Alan Frank Groome v Repatriation Commission - [2001] AATA 794

DECISION AND REASONS FOR DECISION [2001]AATA 794

ADMINISTRATIVE APPEALS TRIBUNAL      )  No N2000/1163
VETERANS' APPEALS DIVISION       )
           Re      ALAN FRANK GROOME  Applicant

And REPATRIATION COMMISSION
Respondent
DECISION

Tribunal MS N BELL, Member

Date19 September 2001
PlaceSydney

Decision The tribunal sets aside the decision under review and in substitution for the decision determines that: a) the diagnosis of the claimed condition is amended to "post traumatic stress disorder and depressive disorder"; b) the conditions of post traumatic stress disorder and depressive disorder are war caused diseases, with effect from 9 January 1999; and c) the matter be remitted to the Respondent to assess the rate of pension payable to the Applicant.

[SGD] Ms N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – appropriate diagnosis of the Applicant's condition – standard of proof of "reasonable satisfaction" – post traumatic stress disorder – depressive disorder – whether condition is war-caused – whether material points to hypotheses connecting the Applicants' symptoms with his operational service – consistency between hypotheses and statements of principles – reasonable hypothesis – whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determination that any disease by which the Applicant is incapacitated is war-caused

Veterans' Entitlements Act 1986 – sections 9, 120, 120A
Statement of Principles Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 (concerning Post Traumatic Stress Disorder)
Statement of Principles Instrument No 58 of 1998 (concerning Depressive Disorder)
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Howe and Repatriation Commission (1999) 59 ALD 309
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Benjamin v Repatriation Commission [2000] AATA 902

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr Alan Frank Groome ("the Applicant") for a review of the decision of the Repatriation Commission ("the Respondent") dated 14 October 1999 to refuse the Applicant's claim for dysthymic disorder (T2). The Respondent's decision was affirmed by the Veterans' Review Board ("VRB") on 21 June 2000 (T20).
At the hearing the Applicant was represented by Mr Price and the Respondent was represented by Ms McConnell. The Applicant gave oral evidence at the hearing, as did his wife, Mrs Lynda Maureen Groome.
The following documents were taken into evidence:
Exhibit No     Description    Date
T1-T24 pp1-78         T-Documents pursuant to s 37 of the Administrative Appeals Tribunal Act 197526 August 2000
A1      Applicant's Statement of Facts and Contentions          24 January 2001
A2      Statement of Trevor Collier, Dean of Studies, Faculty of Tourism and Hospitality   15 May 2000
A3      Statement of the Applicant 23 November 2000
A4      Medical Report of Dr G Altman     27 December 2000
R1      Respondent's Statement of Facts and Contentions     30 July 2001
R2      Medical report of Dr John Shand 11 December 2000
R3      Historical research report by C H Ducker 4 January 2001
R4      Medical report of Dr John Shand 31 January 2001

issues

The issues, as characterised by the parties' representatives, to be considered by the Tribunal in this application are:
What is the appropriate diagnosis of the condition that the Applicant contends he suffers?
Is that condition war-caused?

