DENNIS STANLEY KNAPE and REPATRIATION COMMISSION - [2012] AATA 152

[2012] AATA 152

Division	VETERANS' APPEALS DIVISION
File Number	2011/0785
Re	DENNIS STANLEY KNAPE
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	9 March 2012
Place	Melbourne

The Tribunal affirms the decision under review.

...............................[sgd].....................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – naval service in Vietnam – post-traumatic stress disorder – traumatic event – whether condition diagnosed and war-caused – depressive disorder – whether war-caused

Veterans' Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Delahunty v Repatriation Commission [2004] FCA 309

Kaluza v Repatriation Commission [2010] FCA 1244

McKerlie v Repatriation Commission [2010] FCA 1127

Mines v Repatriation Commission (2004) 86 ALD 62

Re Codd and Repatriation Commission [2008] AATA 1177

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2008] FCA 50

Repatriation Commission v Warren [2007] FCA 866

Stoddart v Repatriation Commission (2003) 197 ALR 283

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

G. D. Friedman, Senior Member

9 March 2012

Dennis Knape served in the Royal Australian Navy (the navy) from 25 September 1965 to 11 December 1979 and reached the rank of Petty Officer. His service included a number of voyages to Vietnam on HMAS Melbourne, HMAS Stuart and HMAS Sydney between April 1966 and November 1972, and this constitutes operational service under the Veterans' Entitlements Act 1986 (the Act). He also rendered eligible defence service on HMAS Brisbane from 7 December 1972 to 11 December 1979.
The respondent has accepted that Mr Knape’s medical conditions of bilateral sensorineural hearing loss, bilateral tinnitus and non-melanotic malignant neoplasm of the skin are war-caused, and he receives a disability pension at 50 per cent of the general rate. The respondent rejected his claim that post-traumatic stress disorder (PTSD) and familial hypertrophic cardiomyopathy are war-caused conditions. His claim was refused by the Veterans' Review Board, and he is seeking review of the decision in respect of PTSD.

ISSUES

The issues before the Tribunal are:

Does Mr Knape suffer from PTSD arising from operational service during voyages to Vietnam? If so, is the condition war-caused?
If Mr Knape does not suffer from PTSD does he suffer from any other psychological condition? If so, is the condition war-caused?

DOES MR KNAPE SUFFER FROM PTSD ARISING FROM OPERATIONAL SERVICE DURING VOYAGES TO VIETNAM?

The Tribunal is required to determine to its reasonable satisfaction whether Mr Knape suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV) a diagnosis of PTSD requires that:
A.        The person has been exposed to a traumatic event in which both of the following were present:
(1)       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
(2)       the person's response involved intense fear, helplessness, or horror…
Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at [48]:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
This reasoning was followed in Repatriation Commission v Hill [2008] FCA 50.
In Repatriation Commission v Warren [2007] FCA 866 Kiefel stated:
[23] The question that the appeal raises is whether it is necessary that the Tribunal make its findings, as to the existence of the disease claimed, expressly and in detail, by reference to the criteria in the SoP. The applicant relies upon cases which hold that it is necessary for the decision-maker to have regard to the definition of injury or disease in the applicable SoP: see Repatriation Commission v Codd [2005] FCA 888 at [48] and Gosewinckel 59 ALD at [55]. Those cases however also make plain that it may be expected that the Tribunal will act upon medical opinion as to diagnosis. The point made by Weinberg J in Gosewinckel 59 ALD at [55], is that the Tribunal is not in a position to accept a doctor’s opinion as to the existence of a disorder without knowledge of the criteria essential to its diagnosis.
…
[25] The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that Manual and the criteria provided by it.
In Re Codd and Repatriation Commission [2008] AATA 1177 the Tribunal stated:
[16] ...Separating the question of the existence, or the characterisation, of a disease (and perhaps an injury) from its aetiology is sometimes difficult. For instance, statements of principles in respect of diseases such as alcohol dependence or alcohol abuse (the statements of principles relevant to the present case), post traumatic stress disorder (as in Mines) or anxiety disorder (also in Mines) commonly include among the criteria against which a hypothesis is to be assessed reference to an event that would constitute a possible cause of the disease, eg a “stressor”. The question is whether the decision-maker should determine as part of the preliminary process, applying the balance of probabilities standard, whether the veteran experienced such an event, or whether that issue belongs in the four-step Deledio process, as part of the hypothesis tested against the relevant statement of principles...
[17] The solution to this problem adopted by the Federal Court is not to undertake such a full inquiry as to whether the veteran suffers from the particular disease as would involve the determination of the disease’s aetiology. Rather, the solution is to determine on the balance of probabilities whether the veteran is suffering from a collection of symptoms that would amount to the disease in question, if the crucial fact relevant to its aetiology were to have existed…
Mr Knape told the Tribunal that he completed Year 9 at school and commenced an apprenticeship as a motor mechanic but left after three years and became a tyre fitter and salesman for one year before joining the navy in 1965. He undertook initial training at HMAS Cerberus in Victoria and specialist training as a marine engineer and stoker/boiler room operator. His first posting was to HMAS Melbourne and he made the following voyages to Vietnam:

