Arnott and Repatriation Commission - [2001] AATA 891

DECISION AND REASONS FOR DECISION [2001] AATA 891

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V 2000/849
GENERAL ADMINISTRATIVE DIVISION
  Re:         NEIL ARNOTT
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             24 October 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes the decision that the applicant's depressive disorder is a war-caused disease. Pension is payable to the applicant at 90 per cent of the general rate on and from 8 March 1998.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS - entitlement - disability pension - whether post traumatic stress disorder or depressive disorder are war-caused - correct diagnosis - whether experienced a severe stressor - whether 'confronted' by a stressor – severe psycho-social stressor - depressive disorder not otherwise specified - 'clinical onset'
Veterans' Entitlements Act 1986 ss9, 120, 120A
Budworth v Repatriation Commission [2001] FCA 317
McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
Thompson and Repatriation Commission [2000] AATA 635
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Gorton [2001] FCA 1194
Diagnostic and Statistical Manual of Mental Disorders 4th Ed 1994

REASONS FOR DECISION

24 October 2001 M.J. Carstairs, Member

This is an application by Neil Arnott (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent), as affirmed by the Veterans' Review Board (the VRB), to reject the applicant's claim for post traumatic stress disorder (PTSD).
At the hearing of this matter on 9 August 2001, Mr P. Leifman, solicitor, represented the applicant, and Mr K. Rudge, advocate, represented the respondent. The Tribunal had the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 before it. The applicant's Exhibits A-C and the respondent's Exhibits 1–7 were in evidence.
BACKGROUND
The applicant was born on 15 September 1949. He served in the Australian Army from 20 November 1968 to 19 November 1977. He was assigned to the Australian Army Catering Corp. Between 28 November 1969 and 1 November 1970 he served in Vietnam. He was discharged from the army on 19 November 1977.
On 15 June 1998, the applicant made an "informal" claim for a number of medical conditions. This was followed by a formal claim on 8 September 1998. In a decision made on 12 April 1999, the respondent's delegate decided to grant only those parts of the claim that related to bilateral sensori-neural hearing loss and gastro-oesophageal reflux. The delegate further decided that payment at 80 per cent of the General Rate of pension was warranted.
The applicant sought review of these decisions with the VRB. In the course of the VRB review, the applicant withdrew all claims excepting PTSD. Through the June 1998 'informal' claim the applicant had sought acceptance of a condition identified as "anxiety condition". In the formal claim in September 1998 this was specified further as "depression, irritability, bad nerves and anxiety" (T8).
The VRB in its decision dated 22 May 2000 accepted that the applicant had PTSD, but affirmed the respondent's decision of 12 April 1999 that the applicant's condition was not war-caused. The applicant sought review with the Tribunal on 4 July 2000.
EVIDENCE
The applicant gave oral evidence to the Tribunal. He said that he enlisted in 1968 and was posted to 8 Battalion Royal Australian Regiment (8 RAR) as a cook. He served 12 months in Vietnam from November 1969 to November 1970. 8 RAR was based at Nui Dat. He said that for the first 5 months in Vietnam he was with Administration Company of 8 RAR (Admin Coy) and worked as a cook in the officers' and sergeants' mess. He later transferred to A Company (A Coy) 8 RAR when a cook with that company became sick and returned to Australia. He recalled this occurred about March or April 1970. At the hearing he quoted from extracts from the diary of Corporal Robert Norris, dated 6 April and 8 April 1970, cited in Robert Hall's "Combat Battalion: the Eighth Battalion in Vietnam" (Allen and Unwin, 2000). Corporal Norris' diary referred to an improvement in the food at camp at Nui Dat, which the corporal attributed to the arrival of a new cook in A Coy. The applicant said that he believes that this refers to him and that the extract supports the date when he says he transferred to A Coy.
After the transfer to A Coy the applicant said he was more involved than he had been in Admin Coy with soldiers going out on patrol. He also had more picket duties. His evidence also was that he would sometimes ride out on trucks dropping soldiers off on patrols. He said it was his choice to do this, for "something to do", not an assigned task. Though he was mostly at Nui Dat, he said that with both Admin Coy and when transferred to A Coy he was sent out to Fire Support Bases (FSB's) to cook or to do sentry duties.
The applicant gave evidence of five experiences in Vietnam, which he found stressful. The first occurred about three months after he went to Vietnam while he was with still with Admin Coy. He was sent out to FSB Isa for some eight days to prepare meals. At FSB Isa he said he first witnessed outgoing mortar bombardment, which he observed from a distance of ten 10 to 20 feet. He could see the mortar bombs exploding over the nearby mountain range. He had not seen mortar fire before that. He said the experience was "fascinating and terrifying at the same time" (Transcript p13). He believed that the mortar fire was part of an operation against the enemy.
The second incident also involved mortar fire and also occurred during the eight days he was at FSB Isa. He said that he believed the incident involved incoming mortar fire. On this occasion he was sleeping in a trench. He said two detonations and a flash "a little distance" away woke him. He said that he observed outgoing fire but after he saw the flash, all firing ceased. He said he was told next morning that mortars had been fired. He conceded in cross-examination that the mortars may have been a kilometre away or more. He recalled being scared, as he was on his own. However he said he did not get up from the trench to look.
A third incident he recalled was at FSB Le Loi, where he had been sent on sentry duty. He said that he was sent to Le Loi for about six days in July or August 1970. At the FSB's, on days off, he said he would go out on trucks 'for something to do'. The trucks travelled in pairs. On this occasion he said he thought the truck was going out to pick up troops. After driving a distance he said the truck came to a stop. He looked around and saw bodies of Vietcong that were being buried. He said he did not know how the truck got to the site of what had been an encounter with the enemy. He said the truck stopped only a minute or two and was told to move on. He said the incident distressed him and was still vivid in his memory.