legislation

The relevant legislation in this application is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 9, 120 and 120A. The Statements of Principles ("SoP") relevant to this application are Instrument No 3 of 1999 as amended by Instrument No 54 of 1999, concerning post traumatic stress disorder and Instrument No 58 of 1998, concerning depressive disorder.
Section 9(1) of the Act provides:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise."
Sections 120 and 120A are set out later in this statement of reasons.
background
The Applicant was born on 21 October 1944. He joined the Army on 22 February 1962 and left on 9 March 1987. He rendered operational service from 11 February 1966 to 8 February 1967 in South Vietnam, having volunteered to do so. His operational service took place in Vung Tau at the Rest and Convalescence Centre. The Applicant served as a cook.
On return to Australia the Applicant remained in the Army and ultimately progressed to the rank of Warrant Officer Class 2. After leaving the Army the Applicant began work as a teacher in a Technical and Further Education (TAFE) College in the area of commercial cookery. He remains in that employment. These matters are common ground between the Applicant and the Respondent.
evidence relevant to the issues
applicant's evidence
The Applicant, in his oral evidence to the Tribunal, confirmed that he was born on 22 October 1944 and joined the Army on 22 February 1962. He volunteered for service in South Vietnam and his service in Vung Tau commenced on 15 February 1966. He was posted to the Australian Rest and Convalescence Centre situated at Front Beach, some 15 minutes walk from the U.S. Air Base. The following is an extract, (with paragraph numbers removed) of a statement by the Applicant dated 23 November 2000 (Exhibit A3) provided in answer to a request for further particulars by the Respondent:
"The attack on the American air base definitely consisted of in-coming mortar rounds, and not rockets.
The attack took place in either the last week of February, or in the first two weeks of March, 1996.
I cannot remember the exact day of the week that the attack took place, but I believe that it was either a Tuesday or a Wednesday.
The attack took place at approximately 2030 to 2045 hours, and consisted of four mortar rounds being fired into the American air base at Vung Tau.
I had gone to the air base to visit three American servicemen that worked on the base in the ration supply depot that supplied our unit.
We were walking back to their barracks when the rounds fell on the other side of the building we were next to, and I estimate the impact area to be approximately 100 to 150 yards away from us. The rounds fell in a pattern of "1-2-34".
We ran the rest of the way to the barracks in sheer terror, and attempted to get to the weapons locker in an effort to protect ourselves, as we believed we were under attack. The American Sergeant responsible for the security of the weapons was in Vung Tau and we were unable to get the lockers open.
One of the other occupants of the hut notified the base M.P.'s of the situation and they, too, were unable to open the locker. They then ordered the soldiers to get weapons from one of the other huts. I must stress that we were all in a state of complete panic at this time. When it was realised that I was an Australian and not part of their unit, the M.P. said that he would drop me off at my unit as he had to go into town to pick up any American personnel that were there.
The next day I heard reports from some of our staff who had to go out to the air base, that the mortar rounds had only damaged some huts and equipment and left "huge" holes in the ground. I believe that it was only sheer luck that no one was killed or injured.
For approximately the next four weeks, other staff went to the air base to pick our rations up on supply days, as I was still too frightened to return to it.
The three American soldiers I was with at the time came to visit our villa about four weeks after the attack, and by talking to them and discussing the attack, I became more settled in my mind about that night, but, whenever I heard mortars or explosions, I again feared for my life. I constantly imagined what could have happened had I have been closer that night."
The Applicant said that from beginning to end the rounds of mortar would have lasted ten seconds. He was so frightened by the experience that he was unable to bring himself to return to the air base until about four weeks later when he had to do so in order to obtain rations. Prior to that he had arranged for someone else to obtain the rations for him.
When he got back to his villa he spoke to three of his friends and told them about the attack. They were fascinated by it and wanted to go to the American air base to see the damage that had been done. He refused to do so and persuaded them not to go. Instead he, with his friends, "wrote himself off".
The Applicant said that following the mortar attack the town was vacated, as he saw on his return to the villa, and a curfew was imposed.
The Applicant said that after the mortar attack he was shaking and petrified and the experience often comes back to him now. For example, if he is in the kitchen at work and someone drops a pot or pan on the ground and it makes a loud noise he becomes anxious and very "uptight". Similarly, when driving a car, if he hears a loud bang such as an engine back firing, he becomes extremely anxious.
The Applicant told the Tribunal about a recurring dream he has, which involves being in a battle with weapons but the weapons are not working or failing to hit the target. He said that he comes out of this dream in a startle and is hot and sweaty. The dream is very realistic and currently occurs approximately every three months. The dream began about twelve months after he went to Vietnam and when it first began occurred approximately every four weeks.
The Applicant also said if he sees something on the television news or in the newspaper, which relates to war, teargas, riots or similar events, he is unable to watch it or read about it, as he becomes extremely anxious if he does.
The Applicant said that he has seen Dr Koller, his treating psychiatrist, on about nine occasions over the last couple of years. He said that medication prescribed for him by Dr Koller has assisted him with his "anxiety attacks", where he becomes nervous, shakes and is unable to let go of his wife's hand.
The Applicant said that up to the point where he sought Dr Koller's help, he was extremely aggressive, angry, depressed and frustrated.
The Applicant said that he has ceased drinking, except for approximately once a fortnight when he drinks lightly. In Vietnam he was drinking approximately ten cans of beer per day and when he came back from Vietnam, up until 1976, he was drinking approximately six cans of beer per day. He said that he ceased drinking because it was affecting his marriage.
The Applicant then told the Tribunal about his relationship in Vietnam with a young Vietnamese woman, Mei, with whom he shared a flat for part of the week. The Applicant met Mei in his third or fourth month in Vietnam and after his first night with her, offered her some money and she was offended by this. They reached an agreement that he would pay the rent on the flat that she was occupying and he would thereafter visit her at the flat three or four times per week. The Applicant said that this was not a permanent relationship and that it was understood between them that he would return to Australia. He did not consider them to be in a de-facto relationship. In cross-examination the Applicant said that he had permission from his Commanding Officer to stay at the flat and did not have to sign out of his villa. He said, "if a guy went out on the town, he was responsible for himself. After 10pm, the curfew time, if a person was away from home, he kept off the streets".
The Applicant said that when he went back to Australia, he heard that Mei was killed in a battle staged in her family's village. He said that he was sorry to hear this, because they had been close and he felt about her death as he would have about the death of an old school friend.
The Applicant then gave evidence about his four marriages. He said that he met his first wife about twelve months after returning to Australia. The marriage lasted until 1974 and they raised two children, together with his stepson from his first wife's previous marriage. There were many arguments, mainly concerning, if the Applicant had been called back to Vietnam, his willingness to go back there. The Applicant said that he was drinking at the time and was very committed to his work. He said that the drinking made him violently aggressive – he would punch walls and doors and be loud and abusive. He and his first wife were living on an Army base and, although the police were never called to any of their domestic disputes, he said that his neighbours would have been well aware of their arguments.
In relation to the Applicant's second marriage, he said that he lived with his second wife in a de-facto relationship from 1976 until 1983 and they were married in 1983. This marriage lasted only six to nine months and there were no children. The marriage ended because the Applicant's second wife was unfaithful. The Applicant considered that he was aggressive in this relationship and this aggression contributed to the breakdown of the marriage. He said that he was not drinking as much at this time, perhaps drinking once a fortnight. In relation to his mood, the Applicant said that he knew that he had some problems but he thought that everyone who had been to Vietnam had the same problems. He said that no one talked about this, but he thought that everyone was behaving in the same way.
In relation to his third marriage, which lasted from March 1987 to 1993, he said that he came home one day and found the house empty. They had a great deal of anger towards each other and to some extent he blames himself, given that he would leave home at about 5am and get home between 6.30 and 7pm. He said that on weekends he simply wanted to relax but there were many demands including children's sport, church and socialising and he simply did not fit into any of these activities. He said he finally "spat the dummy".
In relation to the Applicant's current marriage, he said that he met his wife in 1989 when he moved to Wollongong and she was working as a cleaner at the TAFE College at which he was teaching. He described their relationship as "excellent". He said that she is patient with him and understands his problems but that he lets her down by becoming angry and by currently having a very low sex drive.
The Applicant described himself as "a loner" noting that he and his wife may have people over for dinner just once every six months. They go out for dinner at their club once a week but do not socialise with others there. He said he had a very small circle of friends, limited to ex Army or Navy people that he knows. He said that he finds it difficult to relate to non-military people.
In cross-examination the Applicant conceded that there are usually approximately 50 to 60 people present in the club he attends weekly with his wife. He said however, that he has a feeling there of being in a safe environment. He did concede, however, that he has not totally withdrawn from people.
The Applicant said that he is not in a constant state of upset, but that he becomes so when confronted with a range of irritations. He gave as examples watching the news, observing his neighbours, and seeing kids in the street. He said that he can be happy and is happy when he comes home to his wife or when he has his son with him. He said that simple things, such as sunrises, give him pleasure.
He said, however, that when he attends Anzac or other memorial ceremonies, which he does out of a sense of respect and honour for the dead, he is affected by the ceremony for days afterwards. He said when he sees old friends, he gets very discouraged and depressed because everyone is getting older and sicker.
In relation to his future, the Applicant said that he wants to finish working. He said that he is getting to a point of snapping or becoming "extremely aggressive" with those around him at work. He said that he is becoming very impatient with the students, speaking in a sarcastic way, and becoming very aggressive if they argue with him. He said he fears that he is not controlling this aggression and impatience as he should be and that one day he will "snap".
The Applicant also discussed some other incidents, in addition to the mortar attack, that he experienced in Vietnam. He recounted an experience of having to sort out the belongings of another soldier, when he found a small bag in the soldier's locker containing about six teeth with gold fillings. He said that he was sickened and horrified by this but did not enter a report of the finding and simply took the teeth to the tip. He said that he and his wife have an acquaintance with a gold tooth and seeing her always makes him think about this experience.
The Applicant told the Tribunal that on another occasion a soldier came to him saying that he found glass in his coffee and after dissolving all of the sugar in the kitchen and straining it, approximately half a cup of small glass particles was found. He said that the MPs were called in and took the indigenous staff away for three days. They returned, having been beaten, with black eyes and bruising. The Applicant said that this incident frightened him because eating particles of glass would have killed him and his fellows.
The Applicant also described an incident when a water spout, similar to a "whirly whirly" full of water, hit his villa. He said that it was a swirling mass of water that shook the entire building, took the roof off, injured some dogs that were kept there, and threw a marble chair across the grounds about 20 metres. He said the noise was extraordinary and he thought he might "go home in a coffin".
The Applicant also described an incident where he went to a bar to celebrate with friends and had about six beers, when a Vietnamese man walked past one of his companions and smashed him over the back of the head with a bottle. A fight ensued which become something close to a riot and someone lobbed a canister of teargas into the bar. The Applicant said that the teargas made him retch and cry and he vomited in a corner of the bar. He said he was terrified that something more than teargas would be used to quell the fight. When he came out, there were MP's gathered with guns drawn and he stood there for some time with his hands on his head, terrified that he might be shot.

