R A Burford provides a reference for the Applicant.

Notification of Medical Assessment - Army form is completed by Major Nasveld which records that the Applicant has no medical restrictions.

Applicant completes a medical history questionnaire and medical board examination.

Applicant attends Dr Tan on four separate occasions for health matters

Applicant 'complained of stress and can't sleep at night. Feeling washed out during the day. Very tired' to Dr Tan.

Applicant reports to the Veterans and Veterans Family Counselling Service that he had traumatic memories and suffered symptoms of anxiety, fears, insomnia, low mood and stress.

Applicant commences treatment by clinical psychologist, Jessica Medd.

Applicant is referred to and commences ongoing treatment by Dr Kerryn Loftus, psychiatrist.

1. At issue in these proceedings is whether the Reviewable Decision is the correct or preferable decision on the evidence before the Tribunal. In order to determine that issue, the Tribunal must consider the following:

(a) What are the kinds of civil employment which a person with the Applicant's skills, qualifications and experience might reasonably undertake?; and > > (b) What was the Applicant's degree of impairment as at 17 July 1989 which caused him incapacity or diminished capacity to undertake those kinds of civil employment?

1. Both parties relied on the documents contained in the T-Documents and a joint report prepared by Associate Professor Jonathan Phillips (Dr Phillips) and Associate Professor Peter Doherty (Dr Doherty) (together, the Experts) dated 13 November 2025.
2. Located in the T-Documents were the following written statements or statutory declarations relied upon by the Applicant:

(a) Statutory declaration dated 2 April 2022 (1st Declaration); > > (b) Statutory declaration dated 20 April 2023 (2nd Declaration); > > (c) Statutory declaration dated 1 May 2025 (3rd Declaration); > > (d) Statement of Peter Marjasin dated 21 July 2022 (Marjasin Statement); > > (e) Statutory declaration of Dr Kwang Kan Tan dated 1 April 2022.

3. In addition to the T-Documents, the Applicant relied on the following documents:

(a) Third Statutory Declaration of Mike Lee, dated 1 May 2025; > > (b) Report of Dr Phillips dated 10 June 2025; > > (c) Report of Dr Graham Altman dated 28 January 2025 and the briefing email sent by the Applicant's solicitor to Dr Altman dated 10 January 2025; > > (d) Email chain dated 7 November 2025 regarding the Respondent's required witnesses for cross-examination.

4. The Respondent relied on the following additional documents to those contained in the T-Documents:

(a) Report of Dr Doherty dated 26 September 2024; > > (b) Supplementary report of Dr Doherty dated 25 July 2025; > > (c) Supplementary report of Dr Doherty dated 8 August 2025.

5. The Applicant gave oral evidence at the hearing and was cross-examined. Drs Phillips and Doherty gave concurrent evidence during which they were asked a specific list of questions jointly agreed by the parties, and were cross-examined.
6. Both parties provided the Tribunal with various written submissions, a joint Chronology of Key Events, Statements of Facts, Issues and Contentions, and made oral submissions at the hearing.

1. The following contemporaneous evidence recorded the Applicant's reported health and state of mind during service, and at the time of discharge:

(a) A medical assessment completed by the Army on 22 April 1989, shortly before the Applicant's discharge, found that he was fully employable and functional, save for his eyesight (because the Applicant wore glasses). It did not record any medical restrictions. > > (b) The medical history questionnaire completed by the Applicant upon his discharge answered 'no' in response to whether he had ever suffered 'nervous trouble', 'severe depression' or 'mental illness'. The medical officer noted only that the Applicant had recently had a molar extracted, wore spectacles and had injured his ankle in the previous year. > > (c) In the psychological file kept by the Army and completed during the Applicant's service, the following comments were recorded: > > X has spent almost 2 years in the Army to date and whilst he has had no leadership experience, course reports suggest he has a good deal of potential. He has been well reported to date and appears to be a keen and dedicated soldier. X is a live in member who is socially active and enjoys peer acceptance. Despite having been raised in Korea / Cambodia he has been well accepted into the Australian Army. Despite an unsettled upbringing he appears quite mature and his social adjustment/emotional stability are adequate. > > ... > > ...High School.... Lack of application contributed to poor grades. > > ... > > Currently living in member. Socially active and enjoys peer acceptance, outings, occasional drink. Both army / civilian friends. > > ... > > Health: nil - hosp[ital], psych, suicide, uncon. Alcohol occasionally.

2. The Applicant's treating GP, Dr Tan, provided a Statutory Declaration dated 1 April 2022. He was not required for cross examination at the hearing. Dr Tan's Statutory Declaration relevantly stated that the Applicant was his patient from 1981 to date. He included in his Statutory Declaration a transcript of his clinical notes kept of all consultations with the Applicant from 21 August 1981 to 24 August 2001, and attached a copy of the Applicant's medical file which included handwritten notes for all consultations on 18 index cards, from 21 August 2001 to 1 October 2021. From Dr Tan's clinical notes it is apparent that the Applicant did not report any mental health symptoms to him in the years prior to his Army service, during his service, or in the immediate years following his discharge from service.
3. There is no evidence of contemporaneous reporting of mental health symptoms by the Applicant prior to his service, during his service, at discharge, or in the months or years immediately following discharge.

1. The Applicant's declarations are lengthy and written more than 3 decades after the events described therein. Having taken into consideration all of that evidence, only some of the relevant recollections are extracted below, to demonstrate the basis for the weight afforded to that evidence in the Tribunal's consideration.
2. In his 1st Declaration, in relation to the period immediately following his discharge from the Army, the Applicant stated:

When I got out I was happy to get out but I was totally and absolutely lost. > > I found myself not feeling right and did not know why that was. I felt run down. > > Melancholia > > Shortly after I got out of the Army I applied to McDonalds for a job. They accepted my application but I did not start there until much later in the year. I spent the time after I got out and when I started at McDonalds just sitting in my room feeling depressed and flat. I was staying with my mother and I was not communicative with anyone other than my mother. I felt lonely and out of place whenever people tried to engage with me. I felt short tempered and was told many times that I had anger issues. My family told me that I was impatient. I found myself sleeping even less than when I was in the Army and I continued to constantly wake up. It was a really hard period in my life and I thought to myself I don't think that I can really do this out in the world. I even tried to go back and re-enlist but I stopped short of going back into the recruitment office. > > I remember a couple of days after getting out of the Army, that I was not sleeping. I would sit up in my room until all hours of the night and my mother would complain that I was using too much electricity. I would be up til 3.00am or 4.00 am in the morning. I would sit with the TV on but nothing on it. I would chum through books. I have never been able to sleep well since. > > I see from Dr Tan's notes that on 8 January 1992 I complained of insomnia to Dr Tan and that he prescribed me Mogadon as a treatment. > > ... > > My first job after the Army was with McDonalds. I worked there from about late 1989 to 1993. I received a job offer in July 1989 but did not start working there until late 1989. I started flipping burgers and worked my way through until I was crew trainer at the Kingsford store. This was familiar work to me because I had worked at McDonalds as a kid before I had joined the Army. I found that I really enjoyed working with the kids who I found were so enthusiastic, adaptive and responsive. There was also the bad side of it where their stories were sad to hear. I think this job was something of a life saver for me and it brought me out of my depression.

In relation to his career choices at and around the time of his discharge from the Army, in his 2nd Declaration the Applicant expanded on the evidence in his 1st Declaration and stated:

...prior to my discharge I spent about 2 weeks at Randwick Barracks before being discharged. I did not have any duties to perform and was free to in effect wander around the city. During this time I went to a Police Station in Darlinghurst and asked about how to become a policeman. I still thought that would be a good career for me. Over the counter I was told to not bother because I would not pass the medical because I wore glasses and I also was told that I was too short despite being almost 6 feet tall. I said that I had just spent 4 1/2 years in the infantry and wearing glasses did not bother me a bit nor stop me doing my job. This discussion discouraged me. I had not done any research as to what the entry requirements were for the Police Force nor had I realised until my discussion that a career in the NSW Police was not open to me. > > Whilst I was waiting for discharge and before my discharge, I had made enquiry about being a security guard but felt that was not going to be a career that had any challenge to it and was going to be, for cultural reasons demeaning to my parents. I really did not have any plan as to what I was going to do. > > ... > > Immediately after my discharge, I spent about a week and a half in my room at my parent's house feeling flat, depressed and having no real plan. My stepfather got angry with me not doing anything to contribute to the family and accused me of being a waste. He pushed me to get out of the house and said "get the fuck out and do something." After the argument with my step-father I remember going to the University of NSW and making enquiry about what if any courses would be open to me so that I could undertake further education to assist me to get a job. I found that they had nothing available for me and that I did not qualify for anything. I remember leaving the university and going to the Kingsford McDonalds to get something to eat. I felt really down and that I had no options and no future. I did not know what to do or where to go in my life. I felt that I should not have got out of the Army and was feeling sorry for myself. I had worked in the Kingsford store for a period, as a crew trainer, before joining the Army. Whilst I was there, getting some food, and feeling sorry for myself after realising that there was nothing open to me at Uni, by chance I saw a lady Seta Sarkessian, who I had previously worked with before I joined the Army. We then had a conversation, and she told me that she was the store manager at Kingsford and she asked me what I was doing with myself. I said that I had just discharged from the Army and I was looking to do something at Uni. She said are you working? I said no. She said would you like to work with us again? We have a need for a second assistant manager and I think that with your Army experience, you would have no problem getting the job. She then explained the role to me. I felt that was an answer to what I should be doing and gave me a job and a future and a purpose in life and I then filled out the application form on the spot with her. When I got home I told my mother what I had done. I recall being asked when I was going to start. > > ...