In cross -examination he said that while he had signed an earlier statement prepared by an advocate assisting him at the VRB hearing, which stated that the truck had been tasked to pick up members of C Coy (who carried out the ambush), this was not correct. He said that he was in one of two trucks that merely had stumbled on the site. When asked to describe the site he described it as relatively open grassy and undulating, with a few trees. He said that it was not paddy fields. He said what he observed was the burial trench and soldiers were putting bodies into the grave.
When shown a photograph of the site, taken during the burial, which showed the site as paddy field, with a crop of rice planted, the applicant acknowledged that he did not actually remember the site. However he maintained that a truck in which he was travelling came upon the event as he had stated.
The fourth stressful incident involved learning of the death of a soldier whom he knew from army training at Canungra. He knew him by the nickname of "Jacko" and thought his surname was Jackson. The applicant was at FSB Isa when he first heard the news of a mine explosion involving Australian soldiers. Initially he heard that Australians had been injured. Later that night he heard that Jacko had been killed. He said that he knew others amongst the injured but he knew none as well as "Jacko". Amongst the injured was someone he knew as "Childsey". He gave evidence that he had met "Jacko" when he was sent for three weeks to Canungra prior to his posting to Vietnam. At Canungra he undertook training exercises for one week and the rest of the time was engaged in cooking duties. "Jacko" was in A Coy and though the applicant was a cook in Admin Coy, the training at Canungra was general training prior to the tour of duty and brought the companies together. The applicant was assigned for one week to the rifle company and got to know "Jacko" at that time. He said that it was usual for the cooks in Admin Coys to be assigned to rifle companies for that training. The applicant said that he was not physically able to keep up well in the rigours of training. "Jacko" assisted him in the training and they bonded in the week that he was assigned with him. He said of Jacko that he was "the one who cajoled, befriended me, dragged me through the whole part with them . . . prior to this I was virtually straight out of recruit training". Afterwards when they returned to Enoggera, he continued to mix socially with "Jacko" and would be "the wheels" if they were going into town in a group as he was a non-drinker at that time. He said that when he was in Vietnam he probably only saw "Jacko" once or twice.
In cross-examination it was put to the applicant that he did not know Jacko well, especially as he did not know his real name. However the applicant said that many soldiers were known only by nicknames. The applicant's own nickname was Bab and many would not have known his real name, he said.
The fifth incident that caused him distress was when he was tasked to hold a light during a bombardment by American planes seeking out suspected enemy in a nearby area. This occurred when the applicant was at FSB Le Loi. He said that he and another soldier were directed by a lieutenant to hold a flashing light at night in a field to provide a positional marker for American pilots to strafe targeted areas. The applicant said he thought the light was to enable the American planes to sight against in lining up the targeted area. He said that he was unsure of the distance of the target. He said that he did not worry so much at the time. In cross-examination he said that at the time "he got a buzz out of it" because it was something completely different.
After his return from Vietnam the applicant said that he took some leave and then was posted to Watsonia Barracks as a cook. He could not settle down and commenced to drink more heavily. He told the Tribunal that he had neither consumed alcohol nor smoked prior to service in Vietnam as his family was in the Salvation Army. He ran up several charges for offences in the remaining years that he was with the Army. Before his Vietnam service he had only one offence recorded of a minor nature. He said that after Vietnam he slept with a rifle for a while. He said he had become a depressed and angry person, which he had not been before and was consuming large amounts of alcohol. He was angry about the treatment that those who had served in Vietnam got on their return to Australia. He went AWOL for a period of five days when he was stationed at Watsonia and after that he was posted to 6 RAR and was sent to Singapore, which he indicated was a desirable posting. He said his alcohol consumption was eventually reigned in due to the intervention of a warrant officer who put him on a three months "dry" prior to his return to Australia.
He said that after leaving the Army he had his own business, a fruit shop, but was juggling other cooking jobs as well. He said he let work consume him and he thought that this contributed to the breakdown of his first marriage. He said that work was his escape from the memories of Vietnam. He had numerous jobs and could not settle to any of them for long periods. He said however that he did not realise that he had a problem until he sought professional help in the early 1990s. He said he did not want anyone to think that he had "a mental problem". He then saw Dr D'Ortensio in 1992. At about this time his father and brother died in close succession. Prior to seeing Dr D'Ortensio he said he had discussed his problems with his GP.
It was clear from medical reports in evidence that the applicant had significant depressive episodes in the 1990s, at about the time of his father's and brother's deaths. Two reports from Dr D'Ortenzio were in evidence. He saw the applicant at the respondent's request in 1992. The applicant had made a claim for "stress" in 1992 but this was rejected as "No Incapacity Found" on 8 June 1992. The first report of Dr D'Ortenzio, dated 20 May 1992 (T5), concluded that no specific diagnosis could be made of any depressive or anxiety disorder and there was "no evidence whatsoever" of PTSD. However the history taken by the doctor recorded the following:
