Bounds and Repatriation Commission - [2002] AATA 446

DECISION AND REASONS FOR DECISION [2002] AATA 446

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/622

VETERANS' APPEALS DIVISION       )
           Re      BRUCE RICHARD CHARLES BOUNDS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

Date13 June 2002
PlaceSydney

Decision      The tribunal varies the decision under review so as to: Set aside the decision that the applicant's post-traumatic stress disorder and generalised anxiety disorder were not war-caused diseases. Decide that the applicant's post-traumatic stress disorder and anxiety disorder are war-caused diseases, with effect from 12 January 1999. Affirm the decision that chronic solar skin damage is not a war-caused disease. Remit the matter to the respondent for assessment of the appropriate rate of Disability Pension with effect from 12 January 1999.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether post-traumatic stress disorder a war-caused disease – whether veteran experienced a severe stressor – anxiety disorder – whether veteran experienced a severe psychosocial stressor within the two years immediately before clinical onset of anxiety disorder – whether veteran had clinically significant psychiatric condition within the two years immediately before clinical onset of anxiety disorder – veteran held to have experienced a severe stressor and severe psychosocial stressor as required by Statements of Principles

Veterans' Entitlements Act 1986 ss 6D, 7(1)(a), 9(1)(a), (e)(ii), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(1), (3), (4), (5), (6), 120A(1), (3), 196B(1), (2), 196D
Statement of Principles 3/99 concerning post-traumatic stress disorder
Statement of Principles 54/99 concerning post-traumatic stress disorder
Statement of Principles 1/2000 concerning anxiety disorder