25 April 1966 – 6 May 1966 (HMAS Melbourne)
30 May 1966 – 9 June 1966 (HMAS Melbourne)
17 May 1967 – 8 June 1967 (HMAS Stuart)
25 January 1968 – 5 February 1968 (HMAS Stuart)
16 February 1970 – 5 March 1970 (HMAS Sydney)
21 October 1970 – 12 November 1970 (HMAS Sydney)
15 February 1971 – 4 March 1971 (HMAS Sydney)
26 March 1971 – 8 April 1971 (HMAS Sydney)
13 May 1971 – 1 June 1971 (HMAS Sydney)
20 September 1971 – 16 October 1971 (HMAS Sydney)
26 October 1971 – 18 November 1971 (HMAS Sydney)
24 November 1971 – 17 December 1971 (HMAS Sydney)
14 February 1972 – 9 March 1972 (HMAS Sydney)
1 November 1972 – 30 November 1972 (HMAS Sydney)

Mr Knape stated that before joining the navy he had a happy childhood with no emotional problems, but his current psychiatric condition was caused by his experience of being below deck while at anchor in Vung Tau harbour on HMAS Sydney (which transported troops and supplies to and from Vietnam) and HMAS Stuart (which provided escort duties to HMAS Sydney). The first two voyages to Vietnam on HMAS Melbourne did not enter Vung Tau harbour. He said that during his voyages to Vietnam he was working in the boiler room. When in Vung Tau harbour during the loading and unloading process, scare charges (small hand-held explosives, similar to hand grenades, that are designed to protect the ship from underwater attack by enemy divers, and are activated by removing a pin and throwing the device into the water) were being detonated intermittently as part of the security measures to keep enemy divers from approaching the hull of the vessels. Mr Knape stated that he has never seen a scare charge but was aware from briefings before each voyage to Vietnam that they would be thrown intermittently from the ship or from patrolling boats.
Mr Knape explained that he could hear loud explosions when in the boiler room but was unable to determine whether the explosions were from the scare charges or from enemy action such as mines, and could not see what was happening. He said that he was frightened and was particularly conscious of the danger to himself because he would not have been able to escape any breach of the hull as his compartment in the boiler room was sealed for that possibility. He considered his life to have been expendable for the sake of the ship and the rest of the crew.
With regard to the level of threat, Mr Knape said that he felt more vulnerable in HMAS Sydney because it was bigger than HMAS Stuart and presented a larger target. He also said that he felt nervous when anchored in Vung Tau harbour because there were numerous ships (including US ships) and smaller vessels, plus many aircraft flying about. He said that his fear increased, rather than lessened, with each voyage to Vung Tau harbour, and on leaving the vicinity he felt great relief but became anxious and depressed. He stated that in November 1976 he was admitted to a naval hospital for treatment of anxiety and depression and remained there for about two weeks. Mr Knape said that at the end of 1974 he was serving on HMAS Brisbane and was sent to Darwin to assist with post-Cyclone Tracy clearing of debris.
Mr Knape said that after discharge from the navy he remained depressed. He found work in a number of jobs but experienced nightmares and flashbacks about being locked in a confined space or trapped under water. After attending one ANZAC Day service he resolved never to attend another because it brought back upsetting memories. He was diagnosed with serious heart disease in 2007 and underwent surgery which he said was beneficial.
With regard to alcohol consumption Mr Knape said that he was a light drinker before enlisting in the navy and his consumption increased between his voyages to Vietnam, which he attributed to the stress of travelling to Vietnam and the knowledge that further voyages to Vung Tau harbour would be required, re-activating the fear of explosives detonating below the water line. He stated that he drank to excess for the remainder of his service in the navy and afterwards, and that this was the reason for the breakdown of his first marriage in 1988. He explained that he promised his second (and current) wife when they decided to marry that he would cease drinking alcohol and he has kept that promise since the marriage in 1990.