He tells me that through his time in the army he had many difficulties but that these occurred after his year in Vietnam where he tells me he worked as a cook….he found that on his return he was abused and spat upon and was unable to talk to people about it. He tells me that he lost many of his mates in that year but also found that very hard to discuss with people. He felt that he had bottled up his various problems and occasionally coped by using alcohol in a binge manner. He blames this experience for his inability to settle down after Vietnam and to need to continue to deal with things by bottling them up and then making a major change when the bottling up no longer continues to suffice.
The respondent sought a further report from Dr D'Ortenzio (dated 10 November 1994 - Exhibit 8). This report was prepared when the applicant claimed for 'depressive disorder' in 1994. In the 1994 report Dr D'Ortenzio states that the applicant was in the recovery phase of a "severe and debilitating depression". He said this followed a visit to the War Memorial in 1992, which stirred up the applicant's Vietnam experience. After that, Dr D'Ortensio said, the applicant found it hard to shrug off thoughts about Vietnam. The report records the following:
As stated in my previous report Mr Arnott has suffered from a long history of ongoing difficulty dealing with thoughts and feelings, in particular anger and resentment and he has dealt with these through the years by bottling them up…He says that he has carried his grief for his lost friends for many years and he has never been able to put it out or discuss it.
In this second report on the applicant, Dr D'Ortenzio diagnosed "major depression … now in partial remission". The opinion he gave was:
. . . there is a strong case to be made that this current depressive episode is related to his war service . . . In terms of his personality as detailed in my previous report he has dealt with emotional difficulties in a very particular way which has included suppression and repression of all of his problems and in a manner that would often lead to explosive outbursts with significant mood and conduct disturbances.
The applicant's treating doctor, Dr J Greblo, referred him to Dr J Bomford. Dr Bomford's report, dated 29 July 1998, recorded that the applicant found his year as a cook in Vietnam painful to him as he lost some of his mates in ambushes. He recorded that a "difficult task was the mass burial of fourteen soldiers from another company who had just been ambushed". (The applicant said that he had not said this to Dr Bomford and that Dr Bomford must have mixed together two incidents.) Dr Bomford recorded the applicant told him that from that time he learned to stifle his emotions, though his later posting to Singapore was a "very positive" experience. Dr Bomford concluded that there was "little in the history to suggest PTSD although it is likely that the experience in Vietnam changed his capacity to manage stress in the long term".
Dr John Cooper, consultant psychiatrist, gave oral evidence to the Tribunal. Dr. Cooper had treated the applicant on referral from Dr. J Greblo. In evidence were three reports from Dr. Cooper dated 8 January 1999, 15 July 1999 and 10 March 2001(Ex A). The first report noted that Mr Arnott had been severely depressed for four years and suffered from insomnia, poor appetite, low energy levels, poor concentration, irritability and agitation. The report recorded that on his return from Vietnam the applicant felt alienated, suppressed his feelings and blocked out his memories of the war. The applicant had told Dr Cooper that he slept with a rifle on his return from Vietnam. He diagnosed that Mr Arnott was suffering from mild war-related PTSD, and that he was vulnerable to developing PTSD because he had a "sensitive pre-morbid personality style". He noted that in more recent times the applicant suffered a Major Depressive Disorder.
In the report dated 10 March 2001,Dr Cooper confirmed his initial diagnosis of mild PTSD though he found the applicant less depressed in 2001 than he had been on examination in 1999. In summary he said:
I would formulate Mr Arnott's psychiatric status as comprising two processes. For at least the last seven years he has had ongoing evidence of a mild chronic Post-Traumatic Stress Disorder which remained active and present at assessment on 9 January 2001. Secondly, he has also had a fluctuating Depressive Disorder which was not particularly active when I last saw him. There have been times when Mr Arnott has had both significant Depression and Post-Traumatic Stress Disorder (1994, 1998, 2000) and there have been other times when his Post Traumatic Stress Disorder has persisted in the absence of depression (1999, January 2001).
Dr Cooper gave evidence that when he first treated the applicant he had formed the view that the applicant had a mild PTSD and was satisfied that the incidents that had occurred in Vietnam were sufficient stressors to cause the condition. In his report dated 15 July 1999 he noted two circumstances of the applicant's Vietnam service which filled the diagnostic requirements for experiencing a severe stressor in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). First, when the applicant was confronted at FSB Isa with the news of members of A Coy being caught in a minefield. Secondly, 'unequivocal incident' was when he witnessed the bodies of Vietcong being buried in a mass grave.
Dr Cooper was asked whether, if the applicant knew only one person killed or maimed in an incident, rather than several, the "severe stressor" required for a diagnosis of PTSD would be met. He said that knowing one person would be sufficient, though it may bear on the severity of the trauma. He acknowledged In regard to the incident of the burial of enemy dead, that it was the proximity of the observation and the concept of seeing bodies that were important, though he said there were gradients of exposure. In cross-examination he said that in diagnosing PTSD he considers that "confronting" an event includes "learning about" or hearing of an event, as long as the reaction is present. He said it does not have to be a face-to face-situation.
Dr Cooper considered that depression was present to some degree at times that he had seen the applicant. However, he had not seen him at the times of the applicant's worst depression in the mid-90s. When asked if depression was an alternative diagnosis, Dr Cooper said that on most of the occasions that he had seen Mr Arnott, depression was a relevant diagnosis and that it had fluctuated more severely than his PTSD. He said that he had treated him with anti-depressant medications, which are also the treatment of choice for PTSD. His opinion was that the applicant had a diagnosable depression, fluctuating, not always present, and no diagnosable condition of depression present when he last saw him (January 2001).

