Benjamin v Repatriation Commission

STATUTORY FRAMEWORK 5 Section 13(1) of the Act relevantly provides that where a veteran has become incapacitated from a war caused disease, the Commonwealth is, subject to the Act, liable to pay pension by way of compensation to that veteran in accordance with the Act. Under s 5D(2), a reference to the incapacity of a veteran from a war caused disease is, relevantly, a reference to the effect of that disease and not a reference to the disease itself. Under s 5D(1) disease means, relevantly, any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development, or the recurrence of such an ailment, disorder, defect or morbid condition. 6 Under s 9(1)(b) of the Act a disease contracted by a veteran is to be taken, for the purposes of the Act, to be a war caused disease if the disease arose out of, or was attributable to, any eligible war service rendered by the veteran. Thus there must relevantly be a causal connection between disease and eligible war service. 7 Section 14(1) of the Act provides that a veteran may make a claim for a pension in accordance with s 14(3). Under s 14(3), a claim for a pension must be in writing in accordance with an approved form and must be accompanied by such evidence available to the claimant as the claimant considers may be relevant. However, under s 14(3) that requirement is not to be taken to impose any onus of proof on the claimant or to prevent a claimant from submitting evidence in support of a claim subsequently to the making of a claim. 8 Where s 24 applies to a veteran, that veteran is, under s 24(4), entitled to a pension at a special rate. Section 24 relevantly applies to a veteran if the following factors are satisfied: · the veteran has made a claim under s 14 for a pension; · the veteran had not turned 65 when the claim was made; · the degree of incapacity of the veteran from war caused disease is determined to be at least 70 percent; · the veteran's incapacity from war caused disease is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week; and · the veteran is, by reason of incapacity from that war caused disease, alone, prevented from continuing to undertaken remunerative work and is, by reason thereof, suffering a loss of salary or wages that the veteran would not be suffering if he were free of the incapacity.

9 Section 120 of the Act deals with "the standard of proof" to be applied in relation to a claim under s 14. Under s 120(4), except in making a determination to which s 120(1) applies, the Commission must, in making any determination or decision, decide the matter to its reasonable satisfaction. 10 Under s 120(1), where a claim for a pension in respect of incapacity from disease relates to the operational service rendered by the claimant, the Commission is required to determine that the disease was a war caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Under s 120(3), in applying s 120(1) in respect of the incapacity of a person from disease related to service rendered by the person, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was a war caused disease. Only if the Commission, after consideration of the whole of the material before it, is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the person, is the Commission to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is war caused. 11 Section 120(3) is affected by s 120A, which applies, relevantly, to a claim for a pension made on or after 1 June 1994 that relates to the operational service rendered by a veteran. The operation of s 120A in relation to a claim for a pension for incapacity from a war caused disease depends upon whether there is in force an SoP determined under s 196B of the Act, in respect of the kind of disease contracted by the claimant. 12 Section 196A of the Act provides for the establishment of the Repatriation Medical Authority ("the Authority"). Section 196B(2) relevantly provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to the operational service rendered by veterans, the Authority must determine an SoP in respect of that kind of disease. Such an SoP must set out: · the factors that must as a minimum exist, and · which of those factors must be related to service rendered by a person,

before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of that service. 13 Section 196E(1) provides that certain persons and organisations, including the Commission, may ask the Authority to carry out an investigation in respect of a particular disease. Under s 196B(4), if the Authority receives such a request, it must carry out an investigation to obtain information that would enable the Authority to establish: · how the disease may be contracted; and · the extent (if any) to which the disease may be war caused.

