by having to look at the dead soldiers, he replied that their heads were fairly good. He was only required to view the soldiers’ faces. At the completion of his Vietnam service he said he felt good and believed that he had done a good job.
13. During his return voyage to Australia on the HMAS Sydney, Mr You had been required to work, preparing documentation for 120 Charlie Company personnel. Forty soldiers were to be discharged, 40 were to remain in the Army in Australia and 40 were to be posted to Malaysia. On arrival in Hobart he had two weeks leave and then resumed his clerical work. He had requested and believed he needed one month’s leave in order to recover from his service and to become acquainted with his future in-laws. Two weeks after returning to Australia he developed abdominal pain and was hospitalised some six weeks later.
14. Mr You described his difficulties in confiding in others and his relationships with his wife and children. He had come close to hitting his wife and he believed his relationship with his children was poor, particularly after they reached the age of five or six years.
15. Mr You acknowledged that he had not recognised any problems until the year 2000 or 2001, when at his wife’s instigation he sought help through the VVCS. His work history had been excellent with only minor conflicts and he had intended to work until the age of 67 or 68.
16. Under the auspices of the VVCS, Mr You and his wife received regular counselling and he had undertaken lifestyle and anger-management courses.
17. Under cross-examination Mr You described some episodes of conflict in his employment with the Corps of Commissionaires, with Charter Resources and with AIMS Corporation. He had resigned from AIMS after being refused leave to attend a heart health program and was refused an application for annual leave to visit his ill mother. The AIMS Corporation did not allow leave to be taken until 12 months of service had accrued.
18. Mr You said he felt better now than he had in the past as he had lowered his expectations and standards with benefit. He did not provide a detailed description of his symptoms other than a poor memory and feelings of anxiety. Mr You said he experienced no feelings on viewing the dead soldiers and had had no emotional response to the death of his father. He had been very close to his mother and was upset by her death in 2005. He explained his sleep problems were affected by his use of a continuous positive airways pressure (CPAP) machine prescribed for his excessive snoring. The mask he was required to wear was difficult to tolerate and frequently he awoke and removed the mask.

MRS YOU

19. Mrs You said she met her husband before his posting to Vietnam. Prior to his Vietnam service she regarded him as a quiet and gentle person. On his return Mr You appeared thin and uptight, failed to communicate well and was prone to unprovoked anger. Early in their marriage he was a poor sleeper and restless in bed. She said he had never been close to his children and had tried to control and keep them in order. Mrs You described her husband as pedantic in his behaviour and intent on controlling his environment. Mrs You agreed with Mr Rudge that her husband had performed very well in the Army and the scouting movement, and this she attributed to the order that existed in these controlled environments. She also agreed that Mr You was a perfectionist. If others didn’t come up to his standards he became angry.
20. Mrs You described her husband as closed up and unable to confide in others. She had only learnt of his experiences in Vietnam, in particular the incidents concerning Sergeant O’Shea and Mr You having to identify dead soldiers, in the course of the counselling provided by VVCS during the past four years. Mrs You was aware of the circumstances of her husband’s resignation from AIMS Corporation in 2005 but not of any other work conflicts.

EVIDENCE

MR MICHAEL BURGE

21. Mr You was seen by three psychiatrists, one psychologist and an occupational health physician, all for medico-legal purposes.
22. Mr Michael Burge provided a report (Exhibit A2) in which he diagnosed Mr You as suffering from a GAD caused by stressors experienced in Vietnam, with a clinical onset soon after his Vietnam service. In his opinion Mr You’s condition met all the criteria of the Statement of Principles (SoP) concerning anxiety disorder. Mr Burge regarded Mr You’s episode of abdominal pain in April 1969 as a manifestation of anxiety.
23. Mr Burge said that during the first interview, on 11 April 2007, Mr You had been visibly distressed when describing his Vietnam experiences to him. Mr You said he had approached the task of identifying the dead bodies with dread, being fearful that the bodies would be mutilated and that identification would be impossible. Riding shotgun between Nui Dat and Dania (sic) had caused Mr You severe worry and anxiety.
24. Having witnessed Sergeant O’Shea’s breakdown, Mr You decided not to get too close to people. He also worried about not being in control of himself, breaking down and being humiliated as a result.
25. The symptoms reported to Mr Burge by Mr You were irritability, worry about the unknown, muscle tension, grinding of his teeth, difficulty sleeping, waking during the night, social withdrawal and difficulty communicating with others. Mr You said he had been able to distract himself from his worries by absorbing himself in his work. Since ceasing work his worry had increased
26. Having found that Mr You met the criteria outlined in SoP 1 of 2000, Mr Burge assessed Mr You’s incapacity rating at 26 points in accordance with the Guide to Assessment of Rates of Veterans’ Pensions (GARP). Mr Burge considered Mr You unlikely to return to work because of his GAD, although he felt the VVCS counselling had been of assistance and should be continued.
27. In evidence Mr Burge adopted the content of his report and disagreed with the opinion of Dr Strauss.

