Hunter and Repatriation Commission - [2002] AATA 485

DECISION AND REASONS FOR DECISION [2002] AATA 485

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1421

VETERANS' APPEALS DIVISION          )
           Re      BRIAN KARL HUNTER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

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

Date21 June 2002
PlaceSydney

Decision      The tribunal sets aside the decision under review and finds instead that the applicant suffers from the war-caused disease of anxiety disorder and that this decision is to operate with effect from 1 November 1999. The matter is remitted to the respondent for the assessment of the proper rate of pension.
  [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether post-traumatic stress disorder a war-caused disease – whether alcohol abuse or dependence a war-caused disease – whether anxiety disorder a war-caused disease – whether adjustment disorder a war-caused disease – whether veteran experienced a severe stressor – whether veteran experienced a severe psychosocial stressor – actual death, injury or threat of death or injury required for experiencing a severe stressor – diagnosis to be established to reasonable satisfaction of decision-maker – duty of decision-maker to investigate diagnoses not raised by veteran – role of veteran's representatives in identifying potential diagnoses

Veterans' Entitlements Act 1986 ss 5D(1) ("disease", "injury"), 6D, 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 22(2), 68(1) ("defence service", "member of the Forces"), 69(1)(a) – (c), 70(1)(b), (d), 71(1), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), 196D

Statement of Principles 3/99 concerning post-traumatic stress disorder as amended by 54/99
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse.
Statement of Principles 1/2000 concerning anxiety disorder

Benjamin v Repatriation Commission (2001) 34 AAR 270
Benjamin v Repatriation Commission (2001) 64 ALD 411
Budworth v Repatriation Commission (2001) 63 ALD 402
Bull v Repatriation Commission [2001] FCA 1832
Re Kelly and Repatriation Commission [2001] AATA 254
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Budworth (2001) 33 AAR 476
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gosewinckel (1999) 59 ALD 690

REASONS FOR DECISION

21 June 2002 Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

HISTORY OF APPLICATION

On 1 February 2000 Mr Brian Karl Hunter ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a Disability Pension (T7). He claimed for conditions post-traumatic stress disorder ("PTSD"), alcohol abuse, chronic gastritis and gastro-oesophageal reflux disease ("GORD").
On 16 March 2000 a Repatriation Commission ("respondent") delegate decided to reject the claim for PTSD and alcohol abuse but to accept the claims for chronic gastritis and GORD (T9). Earlier, the respondent had accepted bilateral sensori-neural hearing loss as war-caused with effect from 27 April 1998 (T6). That attracted pension at 10% of the general rate. The new rate of pension, effective from 1 November 1999, was 40% of the general rate because of the acceptance of the additional diseases as war-caused.
On 10 May 2000 the applicant lodged with DVA an application for the Veterans' Review Board ("the VRB") to review the decision made on 16 March 2000 (T10). The application singled out the rejection of PTSD and alcohol abuse as war-caused diseases.
On 25 May 2000 a delegate within DVA reviewed the decision in question in accordance with s 31 of the Veterans' Entitlements Act 1986 ("the Act") and decided that there were no grounds for interfering with the decision under review (T11).
reviewable decision
On 9 August 2000 the VRB decided to affirm the decision under review (T13). It identified the case in support of the condition of PTSD as follows:

In an earlier claim (T4) he had cited the collision between the HMAS Melbourne and the Frank E Evans in 1969 as the stressor related to both his PTSD and alcohol abuse. However, as the VRB noted, that event did not occur during a period of eligible service.
Mr Hunter's psychiatrist, Dr Altman, had argued that the applicant's later eligible service had aggravated the non-war-caused and non-defence-caused condition of PTSD and alcohol abuse.
Dr Altman, in connection with these VRB proceedings provided a new report (T7/46) stating that he had formed the opinion that the applicant's service in the Malaysian Federation Anti-confrontation in police action between May 1965 and January 1966 on the HMAS Teal, working as a leading radio operator, was the cause of his PTSD with associated major depression and alcohol dependence. Dr Altman provided some direct quotes from Mr Hunter:
"We did patrol duties for nine months. We apprehended vessels with infiltrators and saboteurs on board. The horrible thing that sticks out most of all was taking eighteen prisoners who I believe were barter traders. We turned them over to the police in Port Klang. The police released them and we recaptured them and turned them over to the police in Singapore and they were all hung. During a capture the tension is absolutely horrendous -- 'you fear at any minute the people you are capturing could open fire and wipe out people on board. All of this is done at night which cuts down the amount of visibility you have. By not being able to see properly it is a fearful situation. The fear is so intense in this situation that during the whole thing your mouth is dry, you cannot speak and every muscle in your body is rigid -- all you can think of his trying to follow the orders you have been given -- you are listening for the "open fire" order -- you are so frightened -- the fear is tremendous'. …
"We did approach during the day against an Indonesian Russian built destroyer which was about six times our size. I was absolutely terrified. I thought any minute now they would open fire with their four inch guns. The whole thing was extremely frightening. …
"HMAS Woolaston was doing the same job as us when were there [sic] and captured some infiltrators and then the infiltrators' boat blew up and killed the sub-lieutenant (from The Woolaston) that was inspecting it -- it made me very sad (and he was teary in the interview) and it rammed home the danger we were in -- I saw the results of the ship in Singapore Harbour".

Dr Altman said it was very likely that the PTSD was caused by these incidents and then was aggravated by the collision between the Melbourne and the Evans in 1969.
In questioning the applicant responded that he and his crewmates had heard later about the hangings in Singapore.
In questioning the applicant explained that the encounter with the Indonesian destroyer made him "absolutely terrified" because, as he was radio operator he was below decks in a small, claustrophobic radio room and could see nothing. Eventually the destroyer was contacted and it was discovered that the destroyer was lost. It was assisted back on course.
Mr Hunter had referred also to the Teal patrolling the Tawau River on the border between Indonesia and Malaysia. The Indonesians fired shells each night into the Malay jungle, missing the Teal. However the Teal could have been hit if the elevation of the guns had been lowered, said Mr Hunter.

The VRB conceded the stressful nature of the experiences but considered that, as in each case there had been a perceived rather than real threat of death or serious injury, Mr Hunter had not experienced a severe stressor within the terms of the SoP. The VRB considered the period of Mr Hunter's defence service and found nothing there related to the development of PTSD. There was therefore no reasonable hypothesis to connect the applicant's eligible service with his PTSD.
As regards alcohol dependence and alcohol abuse, the VRB found the relevant SoP not satisfied because of the lack of a severe stressor and the lack of a psychiatric disorder that was related to eligible service.
On 22 August 2000 the VRB wrote to Mr Hunter to advise its decision (T14).
On 6 September 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision as affirmed by the VRB (T1).
RELEVANT LEGISLATION
The following provisions of the Veterans' Entitlements Act 1986 are relevant: ss 5D(1) ("disease", "injury"), 6D, 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 22(2), 68(1) ("defence service", "member of the Forces"), 69(1)(a) – (c), 70(1)(b), (d), 71(1), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Injury/disease definitions
5D.(1) In this Act, unless the contrary intention appears:
…
disease means:
(a)       any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)       the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)       the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)       a temporary departure from:
(i)        the normal physiological state; or
(ii)       the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)       a disease; or
(b)       the aggravation of a physical or mental injury.
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Operational service - other post World War 2 service
6D.(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a)       was assigned for service:
(i)        in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or
(ii)       in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or
(iii)      in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or
(b)       was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
(2)       A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full-time service as:
(a)       a member of the Defence force; or
(b)       a member of a unit of the Defence Force;
while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).
(3)       For the purposes of subsection (2), the operational service of a person to whom this section applies:
(a)       is taken to have started:
(i)        if the person was in Australia on the day (relevant day) from which his or her unit was assigned for service as described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be)—on the day on which the member left the last port of call in Australia for that service; or
(ii)       if the person was outside Australia on the relevant day—on that day; and
(b)       is taken to have ended:
(i)        if the member was assigned for service in another country or area outside Australia (not being an operational area)—the day from which the member was assigned to that other country or area, or the day on which the member arrived at that other area, whichever is the later; or
(ii)       in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
(a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
…
War-caused injuries or diseases
9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)       the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
(e)       the injury suffered, or disease contracted, by the veteran:
…
(ii)       was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
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Eligibility for pension
13.(1) Where:
…
(b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
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Claim for pension
14.(1)   Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…
(3)       A claim for a pension:
(a)       shall be in writing and in accordance with a form approved by the Commission;
(b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…
Date of operation of grant of claim for pension
20.(1)   Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
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Determination of degree of incapacity
21A.(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)       Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)       The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.
General rate of pension and extreme disablement adjustment
22.(1) …
…
(2)       Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
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Interpretation
68.(1)   In this Part, unless the contrary intention appears:
…
defence service means:
(a)       continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b)       in the case of a person who:
(i)        was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)       continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)      was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv)      the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v)     the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
…
member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A;
…
Application of Part to members of the Forces
69.(1)   Subject to this section, where a person:
(a)       has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)       is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c)       if the person:
(i)        has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii)       has, whether before or after that date, completed 3 years' effective full-time service as such a member; or
…
Eligibility for pension under this Part
70.(1)   Where:
…
(b)       a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)       in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
Application of certain provisions of Part II
71.(1)   Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.
…
Application of Divisions 4 and 5 of Part II
73.(1)   The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.
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Standard of proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)       an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)       a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)       the death of a person is war-caused or defence-caused; or
(d)       a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)       a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)       a claim under Part II that relates to the operational service rendered by a veteran;
(b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
…
(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 Statement of Principles determined under subsection 196B(2) or (11); or
a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…
Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
120B.(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 eligible war service (other than operational service) rendered by a veteran;
(b)       a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
(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 (3) 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)       In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)       there is in force:
(i)        a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)       a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…
Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2)       If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)       operational service rendered by veterans; or
(b)       peacekeeping service rendered by members of Peacekeeping Forces; or
(c)       hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)       the factors that must as a minimum exist; and
(e)       which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
…
Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

