Mewburn and Repatriation Commission [2009] AATA 58 (28 January 2009)

Last Updated: 28 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 58

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V 200600506

VETERANS’ APPEALS DIVISION		)
	Re		DONALD JAMES MEWBURN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr Gordon Hughes

Date 28 January 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and in substitution decides that general anxiety disorder is war-caused and the applicant is entitled to a disability pension at the special rate with effect from 22 August 2005.

(sgd) Dr Gordon Hughes
Member
VETERANS’ AFFAIRS – disability pension – applicant seeks increased disability pension at the special rate – generalised anxiety disorder – relevance of other medical conditions – whether circumstances while on active duty in Vietnam satisfy Statement of Principles for generalised anxiety disorder

Veterans’ Entitlements Act 1986 sections 23, 24, 120, 120A

Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193

Repatriation Commission v Gorton [2001] FCA 1194

Re Jenkin v Repatriation Commission (1997) 24 AAR 494

REASONS FOR DECISION

28 January 2009 Dr Gordon Hughes, Member

1. The Applicant was receiving a disability pension at 100 per cent of the general rate under the Veterans’ Entitlements Act 1986 (the Act). He claimed that he was suffering a generalised anxiety disorder which was war-caused and which entitled him to an increased disability pension at the special rate.
2. The principal issues for determination by the Tribunal were, therefore, whether the Applicant was suffering a generalised anxiety disorder, whether that condition fell within the description contained in the relevant Statement of Principles (SoP), whether there was a reasonable hypothesis connecting that condition to the Applicant's service in Vietnam, and whether the resultant degree of any incapacity entitled the Applicant to a disability pension at the special rate.

BACKGROUND

3. The Applicant was born on 22 December 1948. He was conscripted into the Australian Army in 1970 and served from 22 April 1970 to 9 December 1971. He served in Vietnam between 24 February 1971 and 28 October 1971.
4. The Applicant claimed to be suffering a generalised anxiety disorder as a consequence of his army service in Vietnam. His claim to have the condition accepted as war-caused had previously been rejected by the Repatriation Commission on 17 January 2006. The Veterans' Review Board affirmed the decision on 15 May 2006. The Applicant's rated disability pension was increased from 60 per cent to 100 per cent of the general rate with effect from 17 January 2007, based on an impairment rating of 65 points and a lifestyle rating of 4, determined pursuant to the Guide to the Assessment of Rates of Veteran's Pensions – Fifth Edition.
5. It was not disputed that the Applicant was suffering a number of conditions which had been accepted as service-related, namely:

psoriasis;

hypertension;

bilateral sensorineural hearing loss;

alcohol abuse;

gastro-oesophageal reflux disease;

lumbar spondylosis; and

osteoarthrosis of the right knee.

STANDARD OF PROOF

6. The standard of proof to be applied in considering a causal relationship to operational service is that specified in section 120(1) and (3) of the Act. That is, that the claim must be granted unless it can be shown beyond reasonable doubt that there is no sufficient ground for making such a determination. The Tribunal must reach this conclusion if the whole of the evidence fails to raise a reasonable hypothesis connecting the disability with service.
7. In addition, the claim, having been lodged after 1 June 1994, is further subject to the provisions of section 120A of the Act. Section 120A requires the reasonableness of a hypothesis relating a claim to service to be assessed by reference to any relevant Statement of Principles issued by the Repatriation Medical Authority. The relevant Statements of Principles are those which are in force at the time of review or, if they are unfavourable, those applying at the time of the delegate's decision: Repatriation Commission v Gorton [2001] FCA 1194. The Repatriation Medical Authority has issued the following Statements of Principles which are potentially relevant:

• Anxiety Disorder, Instrument No. 1 of 2000;
• Anxiety Disorder, Instrument No. 101 of 2007;
• Depressive Disorder, Instrument No. 58 of 1998; and
• Depressive Disorder, Instrument No. 27 of 2008.

The Statements of Principles are binding on decision makers at all levels (see Re Jenkin v Repatriation Commission (1997) 24 AAR 494).

