Mackey and Repatriation Commission - [2001] AATA 749

DECISION AND REASONS FOR DECISION [2001] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/55

VETERANS' APPEALS DIVISION       )
           Re      LESLIE MAURICE MACKEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Mr G.A. Mowbray, Member

Date24 August 2001
PlaceCanberra

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension and medical treatment be determined on the basis that he suffers from PTSD which was war-caused.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)

CORRIGENDUM [2001] AATA 749

TribunalSenior Member J.A. Kiosoglous MBE
Mr G.A. Mowbray, Member

Date4 October 2001
PlaceAdelaide

Corrigendum

The decision of the Tribunal is to be amended to read as follows:

"The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension and medical treatment be determined on the basis that he suffers from PTSD which was war-caused with effect from 27 April 1998."

Paragraph 56 is to be amended to read as follows:

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - post-traumatic stress disorder - whether war-caused - whether diagnosis of PTSD exists - standard of proof
Veterans' Entitlements Act 1986 ss.14, 120, 120A, 196B
Statements of Principles Nos. 15 of 1994, 225 of 1995
Repatriation Commission v Cooke (1998) 160 ALR 17
Meehan v Repatriation Commission [2001] FCA 597
Benjamin v Repatriation Commission [2001] FCA 522
Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

24 August 2001 Senior Member J.A. Kiosoglous MBE Mr G.A. Mowbray, Member

This is an application by Mr Leslie Maurice Mackey (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 14 January 2000 (T14) which affirmed upon review that part of a decision of a delegate of the respondent dated 7 November 1998 (T9) which rejected a claim for pension for incapacity from migraine on the grounds that the condition was not war-caused. The original delegate's decision (T9) also rejected the conditions of post-traumatic stress disorder (PTSD) and hypertension, but these were not the subject of review by the VRB when reviewing the migraine condition (T14). Prior to the hearing by this Tribunal for review of the decision of the VRB, the parties agreed that all conditions be the subject of review as considered by the delegate (T9). However, at the commencement of the hearing, Mr P. Crabb, solicitor for the applicant, indicated to the Tribunal that the only matter in issue to be considered was that of the condition of PTSD. Ms P. Hook, a departmental advocate, agreed with this. With the consent of the parties, the Tribunal proceeds to consider the condition of PTSD on the basis of a deemed affirmation of the delegate's decision by the VRB in relation to this condition, by virtue of its (VRB) failure to deal with such condition.
Accordingly, at issue before the Tribunal is whether the applicant suffered PTSD and, if so, whether or not it is war-caused within the meaning of the Veterans' Entitlements Act 1986 (the Act).
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T28), together with four exhibits lodged by the applicant (Exhibits A1-A4) and seven lodged by the respondent (Exhibits R1-R7). In addition, the Tribunal heard evidence from the applicant, Leslie Maurice Mackey and Dr P. Cullen, Psychiatrist. As previously stated, Mr P. Crabb, solicitor, represented the applicant and Ms P. Hook, a departmental advocate, represented the respondent.
history of the application
The applicant was born on 29 October 1922 and performed operational service with the Royal Australian Air Force (RAAF) between 15 August 1942 and 30 May 1946. Accordingly, the applicable standard of proof is that of reasonable satisfaction when deciding whether the condition exists and that of the reasonable hypothesis in determining whether it is war-caused, pursuant to section 120 of the Act.
The applicant lodged a claim for disability pension and medical treatment on 27 July 1998 (T8). The delegate of the respondent on 7 November 1998 (T9) rejected this claim. The delegate stated (inter alia) in her reasons for decision:
"…
Investigation of post traumatic stress disorder has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. The claim for post traumatic stress disorder is therefore refused.
…"

As previously stated above, the Tribunal, by consent, upon application by the applicant, reviews the condition of PTSD.
statements of principles
The parties are in agreement as to the Statement of Principles (SoP) which, in relation to PTSD, is Instrument No. 15 of 1994, as amended by Instrument No. 225 of 1995 (Exhibit R6).
The hypothesis is raised in relation to paragraph 1 which relevantly provides:
"1.… 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 that service, are:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
…"
The SoP sets out the meaning of "experiencing a stressor" and "post traumatic stress disorder", namely:
"4.        …
"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;
"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."

