Gregory and Repatriation Commission
[2004] AATA 254
•12 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/131
VETERANS' APPEALS DIVISION )
Re RAYMOND LESTER GREGORY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date12 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .................. (Sgd)..................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - post traumatic stress disorder – generalised anxiety disorder – severe stressors suffered during operational service – clinical onset of generalised anxiety disorder not within two years preceding severe psychosocial stressor
Veterans’ Entitlements Act 1986 ss 9, 70, 120(1), 120(3), 196B(2), (11)
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin V Repatriation Commission [2001] FCA 522
Budworth V Repatriation Commission [2001] FCA317
Repatriation Commission V Hill [2002] FCAFC 192REASONS FOR DECISION
12 March 2004 Mr O Rinaudo, Member Decision Under Review
1. The applicant seeks review of a decision made by a delegate of the Repatriation Commission dated 29 August 2000 which refused the applicant’s claim for post traumatic stress disorder. This decision was affirmed by the Veterans’ Review Board on 27 November 2001.
History
2. The applicant was born on 9 March 1947. The applicant rendered operational service from 25 March 1971 to 21 December 1971. The applicant also had defence service from 7 December 1972 to 22 April 1977. The applicant suffers from the following service-related disabilities:
· Sensori-neural hearing loss
· Solar keratoses
· Gastro-oesophageal reflux disease
Eligible for Treatment (not service related)
· Post traumatic stress disorder – treatment only
3. The applicant suffers from the following non-service-related disabilities:
· Bronchitis
No Incapacity Found
· Nervous disorder
· Post traumatic stress disorder
4. The applicant stated that whilst in Vietnam he was posted to 161 Recce Flight at Nui Dat as an air frame fitter. In addition to his duties as an air frame fitter carrying out maintenance and repairs on various aircraft, the applicant also volunteered for visual reconnaissance flights. What this entailed was the applicant flying in aircraft of different types (helicopters and fixed wing) looking for enemy activity in the area. The applicant said that he flew as an observer and that flights would last for 2 hours or so flying at tree-top level in enemy territory.
5. On one occasion when the applicant was flying in a Bell helicopter, a bullet came through the floor of the helicopter and passed out through the perspex dome. Exhibit 9 shows the point of entry and exit of the bullet in the Bell helicopter. The applicant was sitting on the left hand side of the helicopter with the pilot on the right. The applicant was immediately aware of what had happened and stated that he was fearful for his life. He was concerned that more bullets might come through the floor of the aircraft. He said there was armour plating directly under the seat and behind the seat. The perspex bubble was 5 mm perspex. The helicopter had no doors.
6. The applicant said that the helicopter usually flew tilted towards the front. Sometimes bullets would come into the aircraft with a loud click.. Headphones would reduce the noise but the applicant said that on the particular occasion in the Bell helicopter he had been terrified and in fear of his life. He was concerned that the helicopter may have crashed. He did not go up in helicopters again after that event. He only went up in fixed aircraft.
7. The applicant relies on this incident as a stressor. The applicant states that he is suffering from post traumatic stress disorder as a result of the stressor.
Issue
8. The issue for the Tribunal is to determine whether the applicant is suffering post traumatic stress disorder and, if so, whether that condition is war or defence-caused within the meanings of sections 9 or 70 of the Veterans’ Entitlements Act 1986 (the Act).
Hearing
9. At the hearing of this application the applicant gave evidence as did Mr KC Kemp, Dr Hargreaves and Dr Kingswell. In addition to the oral evidence the following documents were tendered as exhibits.
Exhibit 1 “T” Documents
Exhibit 2 Report – Dr Jonathan Hargreaves undated
Exhibit 3 Report – Dr Jonathan Hargreaves dated 8 November 2002
Exhibit 4 Statement of Raymond Lester Gregory dated 21 May 2002
Exhibit 5 Statement of KC Kemp dated 3 May 2001
Exhibit 6 Statement of Ron Crawford dated 16 March 2001
Exhibit 7 Photograph of Helicopter
Exhibit 8 Report – Dr William J Kingswell dated 8 August 2002
Exhibit 9 Photograph of Helicopter with bullet projectory marked
Oral Evidence – The Applicant
10. The applicant gave evidence about the incident referred to above and confirmed that the incident occurred in the way described. The applicant confirmed that he had become terrified as a result of the bullet entering the perspex bubble of the Bell helicopter and did not fly in helicopters again after that incident.