8. The application of these provisions is affected by the decision of Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193. According to the Federal Court in Deledio, Statements of Principles are designed to do no more than deal with the reasonableness of the medical and scientific components of a hypothesis (pp 204 and 205). Accordingly, a hypothesis will be upheld by the relevant Statement of Principles if the hypothesis is consistent with the Statement of Principles, in the sense that the hypothesis includes a factor prescribed by the Statement of Principles. The existence of the relevant factor is determined by applying the standard of proof in subsections 120(1) and (3) of the Act. If there is material before the Tribunal pointing to existence of the factor, rather than leaving it open as a possibility, and if the hypothesis is reasonable, the factor is taken to exist unless the contrary is proven beyond reasonable doubt.

LEGISLATION

9. A person's entitlement to the special rate of pension is determined by reference to section 24 of the Act. For the purposes of this claim, the key requirements under section 24 which are to be satisfied by the Applicant are, paraphrased:
   • his incapacity from war-caused injuries or diseases must be assessed as being at least 70 per cent (s24(1)(a)(i));
   • his incapacity from war-caused injuries or diseases must prevent him from working more than eight hours a week (s24(1)(b)); and
   • his incapacity from war-caused injuries or diseases must have thereby caused a loss of salary, wages or earnings (s24(1)(c)).
10. In respect of the Applicant's operational service and as foreshadowed above, sections 120(1) and 120(3) of the Act apply.
11. Section 120(1) states:

Where a claim under Part II for a person 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.

12. Section 120(3) provides:

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.

13. Section 120 is affected by section 120A, again as foreshadowed above. Specifically, section 120A(3) provides:

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.

...

14. This claim focused primarily upon SoP 101 of 2007 (Statement of Principle concerning Anxiety Disorder). Of particular relevance was paragraph 6 of SoP 101/2007, which says:
    6. 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 war 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 year 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; or

...

15. The relevant stressors are defined in paragraph 9 as follows:

...

"a category 1A stressor" means one or more of the following severe traumatic events:

(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means 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;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;
...

EVIDENCE

Applicant's war service

16. The Applicant told the Tribunal that in Vietnam he was based at Vung Tau with 5 Company Workshop. He worked as part of a Transport Company, assisting in making spare parts available for army vehicles. At the time he was conscripted, he was a printing apprentice and he had deferred his entry into the army in order to finish that apprenticeship.
17. The Applicant said that he had never been a smoker and, prior to entering the army, had not been a significant consumer of alcohol.
18. The Applicant stated that once in the army, he began to drink more heavily in accordance with the prevailing culture. He said he had free access to beer in Vietnam when he was not on duty and would consume 6 to 8 cans of beer on a typical night. Once he was discharged from the army, he continued drinking at that level.
19. While in Vietnam, he experienced a number of events which, he said, never leave me.
20. On one occasion, he was required to guard a severely wounded Viet Cong soldier. The Applicant described him as a mess. The Applicant was forced to fend off a wounded Australian soldier who wanted to attack the prisoner. He said he had been permanently affected by the experience and more so by the realisation that the prisoner was likely to be handed over to the South Vietnamese police once he had sufficiently recovered and would then probably be killed.
21. Another experience which the Applicant found particularly disturbing related to witnessing the unloading of casualties from a helicopter. He said the landing pad was not close but he could clearly see the wounded and dead being unloaded. He knew which casualties were dead because they were taken to a separate, makeshift morgue.
22. The Applicant was also required to participate in various patrols. The objective was to patrol around the perimeter of his base but on one occasion the patrol strayed too far and was confronted by a South Korean soldier from a neighbouring base who cocked his machine gun and aimed it at the group. The confrontation was amicably resolved but the incident caused the Applicant considerable fright.
23. In another incident, the Applicant had been riding shotgun in a Landrover which was transporting two visiting Citizen Military Forces captains in the area of the Long Hai mountains when they were turned back by US Military Police who informed them, somewhat aggressively, that they were in enemy territory and should leave quickly. The return journey caused the Applicant considerable anxiety as he feared he could be killed at any moment.