DR NIGEL STRAUSS

28. Dr Strauss recorded the same stressors as Mr Burge and an additional episode where, while he was on picquet duty, Mr You had nearly shot a deer. Mr You told Dr Strauss that he continued to think about Sergeant O’Shea’s reaction to his cousin’s death but not about the dead bodies he had identified. Mr You regarded himself as a disciplinarian and admitted he had at times taken out his anger on his children. He denied feelings of depression or suicidal ideation. He described his memory and concentration as poor, as was his sleep, which was often broken. He admitted to being a worrier. Mr You reported that he had enjoyed his ten week overseas trip in 2006 and was enjoying his retirement, spending time with his grandchildren, fishing, gardening, helping with the housework and collecting stamps. Dr Strauss obtained the previously reported employment history. Mr You confirmed that he had never received treatment from a psychiatrist nor had he taken psychotropic medication.
29. Dr Strauss found no evidence of a psychiatric illness but did identify obsessional and perfectionist personality traits. He commented that individuals with these traits are often rigid and have a tendency to worry excessively.
30. In his evidence before the Tribunal, Dr Strauss was asked if the episode of undiagnosed abdominal pain and unconfirmed diarrhoea requiring hospitalisation in 1969 represented irritable bowel syndrome (IBS), a condition now thought to be of psychological aetiology. Dr Strauss considered this acute episode to have been part of the readjustment process following operational service. He considered IBS to be a chronic condition and noted that Mr You’s symptoms in 1969 were short-lived and had not recurred.
31. Dr Strauss, in contrast to Mr Burge and Dr Cooper, had found Mr You to be a good historian who gave detailed and long-winded answers to the questions posed. Dr Strauss believed that if Mr You had suffered from GAD from the early 1970s it would have been more likely than not that he would have experienced difficulties at work, particularly if the condition had remained undiagnosed and untreated.