Dr Cooper said that on the history he took, the applicant had a psychiatric disability on his return from Vietnam. He referred to the applicant's inability to discuss his experiences with people and suppression of his feelings. He was so concerned about his safety that the slept with a rifle. He was frequently jumpy and drank alcohol to excess (Transcript p54).
MS CARSTAIRS: . . .
Can you just give me your thoughts on that notion of a depressive condition as against – if there is an as against, a major depressive disorder?---[DR COOPER] The problems that Mr Arnott was experiencing at that time, that Dr Strauss has referred to in that way, I would actually interpret differently and that I would actually see that as the early evidence of his post traumatic stress disorder, because the problems that he was having had to do with avoidance and emotional numbing and hyper vigilance and using alcohol in excess as a way of avoiding thoughts and feelings related to his experiences. The fact that there may be a depressive flavour to that, in many ways, simply reflects the fact that there is a significant overlap in the specific symptoms of PTSD and major depression. For example, the emotional numbing symptoms, loss of pleasure and interest, poor concentration, sleep disturbance. These are all symptoms of both conditions and to get – sort of, the technical distinction between the conditions, would involve acknowledging that they, in fact, do overlap in terms of their symptom profile. But the timing and the content of the symptoms that Mr Arnott described in the aftermath of his return from Vietnam, I would interpret that a being a post traumatic problem and Dr Strauss is there acknowledging that it was a significant issue. My understanding of it is that he probably then developed various ways of dampening down and coping with these problems and if looked at, carefully, cross-sectionally at different times between then and when he then started to present with problems, he probably would have had evidence of chronic low grade anxiety with many of these symptoms still being present. And it is my opinion that that situation would have been one of the contributing factors placing him at risk when these other stressful life events occurred, to developing the more severe depressive illness, which was associated with his breakdown in the 90s. [trans, p.65]
The Tribunal had three reports from Dr Strauss, Occupational Psychiatrist who gave evidence for the respondent at the hearing. The first report was dated 2 November 2000. In that report Dr Strauss stated that he was not convinced that the applicant had PTSD as he did not believe that the applicant had significant flashbacks or nightmares. His report noted that the applicant suffered a Major Depression in more recent times, but noted further the possibility that the applicant was depressed after he left Vietnam. Whilst he acknowledged on the other hand the applicant re-enlisted, suggesting that he was not severely affected, his report states:
I suspect that even before the diagnosis (of a major depression in recent years) was made he did have depressive problems and it could be hypothesised that the depression does go back to this man's time in Vietnam. In conclusion I do believe that his man suffers from a major depression and I believe that it can be related to his time in Vietnam.
I believe that his depression is a result of several factors. Firstly I believe that his time in Vietnam did cause him some emotional distress which stayed with him for a number of years and helped precipitate his depressive condition in the early 1990's. . . . I do accept that the applicant's Vietnam experiences satisfy causal factors in Statement of Principles 58 of 1998 for Depressive disorder.
As I have stated I believe that this man did have some severe psychosocial stresses (sic) while he was in Vietnam and I believe that there is a significant chance that he may have developed depression or depressive symptoms within two years of those experiences.
In his report to the respondent dated 15 May 2001, Dr Strauss confirmed his thinking that "considering his experiences in Vietnam which were psychologically traumatic for him in my opinion he did experience some depression immediately after his time in Vietnam".
Dr Strauss's final report to the respondent maintained the position that the applicant did develop a depression as a result of his service in Vietnam. He considered that a report by Dr Bomford (dated 29 July 1998 – Exhibit 6) supported his own view that his experiences from Vietnam resulted in a depressive condition, suppressed for a number of years, and reactivated when confronted with family issues and losses. However, the report acknowledged that it could be argued that the applicant did not have a clinical psychiatric illness within a year or two after his experience in Vietnam. In his evidence to the Tribunal he said that it was difficult to know the applicant's psychiatric state on discharge from the army and it was difficult to know when the depression came into existence especially considering that it was not formally diagnosed by a psychiatrist until the early nineties.
Lieutenant Colonel C. Ducker (retired), a military researcher, prepared three reports dated 13 April 1999, 14 November 1999 and 3 December 2000. He researched disputed matters including the date when the applicant transferred to A Coy and the incidents relied upon as stressors. His reports and oral evidence confirm the following:

A mine incident involving 1 Platoon of A Coy, 8 RAR occurred on 28 February 1970, about five kilometres from FSB Isa during Operation Hammersley when the Platoon was patrolling in the Long Hai Mountains. In that incident two mines exploded, with a total loss of life of nine Australian soldiers, eight of whom were from 1 Platoon A Coy. Additionally, there were 16 wounded. Lieutenant Colonel Ducker said that such news travels fast and word could quickly have got to the applicant at FSB Isa at that time. His research revealed that the message was passed over 8 RAR radio the following day, naming all those killed.
An ambush of Vietcong by 8 Platoon, C Coy, 8 RAR occurred on 12 August 1970, at 0315 hours, and resulted in 19 recovered bodies of enemy dead. The ambush was about one kilometre south-west of Hoa Long on the road from Nui Dat. The burial was carried out at first light by C Coy in a mass grave dug with a backhoe. Sources present estimated the burial site to be about 70 metres from the road. None of those sources had a recollection of the arrival of trucks at the site, though Lt. Col. Ducker suggested, nevertheless, that it was possible that the site had been visited and the visitors not observed. He confirmed that the usual practice was that trucks travelled in pairs.
Lt. Col. Ducker's Report of 3 November 2000 confirmed the applicant's evidence that prior to Vietnam all the rifle companies undertook training at Canungra; that all would have taken their own cooks to the training; and that the applicant may have been attached to A Coy for his training. Lt. Col. Ducker gave evidence that Admin Coys would go for training at Canungra as it was necessary that all were all trained prior to their tour of duty. He said it was quite plausible that the applicant was attached to a rifle company for his training.
Lt. Col. Ducker's investigations revealed that there was no incoming fire while 8 RAR occupied FSB Isa. He said that while life at the FSB's was not regarded as very hazardous, FSB Isa was in the foothills of the Long Hais, which was a known mine area. His evidence was that outgoing mortar fire at FSB's occurred on a continual basis, both for practice and for tactical defence, and that no soldier would regard it as unusual.