11. The applicant confirmed that he had always been a social drinker. He further confirmed that before going to Vietnam he had smoked about half a packet of cigarettes per day but whilst he was in Vietnam this had increased to two packs per day. He said that he does not smoke now as he had had an endoscopy and this showed some problems with his throat. He gave up smoking after that. He said that he lives alone. He said that he has had three long-term relationship between 7 and 8 years, the last one lasting about four years. He said that he and his partner broke up because they could not get along. He said they reached a mutual agreement that they would part.
12. The applicant said that he had two children in their mid to late twenties but had not had contact with them for many years now. He had looked after his partners’ children at one point but he only sees them about once per year now. He said he is not involved in any groups. He said he had previously attended Anzac Day but had not done so recently. He said he goes to the TAB a fair bit. He is a taxi driver and works between 20 and 26 hours per week. He said that this work is stressful. He gets stressed mainly with the traffic and at night when he is picking up undesirable people.
13. The applicant said he remembers the incident in the helicopter. He said it just pops up in his mind. He said when this happens “I just go out and do something to occupy my mind”. He said that often his sleep is restless. He said he can wake up every 5 or 6 hours. He has nightmares about Vietnam about the time he was shot at in the helicopter in Vietnam. He said the last time he had a nightmare about this was several weeks ago now. He said he gets really “pissed off”.. He gets really angry and has been physically aggressive towards partners and their children. He said he gets irritable.
14. Mr Gregory said that he could not open up to Dr Leong as he was Asian and he did not feel comfortable in his presence. He also noted Dr Quinn’s report dated January 1983 where he stated he saw no action. He clarified this statement as meaning arm to arm contact rather than the incident as observer in the helicopter and other fixed wing aircraft. Under cross-examination Mr Gregory said that he worried about other things. He said that when he was not occupied his thoughts turned to negative things.
15. Mr Gregory acknowledged the comments referred to at page 3 of Dr Kingswell’s report that:
“You thought then that it was scary, but I guess at the time you think you’re invincible. You’re all there doing the same thing. It’s the after shock you think Jesus.”
16. Mr Gregory also acknowledged the reference at the top of page 7 of Dr Kingswell’s report that:
“When the opportunity to go home came up he tossed with a friend as to who would stay. His friend won the toss and chose to stay on. He said, ‘At the time you do these things’.”
Mr Gregory stated that it would not have mattered either way what had happened with the toss.
17. In respect of his statement the applicant noted in paragraph 12 (Exhibit 4) that he was not present when a helicopter had crashed. He also noted in respect of paragraph 13 of his statement that when he sees a motor vehicle crash he thinks of his own mortality.
18. The comments in Dr Kingswell’s report at page 3/4 were also referred to the applicant which noted:
“Mr Gregory complained that he was easily upset by such things as traffic accidents. He said he had witnessed a number of these when driving. He said such events triggered memories of things that made him insecure. He would worry about when his own death was likely to arise or reflect on times when he had near misses in his own taxi.”
Mr Gregory said that people got killed on the roads.
19. In re-examination Mr Gregory confirmed that he was pleased that he had lost the toss and had come home.
Mr Kemp
20. Mr Kemp gave evidence and in broad terms corroborated the evidence given by the applicant with respect to the reconnaissance missions flown on the Bell helicopters and confirmed that bullets did penetrate the perspex bubble on the helicopters.
Dr Hargreaves
21. Dr Hargreaves gave evidence and stated that he had been treating the applicant since 2 February 2001. He said that he saw him once or twice monthly with the average about every two months. He said he was satisfied that the applicant was suffering from post traumatic stress disorder and that he met the requirements of the Statement of Principles. Dr Hargreaves said that he confirmed that the shooting of the helicopter in which the applicant was a passenger was the cause of his post traumatic stress disorder. He said that the applicant had reported dreams of being hit by ground fire and that these dreams were weekly. He said the applicant had disturbed sleep, had reduced levels of closeness with his family and noted that the applicant did not talk about his two children.
22. Dr Hargreaves said the applicant became angry and irritable when driving taxis. He stated that post traumatic stress disorder is an anxiety state focused because of particular events. He said a generalised anxiety disorder was more general in nature.
23. Dr Hargreaves said the applicant had to take to bunkers on occasions to avoid enemy fire. He said that the applicant had feelings of helplessness with suicidal tendencies. He said that the bullet had made him scared. He was fearful that he was going to die.
24. Dr Hargreaves said that in relation to the Statement of Principles relating to post traumatic stress disorder (Instrument No 3 of 1999) the applicant satisfied factor 2(B) and was also satisfied that the applicant exhibited six of the seven criteria in 2(C). He also said that in respect of factor 2(D) the applicant met (ii), (iii) and (iv) and (v) and that he met criteria 2(E) and 2(F) pointing to the applicant’s failure of family and relationships in respect of criteria 2(F).