Applicant's post-war experiences

24. The Applicant said that when he returned from Vietnam, he did some labouring work for a brief time but did not enjoy it and returned to the printing trade. Initially, he worked for one or two printing companies but found the experience to be too confining. He said he felt different back in civilian life and could not relate to others about his experiences in the army or in Vietnam.
25. In order to gain more flexibility in his life, the Applicant decided to open a printing business with a fellow worker. The business was based in Preston and lasted for 20 years. At one stage, the business employed 38 people. He sold the business about 5 years ago, however, because he felt he was becoming gradually overwhelmed. He found it difficult to deal with customers and did not like meeting deadlines.
26. The Applicant said that he would rather still be working but was unable to do so because of his health problems. It was his increasing anxiety which principally prevented him from working. The Applicant said he had lost income as a result of ceasing work, although he was able to live off the superannuation which he had saved. He thought he could no longer run a business due to his problems with concentration and short-term memory loss.
27. The Applicant said he had suffered two significant bouts of illness over the past decade. In February 2002 he suffered a stomach thrombosis but was able to return to work for 12 months after recovering. In November 2004, having ceased work, he suffered a stroke. He said that his anxiety state had been becoming progressively worse and that it was this anxiety, not the lasting effects of the stomach thrombosis, which caused him to cease work in 2003; and likewise, it was his anxiety state, not the effects of his stroke, which prevented him from resuming work now.

Evidence of Applicant's wife

28. The Applicant's wife, Gwenda, also gave evidence. She said she noticed a change in her husband upon his return from Vietnam. He was drinking more heavily and had developed skin problems. He did not want to socialise with people or talk about his war experiences. In her view, the Applicant ceased work in 2003 because of a build up of emotions over the years. She thought that the Applicant's depression, associated with his long term alcohol abuse, played a role in the deterioration of his psychological state. She did not think the Applicant could work now because he would be unable to concentrate. These problems in concentration had existed since he had returned from Vietnam. She said his memory loss had been deteriorating over a period of time and she would not attribute it to the effects of his stroke in 2004.
29. Gwenda Mewburn acknowledged that there had been other stresses in the Applicant's life in 2004, prior to him ceasing work; including the stress of dealing with an illness which she had suffered and also an illness which the Applicant's sister had suffered. Nevertheless, he appeared to have overcome the effects of the stress from these specific sources before he ceased work. Mrs Mewburn acknowledged that her husband had general health problems at this time but said that they appeared to be under control with medication. She thought it would have been better for the Applicant emotionally to keep working but he felt unable to do so. She thought the Applicant would have given up work due to his psychological state many years beforehand if she had not encouraged him to continue working.

Medical and psychological evidence

30. Mr Michael Burge, clinical psychologist, gave evidence on behalf of the Applicant. He confirmed a diagnosis of chronic anxiety and depression; which he attributed directly to the extreme stresses experienced by the Applicant in Vietnam. This condition had contributed to his incapacity from 2003, particularly in relation to his loss of concentration, sleeping problems and anger. Mr Burge felt the Applicant had a negligible ability to work now. Mr Burge was of the opinion that the Applicant was suffering a chronic anxiety disorder and dysthymic disorder within the meaning of the Statement of Principles for Generalised Anxiety Disorder (Instrument No. 101 of 2007) and the Statement of Principles for Depressive Disorder (No. 17 of 2007); and that the Applicant had been suffering these ongoing conditions since his return from operational service in Vietnam in 1971. He related the conditions directly to the severe stressors to which the Applicant was exposed during his operational service, which he said were highly disturbing to the Applicant and which caused the Applicant to experience horror, extreme fear and depersonalisation.
31. Mr Burge resisted suggestions from the Respondent's representative that his report lacked objectivity due to its failure to mention other potentially contributing factors, such as the stomach thrombosis of 2002, the stroke of 2003, the existence of various family stresses and the fact of the Applicant's success while he ran a business for 20 years. He said he was aware of these factors but he confined himself to the precise questions which he had been asked. Mr Burge added that, in any event, the significance of the Applicant's psychological condition was quite obvious.
32. The Respondent called medical evidence from psychiatrist Dr Nigel Strauss. Dr Strauss found evidence of depression but not of anxiety. He said that he did not diagnose a generalised anxiety disorder because he did not believe any of the relevant stressors existed. Dr Strauss acknowledged under cross-examination that it was possible the Applicant met the requirements of factor 6(a)(iii) of SoP 101 of 2007 (which refers to experiencing a category 1B stressor. In particular, he might have experienced a paragraph (b) stressor viewing ... critically injured casualties as an eyewitness) as a result of his experience in guarding the severely injured Viet Cong prisoner in hospital. Dr Strauss also acknowledged that it was possible that he experienced a paragraph (e) stressor (being an eyewitness to ... the clearance of ... casualties) when he viewed the injured and dead soldiers being unloaded from helicopters; but in each case it was difficult to be certain. Dr Strauss did not consider the Applicant was incapacitated on psychiatric grounds. Dr Strauss also provided a written report dated 29 March 2007, in which he observed:

I ... feel that there is no evidence to suggest that this man experienced a severe psycho-social stressor while he was in Vietnam or in the Army. Rather he simply found it unpleasant to be in the Army and in Vietnam and he became depressed. He may have been a vulnerable man because of his personality type but there is no evidence to suggest that he suffered a severe psycho-social stressor.

33. The Respondent also called evidence from Dr Robyn Horsley, occupational physician. She attributed the Applicant’s concentration problems to the effects of his stroke in 2004. He seemed to have no literary issues prior to the stroke. Dr Horsley was of the opinion that the Applicant's accepted disabilities did not prevent him from working more than eight hours per week (in reference to section 24(1)(b) of the Act). Dr Horsley was also of the opinion that the Applicant's primary disabilities were the effects of his psychiatric condition and sagittal vein thrombosis, and that even if the Applicant were free of his accepted disabilities, he would still be unfit for work. Dr Horsley also noted that the Applicant's age and time out of the workforce were also barriers to his return to work. Dr Horsley noted the existence of a generalised anxiety disorder but deferred to psychiatric experts on the question of what effect this might have on the Applicant's existing and future work capacity.
34. The Respondent placed into evidence a report dated 7 December 2007 from Writeway Research Service. The report confirmed that 5 Company was adjacent to 1 Australian Field Hospital in the 1 Australian Logistic Support Group Base at Vung Tau, separated by a wire fence about 2 metres in height and about 130 metres from the closest 5 Company soldiers' accommodation hut. The report further confirmed that the Applicant could have been exposed to the sight of medical personnel receiving battlefield casualties evacuated by Dust-off helicopters; although the report also speculated that the view from the neighbouring accommodation huts would have been partially obscured. In relation to the Applicant's description of an encounter with a South Korean guard, the report confirmed that there was a Republic of Korea Rest and Recreation Centre in close proximity to the Australian prescribed patrol areas of operation and that this could conceivably result in an incident like that described by the Veteran.

DISCUSSION

35. The Respondent submitted that the expert medical evidence was that the Applicant's capacity for work was not affected by his accepted conditions, and that other factors affected his work capacity. The Applicant's accepted disabilities alone did not prevent him from undertaking remunerative work, and he was not prevented from continuing to undertake remunerative work by reason of incapacity from war-caused disabilities alone. Accordingly, the Applicant could not satisfy the relevant provision of sections 23 and 24 of the Act, and the disability pension was not payable at the intermediate rate or the special rate.
36. The Tribunal is confronted with contrasting conclusions by Mr Burge, who confirmed the existence of a generalised anxiety disorder, and by Dr Strauss who concluded that the Applicant was suffering a mild depressive disorder. The Tribunal considers that Mr Burge's diagnosis is more consistent with the evidence of the Applicant and Mrs Mewburn. From its observations of the Applicant, the Tribunal is satisfied as to the accuracy of Mr Burge's summary of the Applicant's symptoms which supported his diagnosis:

I have noted symptoms reported by Mr Mewburn involving excessive anxiety and worry, that is difficult to control, has difficulty concentrating and his mind goes blank, irritability, anger, muscle tension, difficulty with sleep, depressed mood most days, fatigue, low self esteem, feelings of hopelessness.