In his 1st declaration, the Applicant described a desire to return to the Army as causing him depression:

When I was at Maccas people would ask me what I did before Maccas and I would tell them I was in the Army. Their next question would be why did I leave. To this day I hate that question. I would immediately think it is none of your business. I would then start thinking about how much I wanted to go back to the Army but would realise that I could not because I had to support my family. This then created a gulf between my desire on one hand to return to the Army and the practicalities that I could not return. This made me feel more depressed. Occasionally I would hear from mates who would say that we are getting ready for Timor and I would think that I really wanted to be part of that and I would get depressed. It was really hard for me to come to grips that I was no longer part of that military family any more. It always ate away at me inside that I could not go back.

In his 2nd Declaration the Applicant described working as 2nd Assistant Manager for McDonalds at Kingsford until there was a change of management, after which he was transferred to Hurlstone Park in the same role. He remained at Hurlstone Park for about a year, during which the store got robbed twice and there were constant calls to Police to assist with customers who had "high degrees of alcohol abuse and substance abuse issues". He described himself as feeling constantly angry and would get involved in physical altercations. He moved to Revesby store as a second assistant manager and was offered training as a first assistant manager after about a year there. He said:

...received a training module book that I was to work through but I did not finish it. I found it hard to focus on the training and I was just trying to cope with the job that I had and needed to keep. At the time I was managing about 300 people and in over 4 years I had not progressed in my career and I felt that I was overwhelmed. > > I found myself wanting to leave McDonalds for a number of reasons. First I found that I was in a bit of rut in that I had watched other people that I knew get training and promotion whilst I stayed in the same role. When I worked for McDonald's when I was 18 years old to 20 ½ years old, I had found the work easy, and progressed quickly in the job before I joined the Army. After the Army although it was familiar work in a familiar environment, I just found it harder this time and that I just did not have the right grip on things and found it hard to get my feet under me and master the job and progress. I found that working shift work all the time was hard on my family and me. I was already having sleep problems and the shift work made my sleep issues worse. I had stayed at McDonalds because I knew I had no other options available to me and I needed the income for my new family. I was struggling working in a people industry and was struggling to keep my anger issues in check. I was struggling with the constant pressure to perform and found it hard to maintain a rating of "Good". > > ... I was spending an enormous amount of time at work trying to make up for things that had happened on my shift and that I was responsible for. Such as rostering that I had not finished, cleaning that had not been done but should have been done, stocktaking that was inaccurately done by others and which I had not picked up on during my shift but became apparent on a handover to the next shift. Emotionally I did not understand what was happening to me and trying to keep my emotions in check and to use an Army phrase "suck it up and get on with the mission" was taking a lot of my energy and the energy needed to provide the attention to the detail needed to perform this role was killing me. I did not think that I had any other options and had no idea where to go other than to work at McDonalds. I had no plan but to survive day to day. I felt really physically and emotionally spent. > > ... > > I then left McDonalds and started work at Juni. I then went from being a second assistant manager, training to be a first assistant manager, managing 300 people, to a job as a labourer in a warehouse for less money than what I had been paid at McDonalds. It was regular hours and no stress and no responsibility. > > It gave me a chance to heal. After working at McDonald's and being surrounded by people all day the job of being a labourer in the warehouse felt like heaven to me and there was, in the short term, less to irritate me and frustrate me.

The Applicant's attitude to his employment with McDonalds in his 2nd Declaration contradicts the attitude he expressed in his 1st Declaration, where he describes it positively:

My first job after the Army was with McDonalds. I worked there from about late 1989 to 1993. I received a job offer in July 1989 but did not start working there until late 1989. I started flipping burgers and worked my way through until I was crew trainer at the Kingsford store. This was familiar work to me because I had worked at McDonalds as a kid before I had joined the Army. I found that I really enjoyed working with the kids who I found were so enthusiastic, adaptive and responsive. There was also the bad side of it where their stories were sad to hear. I think this job was something of a life saver for me and it brought me out of my depression.

In his 3rd Declaration the Applicant noted that his 1st and 2nd Declarations dealt with two distinct issues: whether he could have been medically discharged for the purposes of s 37 of the DFRDB Act (1st Issue) and, the three steps to determining a percentage of incapacity required by s 30(2) of the DFRDB Act (2nd Issue). The 1st issue is essentially the Retrospective Invalidity Decision, which is not before the Tribunal for review in these proceedings. His 3rd Declaration therefore addressed only the 2nd Issue, which had already been addressed in the 2nd Declaration. 8. In relation to his experience and skills gained working as a second assistant Manager at McDonalds, the Applicant stated:

My solicitor has undertaken a Google search of the job function of a second assistant manager at McDonalds. Annexed and marked "C" is a copy of that Google search. I have read the job description and agree with it. > > 12. My solicitor has undertaken a Google search of "what does a McDonald's Assistant Manager Do". Annexed and marked "D" is a copy of that search. I have read that description and agree that was the training that I received in my 6 month probation period qualifying me as a second assistant manager, included:- > > a. Lead and motivate a team of employees to ensure customer satisfaction, quality service, and operational excellence > > b. Ensure compliance with all company policies and procedures, including safety and security standards > > c. Monitor daily operations, ensuring that the restaurant is running efficiently and effectively > > d. Assist in training new staff members on proper food handling techniques, customer service skills, and other job related tasks > > e. Manage inventory levels and order supplies as needed > > f. Oversee cash management processes, such as deposits, withdrawals, and reconciliations > > g. Develop strategies to increase sales and profitability > > h. Handle customer complaints and inquiries in a professional manner > > i. Maintain accurate records of employee performance and attendance > > j. Monitor labor costs and adjust staffing levels accordingly > > k. Create weekly schedules for staff members > > l. Participate in local marketing initiatives to promote the restaurant > > 13. In addition to the above I recall being trained in how to book, arrange, support and cater for and arrange entertainment for children's birthday party functions at the Restaurant.

9. The Applicant's 3rd Declaration extracted data obtained from internet google searches of the types of skills attributable to his past employment role as a Crew Trainer for McDonalds, including 22 types of "Leadership Skills", 20 types of "Organisational Skills", and 13 types of "Practical Skills", which he claimed to have learned prior to joining the Army. He included documents obtained online from a google search results of "what are skills", "101 essential skills to put on a resume in 2024" and "the difference between hard skills/competencies and soft skills", adopted the content of those documents, and listed skills which were included in those documents which he claimed that he had obtained. He claimed that as a result of those skills, he could have reasonably undertaken the following jobs:

a. Manual Labour jobs > > b. Sales Executive jobs > > c. Staff supervision jobs > > d. Restaurant and catering manager jobs > > e. Teaching or instructional jobs > > f. Fieldcraft, camping or outdoor living jobs > > g. Weapons handling or shooting jobs > > h. Policing jobs > > i. Corrective service jobs > > j. Investigative jobs

10. In a similar fashion, in his 3rd Declaration the Applicant attached Statements of Principle for PTSD, panic disorder, anxiety disorder and persistent depressive disorder as published by the Repatriation Medical Authority and used by the Department of Veterans Affairs, and then listed his experienced symptoms derived from those Statements of Principle, including 17 symptoms of PTSD, 12 physiological symptoms of panic attacks, 8 symptoms of Anxiety Disorder, and 5 symptoms of Persistent Depressive Disorder. The Applicant then, after having looked up the symptoms of each of his conditions from the Statements of Principle, lists the symptoms he "remembers" feeling on various occasions, including:

(a) in the 2 weeks prior to his discharge from the Army, when he was at Randwick Barracks; > > (b) in the period between his discharge from the Army and when he started working for McDonalds in October or November 1989; > > (c) In the first few months of his employment with McDonalds;

11. The Applicant then attached further articles obtained from online searches such as "11 skills to Include on Your Restaurant Manager Resume", "Restaurant manager skills list: 9 essential skills for your resume", "10 traits to look for when hiring salespeople (and how to evaluate them)", and then asserts that the skills or traits referred to in those articles were skills that he had or should have had, but were "compromised" or affected by the symptoms of his retiring impairments.
12. This is the same methodology as was employed in parts of the Applicant's 2nd Declaration, where he stated:

My solicitor has undertaken a Google search of the job function of a second assistant manager at McDonalds. Annexed and marked "C" is a copy of that Google search. I have read the job description and agree with it. > > 12. My solicitor has undertaken a Google search of "what does a McDonald's Assistant Manager Do". Annexed and marked "D" is a copy of that search. I have read that description and agree that was the training that I received in my 6 month probation period qualifying me as a second assistant manager, included:- > > a. Lead and motivate a team of employees to ensure customer satisfaction, quality service, and operational excellence > > b. Ensure compliance with all company policies and procedures, including safety and security standards > > c. Monitor daily operations, ensuring that the restaurant is running efficiently and effectively > > d. Assist in training new staff members on proper food handling techniques, customer service skills, and other job related tasks > > e. Manage inventory levels and order supplies as needed > > f. Oversee cash management processes, such as deposits, withdrawals, and reconciliations > > g. Develop strategies to increase sales and profitability > > h. Handle customer complaints and inquiries in a professional manner > > i. Maintain accurate records of employee performance and attendance > > j. Monitor labor costs and adjust staffing levels accordingly > > k. Create weekly schedules for staff members > > l. Participate in local marketing initiatives to promote the restaurant

13. Aside from a short letter addressed to the Department of Veterans Affairs dated 1 March 2018 regarding one of the undisputed traumatic experiences he had in service, and the Marjasin Statement (which I address further below), the Applicant did not attach or include any corroborative statements or supporting evidence from his family, colleagues, friends, or fellow servicemen. This is despite his evidence, under cross-examination, that the first time he reported his psychological symptoms was not to the Veterans' counselling service in 2011, but:

Prior, to friends, soldiers, vets, diggers, we talk amongst ourselves.

14. Despite working on a volunteer basis from around 1997 with veterans' welfare services, including Castle Hill RSL, assisting other veterans to manage and obtain treatment for their PTSD, and claiming to have discussed his own experiences and symptoms in that context, the Applicant "didn't see a need to" refer to any such individuals in his own evidence who could corroborate his claimed symptoms.
15. Under cross-examination the Applicant was taken to the Medical History Questionnaire he completed in May 1989, two months before his discharge from the Army. The Applicant's evidence was that the Medical Officer filled out the Questionnaire, based on answers the Applicant gave him. He agreed that his answers were "true and correct" at the time that he gave them, but then said that despite ticking "no" to a question about "frequent nightmares", he was "having nightmares" and "I didn't say yes or no because I didn't know what the impact would be". Despite this, he then stated that "I was being discharged, so I wasn't thinking how it could affect my career". In response to the questions in the questionnaire about "nervous trouble, severe depression, mental illness, attempted suicide", the Applicant had ticked "no" to each. He said under cross examination that his answers were "true and correct" at the time of discharge, but "I said No because I didn't tell anyone. Noone knew, neither did I until years later". He said "I wasn't going to jeopardise my discharge in any way" but then said "I don't know" when asked how answering truthfully could jeopardise his discharge.
16. In questioning about his employment at the time of his discharge, the Applicant agreed that his October/November 1989 start date was determined by McDonalds, not because he "felt unable". He agreed that in subsequent employment at Juni he had progressed through recognition of his skills and abilities from warehouse assistant to manager, and only left that employment because his boss behaved unreasonably, requiring him to attend work when he had chickenpox. He said:

We had a lot of arguments. I wasn't holding back my opinions or thoughts. He didn't like being challenged. So I left.

17. In respect of his subsequent employment, the Applicant downplayed his objective success in questioning under cross examination. He "did ok" when he agreed he achieved bonuses, and increases in salary. He "did ok" when it was put to him that he was able to adapt. In relation to his employment with Carinda from 1997 to 2008 he agreed that he was able to undertake the work successfully, but also stated:

I spoke my mind. Lots of arguments, lots of friction between me and the owner... > > David, the owner, was an unscrupulous person. He divorced his wife, was a womaniser.

18. Nevertheless, the objective evidence was that he remained employed with Carinda for 11 years, until he chose to leave the job for more or better opportunity. He had a short period of unemployment, with no income for 1 to 2 months, but "couldn't face the line" at Centrelink.
19. The Applicant's evidence under cross examination was that there was "a string of jobs I went through" in the period 2009 to 2014. The agreed factual evidence contradicts that characterisation of his employment. He was employed shortly after leaving Carinda at Cambridge Technology. Under cross examination he disagreed that he had a "reasonable tenure" at Cambridge Technology, stating that he had only worked there 1 to 2 years. However, the objective agreed evidence was that he was employed with Cambridge Technology continuously from 2009 to 2013. He then worked for Walcom and Braemac for around 2 years, and was then employed by Huber + Suhner in 2014, where he remains employed to date, a period of over 11 years. That history of employment from 2009 to 2014 could hardly be objectively characterised as a "string of jobs", considering the long periods of stable employment, and no periods of unemployment.
20. Under cross-examination it was put to the Applicant that his memory had faded and was not wholly reliable, which he adamantly denied, stating that his memory was "crystal clear", that "the smell of blood doesn't fade" and providing unprompted recollection of one of the traumatic incidents he experienced during his service. However, he did not provide independent recollections of his skills or work experiences prior to his discharge from the Army or during his service.

1. The Marjasin Statement was provided by Peter Marjasin, the Applicant's immediate work supervisor at Hubner + Suhner, in July 2022. By that time in mid-2022, he had known the Applicant for 10 years and had been the Applicant's boss for 8 years.
2. Mr Marjasin's evidence was to the effect that "over the years" it was getting more and more difficult to manage the Applicant, that the Applicant would become extremely emotional easily, and would sometimes get angry which would cause stress and problems in the workplace. It had become necessary to have more and more meetings about, and with, the Applicant due to his emotional reactions, and:

I can see that this sort of behaviour is part of his PTSD. I like Mike and I want it to work and I can see that the progression of his PTSD is getting worse.

3. He stated that "previously" the Applicant had worked well in a team environment but this was increasingly challenging. He has to manage the Applicant differently to others in his team because of his behaviours, taking into consideration his PTSD.

1. The remainder of the evidence provided to the Tribunal consisted of medical records and reports which significantly post-dated the relevant period for the Tribunal's consideration.
2. In 1992, some three years after the Applicant's discharge from the Army, Dr Tan recorded a singular incidence of reported insomnia. However, there is insufficient information from Dr Tan's notes to attribute this single incidence of insomnia to the Applicant's mental health.
3. The first medical records entry indicative of any mental health issues dates to 26 June 1999, when Dr Tan reported:

complained of stress and can't sleep at night. Feeling washed out during the day. Very tired. He was treated with Triazolam 10 mg 1 noctite PRN.

4. According to the undisputed facts, at that time the Applicant was working multiple casual jobs outside of work hours, in addition to his full-time job at Carinda. Feeling "washed out" and "very tired" is entirely reasonable in that context. There is no indication that report of stress and insomnia in 1999 was connected to the Applicant's service in the Army.
5. The very first mention of any mental health symptoms which could be associated with his service in the Army dates to 26 July 2011, where Dr Tan's handwritten clinical notes record:

6. On 9 September 2011, in the context of assisting another veteran in obtaining services from the Department of Veterans' Affairs, the Applicant first reported symptoms of anxiety and stress related to his service in the Army:

Mike is a Pensiono and Welfare officer for North Rocks RSL > > He was initially requesting information for a colleague in regards to the > > treatment of PTSD > > He was concerned for a man who was a UK SAS officer and perhaps not > > eligible for our service. > > During the face to face consultation he noted that perhaps he himself would > > benefit by some counselling. > > He has traumatic memories himself and suffers symptoms of anxiety and > > stress > > Anxiety; fears; sleep difficulties; low mood; stress > > Action > > Consultation with DD and compassionate sessions were > > offered due to the fact that this man is actively involved in serving our clients. > > He is X ADF and has served in Malaysiia

7. In a psychological screening report completed by the Veterans and Veterans Families Counselling Service (VVCS) on 21 September 2011, the Applicant was assessed using the Depression Anxiety and Stress Scale (DASS21) as having "normal" Depression with a score of 8, "moderate" anxiety with a score of 14, and "moderate" general stress with a score of 20. His alcohol use was also assessed using the Alcohol Use Disorders Identification Test (AUDIT) on 29 September 2011, with a score of 1, indicative of low risk. The clinician commented:

8. In a Counselling Outcomes Survey dated 21 September 2011, the VVCS recorded:

Anxiety is underreported. Client suffers from sleep disturbance waking up with anxiety & hypervigilance "goes on patrol" around his home.

GP - 30-40 years > > Anxiety fears > > Push self to keep occupied > > Depressed > > Stress from work & family > > Give everything a go once > > Don't hesitate - do it > > Never give up - Grandfather > > ... > > 85' joined up > > 2nd in class > > Targeted regularly > > Thrilled at the challenge > > Enjoyed the discipline, comraderie > > Singleton - infantry. 4th in class

Mike + Mum - abandonment/betrayal/cut ioff > > Uncle + stepfather > > Who is my real father / playboy; good looks; from well off > > Anxiety last 15 years > > Trouble sleeping 15 years ago > > 5-6 years sleeping patrols > > 9.30 up 2.30-4am - 6.15 > > 15 years ago work was fantastic > > Fc. Friend opened RE agency, Blacktown > > I ran into some [?] Africans - I felt uneasy > > *Seeing AFRICANS* / sweaty hands / hypervigilant / stare / CapeTown - rural / Black tall > > "I stee[?] something out there in the dark?"

