Rehn and Repatriation Commission [2012] AATA 48 (25 January 2012)

Last Updated: 31 January 2012

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5483

VETERANS' APPEALS DIVISION		)
	Re		CHRISTOPHER REHN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President D G Jarvis and Lt Col R Ormston (Rtd), Member

Date 25 January 2012

Place Adelaide

Decision

The tribunal sets aside the decision under review, and: (a) in place of that decision, determines that the applicant is suffering from post-traumatic stress disorder, and that that condition is war-caused; and (b) remits the matter to the Repatriation Commission for re-assessment of the applicant’s entitlement to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of that condition will commence from 1 September 2009.

D G Jarvis
.... [Signed] ...
Deputy President

CATCHWORDS

VETERANS' AFFAIRS - Veterans' entitlements - operational service – dispute as to diagnosis of applicant’s condition - diagnosis not to be determined by Statement of Principles - held that applicant was suffering from post-traumatic stress disorder - decision under review set aside.

Veterans’ Entitlements Act 1986 (Cth), ss 9 and 120(4)

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

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Jamandilovski v Telstra Corporation Limited [1994] FCA 1578

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139

Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392

Repatriation Commission v Norton [2008] FCA 1132

Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366

REASONS FOR DECISION

25 January 2012	Deputy President D G Jarvis
	Lt Col R Ormston (Rtd), Member

1. The applicant, Christopher Ross Rehn, joined the Australian Army in September 1967, and was engaged in operational service in Vietnam from 22 February 1969 until 11 February 1970. He was discharged from the Army in September 1970.
2. The present proceedings arise out of a claim which Mr Rehn lodged on 1 December 2009 under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) for a disability support pension for post-traumatic stress disorder (PTSD). He also claimed for other disabilities, namely alcohol abuse, chronic bronchitis and emphysema, hearing loss, tinnitus and tinea. A delegate of the Repatriation Commission decided to accept conditions of chronic airflow limitation and tinnitus as being related to service, but decided that alcohol abuse was not related to service and that Mr Rehn was not suffering from PTSD.
3. Mr Rehn later applied to the Veterans’ Review Board (VRB) for review of the decision in respect of his claims for PTSD and alcohol abuse. In August 2010, he withdrew his claim for alcohol abuse. In October 2010, the VRB decided to affirm the Commission’s decision in relation to PTSD. Mr Rehn has applied to this tribunal for review of the Commission’s decision in respect of PTSD.

ISSUES BEFORE THE TRIBUNAL

4. The primary issue before the tribunal is whether Mr Rehn suffers from PTSD. The Commission conceded that if he does, the condition is war-caused.
5. There is a conflict in the medical evidence before us as to whether or not Mr Rehn suffers from PTSD. The Commission contests this diagnosis on the basis that we should not be satisfied that Mr Rehn experienced a traumatic event that would support a diagnosis of PTSD. The Commission further contends that if Mr Rehn is not suffering from PTSD, it is open for us to find that he is suffering from some other psychiatric condition, namely alcohol abuse or alcohol dependence, or an anxiety disorder, but that he is not entitled to benefits in respect of those conditions because:

(a) he had specifically withdrawn his claim for alcohol abuse prior to the termination of the proceedings in the VRB; and

(b) the factors referred to in the Statement of Principles (SoP) concerning anxiety disorder are not satisfied, and we must therefore decide that that condition was not related to his operational service.

6. Counsel for Mr Rehn declined to address the Commission’s contentions as to possible alternative diagnoses, and the legal consequences if some other diagnoses were held to be appropriate, but the position taken by counsel does not of course relieve us of the need to consider these issues.