The Applicant said that he never felt safe in Vietnam and had to look over his shoulder every step of the way. It was put to the Applicant in cross-examination that he had stated to one of the doctors examining him that he "enjoyed Vietnam and found it beautiful". The Applicant said that although he had found Mei an attractive companion and found the countryside to be beautiful, he always felt scared and vulnerable.
It was also put to the Applicant that he had progressed well in the Army and been successful in that progression. He countered that, while he did reach the rank of Warrant Officer Class 2, he wanted to go further and felt that there were times from 1969 to 1976 when he was passed over for promotion. The Applicant said that in 1981, in order to save his second marriage, he requested a compassionate posting alternative to a posting order to Puckapunyal because his wife of that time had said she would not go with him. He said that he considered that this was always a black mark against him. The Applicant finally left the Army because he was not enjoying it any more.
The Applicant, in cross-examination, denied "coping quite well" with his work at the TAFE. He said that the work involves a great deal of stress for him, having to deal with many students who have never been in the workforce and who do not understand the need for efficiency and high standards.
Through a number of questions in cross-examination, the differences in the number and range of specific instances of occurrences in Vietnam, which were reported by the Applicant to the various doctors he saw, were put to the Applicant. The Applicant explained that he did not discuss his experiences in Vietnam with Dr Davies because he was not asked any specific questions about them. He said that it was not until he found out that his application to the Repatriation Commission had been rejected that he realised that he needed to have a "stressor". He said no one had told him to tell the psychiatrist that he had a stressful experience. He simply answered their questions. The Applicant said that when he was examined by Dr Koller, he was asked questions about mortars and weapons and that his impression was that Dr Koller had more in depth understanding of conditions in Vietnam. In relation to his examination by Dr Dinnen, the Applicant said that the doctor simply asked him questions and he simply answered them. He then explained that he saw Dr Altman some four days prior to seeing Dr Shand and that five new stressors were mentioned by him, to Dr Altman, and the same new stressors were mentioned by him to Dr Shand.
The Applicant said that he does regularly reflect on incidents which took place in Vietnam, and it was not just his awareness of the need for a "stressor", in order to succeed with his claim, that made him relate those incidents to examining doctors. He said that the histories he gave to doctors examining him were determined by the questions they asked him. He said, "all I thought I had to do with psychiatrists was answer their questions".
Finally, in cross-examination the Applicant said he knew he had changed in the first week after he came back from Vietnam and told his mother a "sick joke". She said to him "you have changed". He said that he brought back with him many problems from Vietnam in his head. He said, for example, that he used to enjoy life and doing active things such as going to the beach, but when he came back from Vietnam such things no longer held his interest.
The Applicant also stated that the statement in Dr Dinnen's report, that there was a mortar attack on the tent hospital, is incorrect.
In cross-examination the Applicant agreed that the Rest and Convalescence Centre where he was based in Vung Tau was classified as a recreation area. However, he said that he and his fellows had been told that Saigon, nearby, was a target of the Vietcong. In re-examination the Applicant said that in Vung Tau three or four Vietnamese people had been killed by a blast in a cinema, which was believed to have been an attack of retribution by the Vietcong.
mrs lynda groome
Mrs Groome, the Applicant's wife, confirmed that she and the Applicant have been married for three years, having lived together for four years before their marriage. She also confirmed that she met the Applicant at Wollongong TAFE and now works as a school cleaner.
Mrs Groome told the Tribunal that the Applicant has extreme mood swings in which he will "fly off the handle" for no apparent reason. She said that she receives a stressed telephone call at least once a day about things happening to him at work. He "blows up" at least once a fortnight and when this happens he shouts and bangs doors. She said that on these occasions she leaves the house because she cannot handle his anger.
Mrs Groome stated that she considers that the Applicant's behaviour is due to his military past and drew some comparisons with her own father, who had been in the military and developed a similar kind of temper.
Mrs Groome said that the Applicant is very restless at night and kicks and thrashes in his sleep, often waking her up. She said she never asks him to talk about his experiences in Vietnam.
Mrs Groome cited an incident when she had invited her family over for lunch. The Applicant was in the kitchen and someone made a noise in the dinning room and he dropped a container of gravy, which went everywhere. She said that he "lost it". Loud noises upset the Applicant and this has now become worse because he has recently acquired a hearing aid and can hear things he could not hear before.
Mrs Groome said that the Applicant does not relate well to other people and when they go together to their club they sit by themselves. She said that he is very insular and does not seek out new companions.
She said that the television news and the newspapers upset him. If he is angry or upset he "shuts down" or makes sarcastic remarks. He will often retreat to his computer where he plays games on his own. He spends a great deal of time doing this.
Mrs Groome said that the Applicant gets very aggressive and irrational on the road – often to an extent that frightens her.
She said that her and the Applicant's sex life is now non existent. When they first lived together it was regular but not frequent. But now it has completely diminished.
Mrs Groome stated that when the Applicant comes back from a session with Dr Koller, his psychiatrist, he appears to be slightly more relaxed.
mr trevor collier
Mr Collier is the Dean of Studies in the faculty of Tourism and Hospitality at the TAFE College where the Applicant teaches commercial cookery. Mr Collier provided the following statement dated 15 May 2000 (Exhibit A2):
"I have known Alan Groome for a number of years and I have been the Manager supervising the Faculty in which he works for the last two years.
Alan has always been a conscientious worker, but I have been aware that he finds stressful situations difficult to handle. There appears to me to be an underlying anxiety state that inhibits Alan's ability to cope with students in difficult or stressful situations. While he is a dedicated and very hard working teacher, he has had ongoing difficulties in establishing a rapport with his students. There has been a number of occasions when students have complained that Alan has lost his composure and exhibited anger and frustration. His direct supervisor, John Michels and myself have had to counsel him from time to time about his teaching style and treatment of students. We have been very concerned at the obvious distress that he has felt as a result of his failure at times to cope with the stresses of teaching young and often difficult people.
It is likely that some of the communication problems that have surfaced over time have been in part due to the severe hearing disability that Alan suffers in situations with background din. His inability to hear some of the conversations would contribute to misunderstanding and intense frustration
Despite obvious distress and occasional inability to cope with day to day pressures, Alan has always been reluctant to use the sick leave that has been available to him, presumably because he felt that his absence would cause inconvenience to his colleagues. This sacrifice of self interest is typical of the man, but I feel it would have been better for him to take leave on occasions when he was obviously feeling great strain. He always valued his reputation as a good worker and did not wish to tarnish it by absenting himself when there was work to be done.
While Alan has always been reluctant to take sick leave, he has on occasions been permitted to undertake incidental/preparation duties at home, to allow him to escape the stress of the work situation."
dr karl koller
Dr Koller, Psychiatrist, in his report of 26 July 1999 (T12, p34) stated:
"This man indicates chronic post traumatic stress disorder that derives from the extraordinary experiences of a threatening nature during Vietnam war service. At times his life was clearly at risk.
Thus he complains of a complex symptomatology of PTSD:- ruminations and thought intrusions, sleep disorder, nightmares, angry irritability, social avoidance and distress in situations that cue or symbolise aspects of Vietnam service, e.g. Anzac Day.
It seems likely that the expression of PTSD has worsened in recent years as his physical health has declined. That is, poor physical health has allowed PTSD symptoms to become more prominent. I refer to haemochromatosis, diabetes, blood pressure, all requiring continuing treatment.
Nevertheless long before this period symptoms of PTSD, especially angry irritability and accompanying heavy drinking contributed to the wrecking of three marriages."
Dr Koller reported the following symptoms experienced by the Applicant (T12, p33):
·     thinks a lot;
·     has restless sleep;
·     has recurring dreams and nightmares ("I am in a fight, I pick up a weapon, it doesn't fire, or it misses");
·     inclined to get the shakes;
·     gets extremely angry;
·     avoids crowds and other people, reluctant to socialise; and
·     becomes emotional on Anzac Day, memorial services etc, upset for days later.
Dr Koller noted the following incidents, reported by the Applicant as features of his experience in Vietnam and often the subject of his thoughts:
·     mortar attacks;
·     transporting the sick and injured;
·     being threatened by MPs in Saigon;
·     attending a man being involved in an explosion;
·     woman and child he was close to in Saigon were killed; and
·     later several of his colleagues committed suicide.