11. In session notes recorded by VVCS on 27 October 2011, the social worker recorded:

Mike reported that he has been working till early in the mornings on the RSL bus and this has meant that he has not been waking and doing his 'patrol duties' during the night. Mike disclosed that he had an aching in his heart like a throbbing pain. > > He said that he felt hurt; sorrow; melancholy during the last week. Mike recounted a moment of great tenderness towards a young boy who was introduced to him by his foster father. Mike said that the boy reminded him of himself as a young boy. > > ... > > Mike feels sadness and melancholy as he is facing traumatic memory which has been suppressed for many years. He is well supported by his wife and children and his commitment to them and to others are protective.

I don't know where I am. I see faces I don't recognise. I end up apologising. > > Flashbacks intense - after 2nd event > > First contact > > ...

13. On 6 February 2017 the Applicant submitted an application to the Department of Veterans Affairs for a disability pension. He identified his disabilities as "hearing loss", from "use of firearms"; "Tinnitus", from "firing of weapons", "Back pain" from "carrying loads". He identified Jessica Medd at Concord Hospital as treating his "mental issues", and Dr Ta[n] as his treating GP. He described his disabilities as having affected his employment and ability to seek employment as:

1. I have high anxiety when in a closed room meetings > > 2. I have panic attacks during important meetings > > 3. I have problems in large groups and get distanced > > 4. Cannot sit for too long due to back pain and knee pain > > 5. Cannot walk for too long due to pain to lower back and knee and have to rest regualrly

14. Clinical notes from Concord Hospital disclose the Applicant first sought treatment there for psychological symptoms in October 2016 and was treated by Jessica Medd, clinical psychologist, every month or two between October 2016 and January 2019, and then again in 2023.
15. On 10 April 2017, Dr Kerryn Loftus, Consultant Psychiatrist, provided a report to Dr Tan (misspelled as Tam) following his referral of the Applicant for assessment and opinion in relation to "his anxiety and depression problem". Dr Loftus noted that the Applicant had been seeing a clinical psychologist at Concord Hospital for "management of his anxiety and mood difficulties", for the past 6 months for "symptoms relating to PTSD, depression and anxiety". Dr Loftus provided an 'impression' that the Applicant had PTSD and "Depression - Major Depressive Disorder of moderate severity with comorbid anxiety".
16. In addition to the report to Dr Tan dated 10 April 2017, Dr Loftus provided a report to the Department of Veterans Affairs dated 11 August 2017, a letter to the Department of Veterans Affairs dated 2 May 2018, impairment assessments dated 10 March 2019 and 30 August 2019, a report dated 20 April 2022, a report dated 21 September 2022 in response to a request from the Applicant's solicitor dated 24 July 2022, and a report dated 6 August 2023.
17. Dr Graham Altman, consultant psychiatrist, treated the Applicant during his admission to the Northside Clinic for 3 weeks in 2025. The Applicant's solicitor requested a report from him via email on 10 January 2025. Dr Altman provided a report dated 28 January 2025, providing his opinion that the Applicant qualifies for a retrospective medical discharge.

1. Dr Loftus prepared letters, reports and impairment assessments in the context of being the Applicant's treating psychiatrist. These were contained in the T-Documents and included letters and reports dated 10 April 2017, 11 August, 22 April 2022, 21 September 2022, and 6 August 2023, and impairment assessments conducted for the Department of Veterans Affairs on behalf of the Applicant on 10 March 2019 and 30 August 2019.
2. Dr Loftus was not required for cross-examination at hearing. Having considered her evidence, as contained in the documents outlined above, the Tribunal must consider what weight to give that evidence.
3. The Applicant contended that Dr Loftus' evidence was "crucial", and that Dr Phillips had placed weight on Dr Loftus' views as the Applicant's treating psychiatrist. On the basis that Dr Loftus had not been required for cross examination, the Applicant contended that her views should be accepted by the Tribunal. The Applicant submitted that Dr Loftus' evidence should be accepted as describing the Applicant's symptoms and capacity at the date of discharge, on the basis that she is the Applicant's treating psychiatrist.
4. There are multiple issues with this approach. First, Dr Loftus did not examine or assess the Applicant, his symptoms or capacity until 2017. Until the Applicant's solicitor's letter to her of 24 July 2022, Dr Loftus also did not have any information or supporting documents about the Applicant's history prior to 2017, which was not provided by him to her in the course of her treatment. She accepted the Applicant's recollections without objective or corroborative evidence.
5. Second, Dr Loftus changes her opinion about the onset of the Applicant's symptoms. In her report of 11 August 2017 she stated:

The exact date of onset of the PTSD is difficult to specify exactly, but Mike described realising initially in 1991 that he was not functioning well and was experiencing a range of symptoms. In terms of his depressive illness, this occurred later than the initial symptoms of PTSD and have been worsening with time, with initial onset being estimated at the time of about 10 years ago. I can only attest to the time I first met Mike that he would have met all of the diagnostic criteria for MDD.

6. In a subsequent report dated 22 April 2022 she stated:

Although it is difficult to give definitive retrospective diagnoses, his description of symptoms, functioning and distress do suggest that there was likely a combination of both a pervasive persistent depressive disorder and generalised anxiety disorder which emerged during the course of service as a result of chronic bullying, threatening behaviour and physical assaults within his units while he was serving.

7. In a further report dated 21 September 2022, Dr Loftus stated:

His functional trajectory whilst in service was consistently good and he was achieving well and gaining additional qualifications in which he was working toward leadership roles. > > Following discharge Mr Lee has experienced many difficulties in relation to his employment and progression with his career. This has manifested as recurrent job losses, changing employment after short periods and not being able to progress in his career. > > Mr Lee's history shows an extreme level of disablement immediately following his discharge resulting in an inability to work for some months before re-commencing work with which he was familiar with McDonalds. His condition then resolved to a level allowing him to work in a variety of employment situations. His employment history is marked by an inability to control his temper, his irritability and frustration, mood swings, sleep deprivation and inability to concentrate, which impacted on his effectiveness as an employee. > > For the periods of relative stability being 1997 to 2008, and 2014 to date, I consider Mr Lee's average range of percentage impairment to fluctuate between 30% to 60% disablement. However during the periods of exacerbation of symptoms or circumstances that trigger distress, extremes of behaviour can be observed and during these times, his level of percentage impairment in my opinion is 60% or higher.

8. Third, the information Dr Loftus included in her reports about the Applicant's history, prior to her commencing treatment, was not supported by the evidence before the Tribunal. The Applicant did not have "recurrent job losses, changing employment after short periods", and there was no evidence that his ability to work was "paralysed", as described by Dr Loftus. Other than the one short period of unemployment between jobs in 2008, the Applicant had no periods of unemployment or periods of leave from work attributable to his psychological symptoms.
9. Fourth, Dr Loftus is the Applicant's treating psychiatrist and is therefore engaged in the task of assisting him today in the management of his symptoms. This necessarily involves her accepting his current version of events for the purpose of treating him in the present and improving his mental health in the future, rather than testing his assertions and reaching an independent factual conclusion. Her opinions are not independent. She has a pre-existing personal relationship with the Applicant as his treating psychiatrist, and she has not adopted or satisfied the requirements of the Tribunal's Expert Evidence Practice Direction (2024) (Practice Direction).
10. Fifth, and significantly, Dr Loftus acknowledges that she cannot definitively diagnose the Applicant at a particular point of time in the past:

"I cannot say retrospectively that a definitive diagnosis existed at a certain time, as no one can given there was no assessment done at the time ..."

11. I therefore give Dr Loftus' reports very limited weight, and do not accept her opinion in relation to any factual matters predating her first appointment with the Applicant in April 2017.

1. Dr Altman treated the Applicant in January 2025. It is unclear whether he has obtained the Applicant's history and symptoms directly from the Applicant during treatment, or from other written material including the Applicant's Declarations. He did not adopt or satisfy the requirements of the Practice Direction and it is unclear what facts or assumptions he has relied upon in providing his opinion.
2. I give Dr Altman's report no weight in the circumstances.