applicant's evidence

The applicant provided a written statement dated 5 January 2001 (Exhibit A3) wherein he referred to his salt consumption intake. The only part of any relevance to these proceedings was in relation to a visit to Lae. He states (inter alia) that:
"…
5.I recall that on one occasion I had to visit Lae, on the north coast of New Guinea. Lae had just been recaptured from the Japanese. I had gone there to pay personnel. I recall that the odour of death was everywhere. The destruction was also horrific. I can still smell that odour to this day.
…"

In his oral evidence the applicant referred to two events or stressors: the "odour" or "stench" of death event in Lae referred to in the previous paragraph, and a strafing incident later at Nadzab. These both were during his service as a pay clerk posted to New Guinea. The applicant never physically encountered the enemy.
The "odour" or "stench" of death event occurred when he went to Lae soon after being settled at Nadzab. He observed that the area had been damaged by bombing, but did not see any bodies. However, the stench was awful and made him nauseous. He has a re-occurrence of this feeling whenever he thinks about his wartime experiences.
The strafing incident which the applicant described as his most frightening experience during the war occurred on one night in 1944 when he was posted to Nadzab. He said that once the siren sounded there was panic followed by about half an hour in the trenches. Although the strafing was only for a few minutes, he became very frightened and scared and was relieved once the all clear sounded.
The applicant testified that this condition of being afraid, particularly in the dark, had never left him. More importantly, soon after the strafing he started to suffer nightmares which become worse after his discharge in 1945 and as he aged. These occur at least twice a week with him becoming quite violent, waving his arms around, kicking and throwing the bedclothes and screaming. He wife has to wake him up.
Although upset when he wakes he cannot recall the specifics of the dreams. He only knows that he was in an "ambush" of some kind, a "tight squeeze", trying to fight his way out. He does not dream that he is back in New Guinea, but it is always dark.
Dr Gibson had placed the applicant on tranquillisers. Later these had been stopped because of an allergic reaction. He tried yoga, but this did not help. The most useful treatment had been "chats" with Dr Gibson which had provided him with some reassurance (question 8 at T25/89). He had not consulted a psychiatrist or psychologist over this matter.
The applicant said that this condition significantly affects his lifestyle. His sleep patterns are disturbed by the nightmares and he quite often does not sleep at all. This saps his strength, he becomes very tired and needs to lie down frequently. He cannot play nine holes of golf or walk as far. He is unable to do as much gardening as he would like. He also avoids anything to do with violence and does not watch television. Nor does he attend military reunions or go to the War Memorial.
When asked why his medical records made no mention of nightmares, the applicant expressed surprise that records since the early 1970s failed to mention this condition. He certainly had raised it with his doctors. He felt it was encompassed within his hypertension claim in 1971 (T20/74) as recorded by Dr Herlihy (T23/82). Furthermore, Dr Herlihy was commenting on the specific conditions raised in the 1971 claim.
The applicant's discharge records did not mention nightmares as he could not "get out of the service quick enough" and foolishly failed to mention them. In 1947, while at Heidelberg Repatriation Hospital, he was too sick with hepatitis to worry about it.
dr p. cullen
Dr Cullen, Psychiatrist, saw the applicant on 31 August 2000 and prepared two reports, dated 7 September 2000 (Exhibit R4) and 23 October 2000 (Exhibit R5). In the report dated 7 September 2000 he stated (inter alia):
"…
He has slept poorly for years. By that he means that he 'knows what is going on around him' while apparently asleep. He also suffers from nightmares ('dreadful') in the course of which he may 'throw his arms around'. When that occurs his wife wakes him up. He doesn't remember the content of the nightmares - occasionally they include 'being chased'. He is unable to predict their occurrence.
He experiences an image of the war - the recollection of the 'stench of death'. This is to an extent an intrusive memory. He abhors it. He avoids depiction of images of war - for example, he does not watch television and he never attends military reunions or memorial gatherings.
…
Mr Mackey is a man of obsessional personality whose fastidiousness made his war time experiences (as outlined above) quite unbearable. This was compounded by the development of Malaria and its sequelae. However, the severity of subsequent psychological problems was in my opinion minor, affecting little his capacity to work, interact socially and to enjoy his life.
One has to take note of his nightmares (though the content is unknown), his recollections of 'the stench of death', and the avoidance of stimuli to these recollections, as possible long-term sequlae [sic] of the war. A diagnosis of Post Traumatic Stress Disorder of mild degree could be postulated. He seems however to be unlikely to seek or require treatment."