Mr Knape said that he first sought treatment for his emotional state at his wife’s suggestion in 2000 because he was moody, irritable, short-tempered and had suicidal thoughts. He was referred to Dr M van der Linden, consultant psychiatrist, whom he continues to see every six weeks.
Under cross-examination Mr Knape agreed that he enjoyed his service in the navy and had a good record of promotions, reaching the rank of Petty Officer in 1977, with no disciplinary action against him at any time. He described a satisfying career as a marine engineer and took pride in his exacting and important work in the boiler room of the various ships. He also agreed that at the end of his initial nine-year engagement in 1974 he re-engaged for a further three years, after which he applied for a further eight years, which would have taken him to 20 years and a generous pension. He explained that in 1979 he sought a discharge because his marriage had broken down and he felt unable to cope at home or at sea, so he decided to try some other line of work. He agreed that his duties in the boiler room required him to work for four hours at a time, then have eight hours off, during which he would undertake normal activities such as resting, eating meals and performing domestic tasks, even during Defence Stations in Vung Tau harbour, which was a higher degree of readiness than normal cruising, and required all personnel to be assigned a Defence Station.
Mr Knape conceded that his recollection of the voyages to Vietnam and of anchoring at Vung Tau harbour more than forty years ago was not good, although he agreed that his primary concerns about his safety in Vung Tau harbour were from the throwing of scare charges rather than any risk of harm from aircraft or enemy firing or mines. He agreed that because of briefings before each visit to Vung Tau harbour he was aware of measures taken by the Australian authorities to protect the ships from harm. However he said that ironically this caused him to be particularly fearful because such action highlighted the genuine risk of harm to the ships as large targets, and the frequency of visits did not diminish his fears.
Mrs V Knape told the Tribunal that she first met Mr Knape at secondary school and they were married in 1990 after his divorce. She said that they had worked together in the mid-1980s and she was aware that he was a heavy drinker, but confirmed that he had ceased to drink prior to their marriage. Mrs Knape stated that before the marriage she observed him to be moody, depressed, tearful, irritable, short-tempered and had difficulty sleeping. She said that he told her about nightmares in which he was drowning, and she was sufficiently concerned about his emotional state that in 2000 she convinced him to seek medical attention including psychiatric treatment.
In a written report dated 30 June 2000 Dr van der Linden said that he first saw Mr Knape on 6 June 2000. He took a history of Mr Knape generally coping well in the navy until he was involved in duties that involved transporting Australian troops to and from Vietnam. Dr van der Linden stated that Mr Knape was fearful working in the boiler room with no means of escape, and was terrified when he heard noises such as jet aircraft flying overhead and scare charges being dropped. Dr van der Linden concluded that while serving on HMAS Sydney Mr Knape slowly developed a mixed anxiety and depressive disorder which worsened over months, and Mr Knape treated his symptoms by drinking alcohol whenever he was on shore leave. His depression continued after discharge from the navy. Dr van der Linden diagnosed PTSD with depressed and anxious mood and co-morbid major depression, all of which were service-related.
In a report dated 16 July 2002 Dr L Walton, consultant psychiatrist, took a history of Mr Knape being anxious and terrified during his visits to Vung Tau harbour because of the detonation of scare charges, as he was located in the boiler room below the water line and was not sure whether the explosions were friendly or from the enemy. Dr Walton diagnosed PTSD with depressive symptoms as a result of experiences in Vietnam, although he had some doubt about the threshold criteria of the objective component of experiencing a severe stressor as defined in the relevant SoP, as well as the subjective component, but expressed the opinion that Mr Knape would seem to meet the clinical criteria.
In a further report dated 11 July 2011 Dr Walton confirmed his previous diagnosis although he maintained that Mr Knape was not exposed to a qualifying traumatic event.
In a report dated 12 September 2010 Dr C Newlands, consultant psychiatrist, took a history of lowered and depressed mood, irritability, nightmares, anxiety and impatience. She noted that the claimed stressors were the dropping of scare charges, aircraft activity around the ship, and the knowledge that HMAS Hobart had been hit by US fire causing casualties. Dr Newlands stated that, although Mr Knape was frightened while working in the boiler room and hearing noises, the ship did not come under fire and he did not meet the objective diagnostic criteria for the necessary stressors for a definition of PTSD. She suggested that a dysthymic (or depressive) disorder might be a more appropriate diagnosis, although there would be a question mark as to whether Mr Knape met the objective component of the criteria for the necessary stressor or stressors.
In a report dated 21 July 2011 Dr A Kaplan, consultant psychiatrist, diagnosed PTSD on the basis of a traumatic event in that Mr Knape believed his experiences caused him to feel threatened with death or serious injury, and was aware that a US pilot had accidentally bombed a US ship. Dr Kaplan also stated that Mr Knape’s excessive alcohol consumption was related to his experiences during naval service. He told the Tribunal that clinical onset of PTSD was probably within a reasonably short period after the final voyage in 1972. Dr Walton noted the hospital admission in November 1976 for depression and anxiety, and a further episode in 2000 which led to the referral to Dr van der Linden, and stated that Mr Knape would possibly have an additional diagnosis of major depressive disorder (clinical onset possibly 1976) which is in remission because the condition is being treated by medication and consultation with Dr van der Linden.
Under cross-examination Dr Kaplan agreed that a serious heart condition such as cardiomyopathy suffered by Mr Knape in 2007 may cause anxiety and symptoms of depression, but said that Mr Knape did not seem pre-occupied by his physical conditions. Dr Kaplan was unable to draw a conclusion about any relationship between the hospital admission in 1976 and Mr Knape’s voyages to Vietnam, and said that the admission might have been an aggravation of PTSD or a separate psychiatric condition.
In a report dated 13 August 2002 on behalf of Writeway Research Services Pty Ltd Mr H Josephs explained that Operation Awkward is the name given to a series of defensive measures taken to defend a ship in harbour against the possibility of underwater attack, particularly from divers with explosive devices. The measures included armed patrols from the deck and by boat, underwater searches by the ship’s divers and the throwing of scare charges from the ship or from patrolling boats. He said that a scare charge was a one-pound (450 gram) demolition device, usually fitted with a demolition fuse and designed to explode at a depth of 6 metres. Scare charges were a major deterrent to enemy divers. On board a ship the sound of a scare charge was a loud thud but varied depending on distance from the ship, depth of water, depth of the explosion and characteristics of the sea bed. Mr Josephs emphasised that the sound is much sharper and louder in compartments below the water line, and, if a scare charge was dropped too close alongside the ship (as sometimes happened), the sound could be frighteningly loud particularly in compartments on or below the water line. He noted that deployment of scare charges at irregular intervals was an important tactical element of the procedure.

In relation to activity in Vung Tau harbour, Mr Josephs said that HMAS Sydney remained at anchor for loading and unloading for 12 daylight hours or less, and its escorts (including HMAS Stuart) did not remain in the harbour overnight on any of the visits involving Mr Knape. HMAS Sydney was never fired upon and none of the official records showed any fear of attack by allied or enemy aircraft, even though there may have been instances when an allied aircraft flew overhead. He added that HMAS Sydney was a double-hull vessel in which the boiler rooms were situated within the inner hull and thus protected from external impact by surrounding water and fuel tanks. These would have provided a barrier to the concussion of closely deployed scare charges and more powerful explosions.
In assessing whether Mr Knape was exposed to a traumatic event as required in the definition of PTSD, the Tribunal takes into account that he did his best to recall events that occurred more than forty years ago, and his concession that his memory is somewhat unreliable. The Tribunal accepts that Dr van der Linden diagnosed PTSD on the basis of a history of Mr Knape being terrified when he heard noises such as scare charges. Dr Walton diagnosed PTSD on the basis of Mr Knape not knowing whether the explosions he heard were from scare charges or were the result of enemy fire, although Dr Walton expressed doubt as to whether the objective component of experiencing a severe stressor had been met. Dr Kaplan diagnosed PTSD on the basis of a traumatic event being Mr Knape’s belief that his experiences caused him to feel threatened with death or serious injury. Dr Newlands concluded that PTSD was not an appropriate diagnosis because of doubts that Mr Knape’s experiences met the objective criteria.
Despite stating in various documents that while in Vung Tau harbour he was fearful of events such as aircraft flying over his ship and possible accidental attack by friendly forces, Mr Knape’s primary assertion is that at various times during the 12 voyages to Vung Tau harbour between 1967 and 1972 his overall fear from the throwing of scare charges when his ship was at anchor was a traumatic event for the purposes of the definition of PTSD. Mr Knape was unable to nominate particular dates and times or the ship involved. On his own evidence scare charges were dropped intermittently in accordance with Operation Awkward which was designed to protect the ship and its company.
Mr Knape worked a four-hour shift in the boiler room and was free to carry out his routine of domestic tasks and recreational activities away from the boiler room for the next eight hours after his shift ended, despite the ship being at Defence Stations while in Vung Tau harbour. The ship anchored for periods of 12 hours or less during each visit, so there must have been occasions during his voyages to Vung Tau harbour when he did not feel at risk of harm, given that scare charges thrown intermittently from the ship during these eight-hour periods would not have caused a loud noise (if he heard them at all). For these reasons the Tribunal concludes that Mr Knape has not identified an event, but merely a series of dates extending over a period of five years during which he said that his fear was experienced when his ship anchored in Vung Tau harbour.
The Tribunal accepts that, on a subjective basis, Mr Knape was fearful about hearing explosions that were in fact scare charges. However on an objective basis he knew about the scare charges from regular briefings; the charges themselves contained only a small amount of explosive that would not damage a ship such as HMAS Stuart or HMAS Sydney; scare charges were thrown intermittently as part of normal security arrangements; no attack on either ship occurred; and he was not present in the sealed environment of the boiler room for extended periods. Therefore the Tribunal concludes that he did not experience, witness or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of him or others.
In any event, Mr Knape gave evidence that he was happy working in the boiler room of the various ships and took pride in his work. He was well regarded by his superiors and achieved a number of promotions. No disciplinary action was taken against him in his 14 years in the navy. When his first term of engagement expired he sought re-engagement for three years and then for a further eight years. Although Mr Knape gave evidence that after leaving Vung Tau harbour he was relieved to be leaving the war zone, there was no indication from his evidence or from contemporaneous records that at any time before or after each voyage to Vung Tau harbour he expressed concern to anyone about his personal safety or the risk of harm to others arising from the throwing of scare charges. In 1976 when he was admitted to hospital for depression and anxiety the official records refer to family difficulties and physical illnesses or conditions as well as psychological symptoms, but there is no mention of fears arising from voyages to Vung Tau harbour several years previously. Therefore the Tribunal concludes that Mr Knape’s response did not involve intense fear, helplessness or horror.
For these reasons the Tribunal finds that Mr Knape has not been exposed to a traumatic event and is reasonably satisfied that he does not satisfy the criteria in DSM-IV for a diagnosis of PTSD, so there is no need to determine whether this condition is war-caused.

DOES MR KNAPE SUFFER FROM ANY OTHER PSYCHOLOGICAL CONDITION, AND, IF SO, IS THAT CONDITION WAR-CAUSED?

In McKerlie v Repatriation Commission [2010] FCA 1127 Besanko J stated at [45]:
In my opinion, in addition to determining the case expressly articulated by the applicant, the Tribunal was bound to consider and determine if the applicant suffered from the symptoms of which he complained and whether those symptoms constituted a disease within the VE Act. If they did, the Tribunal was bound to undertake the process identified in Deledio…
Dr Newlands suggested that dysthymic (or depressive) disorder might be an appropriate diagnosis, while Dr Kaplan suggested a major depressive illness, although he preferred to consider this as an additional diagnosis. Dr van der Linden referred to a co-morbid major depression in addition to PTSD. Dr Walton mentioned depressive symptoms that accompanied PTSD. On all the medical evidence the Tribunal is reasonably satisfied that the appropriate diagnosis is depressive disorder.

IS DEPRESSIVE DISORDER WAR-CAUSED?

Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Knape has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
In relation to the first step from Deledio, after considering evidence from Mr Knape, Mrs Knape and the psychiatrists, the Tribunal determines that the material points to a hypothesis connecting the depressive disorder with the circumstances of the particular service rendered by Mr Knape. Therefore he satisfies the first step.
In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 27 of 2008 concerning Depressive Disorder. Therefore he satisfies the second step.
In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Knape and the medical evidence. The Tribunal considers that the hypothesis linking his operational service with his depressive disorder is a reasonable one. Therefore Mr Knape satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Knape’s depressive disorder was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
Factor 6 of SoP Nº 27 of 2008 states:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person's relevant service is:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder;or
…
(vi) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or
…
Paragraph 9 of the SoP states:
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;
There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is aclinical onsetof a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
In respect of clinical onset of depressive disorder, Dr Walton stated in his 2002 report that clinical onset of Mr Knape’s psychiatric condition occurred in 1976 when he first sought treatment in a naval hospital. Dr Kaplan noted that Mr Knape commenced treatment with Dr van der Linden in 2000 but stated that the period soon after the final voyage to Vung Tau harbour in 1972 or the hospital admission in 1976 might be an appropriate date for clinical onset. On the medical evidence the Tribunal finds that the clinical onset of depressive disorder occurred in November 1976 when Mr Knape became aware of the features or symptoms which later enabled a medical diagnosis of his condition and treatment to commence.
In view of this finding, the Tribunal is limited to considering claimed stressors that occurred within five years before the clinical onset of the condition, which means that only the following four voyages on HMAS Sydney between November 1971 and November 1972 are relevant:

26 October 1971 – 18 November 1971
24 November 1971 – 17 December 1971
14 February 1972 – 9 March 1972
1 November 1972 – 30 November 1972

In Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Federal Court approved the decision in Stoddart v Repatriation Commission [2003] FCA 334. The Court held at [140]:
…It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to Mr Woodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more "events" which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of "experiencing a severe stressor" in the SoP in relation to the incident on patrol.
In Delahunty v Repatriation Commission [2004] FCA 309 Tamberlin J said at [27]:
…While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
In assessing the claimed stressors relating to the throwing of scare charges, the Tribunal takes into account the time that has elapsed since 1971 and the admission by Mr Knape that his recall of events of his voyages to Vung Tau harbour is not good. The Tribunal accepts that during the four voyages in question Mr Knape was apprehensive about his safety, despite the precautions taken by Australian and US authorities to protect HMAS Sydney in the harbour during its brief visits. The Tribunal accepts that the elaborate and extensive measures taken, including Operation Awkward, may have reinforced to Mr Knape the extent of the dangers and risks involved in entering a war zone, particularly with a large ship as a potential target.
For reasons already described in relation to the question of diagnosis, the Tribunal accepts that, subjectively, Mr Knape perceived that there was a risk to his safety from being in Vung Tau harbour and experiencing the sound of explosions from the throwing of scare charges in 1971 and 1972. However Mr Knape has not particularised the details of the perceived threats to his safety on these voyages other than to say that he was scared when he heard explosions that in fact were scare charges at some time when HMAS Sydney was anchored in the harbour. Objectively, by November 1971 he had made ten voyages to Vietnam including eight to Vung Tau harbour; he had received many briefings on the throwing of scare charges; he was aware of extensive security measures in Vung Tau harbour; he had served in the navy for six years and had had four years of work experience before joining the navy; he did not raise any concerns about fears arising from scare charges; he did not spend more than four hours at a time in the boiler room while in Vung Tau harbour and was able to resume normal duties at the end of each shift; and his work performance during this period appears to have continued to be of a high standard.
For these reasons the Tribunal finds that when applying the subjective and objective test Mr Knape did not experience a life-threatening event (paragraph (a) of a category 1A stressor), and paragraphs (b) and (c) do not apply. The Tribunal is satisfied that none of the concerns described by Mr Knape during the four voyages to Vung Tau harbour constitutes a severe traumatic event as defined in the SoP, and none was a category 1A or category 1B stressor. Although Mr Knape gave evidence that he experienced marriage difficulties before he left the navy in 1979, and in the hospital records of November 1976 there is reference to problems with his family life, on all the material the Tribunal finds that he did not experience a category 2 stressor within the one year before the clinical onset of depressive disorder.

Therefore Mr Knape does not satisfy factors 6(a)(ii), (iii) or (vi) of the SoP and does not satisfy the fourth step. The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Knape’s depressive disorder was war-caused.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

................................[sgd Michael Heffernan].....................................

Associate

Dated 9 March 2012

Dates of hearing	1 and 2 March 2012
Counsel for the Applicant	Mr A Larkin
Solicitors for the Applicant	Williams Winter
Counsel for the Respondent	Mr G Purcell
Solicitors for the Respondent	Department of Veterans' Affairs