1. The parties each obtained reports from qualified experts, who each adopted and complied with the Tribunal's Practice Direction.
2. Dr Phillips is a consultant psychiatrist who provided an expert opinion report dated 10 June 2025 at the request of the Applicant. He assessed the Applicant over two long consultations in mid 2025 and based his report on those consultations, the letter of instruction, and two folders of documents. Dr Phillips opined that the applicant suffered from a major psychological injury which would have been present when he left the Army and would have been obvious if a brief psychological interview had been conducted at that time. He assessed the applicant's current level of disablement at more than 60% and although he questioned the validity of quantifying the applicant's disablement at the time of leaving the military, he assesses this as also being greater than 60%.
3. Dr Doherty is a consultant psychiatrist who provided an expert opinion report about the Applicant dated 26 September 2024 in response to a request on behalf of the Respondent, and two supplementary reports dated 25 July 2025 and 8 August 2025. His opinions were based on his review 5 folders of documents and a letter of instruction. He did not have a consultation with the Applicant for assessment. Dr Doherty considered that Dr Phillips' opinion that the Applicant suffered from PTSD was unsupported by the clinical diagnostic criteria and there was no evidence to support his opinion that a major psychological injury would have been present at the time the applicant left the Army.
4. The Experts participated in a conclave on 31 October 2025. Both agreed:

There was no diagnosable psychiatric condition when he joined the army. ...He had an adverse childhood experience and entered the army with significant psychological vulnerabilities which would lead him prone to develop a psychiatric condition. > > The contemporaneous military record... does not record any overt psychological symptoms during his period of service. > > The first overt description of psychological events was made more than 20 years after the end of his service life. > > This man's symptoms increased substantially in a period following the beginning of his program of treatment. The psychometric evaluations also demonstrate that. > > ...

5. The Experts' point of difference was of the Applicant's diagnosis of PTSD. Dr Phillips' opinion, as discussed during the conclave and in his reports, was that the Applicant was "troubled by unavailability of memory due to the process of dissociation". Dr Phillips opined that the Applicant's original course of psychological therapy broke through his psychological defence system, which then resulted in the Applicant becoming "consciously aware of hitherto symptoms which were hidden from himself". Dr Doherty disagreed that dissociation was relevant to the Applicant's experience and opined:

If you follow the DSM-5-TR you can't make a case out that this is PTSD based on those criteria.

6. At hearing the Experts gave concurrent evidence. The parties prepared a joint list of questions for the doctors which covered the following topics:

(a) The Applicant's childhood; > > (b) Dr Tan's clinical references to insomnia in 1992, and stress and insomnia in 1999; > > (c) Clinical testing: the reliability and validity of testing undertaken by Dr Phillips; > > (d) Memories and PTSD, including: > > > (i) What is the effect of time on a person's memory of events, and the memory of psychological symptoms experienced in response to those events? > > > > (ii) Differences in memory for traumatic experiences and other life events; > > > > (iii) Effect of PTSD on memory > > > > (iv) Effect of dissociation on memory > > (e) Traumatic experiences in the Applicant's service as context for his psychological condition or impairment; > > (f) Coping mechanisms, including dissociation and stoicism; > > (g) Delayed onset PTSD, and whether the Applicant has delayed onset-PTSD; > > (h) Dr Loftus and Dr Altman's opinions.

7. Much of the Experts' evidence was not particularly helpful to the Tribunal, in that the opinions they each expressed did not assist in determining the issues for determination. I address the relevant opinions below.
8. In discussing the clinical testing conducted on the Applicant, including the PTSD Checklist for the DSM-5 (PCL-5), Kissane Demoralisation Scale and the Beck Depression Inventory II, the Experts agreed that there should not be much weight placed on those tests, albeit for different reasons. They each agreed that the Applicant's scores on the clinical tests for various psychological symptoms did not match the Applicant's actual presentation. Dr Phillips' opinion was that this was because the Applicant perceived himself as "very symptomatic", that "he perceives himself this way". Dr Phillips did not rule out exaggeration of symptoms and said he "cannot rule out feigning, malingering" but was "trying to be balanced and sensible", and therefore did not place much weight on the clinical test results. Dr Doherty's view was that the tests were not particularly useful but that a discrepancy and mismatch between the Applicant's responses and his presentation were "one of the reasons these tests were done", demonstrating exaggeration of symptoms by the Applicant.
9. The major point of difference in the Experts' opinions seemed to focus on their views about memory and PTSD. Dr Doherty's opinion was that "Memory fades after 30 years", and that "the more highly charged the event, the less reliable" was the memory of it. He considered that the Applicant had only recalled the traumatic experiences he had in the Army 28 years later and that those memories were distorted by the passage of time, that the Applicant's memories were actually becoming "more real, more dramatic as time goes on", because of embellishment.
10. Dr Phillips' opinion was that "memory is ephemeral. Ordinary memory dissipates and is rewritten. Memory of highly traumatic events is different from day to day", but that "important memories are scarred into your brain. They remain". He referred to structural brain changes caused by traumatic events and that the Applicant's memory of those traumatic experiences during the Applicant's service had "not changed at all". He said that "where psychological shock was very high, [a person would] remember exactly how they felt at that moment". His view was that the Applicant was "stoic", and "he pushes important traumas out of mind as best he can". Dr Phillips said that traumatised people had:

...far more precise memory than someone trying to recreate normal memory. If the memories are so overwhelmingly horrible, they have to be pushed away. Dissociation is a defence mechanism which places those memories at an unconscious level. These are retrievable with trauma and therapy.

11. Significantly Dr Phillips opined that if a person dissociated and thereby forced their memories of traumatic experiences away, those memories were:

...not seemingly troubling themselves on a day to day basis. If properly buried, a person will function at a reasonable level until symptoms leak out later.

The idea that body stores memory and it comes out later has been discounted in recent studies. 28 years later in the context of this application, with a psychologist who informed him of the symptoms of PTSD. Since that time, his symptoms have worsened. Memory is prone to distortion.

13. In relation to the Applicant's impairment following his discharge from the Army, Dr Phillips opined that he "didn't think the level of impairment was very high" and Dr Doherty opined that he had "minimal impairment" after the Army. Dr Phillips thought the Applicant had some "symptoms of PTSD" but these were "not determinative of PTSD", and that the Applicant's earlier psychological symptoms of elements of depression and anxiety were later subsumed into a primary diagnosis of PTSD. He noted that delayed onset PTSD was rare, being "less than 7%", but considered that the Applicant had experienced delayed PTSD after an incident in 2019 when he flew in an aircraft to mines, which made him recall one of the traumatic experiences during his service.
14. Dr Doherty's view was that PTSD does not "build up", it "comes on with a bang" and the vast major have resolved symptoms after 12 months of onset. Dr Doherty questioned whether the Applicant's evidence was reliable, stating that he had "an extraordinary over-reporting of symptoms", and that "reporting PTSD symptoms" did not mean that the Applicant was actually experiencing those symptoms. His view was that there was no delayed onset PTSD in the Applicant's case.
15. Dr Phillips expressed his view that Dr Loftus' reports were not in keeping with his own findings, but he had "no option but to respect [his] view" as the Applicant's treating psychiatrist.

1. The issue to be determined is the extent of the Applicant's incapacity in relation to civil employment as at 17 July 1989, that being the day immediately following his discharge from the Army.
2. As noted in Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382 (Fury) at [15]:

Attempting to determine the degree of incapacity for civil employment at the time of a person's discharge from the Army more than 25 years after the event will inevitably be difficult. What the applicant has in fact been able to do by way of civil employment since 1977 can be taken into account, but only to the extent that such evidence can be related back to and throw light on the applicant's state of health and incapacity at the earlier date: see Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58. The Tribunal must, ultimately "... address the same question as was before the primary decision maker" in the decision under review - namely, what was the percentage incapacity of the applicant for civil employment in November 1977: see Re The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111ALR 1[1992] FCA 599; , 39 FCR 225, 16AAR 566, 28 ALD 5 at [23].

3. It becomes a more difficult task the longer the period between discharge and the assessment.
4. There being no contemporaneous medical evidence as at 17 July 1989 indicating that the Applicant was experiencing any psychological symptoms, the Applicant's case rests almost entirely on his recollections of those symptoms contained in his 2nd and 3rd Declarations, made more than 30 years after the events they describe. In the absence of any corroborative evidence, the Tribunal must decide whether to accept those recollections as accurate.
5. The Applicant submitted that the evidence contained in his Declarations, including the retrospective recollections of his symptoms as identified in internet searches and the "skills" he claims to have obtained or gained prior to and during his service, should be accepted by the Tribunal, as there was no testing of that evidence in cross-examination. The Respondent submitted that there was "no point" in putting a proposition to the Applicant in cross-examination that his memory was unreliable, because "it was quite clear what his answers were and would be", and there was expert evidence provided to the Tribunal about the reliability of memory.
6. There can be no way of reasonably testing whether the Applicant did or did not, in fact, have the claimed skills over 30 years ago, as at the date of discharge, without contemporaneous evidence addressing those matters. Nor is there any way of testing whether the Applicant had the claimed symptoms over 30 years ago without contemporaneous evidence addressing those matters, or any way of testing whether and to what extent the Applicant's claimed "skills" were limited or impinged upon by such claimed symptoms, at any given time.
7. The Tribunal is not required to accept evidence of no probative value: see Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 at [150]:

No court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available.