The following SoP are also relevant:

SoP 3/99 as amended by 54/99 concerning PTSD.
SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 1/2000 concerning anxiety disorder.
Instrument No 3 of 1999
Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the
Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.15 of 1994 and Instrument No.225 of 1995; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
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Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
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"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
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Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Fourteenth day of January 1999.
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Instrument No54 of 1999
Amendment of Statement of Principles concerning POST TRAUMATIC STRESS DISORDER
ICD-9-CM CODE: 309.81
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.3 of 1999, (Statement of Principles concerning post traumatic stress disorder), by:
A. deleting the definition of "experiencing a severe stressor" in clause 8 and inserting in its place the following definition of
"experiencing a severe stressor" in clause 8:
"'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;".
2. The amendments made by this instrument apply to all matters to which
Instrument No.3 of 1999 and section 120A of the Act apply.
Dated this Twenty-Fourth day of June 1999
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Instrument No.76 of 1998
Statement of Principles concerning ALCOHOL DEPENDENCE OR ALCOHOL ABUSE
ICD-9-CM CODES: 303, 305.0
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.5 of 1994 (Statement of Principles concerning psychoactive substance abuse or dependence); and
(b) determines in its place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles, "alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12- month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303
or 305.0.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
…
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person's alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a severe stressor" means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"relevant service" means:
(a) operational service; or
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this First day of December 1998
Instrument No.1 of 2000
Statement of Principles concerning ANXIETY DISORDER
ICD-10-AM CODES: F06.4, F41.1, F41.8, F41.9
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.48 of 1994 and Instrument No.275 of 1995 concerning generalised anxiety disorder; and Instrument No.380 of 1995 concerning anxiety disorder due to a general medical condition; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, "anxiety disorder" is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessivecompulsive disorder, adjustment disorder with anxiety, panicdisorder and agoraphobia.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) being a prisoner of war before the clinical onset of anxiety disorder; or
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxietydisorder; or
(vi) having a major illness or injury within the two years immediately before the clinical worsening of anxietydisorder; or
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or
(c) inability to obtain appropriate clinical management for anxiety disorder.
…
Other definitions
8. For the purposes of this Statement of Principles:
"anxiety due to a general medical condition" means a psychiatric disorder where:
A. Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and
B. There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and
C. The anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and
D. The anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and
E. The anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social, occupational, or other important areas of functioning;
"anxiety disorder not otherwise specified" means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder withanxiety, or adjustment disorder with mixed anxiety and depressed mood;
…
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"generalised anxiety disorder" means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the NationalCentre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
…
"relevant service" means:
(a) operational service; or
…
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Twenty-eighth day of January 2000

BACKGROUND

Mr Hunter was born on 1 April 1941 (T4). He spent his early years in the Shetland Islands off the Scottish coast and migrated to Australia when Mr Hunter was nine years old (ex A3). He attended school to year nine, leaving at age 15. He was successful academically and in sports at school but had to leave because his father needed him to earn money to help support a large family of six children. He worked as a clothing salesman for three months and then in a timber and hardware company as a junior clerk and sales assistant for 15 months. He joined the navy in 1958 and served for 21 years to 26 May 1979 (ex R2/7). He married in 1960 and they had two daughters (ex A3). After discharge from the navy Mr Hunter commenced work in the Commonwealth Attorney-General's Department where he has been ever since (T4/24).
The applicant's service history (T3/19-20) is that he enlisted on 26 May 1958 for a period of 21 years. He was in operational service as follows:

7 to 28 April 1960, 6 to 20 May 1960 and 6 to 16 June 1960 on HMAS Melbourne attached to Far East Strategic Reserve.
26 March to 12 April 1962 on HMAS Vendetta attached to Far East Strategic Reserve.
11 to 21 May 1965 on HMAS Teal in the operational area of North Borneo and Malay Peninsula/Singapore.
25 April to 6 May 1966 and 25 May to 9 June 1966 on the HMAS Melbourne allotted for duty in the operational area of Vietnam.

He rendered "defence service" from 7 December 1972 to 25 May 1979 (T2/2A).
HEARING, APPEARANCES AND EVIDENCE
On 5 June 2001 the tribunal convened a hearing in Sydney in this matter. Mr N Dawson of counsel represented Mr Hunter. Ms M Doggett of the DVA Advocacy Service represented the Repatriation Commission. The tribunal had the benefit of evidence given before it at the hearing by Mr Hunter, Mrs Hunter and Dr Dinnen, a psychiatrist.
The tribunal had before it a body of documentary material which was taken into evidence and identified by marking documents as exhibits.