In his subsequent report dated 23 October 2000 (Exhibit R5) Dr Cullen stated (inter alia):
"… He told me he had been 'strafed' on several occasions, though that was as near as he came to contact with enemy forces. He did view the aftermath of conflict and this experience of death reminded him as a 'stench of dead bodies'. For many this might not constitute a horrific experience, but I had to set this beside the man who was having the experience. Mr Mackey, I believe, was especially vulnerable. He had been a 'sickly child' who developed personality traits of the obsessional type. Experience of the war zone less traumatic than the above were abhorrent to him and offended his fastidious nature. Since that time he has an olfactory flashback, 'the stench of death' which should not have less standing as a post-traumatic symptom than a visual experience. He also has nightmares which are not however specific in their content, and he is avoidant of events which bring to mind military activities and wartime experiences.
The diagnosis of Post Traumatic Stress Disorder is based on the occurrence of symptoms which are not pathognomonic and not confined to the diagnosis. … In Mr Mackey's case his vulnerability needs to be taken into account as a susceptibility factor.
…"
In his oral evidence, Dr Cullen confirmed his earlier view that clinically the applicant suffered from PTSD. For this he relied on the applicant's service in a war zone, that he had been subject to strafing (his "most frightening experience") and a certain amount of fear for his life, and that he had experienced the "stench of death" although he had not seen any dead bodies. Other symptoms of significance included nightmares and the avoidance of reminders of the war. Dr Cullen also stated that the applicant's oral evidence was consistent with the account he provided when examined on 31 August 2000. Dr Cullen, however, did testify that in his earlier diagnosis of PTSD, he had placed more weight on the stench of dead bodies incident, with its flashbacks over the years, than on the strafing.
Addressing the SoP for PTSD, Dr Cullen's evidence was:
·the applicant had experienced an event that threatened death or serious injury, ie strafing (paragraph 4 definition of "experiencing a stressor" sub-paragraph (a), and definition of "PTSD" sub-paragraph (a)(i));
·the applicant's response involved extreme fear (paragraph 4 definition of "experiencing a stressor" sub-paragraph (b), and definition of "PTSD" sub-paragraph (a)(ii);
·the applicant "came closest" to meeting sub-paragraph (b)(i) of the definition of "PTSD", ie acting or feeling as if the traumatic event was recurring through his nightmares on being ambushed;
·the applicant persistently avoided stimuli associated with the trauma (sub-paragraph (c) by:
(1) efforts to avoid thoughts, feelings, or conversation associated with the trauma;
(2)efforts to avoid activities, places or people that arouse recollections of the trauma; and
(3)markedly diminished interest or participation in significant activities, namely the applicant avoided war themes, did not attend military reunions or visit war memorials.

the applicant suffered persistent symptoms of increased arousal indicated by difficulty sleeping and irritability (sub-paragraphs (d)(i) and (ii));
the disturbance had continued over many years (sub-paragraph (e));
while the disturbance does not cause clinically significant distress (this would required medical intervention) it does cause impairment in social functioning (sub-paragraph (f)), namely the applicant is "to an extent socially withdrawn disliking to 'meet new people'" (Exhibits R4 and R5).

