Brown and Repatriation Commission - [2001] AATA 1032

DECISION AND REASONS FOR DECISION [2001] AATA 1032

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/140

VETERANS' APPEALS DIVISION       )
           Re      Murray Reginald Brown
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date20 December 2001
PlaceSydney

Decision The decision under review is varied by amending the diagnosis "personality disorder and post-traumatic stress disorder" to the diagnosis "personality disorder", but it is otherwise affirmed.
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CATCHWORDS
VETERANS' AFFAIRS – claim for Disability Pension – only one day of operational service – claim for Post-Traumatic Stress Disorder – some alleged stressors did not arise during operational service – inability to obtain appropriate clinical management – no event involving actual or threat of death or serious injury to veteran or third party – post-traumatic stress disorder not war-caused - Personality Disorder – veteran suffers from personality disorder – alleged inability to obtain appropriate clinical management – disability not war-caused – Alcohol Dependence and Substance Abuse – condition no longer present – Bipolar Disorder – no hypothesis raised.
Repatriation Commission v Smith (1987) 74 ALR 537, 547
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Williams [2001] FCA 1195
Veterans' Entitlements Act – ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 19(3), (4), (5), (6), (9) "application day", "assessment period", 20(1), 21A, 23(1), (2), (3), 24(1), (2), 24A, 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D
Statements of Principles - 3/99, 54/99, 15/94 and 225/95 concerning PTSD; 143/95 and 13/97 concerning personality disorder; 5/94 concerning psychoactive substance abuse and dependence; 76/98 concerning alcohol dependence or alcohol abuse; 128/96 concerning bipolar disorder

REASONS FOR DECISION

20 December 2001 M J Sassella, Senior Member

This is an application to the Tribunal made by Murray Reginald Brown ("the applicant") to review a decision of the Veterans' Review Board ("the VRB") (T38) made on 8 December 1999 refusing to allow the claims that his psychiatric illnesses were war-caused.

History of the application

On 6 August 1986 the applicant lodged a claim for Disability Pension with the Department of Veterans' Affairs ("the DVA") on the basis of his severe nervous disability and pancreatitis (T4).
On 19 November 1986 the Repatriation Commission ("the respondent") decided that the applicant's personality disorder was not accepted as war-caused under s 9 of the Veterans' Entitlements Act 1986 ("the Act") and was disallowed (T6). The claim for pancreatitis was not accepted under s 13 of the Act as there was no disability found.
On 28 November 1986 the applicant lodged with the VRB an application for review of the respondent's decision (T7). On 7 December 1987 the VRB affirmed the decision under review (T7).
The VRB considered that the applicant rendered operational service from 5 April 1968 until 17 April 1968 when the ship he was serving on, the HMAS Parramatta escorted the HMAS Sydney into Vietnamese waters. For the remainder of the time spent in the navy he is not eligible for consideration as rendering operational service, whether or not any disease is related to his naval service. The VRB noted the applicant's previous medical history and the medical opinions by the DVA's medical officer and Dr Mulheran. These reports stated there was nothing available to establish a diagnosis of pancreatitis, and that any such condition was related to alcohol abuse. There was a previous diagnosis of gastric ulcer but this ulcer had healed and other gastro-intestinal complaints were probably related to excessive alcohol intake. There was evidence of such consumption prior to 1970. The alcohol problems would be related to the applicant's personality disorder and an early attack of hepatitis may have caused sensitivity to alcohol later. The medical officer stated that psychiatric opinion in 1970 indicated that the applicant had a hypochondriacal tendency and neuroses concerning past diagnosis of a gastric ulcer in December 1968. He stated that personality develops early in life and is the basis of the nature of the individual. It provides a person with the ability to respond to his or her surroundings in later life. The medical officer stated there was nothing in the conditions of service of the applicant to have affected him detrimentally. The applicant's reaction to emotional strain arose from an underlying personality trait.
The VRB said it was necessary to establish a connection between the operational service of the applicant and his personality disorder. The applicant's claim suggested that twelve days of eligible service on board the HMAS Parramatta in Vietnam had some particular influence on the disease. The applicant did not refer to any particular incident or circumstances which occurred that might have so influenced his illness. The applicant's personality disorder was the result of a long process, commencing in childhood and extending to his present age. It was not possible to identify a particular time in his life when there were factors of an overwhelming nature influencing the applicant's personality, and it could not be found in a period of twelve days in 1968. There was no foundation or evidence of events or conditions during the applicant's eligible service upon which to base an inference that his current condition could be related to his service. The VRB could not identify a reasonable hypothesis connecting the applicant's disease of personality disorder and his operational service. The VRB also found that the applicant was not suffering from pancreatitis and there could not be any reasonable connection between a disease from which he does not suffer and operational service. The VRB concluded that there were no sufficient grounds for determining that the applicant's personality disorder was war-caused, or that he was suffering from pancreatitis.
On 21 August 1987, the applicant lodged another claim with the DVA, for a new condition, gastric ulcer (T8).
On 13 April 1988, the claim for gastric ulcer was refused as not war-caused and the claim for pension was refused (T11).
On 24 June 1996 the applicant lodged a claim for Disability Pension (T19). The disabilities claimed were pancreatitis, irritable bowel, manic depression and post-traumatic stress disorder ("PTSD").
On 20 August 1996 DVA wrote to the applicant informing him of the respondent's decision to refuse his claims for bipolar affective disorder, chronic pancreatitis with diarrhoea and PTSD. (T23).
On 2 September 1996 the applicant lodged with the VRB an application for review of the delegate's decision of 20 August 1996 (T25).
On 26 March 1997 the DVA wrote to the applicant informing him that it would not be reviewing the decision under s 31 of the Act (T26).
On 15 August 1997 the VRB wrote to the applicant accepting his withdrawal of his application for review (T28, f.172).
On 1 September 1997, the applicant lodged with the DVA another claim for Disability Pension based on his PTSD which was due to service in Vietnam (T29).
On 24 September 1997 the DVA wrote to the applicant informing him that his claim for PTSD (T29) was taken to be a claim for bipolar affective disorder, personality disorder and PTSD and that it had been refused. (T30).
On 3 February 1998 the applicant lodged with the VRB an application for review of the delegate's decision of 24 September 1997 (T31).
This matter was heard by the VRB on 3 March 1999 and it was adjourned pending further psychiatric investigation (T34).

Decision under Review

On 8 December 1999 the VRB decided to vary the Repatriation Commission decision dated 24 September 1997 by amending the diagnosis bipolar affective disorder, personality disorder and PTSD to personality disorder and PTSD, and affirming the decision under review as varied (T38).
Ms Blacklock, the applicant's advocate, stated that an incident involving missing divers at Jervis Bay was a circumstance of service which was a stressor. The VRB noted that this incident pre-dated operational service of the applicant so a connection between the PTSD and the circumstances of operational service could not be found. Ms Blacklock described another stressor as being a time when the applicant was in Vietnam, sleeping below deck on his ship, and scare charges were dropped over the side of the ship causing him to think he would end up like the divers. Another incident was where the applicant initially stated that his ship was strafed by an unidentified aeroplane, but he later said the ship was not fired upon, the aeroplane being identified as a US aeroplane. Action stations had been called for about 30 minutes. He agreed no weapon or gun had been fired. He said it caused him anxiety because his father was being bombed on Vung Tau beach. He did not know what would happen and he was frightened of ending up like the divers, being eaten by sea lice. During action stations, the applicant felt vulnerable on the open deck with no cover. He said it was similar to the experience of the scare charge incident and he felt uneasy all the time. The applicant stated that he had recurrences of the action station incident. He tried to block out the incident of the divers. Ms Blacklock stated that the applicant's case was supported by the opinion of Dr Reinhardt and the SoP concerning personality disorder had not been looked at.
Dr Reinhardt had completed a medical diagnosis and stated that PTSD was caused by events while the applicant was in the navy (T37/210). She stated that after the incidents of the divers and the experience in Vietnam the applicant was anxious and irritable and had gone absent without leave. He was punished by being handcuffed to his bed, exacerbating his distress. She considered he satisfied the criteria for PTSD and major depression. The VRB took into account Dr Reinhardt's reports of 5 May 1998 and 22 November 1999 (T38/234). The report of Dr Dinnen dated 26 July 1999 (T37/213) was also considered.
The VRB had previously noted that medical treatment received by the applicant during navy service was a consequence of his domestic problems and of stress not related to service. The applicant had informed Dr Dinnen that he did not know what PTSD was. Dr Reinhardt's report of 22 November 1999 (T38/234) stating that there was a significant overlap of borderline personality disorder and chronic PTSD was in contrast to her earlier reports on PTSD. Dr Dinnen (T37/213) considered that the correct diagnosis was borderline personality disorder. It was following these reports that the VRB varied the diagnosis from bipolar affective disorder, personality disorder and PTSD to personality disorder and PTSD.
The incident concerning the divers was outside the applicant's operational service and not relevant to the claim and the Board concluded that the applicant did not see the bodies of the divers at Jervis Bay. The use of the scare charges was part of safety procedures and there was no evidence of any sense of threat this procedure may have caused the applicant and his own evidence did not demonstrate anything which could be considered as shock, helplessness or horror. The VRB found the hypothesis was not reasonable.
In the incident concerning the unidentified aeroplane and the call to action stations, the applicant was concerned about his father being bombed on the beach, he did not know what would happen and he was scared of ending up like the divers. The VRB found this to be confusion rather than a threatening incident with shock, helplessness or horror. The VRB concluded that the applicant did not suffer a stressor during his eligible operational service and the suffering of a catastrophic experience was not raised in any material.
As for not obtaining appropriate clinical management for his disorder, the VRB did find in the material that the applicant had been referred for depression and there were notes of Dr Reynolds dated 16 January 1970 that the applicant had been given some treatment. There was no evidence as to whether the condition was treated with expertise expected at that time.
On 8 December 1999 the VRB found none of the minimum factors in the SoP were raised and the material did not raise sufficient grounds for determining that the applicant's PTSD and personality disorder were war-caused and the earlier decision was affirmed (T38). A letter of notification was sent to the applicant by the VRB on 11 January 2000 (T39).
On 27 January 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB's decision (T1).

Background of Applicant

This is based largely on Dr Lewin's report (Ex R3). The applicant was born on 12 November 1947. He was the eldest of five children, and an only child until seven years. His father was in the regular Army until he retired some years ago, when he was in his fifties. The applicant described his father as "a bit detached", that is "emotionally unavailable". His father was often away on postings with the Army. He was a prisoner of war in Changi and served on the Burma Railway. The family moved a few times because of his father's army service.
While his father was away the applicant was his "mother's helper" and was given many chores and added responsibilities as the eldest child. He was raised mostly by his mother who had health problems and was often absent in hospital. He had a close and affectionate relationship with his maternal grandmother who looked after the family while his mother was in hospital. His mother was a "fussy woman" and not affectionate. The applicant feels he was always treated as the "black sheep" of the family, but did not feel that way as a teenager. He was not excessively punished by his parents and never punished for his drunkenness. As a teenager he spent prolonged periods of time not speaking with his parents. When he was in his mid-teens he got into trouble for being drunk when he stayed with his grandmother.
The applicant was not particularly interested in school and frequently stayed away, missing classes which did not interest him or which bored him. He said he was "cheeky" and was often in trouble but there was nothing serious.
The applicant was previously married but that marriage terminated in March 1978 and the applicant married his current wife. They live with his wife's sons on a farm owned by his wife. When his wife's sons fight, the applicant becomes distressed and over-reacts and then becomes violent. The child welfare authorities have been previously involved.
The applicant joined the Navy when he was 18 and was discharged five years later because he was below naval physical standard.
He has been in various types of employment since leaving the Navy, but has been unable to maintain those jobs for any period of time allegedly due to his inability to cope and because of his medical conditions and psychiatric history (Exhibit A3/5-6, 13-15).

Relevant legislation

The relevant statutory provisions are found in the Veterans' Entitlements Act 1986 ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 19(3), (4), (5), (6), (9) "application day", "assessment period", 20(1), 21A, 23(1), (2), (3), 24(1), (2), 24A, 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D.
The following Statements of Principles ("SoPs") are also relevant:

SoPs 3/99, 54/99, 15/94 and 225/95 concerning PTSD.
SoPs 143/95 and 13/97 concerning personality disorder.
SoP 5/94 concerning psychoactive substance abuse and dependence.
SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 128/96 concerning bipolar disorder.

Veterans' Entitlement Act 1986

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6C Operational service - post World War 2 service in operational areas
(1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b)a member of a unit of the Defence Force that was allotted for duty in that area;

is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.

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7 Eligible war service
(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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9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

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(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.
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Part II - Pensions, Other than Service Pensions, for Veterans and their Dependants
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Division 2 - Eligibility for pension
13 Eligibility for pension
(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.

14 Claim for pension
(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).

Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (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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19 Determination of claims and applications
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(3) The Commission shall determine a claim for a pension as follows:
(a)first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i)the incapacity of a veteran from war-caused injury or war-caused disease, or both; or

(ii) the death of a veteran that was war-caused;

(b)then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).

(4)The Commission must determine an application under subsection 15(2) as provided by subsection (5).
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(5)The Commission must determine an application under subsection 15(2) as follows:
(a)first, the Commission must determine whether the claimant is entitled to be granted a pension in respect of the incapacity of the veteran;
(b)then, if the Commission determines that the applicant is so entitled, the Commission must proceed as set out in subsections (5A), (5B), (5C) and (5D).

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(6)Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

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(9) In this section:
application means an application made in accordance with section 15;
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a)the day on which the claim or application was received at an office of the Department in Australia; or
(b)if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;

assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined

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20 Dates of effect that may be specified in respect of grant of claim for pension
(1)Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, 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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Division 4 - Rates of pensions payable to veterans
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21A Determination of degree of incapacity
(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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23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.
(2)Paragraph (1) (b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3) For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1) (b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

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24A Continuation of rates of certain pensions
(1)Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a)the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

(b) in the case of a veteran to whom section 23 applies:
(i)the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii)in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

(c)in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

(2)Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.

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28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

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120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note:   This subsection is affected by section 120A.
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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.

Note: This subsection is affected by section 120B.
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(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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120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;

(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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(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or

(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.
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157 Dates that may be specified
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(2)Where the Board, upon its review of a decision of the Commission, sets aside that decision and substitutes another decision for it, or varies that decision:
(a)if the effect of the substituted decision, or the varied decision, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the date from which the Board's decision is to operate:
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(ii)in any other case—a date not more than 6 months before the date on which the person's application for review of the Commission's decision was received at an office of the Department in Australia

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Part XIA - the repatriation medical authority
Division 1 - Establishment, functions and powers
196A Establishment of Authority
(1)       A Repatriation Medical Authority is established.
(2)       The Repatriation Medical Authority:
          (a)       is a body corporate with perpetual succession; and
          (b)       has a common seal; and
          (c)       may sue and be sued.
(3)       All courts, judges and persons acting judicially must:
(a)take judicial notice of the imprint of the seal of the Authority appearing on a document; and

(b) presume that the document was duly sealed.
(4)Debts incurred by the Authority in the performance of its functions are, for all purposes, taken to be debts incurred by the Commonwealth.

196B Functions of Authority
(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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196D Disallowable instrument
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.
Statement of Principles (No. 3/1999)
Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
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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.
…
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

…
Other definitions
8. For the purposes of this Statement of Principles:
"death from post traumatic stress disorder" in relation to a person
includes death from a terminal event or condition that was contributed to
by the person's post traumatic stress disorder;
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
…
"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;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Fourteenth day of January 1999
Statement of Principles (No 54/1999)
Amendment of Statement of Principles concerning POST TRAUMATIC STRESS DISORDER

ICD-9-CM CODE: 309.81
…
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
Statement of Principles (No 15/1994)
Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD CODE: 309.81
1. Being of the view that there is sound medical-scientific evidence that
indicates that post traumatic stress disorder and death from post
traumatic stress disorder can be related to operational service rendered
by veterans, peacekeeping service rendered by members of Peacekeeping
forces and hazardous service rendered by members of the Forces, the
Repatriation Medical Authority hereby determines, under subsection
196B(2) of the Veterans' Entitlements Act 1986, that 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 that
service, are:
(a) experiencing a stressor prior to the clinical onset of post traumatic
stress disorder;

…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs
1(a) to 1(c) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
"'ICD code' means a number assigned to a particular kind of injury or
disease in the tenth edition of the International Classification of
Diseases 9th Revision, effective date of 1 October 1993, copyrighted by
the US Commission on Professional and Hospital Activities, and having
the Library of Congress number 77-94472;".
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event
that involved actual or threatened death or serious injury, or a threat
to the person's, or other people's, physical integrity; and

(b) the person's response to that event involved intense fear,
helplessness or horror;

"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.

Dated 1994
Statement of Principles (No. 225/1995)
Amendment of Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD CODE: 309.81
The Repatriation Medical Authority amends, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), Instrument No.15 of 1994
(Statement of Principles concerning post traumatic stress disorder) by:
1. inserting before the definition of "DSM-IV" in paragraph 4, the following
definition:
"'ICD code' means a number assigned to a particular kind of injury or
disease in the tenth edition of the International Classification of
Diseases 9th Revision, effective date of 1 October 1993, copyrighted by
the US Commission on Professional and Hospital Activities, and having
the Library of Congress number 77-94472;".
2. The amendments made by this instrument apply to all matters to which
Instrument No.15 of 1994 and section 120A of the Act apply.
Dated this first day of June 1995
Statement of Principles (No 143/1995)
Statement of Principles concerning PERSONALITY DISORDER
ICD CODE: 301
1. Being of the view that there is sound medical-scientific evidence that
indicates that personality disorder and death from personality
disorder can be related to operational service rendered by veterans,
peacekeeping service rendered by members of Peacekeeping forces and
hazardous service rendered by members of the Forces, the Repatriation
Medical Authority determines, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), that the factors that must as a
minimum exist before it can be said that a reasonable hypothesis has been
raised connecting personality disorder or death from personality
disorder with the circumstances of that service, are:
(a) suffering a catastrophic experience that immediately preceded an
enduring personality change to the level of disorder; or

(b) inability to obtain appropriate clinical management for personality
disorder.

2. Subject to clause 3 (below) at least one of the factors set out in paragraphs
1(a) to 1(b) must be related to any service rendered by a person.
3. The factor set out in paragraph 1(b) applies only where:
(a) the person's personality disorder developed before a period, or
part of a period, of service to which the factor is related; and

(b) the relationship suggested between the personality disorder and
the particular service of a person is a relationship set out in
paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.

4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric
Associations Diagnostic and Statistical Manual of Mental Disorders;
Dated this thirteenth day of April 1995
Amendment of Statement of Principles concerning PERSONALITY DISORDER (No 13/1997)
ICD CODES: 301.0, 301.10, 301.11, 301.12, 301.2 - 301.9
The Repatriation Medical Authority amends, under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act), Instrument No.143 of 1995,
(Statement of Principles concerning personality disorder), by:
1. omitting the words "ICD CODE: 301" in the heading of the Instrument and
replacing them with the following:
"ICD CODES: 301.0, 301.10, 301.11, 301.12, 301.2 - 301.9"
2. omitting the definitions of "ICD code" and "personality disorder" in
paragraph 4 and replacing them with the following definitions:
"'ICD 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;
'personality disorder' means a psychiatric condition, attracting ICD
code 301.0, 301.10, 301.11, 301.12 or a code in the range 301.2 to
301.9, derived from DSM-IV, meeting the following criteria,
(a) an enduring pattern of inner experience and behaviour that deviates
markedly from the expectations of the individual's culture,
manifested in at least two of the following areas:
(i) cognition (ie. ways of perceiving and interpreting self, other
people and events);
(ii) affectivity (ie. the range, intensity, lability, and
appropriateness of emotional response);
(iii) interpersonal functioning;
(iv) impulse control; and

(b) the enduring pattern is inflexible and operative across a broad range
of personal and social situations; and

(c) the enduring pattern leads to clinically significant distress or
impairment in social, occupational, or other important areas eg.
functioning; and

(d) the pattern is stable and of long duration and its onset can be traced
back at least to adolescence or early adulthood; and

(e) the enduring pattern is not better accounted for as a manifestation
or consequence of another mental disorder; and

(f) the enduring pattern is not due to the direct physiological effects
of a substance (eg. a drug of abuse, a medication) or a general
medical condition (eg. head trauma), and may be identified as any
of the following:
(i) paranoid personality disorder attracting ICD code 301.0;
(ii) schizoid personality disorder attracting ICD code 301.2;
(iii) schizo typal personality disorder attracting ICD code
301.22;
(iv) antisocial personality disorder attracting ICD code 301.7;
(v) borderline personality disorder attracting ICD code 301.83;
(vi) histrionic personality disorder attracting ICD code 301.50;
(vii) narcissistic personality disorder attracting ICD code
301.81;
(viii) avoidant personality disorder attracting ICD code 301.82;
(ix) dependent personality disorder attracting ICD code 301.6;
(x) obsessive-compulsive personality disorder attracting ICD
code 301.4;
(xi) personality disorder not otherwise specified attracting ICD
code 301.9.
Note: The above criteria are derived from DSM-IV.".

3. The amendments made by this instrument apply to all matters to which
Instrument No.143 of 1995 and section 120A of the Act apply.
Dated this Twenty-second day of January 1997
Statement of Principles concerning PSYCHOACTIVE SUBSTANCE ABUSE OR
DEPENDENCE (No 5/1994)
ICD CODES: 303, 304
1. Being of the view that there is sound medical-scientific evidence that
indicates that psychoactive substance abuse or dependence and death
from psychoactive substance abuse or dependence can be related to
operational service rendered by veterans, peacekeeping service rendered
by members of Peacekeeping forces and hazardous service rendered by
members of the Forces, the Repatriation Medical Authority determines,
under subsection 196B(2) of the Veterans' Entitlements Act 1986, that
the factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting psychoactive
substance abuse or dependence or death from psychoactive substance
abuse or dependence with the circumstances of that service, are:
(a) experiencing a stressful event prior to the clinical onset of
psychoactive substance abuse or dependence, and maintaining the
abuse or dependence post-service; or

(b) having a psychiatric condition prior to the clinical onset of
psychoactive substance abuse or dependence; or

…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs
1(a) to 1(e) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
"ICD code" means a number assigned to a particular kind of injury or
disease in the International Classification of Diseases 9th Revision, US
Department of Health and Human Services, Pub. No 80-1260;
"psychiatric condition" means any psychiatric illness that attracts a
diagnosis under DSM-IV;
"psychoactive substance abuse or dependence" means a maladaptive
pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having
a persistent or recurrent social, occupational, psychological
or physical problem that is caused or exacerbated by use of
the substance; or

(b) recurrent use of the substance when use is physically
hazardous (for example, driving while intoxicated);

"stressful event" means an incident in which there were external stimuli
(such as combat) that would result in psychological stress, and where
there were subjective symptoms of increased stress.
Dated 1994
Statement of Principles concerning ALCOHOL DEPENDENCE OR ALCOHOL
ABUSE (No 76/1998)
ICD-9-CM CODES: 303, 305.0
...
Kind of injury, disease or death
2. (a) This Statement of Principles is about alcohol dependence or
alcohol abuse and death from alcohol dependence or alcohol
abuse.

(b) For the purposes of this Statement of Principles,
"alcohol dependence" means the presence of a constellation of
cognitive, behavioural and physiological symptoms indicating the
use of alcohol despite significant alcohol-related problems. The
pattern of repeated self administration may result in tolerance,
withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified
in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically
significant impairment or distress, as manifested by three
(or more) of the following, occurring at any time in the
same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of
alcohol to achieve intoxication or desired
effect

(b) markedly diminished effect with continued
use of the same amount of alcohol

(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for
alcohol

(b) the same (or closely related) substance is
taken to relieve or avoid withdrawal
symptoms

(3) alcohol is often taken in larger amounts or over a
longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to
cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to
obtain alcohol, use alcohol or recover from its
effects
(6) important social, occupational or recreational
activities are given up or reduced because of alcohol
use
(7) alcohol use is continued despite knowledge of having
a persistent or recurrent physical or psychological
problem that is likely to have been caused or
exacerbated by alcohol;
"alcohol abuse" means the presence of cognitive, behavioural or
physiological symptoms indicating the use of alcohol despite
significant alcohol-related problems, however these symptoms
have never met the criteria for alcohol dependence. Additionally,
signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in
DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to
clinically significant impairment or distress, as manifested
by one (or more) of the following, occurring within a 12-
month period:
(1) recurrent alcohol use resulting in a failure to fulfil
major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is
physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or
recurrent social or interpersonal problems caused or
exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for
alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude
acute alcohol intoxication in the absence of alcohol dependence or
alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303
or 305.0.

…
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 alcohol dependence or
alcohol abuse or death from alcohol dependence or alcohol abuse
with the circumstances of a person's relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or

(b) experiencing a severe stressor within the two years immediately
before the clinical onset of alcohol dependence or alcohol abuse;
or

…
Other definitions
8. For the purposes of this Statement of Principles:
…
"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 other
people's physical integrity, which event or events might evoke intense
fear, helplessness or horror.
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;

"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;
"psychiatric disorder" means any Axis 1 or 2 disorder of mental health
attracting a diagnosis under DSM IV;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this First day of December 1998

Hearing and appearances

The tribunal convened a hearing in the matter in Sydney on 22 February 2001. Mr N Dawson of counsel appeared for the applicant. Mr P Godwin of DVA appeared for the respondent.
The tribunal admitted into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents, 3 March 2000. Documents referred to with a T prefix are from this exhibit.
Exhibit A1 – Statement by applicant, 29 November 2000.
Exhibit A2 – Report by Dr K Reinhardt, psychiatrist, 19 July 2000.
Exhibit A3 – Report by Dr Reinhardt, 22 August 2000.
Exhibit A4 – Applicant's amended statement of facts and contentions, 24 August 2000.
Exhibit R1 – Report by Mr J Tilbrook, 4 April 2000.
Exhibit R2 – Report by Dr R D Lewin, psychiatrist, 25 May 2000.

Exhibit R3 – Report by Dr Lewin, 4 September 2000.
Exhibit R4 – Clinical notes from Department of Human Services, Victoria.
Exhibit R5 – Clinical notes from Lismore Base Hospital.
Exhibit R6 – Clinical notes from Calvary Hospital.

Medical and other Evidence

None of the applicant's claimed disabilities have been accepted as related to service. The claimed disabilities which have been rejected are personality disorder, pancreatitis, gastric ulcer, PTSD, bipolar affective disorder and chronic pancreatitis with diarrhoea.
His naval medical records refer to various medical conditions (T3/18-47). On 21 September 1965 Dr Bottomley stated in a report that there was no physical abnormality causing the applicant abdominal pain but there was chronic hepatitis (T3/19). Dr Bottomley also told the applicant that he would have to learn to live with his discomfort, he had no serious abnormality and was fit for duty (T3/20). On 21 May 1969 Dr Lourey stated that the applicant had collapsed and emotional problems had aggravated his conditions. The diagnosis was exacerbation of peptic ulcer (T3/21).
A report dated 20 October 1969 from naval doctors Lourey and Sewell stated that the applicant was suffering post gastric ulcer and was on a strict ulcer regime. The applicant was an "emotional young man" and this was a big factor in his continuing symptoms. The major source of domestic worries had been resolved and the ulcer should continue to heal. There was no medical reason for discharge from service (T3/11-12).
A naval final medical survey report dated 22 January 1970 found that the applicant was a hypochondriac, with his first complaint recorded in July 1965 (T3/14-15). On 12 December 1968 the applicant had a gastric ulcer, he was treated and the symptoms settled. Since then he had six short admissions for epigastric pain which seemed related to emotional problems rather than ulcer recurrence. The report of Dr Sewell was referred to and in January 1970, during his most recent admission, he became mildly depressed, and suffered repeated bouts of weeping, then absconded from the hospital. He was referred to Dr Reynolds, the consultant psychiatrist, for depression and because of immense psychological overlay in the illness. Dr Reynolds stated on 16 January 1970 that he had seen the applicant the previous year at the request of the naval social worker. He stated: "…I am appalled at the record of one so young. It is obvious that he is a gross hypochondric and his preoccupation with his symptoms are almost of obsessional quality. In view of this he has cost the Service a considerable amount of time and money in hospitalization special investigations etc. with little return in the way of work. This condition will not improve and in my opinion he would be best out of the Service". On 3 February 1970 it was decided that the applicant was below naval physical standard (T3/14-15).
A naval medical report dated 5 February 1970 stated that, although the applicant had been hospitalised on several occasions, his condition seemed to be related to multiple domestic stresses rather than ulcer recurrence. In October 1969 he had applied for a "free discharge" but this was not approved. He was found to be suffering from hypochondria, and his discharge as below naval physical standard ("BNPS") was recommended. His condition was constitutional and not the result of service. It was recommended that he be discharged invalided BNPS. The disability assessment was Naval 40% and Civil 15% (T3/47K).
A letter dated 10 September 1986 from Mater Misericordiae Adult Hospital stated that the applicant was seen in the hospital in October and November 1982 for epigastric pain (T3/62).
A letter dated 29 September 1986 from Murwillumbah District Hospital stated that the applicant was admitted to the hospital in March 1986 because of a quinine overdose (T3/63-72).
Following a medical examination, on 8 October 1986 a Dr M Mulheran reported that the applicant was a very moderate beer drinker, consuming one stubby a day, but was previously a heavy drinker (T5/84, 87). The pancreatitis was due to alcohol abuse. The applicant was suffering from a considerable disability related to his nervous conditions which were manifested by his difficulties with interpersonal relationships and severe bouts of depression leading to suicide attempts (T5, ff.84, 87).
A letter dated 19 November 1986 from the Western Sydney Mental Health Service stated that the applicant was in Rydalmere Hospital between 28 May 1979 and 5 June 1979, then re-admitted again from North Ryde Psychiatric Centre on 7 June 1979 (T3/81-82). He was discharged on 13 June 1979 with diagnosed personality disorder problems.
A radiology and ultrasound report dated 27 July 1987 stated there were no abdominal abnormalities, apart from a gastric ulcer (T8/118-119).
A report dated 24 May 1990 by Dr Graeme Worsley stated that the applicant's previous problems with ethanol abuse had led to his chronic pancreatitis and he was taking more than an adequate amount of analgesics (T14). Dr Worsley said it should be ascertained whether the applicant was taking alcohol in "tablet form" rather than drinking it.
A report dated 4 February 1994 from Dr Michael de Groot stated that the applicant had a bipolar affective disorder, influenced by the applicant's personality (T15/140-141).
On 2 March 1994 and 10 March 1994 Dr de Groot indicated that the applicant was having lithium treatment (T15/138-139).
On 10 June 1994 Dr de Groot stated that the applicant was experiencing some conflict with one of the sons of his wife (T16).
On 14 June 1994 Dr de Groot stated that the applicant had a major disturbance with his wife and that he possibly wanted to communicate that he had no control over his mood swings and therefore avoided responsibility for his behaviour (T16).
On 30 March 1995 Dr Robert McKenzie stated that the applicant had been treated for acute pancreatitis (T17).
On 25 July 1996 Dr de Groot confirmed his earlier diagnosis of bipolar affective disorder and explosive personality disorder (T21).
On 9 April 1997 Dr Reinhardt examined the applicant and decided that he satisfied the criteria for PTSD and major depression. She said this was caused by his experiences in the navy and compounded by punitive and inappropriate treatment he received. His rating under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) ( ("GARP") was 60. His psychiatric illnesses were so severe that he could not work, he was totally and permanently incapacitated from war-caused injuries and incapable of remunerative work for more than eight hours a week. His psychiatric illness was a direct result of his involvement in Vietnam and he qualified for the TPI because some criteria were met (T27).
An historical research report dated 4 April 2000 (Ex R1), was prepared by Mr John Tilbrook. The historical report confirmed that, according to the records, the applicant was on duty in an operational area (Vietnam) from 5 April 1968 until 17 April 1968. The Report confirmed the death by drowning of the two divers during a naval exercise at Jervis Bay in August 1967 while the applicant was posted there. Senior naval personnel stated that it was unlikely the applicant would have seen the bodies in a closed ambulance as it did not have a reason to stop at the guard post at the main gate if the applicant had been on guard duty there.
As to the scare charges, although Vung Tau was a safe port, these were precautions taken by ships in Vietnam to prevent possible enemy attacks. Safety drills did include dropping of scare charges but the ship's personnel would have had prior warnings issued before this happened. Security measures were regularly carried out, with prior announcements, but it was possible for crew below deck to be "startled" by the explosions. It is unlikely that the applicant would be asleep below deck at the time of the dropping of the scare charges. The only people sleeping were the night watch keepers. The applicant would have manned his defence station during the exercise. There is no record that any scare charges were used as these were used only in certain conditions. In addition the activities of outgoing troops and incoming cargo on the ship, and normal daily work routine, meant the crew would be on deck. It was unlikely that the crew would be below deck during a daylight visit to Vung Tau. It would be expected that the applicant would also have been on deck to witness the activity on the water and on shore. He spent a total of six hours in Vung Tau Harbour in a state of readiness alert, posted at his defence station.
There was no reference to any unidentified aircraft incident and no strafing incident in the harbour. The ship's company adopted a state of readiness and defence stations as a standard routine measure when entering into operational waters and the applicant may have been rostered to be at his defence station. There were no enemy aircraft over South Vietnamese waters and the only aircraft incident involved a helicopter developing mechanical problems during a sea training flight with two crew members being jettisoned into the sea while the helicopter landed on another ship.
Mr Tilbrook concluded that the applicant's voyage to and from Vietnam was uneventful and, in his opinion, the applicant is unable to sustain the argument that he saw the bodies of the divers while at Jervis Bay, that while he was sleeping below decks on his ship in Vietnam scare charges were dropped, and that his ship was possibly being strafed.
On 19 July 2000 Dr K Reinhardt (Ex A2) stated that the applicant began treatment at the St John of God Hospital on 21 November 1996. She was of the opinion that the applicant did not suffer borderline personality disorder, although symptoms of the disorder and chronic PTSD were similar. She considered that the applicant met all the criteria for chronic PTSD and met most criteria for personality disorder and assessed a final impairment rating of 54 in accordance with the GARP.
On 22 August 2000 Dr Reinhardt (Ex A3) stated that the applicant suffered chronic PTSD and major depression. His symptoms were so severe that he was unable to work for more than eight hours a week and was not suitable for retraining.
On 4 September 2000 Dr Lewin reported (Ex R3). Dr Lewin referred to various earlier medical and psychiatric reports from other doctors. The applicant related the incident of the divers and when asked whether other things were difficult or distressing for him, he replied that it had been his whole life, since he was "a baby", that he could not work successfully, keep a job or relationship and had been in and out of psychiatric hospitals. He then corrected himself and stated that his problems began since he left the navy, not since he was "a baby".
He also referred to the experiences in Vietnam and stated that an American aircraft had strafed the ship but then corrected himself and said that the aircraft had "buzzed them". He gave an account of his psychiatric history including his emotional outbursts, suicide attempts, overdoses and the hospitals where he had gone for treatment. He discussed his smoking and drinking history and stated that he had drinking problems when he was in the navy. After he left the navy he had drink-driving convictions. An apprehended violence order ("an AVO") has been taken out following his assault on his current wife's elder son. There was fighting and domestic violence because of his inability to tolerate the squabbling of the two boys and he lost control when attempting to intervene. He discussed his charges for criminal offences and said his drinking problems have continued. There was some history of illegal and prescription drug abuse and he continues to take some prescription drugs. Dr Lewin found no evidence of depressive symptoms and specific symptoms of PTSD were absent.
Dr Lewin's diagnosis and opinion was that there was no severe psychiatric disturbance, but there was an alcohol dependence and previous poly-substance abuse. A long-term pattern of dysfunctional behaviour emerged and a mixed personality disorder which had its origins in the applicant's early, emotional development. This could not be attributed to his naval experiences. The problems are based upon early emotional development, and later life events can sometimes exert a transient influence. There was no entrenched mental illness and there was no diagnosis of complex PTSD. The alcohol problems were present prior to naval service and the pancreatitis shows a heavy pattern of drinking earlier than suggested by the applicant. The substance abuse problem had worsened in the applicant's naval service and the SoP requires a severely stressful factor. The events described by the applicant were not severe stressors, and there was no link between alcohol addiction and military service. Under GARP Dr Lewin assigned an impairment rating of 34.
Dr Lewin stated that, if the drinking problems were put to one side, the main barrier to the applicant's return to work was motivational. As for the applicant's fitness for work, Dr Lewin's opinion was that if the work did not involve driving or operating machinery, and intoxication at work was not an issue, then the applicant was fit for work for more than twenty hours a week. However, it was likely that the applicant would be intoxicated from time to time, he would be unfit for work, even for eight hours a week based on the personality disorder and history of alcoholism. The applicant would be irresponsible and drunk at work from time to time.
In a 1987 pension claim the applicant stated that he was a regular drinker, had begun after enlisting, had not stopped drinking, his daily consumption was "different" as he had changed his drinking habits. He stated that he had no history of excessive drinking before enlisting and was treated for ulcers in 1968 for the first time (T8/116).
On 27 July 1987 the applicant was diagnosed with a gastric ulcer (T8/118-119). On 4 November 1987 the applicant also completed a Smoking Questionnaire and stated that he smoked because of peer pressure. He began smoking before service, and during service he began to smoke a pipe as it was easier, but later only smoked socially as it helped him to relax. He stopped smoking in 1986 (T8/120).
The applicant completed an Alcohol Questionnaire on 26 August 1997 stating that he began to drink regularly in October 1965 due to peer pressure and because he was encouraged to do so (T29/182). He said his drinking increased when he left Vietnam. He drank about half a bottle of scotch and six stubbies of beer due to service in a war zone. He said he currently drank every day but it was only beer, between 6 – 8 stubbies per day. He claimed he drank because he began to think of being fired upon, injured or killed and after being in Vietnam he began to drink heavily and to binge drink. He considered the chances of injury would occur because there were incidents of friendly fire incidents on another ship, the HMAS Hobart, when it was hit by US rockets. The drinking continued into his civilian life and "wrecked" his life.
The Smoking Questionnaire dated 26 August 1997 indicated that he first started smoking when he joined the navy, he smoked 20 tailor made cigarettes a day and was encouraged to take smoke breaks. In Vietnam he smoked 40 a day, then in 1970 he still smoked 40 cigarettes a day and also a pipe to help him with stress and tension relief. In 1985 he smoked a pipe only, also for tension and stress relief (T29/183-184).
On 19 May 1999 Dr Reinhardt reported (T37/210-211). The report referred to the incident of the bodies of the divers, stating that this made the applicant highly anxious when he went to Vietnam a few months later. Whilst in Vung Tau Harbour there were two incidents where he felt threatened with death. He felt fearful and helpless and had images of "finishing up like those divers". The first incident involved the scare charges when divers were suspected of being close by and possibly planting mines on the ship. This did not happen but the threat was real. The second incident was the ship being accidentally strafed by an American bomber and the applicant had images of the ship being blown up. The report claimed it was since this time that the applicant suffered his psychiatric symptoms. The applicant had received treatment and partially managed some of his symptoms but was still significantly disabled by them. Dr Reinhardt concluded that the applicant was suffering from PTSD linked to his experiences in Vietnam. His symptoms were so severe that he could not work and was significantly impaired in social and recreational functioning.
On 27 July 1999 Dr A Dinnen reported following an interview with the applicant (T37/213-218). The applicant told Dr Dinnen that his psychiatric condition derives from the incident concerning the divers missing in Jervis Bay. Later, when he was in Vietnam and scare charges were being dropped over the side of his ship, that made him think he could end up like the divers. In another incident they were nearly fired upon by the Americans.
The applicant discussed the incident of the divers. He had put his head inside the vehicle where the bodies were but this memory did not recur very frequently. When he was in Vietnam he was sleeping in the ship below water level and heard noises. He was scared as his father was also in Vietnam at the same time. He also said that his alcohol abuse caused peptic disease. Dr Dinnen referred to the previous psychiatric reports from the applicant's service and noted that much of his treatment was related to abdominal pain and suspected peptic ulcer, as well as other various medical conditions.
The applicant discussed the breakdown of his first marriage and the problems in his second marriage. The applicant had problems in the first marriage because his wife was sleeping around. They separated in 1976 after nine years together. They had three sons but one died in infancy from bronchopneumonia and was epileptic. His second wife was also suffering major depressive disorder. The Department of Community Services had taken out an AVO against him on behalf of his second wife's children. He had been drinking heavily and said he consumed a bottle of scotch at night when on leave while in the navy. This led to a bleeding gastric ulcer when he drank a bottle of Bacardi rum straight. The applicant stated he been in Vietnam for 12 days in 1968.
The applicant stated he had depression, cried and felt angry and was taking medication. The applicant stated that he still had behavioural problems despite taking medication.
The applicant stated that he had been in the psychiatric hospital at Tamworth Base Hospital and had slashed his wrists after he had broken up with a woman. The applicant also stated that he had previously been in jail for three months for false pretences in Queensland, one month in Sydney for drunk driving and he had been in Pentridge in Victoria for false pretences, which was to do with bad cheques. He told Dr Dinnen he was drinking two or three schooners of beer a day but had drunk excessively for long periods throughout the years.
Dr Dinnen commented that there was a long history of maladjustment. The applicant's medical history in the navy was the same quality as the history of recurrent hospitalisation from that time onwards. Dr Dinnen was of the opinion that the applicant did not suffer manic depressive illness or PTSD. The appropriate diagnosis was personality disorder and the appropriate SoPs did apply. There were histrionic and psychopathic (anti-social) elements. The condition included the applicant's emotional condition and also expressed in a variety of physical conditions, similar to the pattern during naval service. The criteria for borderline personality disorder were satisfied and it was the correct diagnosis. This pattern was first recognised during his treatment and service in the navy in the late 1960s and the condition was clearly attributable to service in terms of timing and onset. The inability to obtain appropriate clinical management for personality disorder during naval service was the relevant causal factor.

The tribunal therefore finds that, if the applicant suffers from PTSD, the disease is not war-caused.
For the avoidance of confusion the tribunal clarifies that it has considered SoP 15/94 as amended by SoP 225/95 and considers that it raises virtually the same matters and, if applied, the result would be the same.

Personality disorder

Drs Dinnen (T37/213) and Lewin (Ex R3) favoured this diagnosis. It had been diagnosed in 1979 (T3/81) and 1986 (T6). Dr Dinnen does not say why the applicant does not suffer from PTSD. He considers that he positively falls within the diagnostic criteria for personality disorder. He says, "there are clearly histrionic and psychopathic (anti-social elements). The condition includes the patient's emotional lability and probably also is expressed in a variety of physical conditions, not unlike the pattern which was present during his naval service".

Dr Dinnen further writes:
"As it is clear that this pattern was first recognised and described during his extensive period of treatment and service in the Navy in the late 1960's, and as indeed the description by Dr Reynolds at that time is very much in accord with his current presentation I believe the condition is clearly attributable to service in terms of its timing and onset. The Statement of Principles defines the circumstances of service which can give rise to such a condition as either suffering a catastrophic experience or being unable to obtain appropriate clinical management. In my view that second criterion 'inability to obtain appropriate clinical management for personality disorder' during the patient's service in the Navy is the relevant causal factor".
Dr Lewin dismissed PTSD as a diagnosis, apparently because Mr Brown did not report any history of distressing, intrusive recollections or strange thoughts; there was no history of nightmares (Ex R3/9). He also did not complain of typical post-traumatic symptoms of anxiety. There was no history of recurring or intrusive experiences, nightmares or dissociative symptoms (Ex R3/15-16). There was no "severe stressor" (Ex R3/16).
Dr Lewin concluded:
"When this man's developmental history, naval history, work history and domestic history are considered, a long-term pattern of dysfunctional behaviour emerges. It is evident that Mr Brown has been quite irresponsible at various times, in that he has failed to learn from experience, he has had a long-term history of difficulty tolerating distress, he has had prolonged periods of repeated self-damaging behaviours and substance abuse and failed attempts to cope with this. It appears likely that Mr Brown has a Mixed Personality Disorder. There are features of a number of difficulties in various areas of his personality functioning. He appeared keen to dissuade me from this opinion. I noted, quite clearly, that he told me that he had experienced recurrent, distressing experiences and that 'My whole bloody life, since I was a baby' had been like this. At that stage, he referred to his work, relationships and psychiatric history noting marked dysfunction. He attempted to change the history by later stating that I had misheard him. This was, quite clearly, not the case.
"Mr Brown has a Mixed Personality Disorder. It is my opinion that this condition has its origin in Mr Brown's early, emotional development. I do not attribute any causal role to his naval experiences in this regard. It is the usual observation that disorders of this nature are based upon problems in the early, emotional development of the child but that later life events can sometimes exert a transient influence."
Dr Lewin does not address whether the applicant was unable to obtain appropriate clinical management for his condition in the navy.
Dr Lewin also gave evidence in person for the tribunal. He explained more about his diagnosis. There was a pattern of dysfunction reported by the applicant in the documents. This included problems with his work history, a criminal history and difficulties with his emotional development. The case could not be understood without regard for the personality functioning. Dr Lewin spoke in particular of the applicant's emotional development. He had problems with his father who was often absent. He had an undue degree of early responsibility for helping his mother. His mother was fussy and fanatical for cleanliness. He did not have a warm relationship with her. He had considerable regard for and a special relationship with his grandmother. There was a hint of excessive punishment. There were other problems in his teenage years. He had a problem with drunkenness. He later coped with distress and distress using alcohol and overdosing on drugs. This is typical of people dealing with maladjustment. He was unhappy both at home and at school. Dr Lewin referred to the abortion had by the applicant's first wife. Their parents forbade the applicant and his wife from seeing each other. Dr Lewin said that this episode demonstrated the applicant's lack of forethought and consideration for others.
Dr Lewin considered that the applicant was not bipolar. There was no report of medical depressive symptoms when the applicant saw Dr Lewin. Dr de Groot who had diagnosed the applicant as bipolar did not provide a detailed history.
Dr Lewin was asked to address the report by Dr Reinhardt in T37 where she had identified a number of the PTSD factors as being present. As far as re-experiencing symptoms are concerned, Dr Lewin thought that the fact that Dr Reinhardt had examined the applicant in a hospital setting may have brought these matters to the fore. Dr Lewin himself found little or no evidence of re-experiencing. Generally speaking, Dr Lewin responded to the list of observations made by Dr Reinhardt by saying that he had not had the same observations.
Mr Dawson cross-examined Dr Lewin. He took Dr Lewin to the applicant's childhood history. Dr Lewin agreed that he saw the child factors as important. Mr Dawson put to Dr Lewin that the applicant has never been suspended from school. He had not smoked at school. He did not drink at that time. He did not smoke marijuana. He did not set fires. He did not have a fear of the dark. He was not cruel to animals. He did not run away from home. He did not report any history of child sexual abuse or violent, physical abuse. He was not unduly shy with girls. There was no history of nailbiting or stage fright. He was not taken before juvenile courts. It was suggested that the applicant's childhood was not that much out of the ordinary. Dr Lewin responded that he thought there might be more to the applicant's childhood than the applicant had told him. The doctor would be more cautious about relying on the applicant's history than he might be for many other patients.
Dr Lewin had mentioned that the applicant got into trouble with his grandmother for getting drunk. He told Mr Dawson that he had not ascertained whether that occurred only once. Dr Lewin conceded that is possible that he had misread the applicant's situation but he did not think so.
Mr Dawson put to Dr Lewin that the applicant had left school at age 14 and joined the navy at age 18. [The tribunal notes that the applicant's own evidence was that he left school at 17.] He appeared to have had only one job in the four years between those ages. That would not appear to be dysfunctional. However Dr Lewin said that the fact that the applicant could behave in the bookshop did not preclude dysfunction. A person could have an uncharacteristic period of significant difference. Dr Lewin then admitted that he had no notes in respect of that period but agreed that one job over a four-year period would not be dysfunctional. More generally Mr Dawson attempted, with some success, to indicate to Dr Lewin that his history was seriously defective. His history had pointed to some drunkenness and trouble in football games for example. It had pointed to some truancy. However, Dr Lewin was unaware of how many times the applicant had been in fights or how many times he had played truant. The witness was unaware of how many times the applicant had been drunk at dances.
Mr Dawson ascertained also that Dr Lewin had not asked the applicant about his time spent in naval training or in the navy before the divers went missing. Dr Lewin agreed that the evidence showed that dysfunction in the applicant's work appears only after he had completed naval service.
Dr Lewin agreed that he had not assessed the applicant in relation to his history from age 15 to age 21. Counsel suggested that this meant that Dr Lewin could not suggest that there was any continuous pattern in the applicant's behaviour. Dr Lewin considered that this was "splitting hairs". Dr Lewin insisted that a person's long-term functioning can be guessed by looking at the material on that person's childhood, teenage years and experiences in the navy.
Mr Dawson asked Dr Lewin to address the applicant's responses to seeing the deceased divers. It was put to Dr Lewin that the applicant had never forgotten seeing the divers. Dr Lewin agreed that this may fit the requirements for a severe stressor. He also agreed that the applicant may be more emotionally vulnerable because of the events at Jervis Bay.
Mr Dawson put to Dr Lewin various other phases of the applicant's life where he appeared to have had some success. One was in the navy when he had been successful in the early years at his study. Dr Lewin said that there can be compartmentalisation. A person can function well in some facets of life and not in others.
Mr Dawson asked Dr Lewin about the incident in which the applicant was handcuffed to his bed. He suggested that it was pretty poor treatment. Dr Lewin agreed that that would certainly be the case now. In the late 1960s it was probably not unusual treatment.
Mr Dawson put to Dr Lewin that Dr Reinhardt's views on the applicant's PTSD are more likely to be reliable than Dr Lewin's own views. Dr Reinhardt is the applicant's treating doctor whereas Dr Lewin saw the applicant for only a few hours. Dr Lewin agreed that a treating doctor will often have more information than a medico-legal doctor, but he queried the relevance of much of this information. He did not accept that a treating doctor invariably has a better chance of accuracy than a medico-legal doctor.
The only hypothesis advanced relating to the applicant having a war-caused personality disorder is Dr Dinnen's hypothesis that the applicant entered the navy with such a disorder and was unable to obtain appropriate clinical management of the condition. Mr Dawson in his cross-examination of Dr Lewin appeared keen to eradicate any notion that the applicant's condition may be a personality disorder. Despite this, and given the tribunal's finding that the applicant does not have a war-caused PTSD, the tribunal has an obligation to consider alternative diagnoses that may answer the applicant's claim and personality disorder is one of these. The applicable SoP is 143/95 as amended by 13/97.

It is certainly arguable that the navy medical documents indicate a somewhat unsympathetic approach by the navy to the applicant. He was found to be a hypochondriac in 1970 and was discharged from the navy (T3/47K). He was not effectively treated for any non-physical ailment.
Mr Brown may well have a personality disorder as it is described in SoP 13/97, clause 2. In relation to paragraph (a) the deviant behaviour may involve affectivity, interpersonal functioning and impulse control. The matters in paragraphs (b) to (e) appear arguably present. Paragraph (d) requires that the "pattern" can be traced back at least to adolescence or early childhood. Despite Mr Dawson's cross-examination of Dr Lewin designed to put to rest that the applicant had any unusual manifestations of personality disorder in childhood and adolescence, the few indicators identified by Dr Lewin in Ex R3, coupled with Dr Dinnen's overall assessment of the applicant as having a personality disorder, is sufficient to satisfy the tribunal that paragraph (d) is reflected in the applicant's presentation. Paragraph (f) is satisfied in subparagraph (v). Dr Dinnen considered that the applicant had a "borderline personality disorder".
However, clause 3 of SoP 143/95 imposes certain requirements where factor 5(b) is the basis for a personality disorder being regarded as war-caused. The personality disorder must have developed before the operational service period. The hypothesis is that this was what occurred, that the applicant had the condition from his youth, and that the treatment, or lack thereof in operational service, exacerbated the condition. The service relationship, in accordance with clause 3(b), must be a relationship as set out in s 9(1)(e) of the Act.
Section 9(1)(e)(i) does not mirror the applicant's hypothesis in that the disease was not contracted while the veteran was rendering eligible war service. The hypothesis is that he had the disease from an earlier date. Section 9(1)(e)(ii) requires that the disease was contracted before the commencement of the period of eligible service but not while the veteran was rendering eligible service. In addition the disease must have been contributed to in a material degree, or aggravated by, any eligible war service rendered by the veteran after he contracted the disease. Dr Dinnen's thesis is that the disease was contracted before operational service and that it was aggravated by inability to obtain appropriate clinical management.
However, as the tribunal understands it, this inability must have occurred on the single day of operational service, 9 April 1968, in order to conform to the SoP. The applicant's account of his activity on that day is that he was asleep below deck when scare charges exploded. There has been no suggestion that he sought clinical management, or manifested symptoms requiring clinical management, on that day.
In relation to personality disorder, therefore, the tribunal finds beyond a reasonable doubt, under s 120(3) of the Act, and in accordance with s 120A(3) of the Act, that there is no sufficient ground for determining that the disease was a war-caused disease.

Alcohol dependence and substance abuse

Dr Lewin (Ex R3/10) considered that the applicant had a significant problem associated with the use of alcohol, that he had abused marijuana and had difficulties with prescribed narcotic analgesics. There was also a history of abuse of benzodiazapine sedatives.
The most favourable hypothesis would involve the applicant as having increased his use of alcohol and/or other substances after his day of operational service and as a result of events on that day, notably the types of events considered in relation to PTSD.
The appropriate SoP would be 5/94 which was in force when the primary decision was made. The current SoP (76/98) appears to take account only of alcohol dependence or abuse. In accordance with the Federal Court decisions in Gorton (supra) and Williams (supra), the applicant can have the advantage of the more favourable, earlier SoP.
It is necessary to consider whether the hypothesis advanced on the applicant's behalf mirrors the requirements in SoP 5/94.
The definition of "psychoactive substance abuse and dependence" in clause 4 of the SoP is satisfied. His history of drink driving would suffice alone. The applicant could rely on having experienced a stressful event prior to the clinical onset of psychoactive substance or dependence and maintaining the abuse post-service (factor 1(a)) or having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence (factor 1(b)).
The type of stressful event required in SoP 4/95 appears to require less than that required for PTSD. It has only to be "an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress" (clause 4).
The applicant has said that he experienced stress after the explosion of scare charges in Vung Tau Harbour. As regards the "external stimuli (such as combat)" the Tilbrook report (Ex R1/6) states:
"18. Security measures adopted in Vung Tau Harbour. According to the official history of the RAN entitled 'UP TOP', the Director of Naval Intelligence at Navy Headquarters in Canberra recognised that although there was little enemy main force activity around VUNG TAU, which considered it a 'safe port', serious and methodical precautions were always required to be exercised by RAN ships when operating in Vietnam waters aimed at preventing the possibility of enemy swimmer/sapper attacks. These security precautions were covered under an umbrella of drills identified as Operation AWKWARD and encompassed the posting of armed sentries, keel and anchor cable searches by ships divers up (where warranted), the maintenance of the trials by the ship's boats telling chain or cadets, and the dropping of scare charges over the sides of RAN vessels and from circling patrol boats (when warranted) during periods of 'slack water' which was 30 minutes either side of high and low tidal changes in Vung Tau harbour."
This suggests that a veteran such as the applicant on his first duty in Vung Tau Harbour may have seen the security precautions, and the reasoning behind them, as a disturbing external stimulus.
The tribunal has already found that the applicant also had a psychiatric condition prior to his operational service.
The important issues outstanding are whether the applicant's psychoactive substance abuse and dependence is operational service-related (clause 2) and when the condition had its clinical onset. The applicant's versions of his alcohol consumption were as follows:

In T8/116 the applicant said that he started drinking after enlisting in the navy, that he was still drinking (in 1987) and that he drank variable amounts day to day.
In T29/181-182 the applicant said (in 1997) that he began consuming alcohol on a regular basis in 1965, that he did so because of "peer pressure and encouraged to". He drank beer and spirits two or three times a week consisting each time of six mixed scotch and beer and two stubbies of beer. His drinking increased when he "came out of Vietnam waters". He then drank a half bottle of scotch and six stubbies, presumably each session. This was due to stress in a war zone. As at 1997 he was drinking daily but only six to eight stubbies of beer. He wrote, "After being in Vietnam waters I began to drink heavily and binge drink. This has continued into my civilian life and wrecked my life."
In oral evidence he said he drank beer as a teenager with his grandparents, that he was a social drinker when he enlisted, that he became an excessive drinker on the Parramatta and that he no longer drinks heavily except for an occasional binge. He had not binged in over 12 months.

He told Dr Reinhardt that he has used excessive alcohol to block out unwanted thoughts and induce sleep (T37/211).
When Mr Brown saw Dr Dinnen (July 1999) he told him he was drinking two or three schooners a day (T37/215).
When he saw Dr Lewin he said that he began to drink at the age of 16 or 17. He told Dr Lewin that he was always given a small glass when he was living with his grandmother. That was before he joined the navy. He said that he began to drink heavily whilst in the first few months of his naval service. He described blackouts to Dr Lewin. In particular this occurred when he was drinking large quantities of alcohol in a binge pattern. His drinking occurred in the company of the older men from the mess. He did not drink in this manner every night. He said that he did not drink whilst at sea because he could not see the point of having to be limited to just one can. He told Dr Lewin that he first encountered difficulties associated with drinking while serving on the HMAS Anzac. The tribunal notes that this appears to have been in 1965 to 1966. He told Dr Lewin about getting drunk and being involved in conflict that time. He said that he was picked up by the police or by the shore patrol. He went on to say that after he left the navy he had six drink driving convictions. His longest period of sobriety was over a nine week period. He recommenced drinking moderately and soon relapsed into a pattern of repeated binge episodes.

Dr Lewin took an extensive history of Mr Brown's experience with drugs such as marijuana, narcotics and benzodiazepines but there was little information about quantities and timeframes.
The applicant's version of his drinking history has changed over time. However, a version does accord with the SoP. The clinical onset of psychoactive substance abuse and dependence may, on the applicant's account, have been after his operational service.
The required service connection is made out in accordance with the hypothesis. He increased his drinking because of stress and peer pressure.
Thus, the applicant could be taken to have a war-caused psychoactive substance abuse and dependence unless the tribunal can be satisfied beyond reasonable doubt that the hypothesis is not reasonable. However, it appears that the applicant has ceased, on his own version of events, to abuse alcohol. By July 1999 the applicant was drinking only two or three schooners a day. He told the tribunal that he no longer drinks heavily. He was only a moderate drinker in 1986 (T3/84, 87).
It thus seems that the applicant no longer suffers from psychoactive substance abuse and dependence, even if he did so at an earlier time.
In relation to psychoactive substance abuse and dependence, therefore, the tribunal finds that it is not reasonably satisfied, in accordance with s 120(4) of the Act, that the applicant suffered from this disease at the date of claim or now, at the date of decision.

Bipolar disorder

This condition was diagnosed and treated by Dr de Groot. However, there was very little said about it to the tribunal in the hearing. It was not pressed in the applicant's argumentation. Dr Lewin gave evidence about the condition and considered it not present because there was nothing said about manic or depressive symptoms when the applicant saw him. There was no recurring pattern of mood disturbance reported to him. Dr Dinnen (T37/213) dismissed it as a relevant condition.
It seems to the tribunal that there has not been any serious advancing of a hypothesis linking the applicant's operational service with a disease of bipolar disorder and the tribunal finds that there is no such hypothesis raised.

Conclusion

The tribunal has examined a number of hypotheses that could be said to have been raised by or for the applicant to connect his single day of operational service with any of four possible psychiatric conditions that he may have experienced since his operational service. However, for different reasons, notably problems in finding the suggested stressors satisfactory in accordance with the SoPs or doubtful diagnoses, the tribunal has found that none of the applicant's alleged diseases are war-caused. This means that the applicant does not qualify for a Disability Pension.
The tribunal disagreed with the VRB in that it did not find that the applicant has PTSD.

Decision

The decision under review is varied by amending the diagnosis "personality disorder and post-traumatic stress disorder" to the diagnosis "personality disorder", but it is otherwise affirmed.
I certify that the 166 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 February 2001
Date of Decision  20 December 2001
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    Mr P Godwin
Solicitor for the Respondent    DVA