Dr Koller's report of 8 March 2000 (T20), written after consulting the reports of Drs Dinnen and Davies regarding their diagnosis of depression and alcoholism, pointed out that:
"PTSD is an all embracing diagnosis. Clearly somebody with PTSD is likely to report feeling depressed and attempt to assuage the symptoms of PTSD with liberal amounts of alcohol.
His presentation thus is under the rubric of PTSD."
dr gordon davies
Dr Davies, Psychiatrist, in his report dated 22 June 1999 (T10) recorded a history provided by the Applicant, which included no details of incidents in Vietnam. Dr Davies said (T10, p27):
"On interview there were no gross psychiatric signs and when I administered the Minnesota Multiphasic Personality Inventory it showed a pattern …typical of persons who are concerned to present themselves as normal and responsible but who have strong underlying feelings of tension and depression and often complain of weakness and fatigue."
Dr Davies concluded (T10, p28):
"Reviewing the situation overall it would appear that Mr Groome [sic] primary psychiatric diagnosis following his Vietnam service was alcohol abuse and that this led to the breakdown of his marriages as well as contributing to his present physical illness. This is now largely contained although there is a clear residuum of underlying distress."

dr a dinnen

In his report of 8 October 1999 (T14) Dr Dinnen, Consultant Psychiatrist, said:
"It is my opinion that the patient has been suffering a depressive disorder since his service in Vietnam. I believe that relates to the loss of his de-facto Vietnamese wife and her child, initially by separation when he returned to Australia, and then so far as he is aware in reality when he was told that they had died at the hands of the Vietcong.
With regard with the apparently conflicting reports from Drs Davies and Koller, I believe that there is not a great difference between them. Both describe the patient's experiences in Vietnam, but Dr Davies who saw the patient first did not obtain the history of the significant relationship with the Vietnamese woman. He did note that the patient "felt restless and continued to drink heavily" on his return from service.
Dr Koller obtained more specific information about the patient's experiences in Vietnam, and I agree with him that there are elements of PTSD but I do not agree that the patient experienced specific stressors of the type that would satisfy the Statement of Principles.
I belief that the Statement of Principles for depressive disorder (Instrument No 58 of 1998) is satisfied for example in factor 5(b). The condition, dysthymic disorder, has clearly had an interrelationship with alcohol abuse in the past, and equally important interrelationship with problems with relationships over the years. I believe this diagnosis is in accord with the information found within both the reports of Dr Koller and Dr Davies."
Dr Dinnen, in his report (T14), noted the following symptoms experienced by the Applicant:
·     becomes angry and upset easily;
·     gets upset and tearful during Anzac Day and on Welcome Home march;
·     reacts as if warning whistle prior to a mortar attack were being sounded whenever he hears the postman's whistle;
·     was tense and emotional, disciplined and controlled and mildly depressed;
·     did suffer from depression during 1967 and 1968; and
·     has a recurring dream about being in a battle about once every eight weeks; the dream involves picking up a weapon that does not fire.
dr graham altman
Dr Altman, Consultant Psychiatrist, in his report dated 27 December 2000 (Exhibit A4), after reporting the details of the Applicant's symptoms and experiences in Vietnam, said:
"The above mentioned features are indicative of a severe chronic post traumatic stress disorder.
In my opinion the stressors Mr Groome was subjected to are severe enough to cause a post traumatic stress disorder and meet the relevant Statement of Principles for PTSD – in particular factor 5(a)."
Dr Altman reported the following symptoms experienced by the Applicant (Exhibit A4):
·     he suffers from nightmares approximately every two months concerning Vietnam; the nightmares began approximately twelve months after he returned from Vietnam and have been decreasing in frequency; they wake him on occasions and are very real and make him "hot";
·     he has recurring, intrusive, distressing thoughts about his Vietnam experience, about once ever three to four months;
·     he avoids thoughts associated with his war experiences and some situations and activities such a talking about his war experiences and watching war movies;
·     talking about his war experiences makes him feel "very nervous";
·     he is much more of a loner;
·     he feels generally detached from others - as if there is a barrier between him and others on occasions;
·     he is generally far more irritable;
·     his concentration is poor;
·     he has an exaggerated startle reaction;
·     he is hypervigilant and, for example, when sitting in a room he will sit with his back facing the wall so he can look at doors or windows;
·     he is very angry and gets upset very easily;
·     he feels frustration; and
·     he sleeps poorly.
According to Dr Altman, the Applicant reported to him that the following incidents occurred in Vietnam (Exhibit A4):
·     mortar attack on the U.S. airbase. He was fearful for his life, very shaky and "frightened to death";
·     the discovery of a bag of teeth with gold fillings in a soldier's personal effects. The Applicant was sickened at the sight of this and still has vivid memories of the incident when he sees people with gold teeth;
·     ground glass in the sugar. He was frightened by this and took it as a threat;
·     the villa being hit by a water spout. He thought he was going to die and was "scared witless" and "the noise was like standing next to a train in a tunnel";
·     the fight in a bar when teargas was thrown in. The Applicant reported cowering in a corner until he could find his way out of the bar, vomiting and coming out of the bar to find police standing with guns drawn, pointing their weapons at the Applicant and his companions. The Applicant "believed I could have been shot and stood with my hands raised until the MPs sorted out the brawl";
·     an incident in Saigon whilst on "R&R", when the Applicant visited the village of Yahu Ding to meet Mei's family and was pushed up the lane by Mei who said she and her family believed Vietcong sympathisers were coming to get him. The Applicant reported that he "believed he was going to get chased and killed"; and
·     an incident at his flat with Mei, where the area was cordoned off at 1am and a search from house to house undertaken by police. The Applicant reported that some people were hit and herded into trucks and he was "very concerned that I could be taken away also".

The Applicant also reported, according to Dr Altman's report, that his girlfriend in Vietnam, with whom he had split amicably when he left, was killed with her family. He was reported to say, "I was sad obviously".
dr john shand
Dr Shand in his reported dated 11 December 2000 (Exhibit R2, p15), concluded:
"In short, I support the diagnosis of post traumatic stress disorder as the result of active service in the Vietnam war zone, but I realise that it depends on the "perception" of danger and risk of injury or death, rather than the objective risks of such."
Dr Shand commented on the reports of Dr Koller, Dr Davies, and Dr Dinnen and stated (Exhibit R2, p13):
"My history from the patient did not support depressive disorder relating to the loss of the de-facto Vietnamese wife and her child by separation when he returned to Australia and subsequently by death at the hands of the Vietcong. He did not give me the latter history nor did he mention any connection between his post Vietnam depression while stationed at Ingleburn which he attributed to loneliness despite his wishes for company."
Dr Shand described the following symptoms experienced by the Applicant:
·     insomnia with dreams of being in a gun fight, urban battle or in a bus with hand guns or rifles going off all around him but with his gun never firing; this dream has been going for the least 20 to 25 years;
·     he gets very irritable and very angry very easily and loses his temper over trivial matters since his return from Vietnam;
·     no or little libido for three to six months, despite potency;
·     lack of enthusiasm about all that he does; since Vietnam he has had no interest in the beach or movies;
·     he startles easily with loud noises which make him very irritable; and
·     he has a lack of energy a lot of the time.
Dr Shand reported the same stressful incidents during his time in Vietnam as were reported by the Applicant to Dr Altman.
Dr Shand also reported that the Applicant becomes very emotionally upset during Anzac Day and Remembrance Day reunions, becomes tearful easily, and "re-experiences" Vietnam as triggered by loud noises and seeing gold teeth in a friend. He stated (Exhibit R2, p5):
"He relives the experience of the fight in the bar with teargas fired into the crowd of those who were fighting and becoming very ill. He hates crowds, which he relates to running up an alley to get away, with people everywhere and the feeling of being hemmed in and looking over his shoulder again. He said that in Vietnam, everywhere, he was aware of someone going to shoot him or of an explosion."