BACKGROUND

7. The following background facts are not in contention, and are based on the evidence of Mr Rehn, and the documentary material before us.
8. Mr Rehn is aged 61. He left high school after third year at the age of 15. After that he engaged in a variety of unskilled work until he was 17, and he then joined the Australian Army. He completed his training and was posted to the 1^st Armoured Regiment. In February 1969, after further training, he was posted to B Squadron 1^st Armoured Regiment at Nui Dat, South Vietnam. He worked there as a storeman in the canteen.
9. The claim for pension that Mr Rehn lodged in December 2009 included a section filled out by his then doctor, Dr Michael Nugent of Clare. Dr Nugent recorded on the form that he had made a diagnosis of PTSD, and that he had first been consulted for this condition in September 2009. Under the heading “Basis for Diagnosis”, Dr Nugent wrote: “Symptoms as listed. Presentation.” The symptoms listed, in the section of the form required to be filled in by the veteran, were: “Relationship problems. Anger. Stress. Re-living Vietnam. Grinding teeth. Chewing tongue.” This part of the form also asserted in effect that “Stresse [sic] during duty in Vietnam” was believed to explain how service caused, contributed to or aggravated the disability (exhibit R1, T3, page 22).
10. The claim form also recorded that Dr Nugent diagnosed alcohol abuse, and the basis of the diagnosis were the signs and symptoms listed, namely “10 cans of beer per day +”. The same explanation was given as to the asserted relationship with service (exhibit R1, T3, page 23).
11. It is also necessary to refer to an earlier claim which Mr Rehn had made for a disability pension in October 1994. In this claim form, Mr Rehn listed various illnesses or injuries he had suffered during his service, and relevantly included “nervous condition” and “alcohol abuse” (exhibit R1, T6, page 53). The claim form identified the disabilities that he then claimed to have been war-caused, and disability 4 was described as “post-traumatic stress” and was asserted to have been caused by “stress sufferred [sic] on ‘grunt’ patrols; not knowing who was the enemy; friend died, in Vietnam.” A further disability, namely “alcoholism” was claimed and was asserted to have been due to “combat stress and the ready availability and cheapness of alcoholic drinks during my Vietnam tour, I took up drinking there and would go on binges between missions.” (exhibit R1, T6, page 54). A doctor C J McLeay confirmed a diagnosis for the two asserted disabilities referred to above, and described his diagnosis as final, not provisional.
12. The section 37 documents also include a copy of a medical report dated 20 March 1995 from the late Dr John B Truman, a consultant psychiatrist, to whom Mr Rehn had been referred by the Department of Veterans’ Affairs to assist in the investigation of his 1994 claims for PTSD and alcoholism. Dr Truman concluded that Mr Rehn did not have PTSD, and that there were no symptoms of any psychiatric disorder apart from chronic alcohol abuse. Dr Truman did not obtain a history that Mr Rehn had suffered “any severely stressful event” during his service in Vietnam, and also concluded that the claim for alcohol abuse was not supported by the SoP then in force in respect of that condition. We understand that the 1994 claim for PTSD and alcohol abuse was not accepted by the Commission, although the section 37 documents do not include a copy of the Commission’s decision in respect of those claims.
13. In support of his claim for PTSD, Mr Rehn relies on a number of stressors to which we will refer below. Mr Rehn’s evidence was in some respects unsatisfactory, because he is not an articulate person and sometimes his answers were quite brief, and he also had difficulty in remembering events that occurred many years ago. However, he gave his evidence in a straightforward manner, and (except where we indicate otherwise) we accept his evidence as to the events which are said to constitute stressors, and as to his reaction to them.