Exhibit TD1 – Section 37 Statement with associated documentation (exhibits T1-T17) dated 4 October 2000.
Exhibit A1 – Applicant's statement of facts and contentions, 9 February 2001.
Exhibit A2 – Applicant's statement, 1 June 2001.
Exhibit A3 – Report by Dr A Dinnen, psychiatrist, 31 January 2001.
Exhibit A4 – Statement of applicant's wife, 4 June 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 31 May 2001.
Exhibit R2 – Report by Dr J W Shand, psychiatrist, 24 February 2001.
Exhibit R3 – Dr N Brittain's clinical notes.
Exhibit R4 – Dr J Stokes' clinical notes.
Exhibit R5 – Research material from Mr P M Mulcare, 31 May 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal finds that Mr Hunter engaged in the navy in operational service and in defence service during the periods in paragraph 13 above.
The tribunal finds that Mr Hunter filed a valid claim for Disability Pension on 1 February 2000 (T7, s 14(3) of the Act).
The tribunal notes that the date of effect of any decision favourable to Mr Hunter would be 1 November 1999 (s 20(1) of the Act).
The tribunal notes that the parties have agreed that the appropriate diagnoses are PTSD and alcohol dependence or alcohol abuse (ex R1). The only issues are whether Mr Hunter experienced stressors during operational service sufficient to satisfy the relevant SoPs.
medical evidence
Dr G Altman, a psychiatrist, diagnosed a severe chronic PTSD with an associated major depression and alcohol dependence resulting from Mr Hunter having witnessed the collision between the HMAS Melbourne and the Frank E Evans in 1969, not a time within his operational service (T5).
Dr Altman later (T7/46) diagnosed the same illnesses but attributed their onset to Mr Hunter's service in the Malaysian Federation Anti-confrontation on the Teal from May 1965 to January 1966 when he worked as a leading radio operator. He relied on the three allegedly traumatic events summarised above in paragraph 5.
Dr Altman later (T8) reiterated his earlier diagnoses but stressed more so Mr Hunter's service subsequent to the Frank E Evans collision as having aggravated the PTSD.
Dr A Dinnen, a psychiatrist (ex A3), writing on 31 January 2001 was of the opinion that Mr Hunter was suffering from PTSD and alcohol abuse consequent to his service in the navy for over 21 years.
"The significant traumatic events which he recounted, including his service on HMAS Teal and later on the Melbourne would provide sufficient 'stressors' in my view and based on my experience to cause a post traumatic stress disorder. The patient's initial proposition, echoed by Dr Altman's 3rd report, that service on the Teal predisposed him to the condition which was aggravated by the Melbourne/Evans collision is in accord with my opinion."
Dr Dinnen recorded the following account of the applicant's experiences on the Teal:
"He met the old crew that they were relieving and they described an encounter with Indonesian saboteurs. They told of being fired upon by Indonesians, and between the first and second shot they responded on the Teal with 2000 rounds of ammunition. They killed all nine infiltrators. This incident occurred in the Straits of Malacca of the Malaysia Coast.
"The patient said the men who recounted story did so in a somewhat macho manner. But now he knew they were in serious business. He was apprehensive about what they were going to find as they continued their mission.
"The patient told me there were 26 men on board the Teal. There were two other radio operators apart from himself. The main gun was a 40/60 Bofor and each man had his own small arms weapons. They were not very well armed he thought, with one antiaircraft gun and small arms. His weapon was a 303 Armalite.
"The patient said that he manned the wireless office while the ship was at Action Stations and was the only one to remain below decks. He was promoted to senior radio operator for this to be his responsibility. He said there were a couple of approach stations, when the ship was darkened, following radar contact. They would approach the area, then fire a star shell, and see if there was any enemy vessel. He recalled laying on the deck on his belly with his rifle, when this procedure was being carried out. There were three such episodes he recalls clearly. He describes feelings at the time as being 'absolutely terrified'.
"The patient told me the Teal was on duty in this fashion for eight months. They would spend twelve days carrying out operational activities and then two days in harbour undergoing replenishment.
"There was another incident that he describes to me. An Indonesian destroyer was inside Singapore territorial waters. He was at the radio in the wireless office and the ship was closed up to action stations. He sent off the message to the CIC (commander in chief) Far East Fleet, following the captain's orders, that their vessel intended engaging the Indonesian destroyer. They were leaving the harbour to do so. The patient said he had no knowledge below decks what was actually happening, but his instructions were that he was to get rid of any classified documents if their vessel was boarded. He was told subsequently that the Teal steamed up alongside the Indonesian destroyer, with all men on deck aiming their weapons at the vessel, and asked the destroyer what they were doing. The reply was, somewhat ingenuously, that they had lost their way and wanted to be guided back. The crisis resolved satisfactorily."
Dr Dinnen gave oral evidence at the hearing. He was convinced that the incidents on the Teal caused Mr Hunter's PTSD and that the incident on the Melbourne involving the Evans aggravated it. He explained that the vast bulk of the material presented to him by Mr Hunter, when he saw Mr Hunter, related to the Teal. His recollection of the events concerning the Teal was in greater detail. The circumstances that he described involving the Teal were associated with much more intense feelings. He "broke down" when discussing the incidents on the Teal. In cross-examination Dr Dinnen told Ms Doggett that he did not ask the applicant in detail about the Evans collision because he tends to leave matters to the veteran to discuss and see what the veteran chooses to talk about. In relation to the Melbourne, he had had to question the applicant about that event later in the interview. The applicant had given no elaboration in relation to events on the Melbourne. There was no evidence of any strong emotional response to the Melbourne/Evans incident. He agreed with Ms Doggett that the applicant was aware that his period on the Teal was more important for the purposes of claiming a pension.
Tribunal member, Dr Thorpe, asked Dr Dinnen to identify specifically the stressors experienced by the applicant on the Teal. Dr Dinnen responded that it was the eight months operational service on the Teal in total that was a stressor with the incidents that he described, and possibly some others that the applicant would prefer not to think about, being particularly stressful. The applicant's statement reproduced below in paragraph 33 was displayed to Dr Dinnen. Dr Dinnen agreed that the event described in that quote meets the test of a severe stressor.
Dr J W Shand, another psychiatrist, diagnosed chronic PTSD with depressed and anxious mood. He commented that the main stressor was the collision between the Frank E Evans and the Melbourne which occurred in a non-operational period. "The incident with the Indonesian destroyer presumably occurred during an operational period. However I would consider that stressor considerably less significant that [sic] the other one mentioned above." Mr Hunter had described to Dr Shand the incidents on the Teal summarised above in paragraph 5 and, in particular, the incident written about at length by Dr Dinnen in paragraph 25 above.
the hypothesis
The hypothesis relied on by Mr Hunter was that his entire service on the HMAS Teal, and especially the event on the Teal where it encountered an Indonesian destroyer, were sufficient stressors to explain the onset of Mr Hunter's PTSD and alcohol dependence or abuse.
The SoPs relevant to the hypothesis are SoP 3/99 as amended by 54/99 (for PTSD) and SoP 76/98 (for alcohol abuse and dependence). These SoPs are the most recent SoPs on these diseases and were the SoPs in force at the date of the primary decision (16 March 2000).
In accordance with the decision of the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 it is necessary to ascertain whether the hypothesis as raised appears to conform to the requirements of the relevant SoPs. If it does, and if it is not nevertheless fanciful, impossible, incredible, too remote or too tenuous (Bull v Repatriation Commission [2001] FCA 1832), it will be a reasonable hypothesis. Mr Hunter's case is based on the proposition that it was events occurring during operational service that caused his PTSD and alcohol disability. The tribunal has only to be satisfied to the standard of the reasonable hypothesis for Mr Hunter to succeed unless it is shown beyond reasonable doubt that the applicant's diseases were not war-caused (s 120(1), (3) of the Act).
PTSD

The elements of the SoPs on PTSD that must be satisfied by the hypothesis as raised, and what is currently known of those elements, are:
(a)The correct diagnosis must be PTSD (clause 2(b)). The parties have agreed that Mr Hunter suffers from PTSD on the bases of the reports by Drs Altman (T5, T7/46, T8), Dinnen (ex A3) and Shand (ex R2). The tribunal is satisfied for the present that this diagnosis is sustainable.
(b)The hypothesis must posit that Mr Hunter experienced a severe stressor (as defined in clause 8) prior to the clinical onset of his PTSD (factor 5(a)). There is an issue as to whether the stressor relied on in the hypothesis suffices to satisfy the definition in clause 8.
(c)If the stressors included in the hypothesis are sufficient to satisfy the SoP requirements, they must be related to Mr Hunter's operational service (clause 4).
Much has already been reported about the stressors Mr Hunter has described from his time on the Teal (see paragraph 5 above). However, more can be said. In Mr Hunter's written statement for the VRB (T13/89) he wrote:
"Sailing on control from Singapore, Teal came upon an Indonesian Skory class destroyer in Malaysian territorial waters. This encounter was in daylight. I was in the wireless office and sent the Locating Report which ended with the words 'intend engaging'. I didn't know what was happening above decks and expected a four inch shell to come through the ships side any minute. the [sic] wireless offices was [sic] as big as a toilet and extremely claustrophobic. my duty on this occasion was to serve the communications needs of the Teal and armed with a Smith and Weston [sic] revolver defend the area against borders [sic] until codes and ciphers were destroyed. I was in a state of terror and soiled myself."

In final submissions Mr Dawson, for Mr Hunter, relied especially upon that passage.

In the applicant's own oral evidence at the tribunal hearing he endorsed a statement he had completed (ex A2) as true and correct. In that statement, in relation to stressors in operational service he wrote that "[w]hilst serving on the Teal [he] was constantly apprehensive and tense and filled with the sense of foreboding. These feelings changed to constant fear whilst on patrol after the contact with the Indonesian Destroyer. I had to put on an air of bravado in the presence of the other crew." Mr Hunter proceeded to describe the change in his general outlook and in his relationships with others from that time forward.
He told Ms Doggett in cross-examination that he had not mentioned experiences on the Teal as stressful when he first saw Dr Altman. The concentration had been on the Melbourne/Evans collision. He had not mentioned anything in his history earlier than that collision. He said that he had suppressed mention of anything that happened when he served on the Teal because he was ashamed of that service. He considered he had been cowardly. Asked whether that was because nothing adverse in fact happened during his time on the Teal, he said he was frightened on the Teal to an extent greater than anyone else.
Mr Hunter agreed that he had first ascertained that his service on the Melbourne was irrelevant for purposes of obtaining a pension resulting from operational service only after a claim lodged in July 1998 (T4), citing the Melbourne/Evans collision as the stressor, was rejected in January 1999 (T6).
Ms Doggett referred Mr Hunter to ex R5, the research report.