8. The Tribunal affords very limited weight to the Applicant's evidence where he has essentially reviewed and adopted lists of workplace or professional skills or traits obtained by his solicitors through internet searches. This is because lists of "skills" or "traits" obtained from internet searches have no probative value in circumstances where the source of the information cannot be verified or tested, and the content is not supported by any academic or expert evidence - either generally, in relation to specific kinds of employment, or in relation to the Applicant's experience. The Tribunal will not accept as fact the contents of an internet or google search, simply because it has been attached to an Applicant's statement (or affidavit, or declaration) in proceedings, and then "adopted" with limited further comment by that individual. Such evidence is of no probative value in these proceedings, and the limited weight given to it goes only to how the Applicant currently perceives his past experiences.
9. The Applicant worked in the role of a crew trainer at McDonalds in the mid 1980s and as a Second Assistant Manager in the late 1980's and early 1990's. With reference to the McDonalds New Employee Manual dated to 2014, the Applicant states:

...it contains a description of how the restaurant works and what the job requirements are the employee job functions are. These descriptions are familiar to me from my time of working at McDonalds.

10. It is trite to say that there are likely to be some obvious differences in the McDonalds organisation, its structure and employee roles during those periods of time, and the dates of the documents attached to the Applicant's Declarations and adopted by the Applicant, which all post-dated 2010. A cursory review of those attachments demonstrates this issue, where the documents include references to newer technologies, workplace safety obligations and industrial issues which were not present or applicable to the time the Applicant was employed by McDonalds.
11. The Tribunal therefore places limited weight on the internet information obtained by the Applicant's solicitor about the role of a McDonalds crew trainer or second assistant manager. The Tribunal does not accept that the training workbooks adopted by the Applicant as "familiar to me" were, in fact, similar to any training completed by the Applicant, and the Tribunal does not accept the Applicant's evidence about his expected professional progression in the absence of any corroborative evidence.
12. The Tribunal also places limited weight on the Applicant's retrospective attribution of psychological symptoms in his Declarations to the period prior to 2011, when he first reported symptoms of PTSD to Dr Tan. His oral evidence at hearing indicated that whilst he considers he has a "crystal clear" recollection of the traumatic experiences he suffered during his service, his recollection from 2023 onwards in his 2nd and 3rd Declarations of other events, time periods, experiences, psychological symptoms and feelings in the decades post service were significantly coloured. He downplayed any positive professional achievements despite objective evidence to the contrary. By 2017, according to his treating psychiatrist Dr Loftus, he fulfilled the diagnostic criteria for major depressive disorder. According to her reports, this got worse as time went on. The Declarations were signed by him from 2022 onwards and must therefore be considered in that context, of him experiencing worsening psychological symptoms including depression.
13. This is supported by the evidence of the Experts, who agreed that that the Applicant was exaggerating his symptoms. Dr Doherty's opinion was that memory faded over time and that traumatic incidences distorted memory, but the Applicant's recollections of his traumatic experiences and symptoms were actually becoming "more real, more dramatic as time goes on", because of embellishment by him. The descriptions in the Applicant's Declarations certainly become more detailed and vivid in each subsequent recollection of the Applicant's past experiences. Dr Phillips' opinion was that the Applicant dissociated and for many years and his memories "did not trouble him", only "leaking out" later when his PTSD manifested. If this was accepted, the Applicant suffered no symptoms for many years until 2011 at the earliest. However, as Dr Doherty noted in his Supplementary Report of 8 August 2025, the Applicant cannot have both a "clear memory" of the relevant events and also have used a dissociative defence mechanism while in the Army, as suggested by Dr Phillips. Either way, the Applicant's retrospective recollections of his symptoms and feelings, decades prior to the Declarations, were not supported by the Experts' evidence.
14. In closing submissions the Applicant said the Tribunal should rely on Dr Loftus' reports and that there was:

Nothing taken of significant value from those experts.

15. However, Dr Loftus' reports entirely relied on the Applicant's history, which is unreliable. As discussed above, the Tribunal places limited weight on Dr Loftus' reports and her opinions regarding the Applicant in relation to any period in time prior to her first appointment with the Applicant in April 2017.
16. Relying on the AAT's approach in Redenbach v Commonwealth Superannuation Corporation [2019] AATA 4147 at [65], Wilson v Commonwealth Superannuation Corporation [2014] AATA 795 at [24]- [25], and Briggs v Defence Force Retirement and Death Benefits Authority [2007] AATA 1310 at [64]- [65], the Respondent submitted that the contemporaneous evidence should be preferred over the inconsistent non-contemporaneous evidence in this case, particularly where the medical evidence on which the Applicant relies was created in 2022 and 2023, more than 30 years after the Applicant's discharge from the army. I agree, because of the reasons outlined above in relation to the Applicant's evidence, the lack of corroborative evidence, the issues with Dr Loftus' reports, and the opinions provided by the Experts at hearing. I find that the non-contemporaneous evidence of the Applicant's recollections and memory of his psychological symptoms as at 17 July 1989 and in the years following is unreliable.
17. The Applicant submitted that it would undermine the purpose of the legislation to suggest the task of retrospectively determining the Applicant's capacity for civil employment as at 17 July 1989 was "too hard". There is no suggestion that the task before the Tribunal is "too hard" or that the purpose of the DFRDB Act could be undermined, by the passage of time or otherwise. However, it is certainly not an easy task. Many authorities relied upon by parties to proceedings involved ss 30 and 37 of the DFRDB Act date back to the 1980s, in circumstances where the subject individual's discharge from service was in the 1970s. This includes Defence Force Retirement and Death Benefits Authority v House [1989] FCA 516; (1989) 22 FCR 138 (House), Defence Force Retirement & Death Benefits Authority v Britt [1984] FCA 312; (1984) 4 FCR 306, Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31, Re Timothy Arthur Gordon Dillaway and Defence Force Retirement and Death Benefits Authority [1984] AATA 492, _Re Kennedy and Defence Force Retirement and Death Benefits Authorit_y [1985] AATA 86. There is a considerable difference between a factual finding involving a 10-year period of retrospectivity, and a factual finding involving a 35-year period of retrospectivity in these proceedings. That difference impacts the availability of probative evidence and the weight upon which the Tribunal could give fresh evidence provided during the course of proceedings, such as the Applicant's Declarations in these proceedings, and medical opinions from recent assessments of the Applicant's mental state examinations.
18. The Tribunal's task is always to consider the relevant, probative evidence before it and determine the correct or preferable decision in those circumstances. The Tribunal's fact finding is determined on the evidence before it. If there is insufficient evidence, then the Tribunal may not be satisfied of an asserted fact. That does not indicate that the task is "too hard", only that the party asserting the fact may not get the result they want.
19. The Applicant also submitted that where there was a lack of contemporaneous medical evidence the Tribunal could consider later medical evidence and "relate that back", as undertaken in Fury at [35]:

The lack of contemporaneous medical evidence necessarily means that it is necessary to consider later medical opinions about the applicant's presentation in later years and to relate that back to the nature and the extent of his condition in 1977.

20. In Fury, however, that task was undertaken with the benefit of contemporaneous medical evidence of the Applicant's symptoms, which were then later attributed to the condition in dispute. In these proceedings there are no contemporaneous records of symptoms which can be related to the conditions with which he is now diagnosed. Even his own treating psychiatrist, upon whom the Applicant relies, admits:

"I cannot say retrospectively that a definitive diagnosis existed at a certain time, as no one can given there was no assessment done at the time ..."

21. The Respondent submitted that the circumstances of this matter are, to a significant degree, analogous to those considered by the AAT in Wilson v Commonwealth Superannuation Corporation [2014] AATA 795. In Wilson the AAT was tasked to consider whether there was evidence that the Applicant was suffering from PTSD as at the date of his discharge from the Army, and the extent of any incapacity arising from that condition at that time. The evidence during the Applicant's service, like in these proceedings, was "universally contrary to the proposition that Mr Wilson was suffering from post traumatic stress disorder", including normal assessments and examinations of his mental health which the Applicant certified were true and accurate, and no reports of any psychological symptoms until years after discharge. The AAT preferred the contemporaneous medical evidence over the applicant's account, his family's accounts, and the opinion of a psychiatrist 31 years post-discharge, and doubted the reliability of the Applicant's accounts of his symptoms of PTSD because they were inconsistent with contemporaneous medical examinations of him. At [25]:

I do not doubt that Mr Wilson has come to believe that he was suffering the symptoms of posttraumatic stress disorder whilst still in the Army but, where the contemporaneous medical records are to the contrary, I am unable to accept that his evidence is reliable. > > And given that Dr Furze has relied on that, unreliable, history and has not been provided with the contemporaneous records that demonstrate the contrary, I am unable to accept his evidence.

22. I agree. In similar terms to those expressed by the AAT in Wilson, I prefer the contemporaneous medical records and the undisputed facts, where they contradict with the Applicant's accounts or the opinions which have relied on those accounts, including Dr Loftus' reports.