Dr Shand also reported the Applicant feeling isolated and unable to believe that others would have his rage and hostility, for which he does not have an explanation. He reported that the Applicant has lost friends and his anti-social behaviour affected his former three marriages.
Later in his report, Dr Shand, apparently in answer to undisclosed questions put to him by the Department of Veterans' Affairs, stated (Exhibit R2, p11):
"2.The history from the Applicant indicates onset of Post-Traumatic Stress Disorder starting soon after service in Vietnam.
4.In my opinion the history from the Applicant does satisfy the factors listed in the various Statement of Principles concerning Post-Traumatic Stress Disorder, with the possible exception of avoidance, about which I have commented above.
(a)All of the relevant factors with the possible exception of avoidance, are satisfied.
(b)       These factors relate to the Applicant's operational service.
History from the Applicant particularly satisfies the requirements of Factor 5(a), referred to in your letter.
The history obtained satisfies the definition of "Post-Traumatic Stress Syndrome" as set out in the Statement of Principles.
These severe stressors include:
(i)        Threat of serious injury or death.
(ii)       Engagement with the enemy.
(iii)Witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
7.From the history obtained the stressful events the Applicant relies upon have had a permanent effect.
8.From the history obtained, my opinion is that the events referred to by the Applicant involved actual or threat of death or serious injury from the objective point of view.
9.I do not diagnose the Applicant as suffering from Dysthymic Disorder.
13.I do not diagnose the Applicant as suffering from Alcohol Dependence or Abuse.
10.I do not consider that the Applicant suffers from any other psychiatric condition not mentioned above."
In relation to the issue of avoidance, Dr Shand said in his report:
"In answer to direct and leading questions his responses qualified all of the main criteria except perhaps for avoidance, although, that he becomes readily and easily tearful with reminders of the Vietnam War and its effects on all those involved, infers avoidance. His extensive reading about the Vietnam War also is the opposite to avoidance but it is obviously related to his continuing anger about the effects of the war and the injustice it perpetrated on the victims."
Dr Shand's second report, dated 31 January 2001 (Exhibit R4) follows his reading of a historical report by Mr Claus Ducker dated 4 January 2001 (Exhibit R3), Dr Altman's report of 27 December 2000 (Exhibit A4), copies of the personel file regarding the Applicant from Illawarra TAFE and clinical notes of Dr Sundar, the Applicant's general practitioner.
On the basis of this additional material Dr Shand concluded that the information in the historical report does not offer much support for the stressors alleged by the Applicant or their degree. The detail of that report is discussed below. Dr Shand also concluded that on the basis of the Applicant's record of sick leave and the clinical notes of Dr Sundar the only mention of psychiatric disorder in the sick leave record is "stress/anxiety with sick leave from 10 July 2000 to 24 August 2000, a total of 34 days" and the clinical notes, which cover the period from 1994 to 2000 only mention a nervous or psychiatric disorder in April/May 1999 (two entries) and in October 1999 (one entry). He said the notes referred to treatment with Cipromil.
Dr Shand concluded with the following opinion:
"The information in the historical report of Claus Ducker dated 4 January 2001 does not verify the stressors claimed by the Applicant and raises doubts about the significance and seriousness of the alleged stressors. It is also apparent in report of Dr Altman that the Applicant's description of his reaction to the various stressors is consistently exaggerated. The absence of history of symptoms of PTSD in the clinical notes of Dr Sundar raises doubts about the credibility of the history given to myself and Dr Altman, and therefore the connection between recent history of depression in 1999/2000 and operational service in Vietnam."
historical report by mr claus ducker
The report of Mr Ducker, Historian, dated 4 January 2001 (Exhibit R3), confirmed that the U.S. airfield at Vung Tau came under occasional enemy rocket or mortar attack and that such an attack occurred on the night of 12 March 1966. The Tribunal notes that during the course of the hearing the Respondent conceded the occurrence as alleged by the Applicant, however disputed the Applicant's contention as to the effect of the mortar attack on him.
Mr Ducker's historical report then goes on to deal with what is referred to as "the claimant's second contention" being (Exhibit R3, p3)
"The tent hospital was mortared regularly. He could hear the attacks."

This appears to be taken from the proceedings before the VRB. The Applicant at the hearing before this Tribunal firmly denied that he had alleged any mortar or rocket attacks on the tent hospital. The remainder of the historical report relates to the transportation of the wounded, the general behaviour of the South Vietnamese police, the scope for Australians at Vung Tau for life off base with Vietnamese nationals and the general circumstances of existence at Vung Tau. Given that the Applicant's hypothesis involves, primarily, the mortar attack as the stressor for the purpose of satisfying the relevant SoPs, it is primarily that aspect of the report dealing with the mortar attack that is relevant to this application. The report notes that if the Veteran was present at the time of the mortar attack, then:

"he seems to have been protected from view and fragments by a building".

submissions

Mr Price, for the Applicant, submitted that the first issue to be considered by the Tribunal, that is, the correct diagnosis of the Applicant's condition, should be decided, and findings made, on the basis of section 120(4) of the Act, that is, to the standard of "reasonable satisfaction". He directed to Tribunal's attention to the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307. He submitted that, on the basis of the available medical evidence, it is open to the Tribunal to find that the Applicant suffers from post traumatic stress order or, in the alternative, depressive disorder.
In relation to the second issue with which the Tribunal is concerned, that is, whether the condition suffered by the Applicant is war-caused, Mr Price referred the Tribunal to the decision in the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 and the four steps identified by the Court to be undertaken by a decision maker in the application of sections 120 and 120A of the Act.
Mr Price identified the hypothesis put forward by the Applicant as being, that during active service he was involved in a number of incidents, the primary incident being a mortar attack, which gave rise to, and caused, the development of post traumatic stress disorder or depressive disorder.
He identified first of all SoP No 54 of 1999 concerning post traumatic stress disorder and submitted that the incidents experienced by the Applicant satisfied factor 5(a) of the SoP. In this respect he relied on the reports of Drs Altman, Koller and Davies.
Mr Price also submitted that if the correct diagnosis is depressive disorder then the appropriate SoP is No 58 of 1998 concerning depressive disorder and that the incidents experienced by the Applicant satisfy factor 5(b) of that SoP. In this respect he relied on the report of Dr Dinnen.
Mr Price also referred to the decision of the Tribunal in Re Howe and Repatriation Commission (1999) S9 ALD 309, in relation to the importance of subjective reactions to stressors, and to the decision of the Federal Court in Meehan v Repatriation Commission [2001] FCA 597.
Ms McConnell, on behalf of the Respondent, submitted that the Applicant does not suffer from a psychological condition. She pointed to the range of different opinions given in the evidence provided by the medical practitioners and noted that the range of diagnoses included alcohol abuse; post traumatic stress disorder; depressive order; and no diagnosis. Ms McConnell submitted that there is a pattern in a chronological analysis of the medical reports, which shows that as time progressed throughout the period during which the Applicant was examined by psychiatrists, the number of "stressors" contended by the Applicant increased. Ms McConnell pointed out that no one psychiatric report names each and every one of the stressors contended by the Applicant throughout his various examinations. She maintained that this gives rise to issues of credibility and shows that as the Applicant became aware of the need for a "severe stressor", in order to satisfy the factors in the relevant SoP's, he began to discuss incidents of that nature with examining psychiatrists.
In relation to the incidents reported by the Applicant, whilst conceding that the alleged mortar attack took place, Ms McConnell disputed the extent of the effect of that mortar attack on the Applicant. In relation to other stressors or incidents named by the Applicant she submitted that they were not significant. In this regard, she pointed out that the Applicant did not seek treatment for any psychiatric condition prior to 1999 and she also relied on the historical report by Mr Ducker (Exhibit R3) in respect of the severity and possible effect of the incident on the Applicant.
Ms McConnell directed the Tribunal to the decisions of the Federal Court in Repatriation Commission v Gosewinckel [1999] FCA 1273 and Benjamin v Repatriation Commission [2001] FCA 522. Ms McConnell also submitted, as did Mr Price, that the standard of proof for determining whether the Applicant suffers from post traumatic stress disorder is that of reasonable satisfaction as provided in section 120(4) of the Act.
consideration
It is convenient here to set out the relevant provisions of sections 120 and 120A of the Act:
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:    This subsection is affected by section 120B.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
(a)       a claim under Part II that relates to the operational service rendered by a veteran;
…
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)       has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)       has declared that it does not propose to make such a Statement of Principles.
(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)       a Statement of Principles determined under subsection 196B(2) or (11); or
(b)       a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:    See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."
In Repatriation Commission v Deledio [supra], the Full Federal Court summarised the steps to be taken by the Tribunal in applying the above provisions and deciding whether a disease or injury is war-caused, at FCR 97-98 :
"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