Notwithstanding his view that the applicant clinically suffered from PTSD - the applicant's sensitive nature made him much more susceptible - Dr Cullen said that it would be difficult for the applicant to satisfy the SoP definition of PTSD. Dr Cullen appeared unconvinced he satisfied sub-paragraphs (b) and (c) in particular.
dr p. gibson
Dr Gibson has been the applicant's General Practitioner since 1987. The Tribunal notes the following from his report dated 21 June 2000 (Exhibit A4):
"…
… Firstly he suffers from nervousness. He is generally anxious and easily upset and can get the shakes. He has frequent nightmares but can't recall them. There are no flashbacks that relate to his war service. I believe this is a form of Post Traumatic Stress Disorder as it dates from the time of his war service. …
…
The PTSD and migraines are related since they both arose from a time of severe physical and emotional trauma and illness during war service. It is also likely that the PTSD aggravates his headaches and to a lesser extent vice versa."
In a medical impairment assessment dated 17 August 1998 concerning PTSD (T25/88 and 89) Dr Gibson refers to:
"…
Nervousness, shakes
Nightmares – not always remembered
Flashbacks – smell of dead bodies etc
…
Nervous sweating, tremor
…
Difficulty making and maintaining friendships – due to nervousness
…
Doesn't participate in sport – eg golf, tennis
…"
In this same report (T25/89) Dr Gibson states that the applicant has been seeing him "possibly 1-2 x yearly" in relation to PTSD, and that the outcome on each occasion has been for Dr Gibson to give necessary reassurance to the applicant.
dr j. saboisky

In a report of 24 September 1998 (T27/96) Dr Saboisky, Psychiatrist, said:
"…
The history suggests that he has a general tendency to worry unnecessarily and that in the context of worry he does develop physical symptoms especially in the abdominal area, muscular tension and sleep disturbance. I do not believe that he has symptoms that might be reasonably attributed to Post Traumatic Stress Disorder.
…"
This report referred to the stench of death experience, but did not mention the strafing incident. However, the applicant testified in his oral evidence that he had raised the strafing incident with Dr Saboisky.
ms j. main
Ms Main is an historian who provided two reports dated 20 February 2001 and 9 March 2001(Exhibit R3). The relevance of these reports was only in providing information as to bombing raids on Lae and Port Moresby. In the report of 20 February 2001 Ms Main stated (inter alia):
"… it is clear that Lae fell on or about 12 to 15 September 1943.
…
… It would appear from this file that the last bombing raid on the town [Port Moresby] occurred on 20 September 1943.
…"

applicant's submissions

Mr Crabb, on behalf of the applicant, conceded that the strafing incident was the only relevant stressor for the purposes of the SoP definition. The "stench of death" event did not fall within that definition. The strafing however was most significant resulting in recurrent nightmares and impairment to social functioning.
On the oral and written evidence of Dr Cullen and the applicant, it was submitted that the applicant's condition met the definitions for "experiencing a stressor" and "PTSD" in the SoP. In particular, his circumstances satisfied:

paragraph 4 definition of "experiencing a stressor" sub-paragraphs (a) and (b); and
paragraph 4 definition of "PTSD" sub-paragraphs (a)(i) and (ii), (b)(iii), (c)(i), (ii) and (iv), (d)(i) and (ii), (e) and the second limb of (f).