Paragraph 9 of the Teal Report of Proceedings for May 1965 indicated in paragraph 9 (ex R5/10) that early in Mr Hunter's time on the Teal (ie 15 May 1965 – he joined the ship on 11 May) they engaged in extensive training exercises.
Paragraphs 10 and 13 (ibid) related to 21 and 29 May 1965 and shore-based operational and electrical mishaps were referred to. Mr Hunter had a general recall of these.
Paragraph 14 (ibid) related to the captain casting off on 31 May 1965 but committing the ship to further training to maximise proficiency.
In June 1965 (ex R5/13) little of event or interest occurred.
In July 1965 (ex R5/15) at paragraph 8 there is mention of movement of some buoys. This action was echoed in Mr Hunter's statement for the VRB (T13/89). However, in Mr Hunter's account shells had been fired by the Indonesians over the Teal. (This is one of the events described above in paragraph 5.) There is no reference to shelling in the Report of Proceedings. The applicant was certain that shelling took place but did agree that he would have expected it to be referred to in the Report of Proceedings.
In August 1965 the Report of Proceedings referred (ex R5/17) to night patrols over 12 days (paragraph 3), mechanical problems (paragraph 5), mine sweeping for three days (paragraph 7) and a casting off with two other ships for the first phase of M C X 3/65 (paragraph 9). Mr Hunter could recall the mechanical problems but not the matters in paragraphs 7 and 9. Overall, he agreed that this was a fair account of events in August 1965 but his recollection was that the Teal was out and in action more than this report indicated.
In September 1965 the only significant event was on 29 September 1965 (ex R5/21, paragraph 10). The report stated "TEAL's first genuine contact since the new ship's company joined in May was gained at 1930 on Wednesday, 29th September, off SULTAN SHOAL. It made off in an easterly direction at about 15 ½ knots, and the ship was unluckily placed in the frustrating position of a tail chase. He range slowly closed from 1 ½ miles to 400 yards, during which time the contact was followed through the fishing Kalongs into SELAT SUDONG. At 1955 the chase had to be abandoned due to the proximity of reefs in the area. Lack of suitable illumination prevented positive identification of the contact …". Mr Hunter could recall none of this.
In October 1965 (ex R5/23-24) nothing eventful occurred.
In November 1965 (ex R5/26-27) there was reference (paragraph 10) to the incident involving barter traders described by the applicant in paragraph 5 above. There was no mention in the report of any harm coming to these traders, however the applicant had been told they came to the harm described at the start of these reasons. The number of sampans was reported as three whereas Mr Hunter had recalled six or seven. He said he had not seen them. He had been told about them.
On 28 November 1965 the report shows (ex R5/27, paragraph 11) that "At 1830 [local time] on Sunday, 28 November, an Indonesian 'A' Class patrol boat was observed to be in Singapore Territorial Waters. The vessel was closed by TEAL and asked to explain his presence. At this, he altered course and regained his own waters whilst explaining that he was on passage to Pulo Sambo". This was the only incident recorded similar to the alleged incident with the Indonesian destroyer. Mr Hunter insisted that the incident he had in mind occurred in the daytime and involved a Skory class Russian destroyer. He then said that he might have been wrong about it being a Skory but he recalls sending a radio message referring to a destroyer. Ms Doggett addressed the issue of the comparative sizes of the Teal and the Alkai, an Indonesian patrol boat of the type experts considered most likely to have been involved (ex R5). The Teal's dimensions are at folio 57 of the T documents (153 feet in length). The Alkai was some 124 feet long (ex R5/48). The Teal was the faster of the two boats. Ms Doggett also picked up on the applicant's suggestions that relations were poor between Australia and Indonesia in 1965-66. She referred to material at folio 64 of the T documents indicating that Australia and Indonesia were not unfriendly at the time, that they enjoyed diplomatic relations, and that military attachés from Indonesia and Malaysia watched as Australian, US and New Zealand air forces conducted sorties together.
The reports for December 1965 to February 1966 (ex R5/29-35) disclosed no untoward events.

Dr Thorpe asked Mr Hunter why he remained in the navy for so long given his fear and anxiety after the incidents described. Mr Hunter said that it was in order to provide for his family. It was something he knew.
Dr Thorpe queried the gap in time from 1965 to 1991 when Mr Hunter first saw a psychiatrist. He asked whether there had been other disturbing events. Mr Hunter said that there was only the Melbourne/Evans collision. He said that up to 1990-91 he lived to work and do his job to the best of his ability. He was "uptight" and a perfectionist. He was controlling of the situation he was in. He was hard on the people working for him. In the Attorney-General's Department he had been supervisor of 12 staff but more recently had been removed from supervisory duties.
As has already been noted (see paragraphs 22 and 24-27) Drs Altman and Dinnen were satisfied that Mr Hunter's service on the Teal involved him in experiencing a severe stressor for the purposes of the SoP.
The tribunal took evidence from Mrs Nanette Hunter, wife of the applicant. She provided a written statement (ex A4). She had met Mr Hunter at the end of his period on the Teal and the "meeting after such a long time did not come up to [her] expectations. The meeting was strained. [Mr Hunter] was very tense, agitated, seemed annoyed and angry". His attitude to their daughter had changed. He had no patience with her. Mrs Hunter referred to several domestic incidents where Mr Hunter's reactions had been argumentative and disproportionate. She then described Mr Hunter's more recent symptomatology and its effect on the family.
Mrs Hunter's oral evidence was similar. She said that in the first two years of marriage Mr Hunter had been nice and loving. On his return after serving on the Teal he was angry, hostile, demanding and unrelenting. He forbade Mrs Hunter to make friends with anybody. Mr Hunter's service on the Teal stands out in Mrs Hunter's recollection for these reasons.

In summarising Mr Hunter's case, Mr Dawson made several points relevant to the tribunal's current task, that is assessing whether the hypothesis complies with the SoP. Mr Dawson's points were:
(a)The tribunal has received sufficient information for it to accept that the applicant's account of events on the HMAS Teal can be accepted. While that account does not perfectly match the report of proceedings the discrepancies do not suffice to disprove the hypothesis beyond a reasonable doubt.
(b)So far as step 3 of Deledio (above) is concerned, the proposition was that "the applicant's service in toto" on the Teal and, in particular, the incident involving the Indonesian destroyer, satisfy the SoP. Dr Dinnen's evidence was cited for this proposition. Mr Dawson said that Dr Shand saw the particular event as fitting the SoP. Dr Shand stated (ex R2/8):
"From the history obtained from the veteran, he is suffering from now Chronic Post-Traumatic Stress Disorder With Depressed and Anxious Mood. It was difficult to establish the time of onset of symptoms. The history suggested that it was during his employment with the Attorney-General's Department. Other history of nightmares with insomnia, re-experiencing and reliving, and avoidance of anything or anyone to do with his naval service, numbing/suppression of emotions, loss of interests, and symptoms of increased arousal court date back to much earlier time. I note in report of Dr Altman: 'These nightmares have been occurring since 1969.' The major stressors during the operational period was [sic] the collision with the Frank E. Evans in 1969 and the meeting with the Indonesian destroyer. In neither of these was he injured but the experiences, as described, satisfy the Statement of Principles."
Dr Shand then said (ex R2/9) that the Indonesian destroyer encounter involved a stressor considerably less significant than the later stressor involving the collision.
(c)The tribunal's decision in Re Kelly and Repatriation Commission [2001] AATA 254 was cited for the proposition that, "in relation to anxiety condition, in this case the tribunal accepted that, for the purposes of the SoP in relation to anxiety disorder, which is a different definition, but nonetheless talks about a stressful event, a whole period of service could in fact meet that definition and meet the SoP". The tribunal notes the tribunal's comments in that case. At paragraphs 67-69 it said:
"67. The Tribunal finds that the Mariner was young and immature when he went to sea, and to some extent what his family saw when he returned from his service on the SS River Burdekin was the product of his maturation. He has always been a serious person and was told by his peers on service that he was very serious. While the Mariner probably had the constitutional predisposition to develop an anxiety disorder, there is no evidence that he suffered from any psychopathological condition prior to the commencement of his service on SS River Burdekin.
"68. In Instrument No.49 of 1994 a 'stressful event' means 'an occurrence which evokes feelings of anxiety or stress'. The Mariner's case is that hearing the war stories from the Gunners on board evoked feelings of anxiety and stress. They caused him to be hypervigilant, to a point where when he saw dolphins in the distance he became anxious, thinking it was a sign of imminent danger. The knowledge the Mariner had of enemy activity, including submarines and mines, in the seas around Australia in which he was travelling, which on at least one occasion was sufficiently serious to cause his ship to have an escort, constitutes an 'occurrence' or a series of 'occurrences' that evoked for him feelings of anxiety and stress.
69. The Tribunal notes the submissions made by the Commission about the term 'event' and the fact that, in effect, it must be circumscribed, identifiable and specific rather than 'an ordinary course of life'. While hearing stories in some instances might be 'an ordinary course of life', in the Mariner's case the Tribunal finds that his hearing the stories were specific events, after which he became anxious, aroused, 'nervous' and intense. The Tribunal finds that hearing those stories were for him 'stressful events'."
(d)Kelly (above), paragraphs 70-71 was cited also for its comments on the required contribution of operational service to a veteran's psychiatric condition.
"70. Dr Murray, in his first report, acknowledged that the Mariner 'was indeed frightened by the stories told to him by other sailors'. He then said -
'That this experience was the sole or predominant cause for a life-long tendency to worry and be anxious seems unlikely, particularly given the fact that the events are so rarely in consciousness in recent years.'
The Tribunal notes, however, that the Mariner's war service does not need to be the 'sole' or 'predominant' cause of his condition. It merely needs to contribute to it: Repatriation Commission v Law (1980) 47 FLR 57. Indeed, the contribution can be quite small, and merely one of a number of causes, but it is contribution nonetheless if it is more than de minimus: Treloar (supra). Section 9(1)(b) of the Act provides -
'(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:
...
(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: '
"71. In Dr Murray's final report dated 3 June 1999 (exhibit 1) he concluded that hearing the stories for the Mariner was frightening and 'was for him a stressful event'."
(e)Mr Mulcare's research (ex R5/2-3) contains material to the effect that the Lieutenant Commander on the Teal at the relevant time observed that Mr Hunter, as the only radio operator on board was very busy when incidents occurred. A large number of urgent reports had to be sent by signal and Mr Hunter was usually under pressure encrypting and sending messages and then decoding return traffic. Mr Dawson suggested that this meant that the position and duties of Mr Hunter on the Teal were unique vis-à-vis his shipmates. Mr Dawson summarised the stressor associated with the destroyer incident as "being locked in the radio room when you think you are about to engage in combat".
(f)On the question of whether certain, so-called "objective", requirements in the SoP definition were met, Mr Dawson referred to the decision of Madgwick J in Budworth v Repatriation Commission (2001) 63 ALD 402 as not requiring an actual engagement with the enemy.
(g)In the event that the tribunal concluded that the SoP on PTSD was not satisfied by the hypothesis, Mr Dawson commended the Federal Court decision in Meehan v RepatriationCommission (2001) 64 ALD 366 to the tribunal. His purpose was to point out that in such a situation the tribunal is obliged to identify whether some psychiatric condition other than PTSD could be present and could be war-caused (paragraph 43 at page 377 of the decision). It was said that Mr Hunter went away on the Teal a happy and healthy person and returned quite unwell and with a worsening drink problem.
In response Ms Doggett submitted that it cannot be argued that a disease such as PTSD, caused by a stressor that occurred after operational service, was aggravated by the earlier operational service. She cited s 9(1)(e) of the Act as authority. Ms Doggett was correct on this point.
Ms Doggett, addressing the conformity of the hypothesis to the SoP requirements, said that the hypothesis is not consistent with the SoP if the hypothesis is merely that Mr Hunter's PTSD is related to his service "and leaves it there". The tribunal takes this to refer to Mr Dawson's proposition in paragraph 43(g) above that Mr Hunter joined the Teal happy and healthy and returned ill and with a drinking problem. The SoP required identification of a severe stressor experienced by the veteran.
As regards the requirement that the veteran experience a severe stressor, Ms Doggett cited the definition in SoP 54/99:
"… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. …"