CONSIDERATION OF THE ISSUES.

Section 9 of the Veterans' Entitlements Act 1985 (the Act) provides that a veteran's injury will be war-caused if it resulted from an occurrence on operational service; if it arose out of or was attributable to war service; if it resulted from an accident while travelling to or from duty; if it was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or was contributed to in a material degree or aggravated by war service.
The applicant's service in Vietnam from 20 November 1969 to 12 November 1970 is operational service (s6 of the Act). He has eligible defence service from 7 December 1972 to his discharge on 19 November 1977. However, no reliance was placed on that period of his service for this claim. Since he has operational service, the standard of proof to be applied in order to determine the questions arising under s9 of the Act is:
120(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.
(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.
In this matter there is disagreement about the diagnosis of the condition from which the applicant suffers. Whilst there is agreement in the medical reports that the applicant suffered a Major Depressive Disorder in the early nineties, there is disagreement both on a present diagnosis, and to a lesser extent, on the applicant's psychological status immediately following his period in Vietnam. Mr Liefman submitted that the most appropriate diagnosis was PTSD as identified by Dr Cooper. Mr Liefman also submitted that the Federal Court decision of Budworth v Repatriation Commission [2001] FCA 317 requires that to decide questions specifying diagnosis, the Tribunal must apply the more beneficial standard of proof in s120(1) rather than decide this question on the balance of probabilities under s120(4). The respondent submitted that that the decision of the Full Federal Court in Repatriation Commission v Cooke 1998 52 ALD 1, should be preferred to that of Budworth. Mr Rudge submitted that Cooke is authority for the proposition that in establishing diagnosis, the standard of proof is that of reasonable satisfaction provided for in s120(4) of the Act. Since the date of hearing the full Federal Court has handed down its decision in Repatriation Commission v Budworth [2001] FCA 1421 which confirms the correctness of the approach in Cooke.
Where a claim is made after 1 June 1994, as in this case, s120A(3) of the Act provides that a hypothesis connecting a disease with the circumstances of any particular service is reasonable only if there is in force a SoP that upholds the hypothesis. The hypothesis raised by the material will only be reasonable if the hypothesis is consistent with the template of the SoP.
In cases where decision-makers are to decide matters applying SoPs, the steps to be followed have been outlined by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Those steps were summarised by the Court as follows:
"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 Federal Court in Meehan v Repatriation Commission [2001] FCA 597 has added to the first of the steps set out in Deledio (following Repatriation Commission v Cooke (1998) 90 FCR 307) that at the first of the steps the decision-maker must be reasonably satisfied that there is a disease as claimed. Whilst the approach in Meehan on this point is not supported by the Full Court in Budworth it remains the case as stated in Meehan that the decision-maker ought to consider all hypotheses that are pointed to by the material even though one may relate to one particular disease and another to another particular disease.
When the applicant made his claim the relevant SoP was Nº 15 of 1994. At the time of hearing, SoP Nº 3 of 1999 (as amended in a minor way by SoP Nº 54 of 1999) was the SoP in force. Following the Full Federal Court decision in Repatriation Commission v Gorton [2001] FCA 1194, what must first be considered is the SoP in force at the time of the Tribunal's decision. In the SoPs dealing with PTSD which potentially must be considered by the Tribunal between the time of the claim and the decision, the definition of experiencing a stressor (whether that has been called a 'severe stressor' or simply a 'stressor') has altered only slightly. In the earlier Instrument (Nº 15 of 1994) the definition of 'experiencing a stressor' included a response of fear helplessness and horror as part of the definition. This is removed in Nº 3 of 1999. All SoPs in the relevant time have set out in the similar terms the minimum factors that must exist as the basis of a reasonable hypothesis. Furthermore, all the SoPs define PTSD in terms which mirror the criteria for a diagnosis of PTSD set out in Diagnostic and Statistical Manual of Mental Disorder 4th Ed 1994 (DSM IV).
The stressors that were raised in the applicant's claim are:
Witnessing outgoing mortar bombardment at FSB ISA (Incident 1)
Observing possible incoming fire at night at FSB ISA (Incident 2).
Coming upon the aftermath of an enemy encounter and burial of enemy dead (Incident 3).
Learning of the death of "Jacko" in a mine explosion (Incident 4).
Holding a flashing light at night in a field at FSB Le Loi (Incident 5).
These stressors provide the basis to raise hypotheses that fit within the template and are not fanciful or contrary to known fact. (Step 3)
It is at the fourth step (applying Deledio) that the Tribunal is required to make findings on questions of fact. The SoP requires that for the hypothesis to connect PTSD to service there must be a severe stressor experienced prior to the clinical onset of PTSD, but the SoP also requires that all the elements of PTSD be met which include that the veteran has been exposed to
. . . a traumatic event in which 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
. . . the person's response involved intense fear, helplessness or horror
Mr Leifman submitted that each of the incidents was sufficient as a stressor, though it was clear from his submission that the greatest reliance was placed upon incidents 3 and 4. Mr Rudge submitted that there were real doubts about the applicant's credibility in light of the changed versions of events that he had given. Mr Rudge submitted that the evidence of Lt Col Ducker should be accepted on the point that there was no incoming fire on FSB Isa and that in general the matters raised in incidents 1,2 and 5 were not sufficient to meet the definition of severe stressor within the SoP.
In considering the incidents relied upon here the Tribunal finds that the incidents 1, 2, and 5 were not events in which the applicant experienced witnessed or was confronted with the threat of death or serious injury or threat to the physical integrity of others. Furthermore the applicant did not respond with intense fear, helplessness or horror to incidents 1, 2 and 5 as is required to establish a diagnosis of PTSD within the SoP. The applicant said that observing the outgoing mortar fire at FSB Isa was terrifying and fascinating and this is not a response reflecting intense fear, helplessness, or horror. The Tribunal accepts the evidence of Lt. Col. Ducker that firing of mortars was a routine operation, going on all the time at the FSB's. There was nothing in the applicant's evidence about the flashes observed from the trench, regardless of whether he thought that it was incoming mortar fire, that suggested his reaction was of helplessness or horror, and again this incident could not support a diagnosis of PTSD. The applicant's evidence was that he subsequently came in contact with mortars being fired, suggesting that his reaction at FSB Isa in both incidents of mortar fire (incidents 1 and 2) was a reaction more on the level of mere surprise and unfamiliarity. The Tribunal accepts the evidence of Lt. Col. Ducker that A Coy was not subjected to any incoming mortar fire at FSB's and that the applicant was not under any personal threat in the mortar incidents. Neither of incidents 1 or 2 fit the template. As to incident 5, the applicant's evidence was that he "got a buzz" out of it and it was something different. Again, this means that an essential element to establish a diagnosis of PTSD under the template is not met, in that there was no reaction of intense fear, helplessness or horror. The Tribunal finds therefore that none of the incidents 1,2 and 5 were "traumatic events" of the kind envisaged in the SoP, nor was the applicant's reaction that of intense fear, helplessness or horror.
Dr Cooper, the only medical practitioner who diagnosed PTSD, does not rely on incidents 1, 2 and 5. His reports and oral evidence focussed on incidents 3 and 4. Even at face value incidents 3 and 4, raising actual issues of death, carry greater significance than the others do. As stated, the SoP sets out in detail the requirements to establish the presence of PTSD as well as setting out the possible connections with service. The first requirement is that a person is exposed to a traumatic event in which they experienced, witnessed or were confronted with an event or events involving actual or threatened death or serious injury or a threat to the physical integrity of self or others. Mr Leifman submitted in regard to incident 3 that the applicant's evidence was supported in important points by Lt. Col. Ducker's evidence, for example that he confirmed that trucks travelled in pairs. However the weight of the evidence is against accepting that the applicant came upon the site of the burial of the enemy dead. He had no recollection of the site and his evidence was made less plausible by inconsistencies in versions given to doctors from time to time. His preparedness to sign two documents prepared by his advocate for the VRB hearing which he now says are not a true allows little confidence to be placed in his claim to have witnessed the event. These statements, attesting that the applicant was part of the company engaged in clearing up the site after the ambush and that he viewed the bodies from truck at a distance of 12-15 metres were presented to the VRB. The applicant did not attend the VRB hearing; but through his advocate it was indicated he did not wish the VRB to contact him for elucidation.