The applicant, it was said, therefore experienced a stressor prior to the onset of PTSD (factor 1(a) in the SoP).
respondent's submissions
Ms Hook, on behalf of the respondent, submitted that although the reasonable hypothesis standard applied for the purpose of determining whether an injury, disease or death was war-caused, the issue of whether a disease or injury existed was to be decided to the reasonable satisfaction standard of proof (Repatriation Commission v Cooke (1998) 160 ALR 17). The applicant's circumstances must satisfy the SoP definition of PTSD, not just be shown to suffer PTSD clinically as Dr Cullen had found.
Dr Cullen had testified that this would be very difficult to achieve. The alleged stressor, strafing, had not been examined by Dr Cullen in detail. Indeed, before the hearing, the stressor relied upon was the stench of death.
Nevertheless, even accepting strafing as a stressor and applying the reasonable satisfaction or balance of probabilities standard, the applicant did not satisfy sub-paragraphs (b), (c), and (f) of the definition of "PTSD".
discussion and findings
It is not in dispute, and the Tribunal so finds, that the applicant had operational service as outlined in paragraph 4 of these reasons.
The initial task when determining an incapacity claim such as the present one is to determine whether a disease exists: Repatriation Commission v Cooke (1998) 90 FCR 307 at 310, 312. The authority of Cooke also stands for the proposition that in determining whether a disease exists, the requisite standard of proof is to the reasonable satisfaction of the Commission. The Tribunal is mindful of the recent decisions of Wilcox J in Meehan v Repatriation Commission [2001] FCA 597 and Whitlam J in Benjamin v Repatriation Commission [2001] FCA 522 in relation to the nature of the test for diagnosis. Wilcox J in Meehan was of the view that Cooke stands for the proposition that the question whether a veteran suffers, or did suffer, a disease or injury, as distinct from a particular ailment, disorder, defect or morbid condition, was to be determined by the Tribunal 'to its reasonable satisfaction', pursuant to sub-section 120(4) of the Act. Whitlam J in Benjamin on the other hand, supported a narrower approach with a focus on the fact that a claim for a pension under Part II of the Act was required by sub-section 14(5) of the Act to be made in respect of incapacity from 'a particular injury or disease' and that meant that it was first necessary to determine whether the veteran contracted the disease 'as claimed'.
However, despite the apparent divergence of the Federal Court in relation to this issue, the Tribunal is reasonably satisfied for the reasons to be provided below that the applicant is suffering from the disease of PTSD as claimed. Therefore, the Tribunal does not have to decide whether a wide or a narrow approach to the test for diagnosis is required.
The diagnostic criteria for PTSD are found in DSM-IV and are identical to those criteria found in the definition of "PTSD" in the relevant SoP in this case. On the evidence the Tribunal finds that the applicant experienced a strafing incident while posted to Nadzab in New Guinea during his operational service and that his response involved intense fear (see sub-paragraph (a) of the "PTSD" definition in DSM-IV and the relevant SoP).
The Tribunal finds that he suffers persistent symptoms of increased arousal as indicated by difficulty in falling or staying asleep and by irritability (sub-paragraph (d)), and that the duration of the disturbance has been considerably more than one month, in fact over many years (sub-paragraph (e)). Furthermore, the Tribunal is satisfied that the applicant has to some extent withdrawn himself from society because of his condition. The disturbance has impaired his social functioning (sub-paragraph (f)).
Sub-paragraphs (b) and (c) are somewhat more difficult. Mr Crabb contended that the traumatic event, strafing, was persistently re-experienced through nightmares. The Tribunal accepts that the applicant has regular nightmares. These fall, he said, within sub-paragraph (b)(iii) and possibly (ii).
On the other hand, Ms Hook said these elements must be read more specifically. The applicant's nightmares were quite non-specific in content. The ambush experience of the nightmares could not be equated with strafing. Dr Cullen testified that the element in sub-paragraph (b)(iii) came closest to the applicant's nightmares.
The Tribunal accepts that sub-paragraph (b)(ii) does not cover the applicant's nightmares which are not dreams of "the event", ie strafing. However, the words of the definition should not be read artificially or narrowly. The nightmares involve violence and screaming, ambush, the need to escape from a tight corner and fear of the dark. In the Tribunal's view, consistent with that of Dr Cullen's oral evidence, the nightmares could well be seen as the applicant "acting or feeling as if the traumatic event were recurring" as elaborated on in sub-paragraph (b)(iii). The Tribunal finds that the applicant's condition satisfied sub-paragraph (b).
Sub-paragraph (c) refers to 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 a list of elements. The uncontradicted evidence of the applicant was that:

he avoids anything to do with violence;
he avoids events which bring to mind military activities and wartime experiences;
he does not watch television; and
he does not attend military reunions or memorial gatherings, nor does he visit the War Memorial.