MEDICAL EVIDENCE

14. Mr Rehn was referred by his general practitioner to a psychiatrist, Dr Dan Short, who first saw him in November 2009, and has seen him since then as his treating psychiatrist at intervals of approximately one month.
15. Dr Short has provided two reports to the Department of Veterans’ Affairs, dated 29 March 2010 and 22 February 2011. The second report referred to further occasions on which Dr Short had reviewed Mr Rehn, and is referred to as an amended report in place of the earlier report. Dr Short gave evidence and adopted the contents of his later report, and the parties made no further reference to the earlier report.
16. In his report of 22 February 2011, Dr Short records the history that he obtained, including Mr Rehn’s employment history, the history of his relationships and the history of a number of specific incidents that occurred during operational service. The report also records the symptomatology described by Mr Rehn. Dr Short refers to the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition (Text Revision) (DSM-IV (TR)) and proceeds to consider Mr Rehn’s situation by reference to the diagnostic criteria for PTSD. At page 20 of the report, Dr Short states that “the differential diagnosis” for PTSD “includes” major depressive disorder, generalised anxiety disorder, social phobia and “even” agoraphobia with panic disorder. He concludes by saying that in his opinion, Mr Rehn’s condition is best classified as PTSD. Further information relevant to the diagnostic criteria for PTSD is contained in the concluding section of Dr Short’s report, where he proceeds to assess the level of impairment according to the Guidelines to the Assessment of Rates of Veterans’ Pensions, 5^th Edition, Chapter 4, Emotional and Behavioural.
17. When he gave evidence, Dr Short was questioned carefully by Mr Crowe, the advocate for the Commission, as well as by the tribunal, as to the diagnoses other than PTSD to which he had referred in his report. Dr Short was clearly of the opinion that Mr Rehn is suffering from a psychiatric disorder, and said that whilst Mr Rehn also fulfilled the diagnostic criteria for alcohol abuse and generalised anxiety disorder, and perhaps also the less common diagnosis of anxiety disorder not otherwise specified, he remained definite in his view that PTSD was the most appropriate diagnosis. He referred in particular to Mr Rehn’s symptoms of flashbacks, his avoidance behaviour and elements of sleep disorder, which he regarded as more typical of PTSD than of the symptoms applicable to the other psychiatric disorders.
18. Dr Short further said in the course of his evidence that he was satisfied from the history he had obtained that Mr Rehn had been exposed to a number of specific events during his operational service in Vietnam that would satisfy the first diagnostic criteria of PTSD, entailing the experience of one or more stressors which produced a response involving intense fear, helplessness or horror. We note that in his report of 22 February 2011, Dr Short, after referring to documentation confirming certain rocket attacks on the Nui Dat base, said:

“In my opinion these attacks, as well as the lightning strike, were life-threatening events and Mr Rehn’s responses to these included intense fear and at times helplessness and horror.” (exhibit A8, pages 23-24)

19. As mentioned above, Dr Truman had concluded following his examination of Mr Rehn in 1995 that he was not suffering from PTSD. According to his report of 20 March 1995, Dr Truman inquired as to whether Mr Rehn had had any experiences which were severely stressful whilst he was in South Vietnam, but Mr Rehn had denied any such experiences, apart from referring to a friend with whom he was drinking until 2.00 am, and who was killed later that day when a tank blew up.
20. Mr Rehn did not dispute that he had failed to inform Dr Truman that he had experienced specific stressful events during his operational service. He said that this failure was because he did not like Dr Truman or his attitude, and also he did not want to be at the appointment with Dr Truman, because he thought that only “mad” people went to psychiatrists, and he did not think he was mad; he wanted “out of there” and did not want anything to do with Dr Truman.
21. The only other medical evidence before us is that included in the medical practitioners’ section of the claim forms, to which we have referred above.

LEGISLATIVE SCHEME

22. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
23. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly that this will be the case where the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service, or where the injury or disease arose out of, or was attributable to, any eligible war service rendered by the veteran.
24. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that the stressors on which Mr Rehn is relying occurred during his operational service.
25. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether Mr Rehn’s asserted conditions are war-caused. As mentioned below, the issue of diagnosis is a preliminary issue, and by virtue of s 120(4), this is to be decided to our reasonable satisfaction. Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
26. Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
27. Section 119(1)(f) and (g) provide in effect that the Commission is not bound to act in a formal manner and is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks just, and shall act according to substantial justice and substantial merits of the case, without regard to legal form and technicalities. Further, under section 119(1)(h), the Commission must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including its effect on the availability of witnesses, and the absence of, or a deficiency in, relevant official records.
28. References to the Commission in the above sections apply to this tribunal in the present proceedings, and in reviewing the Commission’s decision we are considered to be “in the shoes” of the Commission, and we should regard ourselves as performing the relevant function of the Commission in accordance with the law as it applied to the Commission: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 143, per Smithers J.