Under s 196B(5), if, after carrying out an investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine an SoP in respect of that kind of disease, the Authority must do so as soon as practicable. Section 196G(1) requires that, as soon as practicable after the Authority has been asked under s 196E to carry out an investigation regarding a particular kind of disease, the Authority must publish in the Government Gazette a notice stating that the Authority intends to carry out an investigation in respect of that kind of disease. 14 Section 120A(2) provides that, if the Authority has given notice under s 196G that it intends to carry out an investigation in respect of a particular kind of disease, the Commission is not to determine a claim in respect of the incapacity of a person from a disease of that kind unless or until the Authority has either determined an SoP in respect of that kind of disease or has declared that it does not propose to make such an SoP. 15 Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis. However, under s 120A(4), s 120A(3) does not apply in relation to a claim with respect to the incapacity from disease of a person if the Authority has neither determined an SoP, nor declared that it does not propose to make such an SoP, in respect of the kind of disease contracted by that person.

FACTUAL BACKGROUND 16 The Veteran served in the Royal Australian Navy and rendered operational service, which is classified as eligible war service for the purpose of the Act, during thirteen discrete periods in 1968 and 1969. That service was mostly as a member of the complement of MV Jeparit, a merchant ship chartered by the Department of Defence for the transport of supplies to South Vietnam. The Veteran was one of a number of Navy personnel who served on the ship in that period, along with members of the MV Jeparit's merchant navy crew. 17 The Veteran told the Tribunal that he joined the Navy at age seventeen and served aboard several vessels in Far Eastern seas before his involvement on the MV Jeparit. He said that he began drinking in the Navy but considered himself a moderate drinker until after he went to South Vietnam, at which time he began craving alcohol. However, he was only allowed up to two cans per beer per day on Navy vessels and would occasionally get drunk prior to joining the MV Jeparit. His tolerance to alcohol increased during his service on the MV Jeparit, since he was able to drink as much as he wanted on that vessel. 18 The Veteran described to the Tribunal an incident in Vung Tau, when an alert was issued that divers were attempting to attach mines to the MV Jeparit. He was moved on to the wharf while the ship was checked. He had been drinking before and during the incident and said that he felt very confused and very afraid, especially as he did not know what was going on. He also described a further incident in Vung Tau during the Tet Offensive, at which time there were bombardments and rifle fire occurring in close proximity to the MV Jeparit, although at least a couple of kilometres away. 19 The Veteran lodged a claim under s 14 of the Act on 19 September 1997. In answer to a requirement in the claim form that he provide details of any illnesses suffered during service that related to the claim, he responded as follows: "PTSD. Whilst serving in Navy I went to SVN arriving on various ships. My main tours were on the Jeparit which took supplies to land forces. I feared for my life as we were constantly under threat of attack by enemy sappers, mortars, rockets, etc. We were defenceless in case of attack and those memories are still with me today…." It is common ground that the expression "PTSD" is a generally accepted acronym for the disease known as "post traumatic stress disorder". It will be used in that way hereafter. 20 In that part of the form that required the listing of details of disabilities claimed, the Veteran responded as follows: "PTSD. Whilst on MV Jeparit in SVN I feared for my life. We were always under threat of enemy attack by sappers, rocket and mortar fire." In response to the part of the form requiring details of medical treatment, the Veteran foreshadowed treatment in respect of "PTSD" on 27 October 1997 by Dr Reinhardt. The Veteran subsequently provided evidence in support of his claim in the form of a medical impairment assessment by Dr K. Dunstan, general practitioner, and Dr K. Reinhardt, consultant psychiatrist. 21 The medical impairment assessment was contained in a printed form issued by the Department of Veterans Affairs. The form is a request to a medical practitioner to assess a named disability. In the form in question, the disability named was "post traumatic stress disorder". Dr Dunstan answered each of the following questions "yes": (1) Does the Veteran suffer any symptoms of post traumatic stress disorder? (2) Have you observed any features of physical or emotional disturbance? (3) Do the observed disturbances of emotion and behaviour appear consistent with his description of his illness? (4) Does the condition interfere with his ability to cope in every day situations?