1. The Applicant submitted that the Respondent had not properly determined the matters contained in s 30(2) of the DFRDB Act when determining his classification with effect from 17 July 1989. The Applicant contended that there was a three step approach to assessing the Applicant pursuant to s 30(2) of the DFRDB Act:

(a) First, assess the Applicant's "vocational, trade and professional skills, qualifications and experience": Freeman v Defence Force and Retirement Benefits Authority [1985] FCA 330; 8 ALN N97 at [3]; > > (b) Second, in considering the kinds of civil employment which a person with skills, qualifications and experience referred to in subparagraph (a) might undertake, consider the person's "major skills" and "minor skills", based on the exercise undertaken in Re Ronald Raymond Kennedy and Defence Force Retirement and Death Benefits Authority [1985] AATA 86 at [42]: > > We think that, where a person has one major skill and considerable experience in its application and a number of other minor skills and relatively slight experience in their application, his incapacity to undertake any kind of civilian employment which his possession of that major skill and considerable experience would make it reasonable for him to undertake constitutes the major part of the diminution of his capacity to undertake civil employment. > > (c) Third, measure the loss of opportunity or diminished capacity a person has suffered by reason of the medical condition causing their invalidity retirements, to obtain and undertake civilian vocations which would otherwise have been open to that person: > > This was considered to mean that a person may have sufficient physical or mental capacity to actually do a job, but their incapacity may make them very unattractive to prospective employers. This then gave rise to consideration of cases in which the applicant disclosed their incapacity and was refused employment (Re Shelton and DFRDB 7 ALD 574), cases in which the applicant was employed after disclosure (Re Q and DFRDB [1984] AATA 215 at [18] to [19]) and the employer made allowances for the incapacity, and cases where the incapacity was disclosed and the applicant was denied employment (Re X and DFRDB (3 ALN N58); Re Q N83/787, [1984] AATA 215).This also led to the point that the more unskilled the person the greater effect a physical or mental incapacity will have (Re Bos 20 ALR 663; Re Kennedy 1 ALN 349; Re Nathan 1 ALD 277; Freeman v DFRDB [1985] FCA 330; 8 ALN N97).

2. Taking into consideration the Applicant's "major skills" and "minor skills", as indicative of the kinds of civil employment for which the Applicant was suited by education, training or experience, the Applicant initially submitted that the correct civilian occupations for him to be assessed against were:

a. Manual Labour jobs > > b. Sales Executive jobs > > c. Staff supervision jobs > > d. Restaurant and catering manager jobs > > e. Teaching or instructional jobs > > f. Fieldcraft, camping or outdoor living jobs > > g. Weapons handling or shooting jobs > > h. Policing jobs > > i. Corrective services jobs > > j. Investigative jobs

3. These were identified from a list of "hard skills/competencies" the Applicant claimed he had, based on a google search conducted on "the difference between hard skills/competencies and soft skills":
   1. Use of a point of sale system - McDonalds
   2. Sales skills - paper sales, being a waiter and taking customer orders, McDonalds team member
   3. Staff training skills - McDonalds crew trainer, Army Subject 1 for Corporal where I was taught how to conduct formal instruction for up to 9 people and assessed on my competency to do so
   4. Management skills - McDonalds crew trainer and Subject 1 for Corporal
   5. Leadership skills - McDonalds crew trainer and Subject 1 for Corporal
   6. Radio skills - Army
   7. First Aid Skills - Army
   8. Man management skills - McDonalds crew trainer and Army Subject 1 for Corporal
   9. Policing and Security skills - Army Military Police course
   10. Weapons handling and shooting skills - Initial employment training Infantry
   11. Navigation and map reading skills - Initial employment training Infantry and Subject 1 for Corporal
4. The Applicant's "major skills" and "minor skills" were obtained from "internet research", also referred to at paragraph [‎48] and [50] above:

Internet research indicates that there are 37 skills that Mr Lee brings to the table as a result of his stoic nature, as a result of his upbringing as a migrant and as a result of his disrupted family life, his pre-Army training with McDonalds, his pre-Army work experience, and his Army training and lifestyle...

5. In further submissions, the Applicant contended that his civilian employment options were:

a. Human Resource and Training Professional > > b. Training and Development Professional > > c. Warehouse and logistics manager > > d. Sales manager > > e. Restaurant Manager > > f. Outdoor Adventure Guide > > g. Retail Supervisor

6. The Applicant's "qualifications" and "experience" pre-Army and during service were stated by the Applicant to incorporate:

Mr Lee's qualifications are:- > > a. Year 12 HSC > > b. McDonalds Crew Trainer > > c. Infantry Private ECN 343 > > d. Subject 1 for Corporal > > e. Military Police > > f. McDonalds Assistant Manager - Graduated Hamburger University > > Mr Lee's experience is:- > > a. A migrant background requiring resilience, adaption, versatility and open mindedness; > > b. A disrupted family background requiring resilience and stoicism; > > c. Paper boy where he was engaged in sales, marketing, customer service > > d. Driveway attendant where he was engaged in sales, marketing and customer service > > e. Waiter where he was engaged in sales, marketing and customer service > > f. Tiler's assistant where he was engaged in organisation and manual labour > > g. Bricklayers assistant where he was engaged in organisation and manual labour > > h. Carpenters Assistant where he was engaged in organisation and manual labour > > i. McDonalds Worker and crew trainer where he was engaged in sales, marketing, management, supervision, training and customer service. > > j. Air force cadets > > k. Infantry soldier

7. As submitted by the Respondent, however, there are a number of issues with the Applicant's approach, including the identification of his qualifications, experience and skills. In relation to his qualifications, while the Applicant completed in-service training and qualification as a Corporal, he was not promoted to that rank. He also failed the Military Policeman course and was not recommended for employment in the Royal Australian Corps of Military Police. Claiming sufficient qualifications or skills to be engaged in civilian occupations of Policing jobs, Corrective Services jobs or Investigative jobs thereby seems unsupported by the evidence before the Tribunal. His work experience between the ages of 12 and 18 years old, during school holidays and weekends, can also not be usefully considered as providing him with formal or material skills of "sales", "marketing", "customer service", or "organisation". As submitted by the Respondent:

The transient and relatively unskilled nature of each of those jobs indicates it is unlikely that he gained any material skills, qualifications or experience (at least additional to those gained through his employment at McDonalds or in service), nor is there any evidence that he did.

8. The relevant time for the assessment is also as at 17 July 1989, not in the months and years following. The Applicant's inclusion of his experience as a McDonalds Assistant Manager, having graduated 'Hamburger University', post-dates the relevant time for the assessment of his capabilities. Whilst that experience can be taken into account, it can only be to the extent that such evidence can be "related back to and throw light on the applicant's state of health and incapacity" at the earlier date: see Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58. The Tribunal does not accept that the Applicant's work experience after his service should be included in consideration of the skills, qualifications and experience as at 17 July 1989. However, even if it were considered, it is unclear what the additional skills or qualifications he gained during his training at 'Hamburger University' were, and how these impacted his previously gained skills and qualifications.
9. The Applicant's contended "skills" from his migrant background and disrupted family life are not professional skills. They may support findings by suitably qualified medical practitioners of his character and personality type, but do not fall within the criteria expressed in s 30(2) of the DFRDB Act for the assessment of the kinds of civil employment against which the Applicant's incapacity should be assessed.
10. The Applicant's submissions and evidence regarding "major" and "minor" skills relies on a passage in Re Ronald Raymond Kennedy and Defence Force Retirement and Death Benefits Authority [1985] AATA 86 which was not particularly relevant to the decision in that case. The approach of considering "major" and "minor" skills in an effort to determine diminished capacity or incapacity does not appear to have been applied in any subsequent decision since that decision was decided in 1985, and I do not consider it a helpful approach in these proceedings. Regardless, I have given little weight to the Applicant's evidence about his contended "major" or "minor" skills, for the reasons expressed above.
11. The statutory criteria requires an assessment of the kinds of employment that an individual "might reasonably undertake". Whilst the words "kinds", "might" and "reasonably" in that standard are described as indicating that "a narrow view is not to be taken" (see House at 141), this does not require consideration of each and every possible employment option which the Applicant now envisages is or was available to him. A test of reasonableness must still be applied, taking into consideration the relevant circumstances identifiable on the evidence.
12. It is significant that the Applicant's own evidence is that he went to the University of New South Wales shortly after his discharge from the Army, to identify courses he could take which would assist him in getting a job and "they had nothing available for me" "there was nothing open to me at Uni" and "I did not qualify for anything". This is relevant to identification of the Applicant's skills, experience and qualifications on discharge for the purpose of s 30(2) of the DFRDB Act. The contemporaneous evidence from the Army psychological records indicates that at the time the Applicant joined the Army, he had completed Year 12 but had very poor grades because of "lack of application". In his 2nd Declaration, the Applicant describes being offered training at McDonalds to progress from Second Assistant Manager to First Assistant Manager:

[I] received a training module book that I was to work through but I did not finish it. I found it hard to focus on the training...