CONSIDERATION

29. The question of whether Mr Rehn is suffering from all or any of the conditions on which his claim is based must be determined on the balance of probabilities to the reasonable satisfaction of the decision-maker pursuant to s 120(4) of the VE Act: Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622.
30. The existence of a postulated disease should not be tested by reference to any SoP. Rather, it is necessary to determine what symptoms the veteran is suffering from, and whether those symptoms constitute an injury or disease as defined in the VE Act. This involves considering the veteran’s evidence and the relevant medical evidence before the tribunal, as well as relevant evidence of the veteran and any other lay witnesses. The fact that SoPs incorporate a definition of the relevant injury or disease which is generally taken from DSM-IV does not make the SoP determinative of the existence or otherwise of the asserted injury or disease (see Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363). The definitions of diseases in SoPs commonly reiterate the diagnostic criteria in DSM-IV(TR), but the definitions should be used not as the basis for decisions on diagnosis, but to determine whether a particular SoP is relevant to the disease from which the veteran has been found to be suffering.
31. Mr Crowe contended that we should not be satisfied that Mr Rehn is suffering from PTSD, because the specific events relied upon as constituting stressors did not satisfy the diagnostic criteria for PTSD, in that they were not events that involved actual or threatened death or serious injury or a threat to the physical integrity of Mr Rehn or others, and further Mr Rehn’s response did not involve intense fear, helplessness or horror. Mr Crowe supported his submission by reference to the evidence as to the nature of the events, and by reference to Mr Rehn’s evidence as to his reaction to the events. In addition, Mr Crowe relied upon the report of the late Dr Truman in 1995.
32. We attach little weight to the report of Dr Truman. Counsel for Mr Rehn was, we think, rightly critical of what appears to be a cavalier comment in the penultimate paragraph of Dr Truman’s report, to the effect that Mr Rehn, having been exposed to alcohol at the age of 19 and having had free access to it, “like two thirds of the population, he became a heavy drinker” and in his opinion, would “just as likely” have become a heavy drinker if he had not gone to Vietnam (exhibit R1, T12, page 66).
33. In addition, there is inherent difficulty in assessing the weight of medical reports on contested issues where the author of the report is not or cannot be called to give evidence, in circumstances where competing opinions are provided by experts whose opinion is tested in cross-examination: Jamandilovski v Telstra Corporation Limited [1994] FCA 1578. Of course, the same comment applies to the diagnoses made by Drs McLeay and Nugent as recorded on the claim forms (and these entail the further difficulty that they contain minimal explanation as to the basis of their diagnoses).
34. In addition, we accept Mr Rehn’s evidence as to his reasons for not disclosing relevant history to Dr Truman when he was referred for assessment. In this regard we further take into account Dr Short’s evidence to the effect that in his experience, persons suffering from PTSD are often defensive about revealing details of the stressors to which they have been subjected; and in Mr Rehn’s case in particular, he found that Mr Rehn was not forthcoming at his first consultation, and it was not until subsequent consultations that Mr Rehn provided further information about the relevant stressors, and felt able to talk about them. We think that Dr Short made trenchant comments in the penultimate paragraph of his report of 22 February 2011, when he said:

“(Mr Rehn’s) laconic, occasionally dismissive comments in response to most questions about his Vietnam experiences are a facade to minimise scrutiny and allow him to retreat from his own anxiety symptoms. With the benefit of multiple reviews over a significant period of time, and with the additional benefit of being able to interview Mr Rehn’s wife, Yvonne, it has been possible to essentially force Mr Rehn to discuss his experiences and responses in depth. This has allowed a greater understanding of Mr Rehn’s condition, as well as the opportunity to elicit the range of symptomatology described above.” (exhibit A8, page 24)