22 In a report dated 4 December 1997, Dr Reinhardt concluded as follows: "In summary, [the Veteran] suffers from chronic post traumatic stress disorder and alcohol dependence which is directly related to his experiences in Vietnam while in the Navy. At present he is still working, but is finding it very difficult to sustain, and it is uncertain how much longer he will be able to continue in his job." 23 The Commissioner's delegate refused the Veteran's claim on 26 March 1998. In her reasons for decision, the Commissioner's delegate stated her decision in the following terms: "Your claim for post traumatic stress disorder and alcohol dependence has been refused." The letter notifying the Veteran of the decision commenced as follows: "On 19 September 1997 your claim for 'post traumatic disorder' was received at the Department of Veterans Affairs. The medical name for the claimed condition is:

· post traumatic stress disorder and alcohol dependence.

The condition will be referred to in this way in Veterans Affairs Records." 24 The reasons went on to provide as follows: "Post traumatic stress disorder and alcohol dependence Your Contention In your claim you have contended that post traumatic stress disorder and alcohol dependence was related to service and due to 'whilst on MV Jeparit in SVN I feared for my life we were always under threat of enemy attack by sappers, rockets and mortar fire'. I have addressed this contention under the heading of 'stressor' and any other factors identified by the RMA below. · Stressor In this case there is no history of experiencing a stressor as identified in the diagnosis of post traumatic stress disorder and alcohol dependence. Information from the Naval Historical records section (Department of Defence) states 'there is no record of Jeparit having been engaged by enemy forces during her Vietnam service'. MV Jeparit was chartered by the Department of the Army, to convey equipment and supplies to Vietnam. Also, there is no record of 'having mines placed on the ships' hull', which was an incident documented in your Psychiatrist report which caused you 'distress'. Aggravation of post traumatic stress disorder and alcohol dependence by factors that are due to service can only be considered if this condition developed before the end of service covered by the Veterans' Entitlements Act. Post traumatic stress disorder and alcohol dependence developed after this service therefore I cannot take any possible aggravation into account. I can only consider whether this service caused the condition. The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of post traumatic stress disorder and alcohol dependence. As a result I find that all the evidence does not raise a reasonable hypothesis connecting post traumatic stress disorder and alcohol dependence and operational service. I am therefore unable to accept it as war caused." 25 At the time of the Veteran's claim, and at the time of the decisions by the Commissioner's delegate and by the Tribunal, there was in force an SoP concerning "Post Traumatic Stress Disorder", being Instrument No. 15 of 1994 ("SoP 15 of 1994"). SoP 15 of 1994 contains the following definition of "post traumatic stress disorder": "post-traumatic stress disorder' means a psychiatric condition meeting the following description (derived from DSM-IV):

(a) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness, or horror; and

(b) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

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

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

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg unable to have loving feelings);

(vii) sense of a foreshortened future (eg does not expect to have a career, marriage, children, or a normal life span); and

(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or ore of the following:

(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning." 26 The reference in that definition to "DSM-IV" is a reference to the fourth edition of a publication of the American Psychiatric Association entitled Diagnostic and Statistical Manual of Mental Disorders. The relevant part of DSM-IV states that the essential feature of post traumatic stress disorder is: "The development of characteristic symptoms following exposure to an extreme stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one's physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate." DSM-IV says that the person's response to the event "must involve intense fear, helplessness or horror". It states that the "stressor" must be "of an extreme (i.e. life threatening) nature".

THE TRIBUNAL'S DECISION 27 The Tribunal characterised the proceeding before it as one for review of a decision relating to the Veteran's "claim for post traumatic stress disorder and alcohol dependence". In its reasons, the Tribunal formulated the issues before it as follows: · whether or not the Veteran meets the relevant diagnostic criterion for PTSD and alcohol abuse or dependence; · if so, whether or not there is a causal connection between the conditions and his war service; · the Veteran's eligibility for special rate.