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

June 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

On 21 April 1999 Bruce Richard Charles Bounds ("the applicant") lodged a claim for a Disability Pension with the Department of Veterans' Affairs ("DVA") in respect of post traumatic stress disorder ("PTSD"), solar skin damage and tinea as war-caused disabilities (T4).
On 14 August 1999 a delegate for the Repatriation Commission ("the respondent") rejected the claim (T2).
On 9 September 1999 the applicant lodged an application for review with the Veterans' Review Board ("the VRB") (T7).
On 18 October 1999 a delegate for the respondent decided not to conduct a review of the application under s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T8).
On 2 December 1999 the VRB set aside the decision of 14 August 1999 and substituted its own decisions that the conditions were war-caused, that the applicant was eligible for payment from 15 February 1998 and that the matter should be remitted to the Repatriation Commission for assessment of the rate at which pension should be paid (T9).
On 11 December 1999 the respondent granted the applicant a Disability Pension at 60% of the general rate, effective from 15 February 1998 (T10).
reviewable decision
On 16 March 2000 the VRB handed down a decision (T12) in relation to the Repatriation Commission decision of 14 August 1999 (T2). The VRB amended the diagnosis of PTSD to "PTSD with generalised anxiety disorder", affirmed the decision in relation to PTSD with generalised anxiety disorder and solar skin damage; and set aside the decision in regard to tinea of the feet, finding that this condition was war caused. Disability Pension was assessed at 60% of the general rate. The VRB found in relation to generalised anxiety disorder that it was unable to determine that its onset had occurred during service, or within two years of Mr Bounds' operational service. The condition was diagnosed in 1999. There were no records of the applicant's visit to a psychiatrist in the 1960s and 1970s and therefore no evidence of what exactly was being treated or what was the cause of the condition. The VRB found that none of the minimum factors set out in the two relevant Statements of Principles ("SoPs") were satisfied in relation to generalised anxiety disorder.
The VRB also affirmed the decision in relation to chronic solar skin damage. The only factor of the SoP potentially relevant to the applicant was factor 1(b), "having a solar UV damage factor ratio of at least 1.1." It was found that, because the applicant served on operational service for only three weeks, it was highly unlikely that his skin condition could have occurred as a result of that short service.
Finally, in relation to the applicant's tinea, the VRB found that a reasonable hypothesis could be raised that the applicant had "a diminished capacity to maintain good skin hygiene before the clinical onset of tinea" as per factor 1(d) of the SoP. No facts could be found that would disprove the hypothesis and therefore tinea was accepted as a war-caused condition effective from 12 January 1999.
On 26 April 2000 the applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the tribunal") (T1).
RELEVANT LEGISLATION
The following provisions from the Veterans' Entitlements Act 1986 are relevant: ss 6D, 7(1)(a), 9(1)(a), (e)(ii), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(1), (3), (4), (5), (6), 120A(1), (3), 196B(1), (2), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service - other post World War 2 service
6D.(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a)       was assigned for service:
(i)        in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or
(ii)       in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or
(iii)      in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or
(b)       was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
(2)       A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full-time service as:
(a)       a member of the Defence force; or
(b)       a member of a unit of the Defence Force;
while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).
(3)       For the purposes of subsection (2), the operational service of a person to whom this section applies:
(a)       is taken to have started:
(i)        if the person was in Australia on the day (relevant day) from which his or her unit was assigned for service as described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be)—on the day on which the member left the last port of call in Australia for that service; or
(ii)       if the person was outside Australia on the relevant day—on that day; and
(b)       is taken to have ended:
(i)        if the member was assigned for service in another country or area outside Australia (not being an operational area)—the day from which the member was assigned to that other country or area, or the day on which the member arrived at that other area, whichever is the later; or
(ii)       in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
(a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
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War-caused injuries or diseases
9.(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;
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(e)       the injury suffered, or disease contracted, by the veteran:
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(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.
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Eligibility for pension
13.(1) Where:
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(b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
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(d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
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Claim for pension
14.(1)   Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
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(3)       A claim for a pension:
(a)       shall be in writing and in accordance with a form approved by the Commission;
(b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
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Date of operation of grant of claim for pension
20.(1)   Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
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Determination of degree of incapacity
21A.(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)       Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)       The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.
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Standard of proof
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.
Note: This subsection is affected by section 120A.
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(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.
(5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)       an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)       a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)       the death of a person is war-caused or defence-caused; or
(d)       a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)       a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
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Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(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;
(b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
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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 Statement of Principles determined under subsection 196B(2) or (11); or
a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
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Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2)       If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)       operational service rendered by veterans; or
(b)       peacekeeping service rendered by members of Peacekeeping Forces; or
(c)       hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)       the factors that must as a minimum exist; and
(e)       which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
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Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
The following SoP are also relevant:

SoP 3/99 as amended by 54/99 concerning PTSD.
SoP 1/2000 concerning anxiety disorder.
Instrument No 3 of 1999
Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.15 of 1994 and Instrument No.225 of 1995; and
(b) determines in their place the following Statement of Principles.
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 symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or 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.
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Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
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 or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
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Other definitions
8. For the purposes of this Statement of Principles:
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"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a severe stressor" means 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' Entitlement Act applies, events that qualify as 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;
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
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"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
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Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Fourteenth day of January 1999.
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Instrument No54 of 1999
Amendment of Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.3 of 1999, (Statement of Principles concerning post traumatic stress disorder), by:
A. deleting the definition of "experiencing a severe stressor" in clause 8 and inserting in its place the following definition of
"experiencing a severe stressor" in clause 8:
"'experiencing a severe stressor' means 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;".
2. The amendments made by this instrument apply to all matters to which
Instrument No.3 of 1999 and section 120A of the Act apply.
Dated this Twenty-Fourth day of June 1999
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Instrument No.1 of 2000
Statement of Principles concerning ANXIETY DISORDER
ICD-10-AM CODES: F06.4, F41.1, F41.8, F41.9
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.48 of 1994 and Instrument No.275 of 1995 concerning generalised anxiety disorder; and Instrument No.380 of 1995 concerning anxiety disorder due to a general medical condition; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, "anxiety disorder" is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessivecompulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
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Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
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(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
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Other definitions
8. For the purposes of this Statement of Principles:
…
"anxiety disorder not otherwise specified" means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
"clinically significant" means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
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"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"generalised anxiety disorder" means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
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"psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
"relevant service" means:
(a) operational service; or
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"severe psychosocial stressor" means 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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
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Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Twenty-eighth day of January 2000