Examples then cited in the SoP are "threat of serious injury or death", "engagement with the enemy" or "witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence".

Ms Doggett submitted that there was no suggestion that Mr Hunter witnessed people being killed, witnessed casualties, casualty clearance, atrocities or abusive violence against people. She said that there was no suggestion that Mr Hunter ever faced actual or threat of injury to anyone in his presence or in his vicinity.
In addressing the incident with the Indonesian destroyer, Ms Doggett questioned Mr Dawson's characterisation of the situation in paragraph 43 (e) as Mr Hunter being "locked" in the radio room during the encounter. Mr Dawson suggested that Mr Hunter had described the situation as being "sealed below decks". In the transcript (page 33) Mr Hunter is quoted as saying that he did not see the destroyer because he was "sealed up below decks". He said, "I was the only sailor below decks. All the rest were at action stations up above and all the hatches were sealed so that we could improve the water tight integrity of the ship".
Ms Doggett, in further addressing the destroyer incident, referred to further material from the Mulcare papers (ex R5/3) where the experts comment on a question, "Is there any record of the Captain of TEAL ordering Action Stations and then sending a signal that he 'intended engaging' an Indonesian destroyer?" The response was:
"TEAL's November ROP contains the following entry. 'At 1830 on Sunday 28 November 1965 an Indonesian "A" Class patrol boat was observed to be in Singapore Territorial Waters. The vessel was closed by TEAL and asked to explain his presence. At this, he offered cause and regained his own waters whilst explaining that he was on passage to Pulo Sambo'. Attachment 2 is an extract from Jane's Fighting Ships listing Indonesia's naval forces in 1964/65. The 'A' Class patrol boat is very probably one of the 12 'Alkai' Class auxiliary patrol craft highlighted on the fifth page of this attachment. It was probably manned by police, not Indonesian Naval personnel. The ROP does not mention whether the ship went to Action Stations but the 40/60 Bofors gun crew may have been closed up. Similarly there is no mention of the text of any signal sent but I would be very surprised if the words 'intend engaging' were used when TEAL obviously set out to investigate. In the circumstances 'engaging', i.e. firing at an Indonesian Naval vessel before it showed any hostile intent, would probably have been contrary to the rules of engagement in force at the time. Lieutenant Commander Murray does not believe he used the words 'intend engaging' and agrees with my comments above. Commander Cooke-Russell recalls that the Indonesian vessel was 'an overgrown launch' and the encounter was non-threatening.
"Lieutenant Commander Murray and Commander Cooke-Russell recall that an Indonesian destroyer went aground in Indonesian waters not far from Singapore. It was clearly visible from the Singapore side and remained aground for a considerable period before it was salvaged. It was not a threat and Lieutenant Commander Murray recalls that he exchanged pleasantries with it by light."

Ms Doggett submitted that, in view of this material, the Indonesian vessel was not a destroyer. She submitted that the Teal could not have encountered a destroyer six times the size of the Teal and that the encounter was omitted from the record of proceedings.

Ms Doggett referred also to the material (see paragraph 37 above) concerning relations at the time between Australia and Indonesia. She said that while there was a confrontation between Indonesia and Malaysia, Indonesia was in no sense an enemy of Australia.
Ms Doggett reiterated that the encounter did not come within the definition of a severe stressor. She said there was no suggestion of any actual or threatened physical injury. She also said there was no threat of death to anyone involved. She summarised that, while there may have been a perception of something possibly happening, nothing in fact did happen. She said that even Mr Hunter's statement at page 89 of the T documents bore that out (see paragraph 33 above).
Ms Doggett submitted that the tribunal cannot accept that conditions on the Teal were generally hazardous and stressful so as to satisfy the SoP. She referred to material in ex R5 where school children took tours through the Teal and the ship being berthed and open for inspection. She said that to suggest that the whole of the service on the Teal was stressful and hazardous and that the crew were exposed to danger and a hostile environment was misleading. In response Mr Dawson submitted that not every moment during the applicant's time on the Teal has to have been stressful for the overall period to be described as such.
Ms Doggett referred to the passage in ex R5 relied on by Mr Dawson in paragraph 43(e) above. In her submission the fact that Mr Hunter was the only radio operator, was busy when incidents occurred, was under pressure in encrypting and sending messages, and in receiving and decoding them, did not amount to the experiencing of a severe stressor. She said that none of this suggested any threat to a person's physical integrity, witnessing or experiencing violence or aggressive or abusive behaviour. She also emphasised the material in paragraph 49 above suggesting that the Teal would not have been "engaging" with an Indonesian naval vessel.
As regards arguments about the contribution of service to the worsening of a condition, Ms Doggett submitted that these considerations do not apply unless and until the situation posited in the hypothesis meets the SoP. Absent the satisfactory experiencing of a severe stressor, as in the SoP, no contribution or aggravation was, she said, relevant.
In relation to the Meehan decision (above), Ms Doggett submitted as follows:
"Mr Hunter has a severe stressor. He has a post traumatic stress disorder following from that. He currently has one. To say that if we take some other Statement of Principles, lumbar spondylosis, he says he hurt his back during his service and he had an enormous car accident and was in traction for weeks and then has a lumbar spondylosis, to say that he didn't have a trauma during his service, therefore he does not meet the lumbar spondylosis Statement of Principles does not mean that we than have to go through and consider whether or not he has got IVD or if perhaps he has got a cervical spondylosis or perhaps muscular strain in his back or a whole host of other diagnosis.
"The diagnosis is lumbar spondylosis. We say that the relationship to service has not been met in the Statement of Principles. It is quite distinct from these other cases where the issue was whether or not they have PTSD, quite distinct..." (Transcript, 73-74)
The tribunal has devoted a great deal of space above on what might appear a simple matter, does the hypothesis advanced posit that Mr Hunter experienced a severe stressor as that is to be understood in view of the SoP? As the above discussion should have demonstrated, that question is deceptively simple. It requires (i) close interpretation of the relevant definition in the SoP; (ii) if the definition is not satisfied, what is the proper duty of the tribunal in view of the decisions in the Meehan case (above), Benjamin v Repatriation Commission (2001) 34 AAR 270 and the Budworth decisions; (iii) possibly an excursion by the tribunal through DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995)) to ascertain what psychiatric condition other than PTSD Mr Hunter may have; and (iv) possibly consideration of whether a different psychiatric condition exists and was war-caused. The tribunal now attempts to fulfil those requirements.
The tribunal firstly finds that the hypothesis does not posit that Mr Hunter experienced a severe stressor as required in the amended clause 8 of SoP 3/99. This is for the reasons given by Ms Doggett in paragraphs 51 to 53 above. The tribunal considers that a plain reading of the definition requires that there was actual death or serious injury, or an actual threat of same, or an actual threat to a person's physical integrity in order that the definition can be satisfied. In the instant case, even Mr Hunter's own account of the Indonesian "destroyer" incident at page 89 of the T documents does not posit any actual event or threat of the relevant type. The SoP offers examples of relevant stressors, including engagement with the enemy. Mr Dawson sought to present the encounter with the Indonesian vessel as such an encounter. In the tribunal's view, even on Mr Hunter's own account, that encounter was not unfriendly, even if it may have been uncomfortable until the vessels communicated.
Lest it be argued that this leaves too little space for consideration of Mr Hunter's subjective reaction to the incident, the tribunal observes that the SoP requires in clause 2(b)(a)(ii) that there must have been a response involving intense fear, helpless or horror. Thus, both an objective and a subjective set of circumstances must be raised as a part of the hypothesis.
The tribunal pauses to recognise the valuable and forceful submissions made by Mr Dawson in this and other cases regarding the proper interpretation of the requirements for PTSD. In the tribunal's view it is quite likely that the SoP as drafted, in mandating a balance between the subjective and objective requirements, has misread or rendered selectively the requirements in DSM-IV and has elevated the objective requirements beyond DSM-IV's intent. This tribunal understands this issue to be the subject of appeal to the Federal Court and anticipates the court's views keenly. In the meantime this tribunal makes the following remarks about the DSM-IV and the SoP definition.