28 The Tribunal received evidence from a number of medical practitioners being: · Dr A. Dinnen, Consultant Psychiatrist, who expressed the opinion that the Veteran suffers from alcohol dependence due to his service in the Navy and as a result of operational service. Dr Dinnen said that the Veteran may have had a degree of PTSD but that any such condition had been dissolved in alcohol for many years. He did not see enough evidence to sustain a PTSD diagnosis but said that that condition might possibly be linked with alcohol dependence and the PTSD symptoms masked accordingly. · Dr K. Reinhardt, Consultant Psychiatrist, who had been treating the Veteran since 1997. Dr Reinhardt's opinion was that the Veteran continues to meet DSM-IV criteria for chronic PTSD and alcohol abuse and that that is a war caused disability. Dr Reinhardt told the Tribunal that the PTSD and alcohol abuse dependence were inter-related. · Dr R. Lewin, Consultant Psychiatrist, did not diagnose PTSD in the Veteran's case, expressing the opinion that the Veteran did not satisfy diagnostic criteria. Dr Lewin did not relate the Veteran's current alcohol dependence to his military experience. · Dr M. Baz, Occupational Physician, considered that the Veteran experiences significant disability as a consequence of PTSD and alcohol dependence and that he was unfit for employment within his skills and experience of more than eight or more hours duration weekly. · Dr Burns, Occupational Physician, expressed the opinion that the Veteran had some work capacity but that due to his age, his geographic location and his alcohol dependence, it was unlikely that he would find suitable employment. Dr Burns considered that it was difficult to reconcile the history given to him by the Veteran as to his experiences in Vietnam with PTSD.

The Tribunal also had before it Dr Dunstan's medical impairment assessment - see paragraph [21] above.

PTSD 29 The Tribunal referred to disagreement between the parties as to the appropriateness of applying the DSM-IV criteria. The Tribunal, having said that it was mindful of the DSM-IV definition of PTSD, did not consider that DSM-IV constituted more than a very secondary aid "given the primacy of the SoP which has legislative force". The Tribunal considered that it was a question of fact as to whether the Tribunal was reasonably satisfied that the Veteran experienced what could be considered to be a "'traumatic event' as per the SoP definition", and if so, whether or not he experienced intense fear, helplessness or horror as a result. 30 After referring to paragraphs (a) and (b) in the definition of PTSD in SoP 15 of 1994, the Tribunal observed that it was a question of fact: "as to whether the Tribunal is reasonably satisfied that [the Veteran] experienced what could be considered to be a traumatic event as per the SoP definition and, if so, whether or not he experienced intense fear, helplessness or horror as a result." 31 The Tribunal went on to say that, in order to generate a response of intense fear, helplessness or horror, the traumatic event "needs to be significant. It cannot just be a general apprehension or foreboding". The Tribunal considered that the traumatic event "must be of sufficient magnitude so as to result in the experience of the factors listed" in paragraphs (b) to (f) of SoP 15 of 1994. The Tribunal considered that, in order to generate reactions of the magnitude prescribed in those paragraphs, the traumatic event "must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of a war zone". 32 The Tribunal did not consider "as a matter of fact", and was not reasonably satisfied, that the events described to it by the Veteran constituted "traumatic events" as that term is to be understood by reference to SoP 15 of 1994. While the Tribunal accepted that the events were stressful, the Tribunal did not consider that they were of such a magnitude as to be considered "traumatic". 33 The Tribunal was also not reasonably satisfied that paragraph (b) of the definition in SoP 15 of 1994 could be met by the Veteran. His evidence did not convince the Tribunal that he had recurrent distressing recollections, dreams or reliving of the event or distress or reactivity to cues resembling aspects of the event. The Tribunal considered that paragraphs (c), (d), (e) and (f) in the definition in SoP 15 of 1994 were satisfied. However, since paragraphs (a) and (b) were not satisfied, the Tribunal was not reasonably satisfied "that the diagnosis of PTSD as required by the SoP" was met.