BACKGROUND

The applicant was born in Melbourne on 13 April 1933. His father left home when he was seven years old, his mother then bringing up the family. The applicant left school at the age of 13 and worked as a farmer until the age of 17 (T5).
The applicant served in the Royal Australian Navy ("the navy") from 16 October 1950 to 12 April 1957. His eligible service, also being operational service, was from 21 September 1956 to 12 October 1956. The applicant also later served in the Active Reserve from 13 April 1957 to 12 April 1962 (T12).
The applicant served in the Fleet Air Arm and was Leading Aircraft Mechanic (T5). When he left the navy he worked for Qantas for 33 years, retiring in 1990. He has been married for 30 years and he and his wife have three children.
The applicant's war-caused disabilities at the outset of this matter were bilateral sensori-neural hearing loss with tinnitus, ischaemic heart disease and tinea of the feet. Rejected had been the disabilities of PTSD with generalised anxiety disorder, chronic solar skin damage and "no malignancy" (ex TD1/1).
HEARING, APPEARANCES AND EVIDENCE
The tribunal convened a hearing in this matter in Sydney on 31 May 2001. Mr B Winship from Rockliffs Solicitors & Attorneys represented Mr Bounds. Ms G Pacey from the DVA Advocacy Service represented the respondent. Mr Bounds and Dr Hordern, a psychiatrist, gave evidence at the hearing.
The tribunal had access to the following documentary material which was taken into evidence with the nominated exhibit numbers:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T17) provided by the respondent, 20 May 2000.
Exhibit TD2 – Applicant's Centrelink records.
Exhibit A1 – Report by Dr A Hordern, psychiatrist, 21 November 2000.
Exhibit A2 – Photograph of refuelling of HMAS Melbourne.
Exhibit A3 – Photograph of HMAS Hobart refuelling at sea.
Exhibit A4 – Applicant's statement of facts and contentions, 24 May 2001.
Exhibit R1 – Report by Dr J W Shand, psychiatrist, 11 December 2000.
Exhibit R2 – Report by Dr Shand, 13 December 2000.
Exhibit R3 – Report by Captain H Stevenson, 8 November 2000.
Exhibit R4 – Report by Captain Stevenson, 11 December 2000.
Exhibit R5 – Record of Proceedings, HMAS Melbourne, 1 to 17 October 1956.
Exhibit R6 – Respondent's statement of facts and contentions, 14 February 2001.