The issues for consideration in this application, as characterised by the Applicant and by the Respondent, are, first, the appropriate diagnosis of the Applicant's condition and, second, whether that condition is war-caused.
The Applicant, however, referred the Tribunal to the decision of the Federal Court (per Wilcox J) in Meehan v Repatriation Commission [supra]. In that case, the Tribunal had been presented with medical evidence providing diagnoses of, variously, post traumatic stress disorder with major depression, generalised anxiety disorder with major depression and personality disorder. Wilcox J dealt, in his decision, with the question of the appropriate application of the decision of the Full Federal Court in Repatriation Commission v Cooke [supra]. Wilcox J held that the decision in Cooke [supra] stands for the proposition that the question of whether a veteran suffers, or did suffer, a disease or injury, as distinct from a particular ailment disorder, defect or morbid condition, is to be determined by the Tribunal to its reasonable satisfaction pursuant to s 120(4) of the Act. His Honour also held that Cooke [supra] does not require or permit the determination of the question of whether a veteran suffers a particular ailment, disorder, defect or morbid condition upon that standard of proof, that is, reasonable satisfaction.
His Honour in Meehan [supra] noted that often there will be agreement about the nature of the disease or injury that caused the veteran's alleged incapacity or death and that in such a case the main issue will be causation and the steps set out in Deledio [supra] will be followed. However, his Honour stated at paragraph 46:
"If the Tribunal finds there is not agreement about the nature of the disease (or injury), the Tribunal ought not to make any immediate finding about that matter. It ought to consider all the hypotheses that are pointed to by the available material, even though one (or some) may relate to one particular disease (or injury) and another (or others) to another particular disease (or injury). This may involve looking at more than one Statement of Principles. Conceivably, more than one hypothesis may pass the third stage of the Tribunal's exercise; in which case each of them will have to be tested against s 120(1) in the final stage of the inquiry. Of course, in the end it does not matter what label is put upon a veteran's disease or injury; the question will always be the s 13(1) issue: whether there is incapacity 'from a war-caused injury or a war-caused disease'."
His Honour in Meehan [supra] then set out the steps that should be taken by the Tribunal in those circumstances where there is no agreement about the nature of the disease or injury, at paragraph 48:
"What the Tribunal should have done, first, was to consider whether the material before it pointed to a hypothesis or hypotheses connecting Mr Meehan's psychological symptoms (whatever their clinical label) with his operational service. This should have included consideration of the question whether the material suggested those symptoms were aggravated by his operational service. If the answer to that was in the affirmative, the Tribunal ought to have identified (as it did) all the Statements of Principles that were possibly relevant to the hypothesis or hypotheses. The Tribunal should then have examined the consistency between the hypothesis, or hypotheses, and the various Statements of Principle, making no findings of fact at that stage. Finally, the Tribunal should have asked itself the s 120(1) question: whether it was satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that any disease by which Mr Meehan was incapacitated was a war-caused disease. In resolving that question, the Tribunal was entitled (and required) to make findings in relation to the facts of the case and to relate those findings to any relevant Statement of Principles: see s 120A(3) of the Act. At that point, it was material to determine whether, as a matter of fact as distinct from hypothesis, Mr Meehan's case fell within the terms of the Statement of Principles pertaining to generalised anxiety disorder."

The Tribunal was also referred, by the Respondent, to the decision of the Federal Court, per Whitlam J, in Benjamin v Repatriation Commission [supra]. In that case, an issue for consideration by the Tribunal had been whether the Applicant suffered the claimed conditions of post traumatic stress disorder and alcohol dependence. His Honour stated at paragraph 24:
"In Cooke the Full Court said (at 310) that s 120(1) and (3) of the Act assume the present existence of the relevant disease. This must, as the Full Court had earlier indicated (at 308), be a claimed disease. With respect, I do not agree with the views about the ratio in Cooke adopted in Budworth v Repatriation Commission [2001] FCA 317 and Meehan v Repatriation Commission [2001] FCA 597, which do not refer to the "narrow issue of law" so identified by the Full Court. In my opinion, it should be borne in mind that a claim for a pension under Part II of the Act is required by s 14(5) to be made in respect of incapacity from "a particular injury or disease". That means for present purposes that it is first necessary to determine whether the veteran contracted the disease "as claimed". That important qualification is acknowledged in the language of s 19(7)(a) of the Act."
Later His Honour said at paragraphs 27-28:
"27 The finding that the applicant did not suffer from PTSD plainly involved the application by the Tribunal of the civil standard of proof prescribed by s 120(4) of the Act. However, since the Tribunal made that finding by reference to the definition of PTSD in the SoP, the applicant submits that the Tribunal was bound to apply the reverse criminal standard of proof under s 120(1) of the Act. That submission overlooks the fact that the Tribunal never had to consider a hypothesis under s 120(3) and was hence not obliged to form an opinion by reference to the SoP.
28 It is interesting to note that, had a statutory obligation to consider the SoP arisen, the relevant factor was "experiencing a stressor prior to the clinical onset of [PTSD]". The expression "clinical onset" is apt to refer in a temporal sense to the symptoms, not the traumatic event itself. Yet as I have earlier remarked, the SoP's definition of "experiencing a stressor" was practically identical with par (a) of its definition of PTSD, which included the traumatic event criterion. Had the Tribunal advanced to the hypothesis stage under s 120(3), the Tribunal would have had to have been satisfied beyond reasonable doubt that exposure to a traumatic event did not occur. It is possible, perhaps even highly likely, that it would have been so satisfied in the light of Dr Grey's reports undermining the assumptions upon which the opinions of Dr Reinhardt and Dr Dinnen were founded. I did wonder, nonetheless, about the fairness of the Tribunal making a finding at the initial stage upon the same question, namely, whether the applicant experienced a traumatic event, by the application of a standard of proof that is less generous from a veteran's standpoint. Ultimately I do not think it could make any difference because the Tribunal was not reasonably satisfied that the applicant re-experienced any event as required by the criterion in par (b) of the SoP's definition of the PTSD. (The Tribunal's satisfaction in respect of pars (c) and (d) of that definition could only have been in respect of symptoms not associated with an event, but its statement in respect of par (e) of the definition puzzles me.)" [emphasis added]