PSYCHOACTIVE SUBSTANCE ABUSE 34 The Tribunal found that the requirements for a diagnosis of psychoactive substance abuse or dependence, as defined in another SoP, being Instrument No. 5 of 1994, was satisfied. The Tribunal found that that SoP was in place and that there was a hypothesis raised that contained one or more of the factors listed in that SoP. The Tribunal was satisfied that the hypothesis was reasonable, in that it was not inconsistent with the SoP and was not otherwise fanciful or contrary to known scientific fact. The Tribunal was not satisfied beyond a reasonable doubt that the Veteran's condition of psychoactive substance dependence was not war caused.

SPECIAL RATE 35 The Tribunal then went on to consider whether the Veteran was entitled to a pension at the special rate, as provided in s 24 of the Act. The Tribunal considered two aspects of the requirements of s 24. The first was the question of whether or not, given the conclusions it reached in relation to alcohol dependence and PTSD, the Veteran would satisfy the requirement of s 24(1) of having a degree of incapacity of at least 70 percent. The second question was whether or not the Veteran's accepted war caused disabilities alone had rendered him incapable of work and caused a resultant loss of wages. The Tribunal concluded that, even if the degree of incapacity of the Veteran was at least 70 percent, the requirement that the Veteran's incapacity, by reason of psychoactive substance abuse "of itself alone", be of such a nature to render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week, was not satisfied. Accordingly, the Tribunal found that the special rate was not payable. 36 In reaching that conclusion, the Tribunal referred to the evidence of Dr Reinhardt and Dr Burns, both of whom considered that the Veteran was incapacitated from undertaking more than eight hours work per week as a result of PTSD, as diagnosed by Dr Reinhardt. The Tribunal said that it had a high regard for Dr Reinhardt's opinion as the Veteran's treating psychiatrist and that Dr Reinhardt was in an advantageous position in respect of proffering an opinion as the Veteran's treating psychiatrist. Nevertheless, as indicated above, the Tribunal concluded that it could not be reasonably satisfied that the diagnosis of PTSD,as required by the SoP, was met. 37 The Tribunal also referred to psychiatric problems of the Veteran in the context of its consideration of whether his incapacity from psychiatric substance abuse was, of itself alone, of such a nature as to render him incapable of undertaking remunerative work. In that context, the Tribunal made the following observations: "68. …It must be remembered that medico-legal assessments are not legal assessments, for that is the Tribunal's job. They are medical assessments done within the context of legal proceedings. Whilst the Tribunal has ultimately found that PTSD is not a war-caused condition in this case, that is more a matter of fact and law than medicine. 69. The difficulty for the Tribunal is that it cannot accept PTSD as a war-caused condition, as it does not satisfy the SoP. This is not to say that as a matter of clinical treatment, the applicant does not suffer from a psychiatric condition which affects his ability to work or continue working, and that from a clinical perspective, PTSD may be an appropriate label for such a condition. It means, that as a matter of law, the diagnosis of PTSD is not made out and the applicant does not fit the legally prescribed definition. The Tribunal does find however, that the applicant suffers from some psychiatric problems, and that these have affected his capacity to work, and indeed his ability to continue in the remunerative work he was undertaking. Such problems (however labelled) are not conditions accepted as being war-caused, as a matter of law. As a matter of law, there are clearly other factors, and other non-accepted disabilities impacting upon both incapacity for, and prevention from continuing work, and the Tribunal so finds." [Emphasis supplied]