The Tribunal accepts the evidence presented through Lt. Col. Ducker that the burial site was a paddy field, not readily traversable by truck. The Tribunal finds as a fact that the applicant did not come upon the scene of the burial of the enemy dead. Even had the Tribunal accepted that the applicant came upon the site, the distance from which any observation could take place, coupled with the limited duration that the truck was stopped would not have satisfied the requirement of severe stressor within the SoP.
In regard to the death of "Jacko", the applicant submitted that hearing the news of the death of a friend met the criterion of being 'confronted with' a traumatic event. Mr Leifman submitted that the Tribunal should look to the DSM 4 criteria and its discussion on the point and should accept the evidence of Drs Cooper and Strauss that within DSM IV, 'learning of' an event is sufficient. Mr Rudge submitted that hearing of the death of "Jacko" and the injury of "Childsey' did not come within the diagnostic criteria for PTSD, even if the applicant's evidence was accepted that he came to know "Jacko" well. On Mr Rudge's submission the applicant was not 'confronted' with an event within the meaning of the SoP. He submitted that the decision of Thompson and Repatriation Commission [2000] AATA 635 is authority for the proposition that 'confronted' must be defined along dictionary lines that require actually seeing the event or consequences of the event or the aftermath of the event, so that there is an immediate relationship with the event.
It is the Tribunal's view that if Mr Rudge's submission is correct, that 'confronted' requires that a person see the event or the physical aftermath of it, it is difficult to see what role the word 'confront' is to play in the SoP, that is not already covered by the terms ''experienced' or 'witnessed'. The better approach in the Tribunal's view is to take guidance from the diagnostic criteria in DSM IV. While it is the SoP that must be applied by the Tribunal, the SoP is based upon medical knowledge sourced in the diagnostic manual.
DSM IV sets out at 309.81:
The essential feature of PTSD is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury…;or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected death, serious harm, or threat or injury experienced by a family member or other close associate (Criterion A1) [emphasis added]

Taking account of the structure of the sentence and its punctuation, this extract closely reflects the first requirement in the SoP. It seems clear that the terms used in the SoP (experienced witnessed or was confronted with') are meant as equivalents to the terms 'experience' 'witnessing and 'learning about' as set out as a basis for medical practitioners to diagnose the condition in clinical settings. This being so, the Tribunal accepts that 'confronted with' includes hearing of news of an event.

Mr Rudge submitted additionally in regard to incident 4 that the applicant's evidence about the closeness of his relationship with "Jacko" was to be impugned because he had ample time to give the detail of "Jacko's" name prior to it being given on the first occasion at the hearing. Generally, Mr Rudge questioned the applicant's credit. However, it is clear from the evidence that even early reports to doctors refer to the incident of losing mates (see Dr D'Ortensio's report 20 May 1992). The incident also was raised in the applicant's case before the VRB.
In weighing up this issue the Tribunal takes into account the evidence and the issues of credit raised in this case. The Tribunal accepts that the applicant trained with and formed a friendship with "Jacko". Much was made in cross-examination of the lack of knowledge of his full name. However, given the period of time that has elapsed, and that no claim of any lengthy friendship is made, this is less remarkable. The Tribunal accepts that the training experience at Canungra made a lasting impression on the applicant. He was still relatively young, and on his own evidence, from a sheltered background. With the prospect of war ahead of him, Canungra would provide the circumstances in which the sort of bonds that says he made with "Jacko" would be of greater importance to him than the limited time spent there would suggest. The mine explosion occurred in February 1970, less than three months after the applicant arrived in Vietnam which puts it closer in time also to when the Canungra training would have been undertaken, though there was no exact evidence of when he undertook the Canungra training. The applicant's evidence of the importance of the friendship to him and the distress hearing of his death caused, is not lightly to be discarded. The Tribunal accepts that hearing of the casualties in the mine explosion and in particular the traumatic death of "Jacko" in the mine explosion was an incident that meets the "severe stressor" criterion. The Tribunal accepts that the applicant's reaction at the time was that of intense fear, helplessness or horror, based upon the reports of doctors who have examined him (Dr Cooper 15 July 1999; Dr Strauss 2 November 2000).
However the Tribunal does not accept, despite the opinion of Dr Cooper to the contrary, that the applicant meets all the criteria in the SoP for a diagnosis of PTSD. The Tribunal prefers the evidence of Dr Strauss on this point, namely that the applicant does not have the indicia of re-experiencing or reliving events. In SoP Nº 3 of 1999 these are set out in (B). Dr Strauss considered that memories come back to the applicant only when he puts his mind to it rather than uninvited. The Tribunal is satisfied that the applicant does not have post-traumatic stress disorder and prefers the medical evidence that he has a depressive disorder. The Tribunal did not consider that reference to the earlier SoP in force at the time of claim was warranted, in view of its findings on diagnosis.
In contrast to the SoPs dealing with PTSD, where there is little real difference in content between the different SoPs during the relevant time, there are substantial differences between the two SoPs in place for depressive disorder particularly in regard to the definition of 'depressive disorder' itself. The Tribunal, applying Gorton, must first look at SoP Nº 58 0f 1998. The SoP that predated Nº 58 of 1998 was Instrument Nº 65 of 1996 (as amended by Nº 181 of 1996). Importantly, the earlier SoP provides a much more restricted definition of 'depressive disorder'. Instrument Nº 58 of 1998, provides that
For the purposes of this Statement of Principles, "depressive disorder" is defined as:
(A)the presence of . . . depression not otherwise specified where:
. . .
(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.
The code that provides for 'Depressive Disorder Not Otherwise Specified' in the Australian Version of the International Classification of Diseases 9th Revision is ICD 9 CM 311. An example in the category of Depressive Disorder Not Otherwise Specified set out in DSM IV is where 'a clinician has concluded that depressive disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced'(DSM IV p 350).
SoP Nº 58 of 1998 recognises the following factor as a reasonable hypothesis to connect the condition of depressive disorder to war service:
. . .
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder…
The SoP defines "severe psychosocial stressor" as '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 SoP does not define 'clinical onset'.
Applying the steps in Deledio to all the material before the Tribunal there are hypotheses raised by the applicant connecting the disease claimed to the circumstances of service. There is a SoP in force. The hypotheses fit within the template in the sense that one or more of the factors in the template is raised, as all rely on the existence of stressors occurring during operational service and connect these to the onset of depressive disorder.
Turning then to the fourth step in Deledio and looking at incident 4, which for the reasons given above was found to be a severe stressor, this incident is sufficient, in the Tribunal's view, to be a 'severe psychosocial stressor' within the meaning of that term in the SoP for Depressive Disorder. The definition of 'severe psychosocial stressor' in the SoP envisages a wider range of circumstances than does the definition of 'severe stressor' or 'stressor' within the SoPs for PTSD. The Tribunal accepts and so finds that incident 5 fits within the definition of 'severe psychosocial stressor', as it is an identifiable occurrence, being the death of someone the applicant regarded as a close friend and the news of his death and the casualties evoked in him feelings of substantial distress. The Tribunal does not accept incidents 1, 2 and 5 as being severe psychosocial stressors. At the very least they did not evoke feelings of 'substantial distress'.
The SoP (Nº 58 of 1998) requires also that the stressor must be experienced in the two years immediately before the clinical onset of depressive disorder. On this point Mr Rudge submitted that the clinical onset of depressive disorder was in the early nineties. However the medical evidence does not point that way. On the evidence before the Tribunal a Major Depressive Disorder occurred in the mid-1990s, brought on, it would seem, by the deaths of the applicant's brother and father. However that is distinguishable from a depressive condition that may have been present at an earlier time. The concept of 'clinical onset' has been looked at in several decisions of the Tribunal. In Re Robertson the Tribunal concluded (paragraph 23) that:
On that evidence, we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptoms which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