DSM-IV does require, "exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate. … The person's response to the event must involve intense fear, helplessness, or horror. … Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness. … Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to a violent assault, accident, war or disaster or unexpectedly witnessing a dead body or body parts. Events experienced by others that are learned about include, but are not limited to, violent personal assault, serious accident, or serious injury experienced by a family member or a close friend; or learning that one's child has a life-threatening disease. The individual has persistent symptoms of anxiety or increased arousal that were not present before the trauma. These symptoms may include difficulty falling or staying asleep, that may be due to recurrent nightmares …. Some individuals report irritability or outbursts of anger … or difficulty concentrating or completing tasks …".

The point made by Mr Dawson was that the examples included in the SoP (threat of serious injury or death, engagement with the enemy and witnessing casualties or involvement in casualty clearance, atrocities or abusive violence) are somewhat selective. The examples in DSM-IV include unpleasant events of lesser moment such as unexpectedly witnessing a dead body or body parts, learning of the sudden, unexpected death of a family member or close friend, or learning that one's child has a life-threatening disease. Viewed in that light, events such as those advanced for Mr Hunter appear more relevant than if one considers only the SoP.
However, it was established by the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, 704-705 that:
"[67] The tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of 'purely medical . . . issues' out of the hands of bodies such as the tribunal: Explanatory Memorandum to Veterans' Affairs (1994–95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable: see Deledio v Repatriation Commission, above, at 411–12. An hypothesis that fails to fit within the template will be deemed not to be 'reasonable', and the claim will fail."
This tribunal takes the principle in Gosewinckel (above) to mean that, even if the Repatriation Medical Authority ("the RMA") has acted selectively in translating the DSM-IV requirements into the SoP requirements, decision-makers operating under the Act are bound to apply the SoP. It occurs to the tribunal that this may be because the RMA has attempted to identify the material from an external diagnostic source, DSM-IV, that is most likely to be applicable in the service context. It is of course open to conjecture whether the RMA has got it right in any particular context.