25. Under cross-examination Dr Hargreaves noted the different point scores which he had calculated at 46 on folio 66 of Exhibit 1 and Dr Leong had calculated at 17 on folio 54 of Exhibit 1.
26. Dr Hargreaves acknowledged that if the dreams were only three or four times per year instead of weekly that this may make a difference to his consideration. He said that flashbacks were not frequent generally. Dr Hargreaves noted that he had not been told that the applicant had tossed to stay in Vietnam. However, under re-examination he noted that the applicant had been happy that he had not won the toss. Dr Hargreaves considered this to be appropriate.
27. Dr Hargreaves acknowledged that the psychiatric investigations of the applicant in 1982 had not diagnosed post traumatic stress disorder. Dr Hargreaves noted that the condition was not always uppermost in the mind of the veteran. However, it can be brought on by a trigger. He said that it was not unusual for delayed onset.
28. In re-examination Dr Hargreaves confirmed that he considered that the applicant was suffering from post traumatic stress disorder.
Dr Kingswell
29. Dr Kingswell gave evidence and confirmed the matters set out in his report at Exhibit 8. He confirmed his diagnosis as generalised anxiety disorder. He said that he regarded the applicant’s condition to match generalised anxiety disorder better than post traumatic stress disorder. He did not consider that the applicant met the test under factor 2(b)(A)(ii) in that the applicant had not been exposed to a traumatic event in which the person’s response involved intense fear, helplessness or horror. He said he regarded the applicant as being able to cope.
30. Dr Kingswell noted his comment at page 7 of his report that the applicant “maintained his gloomy demeanour throughout the interview”.. Dr Kingswell noted that the applicant had many ruminative concerns. He said that it bothered the applicant when he was not busy. He said, however, the applicant was able to easily distract himself by working. He said that his dreams were infrequent although occasionally they woke him up. He said that whilst he exhibited some avoidance behaviour he did not exhibit much other than watching war movies.
31. Dr Kingswell referred to his comment at page 8 of his report that:
“His lack of interest in Anzac Day and the RSL is more to do with his embittered feelings about the treatment he received on return from Vietnam.”
32. Under cross-examination Dr Kingswell confirmed that he had seen the applicant on one occasion for two hours. He regarded the applicant as being reserved and morose during the interview. Dr Kingswell noted that he had a concern that Dr Hargreaves may have some problem in not advocating for his patient.
Legislative Framework
33. The relevant provisions of the Act are as follows:
“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;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
34. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“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.
…
(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.
(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.
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.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(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.”
Submissions
35. Mr Gladstone for the applicant submitted that the evidence of Dr Hargreaves as the treating doctor over a long period was to be preferred and that the Tribunal should accept a diagnosis of post traumatic stress disorder. He confirmed that the applicant met the factors set out in the Statement of Principles relating to post traumatic stress disorder, in particular, factor 2(A), (B), (C), (D), (E) and (F). Mr Gladstone submitted that the Tribunal would, in those circumstances, be satisfied that a reasonable hypothesis had been established and that the Tribunal could not be satisfied beyond reasonable doubt otherwise.
36. Mr Smith for the respondent submitted that the evidence of Dr Kingswell should be preferred as only one of the four doctors had diagnosed post traumatic stress disorder. Accordingly, the Tribunal should accept a diagnosis of generalised anxiety disorder.
37. Mr Smith pointed to the early diagnosis of Dr Quinn of depression. He submitted that the stressor could not be described as a traumatic event involving intense fear, helplessness or horror. He submitted that the applicant only had dreams on a couple of occasions per year. Mr Smith submitted that the Tribunal could not be satisfied that factor 5 of the Statement of Principles relating to anxiety disorder (Instrument No 1 of 2000) was met in that the anxiety disorder had its onset within two years after the applicant experienced a psychosocial stressor as set out in factor 5(a)(ii). Accordingly, the Tribunal could not be satisfied that the applicant had raised a reasonable hypothesis and the applicant must therefore fail.
Discussion
· Diagnosis
38. The applicant contends, based on the evidence of Dr Hargreaves (the applicant’s treating doctor), that the applicant is suffering from Post Traumatic Stress Disorder as a result of stressors experienced by the applicant during the applicant’s operational service in Vietnam. Dr Kingswell has diagnosed the applicant as suffering from generalised anxiety disorder.
39. The Tribunal must first determine whether the applicant is suffering from PTSD or generalised anxiety disorder, to the reasonable satisfaction of the Tribunal in accordance with the standard of proof set out in section 120(4) of the Act, Benjamin v Repatriation Commission [2001] FCA 522 and Budworth v Repatriation Commission[2001] FCA 219.