35. However, it remains necessary to consider the evidence before us as to the events relied upon as stressors and Mr Rehn’s reaction to them, in view of the significance of these issues to the diagnosis of PTSD.
36. In cross-examination Mr Rehn said that the most stressful thing that had happened to him during his service was his experience of rocket attacks when he was at the Nui Dat base on 6 and 7 June 1969. He said that he had been at the field hospital at Nui Dat, where he had been confined in bed for about three days with a malaria-type fever. He said that at about 9.00 am on 6 June he was told that he had to go back to camp. He got up and had a shower, and then had to wait for some hours for a driver to collect him and take him to the camp. While he was waiting he heard rockets landing, and saw a lieutenant being brought to the field hospital with a wound to the neck, and later two other personnel, who were brought in on stretchers. He was waiting outside the field hospital, but this was protected by sandbags. He said that he was smoking his head off, and was “a bit nervous”. Later he was more expansive; he said he was in fear of his life from the rocket attacks, and the fever he was suffering from made it more difficult and “highlighted” his fear. He said that the rocket attacks continued for some hours.
37. In his written statement, exhibit A1, he said that some of the rockets fell around the airstrip, and others landed on the western side of Nui Dat Hill. He said that he felt that the attacks “were very life threatening and were over a prolonged period of time” (exhibit A1). He was taken from the field hospital to the bunker at the camp during a lull in the attack, but then the attack started again.
38. Mr Rehn also referred to rocket attacks on 28 and 29 May 1969. He said that this was his first experience of a rocket attack. A stand-to order was given, and he went into a bunker with other personnel. He thought that he was in the bunker for an hour or two before the stand-down order was issued. He also said that he did not know where the rockets would be landing at the time, and they were life threatening events (exhibit A1). He said also in evidence that he feared for his life. He was somewhat uncertain as to the times of the day and duration of the rocket attacks in May and June 1969, and as he said, his recollection of these aspects might have involved some confusion between the attacks that occurred.
39. The respondent tendered a historical report from Writeway Research Service Pty Ltd dated 1 June 2011 (exhibit R3). This report referred to certain historical records, and these records, together with records tendered by the applicant, confirmed that rocket attacks had taken place on the dates referred to by Mr Rehn. A map (exhibit R2) which is annexed to the report indicates the impact points of the rockets and mortar rounds that fell on the dates in question, as well as the position of the field hospital and the bunker where Mr Rehn sheltered. It appears that some rockets would have fallen about one to one and a half kilometres away from Mr Rehn’s position.
40. Evidence was given by the witness Adrian Craig as to the blast distance from the point of impact of rockets of the kind in question. Mr Crowe submitted by reference to this evidence and to the location where the rockets and mortar fell as depicted on the map (exhibit R2) that in fact, none of the rockets or mortar shells involved an actual threat of death or serious injury to Mr Rehn or others at the location where he was. We accept that this is the position. However, following the decision of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366, it is clear that it is not necessary for there to be an actual threat to the veteran’s (or another person’s) physical integrity before it can be said that the veteran has experienced a severe stressor. His Honour said, at [55]:

“In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”

His Honour’s analysis was later approved by a Full Court on appeal (Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392), and in a number of other later cases referred to in the helpful summary by Heerey J in Repatriation Commission v Norton [2008] FCA 1132 at [20], where courts have further explained the objective and subjective requirements of the concept of experiencing a severe stressor.