THE PRIMARY DECISION 38 In his notice of appeal to the Federal Court, the Veteran stated the questions of law raised on the appeal as follows: "(1) Having found that the Applicant did not suffer from post traumatic stress disorder ("PTSD"), as defined in the applicable Statement of Principles ("SoP"), did the Tribunal err by failing to determine whether he nevertheless had a psychiatric condition, and if so it was pensionable? (2) Did the Tribunal err by making its determination, as to whether the Applicant had PTSD, on the balance of probabilities?" 39 The primary judge concluded that the Tribunal erred in its initial task in so far as it regarded itself as bound to apply the definition in SoP 15 of 1994 (see paragraph [29] above). His Honour observed that that approach could hardly be thought to be unexpected, since the cases of both parties before the Tribunal were couched in terms of SoP 15 of 1994. However, his Honour concluded that such an error was "of no practical consequence whatsoever". 40 His Honour referred to the fact that the psychiatrists gave evidence by reference to the requirements of SoP 15 of 1994 or the DSM-IV Diagnostic Criteria for PTSD. His Honour observed that exposure to a traumatic event was, on all the evidence before the Tribunal, the primary criterion required for diagnosis of PTSD. The severity, duration and proximity of such exposure were, according to the criteria, the most important factors affecting the likelihood of developing the disorder. The Tribunal, however, found that the Veteran never experienced such an event. 41 The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition in SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal's error was of no practical consequence whatsoever. 42 In his reasons, the primary judge observed that a claim for a pension is required by s 14(5) to be made in respect of incapacity from "a particular injury or disease". His Honour considered that that meant, for present purposes, that it was first necessary to determine whether the Veteran contracted the disease "as claimed". His Honour did not think that it was necessary to consider whether a relevant SoP was in force until a determination was required by s 120(1). His Honour considered that s 120A(4) suggested that that was so because, only at that stage, would "the kind of disease contracted" by a veteran have been determined. 43 The primary judge went on to observe that the disorder "claimed" by the Veteran was PTSD and that he did not claim to be suffering other psychiatric problems. His Honour considered that, no matter what the Tribunal said when assessing whether or not to grant the special rate of pension in respect of the Veteran's accepted condition of psychoactive substance abuse, the Tribunal made no finding that obliged it then to determine whether such other psychiatric problems were war caused. His Honour considered that the comments of the Tribunal should be read in the context of what it said about the appropriate label for the treatment of the Veteran's condition from a clinical perspective. He said that the comments represented no more than a courteous acknowledgment of the Veteran's treating psychiatrist's opinion. 44 Under s 14(5), where a Veteran has made a claim for a pension under s 14 "in respect of incapacity from a particular injury or disease" and the claim has not been finally determined, the Veteran is not empowered to make another claim for a pension under s 14 "in respect of incapacity from that injury or disease". His Honour referred to that provision and expressed the view that it confirmed the need for a claimant to identify a disease or injury. His Honour considered that the importance of identifying with some degree of specificity the incapacity from which a veteran may be suffering was further reinforced by other provisions of the Act and the requirement of the approved form of claim that a doctor provide a diagnosis for each disability. His Honour observed that, in the present case, the Veteran claimed incapacity from PTSD and that his claim did not relate "to some unspecified kind of psychiatric or mental disorder". Accordingly, his Honour concluded that the Tribunal had not fallen into error in failing to consider whether the other psychiatric problems were war caused. 45 His Honour considered that the finding by the Tribunal that the Veteran did not suffer from PTSD plainly involved the application by the Tribunal of the standard of proof prescribed by s 120(4) of the Act. His Honour observed that the Tribunal never had to consider a hypothesis under s 120(3). Accordingly, it was not obliged to form an opinion by reference to SoP 15 of 1994. His Honour concluded that, while the Veteran had succeeded in identifying an error of law on the part of the Tribunal, he had failed to make out either of the grounds of appeal based on the questions of law set out above. His Honour therefore dismissed the appeal.