40. With respect to the first issue, whether the applicant is suffering from post traumatic stress disorder, the Tribunal must have regard to the matters set out in factor 2(b)(A), (B), (C), (D), (E) and (F) of the Statement of Principles relating to post traumatic stress disorder.
41. Dr Hargreaves confirmed in his report (Exhibit 2) that:
“I administered the structured interview for Post-Traumatic Stress Disorder according to Davidson et al 1989 and he fulfilled the following criteria. B1, B2, B4 and B5 all scored at 2 points or more. For instance, he had intrusive imagery of the aircraft being hit with himself in it, he had dreams of being hit while in an aircraft, and would wake up feeling as if he was about to die, quite agitated and would get distressed by reminders such as hearing helicopters overhead or seeing movies and documentaries featuring these kinds of incidents. He has also had a revival of memories of Vietnam after attending occasional fairly severe motor vehicle accidents.
He scored a number of criteria C including C1, C2, C4, C5, C6 and C7 all at 2 points or more. There was avoidance of the memories of this time of his life, avoidance of military related activities such as ANZAC Day parades, war films and even noisy crowds, and there were changes in his personality after Vietnam, generally he was more uptight, kept to himself more, with loss of confidence and a reduced closeness to family, he never married and was prone to relationship instability, and he had periods of hopelessness with suicidal ideation.
He scored a number of Criteria D including D2, D3 and D5 with problems with regard to irritability, concentration, hypervigilance and a tendency to startle.
Criteria E and Criteria F were met in that disturbance has been in excess of one month and there has been significant social and relationship impairment and impact on his lifestyle, particularly deriving out of intolerance of people and confined area.
I concluded that Mr Gregory met the criteria for chronic Post-Traumatic Stress Disorder and depressive disorder not otherwise specified, the latter having a differential diagnosis of Dysthymic Disorder.”
42. Dr Hargreaves concluded:
“In conclusion, in my opinion the stressors he described in Vietnam could reasonably be considered as significant and reaching the criteria required for the DSM-IV for Post-Traumatic Stress Disorder.”
43. Dr Kingswell on the other hand makes the following observations with respect to the criteria set out in the Statement of Principles:
“I am not of the view that Mr Gregory’s symptoms are sufficient to satisfy the criteria as set out in the Statement of Principles. Mr Gregory infrequently experiences distressing dreams, by his estimate once or twice per year. He is not bothered by intrusive recollections during the day that he cannot distract himself from. The exposure to car accidents causes him ruminative concern about his own mortality but not intense psychological distress.
Mr Gregory has not described significant avoidance. He does not feel detached or estranged from others. He very strongly desires close human contact and is eager to find a new partner. With the exception of not wanting to watch war movies he makes no effort to avoid activities or other events that might arouse recollections of Vietnam. His lack of interest in ANZAC Day and the RSL is more to do with his embittered feelings about the treatment he received on return from Vietnam. Mr Gregory has not described significantly increased arousal and although he is subjectively distressed, there is no marked impairment in social, occupational or other important areas of functioning.
In my view the history obtained from the veteran and the collateral information is much more supportive of a diagnosis of generalised anxiety disorder. His gloomy, pessimistic, depressed state was evidence in 1983 when Dr McLeod in the Medical History Sheet noted that this had been a problem evidence since 1975. Mr Gregory believes the problem has been lifelong and worsened since his experience in Vietnam.
The stressor that Mr Gregory relies on properly fits, I believe the description of severe psychosocial stressor described in the Statement of Principles concerning anxiety disorder (Instrument No 1 of 2000). However, whether this stressor occurred two years before the clinical onset or the clinical worsening of this disorder is a matter for the Tribunal. There is no contemporaneous records to confirm or deny the history provided by Mr Gregory.”
44. Dr Leong in his report dated 18 August 2000, folio 51 of Exhibit 1, noted at page 4 of his report that:
“It is my opinion that this veteran does not suffer from Post Traumatic Stress Disorder as defined by the criteria of the 4th edition of the American Association’s Diagnostic and Statistical Manual of mental disorder (DSM-IV). The clinical history, symptoms and signs assessing this diagnosis are documented above in Part One, paragraphs A) to F). As noted all the criteria are not met, and thus the diagnosis can not be sustained.
It should be noted however that the veteran does suffer from symptoms seen in PTSD.
Attempting to provide a differential diagnosis is difficult as the history and clinical findings do not satisfy any diagnostic category with ease. PTSD would have to remain a differential diagnosis, as would a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Generalised Anxiety Disorder should also be considered a differential diagnosis.