Mr Dawson cited the tribunal's decision in Re Kelly (above) as authority for the suggestion that, for anxiety disorder, a series of events rather than a discrete event can suffice as a stressor. This was to support his submission that service generally on the Teal was sufficiently stressful to satisfy the definition of "experiencing a severe stressor". The tribunal doubts that Re Kelly (above) is unambiguously useful in this context. The SoP in question in that case was 49/94 on generalised anxiety disorder and it required that the veteran must have experienced a stressful event. In that SoP "stressful event" meant "an occurrence which evokes feelings of anxiety or stress". The test is purely subjective in that there is no requirement for an objective external source of harm or danger as in the SoP on PTSD. The tribunal had no difficulty in finding, for the particular veteran, that hearing war stories could constitute a series of occurrences evoking feelings of anxiety or stress. So far as ongoing sources of anxiety or trauma are concerned, the case at best stands for the proposition that there can be more than a single occurrence (or, in relation to PTSD, "traumatic event") said to have been experienced during operational service that caused the requisite degree of anxiety (or helplessness, horror, etc in relation to PTSD). It is not an example of a general atmosphere in service that can be accepted as the cause of a generalised anxiety disorder (or PTSD).
Having decided that the hypothesis does not reflect the requirements of the SoP on PTSD, the tribunal has found that the hypothesis connecting operational service with the applicant's PTSD is not a reasonable hypothesis. The tribunal is therefore, in accordance with s 120 of the Act, satisfied that the applicant's PTSD was not war-caused. The tribunal turns to consider what is its proper duty in view of the decisions in the Meehan case (above), Benjamin (above) and the Budworth decisions (above).
In Meehan (above) Wilcox J said the following (at pages 377-378) regarding the duty of an administrative decision-maker such as the tribunal:
"[45] It will often, perhaps ordinarily, be the case that there is agreement about the nature of the disease or injury that caused the veteran's alleged incapacity or the veteran's death. In such a case, the main issue is likely to be causation; the practical question arising in step one of the Deledio formulation will be whether the material before the tribunal points to a hypothesis connecting the particular agreed disease or injury with the person's war-service. If so, the tribunal will take the next step of ascertaining whether there is a relevant SoP.
"[46] If the tribunal finds there is not agreement about the nature of the disease (or injury), the tribunal ought not to make any immediate finding about that matter. It ought to consider all the hypotheses that are pointed to by the available material, even though one (or some) may relate to one particular disease (or injury) and another (or others) to another particular disease (or injury). This may involve looking at more than one SoP. Conceivably, more than one hypothesis may pass the third stage of the tribunal's exercise; in which case each of them will have to be tested against s 120(1) in the final stage of the inquiry. Of course, in the end it does not matter what label is put upon a veteran's disease or injury; the question will always be the s 13(1) issue: whether there is incapacity 'from a war-caused injury or a war-caused disease'.
"[47] It seems to me that, in the present case, the tribunal fell into two errors of law. First, it failed to follow the procedural steps required by ss 120 and 120A, as explained in Deledio. Second, and because of that failure, the tribunal disposed of Mr Meehan's claim by reference to a finding, made on the balance of probabilities, that his case did not fit the requirements of the relevant SoP in relation to aggravation of generalised anxiety disorder. Mr Meehan was deprived of the opportunity of having his claim assessed by reference to the (more favourable) reverse criminal standard of proof specified in s 120(1). His claim was that he was incapacitated by a condition, which some psychiatrists thought should be described as generalised anxiety disorder, that was either caused or aggravated by his naval service in Vietnam. The tribunal never asked itself whether it was satisfied beyond reasonable doubt this was not so; in other words, that he was not in fact incapacitated, or that the condition causing any incapacity from which he did suffer was not war-caused. Instead, the case was determined by two findings made on the balance of probabilities: that Mr Meehan suffered an anxiety disorder prior to his naval service and that 'the accepted stressful event in Vung Tau' did not occur within 2 years of the clinical worsening of generalised anxiety disorder. Those findings are not incompatible with the tribunal being unable to be satisfied, adversely to Mr Meehan, by reference to the reverse criminal standard.
"[48] What the tribunal should have done, first, was to consider whether the material before it pointed to a hypothesis or hypotheses connecting Mr Meehan's psychological symptoms (whatever their clinical label) with his operational service. This should have included consideration of the question whether the material suggested those symptoms were aggravated by his operational service. If the answer to that was in the affirmative, the tribunal ought to have identified (as it did) all the SoPs that were possibly relevant to the hypothesis or hypotheses. The tribunal should then have examined the consistency between the hypothesis, or hypotheses, and the various SoPs, making no findings of fact at that stage. Finally, the tribunal should have asked itself the s 120(1) question: whether it was satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that any disease by which Mr Meehan was incapacitated was a war-caused disease. In resolving that question, the tribunal was entitled (and required) to make findings in relation to the facts of the case and to relate those findings to any relevant SoP: see s 120A(3) of the Act. At that point, it was material to determine whether, as a matter of fact as distinct from hypothesis, Mr Meehan's case fell within the terms of the SoP pertaining to generalised anxiety disorder."
The full Federal Court in Budworth (above) said at page 483 in paragraph 19:
"The expression 'as claimed' in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which is attached, namely, 'that the veteran suffered the injury or contracted the disease'. This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label 'post-traumatic stress disorder', may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3)."
Unfortunately, the court in that case, unlike Wilcox J in Meehan (above), does not clearly state how the SoPs are to be introduced into the consideration.
In Benjamin (above) the full Federal Court said at pages 281-283:
"48 The facts that the claim originally lodged by the Veteran referred only to 'PTSD' and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of 'post traumatic stress disorder' do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
"49 The Tribunal found that the Veteran suffers from some psychiatric problems and that those problems affected his ability to continue in remunerative work. However, the Tribunal did not consider whether they were war caused, simply because they could not be characterised as 'post traumatic stress disorder', as that condition is defined in SoP 15 of 1994. Rather, it assumed that such problems, 'however labelled', were not conditions accepted as being war caused 'as a matter of law'. That appears to have been a reference to the conclusion that the Veteran did not suffer from PTSD, that determination having been made by reference to SoP 15 of 1994.
"50 The Tribunal erred in so far as it failed to consider whether or not those psychiatric problems might be a disease and might be war caused within the meaning of the Act. The primary judge correctly held that the Tribunal erred in regarding itself as bound to apply the definition in SoP 15 of 1994. However, the primary judge erred in failing to conclude that the Tribunal fell into error in not considering whether the psychiatric problems were war caused. It is not clear that his Honour was referred to the principles enunciated in Grant's Case. We do not understand the Commissioner to contest those principles. His Honour erred in so far as he failed to have regard to those principles. The application of those principles in the present case would have required that the matter be remitted to the Tribunal for decision according to law.
"51 If the Tribunal were to conclude that the psychiatric problems constitute a disease and are war caused, that could affect its conclusion concerning entitlement to the special rate. That is to say, if it were a combination of psychoactive substance abuse and other war caused psychiatric problems that prevented the Veteran from undertaking remunerative work, the prerequisites of s 23 may be satisfied so as to entitle the Veteran to the special rate. Whether the prerequisites are satisfied will be a matter for the Tribunal.
"STANDARD OF PROOF
"52 The second question raised in the appeal concerns the standard of proof that should be adopted by the Tribunal in considering whether any psychiatric problems identified by the Tribunal constitute a war caused disease. Under s 120(1), the Tribunal must determine that the psychiatric problems constitute a war caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section s 120(3) deems the Tribunal to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was a war caused disease, if the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran.
"53 In undertaking that exercise, the Tribunal must have regard to any SoP in force in respect of the kind of disease that the Tribunal finds has been contracted by the Veteran. The question before the Full Court is whether, in undertaking that exercise, the standard of proof referred to in s 120(1) applies or whether the standard of proof referred to in s 120(4) applies.
"54 Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act - see Repatriation Commission v Budworth [2001] FCA 1421 paragraph [15].
"55 The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
"56 However, if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all of the evidence available to it, whether s 120(3) is satisfied, without reference to s 120A(3).
"57 That is to say, if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the Veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Commission will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of s 120(1).
"58 The Tribunal concluded that it was not reasonably satisfied that the Veteran was suffering from PTSD. In doing so, it applied the standard specified in s 120(4). The primary judge was correct not to interfere with that conclusion.
"CONCLUSION
"59 It follows that the appeal should be upheld. The orders of the primary judge should be set aside. In lieu of those orders, there should be an order that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination, according to law, of the question of whether the Veteran suffers from a war caused disease other than PTSD…."
From these authorities, as distilled in Benjamin (above) by the full court, the following principles apply:
(a)Where a decision-maker finds that a claimed disease is not war-caused, the decision-maker has a duty to consider, nevertheless, whether a veteran has "a disease" (whatever may be its label) that was war-caused.
(b)Thus, as was suggested in Benjamin (above), where a decision-maker finds that a veteran suffers from some psychiatric problems but they cannot be characterised as PTSD (the claimed condition) the decision-maker must consider whether or not those psychiatric problems might be a disease and might be war-caused within the meaning of the Act.
(c)Under s 120(1) of the Act the decision-maker must determine that the psychiatric problems constitute a war-caused disease unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) deems the decision-maker to be so satisfied if the decision-maker is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran.
(d)The decision-maker has to attempt to find a kind of disease that is affecting the veteran. It does this on the balance of probabilities applying the standard of proof in s 120(4) of the Act. As the full court stated in Benjamin (above), the first question for the decision-maker will be how to characterise the psychiatric problems exhibited by the veteran. If satisfied that the symptoms constitute an injury or disease, the next issue is whether there is a SoP relating to it. This is also decided on balance in accordance with s 120(4) of the Act.
(e)Where a relevant SoP is in force the Deledio (above) principles apply. Where the disease is not the subject of a SoP then the decision-maker considers the whole of the material before him, her or it to form an opinion whether the material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran. If the decision-maker is of the opinion that the material does not raise such a reasonable hypothesis, the decision-maker is taken to be satisfied beyond reasonable doubt that the disease was not war-caused.
The tribunal, in considering whether the veteran had a disease other than PTSD, but probably involving "psychiatric problems" (as the court described them in Benjamin (above)), considers the case advanced for the applicant. The most helpful statement provided to the tribunal was Mr Dawson's proposition in paragraph 43(g) above that Mr Hunter joined the Teal happy and healthy and returned ill and with a drinking problem. This proposition was backed by sworn evidence from Mr and Mrs Hunter and by Dr Shand's acceptance that Mr Hunter was exposed on the Teal to something that he regarded as a stressor. The tribunal must be reasonably satisfied that this was the state of affairs. The tribunal finds itself so satisfied on the basis of that evidence.