As a result, the Tribunal accepts, to its reasonable satisfaction, that the Applicant is suffering a generalised anxiety disorder.

37. The Tribunal further accepts that the Applicant's generalised anxiety disorder is related to his war service. In the Tribunal's opinion, taking into account all the material, the hypothesis connecting this condition to the Applicant's war service is upheld by reference to category 1A and 1B stressors in the SoP No. 101 of 2007.
38. The Tribunal finds the Applicant and Mrs Mewburn to be truthful and credible witnesses. It accepts their evidence as to the Applicant's life and work experiences and the general deterioration in his mental state and general well-being. The Tribunal considers that the Applicant's experience in guarding a severely wounded prisoner falls within paragraph (b) of the definition of a category 1B stressor (viewing ... critically injured casualties as an eye witness). The prisoner was clearly suffering severe wounds (in the Applicant’s words, he was a mess) and the Applicant's exposure to that situation left him with a lasting and disturbing impression.
39. The Tribunal considers that the viewing of casualties being unloaded by helicopter in the vicinity of the Applicant's barracks falls within paragraph (e) of the definition of a category 1B stressor (being an eye witness to ... the clearance of critically injured casualties). The Tribunal acknowledges that there was some distance and a fence separating the Applicant from the helicopter landing pad where the casualties were received. The Tribunal nevertheless accepts the Applicant’s description of the impact upon him of watching the casualties being unloaded, with the dead being conveyed to a makeshift morgue.
40. The Tribunal further accepts that the Applicant's confrontation with the South Korean soldier while on patrol falls within paragraph (c) of the definition of a category 1A stressor (being threatened with a weapon). It is, of course, relatively easy, with the benefit of hindsight, to discount the episode on the basis that the South Korean soldier proved to be an ally and the incident was amicably resolved. The fact is that at the time of immediate confrontation, the Applicant had cause to experience grave fears for his own safety and, again, the incident left a lasting impression upon him.
41. Further, the Tribunal considers that the incident in which the Applicant was turned back by US Military Police, after straying into enemy-occupied territory, falls within paragraph (a) of a category 1A stressor (experiencing a life-threatening event). It might be said that the very fact of serving in a war zone is a life threatening event and that something more is required. In this instance, the Tribunal considers that the Applicant was exposed to something greater than the usual level of apprehension, given that he had immediate cause to anticipate imminent and lethal enemy attack.
42. The Tribunal accepts that each of these events contributed to the Applicant's anxiety disorder. This conclusion is supported by the evidence of Mr Burge and is summarised in his report of 16 March 2008:

It is apparent that the severe stressors that Mr Mewburn was exposed to during his operational service were highly disturbing to him and life threatening. He apparently experienced horror, extreme fear, and depersonalisation during these stressful events. The endurance of consequential psychiatric symptoms, since 1971 to present, are apparently linked to these severe stressors.

I am of the opinion that the psychiatric conditions diagnosed are causally linked to Mr Mewburn's operational service in Vietnam.

43. The Tribunal appreciates that Dr Strauss reached a contrary view as to the causal link between the Applicant's current psychiatric condition (however diagnosed) and his war service. The Tribunal considers, however, that Dr Strauss gave insufficient weight to the circumstances which confronted the Applicant in Vietnam when he concluded that there is no evidence to suggest that this man experienced a severe psycho-social stressor while he was in Vietnam.
44. The Tribunal also noted Dr Strauss's equivocation on the question of whether viewing the unloading of casualties from helicopters, in particular, might have constituted a category 1B stressor. Dr Strauss explained to the Tribunal that it was possible that this experience represented a category 1B stressor but it was difficult to form a definitive view. It is of course correct to conclude that it is, in broad terms, impossible to be definitive on an issue such as this. Ultimately, however, the Tribunal considers, after considering the Applicant's evidence and reviewing the evidence of the respective experts, that the episodes described had a distinct, profound and lasting effect on the Applicant.
45. The Tribunal accepts that the Applicant's anxiety disorder can be directly related to circumstances of his relevant service within a period of 5 years before the clinical onset of the disorder, as required by SoP 101/2007 paragraphs 6(a)(ii) and (iii). Evidence that the Applicant was free from any relevant symptoms prior to his service in Vietnam in 1971, and evidence that he demonstrated relevant symptoms almost immediately upon his return, was uncontradicted.
46. The Tribunal is satisfied that the Applicant satisfies the criteria set out in section 24(1) of the Act to be eligible for the special rate pension. In this regard, paragraphs (a) and (b) of section 24(1) are not in issue but it has been necessary to consider, specifically, whether the Applicant meets the requirements of section 24(1)(c), namely, that:

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 own or her account, that the veteran would not be suffering if the veteran were free of that incapacity; and

...