Marked for identification was a photograph of the HMAS Melbourne (MFI1).
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal finds that the applicant made a valid claim for a Disability Pension in respect of PTSD on 21 April 1999 (T4, s 14(3) of the Act).
The tribunal finds that the applicant was engaged in operational service from 21 September 1956 to 12 October 1956 (T3).
the issues
The applicant proceeded to the tribunal arguing only for the recognition of PTSD and generalised anxiety disorder as war-caused diseases. The VRB had already changed the primary decision and recognised tinea as war-caused. The applicant had abandoned the claim for chronic solar skin damage.
In relation to the psychiatric conditions, the respondent was prepared to concede that Mr Bounds suffers from PTSD and generalised anxiety disorder on the basis of Dr Shand's report (ex R1) (ex R6). This was a proper concession in the opinion of the tribunal. The respondent argued, however, that:
"Notwithstanding the above, the Respondent contends that the only incident that had given rise to the above-mentioned conditions, was an incident involving a crash of a 'Sea Venom' jet on 9 August 1956, prior to the commencement of the Applicant's operational service, and as such, the claimed condition could not be war caused, or in fact aggravated by subsequent eligible service.
"The Respondent notes the historical information which defines with precision, the date of the 'Sea Venom' crash, and in that regard, relies on the historical report of Captain Hugh Stevenson, (retired), dated 14 December 2000.
"... the Respondent notes the claimed incidents have occurred whilst the Applicant served in HMAS Melbourne during his period of operational service.
"The Respondent nevertheless contends that the Applicant's history as given to the Veterans' Review Board on 16 March 2000, and to Dr Koller (T documents, folio 24), changed such that additional stressors were given to Dr Hordern (report 21/11/2000, pages 8/9), and more so to Dr Shand (report 11 December 2000, page 2).
"The Respondent contends in respect of the preceding paragraph that the Applicant has been contrived in repeating his history of stressful incidents, (some of which are verifiable on the facts), and that his credit is accordingly in issue.
"Further, the Respondent also contends that none of the contended aggravating stressors (whether original or additional) represented an aggravating stressful incident, or occurrence, for the purposes of the diagnoses at hand.
"In that regard, the Respondent relies on report of Dr Shand dated 13 December 2000, at page 3 therein, and relies on the decision of The Repatriation Commission v Darryn Paul Yates (1995) 38 ALD 80." (Ex R6, paragraphs 2-8)
Mr Winship summarised Mr Bounds' case as being that he developed PTSD during navy service. His ongoing life stresses have produced a generalised anxiety disorder accompanying the PTSD. The stressor before operational service was the Sea Venom air crash on 9 August 1956 but he experienced later stressors during operational service.
Ms Pacey said that the respondent's case was that the Sea Venom incident occurred outside operational service and there was no severe stressor subsequent to that original incident. In relation to generalised anxiety disorder, it had not had its onset within two tears of any of the incidents relied on by the applicant.
medical evidence
Attached to the formal claim form lodged with the DVA on 21 April 1999 was a "statement of support" by Mr Kenneth Greenaway (undated) (T4/20). Mr Greenaway served on HMAS Sydney, HMAS Vengeance and HMAS Melbourne, first meeting the applicant in 1954. He stated that he was "a creditable witness to the intolerable living conditions and the stressful environment brought about by the heavy workload generated by operational requirements prevailing prior to, during and after the Malaysian emergency." Mr Greenaway further described the five-month royal tour cruise, where inexperienced pilots made major repairs necessary under great duress.
On 9 August 1956 a Sea Venom aircraft crashed into the sea shortly after take-off, killing both pilots. He noticed at the time that the applicant was so shocked that he could not talk. The applicant was taken below and "never seemed the same" after this particular incident. Mr Greenaway further described the cramped and hot conditions on the Melbourne. The internal temperature of the ship increased to 104 degrees whilst in Darwin in September 1956, with the applicant working 16-18 hours per day:
"The smell of the ship became unbearable and the cigarette smoke haze could be cut with a knife…For a modern Naval Aircraft Carrier it was a disgrace…"

