Hurn and Repatriation Commission - [2001] AATA 907

DECISION AND REASONS FOR DECISION [2001] AATA 907

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/496

VETERANS' APPEALS DIVISION       )
           Re      KENNETH HURN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date1 November 2001
PlaceAdelaide

Decision The decision of the Tribunal is that the decision under review with respect to generalised anxiety disorder is set aside and in substitution therefor it is determined that generalised anxiety disorder is a war-caused disease with date of effect being 5 July 1999.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – whether generalised anxiety disorder is a war-caused disease – relevant Statements of Principles - meaning of "experiencing a severe psychosocial stressor"

Veterans' Entitlements Act 1986 – ss 120, 120A,
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Williams [2001] FCA 1195
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Statements of Principles – Instrument No 48 of 1994 as amended by Instrument No 275 of 1995, and Instrument No 1 of 2000

REASONS FOR DECISION

1 November 2001 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Kenneth Hurn (the applicant) for review of a decision of a delegate of the respondent dated 6 January 2000 (T7/65-77) as affirmed by the Veterans' Review Board (VRB) dated 14 November 2000 (T2/5-13) rejecting the applicant's claimed condition of generalised anxiety disorder as war caused.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with 10 exhibits, four lodged by the applicant (Exhibits A1-A4) and six lodged by the respondent (Exhibits R1-R6). In addition, the Tribunal heard evidence from the applicant and Dr M. Ewer, Consultant Psychiatrist. The applicant was represented by Mr T. White, of counsel, and Mr G. Doube, a departmental advocate, represented the respondent.
The parties were in agreement that the applicant had a diagnosis of generalised anxiety disorder. Therefore, the sole issues in dispute between the parties were as follows:

whether or not the material before the Tribunal raised a reasonable hypothesis connecting the applicant's anxiety disorder with his war service in Vietnam; and
whether or not the Tribunal is satisfied beyond reasonable doubt that the applicant's incapacity did not result from a war-caused injury.

history of the application

The applicant was born on 11 January 1939 and had part-time service in the Australian Army in the Citizens' Military Forces (CMF) from 13 January 1959 until 10 July 1986, and full-time duty from 10 November 1969 until 27 November 1969 (T4/16-23). The applicant undertook operational service in Vietnam during the period 12 November 1969 to 26 November 1969.
On 5 October 1999, the applicant lodged a claim for pension in respect of, inter alia, "emotional behaviour disorder" (T5/53). This condition has now been diagnosed as generalised anxiety disorder.
On 6 January 2000 a delegate of the respondent rejected the claim for generalised anxiety disorder, on the basis that no such incapacity could be established, and gave notice of its determination that same day (T7/65-77). The delegate stated (inter alia) (T7/66):
"…
Investigation of generalised anxiety disorder has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. This information was provided by Dr M Ewer in his report dated 16/12/1999 in which he states 'Mr Hurn's Generalized Anxiety Disorder is now in remission' The claim for generalised anxiety disorder is therefore refused.
…"
On 17 January 2000 the applicant lodged an application to the Veterans' Review Board seeking a review of the Repatriation Commission's determination (T8/78).
On 14 November 2000 the Veterans' Review Board affirmed the decision of the Repatriation Commission and the applicant was advised of this decision in a letter dated 21 November 2000 (T3/14). In its decision, the VRB stated (inter alia) (T2/10-11):
"…
The Board noted that the veteran continued with his civilian employment with no apparent problems following his visit to Vietnam. He did not seek any medical treatment for anxiety or similar condition until he saw Dr Ewer in 1999. His Army medical records show that at a medical examination on 4 October 1971 the veteran had completed a medical questionnaire and indicated that he had not suffered headaches, sleepwalking or nightmares or any mental illness – nervous breakdown. At the medical examination the Medical Officer has recorded the veteran's nervous system, emotional stability and mental capacity as 'normal'. Army medical examinations in 1983, 1984 and 1986 record the same areas as 'normal'.
The Board found considerable inconsistencies between the history in Dr Ewer's report, the written contentions by the veteran and the oral evidence given at the hearing. The description of the incidents in the history recorded by Dr Ewer changed following the receipt of the report by the military researcher and again changed during questioning by the Board. After considering all the evidence, and in particular the oral evidence given at the Hearing the Board found that none of the incidents described by the veteran could be classed as a stressful event.
The Board also noted that while Dr Ewer suggests that the veteran suffered from the symptoms of generalised anxiety disorder on his return from Vietnam. The evidence given by the veteran in Exhibit 1, responses to questions from the Board and in particular the veteran's Army medical records indicate that this was not the case. The Board found that the clinical onset of generalised anxiety disorder did not occur within two years of the veteran's service in Vietnam.
…"
On 19 December 2000 the applicant lodged with the Tribunal an application seeking a review of the VRB's decision (T1/1-4).
statements of principles
The parties raised two SoPs before the Tribunal, one current and one that has been revoked but was in force at the time that the respondent made its original determination. The applicant is seeking to rely upon the earlier SoP and the respondent is seeking to rely upon the current SoP.
SoP No.48 of 1994 (as amended by Instrument No.275 of 1995) provides (inter alia) (T15/109-111):
"…
1.        Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder and death from generalised anxiety disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are:
…
(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or
…
2.        Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(d) must be related to any service rendered by a person.
…
4.        For the purposes of this Statement of Principles:
"generalised anxiety disorder" means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):
(a)excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i)        the person finds difficult to control; and
(ii)which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months:
(A)      restlessness or feeling keyed up or on edge;
(B)      being easily fatigued;
(C)      concentration difficulties or mind going blank;
(D)      irritability;
(E)      muscle tension;
(F)sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and
(iii)the focus of which is not confined to features of an Axis I disorder, for example, it is not about:
(A)      having a Panic Attack (as in Panic Disorder); or
(B)      being embarrassed in public (as in Social Phobia); or
(C)      being contaminated (as in Obsessive-Compulsive Disorder);
or
(D)being away from home or close relatives (as in Separation Anxiety Disorder); or
(E)      gaining weight (as in Anorexia Nervosa); or
(F)having multiple physical complaints (as in Somatization Disorder); or
(G)      having a serious illness (as in Hypochondriasis); and
(iv)      it does not occur exclusively during Post-Traumatic Stress Disorder;
and
(v)either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(b)       which is not due to the direct physiological effects of:
(i)        a drug of abuse; or
(ii)       a medication; or
(iii)      a general medial condition (such as hyperthyroidism); and
(c)which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
…
"stressful event" means an occurrence which evokes feelings of anxiety or stress.
…"
SoP No.1 of 2000 provides (inter alia):
"…
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, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
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
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"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;
…
"relevant service" means:
(a)       operational service; or
(b)       peacekeeping service; or
(c)       hazardous service;
"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;
…"