The onset of the symptom complex commenced upon the return of the veteran from Vietnam, and I am of the opinion that the condition of the veteran is caused by his war service.”
45. It should also be noted that in 1983 the applicant saw Dr Quinn, Psychiatrist, who reported:
“Vietnam Veteran who looks depressed at the moment. He relates this to being unemployed but describes himself as ‘a normally happy sort of person’. He states he was OK in V/nam and as an aircraft fitter saw no action nor was subjected to any trauma. Most of his conversation relates to his jobless state.” (folio 74, Exhibit 1)
46. Dr Hargreaves is, of course, the applicant’s treating psychiatrist and has seen the applicant on many occasions. Dr Kingswell said that this may not be an advantage because, in effect, the treating doctor may be biased and advocate on behalf of the patient whereas the strict medico/legal expert considers the material and interviews the applicant and forms an opinion in a broadly independent capacity.
47. The history taken by Dr Kingswell does support the conclusion drawn by him with respect to the criteria set out in the Statement of Principles. The evidence given by the applicant did not differ substantially from the version taken by Dr Kingswell.
48. In this case, the Tribunal prefers the evidence and conclusion of Dr Kingswell that the applicant is suffering from generalised anxiety disorder and not post traumatic stress disorder. The Tribunal finds to its reasonable satisfaction that the applicant is suffering from Generalised Anxiety Disorder.
· Causation
49. The standard of proof applicable to this application is set out in section 120(1) and section 120(3) of the Act. In considering this application, the Tribunal has had regard to the steps to be followed in cases such as this, as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 where the Full Court (Beaumont, Hill and O’Connor JJ) said 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 determined by the authority under s196B(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 s196B(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 s120(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.”
50. In considering the fist step set out above, does the material before the Tribunal points to a hypothesis connecting the injury with the circumstance of the particular service rendered by the applicant? Dr Kingswell acknowledges that the applicant suffered stressors during the applicant’s operational service in Vietnam.
51. Accordingly, the Tribunal is satisfied that an hypothesis connecting the injury with the particular service rendered by the person is raised.
52. Is there then a Statement of Principles in force determined by the Authority under section 196B(2) or (11) of the Act? In this instance the Statement of Principles relating to generalised anxiety disorder is Instrument No 1 of 2000.
53. Moving then to the third step, the Tribunal must determine whether, there being a Statement of Principles in force, it is satisfied that the hypothesis raised is a reasonable one. In respect of the third step, for a hypothesis to be reasonable where an SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. In so far as generalised anxiety disorder is concerned, the factor which must be met for that Statement of Principles to apply is factor 5(a)(ii) which states that the applicant must have experienced a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.
54. The Tribunal must, therefore, first determine if the applicant suffered a severe psychosocial stressor and then determine whether the clinical onset of the applicant’s anxiety disorder occurred within two years of the applicant experiencing a severe psychosocial stressor.
55. In this case the Tribunal is satisfied that the incident described by the applicant in the helicopter when a bullet passed through the perspex bubble between the applicant and the pilot of the helicopter should be regarded as an incident that that evoked feelings of substantial distress in the applicant.
56. Severe psychosocial stressor is described in the relevant Statements of Principles as:
“an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
57. In this case, of course, the applicant was shot at in a near-miss situation, whilst in a helicopter above the ground.
58. However, this is not the end of the matter as the Statement of Principles for generalised anxiety disorder requires in factor 5(a)(ii) that the veteran must have experienced a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. Dr Kingswell accepts that the stressor was a severe psychosocial stressor as described in the Statement of Principles.
59. However, Dr Kingswell states:
“whether this stressor occurred two years before the clinical onset or the clinical worsening of this disorder is a matter for the Tribunal.”
60. There is no medical evidence to support a finding in accordance with factor 5(a)(ii) that the clinical onset of anxiety disorder or factor 5(a)(v) that the clinical worsening of anxiety disorder occurred within two years immediately after the applicant experienced a severe psychosocial stressor. The applicant did not give any evidence that could satisfy this requirement. The only evidence which is available is the evidence noted by the departmental medical officer who examined the veteran in January 1983 and reported the veteran as giving a history of symptoms first being noticed in 1975 (folio 16, Exhibit 1). There is, of course, no diagnosis of this condition.
61. Accordingly, it cannot be said that the hypothesis is reasonable and therefore the applicant’s application must fail.
62. The Tribunal therefore affirms the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 9 May 2003
Date of Decision 12 March 2004Solicitor for the Applicant Mr K Gladstone - Gladstones
For the Respondent Mr M Smith, Departmental Advocate
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