With respect, the Tribunal considers the guidance offered by the decision in Meehan [supra] more appropriate to the circumstances of this application. As in Meehan [supra], there is, in this application, contradictory expert evidence offering different diagnoses of the condition alleged to be suffered by the Applicant. There are also Statements of Principles, as agreed between Applicant and Respondent, relevant to each of the conditions raised and more than one hypothesis put forward by the Applicant.
In addition, and with respect, the Tribunal is concerned about the implications of the decision in Repatriation v Gosewinckel [supra], relied upon by the Respondent. This concern was expressed by the Tribunal in its decision in ReMunton and Repatriation Commission [2000] AATA 902 at paragraphs 101-102:
"With respect, the Tribunal is uneasy about the implications of the Gosewinckel decision, at least with respect to PTSD cases, insofar as it appears to be requiring the decision maker to apply the factors in the SoP to the decision that must be made on the balance of probabilities as to whether the Applicant suffers from the condition. In effect this requires the Tribunal in this case to be reasonably satisfied that the "experiencing a stressor" element (and criterion B-F) exists when determining the issue of diagnosis, and to then revisit that same question (if the Tribunal finds the Applicant suffers from PTSD) but on an easier standard of proof when considering whether the Applicant's condition is war-caused.
The purpose of the SoP in "reasonable hypothesis" cases is merely to be used as a "template" to determine whether the raised hypothesis is reasonable. That is, it is a legislative instrument to determine whether the condition is related to the veteran's war service, whereas our reading of Gosewinckel suggests that it is also an instrument to be used to determine on the balance of probabilities whether the veteran suffers from the condition."

For these reasons, the Tribunal determined to adopt the steps set out by Wilcox J in Meehan [supra]. Those steps also incorporate, and are consistent with, the steps set out in Deledio [supra].
does the Applicant suffer a disease or injury?
This question is to be decided on the basis of findings made to the standard of reasonable satisfaction, that is, in accordance with s 120(4) of the Act. The Tribunal notes that only one of the five medical experts whose evidence is before the Tribunal has ventured the opinion that the Applicant suffers no disease or injury. The Tribunal also notes that that medical expert, Dr Shand, had initially formed the view that the Applicant suffered from post traumatic stress disorder. There is, rather, a range of opinion about the nature of the psychiatric condition suffered by the Applicant. On this basis, the Tribunal is reasonably satisfied that the Applicant suffers from a psychiatric condition.
does the material before the tribunal point to a hypothesis or hypotheses connecting the applicant's psychological symptoms with the circumstances of his operational service?

The hypotheses put forward to the Tribunal by the Applicant, in submissions and in evidence, are that:
during active service he was involved in incidents, the primary incident being a mortar attack, which gave rise to, and caused, the development of post traumatic stress disorder; and/or
during active service he was involved in incidents, the primary incident being a mortar attack, which gave rise to, and caused, the development of depressive disorder.

which statements of principles are possibly relevant to the hypothesis or hypotheses?

Both the Applicant and the Respondent have identified SoP Instrument No 3 of 1999 as amended by No 54 of 1999 concerning post traumatic stress disorder and No 58 of 1998 concerning depressive disorder. They are agreed that these are the relevant SoPs. No other SoPs have been identified by expert witnesses and no other SoPs appear to the Tribunal to be relevant to the hypotheses raised by the Applicant.
is there consistency between the hypothesis, or hypotheses, and the statements of principle?
At this stage, according to Deledio [supra] and to Meehan [supra], the Tribunal should make no findings of fact. The first SoP identified, that is, No 3 of 1999 as amended by No 54 of 1999 concerning post traumatic stress disorder, provides in clause 2:
"Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress
disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, "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;
(ii) recurrent distressing dreams of the event;
(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 symbolise or resemble an
aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or
external cues that symbolise 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 more of the
following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(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, attracting ICD-9-CM code 309.81."

A "match" must therefore be made between the above description and the material put forward by the Applicant in support of his hypothesis, if the Applicant is to succeed in relation to this step. Taking each of the items in the description in turn, the material put forward by the Applicant which "matches" each item, appears to be as follows:
(A)      the Applicant gave evidence that he was exposed to a mortar attack, which involved threatened serious injury to himself, or others, and his response involved intense fear;
(B)      this traumatic event is persistently re-experienced in recurrent distressing dreams of armed conflict, in which the Applicant is unable to fire at a target or to make his weapon work;
(C)      the Applicant has markedly diminished interest or participation in significant activities including entertainment, the beach, and socialising; he feels detached and estranged from others; and he has a sense of a foreshortened future in relation to his career, as he considers that he is no longer able to cope with the stress of his work;
(D)      the Applicant has persistent symptoms of increased arousal including irritability or outbursts of anger, for example with students, and exaggerated startle response, for example in relation to loud noises;
(E)      the duration of these symptoms in the Applicant is more than one month; and
(F)      the Applicant's symptoms cause clinically significant distress in the social area, for example his insular behaviour and his reluctance to socialise, and in the occupational area, for example in the way described by Mr Collier.
The Applicant therefore appears to satisfy, in terms of the material put forward by him, the definition in SoP No 3 of 1999 of "post traumatic stress disorder".
SoP No 3 of 1999 then lists, in clause 5:
"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder …with the circumstances of a person's relevant service:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder."
In addition, SoP No 3 of 1999 defines the term "experiencing a severe stressor" in clause 8 (as amended) as meaning that:
"…the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of
casualty clearance, atrocities or abusive violence;…"

The Tribunal notes that the definition of "experiencing a severe stressor" in clause 8 of SoP No 3 of 1999 is in substantially the same terms as paragraph (A) of the description of "post traumatic stress disorder" in clause 2 of the same SoP. The Tribunal considers that the mortar attack described by the Applicant in his evidence and its contended effect on him, meet the definition of "experiencing a severe stressor ".
The second SoP identified, that is, SoP No 58 of 1998 concerning depressive disorder, provides in clause 2:
"2. (a) This Statement of Principles is about depressive disorder and
death from depressive disorder.
(b) For the purposes of this Statement of Principles, "depressive
disorder" is defined as:
(A) the presence of major depressive disorder, dysthymic
disorder or depression not otherwise specified where:
(i) major depressive disorder is either a single episode
or recurrent episode as defined in DSM-IV; and
(ii) dysthymic disorder, as defined in DSM-IV, is a
chronic mood disturbance, of at least two years
duration, involving depressed mood, or loss of
interest or pleasure, with manifestation of the
symptoms used to diagnose major depression such as
neurovegative signs, social withdrawal, cognitive
impairment and suicidal ideation; and
(iii) depression not otherwise specified, such as minor
depressive disorder and recurrent brief depressive
disorder, as defined in DSM-IV, includes disorders
with depressive features that do not meet the DSM-IV
diagnostic criteria for other specific mood
disorders, attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311."
There is material before the Tribunal to support the contention that the Applicant has experienced, for significantly more than two years, depressed mood, loss of interest or pleasure, with symptoms such as social withdrawal. In particular, the report of Dr Dinnen referred to SoP No 58 of 1998 and concluded that factor 5(b) of that SoP is satisfied. However, there is no contention before the Tribunal that the Applicant has had suicidal ideation or cognitive impairment. On the basis of Dr Dinnen's report, however, there is sufficient material before the Tribunal to bring the Applicant's condition within the definition of "depressive disorder" contained in the SoP.
Clause 5 of SoP 58 of 1998 states:
"The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder… with the circumstances of a person's relevant service are:
(a) being a prisoner of war before the clinical onset of depressive
disorder; or
(b) experiencing a severe psychosocial stressor or stressors within the
two years immediately before the clinical onset of depressive
disorder; or
(c) having a clinically significant psychiatric condition within the two
years immediately before the clinical onset of depressive disorder;
or
(d) having a major illness or injury within the two years immediately
before the clinical onset of depressive disorder; or
(e) suffering from chronic pain of at least six months duration at the
time of the clinical onset of depressive disorder; or
(f) experiencing a severe psychosocial stressor or stressors within the
two years immediately before the clinical worsening of depressive
disorder; or
(g) having a major illness or injury within the two years immediately
before the clinical worsening of depressive disorder; or
(h) having a clinically significant psychiatric condition within the two
years immediately before the clinical worsening of depressive
disorder; or
(j) suffering from chronic pain of at least six months duration at the
time of the clinical worsening of depressive disorder; or
(k) inability to obtain appropriate clinical management for depressive
disorder."