13. There is therefore no evidence before the Tribunal that the Applicant had, at any time, successfully undertaken any studies to advance his career. The evidence is to the contrary. There is no basis upon which the Tribunal would therefore infer that the Applicant had a capacity to advance his career by studying or completing courses, or that an individual with the same skills, qualifications and experiences as the Applicant would reasonably undertake any kind of employment that required the completion of studies or additional formal or informal tertiary qualifications.
14. Whilst the Applicant submitted that there were a number of other kinds of employment to which he was suited, the Applicant provided no authoritative or recognisable expert evidence on the skills required for those alternative kinds of employment, or any probative evidence that the Applicant did, in fact, have those skills because he had previously undertaken particular duties in a professional context. As discussed above, the only evidence provided by the Applicant involved his adoption of lists of skills or traits obtained from internet searches conducted by his solicitor, and the Tribunal considers that evidence to have no probative value in the circumstances.
15. It is not possible, therefore, to accept that an individual with the Applicant's skills, qualifications or experience could reasonably undertake employment as a Human Resource and Training Professional or Training and Development Professional. As submitted by the Respondent, both those roles require a bachelor's degree or equivalent. Nor is there any evidence before the Tribunal which would support a finding that such an individual might reasonably undertake employment as an Outdoor Adventure Guide.
16. In relation to the other additional kinds of employment identified in the Applicant's submissions, I agree with the Respondent's submission that:

The remaining roles require similar skills and involve similar tasks and duties to a café and restaurant manager. This is acknowledged in the Panel's reasons (T3), which stated that the roles of café and restaurant manager and security officer and guard "captured the broad nature of his overall proficiency".

17. There is no evidence that the additional kinds of employment contended for by the Applicant would make any difference to the assessment of the Applicant's capacity or incapacity for civilian employment. In the circumstances, the Tribunal is not satisfied that it is appropriate or necessary to separately consider those additional kinds of employment for the purpose of s 30(2) of the DFRDB Act.
18. The Respondent provided authoritative evidence of the occupational standards for 2 kinds of employment which, on the evidence before the Tribunal, appears relevant to the Applicant's capabilities through qualifications and experience. The Respondent determined that a person with the Applicant's skills, qualifications and experience (as at 17 July 1989) might reasonably undertake employment as a café and restaurant manager, or a security officer and guard. The evidence before the Tribunal of the Australian and New Zealand Standards Classification of Occupations (ANZSCO) identify the qualifications, experience and skill levels required for the roles of Café or Restaurant Manager (ANZSCO 1411), and Security Officers and Guards (ANZSCO 4422). The Tribunal accepts that evidence as relevant to those kinds of employment.
19. The Applicant has submitted that he would never have undertaken work as a security guard as this would not be acceptable to his parents. The Tribunal must consider what kinds of employment an individual with the Applicant's skills, qualification and experience might reasonably undertake, not what kinds of employment the Applicant preferred. I accept the Respondent's submissions that:

The Applicant's personal inclinations and his cultural background are irrelevant for the purposes of the Respondent's assessment of the kinds of civilian employment that a hypothetical person with his skills, qualifications and experience 'might reasonably undertake'. Section 30(2) provides that only the matters set out in that sub-paragraph, which do not include the member's personal inclinations or cultural background, can be considered.

20. I therefore find that for the purpose of s 30(2) of the DFRDB Act, the kinds of civil employment a person with the Applicant's vocational, trade and professional skills, qualifications and experience might reasonably undertake are "Café and Restaurant Manager" and "Security Officer and Guard".

1. I have explained earlier in these reasons for decision why I have decided to give the Applicant's retrospective recollections of his psychological symptoms limited weight.
2. Even taking the Applicant's evidence at its highest, there is no evidence that any of the psychological symptoms, which the Applicant claims he suffered in the days and weeks following his discharge, impacted his ability to obtain or undertake civilian employment as at 17 July 1989, or in the immediate months after. At their highest, the Applicant had feelings of listlessness, depression and uncertainty in the weeks and months following his discharge from the Army. The objective evidence demonstrates that these did not get in the way of him making inquiries with the University of New South Wales, or obtaining employment with McDonalds. His employment with McDonalds was entirely commensurate with the kinds of civil employment he might reasonably undertake.
3. The Applicant submitted to the effect that he was only able to undertake employment at McDonalds because his Manager was "sheltering" him in that role, and that he was "masking" his psychological symptoms or behaviours caused by his psychological symptoms. Authorities regarding 'masking' relied upon by the Applicant such as Freeman v Defence Force Retirement and Death Benefits Authority [1985] FCA 330; (1986) 5 AAR 156 refer to a situation where (emphasis added):

...although a member is employed, he is doing his work with such difficulty or under such stressful circumstances that it is plain that he has not any real capacity for it. The fact that he is in employment may be due to the kindness of an employer or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition...

4. I accept the evidence in the Marjasin Statement that such "sheltering" has occurred and is occurring in the Applicant's current employment, but I do not accept that this was occurring in the years prior to 2014, which is when Mr Marjasin first started supervising the Applicant. There is no contemporaneous evidence that this occurred prior to 2014 and I do not give weight to the Applicant's accounts of this occurring.
5. As submitted by the Respondent, even if I accepted the Applicant's accounts that he may have been 'struggling', 'felt insecure' or 'did not feel confident' in his role at McDonalds as Second Assistant Manager post discharge, there is no basis upon which I would find that those feelings were the result of his mental health conditions as opposed to the ordinary pressures of his role, and there is no evidence that it was necessary for McDonalds to adjust his duties or establish systems to allow the Applicant to cope with his impairment.
6. I agree with the Respondent that:

Importantly, the fact that the Applicant has been consistently employed since his discharge 35 years ago strongly indicates that his conditions have not caused him such difficulty that he is only capable of remaining in employment by temporarily masking his symptoms. If the Applicant's impairment has been as severe as he contends from the day that he was discharged, then it is difficult to see how it could be successfully 'masked' over several decades, particularly when there is no evidence that his employers have made any adjustments to accommodate that impairment (other than in his current role which commenced approximately 25 years after his discharge).

7. The Applicant submitted that his case was analogous to Dillaway, contending that more weight should be afforded to the Applicant's treating doctors than medico-legal assessments, and that the Tribunal should not limit its assessment of the Applicant's impairment to the date of his discharge because the legislation ought to be construed in light of its purpose of making proper provision for the needs of retiring service personnel or their families. I do not agree that the case is analogous. In Dillaway there was ample contemporaneous medical evidence of the Applicant's psychiatric diagnosis at and around the time of his discharge from the Army as medically unfit. In contrast, as submitted by the Respondent:

This is a significant factual distinction from the Applicant's case, where he was discharged as medically fit, fully employable and functional and only received a formal diagnosis by a psychiatrist almost 30 years after the date of his discharge, which led to a retrospective medical discharge.

8. In Dillaway the AAT expressed the following distinction which further demonstrates the difference between the circumstances in those proceedings and these:

It would clearly be contrary to the purpose of the Act if a person retired on medical grounds were to be precluded from ever claiming a pension under the Act simply because they would be able to work for a short period following discharge. A relatively small lump sum is not proper provision for such a person. Such a person is not in the same position as one who, although suffering some minor disability and unable to continue in the Defence Force, may nevertheless expect to continue indefinitely in gainful employment as a civilian.

9. The Respondent submitted that the Applicant in these proceedings fell into the latter category described in Dillaway above, and I agree. The Applicant was consistently employed for the past 35 years and has spent decades with individual employers during that time. The evidence before the Tribunal demonstrates that his retiring conditions caused him minimal impairment (if any impairment at all) at the date of discharge, and for many years afterwards.
10. None of the doctors who provided opinions in this matter could state with any certainty the exact degree of the Applicant's impairment or incapacity caused by his retiring conditions, and they all had difficulty with providing a retrospective diagnosis of those conditions. Taking into account the Retrospective Invalidity Decision is not reviewable in these proceedings and the Applicant's retiring impairments have been accepted by the Respondent as 'Persistent Depressive Disorder, Generalised Anxiety Disorder and Post-Traumatic Stress Disorder', I am satisfied on the evidence before the Tribunal that the Applicant did have those conditions as retiring impairments on 17 July 1989. I am not satisfied on the evidence before me, however, that they caused him any real quantifiable, moderate, or significant impairment or that any of those conditions diminished his capacity to undertake the relevant civil employment.
11. The percentage of incapacity for the purposes of s 30(1) of the DFRDB Act is therefore Level C - less than 30%.

1. Having found that I agree with the findings in the Reviewable Decision that the kinds of employment for the purpose of s 30(2)(b) are "Café and Restaurant Manager" and "Security Officer and Guard" and that the percentage of incapacity is Level C - less than 30%, the correct or preferable decision is for the Tribunal to affirm the Reviewable Decision.

1. The Tribunal affirms the decision under review.

Michael Fitzgerald for and on behalf of MJF Legal Pty Ltd