legislation

The applicable standard of proof is that contained in sub-sections 120(1) and 120(3) of the Act. Therefore, the Tribunal is required to find that the applicant's generalised anxiety disorder was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. Sub-sections 120(1) and 120(3) of the Act provide:
"…
120Standard of Proof
…
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-cause injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying (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.
…"

applicant's evidence

The applicant referred to his written statement (Exhibit A2).
The applicant was born on 11 January 1939 and served part-time in the CMF for 11 years before going to Vietnam on 12 November 1969. The applicant told the Tribunal that in the CMF he was a communications officer, responsible for high power radio and telephone communications and had only undergone a short period of training with the infantry. The applicant testified that the only times that he had carried a weapon in Australia were during parades. The applicant stated that his job as a civilian was working in the telephone exchange in the Post Master General's Department.
The applicant testified that he was still a member of the CMF when he went to Vietnam at the age of 30 years. He was attached to the Signal Squadron and had the rank of Captain. The applicant testified that he went to Vietnam in the role of observer – to compare the operational theatre with the training procedures in place in Australia. The applicant explained that it was not an operational role and he was not responsible for troops, but rather was to get a feel for the lie of the land and how things worked. The applicant stated that he was aware that he was going to Vietnam approximately six months before leaving but he received no specialised training and only underwent medical examinations to ensure he was fit to go overseas.
The applicant agreed during cross-examination that he was aware that Vietnam was a war zone but he testified that he was not sure what he would find. From his past experiences, consisting of exercises, he was aware that in Vietnam there was no identifiable defined enemy as such and any Vietnamese person could be the enemy.
Upon his return from Vietnam, the applicant continued to engage part-time as an officer in the CMF until he was compulsorily retired at age 47 years on 12 July 1986. The applicant testified during cross-examination that during his part-time service after Vietnam, he was still prepared to go again to a war zone if necessary, even though he claimed to have had an anxiety disorder at the time as he did not connect his personal feelings with his duty of service to Australia.
The applicant described several stressful events that he experienced during his operational service in Vietnam. However, the applicant principally relied upon two incidents for the purposes of establishing his generalised anxiety disorder, namely, experiencing a "stand to" call in Nui Dat Base on 13 November 1969 which required the applicant to locate his bunker complex unarmed and in complete darkness (the "stand to" incident), and becoming separated from his rifle in the village of Ba Ria (the rifle incident).
The applicant gave evidence that he flew from Sydney to Saigon, arriving on 12 November 1969. The applicant stated that he then flew from Saigon to Nui Dat on a C130A baby Hercules or "Provider" which had no seats and he had to sit on the floor hanging on to the cargo straps. The applicant testified that he arrived in Nui Dat after the evening meal and was taken to headquarters where he was supposed to attend a briefing. However, because he arrived so late in Nui Dat he missed it and an operational officer gave a separate, shorter briefing. The applicant testified that he was not allocated with a weapon at that time.
The applicant then described to the Tribunal the "stand to" incident which occurred on 13 November 1969 at Nui Dat base. To assist in portraying a clear picture of the incident, the applicant provided to the Tribunal a diagram illustrating the area (Exhibit A4). After the evening meal, the applicant was reading a magazine in the officers' mess when he heard a siren at around 9 or 10pm. He saw people moving out of the mess, but they did not appear to be in a hurry. He did not understand what was going on. An officer ran in and said "follow me" to the applicant and ran out the side door to the mess. The applicant followed but lost sight of him once outside in the darkness. The applicant testified that there was no moon and the lights in the Base were going out. The applicant stated that he decided to try and make his way back to the 104 Signal Squadron Bunker. He found the wire fence surrounding the task force headquarters and used it as a guide to find his way back to the Bunker. He was unarmed at the time. Whilst following the wire fence he came upon the entrance to the headquarters, where there was a machine gun pit with extensive barbed wire surrounding it. He was then led around the machine gun pit by one of the soldiers in it as it was too dark to see.
The applicant testified that it took him a very long time to get back to the signals bunker and he was feeling very apprehensive. Although the distance he walked was less than 100 metres, he was by himself, in the dark and unarmed for quite a long while. The applicant stated that upon his return to the bunker, he made himself as insignificant as possible as he was involved with operational procedures. Other people in the bunker were moving around doing things whilst he stayed out of the way. The applicant said that in the bunker he felt very apprehensive but safer than when he was outside.