ISSUES ON APPEAL 46 The notice of appeal to the Full Court asserted several errors on the part of the primary judge. The Commission also relied on notice of contention indicating that it would seek to uphold the orders made by the primary judge but would contend that his Honour erroneously decided that the Tribunal had erred. In his written submissions to the Full Court, the Veteran contended that the appeal raised the following questions: (1) At what stage of decision making on a claim for veterans' disability pension in respect of operational service does the decision-maker address disease definitions contained in SoPs? (2) What standard of proof under s 120 is to be applied when addressing diagnostic criteria used in the medical classification of diseases? In the course of argument, counsel for the Veteran made it clear that the first question was also intended to raise the question of whether the Tribunal erred by failing to consider whether the Veteran had a war caused psychiatric condition other than PTSD.

characterisation of PSYCHIATRIC CONDITION 47 Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant - Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17]-[18], 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287. 48 The facts that the claim originally lodged by the Veteran referred only to "PTSD" and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of "post traumatic stress disorder" do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it. 49 The Tribunal found that the Veteran suffers from some psychiatric problems and that those problems affected his ability to continue in remunerative work. However, the Tribunal did not consider whether they were war caused, simply because they could not be characterised as "post traumatic stress disorder", as that condition is defined in SoP 15 of 1994. Rather, it assumed that such problems, "however labelled", were not conditions accepted as being war caused "as a matter of law". That appears to have been a reference to the conclusion that the Veteran did not suffer from PTSD, that determination having been made by reference to SoP 15 of 1994. 50 The Tribunal erred in so far as it failed to consider whether or not those psychiatric problems might be a disease and might be war caused within the meaning of the Act. The primary judge correctly held that the Tribunal erred in regarding itself as bound to apply the definition in SoP 15 of 1994. However, the primary judge erred in failing to conclude that the Tribunal fell into error in not considering whether the psychiatric problems were war caused. It is not clear that his Honour was referred to the principles enunciated in Grant's Case. We do not understand the Commissioner to contest those principles. His Honour erred in so far as he failed to have regard to those principles. The application of those principles in the present case would have required that the matter be remitted to the Tribunal for decision according to law. 51 If the Tribunal were to conclude that the psychiatric problems constitute a disease and are war caused, that could affect its conclusion concerning entitlement to the special rate. That is to say, if it were a combination of psychoactive substance abuse and other war caused psychiatric problems that prevented the Veteran from undertaking remunerative work, the prerequisites of s 23 may be satisfied so as to entitle the Veteran to the special rate. Whether the prerequisites are satisfied will be a matter for the Tribunal.

STANDARD OF PROOF 52 The second question raised in the appeal concerns the standard of proof that should be adopted by the Tribunal in considering whether any psychiatric problems identified by the Tribunal constitute a war caused disease. Under s 120(1), the Tribunal must determine that the psychiatric problems constitute a war caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section s 120(3) deems the Tribunal to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was a war caused disease, if the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran. 53 In undertaking that exercise, the Tribunal must have regard to any SoP in force in respect of the kind of disease that the Tribunal finds has been contracted by the Veteran. The question before the Full Court is whether, in undertaking that exercise, the standard of proof referred to in s 120(1) applies or whether the standard of proof referred to in s 120(4) applies. 54 Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act - see Repatriation Commission v Budworth [2001] FCA 1421 paragraph [15]. 55 The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question. 56 However, if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all of the evidence available to it, whether s 120(3) is satisfied, without reference to s 120A(3). 57 That is to say, if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the Veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Commission will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of s 120(1). 58 The Tribunal concluded that it was not reasonably satisfied that the Veteran was suffering from PTSD. In doing so, it applied the standard specified in s 120(4). The primary judge was correct not to interfere with that conclusion.

CONCLUSION 59 It follows that the appeal should be upheld. The orders of the primary judge should be set aside. In lieu of those orders, there should be an order that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination, according to law, of the question of whether the Veteran suffers from a war caused disease other than PTSD. The Commission should pay the Veteran's costs before the primary judge and of the appeal. The constitution of the Tribunal on remitter is a matter for the President of the Tribunal. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 20 December 2001 Counsel for the Applicant: Mr M B Smith with Mr C H P Colborne

Solicitor for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondent: Mr P J Hanks QC with Ms R M Henderson

Solicitor for the Respondent: Australian Government Solicitor