The factor that appears to most closely relate to the Applicant's circumstances is factor 5(b). The term "severe psychosocial stressor", which appears in factor 5(b), is defined in clause 8 of SoP No 58 of 1998 to mean:
"an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;…".
The Tribunal considers that the incident of the mortar attack amounts to "an identifiable occurrence that evokes feelings of substantial distress". The Applicant's evidence was that he experienced extreme fear after and during the mortar attack. The Tribunal also notes that the examples given in the definition in clause 8 of the SoP, including being shot at, are in line with the experience alleged by the Applicant, in that he says that he was frightened for his life.
is the tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that any disease by which the applicant is incapacitated is a war-caused disease?
It is now, according to Deledio [supra] and to Meehan [supra], that the Tribunal may make findings in relation to the facts of the case and to relate those findings to any relevant SoP. It is also material, at this point, to determine whether, "as a matter of fact as distinct from hypothesis" (Meehan [supra]), the Applicant's case falls within the terms of the SoPs pertaining to post traumatic stress disorder and to depressive disorder.
The first hypothesis raised by the Applicant, that is, the hypothesis in relation to post traumatic stress disorder, involves a number of contentions concerning the relevant SoP. Those contentions are set out above.
There is no dispute that the mortar attack took place and that the Applicant was present. The Respondent does, however, dispute the effect of that incident on the Applicant, and relies on the historical report of Mr Ducker in respect of the severity and possible effect of the incident on the Applicant. The Tribunal notes that Dr Shand, in his report dated 31 January 2001 (Exhibit R4), following his reading of Mr Ducker's historical report (Exhibit R3), stated that there were "doubts about the significance and seriousness of the alleged stressors". The historical report notes that if the veteran was present at the time of the mortar attack then "he seems to have been protected from view and fragments by a building".
Dr Shand's report of 31 January 2001 also followed his reading of the clinical notes of Dr Sundar in which no mention of the Applicant's post traumatic stress disorder was made and no mention of any psychological condition was made before 1999. Dr Shand also stated that he had read the Applicant's personnel file and noted that the only mention of psychiatric disorder was "stress/anxiety with sick leave from 10 July 2000 to 24 August 2000, a total of 34 days". Dr Shand appears, on these bases alone, to reach the view that the Applicant had exaggerated the effect on him of his experiences in Vietnam. This is so notwithstanding his earlier report, in which he had concluded that the Applicant had experienced a "severe stressor" and that he had, as a result, developed post traumatic stress disorder.

The Tribunal considers that this evidence does not serve to establish, beyond reasonable doubt, that the Applicant's condition does not conform with SoP No 3 of 1999 as amended by No 54 of 1999. In this respect, the Tribunal is mindful of the evidence of the Applicant, Mrs Lynda Groome, Drs Koller and Altman and the report of Dr Shand, dated 11 December 2000, which, together, support the hypothesis raised by the Applicant in relation to post traumatic stress disorder.
In relation to the Applicant's hypothesis concerning depressive disorder, there is less support in the medical evidence before the Tribunal for a conclusion that he suffers from a depressive disorder than there is for a conclusion that he suffers from post traumatic stress disorder. However, the issue to be considered is whether the Applicant's hypothesis "matches" the relevant SoP template. The standard of proof relevant to a consideration of that issue is the "reverse criminal" standard.
Dr Dinnen's report (T14) placed the Applicant's condition squarely within SoP No 58 of 1998. The Respondent relied on Dr Shand's report of 31 January 2001 and the historical report of Mr Ducker. Given that Dr Shand's report of 31 January 2001 is in stark contrast to his earlier report of 11 December 2000, and that his change of mind is based on his conclusion that the Applicant had exaggerated his claims, the Tribunal considers that Dr Shand's report of 31 January 2001 does not serve to establish beyond reasonable doubt that the Applicant's condition does not conform with the SoP. Nor does the Tribunal find the historical report of Mr Ducker convincing in its implication that, having been protected from view and fragments by a building during the mortar attack, the effect of the mortar attack on the Applicant would not have been significant.
In relation to both hypotheses, the Respondent encouraged the Tribunal to observe a pattern in the history given by the Applicant to examining medical practitioners, as time progressed. The Respondent submitted that, as the Applicant became increasingly aware of the legislative requirements in place, he became more forthcoming with the examiners about his experiences in Vietnam. The Tribunal considers this an unconvincing argument and is of the view that there is a range of other possible explanations for the Applicant's increased exposition to medical examiners as time progressed. These include that the Applicant may have become more relaxed in the presence of medical examiners, that his unusually frequent examinations leading up to the hearing of this application made him more accustomed to the kind of dialogue required in an examination by a psychiatric medical expert. The Tribunal does not consider that any pattern that can be derived from the histories given by the Applicant to medical examiners serves to establish, beyond reasonable doubt, that the histories given were incorrect, untrue or exaggerated. The failure of the Applicant to seek treatment for any psychiatric condition prior to 1999 is not conclusive evidence of the absence of a condition, and particularly a psychiatric condition.
The Tribunal therefore considers that the Applicant satisfies the requirements in both SoP No 3 of 1999 as amended by No 54 of 1999, concerning post traumatic stress disorder and No 58 of 1998, concerning depressive disorder. It follows that, in the absence of any matter establishing, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant's post traumatic stress disorder and his depressive disorder are war caused diseases, the Tribunal concludes that the Applicant's conditions of post traumatic stress disorder and depressive disorder are war-caused.
determination
The tribunal sets aside the decision under review and in substitution for the decision determines that:

a) the diagnosis of the claimed condition is amended to "post traumatic stress disorder and depressive disorder";

b) the conditions of post traumatic stress disorder and depressive disorder are war caused diseases, with effect from 9 January 1999; and

c) the matter be remitted to the Respondent to assess the rate of pension payable to the Applicant.

I certify that the 121 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Member
Signed: O. Caragianni           .....................................................................................
  Associate
Date/s of Hearing  31 July 2001
Date of Decision  19 September 2001
Counsel for the Applicant        Mr Price
Advocate for the Respondent Ms McConnell