The applicant testified that there was a siren to cease the "stand to" approximately 45 minutes after the original siren and people began to move from their operational positions to areas where they ordinarily operated.
The applicant gave evidence that during his briefing when he initially arrived in Nui Dat, he had not been informed what the "stand to" procedure was and where he was to go. At the time it was thought that there might be some Viet Cong activity at Nui Dat Base because it was near Armistice Day. However, as far as he was aware, there was no attack on that day.
The applicant told the Tribunal during cross-examination that on the day that he arrived in Nui Dat, he had been shown around the Signals bunker and had had dinner in the officers' mess that night as well as lunch and dinner on the following day. The applicant agreed that he had a clear understanding of where the signal squadron bunker was in relation to where he slept and had passed by the task force headquarters compound with its fence during the daytime. However, on his previous visits to the mess, he had passed the compound on the opposite side.
The applicant gave evidence that this was the first traumatic incident that he had experienced where he was in fear of his life. The applicant agreed during cross-examination that he had been keen to go to Vietnam and had been in the CMF for 11 years prior, however, he had never been in a position where someone might shoot at him. The applicant testified during cross-examination that his training had been in the communications area and his primary role was not defence. The applicant gave evidence that upon his arrival in Vietnam, he expected to be confronted with situations of conflict, but not without a weapon.
The applicant testified during cross-examination that the "stand to" incident made him anxious and distressed because he felt helpless in a dangerous situation. The applicant gave evidence that despite the fact that the task force headquarters was 2½ kilometres inside Nui Dat Base, he still felt threatened and that anyone could fire in from outside the Base.
The applicant testified that after leaving the bunker once the "stand to" was over, he went to his sleeping quarters and did not tell anyone about his experiences. The applicant explained that at that time he was a senior captain in the Army and was not supposed to say to those serving under him that he was afraid. The applicant gave evidence that the next morning after the "stand to" incident, he felt apprehensive but took confidence from those around him – their demeanour suggested that the danger at the time was reduced.
The applicant testified that on 15 November 1969 he was travelling in a Land Rover with the Civil Affairs Unit, a unit whose role was to attend at various Vietnamese villages to repair buildings, windmills and schools. The applicant was with the unit to document what it was doing and he went with the vehicle throughout the province. The applicant testified that he was sitting in the front of the vehicle and there was a rifle issued to the applicant in between the seats in the front of the vehicle. There were two or three other people in the back of the Land Rover. He stated that whilst in the vehicle he felt safe as he was in a group of people all of whom were armed.
The applicant gave evidence that when the vehicle arrived during the morning in a village in the province of Ba Ria, eight to ten kilometres south of Nui Dat, the applicant decided to get out of the vehicle to take a photograph of a market scene and as he took the photograph, the vehicle moved away. The applicant stated that he then realised that he did not have his rifle with him but had left it in the Land Rover. The applicant stated that the vehicle moved up the laneway about 10-15 metres before he managed to catch up with it. The applicant testified that at the time he felt very afraid as it was his first time in close proximity with Vietnamese civilians and in the training he had received, he had been taught that in Vietnam there was no discernible enemy and that any person at any time could attack. The applicant testified that at the time he was very acutely conscious of being an Australian, unarmed, in a foreign country.
During cross-examination, the applicant testified that when he got out of the vehicle to take the photograph, another man from the back of the vehicle got out too but he did not know whether this other man had a rifle with him. The applicant gave evidence during cross-examination that he would have felt differently if he had had his rifle with him as he would have felt more secure. The applicant testified that he believed the situation had the capability of being a life-threatening incident and after he caught up with the vehicle, he was trembling, thinking about his narrow escape, before putting his emotions firmly in check. The applicant testified that he got to the vehicle before the other man did and no one in the vehicle made any remarks. The day afterwards the applicant noticed that he did not feel as comfortable being in Vietnam as when he first arrived.
The applicant described to the Tribunal another incident which occurred on 26 November 1969 at Bearcat Airbase. The applicant stated that he had been flying from Vung Tau to Saigon to leave the country. It was his first time at the Base and the plane that he was on was a mail carrier to Saigon. The aircraft did not pull up to the terminal after landing but rather stayed on the runway which was unusual. The applicant was told that two Vietnamese children had wheeled a pram up to the gate of the Base. The children were told to stop and they ran away. The pram was discovered to have explosives in it but the applicant did not see or hear any explosion.
The applicant testified that the "stand to" incident and the rifle incident were of more concern to him than this incident at Bearcat Base. In relation to the "stand to" incident, the applicant testified that this was the most traumatic to him in that he had no weapon, he was alone, a foreigner, had no idea where to go and only understood that he should get underground as soon as possible. The applicant testified that the rifle incident reinforced these feelings of fear but whilst he was in Vietnam he tried not to appear fearful.
The applicant testified that once in Saigon, his paperwork was completed and he then boarded a flight to Australia. Upon his return to Australia, he had the weekend off and then commenced to serve in the same division as before he left. His Reserve service consisted of one weekend per fortnight, one fortnight per year and three hours per week.
The applicant testified that upon his return he was still upset from the two main incidents that occurred in Vietnam, but he tried to follow his father's advice and act as if nothing had happened and put it all behind him. He tried to live life as normally as possible. At the time he had three children and his wife was not working. The applicant testified that he had conflict with his eldest son a couple of years later which resulted in his son leaving home, before being killed in a car accident at age 17½ years. The applicant testified that after returning from Vietnam, he had separated from his wife in his mind but had tried very hard to get back to what he considered to be normal.
The applicant stated that on the first occasion that he saw Dr Ewer, which resulted in the production of Dr Ewer's first report dated 16 December 1999 (T6/59-64), he did not establish a rapport with Dr Ewer and was not fully open with him. The applicant testified that he had no idea what Dr Ewer wanted him to say and was of the opinion that Dr Ewer was young with little life experience.
The applicant told the Tribunal during cross-examination that he went to see Dr Ewer for the second time after his claim was rejected and he had an appeal to the VRB under way. The applicant testified that this time, his wife came along and instructed him to open up and talk about his experiences in Vietnam. During cross-examination, it was pointed out to the applicant that there were differences in what he told Dr Ewer on the different occasions that the applicant saw him. For example, at the first interview, the applicant told Dr Ewer that his irritability had almost completely resolved, whereas at the second and third interviews, the applicant told Dr Ewer that he was angry and irritable and had been so since Vietnam. The applicant explained this discrepancy by stating that at the first appointment he was possibly trying to give Dr Ewer the answer he was looking for and was trying to hold his feelings inside.
The applicant agreed during cross-examination that it was only when he received his written reasons from the primary delegate that he realised his disability had to be causally related to his war service. The applicant told the Tribunal that he was more forthright and truthful on the second time he went to see Dr Ewer because his wife said if he did not open up, she would break up with him. The applicant said that on his second visit to Dr Ewer, he told Dr Ewer a lot more, putting his personal feelings and pride aside.
In relation to the incident of the pram on the airbase, the applicant testified during cross-examination that he did not change his story during subsequent interviews with Dr Ewer in light of the historian's report produced by the Department. The applicant stated that he had told Dr Ewer from the start that he did not see or hear any explosions and the pram was outside the perimeter and not on the tarmac.
The applicant during cross-examination described an incident where upon leaving Saigon on the plane, he was on a Boeing 707 that was on the runway and was accelerating when all of a sudden the aeroplane stopped and taxied back. The second takeoff was unusual in that the aeroplane did not climb rapidly but levelled off relatively low and only began climbing once it passed Vung Tau. When the plane was low, the pilot started saying over the intercom that the plane was receiving Naval gunfire and that he would "have to fly like a Tigermoth".