41. We are satisfied that the rocket and mortar attacks which Mr Rehn experienced in May and June 1969 involved the threat of death or serious injury, or a threat to the physical integrity of Mr Rehn or others with him. As Mr Rehn said in his witness statement with reference to the attacks on 28 and 29 May 1969, he did not know where the rockets would be landing at the time. Further, he would not have known how many rockets would be fired or for how long the attacks would last. We are satisfied that the attacks meet the first limb of the first diagnostic criteria for PTSD.
42. We are also satisfied from the evidence to which we have referred above that Mr Rehn’s reaction to the attacks satisfies the second limb of the first criteria, that is that his response involved intense fear or helplessness.
43. Mr Rehn relied on other stressors. He gave evidence of having experienced a lightning strike in October 1969 when he was on sentry duty on an elevated platform. The lightning struck the ground nearby, and he was fearful of further strikes and so went down from the platform. He then had to go back up to the platform to retrieve his radio, and whilst doing so was fearful of being struck by lightning. He then made a radio call to the command post operator, who told him to return to the command post with his radio.
44. Other stressors to which he referred in his witness statement included being stood-to in battle stations during a mortar attack on 18 January 1970 which went on for about an hour, when he thought his life was in danger, and being on TAOR patrols and being afraid of being ambushed or stepping on a mine. We note that the history obtained by Dr Short also includes these events, as well as the other stressors to which we have referred and also further specific incidents which, he reported, impacted upon Mr Rehn during his service in Vietnam.
45. In view of our findings in relation to the rocket attacks in May and June 1969, it is not necessary for us to address the evidence as to the various further events, or to determine whether they met the first diagnostic criteria for PTSD.
46. In order to address Mr Crowe’s submissions, we have carefully considered the evidence as to the first diagnostic criteria for PTSD. However, the substantive issue before us is to determine the correct diagnosis of Mr Rehn’s condition. As mentioned above, Dr Short is firmly of the view that Mr Rehn is suffering from a psychiatric condition, and we accept this. The question for our determination is whether that condition is PTSD. Dr Short is satisfied that Mr Rehn experienced stressors and a reaction to them that met the diagnostic criteria for PTSD, as were Drs McLeay and Nugent (to the extent to which any weight can be given to the diagnoses of those doctors, as recorded in the 1994 and 2009 claim forms). Apart from Dr Truman’s report, which we have largely discounted for the reasons referred to above, there is no contrary medical opinion before us. We accept that the symptoms to which Dr Short referred in preferring the diagnosis of PTSD, namely flashbacks, avoidance behaviour and elements of sleep disorder, support his diagnosis of PTSD, and these symptoms are consistent with Mr Rehn having had the relevant experience of stressors. We accept Dr Short’s diagnosis. We find that Mr Rehn is suffering from PTSD.
47. As mentioned above, it was conceded that if we find that Mr Rehn is suffering from PTSD then the Commission accepts that his condition is war-caused. We regard this concession as having been properly made. There is evidence before us supporting an hypothesis connecting Mr Rehn’s PTSD with the circumstances of his service. A SoP is in force in respect of PTSD, namely Instrument No. 5 of 2008 concerning PTSD. The SoP upholds the hypothesis connecting Mr Rehn’s PTSD with his operational service, in that there was material before us that Mr Rehn experienced a category 1A stressor before the clinical onset of PTSD. Having regard to our findings in relation to the rocket attacks in May and June 1969, we are not satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Rehn’s PTSD was war-caused. We must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Rehn’s condition is war-caused.
48. It was not suggested that if we were to find in favour of Mr Rehn, we should not exercise our discretion under s 20 of the VE Act to determine that Mr Rehn’s entitlement to pension in respect of PTSD should take effect on 1 September 2009, being three months before the date on which his claim for pension for that condition was lodged.

DECISION

49. The tribunal sets aside the decision under review, and:

(a) in place of that decision, determines that the applicant is suffering from post-traumatic stress disorder, and that that condition is war-caused; and

(b) remits the matter to the Repatriation Commission for re-assessment of the applicant’s entitlement to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of that condition will commence from 1 September 2009.

I certify that the 49 preceding paragraphs are a

true copy of the reasons for the decision herein

of Deputy President D G Jarvis and Lt Col R Ormston

(Rtd), Member

... Signed: ...

Associate

Date/s of Hearing 10 January 2012

Date of Decision 25 January 2012

Counsel for the Applicant Mr C Swan

Solicitor for the Applicant Swan Family Lawyers

Advocate for the Respondent Mr A Crowe

Rehabilitation & Compensation Group

Department of Veterans’ Affairs