47. Section 24(1)(c) must be read in conjunction with section 24(2) and, specifically, section 24(2)(a):

(2) For the purposes of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

...

48. In simple terms, the Applicant is required under section 24(1)(c) to establish that by reason of the war-caused injury or disease alone, he is prevented from continuing to undertake his previous remunerative work and that this has led to a loss of earnings. By virtue of section 24(2)(a)(i), these requirements will not be met if the Applicant ceased work or is prevented from working due to non war-related reasons.
49. The Respondent contended that the Applicant's case should fail by virtue of section 24(2)(a)(i), on the grounds that when the Applicant ceased work, he did so due to a multitude of health problems. In December 2001, prior to ceasing work, the Applicant had been admitted to hospital with superior mesenteric vein thrombosis, and in October and November 2002, he consulted a cardiologist in relation to dizzy spells, blurred vision and periodic weakness, subsequently diagnosed as hypertension. After he stopped working in 2003, he suffered an epileptic seizure in November 2004. He was admitted to the acute stroke unit at the Austin Hospital where a sagittal sinus vein thrombosis was diagnosed. Clearly, therefore, the Applicant had experienced episodes of ill-health before and after he ceased work. The Respondent contended that there was an irresistible inference that the decision to cease work in 2003 was most probably motivated by a desire for a change in lifestyle, consequent upon his ongoing general ill-health, rather than the effect of his war-caused injuries; and that the Applicant's inability to return to the workforce was likewise attributable to health factors other than war-caused injuries.
50. The Respondent placed some emphasis on Dr Horsley's evidence in this regard. The report dated 10 October 2007 stated:

I don’t believe that Mr Mewburn's accepted disabilities of psoriasis, hypertension, bilateral sensori neural hearing loss, gastroesophageal reflux disease, right knee osteoarthritis or lumbar spondylosis prevent him from working more than eight hours per week or twenty hours per week on the basis of his previous occupation as a successful businessman.

His alcohol abuse does have some impact upon concentration and attention span, but I rely upon my Psychiatrist colleagues to tease out the effects of his alcohol abuse and his generalised anxiety disorder / PTSD / sequelae secondary to the sagittal vein thrombosis in November 2004.

The latter conditions are considered non accepted disabilities.

51. Of course, this conclusion is of less assistance to the Respondent if it is accepted, as the Tribunal has, that the generalised anxiety state was in fact a war-caused condition. The Respondent further emphasised that the Applicant failed to satisfy the alone test in section 24(1)(c); that is, that the Applicant's loss of employment flows from his accepted disabilities alone and not other factors. The fact remains, however, that the Applicant had been coping adequately with any underlying health problems and other stresses prior to ceasing work in 2003. He had recovered from his bout of ill-health in 2002 and had returned to work. He had been an excessive drinker for decades but this did not prevent him from working. The most significant constant in the Applicant's life since his return from Vietnam was a latent and progressively deteriorating mental state, directly traceable to his experiences in Vietnam in 1971, which ultimately overwhelmed him in 2003.
    

DECISION

52. For the above reasons, the Tribunal sets aside the decision under review and in substitution decides that general anxiety disorder is war-caused and the applicant is entitled to a disability pension at the special rate with effect from 22 August 2005.

I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Gordon Hughes, Member

Mara Putnis

Clerk

Dates of hearing: 28-29 August 2008

Date of decision: 28 January 2009

Advocate for the applicant: Mr D De Marchi

Solicitor for the applicant: De Marchi & Associates

Advocate for the respondent: Ms T Chant

Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs