Ducat and Repatriation Commission - [2002] AATA 314

DECISION AND REASONS FOR DECISION [2002] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/970

VETERANS' APPEALS DIVISION          )
           Re      AUTHUR JOHN DUCAT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date7 May 2002
PlaceBrisbane

Decision      The Tribunal decides: (a)    the decisions under review are set aside and substitutes therefore a decision that the applicant's conditions of: (i)        Alcohol Abuse or Dependence; (ii)           Generalised Anxiety Disorder; and (iii)    Depressive Disorder are war-caused.   (b)       The matter is remitted to the respondent for assessment of the degree of incapacity caused by the accepted disabilities.
  (Sgd) K L Beddoe
  Senior Member
Decision No 314/2002
CATCHWORDS
VETERANS' AFFAIRS – disability pension - war caused disabilities – Alcohol Abuse, Generalised Anxiety Disorder, Depressive Disorder
Veterans' Entitlements Act 1986 s 7A(1A), 7A(1)(a)(iii)

Gorton v Repatriation Commission [2001] FCA 1194
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

7 May 2002 Mr K L Beddoe, Senior Member

A delegate of the respondent, by decision dated 26 November 1999, refused the applicant's claim for disability pension and medical treatment for anxiety, depression, stress (later diagnosed as anxiety disorder, major depressive disorder and alcohol abuse) and gastro-oesophageal reflux disease. The applicant's claim for alcohol abuse, major depressive disorder and anxiety disorder were refused on the ground that the conditions were neither war nor defence caused, and the claim for gastro-oesophageal reflux disease was refused on the ground that the condition was not present in the applicant.
The applicant sought a review under Veterans' Entitlements Act 1986 ("the Act") by letter which was received by the respondent on 20 December 1999.
At the hearing by the Board, the claim with regard to gastro-oesophageal reflux disease was withdrawn. By a decision dated 25 August 2000, the Veterans' Review Board consented to the withdrawal of gastro-oesophageal reflux disease from its consideration and affirmed the decision under review in relation to anxiety disorder, major depressive disorder and alcohol dependence or alcohol abuse. The applicant lodged an application for review in this Tribunal dated 9 October 2000 and received in the Tribunal on 16 October 2000. The matter was heard by me at Townsville on 18 September 2001.
Mr Honchin represented the applicant and Mr Stoner represented the respondent. Dr Likely, Consultant Psychiatrist; Dr Richards, Psychiatrist; and the applicant gave evidence at the hearing. The documentary evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" Documents), and a number of exhibits tendered as follows:

Exhibit A – Statement by Authur John Ducat dated 1 February 2001
Exhibit B – Report by Dr Michael Likely, Consultant Psychiatrist, dated 9 May 2001
Exhibit C - DSM-IV – Diagnostic an Statistical Manual of Mental Disorders Fourth Edition
Exhibit 1 – Report by Dr Wilfred Richards, Psychiatrist, dated 8 March 2001

The applicant served in the Australian Army from 3 July 1967 to 2 July 1989. His eligible war service (which is also operational service) was from 2 June 1971 to 9 March 1972 in Vietnam. The applicant also had defence service from 7 December 1972 until his discharge date.
In respect of the applicant's operational service, subsections 120(1) and 120(3) of the Act apply. The Tribunal is required to find that the applicant's claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the particular service rendered. Sub-sections 120(1) and 120(3) of the Act follow:
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A."
In respect of the applicant's defence service, subsection 120(4) of the Act applies:
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.
In summary, subsection 120(4) requires that the Tribunal decide all relevant matters to its reasonable satisfaction. That is, this Tribunal must decide whether, on the balance of probabilities, the claimed conditions were defence-caused.
Subsections 120A(1) and 120A(3) make it necessary, for a claim made on or after 1 June 1994 relating to a veteran's eligible service, to consider any hypothesis connecting a veteran's service with particular diseases, injuries of death against any relevant Statements of Principle (SoPs) issued by the Repatriation Medical Authority ("the RMA"). The SoPs set out the minimum factors relating to service that must exist in order to establish a causal connection between particular condition, injuries or death and service. Section 120A is set out as follows:
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).
(2)       …….
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
          (a)       a Statement of Principles determined under subsection 196B (2) or (11); or
          (b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be.

Applicant's Case

In his statement the applicant stated that he arrived in South Vietnam in 1971. As a Lance Corporal in the Australian Army his duties included being responsible for convoys of about three to five vehicles although at times he was in command of convoys of 20 or more vehicles.
During his posting to South Vietnam, the applicant recalled three particular events (the relevant events) which caused him to feel anxious and stressed. On one occasion, the applicant was leading a convoy through a rubber plantation and was sitting in the lead open Landrover which was fitted with a machine gun, and carried, apart for the driver and himself, two gunners, M16's and a M79. In his oral evidence, that applicant stated that the convoy was returning to Nui Dat after picking up New Zealand troops.
He had been briefed that the road had been mined one to two days previously and already a vehicle had been destroyed by mines on that road. Flack jackets were provided but were placed on the floor of the vehicle to protect from mine detonations. In addition, the vehicles had to pass through enemy "fire lanes" which allowed the enemy to attack vehicles but did not allow for easy means of countering such attacks. The applicant had also been warned about local villagers, including children impeding the passage of vehicles and the potential for ambush.
The applicant stated that on entering the rubber plantation, he was "in a high state of readiness and felt very anxious." Whilst in the plantation, he heard a loud bang within approximately 50 meters and his vehicle swung off the road. All other vehicles did likewise and the troops established defensive perimeters around the vehicles. He radioed to base that they were in an ambush situation and maintained radio contact until the convoy was on its way again.
The applicant stated that he was later advised that a tyre on one of the vehicles had blown, but he still does not know if this was the result of enemy action or not. During the five to ten minutes it took to change the tyre, the applicant thought of all the possibilities of the situation and how long it would take for help to arrive. He did not know the size of the enemy force in the plantation and was located in the lead vehicle away from the others. This incident caused him to experience intense horror and helplessness as well as anxiety and stress.
The second incident occurred when the applicant was based in Vung Tau. He stated that he "took a convoy of about 20 vehicles to a Fire Support Base ("FSB") to assist in its relocation and staying overnight in Nui Dat". Approximately half the vehicles were loaded with new supplies. The rest were empty to enable the existing FSB to be relocated. The applicant was travelling with the empty vehicles to the old FSB to assist in its dismantling, standing "atop" with a full view of the surrounding area. He heard two or three shots about 150 to 200 meters away.
The applicant was not wearing any body armour or other protection and immediately grabbed his rifle and sought cover under his vehicle. He could not see what was happening from this position. After about ten minutes the "all clear' was given. The applicant stated that no explanation was provided as to what had happened, in particular whether it was friendly or enemy fire.
The applicant stated that: "[d]uring this incident I had a feeling of vulnerability and hopelessness and that I had no control over the situation." Although the applicant was responsible for the safety of his troops, in this situation, others were responsible for the safety of the FSB. The applicant continued:
"I was keyed up and anticipating just about anything, particularly since we were unable to see what was going on. When the shots were fired I immediately thought I was the target since I was out in the open and visible for all to see on top of the vehicle."

It was submitted that this incident caused the applicant to feel intense horror, fear and helplessness and again anxiety and stress.
The applicant told the hearing that the third incident argued to have made the applicant feel anxious and stressed involved his being required to spend a night on patrol in a grave yard, sleeping atop a grave. These incidents occurred in the early months after his arrival in South Vietnam.
In his statement, the applicant advised that before he went to Vietnam, he drank one or two beers on a Friday night after work and some on the weekend. However, by the time he left Vietnam he was consuming approximately 12 cans of heavy beer per night as well as spirits. He stated that he had not regularly consumed spirits before going to Vietnam. In cross-examination he added that he could not legally drink in Australia because of his age.
He initially spent time at the "boozer" to gain information from more experienced troops about operating procedures and how the enemy operated, to "fit in" and, the applicant stated, he " felt great relief to talk to other soldiers about my and their experiences and doing this while consuming alcohol appeared to assist in my ability to cope with it."
Alcohol was said to be cheap in South Vietnam – five to 10 cents a can and half price or free on the last Sunday of each month. He could not recall when he started drinking up to 12 cans a night. The applicant stated that his consumption varies depending on whether he is "having a bad week or not" but he has not stopped drinking for any period. He told the hearing that he now drinks between 12 and 15 cans (2 cartons of beer every three days) and that his consumption has been increasing over recent years.
The applicant told the hearing that drinking "allowed us to get it off our system". He stated that his sleep patterns changed so that he had less sleep, maybe only a few hours a night. He added that the first six months after leaving South Vietnam were not bad, but after that he started to have "flash back dreams", that he became aggressive and had counselling. He married in 1972, and although it was good at first, his drinking interfered. In cross-examination, the applicant said that he had put his name on a data base of former soldiers willing to go to East Timor "just in case".
The applicant said that:
"Following the rubber plantation incident I am very tense when I get near similar places here in Australia. The area around Innisfail and Shoalwater Bay are particularly disturbing. I also get the same feelings when near pine forest stands because of the similar fire lane effects that are produced by the way they are planted."
When he first visited Dr Likely, the applicant stated, he did not open up to the doctor, but did so after his second visit. Since October 1999, the applicant stated, he has recalled other events and has spoken to Dr Likely about these.
The applicant's representative relied on diagnoses made by Dr Likely to support the contention that the applicant currently suffers from Alcohol Abuse or Dependence, Anxiety Disorder (Unspecified), and Depression.
Dr Likely provided a report dated 9 May 2001 (Exhibit B) after examining the applicant on the same day. Dr Likely stated in this report that prior to preparing this report, he had read a report by Dr Richards dated 8 March 2001, the applicant's statement at Exhibit A, and reviewed his clinical notes on the applicant including a previous report he had prepared on the applicant dated 7 October 1999.
In his report, Dr Likely noted the three events the applicant had advised the hearing had caused him stress and anxiety and he stated that the applicant had elaborated these incidents to him. Dr Likely stated that he had "no doubt that these incidents were personally stressful" (Dr Likely's emphasis) adding that these events caused the applicant intense distress at the time and "continue to preoccupy [the applicant] to this day". Dr Likely referred to the situation of the applicant having to sleep in a graveyard and stated that "[t]his incident was experienced with intense feelings of revulsion by him".
Dr Likely said that the applicant continually told him throughout his clinical contact with him that each time he participated in any convoys outside the safety of the camp, he was intensely fearful, keyed up and on edge. The applicant told him that "he would travel in the landrover part of the convoy, the landrover being armed with radio and machine gun". He stated that his made him feel particularly vulnerable since "with one hit they could take out the communications and the main fire power'". In addition, the applicant described to him intense feelings of anxiety arising at the time of his service in South Vietnam.
In his report, Dr Likely stated that the applicant advised that he began to drink heavily in Vietnam to self medicate his symptoms of anxiety. From the applicant's clinical history, Dr Likely detected:
"the presence of significant symptoms of anxiety (apprehension, worry, being keyed up, muscle tension, headaches and having difficulty controlling worry) together with symptoms of depression (dysphoric mood, poor sleep, irritability, poor concentration, social withdrawal, anhedonia) present since the time of his service in Vietnam, These have waxed and waned ever since but have inevitably caused [the applicant] both subjective distress and impairment in functioning. They contributed to the demise of his marriage and did not arise because of it in my opinion as Dr Richards contends in his report. [The applicant's] use of alcohol has maintained more or less steady. He continues to drink approximately five cartons of mid strength beer each week (ie at least five times the recommended sate weekly maximum)."

Despite treatment with pharmacotherapy and psychotherapy by Dr Likely, Dr Likely included in his statement that the applicant remains symptomatic of depression and anxiety with respect to his depression, anxiety and alcohol use. Dr Likely further stated:
"I am of the unequivocal opinion that [the applicant] has suffered from major depressive disorder which arose at the time of his service in Vietnam. This may well have been exacerbated by the factors suggested by Dr Richards (ie "the end of his service career, continued drinking and marriage breakup") but from the history that [the applicant has given me they clearly ante-dated these events. [The applicant] suffered significant symptoms of anxiety at the time of his service in Vietnam which persist to this day. These are being perpetuated by his use of alcohol although I would regard his major depressive disorder, anxiety disorder and alcohol abuse as being three separate disorders, all of which have arisen as a result of his service in Vietnam."

In his oral testimony, Dr Likely iterated his diagnosis of Major Depressive Disorder, Anxiety Disorder not specific and Alcohol Abuse the onset of all of which was soon after the applicant returned from South Vietnam. He states that the DSM IV did not require the presence of a stressor to substantiate these diagnoses. He also stated that the fact that the applicant had volunteered to go the East Timor, could be explained by the applicant's condition and his desire for camaraderie.
Under cross-examination Dr Likely revealed that two-thirds of his patients were veterans. He explained that the symptoms of disturbance were present even though the applicant did not speak of "stressors". The applicant's history showed a number of disciplinary problems as well as problems with the applicant's marriage, and problems in his workplace due to his irritability with other staff.

Dr Likely stated that he needed three to four sessions with a patient to get a thorough history. It was submitted that it was not unusual for a person with psychological or psychiatric problem to deny having problems. For this reason, Dr Likely's first two reports on the applicant were quite different. However, it was submitted that Dr Likely did not require a history of the events to diagnose the applicant's conditions.
It was submitted that the diagnosis of Alcohol Abuse or Dependence seemed clear with onset being during the applicant's time in South Vietnam. SoP No 76 of 1998 was satisfied. It was argued that factors 5(a) - suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse - was satisfied as the applicant was suffering from a general anxiety/depressive disorder at the time. It was also contended that paragraph 5(b) – experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse – was satisfied by the effects of the relevant three events. The applicant was fired upon and this according to the definition of events that qualify as severe stressors was sufficient.
SoP No 58 of 1998 was the relevant SoP with regard to the applicant's Depressive Disorder, it was claimed. It was submitted that the factors at paragraph 5( b) - experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder- and 5(c) -having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder - were satisfied. Again the stressors, it was argued, had been identified as the relevant events.
Dr Likely's evidence was that the applicant's history indicated that the applicant showed symptoms of depressive disorder during or immediately after his time in South Vietnam.
It was argued for the applicant that he suffers from Anxiety Disorder (Unspecified), not generalised anxiety disorder and relies on DSM IV ICD Code 300.00 (Exhibit C) in support of this contention. It was submitted that the DSM expresses the view that anxiety disorder (unspecified) includes disorders with prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder. Further the DSM includes "situations in which the clinician has concluded that an anxiety disorder is present but is unable to determine whether it is primary, due to a general medical condition or substance induced." However, it was not submitted that the diagnosis in the applicant's case is so based.
It was argued that only the time of onset of the applicant's Anxiety Disorder was in contention. By reference to the relevant events, to the applicant's changed sleep patterns and Dr Likely's opinion that the applicant exhibited significant symptoms of anxiety present since the time of his service in Vietnam, it was submitted that SoP No 1 of 2000 (in particular paragraph 5(a) (ii) – experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder ) was satisfied .
Respondent's Case
It was contended for the respondent that Repatriation Commission v Keeley (2000) 98 FCR 108 stands for the principle that a claimant possesses an accrued right to have that claim determined according to the SoP that was in force at the time of the determination of the respondent as determined by the full Court of the Federal Court in Gorton v Repatriation Commission [2001] FCA 1194. The latter case also provides authority for the proposition that the SoP to be applied upon on review of a decision of the respondent is the instrument that is in force at the time this Tribunal makes its determination. However, the ratio in Gorton does not detract from the substantive right identified in Keeley, rather its effect is to modify the application of SoP's from a procedural point of view.
In his report dated 8 March 2001 (Exibit1), Dr Richards stated that he examined the applicant on 28 February 2001 at the request of the respondent. After this interview, Dr Richards opined that "a diagnosis of Alcohol Abuse is tenable." (Dr Richards emphasis). In addition, he diagnosed the applicant as having an Adjustment Disorder with mixed anxiety and a depressed mood. Dr Richards stated that the applicant "suffered significant anxious and depressive symptoms over recent years but I would related these chiefly to the end of his service career, continued drinking, and marriage break-up."
Dr Richards based his diagnosis on the information he had elicited from the applicant and concluded:
"[The applicant] has been a career soldier and gives a history of regular heavy drinking since the days of his Vietnam service. For several years after his return from South Vietnam his drinking could have interfered with his army career but he was able to reduce consumption without medical intervention and elect retirement after 22 years service. It appears to have been one factor in the break-up of his marriage. No alcohol determined organic disease has yet been diagnosed but I think his longterm heavy drinking is largely responsible for any anxious or depressive symptoms he now suffers. On this basis a diagnosis of Alcohol Abuse is tenable. The Veterans' Review Board has already determined that the criteria for "Severe Stressor" required by the Statement of Principles have not been met"

In his testimony Dr Richards stated that he agreed with the diagnosis of Alcohol Dependency. He stated that drinking has many causes and with the applicant it began in South Vietnam and continued on his return to Australia. It was endemic in the forces. He further stated that being away from home is stressful and the applicant was in an all-male society.
Dr Richards told the hearing that stress can make one drink but that does not bring about abuse. That could be caused by serious stressful events, including serious minor stresses or personality weakness. However, Dr Richards stated that the effect of SoP No 1 of 2000 was that the sufferer must seek help.
Dr Richards said that the applicant suffered an overt anxiety disorder in recent times. He stated that the events reported to Dr Likely and included in Dr Likely's report at page 2 were inconsistent with what the applicant had told him. However, he also stated that the related incidents were situations where the applicant was probably scared.
It was argued for the respondent that evidence with regard to the applicant's level of alcohol consumption was unsatisfactory. It was also submitted that the applicant could not reach the standard required by the relevant SoP -Instrument 76 of !998. In particular, it was contended that the applicant relying on paragraph 5(a) – suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; and/or paragraph 5(b) – experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse, could not succeed.
With respect to paragraph 5(a) it was argued that there was no evidence that the applicant was suffering a psychiatric disorder at the time of onset. The applicant increased his drinking from the time he arrived in South Vietnam. The "boozer" was the place to be. After the incident in the rubber plantation the applicant merely followed his usual after work routine and went for a drink.
With respect to paragraph 5(b), although this was more likely, the events related by the applicant did not meet the definition of "experiencing a severe stressor" in paragraph 8 of the SoP:
"…, 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."

Such events 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. It was argued that being fired upon by the enemy was insufficient to meet this definition.
It was submitted that none of the stressors identified by the applicant was sufficient to bring the applicant within the relevant SoP's. The stressors and definitions in the SoP's, require a particular level of event and level of response to that event which the applicant did not meet. In addition, it was submitted that the clinical onset of the applicant's conditions was after he had returned from South Vietnam. It was six months later that he started having flashbacks, became moody and exhibited other symptoms.
It was contended that the applicant's credit was in issue as the first history he gave to Dr Likely differed from later histories.
Consideration
Both parties have provided arguments regarding which SoP, if any should apply to the three conditions claimed by the applicant. Both parties have agreed that the relevant SoP for the agreed condition "Alcohol Dependence or Alcohol Abuse" is Instrument No 76 of 1998. There has been no further SoP published with regard to this condition.
In Gordon v Repatriation Commission [2001] FCA 286, Stone J stated at paragraphs 23 and 24:
"In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT,
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."
24 The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislation to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83. "

I accept Dr Likely's explanation of the reason for applicant's volunteering for service in East Timor. The explanation is plausible and understandable in a person who has evidenced even during his married life, the preference or need (I am not in a position to state which) for the exclusive company of service personnel or in the alternative, preferred no company at all as provided by Dr Richard's report.
The representative for the respondent questioned the credit of the applicant by reference to a variation in history given to Dr Likely during different consultations. I accept the explanation offered by the applicant's representative that a person will not necessarily open up to a psychiatrist on the first or second appointment. Indeed Dr Likley stated that it generally takes three or four interviews for this to begin to happen. In particular, I note that a person with a psychological or psychiatric condition may have difficulties in understanding their condition and the reasons behind it let alone express those to a stranger, albeit a medical specialist. I am also satisfied that Dr Likely did not require knowledge of the relevant events to diagnose the conditions the applicant is suffering although they are pertinent to these proceedings. In my view the evidence of Dr Likely raises an hypothesis that is neither tenuous or fanciful and I so find.
Dr Richards saw the applicant on one occasion only. He had not built up a rapport, as had Dr Likely, with the applicant and it is understandable that the information the applicant would have provided to Dr Richards may have lacked the details, the finer emotional clues, or identified feelings as related to Dr Likely.
The wording of the SoP Instrument No 76 of 1998 with reference to "experiencing a severe stressor" is "…an event or events that involved actual or threat of death or serious injury…" not "actual threat of death or serious injury…" (my emphasis). The difference is both technical and interpretative. In the absence of further clarification in the SoP itself, the former wording allows for consideration of threats perceived by a claimant, the latter only allows consideration of situations where, despite what the claimant may believe, he or she is in fact in no danger.
In Binding and Repatriation Commission [2000] AATA 1049, the Tribunal found that the applicant experienced a stressor from below decks of the ship HMAS Sydney moored in Vietnam waters. The applicant in that matter perceived a threat to his physical integrity by his experiences rather than from witnessing or being confronted with threatened death or serious injury. The event in that matter was held to be the days during which the Sydney was in Vietnam waters and anchored in the outer harbour. The Federal Court upheld the Tibunal's decision and the reasoning (Repatriation Commission v Binding [1999] FCA).
The SoP continues "which event or events might evoke intense fear, helplessness or horror". The SoP does not state that the event must evoke such emotions. One wonders what the purpose of including the work "might" accomplishes except to sustain an argument that it is not necessary that these emotions must be aroused for the definition of "experiencing a severe stressor" be met.
From Dr Likely's report and statements during the hearing and from the applicant's own evidence, I am satisfied that at least the first two relevant events, that is the incident in the rubber plantation and the shooting incident while atop the vehicle constitute "experiencing a severe stressor". I find this by considering, in particular with reference to the first incident, the briefing the applicant was given before he set out to pick-up of the New Zealand troops; the fact that his vehicle was open and at the head of the convoy, that the vehicle and its riders were heavily armed; the occupants could not use their flack jackets to ward off enemy fire, and that there was a real threat of being blown up by mines or being shot at at close range.
A tyre blow out in a non-war situation can be traumatic, however, in a war-situation it is reasonably certain that the reaction and co-incident thoughts associated would be severely stressful. In other words, the applicant experienced an event that involved a threat of death or serious injury to himself and his troops that began on entering the plantation and ended on leaving it. This event, as elicited from the applicant by Dr Likely, evoked at least intense fear and a sense of helplessness .
The second incident when the applicant was situated atop his vehicle, although indicating a somewhat blasé attitude given his previous experience is one to which I give credit in relation to the applicant's "experiencing a severe stressor". In this incident, the applicant experienced an event that involved a perceived threat of death or serious injury from gun-fire from an unknown direction and by an unknown gunman. The enemy could have been responsible but no information was provided to provide relief from fears. Again, Dr Likely has obtained a history from the applicant regarding his feelings of stress, anxiety, fear and hopelessness associated with this incident.
However, I am not satisfied that the feelings of "revulsion" reported by the applicant with regard to the incident of sleeping in a graveyard is sufficient to meet the requirements of a "severe stressor".
Dr Richards appears to have accepted that the Veterans' Review Board's opinion was determinative of whether the applicant had been exposed to a "Severe Stressor". I accept that Dr Richards believed that the applicant behaved "in a professional manner" during the three events the applicant contends caused him severe stress. This comment refer to a description of the outward actions of a person, as others see him, and not to how he may have been feeling, which has been provided to Dr Likely by the applicant. However, Dr Richards did acknowledge in his oral evidence that the applicant was "probably scared" during the related events.
In addition, Dr Richards referred to the applicant's drinking in Vietnam because "bars were where all the information was" (Exhibit 1, page2). He also commented that "I gather that among off-duty personnel 'There was no where else to go' and endemic drinking was both recreational and stress relieving." Later in the same paragraph he quoted the applicant as saying 'It was no problem and everybody was having a good time relieving stress and communication'.
Yet Dr Richards has not provided in his report any details of his investigating what the applicant meant by "stress", including any opinion of what might have caused this stress and any assessment of the level of stress which resulted from the applicant's experiences, or the effectiveness of drinking on stress management. He appears to have accepted because the applicant acted in a "professional manner" during the three relevant incidents, he must have coped with the stress of the situations.
In his oral evidence, Dr Richards identified some causes of Alcohol Abuse. However, he did not assign any of these causes to the applicant and therefore, I have relied on Dr Likely's conclusions on this matter. That is, I am satisfied that the applicant suffers from the condition Alcohol Abuse and that this condition had its genesis in conditions in which the applicant experienced severe stressors during operational service in South Vietnam.
The relevant SoP for Anxiety Disorder is No 1 of 2000. In particular paragraph 5(a) (ii) – experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder – is relevant. A "severe psychosocial stressor" is defined as "an identifiable occurrence that evokes feelings of substantial distress in an individual" and includes for example, being shot at, divorce, and loss of employment. I am satisfied there were two such identifiable occurrences in South Vietnam during which the applicant perceived he was being shot at. The examples provided in the SoP are not exclusive and the relevant events, including the sleeping in the graveyard, would meet the definition if it evoked feelings of substantial distress. The term "substantial distress" is not defined in the SoP, however, feelings of intense horror, helplessness as well as anxiety and stress which the applicant stated he felt during the first two relevant events, would, I accept constitute such conditions.

Dr Richards opined that the veteran's symptoms of anxiety and depression were related to the end of the applicant's service career, continued drinking and his marriage break-up. However, Dr Likely's opinion that the applicant exhibited significant symptoms of anxiety and depression present since the time of his service in South Vietnam, was based on a more thorough clinical history and longer association and is preferred.
SoP No 58 of 1998 is the appropriate instrument in relation to the applicant's claim with regard to "Depressive Disorder". The SoP has not been revoked at this time. Factor 5(b) is in similar terms to factor 5(a)(ii) required by SoP No 1 of 2000, except that the severe psychosocial stressor or stressors (my emphasis to indicate the differences) must be experienced within the two years immediately before the clinical onset of the depressive disorder (again my emphasis). I have already given my reasons for accepting that the applicant suffered such psychosocial stressors.
For these reasons I am not satisfied beyond reasonable doubt that there is no sufficient ground for making a determination in the applicant's favour. The decisions under review will be set aside and substituted therefore that the applicant's conditions of:

Alcohol Abuse or Dependence;

(ii) Generalised Anxiety Disorder; and

(iii) Depressive Disorder

are war-caused. The matter will be remitted to the respondent for determination of the degree of incapacity caused by the conditions.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision of Senior Member Beddoe herein
Signed:         .....................................................................................
Date/s of Hearing  18 September 2001
Date of Decision  7 May 2002
For the Applicant  Mr Honchin
For the Respondent  Mr Stoner