The applicant testified that upon his return from Vietnam his immediate symptoms were that he became withdrawn, angry, did not communicate well, was not sleeping well, had family problems and was more withdrawn and reserved at work. The applicant testified that he did not mention these symptoms to others because he did not think that he had a problem.
The applicant told the Tribunal that his ongoing symptoms include problems sleeping – he is up every two to three hours, is restless in bed, has night sweats and rarely goes to bed before midnight. In terms of his interaction with his family, he has not seen his mother in two years and he has not seen his daughter since the beginning of the year. He stated that his friends live only a short distance away but he has not seen them for two to three months.
evidence of dr m. ewer
Dr Ewer is a consultant psychiatrist who first saw the applicant in 1999. He told the Tribunal that he has an interest in post traumatic stress disorder and has seen a large number of Vietnam War veterans. He stated that 40% of his practice involves dealing with veterans in general and he believes that he has a fair understanding of the major events that occurred in the Vietnam War He prepared three reports in relation to the applicant. From his report dated 27 July 2001 (Exhibit A3) the Tribunal notes (inter alia):
"…
1.Mr. Hurn continues to suffer from the axis-1 psychiatric diagnosis of a Generalized Anxiety Disorder. In my opinion, this condition has been continuously present since he returned from Vietnam.
2.I am aware that the Statement of Principles which have been put out by the Repatriation Medical Authority define a severe psychosocial stressor which must have occurred during a Veteran's eligible service for the condition of a Generalized Anxiety Disorder to be considered to be service related. I note the examples the Statement of Principles gives with respect to a severe psychosocial stressor. In my opinion, the events described by Mr. Hurn are clearly identifiable events which were severely stressful. They evoked significant feelings of anxiety and fear in Mr. Hurn and these events would evoke a similar response in most other people. Indeed, in one of the events Mr. Hurn feared that he was going to fall out of a plane. He had only the baggage net to hang on to. In another event Mr. Hurn arrived at Nui Dat and two days later he got lost in the middle of the night when there was a siren calling the men to a 'stand to'. On another occasion he got separated from his rifle in a Vietnamese village called Ba Ria where conflict with the enemy had been known to occur. He also had been informed of a bomb planted in an airbase he was visiting. Consequently all of these occurrences constitute 'severe psychosocial stressors' as described by the Statement of Principles.
3.Upon carefully reviewing Mr. Hurn's history it is my opinion that his Generalized Anxiety Disorder emerged within two years of him experiencing the above stressful events.
…"
In oral evidence in support of his reports, Dr Ewer told the Tribunal that on the first time that he saw the applicant on 15 December 1999, he considered two possible diagnoses of the applicant, namely generalised anxiety disorder and adjustment disorder with anxious mood, before favouring the diagnosis of generalised anxiety disorder. It was Dr Ewer's opinion that the applicant's symptoms were present upon his return from Vietnam.
When asked to compare the definitions of "experiencing a stressful event" as found in SoP No.48 of 1994 (T15/109) and "experiencing a severe psychosocial stressor" as found in SoP No.1 of 2000 (Exhibit R6), Dr Ewer gave the opinion that the latter term was a more severe definition, involving a more significant occurrence or event.
Dr Ewer testified that at the time of his first interview with the applicant, the applicant told him about the "stand to" incident and the rifle incident. Dr Ewer gave the opinion that those two incidents evoked feelings of distress and anxiety in the applicant and that the two incidents would satisfy the definition of "experiencing a stressful event" as found in SoP No.48 of 1994.
Dr Ewer testified that on the second occasion that he saw the applicant on 13 April 2000, the applicant told him that he was not open with him at the last interview and that he consciously concealed emotional symptoms because he had difficulty talking about them. The applicant had stated to Dr Ewer: "I covered them up because of bravado" (T10/81). Dr Ewer gave evidence that the applicant was more open on this second occasion and had his wife present and she gave Dr Ewer some additional information about the applicant, in particular the way that he behaved when he first returned from Vietnam. Dr Ewer explained the applicant's reluctance to open up at the first interview as being due to the fact that some patients find it confronting to go to a psychiatrist and it takes a while to build up a rapport. Dr Ewer gave the opinion that such patients are likely to downplay their symptoms on the first visit, but on the second visit they are more open.
Dr Ewer gave evidence that at the time of his third interview with the applicant, on 12 July 2001, the applicant detailed to him again the two main incidents and in particular how the applicant felt intensely frightened during the "stand to" incident and a sense of panic and anxiety during the rifle incident. Dr Ewer testified that in addition to these two incidents, the applicant also mentioned other incidents which the applicant felt affected him.
Dr Ewer stated that the applicant had told him that he was a member of the CMF, that he was not a regular serving member of the Army before going to Vietnam and that as he was going to Vietnam as a liaison person rather than as part of the war effort, he had not received vigorous training in preparation. Dr Ewer testified that there is considerable evidence that training prepares people for crises and that the applicant would have been more susceptible to stressful events in Vietnam in the absence of such training.
Dr Ewer stated that at the time of preparing his third report (Exhibit A3) he had before him SoP No.1 of 2000, with its definition of "severe psychosocial stressor". Dr Ewer gave the opinion that the applicant experienced distinct events in Vietnam that stressed him severely and he experienced feelings of anxiety, fear and panic. Dr Ewer gave the opinion that both the "stand to" incident and the rifle incident fulfilled the definition of "severe psychosocial stressor" as found in the SoP, as well as the definition of "experiencing a stressful event" as found in SoP No.48 of 1994.
During cross-examination Dr Ewer agreed that when looking at the definition of "experiencing a stressful event" it is not sufficient for a person to merely experience anxiety and stress but rather that those stressful events must cause a psychiatric condition in the person, rather than be just ordinary daily anxieties that people get. Dr Ewer gave the opinion that the two incidents highlighted were of sufficient significance as to cause ongoing generalised anxiety disorder in the applicant.
When asked during cross-examination about exactly what the applicant told him about the rifle incident, Dr Ewer testified that the applicant told him that he was in a vehicle in Ba Ria and wanted to take a photograph and then when his vehicle took off without him, he realised that he had left his rifle in the vehicle. The applicant then ran after it and was reunited with his rifle. Dr Ewer testified that the applicant told him that when the vehicle set off, he did not know that he would catch it and was worried that he would be left behind unarmed. Dr Ewer gave the opinion that such an event occurring in a war zone to a person who was not highly trained would have caused them to immediately experience the symptoms associated with anxiety disorder – anxiety, fear, panic, racing heart, sweating and a feeling of being overwhelmed and unable to cope. Dr Ewer stated that these symptoms would continue on in the form of more anxiety, irritability and sleep disturbance.
Dr Ewer testified that he made no attempt to verify whether any of the incidents described by the applicant occurred. Dr Ewer stated that he had no reason to consider that the applicant was not being truthful during his first or subsequent interviews with the applicant as the applicant had told him about the events several times in the same way and did not try to exaggerate. It was Dr Ewer's opinion that on each occasion that he saw the applicant, the applicant came out with something in addition because he felt more comfortable. Dr Ewer stated that he was unaware that the applicant's claim for anxiety disorder had been rejected prior to his second interview.
During cross-examination, Dr Ewer gave the opinion that the incident with the exploding pram near the Air Base was quite reasonable as it was not uncommon during the Vietnam War for children to approach soldiers with bombs attached. Dr Ewer stated that the applicant did not tell him that he witnessed the event and it was Dr Ewer's understanding of the event that there were children wheeling a pram towards a plane that the applicant was on. Dr Ewer referred to his notes and indicated that at the time of the interview he had written "at the airbase" and had interpreted that to mean "on the airbase". Dr Ewer testified that from his notes of interview of 12 July 2001, it appeared that it was then that it first became clear to him that the applicant did not witness the pram incident. Dr Ewer gave the opinion that this pram incident was not as stressful to the applicant as the "stand to" incident and the rifle incident because he did not witness the pram incident but was personally involved in the other incidents. Dr Ewer did not agree that the applicant was inconsistent in his statements at each interview but rather the applicant had elaborated and given more detail.