Mr Greenaway also noticed the first time that he saw the applicant smoking. He had been persuaded to take up smoking by the Petty Officer, who thought that it might calm the applicant's nerves. The applicant had become "very aggressive and unhappy with the Navy."
On 5 July 1999 Dr K Koller, a psychiatrist, provided a report on the applicant (T5). He noted that the applicant slept poorly, waking up with anxiety and in a sweat, and that he had nightmares about being on the flight deck of the Melbourne. Dr Koller also took a history of the applicant's service, including the Sea Venom accident and the long hours of work, particularly in Malayan waters. The applicant often worked in the dark in oppressive temperatures. Dr Koller diagnosed chronic PTSD deriving from navy service in 1950-1957. Dr Koller stated that there is a generalised anxiety disorder accompanying the PTSD. He noted that the applicant worries excessively and that he feels tense and irritable. The applicant gets so anxious that he dry retches. Attached to the report was a GARP (Guide to the Assessment of Rates of Veterans' Pensions (5th ed), ( worksheet which resulted in the applicant having an assessment rating of 39 points.
On 8 November 2000 Captain Hugh Stevenson, a researcher, provided an historical report on the Melbourne during the relevant period (ex R3). This report took the form of a brief letter with records of the ship's proceedings attached. The records confirmed the refuelling incident discussed below in paragraphs 47 and 48 but contained no further information. The fatal Sea Venom accident was also confirmed. In general the applicant's evidence as to his service and the conditions he endured were corroborated by Captain Stevenson.
On 11 December 2000 Captain Stevenson provided further historical reports on the Melbourne (ex R4). This exhibit contained a copy of the report of proceedings of the Melbourne for the month of October 1956. The Melbourne was involved in night and day naval exercises with American ships during this period and visited Singapore, Malaysia, Thailand and Hong Kong. There was also material on the danger potentially involved in the refuelling incident.
On 21 November 2000 Dr Hordern, a psychiatrist, provided a report on the applicant (ex A1). Dr Hordern took a detailed medical, service and employment history. He noted that the applicant suffered from recurring dreams about his navy service, particularly the Sea Venom crash of 9 August 1956, and that the conditions aboard the Melbourne, particularly in Darwin, were overcrowded, hot and oppressive. He was working extremely long hours in temperatures of up to 105 degrees. The applicant started smoking three or four days after the Sea Venom crash.
The applicant also told Dr Hordern that when he was not involved in flying operations, his action station was with the fire fighting party. On one occasion soon after leaving Darwin, action stations were called due to rumours of an enemy submarine presence in the area. He and his colleagues were confined in the hangar, wearing heavy fire-fighting clothing for two or three hours. The applicant stated that he would have dealt with such stresses more easily if it had not been for the Sea Venom crash.
The applicant further described to Dr Hordern an incident which occurred when the Melbourne was being refuelled at sea. Wire cables supporting the refuelling hoses broke when the ships took different courses and lashed back across the deck. The applicant and several other sailors were forced to dive into a sponson to escape the danger. This incident had terrified the applicant.
After his service the applicant was involved in two incidents relating to his employment with Qantas. The first involved a fight with another employee who had made a derogatory remark about him, the second was another fight which occurred during a Qantas training session in Bathurst. It ended with the applicant attempting to fight two or three colleagues and then suffering a panic attack. The applicant at the time of this incident had been feeling "closed in" and "rejected."
Dr Hordern concluded that the applicant had suffered from moderately severe PTSD since August 1956, the primary stressor being the Sea Venom incident. His PTSD was clinically worsened by working in a high pressure environment for long hours and in arduous conditions; by being confined in a hangar whilst expecting the danger of a submarine attack; and by the threat to his life on 28 September 1956 when the wire cables snapped during the refuelling of the Melbourne. Dr Hordern assessed the Applicant's GARP rating as being 27 points and considered it unlikely that his PTSD symptoms would improve significantly.
On 11 December 2000 Dr Shand, another psychiatrist, reported on the applicant (ex R1). He also took a detailed history of the applicant's medical, service and employment experiences, similar to that of Dr Hordern. He also reported on several incidents that presumably had not been mentioned to Dr Hordern. While sailing in the Arabian Sea the applicant was sleeping in a liftwell with 30 other men when a "freak wave" broke over the flight deck. The men woke up in three feet of water.
There was another incident on the Melbourne when the applicant was in the cockpit of a Gannet during bad weather. The ship was rolling and the brakes of the plane failed. The Gannet was only prevented from rolling over the side by the placement of chocks under the wheels. Two days after this incident the nose wheel of a Gannet collapsed and a propeller blade disintegrated on the steel flight deck. A piece of propeller blade went between Mr Bounds and another man, missing them by only 12 inches. Others on board were wounded by shrapnel. Dr Shand diagnosed PTSD, the main stressor being the deaths of the two pilots in 1956 and contributed to by his responsibility for maintenance of the aircraft. He further stated that the applicant's reaction to conditions on board the Melbourne was due to pre-existing personality traits. Dr Shand calculated a GARP assessment of 41 points.
Dr Shand provided a supplementary report on the applicant on 13 December 2000 (ex R2). This report was requested to ascertain whether there were any relevant stressors that had occurred during the applicant's operational service, from 21 September 1956 to 12 October 1956. Dr Shand wrote:
"The two incidents mentioned in the historical report of Captain Hugh Stevenson under Report of Proceedings in the months of August and September 1956 would have been expected to provoke temporarily raised anxiety and awareness of risk of injury and perhaps death. These, in a vulnerable individual could have aggravated the Applicant's PTSD, if it had commenced due to the previous incident on 9 August 1956, of which there is no documented evidence…"

Dr Shand stated that it was crucial to ascertain whether the applicant did in fact suffer an acute stress disorder as a result of the Sea Venom accident and whether this continued or was aggravated by subsequent stressors. Because of the lack of information available Dr Shand stated that he had no way of knowing whether "so-called aggravating stressors rendered the disorder of PTSD permanently worse or whether it was the natural progress of the disorder that may have been responsible." In regard to the subsequent refuelling and aircraft propeller incidents, he stated that, on an objective basis, they were more likely to have been "temporarily frightening" rather than severe stressors.
the hypothesis
The hypothesis advanced for the applicant consisted of the following elements:

Mr Bounds was a vulnerable person with pre-existing personality traits when he commenced operational service.
On 9 August 1956, 42 days prior to operational service Mr Bounds witnessed a Sea Venom aircraft that took off from the HMAS Melbourne nose dive into the sea and explode on impact, killing the pilot and navigator who were both known to Mr Bounds.
This led to a moderately severe PTSD which was worsened by ongoing stresses during operational service.
The stresses in operational service led also to the development of generalised anxiety disorder (ex A4).

This is probably less a hypothesis than a series of linked propositions. The hypothesis is more probably:
The applicant was exposed to stressors during operational service that exacerbated a pre-existing PTSD and contributed to an anxiety disorder.
The relevant SoPs have already been identified as 3/99 ( as affected by 54/99 ( (PTSD) and 01/2000 ( (generalised anxiety disorder).
ptsd
In accordance with the principles settled by the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 it is necessary to ascertain whether the hypothesis as raised conforms to the requirements of the SoPs on PTSD. If it does, and if, on the material before the tribunal, it is not otherwise fanciful, impossible, incredible, too remote or too tenuous then the hypothesis is reasonable. The applicant will then fail only if the respondent can show beyond reasonable doubt that the PTSD was not war-caused.
The tribunal accepts on the basis of the medical evidence that the SoPs on PTSD are validly applicable, ie that the correct diagnosis of Mr Bounds' condition is PTSD.
The factor in clause 5 relied on by the applicant in his hypothesis is factor 5(b), "experiencing a severe stressor prior to the clinical worsening of PTSD". Clause 4 requires that such a severe stressor must be related to operational service. The severe stressor must therefore have occurred between 21 September 1956 and 12 October 1956. What stressors were suggested by the applicant within this period as relevant to his hypothesis?
In the applicant's statement of facts and contentions (ex A4) he identified one incident.
"On Thursday, 27 September 1956, HMAS Melbourne made a rendezvous with R.F.A. Wave Chief to replenish with fuel furnace oil and Avcat. While attempting to alter course forty degrees in small steps R.F.A. Wave Chief altered course to starboard instead of to port and the hoses were parted: see paragraph 28 of the Report of Proceedings for the month of September 1956".
The Report of Proceedings (ex R4) provides no further details. In his oral evidence the applicant explained that the fuel hoses stretched as the ships separated. An attempt to disconnect the hoses failed and the hoses broke. The wires supporting the hoses snapped. There was an emergency order to clear the deck on the Melbourne. Mr Bounds heard the wires snap. One end of the wires lashed back into the applicant's vicinity on the Melbourne. He described it as "a close shave". He said that he would have been "cut in half" if struck by the wire.
The applicant made something in the tribunal hearing of the conditions on the HMAS Melbourne. The ship was crowded. There was little space in which to sleep. The men were crammed in like sardines. When heading for the operational zone conditions became intolerable. There were high temperatures, poor ventilation, broken sleeping patterns and they had to mount defence stations in a darkened ship. They were "on a war footing". This was stressful. There was around the clock flying. This all took a toll on Mr Bounds' "nerves".
Mr K Greenaway, another former navy serviceman provided evidence in support (see paragraphs 26-28 above) addressing life on the MHAS Melbourne and the Sea Venom aircraft crash. Dr Koller (see paragraph 29 above) also recorded material on living conditions on the Melbourne. Dr Hordern (see paragraphs 32-34 above) recorded material on the oppressive conditions on the Melbourne and on an action stations call when there were rumours of enemy submarine action in the area. He told Dr Shand (see paragraphs 37-38 above) of an incident when he awoke in three feet of water in a lift shaft after a freak wave in 1955. He told Dr Shand also of an incident where a propeller blade disintegrated, but that occurred pre-operational service (on 11 August 1956 - ex R3).
Captain Stevenson's reports (ex R3, R4) provide support for certain of these alleged stressors. The tribunal passes over the material on conditions aboard the Melbourne. It is difficult to see how these could satisfy the SoP requirements for "experiencing a severe stressor" (SoP 54/99, clause 1A). There must be the suggestion of an event or events that involved actual or threat of death or serious injury or a threat to Mr Bounds' or another person's physical integrity. The tribunal also passes over the incident of the disintegrating propeller, the incident of the freak wave and the rumour of the enemy submarine as these, on the available material, appear not to have occurred between 21 September and 12 October 1956.

The cogent severe stressor, the refuelling incident, is endorsed by Captain Stevenson as having occurred. Further, Captain Stevenson provided evidence regarding the seriousness of the incident. In ex R4 he wrote:
"Yes there was significant risk to life and limb as a result of the parting of the fuel lines. The author was the Engineer Officer in charge of the stowage of the fuel and the connection of the fuel hoses aboard the HMAS MELBOURNE, at the time of the incident he was below decks at the fuelling control station. The six-inch diameter hoses were supported by steel wire rope of about one inch in diameter. The pressure inside the hose was in excess of 100 pounds per square inch. The ships veered apart and the wires and hoses were placed under sufficient tension to cause them to break. There was a very real danger that the sudden release of tension would cause the hoses and wires to whip back and cause injury and damage to anything in their way."
Such independent assessment suggests that the requirements for a severe stressor were satisfied by this incident which is relied on by the applicant. The applicant has asserted that he felt intense fear as a result. The tribunal has already noted that Dr Shand thought this would have been only temporarily frightening and not a severe stressor (see paragraph 40 above). The tribunal prefers in the "reasonable hypothesis" context to accept the opinion of one with experience of such events, the sort of opinion unearthed by Captain Stevenson.
Clause 4 of the SoP is satisfied by the hypothesis as this incident was intrinsically involved as a part of Mr Bounds' operational service.
The tribunal therefore finds as reasonable the hypothesis that the Sea Venom incident was the initial trigger for Mr Bounds' PTSD (Dr Shand supports this – ex R1) and that the refuelling incident aggravated the condition.
In considering whether it can be satisfied beyond a reasonable doubt that Mr Bounds' PTSD was not war-caused, the tribunal considered the respondent's submissions. These included the lack of reference to a nervous condition in Mr Bounds' discharge medical report and variations in the incidents reported by Mr Bounds to different doctors as having been stressful. It was suggested that incidents Mr Bounds alleges he found frightening were not objectively threatening.
The tribunal has concluded that these arguments are insufficient to prove beyond a reasonable doubt that the aggravation was not war-caused.

Mr Bounds explained that he did not declare his nervous condition in his discharge medical because he understood that he should concentrate on physical problems. This is a reasonable explanation.
The tribunal can understand a veteran progressively raising additional incidents that may possibly qualify as severe stressors as they grow to understand the issues better, or as they are questioned further by different experts and the VRB with slightly different perspectives.
The evidence from Captain Stevenson, referred to above, suggests that there was a genuine level of danger to the applicant in the refuelling incident.

The tribunal therefore finds that Mr Bounds' PTSD is a war-caused disease.
generalised anxiety disorder
Dr Koller saw a generalised anxiety disorder as accompanying the PTSD (T5), He noted that Mr Bounds worries excessively and feels tense and irritable. He becomes so anxious that he dry retches. Dr Shand also diagnosed a generalised anxiety disorder as present (ex R1). There has been no suggestion that Mr Bounds does not suffer from an anxiety disorder as defined in clause 2 of the SoP on anxiety disorder (SoP 1/2000).
The hypothesis appears to be that the anxiety disorder is a sequela of the war-caused PTSD (ex R4).
The two factors in clause 5 of SoP 1/2000 that might be applicable are:

Factor 5(a)(ii): experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.
Factor 5(a)(iii): having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder.

The date of clinical onset of anxiety disorder is uncertain. Dr Koller agreed that the condition was present. Dr Shand (ex R1) noted that Mr Bounds first saw Dr Kumar for anxiety and depression in 1974. Dr Shand seemed to see the generalised anxiety disorder as a result of predisposition in earlier life and would seem to see it as having its onset at the same time as the PTSD. The applicant is asserting that the PTSD was the first condition. However, in a sense this difference does not matter. The refuelling incident would seem to satisfy the requirements in clause 8 of the SoP for a "severe psychosocial stressor". That definition requires, relevantly, an identifiable occurrence that evokes feelings of substantial distress in an individual, for example being shot at. The naval experts seem to the tribunal to have regarded the refuelling incident as posing a threat somewhat similar to being shot at.
Thus, on the basis of factor 5(a)(v), the tribunal finds that the hypothesis fits one of the factors in the SoP. Further, the fact that the alleged refuelling incident occurred as a service-related incident during operational service is sufficient for the tribunal to accept that the hypothesis agrees with clause 4 of the SoP.
The hypothesis is not fanciful, impossible, incredible, too remote or too tenuous when considered in the light of the material before the tribunal. The tribunal therefore finds that there is a reasonable hypothesis linking the applicant's operational service with his anxiety disorder.
The tribunal, for reasons given in relation to PTSD (see paragraph 57 above), is not satisfied beyond a reasonable doubt that Mr Bounds' anxiety disorder was not war-caused.
CONCLUSION
The tribunal has found that Mr Bounds' two psychiatric conditions, PTSD and anxiety disorder, were war-caused diseases. This is with effect from 12 January 1999.
DECISION
The tribunal varies the decision under review so as to:
(a)Set aside the decision that the applicant's post-traumatic stress disorder and generalised anxiety disorder were not war-caused diseases.
(b)Decide that the applicant's post-traumatic stress disorder and anxiety disorder are war-caused diseases, with effect from 12 January 1999.
(c)Affirm the decision that chronic solar skin damage is not a war-caused disease.
(d)Remit the matter to the respondent for assessment of the appropriate rate of Disability Pension with effect from 12 January 1999.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, and Dr M E C Thorpe, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  31 May 2001
Date of Decision  13 June 2002
Counsel for the Applicant        Mr B Winship, solicitor
Solicitor for the Applicant         Rockliffs Solicitors & Attorneys
Counsel for the Respondent    Ms G Pacey, DVA Advocacy Service
Solicitor for the Respondent    Mr J Marsh, DVA