Again Ms Hook argued that these were not as specifically connected to the strafing trauma as required by sub-paragraph (c). They related to war in general, not the specific stressor. In the Tribunal's view, Ms Hook's construction of the elements in sub-paragraph (c) is too restrictive. Although these stimuli in themselves concern war in general, they also could stimulate in the applicant thoughts and memories of the strafing. Dr Cullen, when cross-examined by Mr Crabb, appeared to accept this.
The Tribunal finds that the applicant's condition satisfied elements (i), (ii), and (iv) of sub-paragraph (c).
The Tribunal is therefore reasonably satisfied (ie, on the balance of probabilities) that the applicant does suffer from PTSD, confirming Dr Cullen's clinical diagnosis (Exhibits R4 and R5), but contrary to the view of Dr Saboisky (T27/96).
Having reached a conclusion as to diagnosis, the Tribunal now turns to consider the four steps in decision-making as prescribed by the Full Federal Court in Repatriation Commission v Deledio (1998) 27 AAR 144 at 159-160. They are as follows:
"…
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 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 PTSD which is causally related to a strafing incident during operational service in New Guinea.
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. The Tribunal is satisfied that SoP No. 15 of 1994 (as amended by Instrument No. 225 of 1995) is the correct SoP in force in this matter and so finds.
In respect of the third step, the Tribunal is to consider whether the hypothesis raised is a reasonable one, ie, whether a hypothesis is consistent with the "template" to be found in the relevant SoP. The Tribunal turns to the applicable SoP for PTSD, being Instrument No. 15 of 1994 as amended by Instrument No. 225 of 1995. The hypothesis raised by the applicant must contain one or more of the factors which the Authority has determined to be the minimum which must exist and be related with the circumstances of the applicant's service (as required by sub-sections 196B(2)(d) and (e) of the Act). For present purposes, paragraph 1(a) of the above SoP is relevant, namely, "experiencing a stressor prior to the clinical onset of PTSD". "Experiencing a stressor" is defined in the SoP as:
"(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;"
It is to be noted that this definition is virtually identical to that of paragraph (a) of the definition of "PTSD" in DSM-IV and the relevant SoP. Therefore, as outlined in paragraph 40 of these reasons, the Tribunal is of the opinion that the applicant experienced a stressor, "strafing", prior to the clinical onset of the PTSD and this occurred during his war service. Turning to the definition of PTSD, as previously outlined by the Tribunal, the diagnostic criteria of "PTSD" in DSM-IV is virtually identical to the definition of "PTSD" found in the SoP, as previously outlined by the Tribunal. For the reasons outlined previously at paragraphs 40-47, the Tribunal is satisfied that the applicant meets this definition. The Tribunal is therefore satisfied that the raised hypothesis regarding PTSD fits the template of SoP No. 15 of 1994 as amended by Instrument No. 225 of 1995 and accordingly, a reasonable hypothesis has been raised connecting the applicant's PTSD with his war service (sub-section 120A(3) of the Act).
The Tribunal now turns to the fourth step as outlined in Deledio in relation to the hypothesis regarding PTSD. In order to succeed, the Tribunal must be satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained. The Tribunal notes that it is required to find facts from the material before it and in so doing no presumption or onus of proof is involved in making this determination.
The Tribunal is satisfied that the evidence points to a causal relationship between the applicant's war service and his PTSD. No evidence has been presented to the Tribunal which would allow it to be satisfied, beyond reasonable doubt, that the applicant's PTSD was not war-caused. The Tribunal finds that whilst on operational service the applicant experienced the stressor outlined earlier in these reasons and this stressor occurred prior to the clinical onset of PTSD. The Tribunal's considered view with respect to the reasonable hypothesis regarding PTSD is that it is not satisfied beyond reasonable doubt that that disease is not war-caused. Pursuant to sub-section 120(1) of the Act, the Tribunal determines that PTSD is a war-caused disease.
decision
The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension and medical treatment be determined on the basis that he suffers from PTSD which was war-caused.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Mr G.A. Mowbray, Member
Signed:         ........................(Signed)................................................
  Personal Assistant
Date/s of Hearing  10 July 2001
Date of Decision  24 August 2001
Counsel for the Applicant        Mr P. Crabb
Solicitor for the Applicant         Snedden Hall & Gallop
Counsel for the Respondent    Ms P. Hook
Solicitor for the Respondent    DVA