When asked during cross-examination about the "stand to" incident, Dr Ewer gave evidence that the distance the applicant had to travel and the length of time that it took were not an issue but rather what was pivotal was the fact that there was a siren going and the applicant was in the dark, alone and unarmed. Dr Ewer gave the opinion that it was quite common to be "mortared" within Nui Dat Base itself. Dr Ewer agreed during cross-examination that he had no record of the applicant mentioning the "stand to" incident or the rifle incident at the second interview.
Dr Ewer gave the opinion during cross-examination that it was not surprising that there were no medical records on the applicant's file or with his general practitioner indicating any psychiatric or emotional problems since he returned from Vietnam. Dr Ewer stated that many veterans go to considerable lengths to cover up any problems and that anxiety is a very frequently missed diagnosis by general practitioners. Dr Ewer further stated that the medical information available in 1969 was very different to that available now.
applicant's submissions
Mr White submitted on behalf of the applicant that first of all, in relation to which SoP was to apply, the decision of the Full Federal Court in Repatriation Commission v Gorton [2001] FCA 1194 stood as authority for the proposition that the Tribunal is to consider the SoP which is more favourable to the applicant, independently of whether the SoP was in force at the time of the Commission's decision or in force at the time of the Tribunal's hearing of the matter. Mr White submitted that SoP No. 48 of 1994 as amended was the more beneficial SoP for the applicant due to the less stringent definition of "experiencing a stressful event" as opposed to the definition of "experiencing a severe psychosocial stressor" as found in SoP No. 1 of 2000. The applicant submitted however, that the choice of SoP made little difference, as the evidence of the applicant and Dr Ewer illustrated that the events the applicant experienced in Vietnam were of sufficient seriousness to satisfy either definition.
Mr White submitted that, in considering whether or not the material before the Tribunal raised a reasonable hypothesis connecting the applicant's generalised anxiety disorder with his operational service in Vietnam, the hypothesis raised was clearly that during the applicant's operational service he experienced a stressful event not more than two years before the clinical onset of his generalised anxiety disorder.
Mr White submitted that the applicant's diagnosis of generalised anxiety disorder was not in dispute. Therefore, the definition of generalised anxiety disorder as set out in the SoP could be considered to have been met on the evidence of the applicant and Dr Ewer.
Mr White submitted that the sole issues in dispute in this matter are whether the applicant experienced stressful events and whether the clinical onset of generalised anxiety disorder was within two years of the applicant's experiencing a stressful event.
Mr White referred the Tribunal to the report of Dr Ewer (T6/59) in which the applicant outlined the two incidents in issue and how they made him feel, namely, "frightened" during the "stand to" incident (T6/59) and "anxious and apprehensive" during the rifle incident (T6/60). In addition, Mr White pointed out that Dr Ewer came to his diagnosis at a very early stage and considered that the applicant had generalised anxiety disorder or adjustment disorder after his return from his trip to Vietnam. Therefore, the applicant satisfied clinical onset within 2 years. Mr White submitted that the applicant found Dr Ewer difficult to open up to, but still he mentioned the two relevant incidents to Dr Ewer on the first visit.
In relation to the fact that Dr Ewer in his second report did not mention the two relevant incidents, Mr White submitted that it was not a situation where the applicant was changing his story over time or being untruthful, but rather Dr Ewer did not address the original incidents because he had already mentioned them in a previous report and had instead focused on the new incidents mentioned by the applicant at the second interview. Mr White further submitted that the applicant was able to open up more on the second occasion because his wife was present and she had given him strict instructions about being more open. Mr White submitted that after the second interview, Dr Ewer confirmed his original diagnosis in his second report and again emphasised that he believed the condition had its origins in Vietnam (T10/83).
Mr White further submitted that in his final report (Exhibit A4, page 2), Dr Ewer again addressed the two more stressful incidents that the applicant raised and the feelings that the incidents evoked in the applicant, ie, "intensely frightened" during the "stand to" incident and "a sense of panic and anxiety" during the rifle incident.
Mr White submitted that Dr Ewer's evidence was quite clear that either one or both of the two major incidents were stressful events as both evoked feelings of stress and anxiety in the applicant. Mr White submitted that in addition, the applicant and Dr Ewer described events that satisfied the stricter definition of "experiencing a severe psychosocial stressor".
Mr White submitted that it was important to remember the context in which the two incidents occurred. Mr White submitted that the applicant had little infantry training and was not as good at handling weapons and confrontations generally. In relation to the "stand to" incident, it was not just the distance he travelled but the circumstances, and the fact that he was isolated in a dark unfamiliar environment without a weapon could constitute a life-threatening incident.
Mr White submitted that both the third and the fourth stages of the test set out in Repatriation Commission v Deledio (1998) 83 FCR 82 (the Deledio test) had been met. Mr White submitted that the evidence of the applicant and Dr Ewer and the medical documentation satisfied the two elements of the hypothesis in this case, namely that the applicant experienced one or two stressful events within two years of the clinical onset of his generalised anxiety disorder. Mr White emphasised that at the third stage, no fact finding occurred – the issue was just whether the hypothesis put forward by the applicant was reasonable.
Mr White submitted in relation to the fourth stage of Deledio that the Tribunal had to determine that it was satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. It was submitted that this could occur in one of two ways – either one or more of the facts can be disproved beyond reasonable doubt or the truth of another fact which was inconsistent could be proved beyond reasonable doubt. Mr White submitted that neither of these had occurred in this case and therefore, the Tribunal could not be satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. Therefore, it was submitted, the applicant's claim for generalised anxiety disorder should be accepted as arising from his war service.
respondent's submissions
Mr Doube submitted on behalf of the respondent that the issue before the Tribunal is whether the applicant, during the two weeks of his war service in Vietnam, was exposed to stressful events of sufficient severity to cause an ongoing and immediate anxiety disorder.
Mr Doube submitted that the difference between SoP No. 48 of 1994 (as amended) and SoP No. 1 of 2000 was in the definitions of "stressful event" in the former and "severe psychosocial stressor" in the latter. Mr Doube submitted that there had been lots of discussion whether "stressful event" as found in SoP No. 48 of 1994 was a lesser standard than "severe psychosocial stressor" as found in SoP No. 1 of 2000. However, the difference between the two was essentially irrelevant because both definitions were concerned with an incident provoking anxiety and distress of sufficient severity to cause an immediate and ongoing anxiety disorder. Mr Doube submitted that, therefore, the term "stressful event" was not referring to the ordinary anxieties and stresses confronting a person in everyday life.
Mr Doube submitted that in this case, the applicant volunteered to go to Vietnam at 30 years of age and had been a serving member of the CMF for 11 years when he went to Vietnam. Therefore, he knew he was going to a war zone and his CMF training prepared him for this. He went to Vietnam as an observer with no operational role.
It was submitted that the applicant had referred to a number of events that occurred to him in Vietnam, but considered only two to be life-threatening: the "stand to" incident and the rifle incident. Mr Doube submitted that by all normal understanding, in no way could they be considered life-threatening or of sufficient severity to cause an immediate and ongoing anxiety disorder.
Mr Doube submitted that the applicant served in Vietnam for two weeks and upon his return he continued to serve with the CMF on the same terms and continued to be available for overseas war service if required. It was submitted that the applicant continued to work for the Post Master General's Department and never sought medical attention for his condition relating to his war service. It was submitted that the first time that the applicant approached anyone about his problems was in 1999, 30 years after his war service in 1969, after he attended a Vietnam Veterans' Association function. It was submitted that the applicant confirmed that even though he claimed in 1999, he did not realise the provisions for causation until receiving his reasons for decision rejecting his conditions.
In relation to the "stand to" incident, Mr Doube submitted that the applicant had been to the mess on two other occasions, including in broad daylight and the applicant had been shown the lay of the land, the signals bunker and the sleeping quarters. Although he had not been to the front of the task force headquarters, he knew where he had to go. Mr Doube submitted that for the duration of the incident, the applicant was deep inside Nui Dat Base. It was submitted that during his evidence before the Tribunal the applicant stated that felt "apprehensive" rather than distressed after the "stand to" incident. Mr Doube submitted that this incident was not life-threatening.
In relation to the rifle incident, Mr Doube submitted that the Land Rover in which the applicant was travelling had no side doors and therefore was open to risk or attack at any time. It was submitted that the applicant was not afraid all the way through the Vietnamese countryside and on the road and when the vehicle stopped in the village, the applicant chose to get out of the vehicle to take a photo, much like a tourist, at which time he clearly perceived that he was not in danger. It was submitted that someone else also got out of the vehicle. It was submitted that the vehicle moved away but it was only to a distance of at most 15 metres.
Mr Doube submitted that this was not a life-threatening incident which impacted upon the applicant to such a degree that it caused an immediate and ongoing anxiety disorder. Mr Doube submitted that in assessing events, there should be a test of reasonable objectivity – they must be incidents which are severe enough to cause an anxiety disorder. It was submitted that by all reasonable analysis of the incidents, neither was life-threatening in any way.
Mr Doube submitted that Dr Ewer's opinion was that the incidents could be causal in the applicant's development of anxiety disorder. However, Dr Ewer was not present during the incidents and received no corroborative evidence of their occurrence. It was submitted that Dr Ewer had made no investigations or inquiries about any of the incidents that the applicant mentioned. It was submitted that a number of the incidents that the applicant was not relying upon were dubious and the historian's report (T13/100-107) revealed that it was more likely than not that the incidents did not occur.
It was submitted that the applicant's service documents after his Vietnam War Service never mentioned any anxiety or stress-related symptoms and in addition, the applicant attended the same GP practice for 20 years and was never treated for stress or anxiety prior to seeing Dr Ewer.
Mr Doube submitted that the chronology in this matter was important in that at each interview that the applicant had with Dr Ewer, the applicant said something different. Mr Doube submitted that the applicant's story changed according to whether he believed a particular story would advance his claim.
It was submitted that of the two incidents relied upon by the applicant, neither could be reasonably construed to be life-threatening nor of sufficient severity required by the SoP's to cause ongoing anxiety disorder. It was submitted that the applicant said that he felt apprehension in the days following the "stand to" incident. It was submitted that feeling apprehensive is not sufficient evidence of the turmoil one would expect to find in someone with generalised anxiety disorder. It was submitted that as the applicant was in a war zone, it was understandable that he would be feeling apprehensive. It was further submitted that in relation to the rifle incident, the applicant had mistakenly separated himself from his rifle but was reunited with it shortly afterwards. Mr Doube submitted that this was not sufficient to qualify as the sort of stressor that would cause immediate and ongoing anxiety disorder.
Mr Doube submitted that in considering the definition of "stressful event" as found in SoP No. 48 of 1994, it was not sufficient for the applicant to have subjective feelings of anxiety and distress but rather there must be a causal link. Mr Doubt submitted that the difference in the wording between the two SoP's was essentially semantics and that both SoP's are talking about incidents of such severity as to cause the onset of ongoing and enduring anxiety disorder.
discussion and findings
It is not in dispute between the parties that the applicant currently has a diagnosis of generalised anxiety disorder. This diagnosis is supported by the opinion of Dr Ewer, Consultant Psychiatrist. The Tribunal has considered the diagnostic criteria contained in DSM-IV and in paragraph 4 of SoP No.48 of 1994 (as amended) and paragraph 8 of SoP No.1 of 2000 and is reasonably satisfied that the applicant does indeed suffer from the condition of generalised anxiety disorder.
Sub-sections 120(1) and (3) of the Act prescribe the standard of proof to be used in making a determination where the claim relates to operational service. It is not in dispute, and the Tribunal so finds, that the applicant had operational service in Vietnam as outlined in paragraph 4 of these reasons.
A claim made on or after 1 June 1994 that relates to operational service rendered by a veteran is affected by section 120(A) of the Act, which provides that a hypothesis connecting a person's disease with the circumstances of any particular service rendered by the veteran is reasonable only if there is in force an SoP that upholds the hypothesis. In other words, the hypothesis raised by the material will only be reasonable if the hypothesis "fits" the template of the SoP.
The Tribunal would indicate that it is mindful of the steps to be taken when considering matters of this nature as set out in the Full Federal Court's decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
"…
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
…"
The Tribunal considers each of the steps raised in Deledio in turn. In respect of the first point, the Tribunal is satisfied that, considering the whole of the material before it, a hypothesis has been raised connecting disease with the circumstances of the particular service rendered by the applicant and so finds. The hypothesis raised is that the applicant suffers from generalised anxiety disorder which is causally related to either of two incidents, namely the "stand to" incident and the rifle incident which occurred during his operational service in Vietnam.
In respect of the second step, the task of the Tribunal is to ascertain whether there is in force an SoP determined by the Authority under sub-sections 196B(2) or (11) of the Act relevant to the above hypothesis. It is clear that as far as generalised anxiety disorder is concerned, there is both a revoked SoP (Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995) and a current SoP (Instrument No. 1 of 2000). As at the date of the respondent's refusal to accept generalised anxiety disorder as being war-caused, the relevant SoP was No. 48 of 1994 as amended. As at the date of the Tribunal hearing the matter, the relevant SoP was No. 1 of 2000.
As to the applicable SoP, the Tribunal has been guided by and has followed the reasoning of Allsop J (with Emmet J in agreement) in Repatriation Commission V Gorton [2001] FCA 1194 and affirmed by Allsop J (with Emmet J in agreement) in Repatriation Commission v Williams [2001] FCA 1195 and the interpretation of the various authorities referred to therein. In Gorton, Allsop J stated (inter alia) (at paragraphs 62 and 65):
"…
Subsection 120A(3) makes it clearly compulsory for the Commission to examine the current SoP. In exercising the review under s 43 of the AAT Act I see no reason why the direction under subs 120A(3) does not bind the Tribunal. The only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission's decision by force of the decision in Keeley.
…
65 If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission's decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SoP. This is not a right of 'election'. It is a sequential approach mandated by a combination of the Act and the Full Court's decision in Keeley.
…"

Heerey J in Gorton came to a similar conclusion by slightly different reasoning, stating that (at paragraphs 42-43):
"…
Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which 'is in force': s 120A(3); see s 43 AAT Act. If the current SoP 'upholds' the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.
43 If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).
…"
In light of the Federal Court's decision in Gorton and Williams, the Tribunal is mindful that it must first examine the current SoP (Instrument No. 1 of 2000) and consider whether or not it can come to a conclusion in favour of the applicant by applying it. If the applicant is not so successful, the Tribunal will proceed to examine the revoked SoP, namely Instrument No. 48 of 1994 (as amended).
The Tribunal now turns to consider whether the hypothesis raised is a reasonable one, ie whether the hypothesis is consistent with the "template" to be found in the SoP No.1 of 2000 as amended. The hypothesis raised must contain one or more of the factors which the Authority has determined to be the minimum which must exist and be related to the applicant's operational service (as required by sub-sections 196B(2)(d) and (e)).
At the outset, the Tribunal would indicate that there is no dispute between the parties that the applicant has a diagnosis of generalised anxiety disorder and that this diagnosis fits the definition of "generalised anxiety disorder" as set out in paragraph 8 of the relevant SoP.
For present purposes factor 5(a)(ii) of the above SoP is relevant, namely "experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder". "Experiencing a severe psychosocial stressor" is defined in the SoP as:
"…
'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;
…"

The Tribunal does not consider this to be an exhaustive list but rather it is intended to illustrate that the occurrence must objectively be identifiable and must subjectively cause substantial distress in an individual. Several of the examples are "life-threatening" situations but others are not, suggesting that a broad range of experiences can qualify.

It was contended by the applicant that he experienced at least two severe psychosocial stressors within two years of the onset of his generalised anxiety disorder. The material pointing to this conclusion was the applicant's evidence and that of Dr Ewer. The applicant named the "stand to" incident and the rifle incident as severe psychosocial stressors which caused him to become intensely frightened, anxious and distressed. Dr Ewer expressed the opinion that both the "stand to" incident and the rifle incident qualified as severe psychosocial stressors. In considering this third stage of the test in Deledio, the Tribunal is mindful of the comments of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415:
"…
However, a hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature'. Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.
…"
The Tribunal is also mindful that at the third stage of the Deledio test, proof of facts is not in issue: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 per Mason CJ, Gaudron and McHugh JJ).
After consideration of all of the material before it and the evidence of the applicant and Dr Ewer, the Tribunal is of the opinion that a reasonable hypothesis is upheld by the evidence - that the applicant experienced two severe psychosocial stressors, namely the "stand to" incident and the rifle incident, not more than two years before the clinical onset of generalised anxiety disorder.
The evidence of the applicant in relation to the "stand to" incident was that he stated that at the time he felt "very apprehensive", "anxious" and "distressed". In relation to the rifle incident, the applicant gave evidence that he felt "very afraid" and was "trembling". It is the opinion of the Tribunal that these reactions could constitute "substantial distress". Dr Ewer raised facts that the applicant experienced two severe psychosocial stressors, became frightened, anxious and distressed and has suffered generalised anxiety disorder since the time of his operational service. No other medical evidence was put forward by the respondent. Although the Tribunal is somewhat reluctant to characterise the two main incidents experienced by the applicant as "life-threatening", the Tribunal is mindful that in circumstances of war, events can have a significance to an individual that they would not have in ordinary daily life. Thus whilst being left behind by a vehicle on a suburban street in Adelaide is unlikely to be considered to be an identifiable occurrence that evokes feelings of substantial distress in an individual, being left behind by a vehicle in a warzone whilst a person is unarmed could be considered such an identifiable occurrence. The same is true of the "stand to" incident.
In relation to the clinical onset of the disorder, the evidence of the applicant and Dr Ewer was that the applicant began to experience symptoms of generalised anxiety disorder upon his return from Vietnam. The Tribunal is mindful that the applicant's service and medical records do not reveal any evidence of a nervous condition prior to 1999. However, the Tribunal accepts the evidence of Dr Ewer that anxiety disorder is a diagnosis frequently missed by medical practitioners and that a person in the applicant's situation may be reluctant to reveal to anyone that they have emotional or nervous problems, particularly Army personnel. As such, the Tribunal is not of the opinion that the hypothesis raised by the facts is contrary to proved scientific facts, and it is not obviously fanciful, impossible, incredible or not tenable, too remote or too tenuous. The Tribunal therefore finds that the third stage of the Deledio test, and thus section 120(3) of the Act is satisfied.
The Tribunal now turns to consider the fourth stage of the Deledio test, namely whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that the applicant's condition of generalised anxiety disorder was war-caused in accordance with sub-section 120(1) of the Act. The Tribunal is mindful that it is required to find facts from the material before it and in so doing no question of onus of proof, or the application of any presumption is involved.
The Tribunal would indicate that it has had regard to the whole of the evidence and to the submissions of the parties. Regarding the oral evidence before the Tribunal, the Tribunal found the applicant to be a credible witness and his evidence was complemented by the evidence of Dr Ewer. The Tribunal accepts the evidence of both the applicant and Dr Ewer. The Tribunal accepts the applicant's reasons for not being open with Dr Ewer on the occasion of the first interview as outlined in paragraph 47 of these reasons. The Tribunal also accepts Dr Ewer's evidence regarding apparent inconsistencies in what the applicant told him at each interview as outlined in paragraph 54 of these reasons.
The Tribunal is mindful that Dr Ewer's evidence is the only medical evidence which is before the Tribunal apart from the applicant's service medical records and it is therefore difficult for the Tribunal to reject his evidence and conclusions. The Tribunal is satisfied that both of the main incidents each on its own would have been distressing for the applicant and the Tribunal accepts Dr Ewer's analysis of the effect of these incidents on the applicant. The Tribunal therefore considers that the two incidents provide a reasonable explanation for the development of generalised anxiety disorder in the applicant. In this regard, the Tribunal accepts the submissions of Mr White at paragraphs 65-67.
The Tribunal accepts the submission of Mr Doube that the terms "stressful event" as found in SoP No.48 of 1994 (as amended) and "severe psychosocial stressor" are both concerned with incidents provoking anxiety and distress of sufficient severity to cause an immediate and ongoing anxiety disorder, rather than the ordinary anxieties and stresses confronting a person in everyday life. However, the Tribunal disagrees with his conclusion that the two incidents in question in no way could be considered to be of sufficient severity to cause an immediate and ongoing anxiety disorder.
The Tribunal is of the opinion that the two incidents relied upon by the applicant, namely the "stand to" incident and the rifle incident, sowed the seeds leading to the development of the applicant's generalised anxiety disorder. The Tribunal considers the other incidents mentioned by the applicant, namely the incident involving the pram at the airbase and the low-flying aeroplane incident to be of little relevance and these incidents are not relied upon by the applicant as causing his generalised anxiety disorder. In any event, insofar as the pram incident is concerned, Dr Ewer's opinion was that it was not as stressful as the two main incidents relied upon by the applicant.
The Tribunal is satisfied that there is a causal link between the two main incidents mentioned and the applicant's development of generalised anxiety disorder and makes the following findings of fact. The Tribunal finds that whilst on operational service, the applicant experienced the two psychosocial stressors outlined earlier in these reasons. These psychosocial stressors occurred within the two years immediately prior to the clinical onset of generalised anxiety disorder.
Therefore the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination that the applicant's disease, namely generalised anxiety disorder, is a war-caused disease. Pursuant to sub-section 120(1) of the Act, the Tribunal determines that the applicant's generalised anxiety disorder is a war-caused disease.
decision
The decision of the Tribunal is that the decision under review with respect to generalised anxiety disorder is set aside and in substitution therefor it is determined that generalised anxiety disorder is a war-caused disease with date of effect being 5 July 1999.

I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         ............................(Signed)....................................
  Barbara Armstrong, Associate
Date/s of Hearing   24 - 25 September 2001
Date of Decision   1 November 2001
Counsel for the Applicant         Mr Timothy White
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent    Mr Greg Doube
Solicitor for the Respondent    Department of Veterans' Affairs