As to the characterisation of the applicant's condition at the close of his operational service on the Teal in 1966, the tribunal, in the absence of any submissions on the matter from the parties, considers that it may have been alcohol abuse or dependence, the other disease already within the purview of the tribunal in this application, generalised anxiety disorder or adjustment disorder. There are SoPs in relation to each of these conditions.
The description of Mr Hunter's symptoms when he finished on the Teal appeared above in paragraphs 41 and 42. His oral evidence was that he increased his rate of drinking when on the Teal. It had increased again after the Melbourne/Evans collision. Mrs Hunter told the tribunal that Mr Hunter was not much of a drinker at all until he served on the Teal. He then drank regularly from the Teal period onwards.
ALCOHOL ABUSE OR DEPENDENCE
The tribunal considers that there is sufficient evidence to consider whether the veteran's alcohol dependence, as diagnosed by Drs Altman, Dinnen and, it would seem from ex R2/9, Dr Shand, was a war-caused disease.
The relevant SoP, 76/98, defines the disease. Given the unanimity of diagnoses and the lack of conflict between the parties as to the diagnosis the tribunal finds itself satisfied that the diagnostic criteria in clause 2 of the SoP are satisfied. The applicant relied on the experiencing of a severe stressor within the two years immediately before the clinical onset of alcohol dependence or abuse (factor 5(b)) as the relevant SoP factor relating operational service to the disease. The difficulty for the applicant is that the definition in SoP 76/98 of "experiencing a severe stressor" is in substance identical to that in relation to SoP 54/99 concerning PTSD analysed above. In accordance with step 3 in the Deledio case (above) the tribunal finds, for the same reasons as in paragraph 57 above, that the hypothesis as advanced does not accord with the requirements in the SoP on alcohol abuse or dependence. The tribunal therefore finds, in accordance with ss 120(3) and 120A(3) of the Act, that the hypothesis as raised was not a reasonable hypothesis and the applicant's alcohol abuse or dependence was not war-caused.
This finding has the consequence that, while Mr Hunter may have suffered from alcohol abuse or dependence when he completed service on the Teal, it was not war-caused alcohol abuse or dependence within the Act.
ANXIETY DISORDER
The definition of anxiety disorder in SoP 1/2000 captures generalised anxiety disorder, anxiety disorder due to a general medical condition and anxiety disorder not otherwise specified. Excluded are PTSD, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia. Anxiety disorder due to a general medical condition requires a connection between anxiety symptoms and endocrine, cardiovascular, respiratory, metabolic or neurological disorders (clause 5(b)). There has been no suggestion of a presence of any of these conditions in Mr Hunter.
Generalised anxiety disorder requires the presence of a number of features during Mr Hunter's period on the Teal in relation to which there is little if anything specifically before the tribunal. These include being easily fatigued, difficulty concentrating or mind going blank, irritability, muscle tension and difficulty falling or staying asleep (clause 8, definition of "generalised anxiety disorder", paragraph C). The most helpful material may be Mr Hunter's own statement about his time on the Teal (ex A2) where he indicated that while on the Teal he was constantly apprehensive and tense and filled with a sense of foreboding. These developed into constant fear while on patrol after the contact with the Indonesian vessel. He said that he became aggressive to other crew members and was involved in four fights. He said his drinking also increased. This would satisfy the requirements that he must have felt restless, keyed up or on edge, another of the required features. The SoP requires the presence of at least three of this galaxy of features on more days than not over a six months period.
The other features of generalised anxiety disorder required in the definition in clause 8 were probably present on the balance of probabilities during Mr Hunter's time on the Teal.
"Anxiety disorder not otherwise specified", as defined in clause 8, requires prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood. The tribunal considers that Mr Hunter's description of his feelings on the Teal suffice to establish prominent anxiety. The tribunal has not yet examined the potential for diagnoses such as the listed adjustment disorders but, subject to what it finds in relation to adjustment disorder, it finds itself reasonably satisfied that the diagnosis of anxiety disorder not otherwise specified is viable.
The SoP factor of relevance in view of the hypothesis is factor 5(a)(ii), "experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder". A "severe psychosocial stressor" is, according to clause 8, "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 …, major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems".
It will be noticed immediately that, for anxiety disorder, a severe psychosocial stressor embodies possibilities considerably less traumatic than for PTSD and which can be wholly subjective. Such a stressor is clearly very different from that required for PTSD or alcohol abuse or dependence. Referring to the hypothesis in this case, the Indonesian vessel encounter was presented as an identifiable occurrence that evoked in Mr Hunter feelings of substantial distress. In this context the material relating to the isolated situation of Mr Hunter on the Teal and his inability to see the vessel comes to the fore and it is not relevant that the Teal was not in fact in any danger. Mr Hunter did not, on the hypothesis, know that.
Clause 4 requires that the factor must be related to Mr Hunter's operational service. The tribunal finds that the hypothesis fulfils that requirement. He was performing his core service function as radio operator when the incident occurred and he was responsible for despatches related to it. In the tribunal's view this amounts to more than a mere temporal coincidence involving the anxiety and service. The anxiety is said to have arisen out of the service.
The tribunal finds that the battery of material ably assembled above by Ms Doggett to show that the hypothesis did not satisfy a SoP does not suffice to bring about the same result for the purpose of anxiety disorder. The tribunal further finds that a hypothesis, that the applicant's service on the Teal, specifically the encounter with the Indonesian vessel, was causally related to a condition of anxiety disorder suffered by Mr Hunter, is not fanciful, impossible, incredible, too remote or too tenuous a hypothesis.
The tribunal finds also that Ms Doggett's material in the context of anxiety disorder did not suffice to prove beyond a reasonable doubt that the applicant's condition post-Teal was not war-caused.
The tribunal finds, therefore, that, if the applicant suffered from no adjustment disorder at the close of his time on the Teal, he suffered from a war-caused disease of anxiety disorder.
ADJUSTMENT DISORDER
In considering possibilities of diagnosis the tribunal saw an adjustment disorder as potentially viable. The tribunal, as was the case in relation to anxiety disorder, was hampered by a lack of material from the parties on this issue.
There is a logical difficulty in finding that a veteran contracted an adjustment disorder attributable to events that occurred 35 years before that somehow still affect the veteran or, indeed, still affected him in 1969 when the Melbourne/Evans collision occurred. The relevant SoP is 57/96 and it echoes DSM-IV in requiring symptoms in response to a psychosocial stressor which had their onset within three months of the stressor and which did not persist for more than six months after cessation of the stressor.
However, clause 2 of the SoP contemplates that an adjustment disorder can be "chronic" if "the disturbance" lasts for six months or longer. It states that the symptoms may persist for a prolonged period "if they occur in response to a chronic stressor (typically a chronic disabling medical condition, for example, cardiorespiratory failure, malignancy) or to a stressor that has enduring consequences".
It is conceivable that the tribunal could find a diagnosis of adjustment disorder and that the hypothesis could satisfy the SoP requirements. However, clause 2(b) classifies this, as was the case with anxiety disorder not otherwise specified, as a diagnosis of last resort that is available only in the absence of other more precise diagnoses. Left to select between this disease and anxiety disorder, the tribunal considers that anxiety disorder is the more reasonable of the two conditions to apply. It is more closely related to the PTSD that all agree was present after 1969.
The tribunal will not therefore proceed further with this alternative diagnosis or hypothesis. In the tribunal's view it is unnecessary to do so.
PRESENTATION OF CASE BEFORE THE TRIBUNAL IN DISABILITY PENSION MATTERS
The decision of the full Federal Court to prefer the approach to diagnosis propounded in Benjamin (above) to that of Whitlam J in the first instance decision, Benjamin v Repatriation Commission (2001) 64 ALD 411, imposes a considerable burden on decision-makers. It is now clearly the case that decision-makers at all levels operating under the Act have an obligation to consider diagnoses other than those presented by a veteran, and the SoPs involved in those alternative diagnoses, and the possibility of a disease not covered by a SoP, before they can reject a claim. This requires decision-makers without medical training to do their best to arrive at a diagnosis and be aware of all feasible alternative diagnoses, even if no material on such alternative conditions has been presented. In the tribunal's case, of course, we have the great advantage of the contribution of our expert medical (and other) members when technical matters of this sort arise.
It must be in a veteran's best interests to present as much material as possible to the Commission when making a claim or, if a claim fails, when proceeding to the VRB or the tribunal. In the present case this was not done. The parties concentrated entirely on PTSD and alcohol abuse or dependence as the possible war-caused diseases. Mr Dawson's submission that something must have happened during operational service to Mr Hunter because he emerged a different man is, with respect, not very helpful. In such a case a veteran may emerge a different man or woman because of traumatic circumstances in their personal lives or because of a condition in no way related to service.
Parties who appear at the tribunal or the VRB and are prepared to leave it to the tribunal to work out for itself what may be an alternative diagnosis, whether the raised hypothesis then accords with a relevant SoP, and whether the tribunal can be satisfied beyond reasonable doubt that the disease found to be present according to the alternative diagnosis run the risk that the tribunal, despite its best endeavours, will overlook a viable diagnosis. While this may be remediable through the appeal process, it is surely preferable to aim for the most acceptable diagnosis and decision as early as possible in the process.
ASSESSMENT
The parties agreed before the hearing that if PTSD became an accepted disability the appropriate GARP rating was 35 (as per Dr Dinnen in ex A3). The tribunal has found the accepted disability to be anxiety disorder and considers that the different diagnosis should not affect the GARP rating. Chapter 4 of GARP is relevant to conditions resulting in emotional and behavioural effects and, in the tribunal's view, it would be artificial in this case to try and reduce or raise any ratings because of a different diagnosis that manifests itself in emotional and behavioural effects in any event.
The tribunal has considered for itself the validity of the agreement on the rating reached between the parties and finds no reason to disturb it.
CONCLUSION
The tribunal has found that the applicant suffers from the war-caused disease of anxiety disorder (not otherwise specified). The tribunal has also found that this attracts a rating of 35 in accordance with chapter 4 of GARP. This means that the applicant's rate of Disability Pension will rise with effect from 1 November 1999.
DECISION
The tribunal sets aside the decision under review and finds instead that the applicant suffers from the war-caused disease of anxiety disorder and that this decision is to operate with effect from 1 November 1999. The matter is remitted to the respondent for the assessment of the proper rate of pension.
I certify that the preceding 94 paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, and Dr M E C Thorpe, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  5 June 2001
Date of Decision  21 June 2002
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    Ms M Doggett, DVA Advocacy Service
Solicitor for the Respondent    Mr J Marsh, DVA