DR JOHN COOPER

32. Dr Cooper had seen Mr You on three occasions, 24 March 2004 (Exhibit R2 page 69), 31 March 2005 (T12) and 25 February 2008 (Exhibit A4), for medico-legal purposes.
33. Mr You had met Dr Cooper at a VVCS meeting in Lilydale. When his 2003 application to the Commission for an increase in pension had been refused, Mr You sought Dr Cooper’s opinion regarding the likely success of an appeal against this decision. Dr Cooper considered Mr You’s symptoms of poor memory and frequent anger were mild and the identified stressful incidents were not unequivocally traumatic. He did not make a psychiatric diagnosis (Exhibit R2 page 69).
34. Dr Cooper next saw Mr You on 31 March 2005, Mr You having again applied for acceptance of his anxiety condition as being service-related. In the ensuing year Mr You had received regular counselling at the VVCS and as a result was more aware of his mental health and felt a little better equipped in articulating his difficulties (T12 page 78).
35. On this occasion Mr You gave a history of tenseness, being pent up, excessive worry in most areas of his life, impaired memory, irritability, intolerance of people around him, a tendency to keep himself busy as a distraction from his feelings, distress that he had difficulty controlling, social withdrawal and isolation, feeling on edge and hyper-vigilant, erratic sleep, a loss of intimacy in his relationships and difficulty expressing his emotions. Mrs You had corroborated the presence of these symptoms.
36. The stressful incidents identified were being in a war area, picquet duty, Sergeant O’Shea’s reaction to his cousin’s death, having to identify soldiers killed in battle and fear that he would be mistaken for a Vietnamese, given his Asian appearance.
37. Dr Cooper diagnosed a mild chronic anxiety disorder equating to GAD, which met all the criteria of Instrument 101 of 2007, the SoP concerning anxiety disorder and in particular GAD. Dr Cooper considered that the condition had its onset during Mr You’s service in Vietnam. He assessed Mr You’s incapacity at 22 points in accordance with the GARP. At that time Mr You had no capacity for work but could improve with ongoing counselling.
38. Dr Cooper’s third assessment (on 25 February 2008) was for this hearing. Mr You’s mental health status was unchanged although Mrs You felt her husband’s anxiety had decreased following counselling. As requested, Dr Cooper considered Mr You’s anxiety disorder in terms of Instrument 101 of 2007. He thought that Mr You’s condition satisfied all the criteria of the SoP. He identified the factor linking Mr You’s GAD to service as factor 6(a)(iii) - experiencing a category 1B stressor within five years before the clinical onset of anxiety disorder. Dr Cooper considered the stressor was Mr You having viewed corpses of Australian soldiers as an eye witness.
39. In his evidence before the Tribunal, Dr Cooper reiterated his opinion as provided in the 2005 and 2008 reports. Mr De Marchi asked if Mr You’s cessation of work was due to his anxiety disorder; to which Dr Cooper replied: He felt he needed to do the heart program and the employer obstructed this. He couldn’t attend to his health and work at the same time.
40. Dr Cooper did not believe Mr You met the requirements of Instrument 1 of 2000 but did meet the requirements, in particular the definition of a category 1B stressor, provided in Instrument 101 of 2007. He found the time of clinical onset difficult to determine.
41. Under cross-examination, Dr Cooper agreed that Mr You was a perfectionist and exhibited obsessive-compulsive personality traits. These he believed rendered Mr You more vulnerable to the development of a psychiatric disorder. Mr You’s excellent work history and his capacity for work had not been affected deleteriously by the GAD as his anxiety disorder was very mild. Dr Cooper said he had reached his decision as to the time of clinical onset on Mrs You’s evidence alone.
42. In response to a question posed by the Tribunal, Dr Cooper said obsessive- compulsive personality traits were useful in the Army and Scouts but such persons tended to perform less well when they left a structured environment. Anxiety arising in social settings and relationship problems with adolescent children were also features more commonly seen in obsessive-compulsive personalities.
43. Dr Cooper maintained his opinion that the correct diagnosis was GAD; although Mr You’s presentation was not classical and his symptoms were at the mild end of the scale. Despite his diagnosis, Mr Cooper said he could not be confident that Mr You had suffered clinically significant distress as a result of his GAD.

DR ROBYN HORSLEY

44. Dr Horsley assessed Mr You’s functional capacity at the Commission’s request. In her report of 2 November 2006 (Exhibit R9) and in her evidence before the Tribunal she opined that none of Mr You’s accepted physical disabilities, all of which were mild, would prevent him undertaking his usual remunerative work for 20 or more hours per week. This work was primarily clerical.
45. Dr Horsley noted that Mr You claimed to have ceased work because of his anxiety disorder, despite not having experienced anxiety prior to his employment with AIMS Security and his interaction with his then supervisor (Exhibit R9 page 5). She noted Mr You had never been managed by a psychiatrist and had had no treatment other than VVCS counselling. With respect to the impact of his anxiety disorder on Mr You’s work capacity, Dr Horsley recommended obtaining a psychiatric opinion.
46. Dr Horsley described Mr You as a cooperative and good historian. She had taken into account all of Mr You’s physical conditions.

DR NORMAN ROSE

47. Dr Rose, a psychiatrist, assessed Mr You in July 2003 (T5). He found no evidence of a psychiatric disorder. Mr You had told him that he did not consider seeing dead bodies at Vung Tau as being traumatic and the only problems he described concerned his marriage and were not service-related.

WRITEWAY RESEARCH REPORT

48. Mr B Morgan conducted historical research relating to Mr You’s service and confirmed that Mr You had been required to identify at least one soldier killed in action. He confirmed that Sergeant O’Shea was in the same company as Mr You and that Private Slattery died on 8 October 1968. The Army records did not reveal a relationship between Sergeant O’Shea and Private Slattery; nor did they exclude that they were cousins.

CLINICAL NOTES OF DR BRYAN SMITH

49. These records cover the period between 1987 and June 2006. Mr You had seen Dr Smith approximately every six to eight weeks. Most consultations were for minor medical problems unrelated to his claimed service-related conditions.
50. Mr You first reported multiple joint symptoms in 1993 and Dr Smith prescribed Voltaren. In 1999 he complained of hearing problems and was found to have impacted wax in the external auditory canals. His hearing improved after an ear wash out. Further testing took place in 2000 at Mr You’s request and a mild left-sided hearing defect was diagnosed. At the same visit Mr You had requested a prostate check which proved to be normal. He also reported shortness of breath. A chest x-ray was normal. Mr You had lung-function testing performed in 2005 (T8) which revealed a mild obstructive defect, part of which may have been due to technical problems.
51. Dr Smith first recorded symptoms of anxiety in 2003. Mr You had already lodged his claim to the Repatriation Commission at that stage. On 25 March 2004 Mr You reported to Dr Smith that he had seen Dr Cooper the day before on the recommendation of the VVCS. Dr Smith provided a back-dated letter of referral to Dr Cooper (Exhibit R2 page 9).
52. In May 2004 Dr Smith recorded that Mr You was moving to a new firm which has contract for his same job and that Mr You intended to work for another two to three years until he reached the age of 60. Dr Smith provided a letter supporting Mr You’s request for leave from the AIMS Corporation in order to attend the heart health program on 7 October 2004.
53. On 25 January 2005 Mr You informed Dr Smith he had resigned from his work with AIMS Corporation the previous day, as leave to attend the heart health program had been refused. He requested a certificate of ill-health as he felt it was too stressful for him to return to work for his final week. Mr You indicated he may look for part-time work and in the interim would access sickness benefits. At a review two weeks later Mr You reported anxiety relating to his unknown future. He had lodged a new claim for stress with the Department of Veterans’ Affairs and had arranged to see Dr Cooper again.
54. Dr Smith conducted a more detailed assessment on 18 February 2005 and recorded that Mr You complained of sleepless nights, depression, thinking about how poorly he had been treated by his employers and was exploring available types of work or disability support on the advice of a financial planner. Mrs You considered her husband had been badly treated at work. Dr Smith attributed Mr You’s depressed mood to his loss of work. He provided a certificate to cover a period of one month for further sickness benefits. The next visit took place on 24 March 2005. In the intervening four and a half weeks Mr You’s mother had died and he had holidayed in Tasmania for a period of three weeks, spending much of his time fishing. He said he had a good time. Despite the holiday he still felt some depression and obtained a further certificate for one month to continue his qualification for sickness benefits from Centrelink.
55. Two visits to Dr Smith in April 2005 were for the purpose of completing a disability pension claim form to the Commission. The claim resulted in an increase in pension entitlement to 90 per cent of the general rate. In December 2005 Dr Smith recorded that Mr You had qualified for a service pension on reaching the age of 60.
56. The last entry in Dr Smith’s clinical notes was in June 2006, one week prior to Mr You’s departure for a ten week overseas trip. Mr You described himself as keeping well.

REPATRIATION GENERAL HOSPITAL, HOBART, DISCHARGE SUMMARY

57. The discharge summary relating to Mr You’s hospitalisation from 23 April 1969 to 2 May 1969 was provided. Mr You had presented with a five week history of abdominal pain occurring two hours after a meal and relieved by defecation. There was no loss of weight, nausea or vomiting. Mr You was described as a healthy looking young man and physical examination was normal except for mild abdominal tenderness. All investigations including x-rays and Barium meal with follow-through were normal. After four days all pain had ceased and bowel actions were recorded as occurring once per day. No diagnosis was made.

AIMS CORPORATION REPORT

58. The AIMS Corporation provided all the documentation it still had in its possession regarding Mr You. This included a performance appraisal conducted in September 2004. In all aspects of the work appraised, Mr You scored either in the exceeds expectations or outstanding range with a total score of 115 out of a possible 156.
59. A copy of Mr You’s resignation, dated 24 January 2005, was provided. This states I hereby resign from AIMS Security Services with effect 31 January 2005. My reason is basically for my health and well being.

RELEVANT LEGISLATION

60. As Mr You is a veteran, has had operational service and has retired from the work force, the relevant legislation is contained in s 9 of Veterans' Entitlements Act 1986 (the Act):

(1) Subject to this section and section 9A, 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.

61. As Mr You rendered operational service, s 120(1) and s 120(3) of the Act are applicable in respect to the standard of proof and as Mr You’s claim was lodged after 1 June 1994, s 120A is attracted. These sections provide as follows:

120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(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.
...
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.

62. The claimed condition is that of GAD. Mr You relied on Instrument No 101 of 2007, the SoP concerning anxiety disorder. Clause 3(b) defines generalised anxiety disorder:

...
(b) For the purposes of this Statement of Principles, “anxiety disorder” means generalised anxiety disorder; anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified; and
“generalised anxiety disorder” means a psychiatric disorder (derived from DSM-IV-TR) with the following features:

1. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
2. The person finds it difficult to control the worry; and

100. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:

(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and

4. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
5. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
6. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;

63. Clause 6 of the SoP provides:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
(i) being a prisoner of ware before the clinical onset of anxiety disorder; or
(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
(iv) having a significant other who experiences a category 1A stressor within the two years before the clinical onset of anxiety disorder; or
(v) experiencing a category 2 stressor within the one years before the clinical onset of anxiety disorder; or
(vi) having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder; or
(vii) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of anxiety disorder; or
(viii) having epilepsy at the time of the clinical onset of anxiety disorder; or
(ix) having chronic pain of at least three months duration at the time of the clinical onset of anxiety disorder; or
(x) experiencing the death of a significant other within the two years before the clinical onset of anxiety disorder; ...

64. Mr You relies on Factor 6(a)(iii):

...experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder;

65. Clause 9 of the SoP defines a category 1B stressor as meaning one of the following severe traumatic events:
    • (a) being an eyewitness to a person being killed or critically injured;
    • (b) viewing corpses or critically injured casualties as an eyewitness;
    • (c) being an eyewitness to atrocities inflicted on another person or persons;
    • (d) killing or maiming a person; or
    • (e) being an eyewitness to or participating in, the clearance of critically injured casualties;
66. Mr You relies on item:

(b) viewing corpses or critically injured casualties as an eyewitness:

67. Mr You has claimed payment of the disability pension at the special rate, being 63 years of age, in receipt of the pension at 90 per cent of the general rate and having ceased work in February 2005. While his claim has been limited to special rate, the Tribunal will consider his eligibility for the intermediate rate. Sections 23 and 24 of the Act provide for intermediate and special rate respectively. Section 23 states:

(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and (a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; ...

Section 24 states:

(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; ...

68. The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97, where the Court enunciated a series of steps relating to the reasonable hypothesis standard of proof:
    1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
    2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
    3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
    4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

SUBMISSIONS

THE APPLICANT

69. Mr De Marchi relied on the opinions of Mr Burge and Dr Cooper, both of whom diagnosed a mild GAD caused by Mr You’s duties of identifying Australian soldiers killed in action. In Dr Cooper’s opinion, Factor 6(a)(iii) of Instrument No 101 of 2007 was met. Mr Burge had identified Factor 5(a)(ii), experiencing a severe psychosocial stressor, in Instrument No 1 of 2000 as being the factor causally relating Mr You’s psychiatric disorder to his defence service. Mr De Marchi submitted that on the balance of probability all diagnostic criteria for GAD were met.
70. The hypothesis Mr De Marchi promulgated was that Mr You’s traumatic experiences in Vietnam, and in particular the viewing of corpses in 1968, had led to the development of GAD, manifest in 1969. Mr De Marchi submitted that on applying the four steps of Deledio, the Tribunal should be satisfied that steps one to three were met, as Mr You’s experiences and reaction to these experiences satisfied the template provided in Instruments Nº 101 of 2007 and Nº 1 of 2000. While the Applicant relied on Instrument No 101 of 2007, should the Tribunal consider this SoP not to be met, Mr You exercised his right in accordance with the decisions of the Full Court in Keeley and Repatriation Commission [1999] FCA 1103; (1999) 56 ALD 455 and Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 to rely on the earlier SoP, Instrument No 1 of 2000. Finally, Mr De Marchi contended that there was no material before the Tribunal to satisfy it, beyond reason doubt, that Mr You’s GAD was not war-caused.
71. Mr You receives pension at 90 per cent of the general rate. Should his GAD be accepted as war-caused, the rate of pension, based on the impairment assessment of Mr Burge at 26 points, would result in pension at 100 per cent of the general rate.
72. As Mr You has not worked for remuneration since 25 February 2005, on which date he resigned because of his GAD, Mr De Marchi argued that he qualified for the special rate. His persistent symptoms prevented further employment and as a result, his loss of income was in the order of $10,000 - $15,000 per annum.
73. Mr De Marchi submitted that while Mr You did not recognise that he suffered from a psychiatric condition until the year 2000/2001, Mrs You had observed and subsequently reported her husband’s behaviour and emotional responses from 1969. If Mr You was free of his disabilities, he would have continued to work in security or administration and he would not have resigned when he reached the age of 60.

THE RESPONDENT

74. Mr Rudge identified the conflicting psychiatric reports and opinions impacting on the diagnosis of a GAD. Doctors Rose and Strauss found no evidence of a psychiatric disorder, nor did Dr Cooper in 2004. In 2005 and again in 2008 Dr Cooper diagnosed a mild GAD, which in 2005 did not meet the requirements of the then current SoP, Instrument No 1 of 2000, as the traumatic incident to which Mr You was exposed did not, in Dr Cooper’s opinion, meet the definition of a severe psychosocial stressor. In contrast, Mr Burge, in June 2007, diagnosed GAD and stated that Mr You met both the criteria for diagnosis and Factor 5(a)(ii) which linked the psychiatric condition to Mr You’s service. Mr Rudge contended that Mr Burge was not a convincing witness.
75. Mr Rudge noted that Doctors Strauss and Cooper identified Mr You as having personality traits of an obsessive compulsive nature – the need for control, perfectionism and intolerance of others who did not meet Mr You’s standards.
76. Mr Rudge submitted that the dominant features as supported by the psychiatric evidence were the personality traits and there were no symptoms suggestive of GAD. The claim should fail at step 3 of the Deledio process, as all the diagnostic criteria of GAD were not present within five years of Mr You’s exposure to an accepted category 1B stressor.
77. Mr Rudge confirmed that, should the Tribunal be satisfied that Mr You suffers from GAD, Mr You’s pension would increase to 100 per cent of the general rate.
78. On the question of special rate of pension, Mr Rudge contended that neither s 24(1)(b) nor s 24(1)(c) of the Act were satisfied. All of the medical evidence indicated that Mr You could work for more than eight hours per week. Dr Horsley was of the opinion that Mr You could work for more than 20 hours per week, based on his accepted physical conditions; Dr Strauss found no psychiatric disorder; and Dr Cooper considered Mr You’s GAD to be mild, and that it had never prevented him from working and was of doubtful clinical significance. Mr Rudge said that Mr You had resigned after a disagreement with his supervisor over annual leave entitlements and his request for leave without pay to attend a heart health program. Therefore, the alone test in s 24(1)(c) was not satisfied.

TRIBUNAL’S DELIBERATIONS

79. Before proceeding to consider the reasonableness of the hypothesis there are certain preliminary criteria which must be met. Mr You is a veteran (s 5C). He has undertaken operational service (s 5B). H claims to suffer from a war-caused psychiatric disease (s 5D) and believes he has been incapacitated by this condition to such an extent that he can no longer work for remuneration (s 5D, s 23, s 24).
80. At the time of lodgement of the claim to which this application applies, Mr You was receiving pension at 90 per cent of the general rate for the combined effect of several physical conditions.
81. The Tribunal is required to first establish to its reasonable satisfaction (s 120(4)) the correct diagnosis of the condition from which the Veteran suffers. The same standard of satisfaction applies to claims lodged after the introduction of SoPs (s 120A and s 120B) on 1 June 1994. The SoPs modified the standard of proof by providing diagnostic criteria for the diseases claimed and the factors which must as a minimum be present to support a causal link to defence service.
82. Having established the diagnosis, the Tribunal must ascertain the date of clinical onset which is relevant in many disease states to which SoPs apply. Clinical onset has been defined by the Tribunal as:

... either when a person becomes aware of some feature or symptom which enables a 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. (Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [23])

This definition was approved by the Federal Court in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 and Repatriation Commission v Gosewinckle [1999] FCA 1273; (1999) 59 ALD 690.

83. The medical evidence relating to Mr You’s psychiatric status is confusing and conflicting, not only as to the diagnosis reached but also in the history that Mr You has given. Doctors Rose and Strauss found no evidence of a psychiatric disorder. Dr Rose recorded that Mr You had always been sensitive, stewed on his problems, kept his feelings to himself and lacked assertiveness. Mr You did not consider seeing and identifying dead bodies as a problem for him; he said it was just part of the job. Apart from concern at being in a war zone, any other traumatic events were denied.
84. While Mr You had thought himself normal, others had told him he had never been the same since Vietnam. Mr You did not lodge a claim for pension until he was advised to do so by other veterans following discussions at RSL gatherings. Mr You provided Dr Rose with a history of poor sleep with restless nights occurring once a month; no dreams; being able to control his moods at work but becoming verbally angry with his wife and children at home. Mr You described his marriage as rocky because of poor communication and little sex as he derived very little pleasure from the latter. Dr Rose described Mr You as having an active social and recreational life.
85. The history obtained by Dr Strauss was similar to that obtained by Dr Rose but also included the description of Mr You’s response to Sergeant O’Shea’s reaction to the death of his cousin, Private Slattery. Having witnessed Sergeant O’Shea’s distress, Mr You determined not to become close to any of his army colleagues. Mr You said he occasionally dreamt but had no nightmares. At times his sleep was broken, he snored a great deal and his memory and concentration had deteriorated over the past few years. Mr You described himself as a worrier, a disciplinarian who had probably taken out his anger on his children at times, as having a reasonable relationship with his wife but little or no sexual relations.
86. Dr Strauss described Mr You’s answers to questions posed as being long-winded and detailed. Mr You said he was enjoying his retirement and spent his time gardening, seeing his grandchildren and travelling. On his account he had attended the VVCS to discuss marital problems and work difficulties at AIMS Security. Dr Strauss did not identify any psychiatric disorder but did identify obsessional personality traits.
87. Dr Cooper diagnosed a mild GAD with clinical onset within five years of Mr You experiencing the stressor of identifying dead bodies in Vietnam in 1968. At the first consultation in 2004, Dr Cooper did not discern any psychiatric disorder. Mrs You accompanied her husband to the consultations with Dr Cooper in 2005 and 2008. Dr Cooper obtained a far more detailed history on these occasions. Mr You explained that his increased awareness of his symptomatology and his ability to verbalise these symptoms arose from the VVCS counselling. The latter had rendered him more insightful. Based on Mrs You’s evidence that her husband was a changed man when he returned from Vietnam, Dr Cooper had ‘inferred’ [emphasis added] that the clinical onset of Mr You’s GAD occurred within five years of experiencing the stressor. Dr Cooper could not reach that decision from direct assessment of Mr You; nor was he confident that Mr You suffered from clinically significant distress, as required by Criterion E of Instrument Nº 101 of 2007. In Dr Cooper’s opinion, Mr You did not meet the template of SoP Nº 1 of 2000, concerning anxiety disorder as the reported stressors where not severe psychosocial stressors.
88. Mr Burge, psychologist, unreservedly diagnosed a GAD with onset in 1969. He based the date of onset on Mr You’s episode of abdominal pain and diarrhoea requiring hospitalisation. Mr Burge regarded this episode as being of psychosomatic aetiology. He identified three stressors: first, Mr You’s response to Sergeant O’Shea’s distress on hearing of the death of his cousin; secondly, Mr You viewing soldiers killed in action; and thirdly, Mr You riding shotgun on occasions to Ba Ria. Mr Burge considered these events to have all been very stressful and having a deep impact. He felt that Mr You’s condition met all the diagnostic criteria for GAD and the definition of a severe psychosocial stressor as outlined in SoP Nº 1 of 2000. Mr Burge had not addressed the requirements of SoP Nº 101 of 2007 in his written report. However, in the course of his oral evidence, given by telephone, he was able to refer to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (Text Revision) (DSM-IV-TR), which forms the basis of SoP Nº 101 of 2007. Having done so, Mr Burge believed that all the diagnostic criteria of SoP Nº 101 of 2007 were met, as was the definition of the category 1B stressor.
89. Mr Burge was not a convincing witness. During his evidence he had, mistakenly, referred to Mr You’s condition as post traumatic stress disorder (PTSD), had considered Mr You to be depressed and, to his recollection, Mr You had drunk to excess after experiencing the stressor of identifying soldiers killed in action. In his evidence, Mr You had stated that he suffered from intolerance to alcohol which he blamed on his Chinese heritage and whilst in Vietnam had drunk nothing but soft drinks. Post-service, he occasionally had a glass of light beer. The sudden onset of an illness had prevented Mr Burge from attending the hearing in person, but he had considered himself able to give evidence by telephone. It may well be that Mr Burge’s illness had impacted on the quality of his evidence. Mr Burge is a psychologist and as such, his professional qualifications, training and breadth of experience are not commensurate with that of the psychiatrists.
90. Mrs You described her husband as a perfectionist, pedantic, setting high standards for himself and others, and desiring his environment to be ordered and controlled.
91. DSM-IV-TR, and its predecessor DSM-IV, provide the basis for all diagnostic criteria contained in the SoP concerning psychiatric disorders. At 301.4, DSM-IV-TR describes the diagnostic features of obsessive-compulsive personality disorder as being a:

...preoccupation with orderliness, perfectionism, and mental and interpersonal control, at the expense of flexibility, openness and efficiency. This pattern begins by early adulthood and is present in a variety of contexts.

And at p 727:

...[Such] persons are prone to become upset or angry in situations in which they are not able to maintain control of their physical or interpersonal environment...

DSM-IV-TR also states that individuals with anxiety disorders have an increased likelihood of having a personality disturbance that meets the criteria of obsessive-compulsive personality disorder. Doctors Strauss and Cooper have not made a diagnosis of an obsessive compulsive personality disorder but have identified personality traits that are major features of such a diagnosis.

92. In light of the psychiatric reports and opinions, the Tribunal is not reasonably satisfied that Mr You suffers from GAD; or that any symptoms that might have suggested such a diagnosis were apparent to Mr You within five years of his Vietnam service. Mr You has not claimed or suggested that his personality traits are related to his army service nor has any psychiatrist considered his personality traits to be other than innate. As no psychiatric disorder has been identified following consideration of all the material before the Tribunal, it cannot be said that the material points to a hypothesis connecting the claimed disease, found absent, with the circumstance of service rendered by Mr You. The application therefore fails at step one of the Deledio process.
93. Having found that Mr You does not, to the Tribunal’s reasonable satisfaction, suffer from GAD and that any anxiety that he may display relates to obsessive- compulsive personality traits, it is not necessary to consider his application for pension at the special or intermediate rates. This claim had been based on the contention that GAD had precipitated his resignation in February 2005 and continued to prevent him from working for remuneration. In his oral evidence to the Tribunal, Mr You stated that he believed that he could still work, provided that he could do so by himself or with one colleague. He nominated working as a security guard at Watsonia Barracks as a suitable position as there is only one or two of you on at a time (transcript p 41, 26 November 2007). Mr You does have accepted physical disabilities but Dr Horsley’s assessment of these disabilities, as being mild and not preventing Mr You from working for more than 20 hours per week, has not been challenged.
94. The Tribunal affirms the decision under review.

I certify that the ninety-four [94] preceding paragraphs are a true copy of the reasons for the decision of:

Miss E.A. Shanahan, Member

(sgd) Mara Putnis

Clerk

Dates of hearing: 26 November 2007, 7 February 2008 and 11 September 2008

Date of decision: 13 January 2009

Advocate for Applicant: Mr D. De Marchi, De Marchi and Associates

Advocates for Respondent: Mr K. Herman and Mr K. Rudge, Department of Veterans’ Affairs