This reasoning was followed by the Tribunal in McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428:

We consider that the term 'clinical onset' means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition.'

It is necessary that the symptoms satisfy the medical scientific standard set out in the SoP. In this case, the medical evidence suggests that at the time of his return from Vietnam the applicant had the features of a psychiatric condition. On this both Dr Strauss and Dr Cooper are in agreement. Dr Strauss in his report date 15 May 2001says of it:
. . . I believe this man did have a depression not otherwise specified but it is extremely difficult to know when his depression commenced. I would state that considering his experiences in Vietnam which were psychologically traumatic for him in my opinion he did experience some depression immediately after his time in Vietnam…I cannot be absolutely certain that this man had depression after his time in Vietnam. I can only state that on the balance of probabilities he probably did have a depressive condition but I cannot be certain of this.
In his report of 27 July 2001, Dr Strauss modified that view to some extent but nevertheless maintained that he believed it could be argued that the applicant did develop depression as a consequence of his service, particularly in Vietnam, which was suppressed for some years and reactivated when confronted with family issues and losses.
Dr Cooper's opinion was that the symptoms were those of PTSD. His report dated 8 January 1999 records that the applicant's PTSD was 'quite active in the initial years after Vietnam but quiesced and became subsyndromal until 1993 when it was reactivated by visiting the War Memorial . . . This reactivation was then complicated by a more severe Major Depressive Disorder'. As the depressive disorder SoP covers the residual category of Depressive Disorder Not Otherwise Specified it is unnecessary to take the question to greater specificity. There is sufficient support in the medical reports of both Dr Cooper and Dr Strauss to confirm the presence of a Depressive Disorder Not Otherwise Specified within two years of experiencing a severe psychosocial stressor. Dr Strauss's reports use that diagnosis (see para 58 above) and his diagnosis is referable to DSM IV.
In looking at these matters after the passage of time it will be difficult in many cases to be certain, a matter to which Dr Strauss makes reference in his reports. However, bearing in mind the provisions of s119 and s120(6) of the Act, and most importantly the standard of proof in these matters, the Tribunal finds that clinical onset of a depressive disorder occurred within two years of the stressor in Vietnam.
For these reasons the Tribunal finds that the applicant's depressive disorder is a war-caused disease within the meaning of section 9 of the Act.
The question of rate of assessment was not canvassed in submissions at the hearing. The parties advised the Tribunal in writing, after the hearing that they were in agreement that, should the applicant be successful, the appropriate rate of pension would be 90 per cent of the General Rate. As Dr Cooper's and Dr Strauss's reports are essentially in agreement about the level of disability as a result of the condition, that assessment is appropriate and the Tribunal adopts it. That assessment will take effect from 8 March 1998, three months prior to the date of the informal claim.
DECISION
The Tribunal sets aside the decision under review and substitutes the decision that the applicant's depressive disorder is a war-caused disease. Pension is payable to the applicant at 90 per cent of the General Rate on and from 8 March 1998.
I certify that the sixty-six [66] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J.Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  9 August 2001
Date of decision:  24 October 2001
Solicitor for applicant                   Mr P. Leifman, Peter J. Liefman, Barrister & Solicitor
Solicitor for respondent:              Mr K. Rudge, Departmental Advocate