Maplesden and Repatriation Commission - [2002] AATA 374

DECISION AND REASONS FOR DECISION [2002] AATA 374

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/254

VETERANS' APPEALS DIVISION )
          Re      Patrick Maplesden
  Applicant
          And     Repatriation Commission
  Respondent

DECISION

Tribunal Dr D J Campbell, Member

Date21 May 2002
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines that: (a) the Applicant's psychiatric disability is post traumatic stress disorder with features of chronic anxiety and depression; and (b) the Applicant's psychiatric disability is war-caused; and (c) assessment of the Applicant's psychiatric war-caused disability is remitted to the Respondent to undertake, with date of effect being 4 March 1998.

[SGD] Dr J D Campbell Member
CATCHWORDS
Veterans' Entitlements - whether the Applicant has a psychiatric condition - the diagnosis of that condition - whether the diagnosed disease is a war-caused disability - the assessment of that war-caused disability - diagnostic criteria contained with the DSM IV requirements - whether personality disorder and post traumatic stress disorder can co-exist - definition of experiencing severe stress

Veterans' Entitlement Act 1986 – sections 120, 120A
Statement of Principles Instrument No. 15 1994, concerning Post Traumatic Stress Disorder
Statement of Principles No.3,1999 concerning Post Traumatic Stress Disorder, as amended by Instrument No 54 of 1999
Statement of Principles No.13, 1997, concerning Personality Disorder

REASONS FOR DECISION

Dr J Campbell, Member

In this matter Mr Patrick Maplesden ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 24 October 1998 which, while granting the Applicant's claim for sensorineural hearing loss of the right ear, refused the Applicant's claim for personality disorder, tension headache, seborrhoeic dermatitis and lung and bronchial problems, and that a disability pension was not payable at the relevant time. This decision was reviewed by the Veteran's Review Board on 1 December 2000, who affirmed the decision under review in relation to the personality disorder, but set aside the decision in relation to the disability pension, and in substitution thereof determined that the pension is assessed at 20 per cent of the General Rate, to operate from and including 4 March 1998. (T7)
A hearing was held before the Tribunal on 4 February 2002 at which the Applicant was represented by Mr Jones, a solicitor. The Respondent was represented by Ms Hardie, an advocate from the Department of Veterans' Affairs. Dr Dinnen and Mr Tilbrook presented oral evidence.
The following material was placed into evidence before the Tribunal:

Exhibit          Description Date
T1-T26 pp1-133 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
A1      Report of Dr Anthony Dinnen       31 August 2001
A2      Applicant's Statement of Facts and Contentions          15 October 2001
R1      Medical Report of Dr Shand         18 June 2001
R2      Report of Mr Tilbrook         2 February 2001
R3      Report of Mr Tilbrook         3 February 2001
R4      Clinical notes of Dr Curry
R5      Clinical notes of Dr Keshava
R6      Respondent's Statement of Facts & Contentions         18 December 2001

issues

The relevant issues in this matter are whether the Applicant has a psychiatric condition, the diagnosis of that condition and whether the diagnosed disease is a war-caused disability and if so the assessment of that war-caused disability.

legislation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular subsections 120(1),(3),(4) and 120A.

background

The Applicant lodged a claim for a disability pension on 4 June 1998 in which he claimed the following disabilities to be war-caused:

anxiety and depression possibly post traumatic stress disorder
lung and bronchial problems
stress and tension headaches
skin rash
hearing problems

In his application, the Applicant indicated that since leaving the Army in 1970, he had worked as a truck driver (1970-75), fencing (1976-84), Post person (1984-95), parcel contractor (1995-98), fencing (1998- present). The Applicant indicated that he preferred to work for or by himself (T8, pp42).
In relation to his psychiatric disability, the Applicant stated "my whole period of time in Vietnam was stressful. Both in Saigon and Vung Tau, knowing you were a target, you could not relax " (T10, pp56).
The Applicant was assessed by Dr K Iyer, a consultant psychiatrist, who in his report dated 28 September 1998 stated:
" He was in the Royal Australian Army from 1967 to 1970. He was trained in signals and he served in Vietnam for about one year during 1968 to 1969. He was not involved in any combat fighting but while working in the signals he felt his life was in danger as he was exposed to aerial attacks. However he was not injured while in the army and he did not suffer from any illness….
This man shows traits of Schizoid Personality Disorder which can be related to his deprived childhood upbringing especially being in orphanage where he was unable to form any attachment relationship. He was in the army during his formative period and being in life threatening environment did not facilitate his ability to form supportive relationships. His description that he lost trust in people and could not get on with anyone after he left the army indicate that his army experience had a negative impact on his personality. His description of feeling anxious is directly related to his inability to form any close relationship and also being sensitive to those close to him like his son and his wife" (T13)
As a consequence of this report, the Respondent concluded that the psychiatric disability was a personality disorder and that it was not related to war service (T15). Following request for a review by the Applicant, a review officer affirmed the earlier decision in a letter to the Applicant dated 22 February 1999, the Applicant having already lodged an appeal to the Veteran's Review Board on 1 December 1998 (T16, T17).
In a report dated 26 July 1999 to the referring doctor Dr Curry, Dr Keshava, a consultant psychiatrist, detailed the following:
"…SLEEP: his sleep is disturbed. He often dozes off in front of the television. However, he cannot sleep when he goes to his bed. He is very restless during the night and keeps waking up almost every hour. He has recurrent dreams of people chasing him with guns and his driving has increased over the past couple of years. He often wakes up feeling "hot and sweaty". He had seen mutilated and decomposed bodies of the soldiers on the roadside in Vietnam. When he was at a fire support base, the helicopters were carrying the body bags and injured soldiers. Once he was in a mortar attack and he thought that, he would be killed. He cannot stand the loud noise and it reminds him of being in a mortar attack in Vietnam...
OPINION: Mr Maplesden suffers from Post Traumatic Stress Disorder with chronic anxiety state and depression. He has low frustration tolerance and he loses his temper easily. He often becomes physically aggressive. He cannot relate with people and isolates himself a lot. He gets anxious and agitated in crowded places and avoids going to the busy shopping centres and supermarkets. He hates travelling by public transport and he gets road rage while driving. He has late insomnia and difficulty staying asleep. He has recurrent frightening dreams with which he wakes up 'hot and sweaty'. He has flashbacks of the traumatic war experiences in Vietnam and relives the experiences whenever there is a loud noise. He has been drinking alcohol steadily since he joined the army. His short-term memory is impaired. He was very agitated and restless during the interview and his concentration and attention was poor. His blood pressure was elevated (140/1100mm of Hg)" (T18, pp 77-78).
The Applicant's service records indicate that he served in the Army from 13 June 1967 until 12 June 1970, was trained as a signaller and allocated for duty to 110 Signal Squadron (the "110 SIG SQN"). The Applicant arrived at Saigon on 3 December 1968 and departed on 19 December 1969 having served as a keyboard/cipher operator (T3, pp8, 9). At the time of his discharge, the medical report dated 15 May 1970the Applicant's audiogram indicated a normal hearing profile at all ranges (T3, p12).
In May 1987, the Applicant lodged a claim for a pension in relation to "anger, depression and nerves". The Applicant, in the course of his claim's adjudication was examined by Dr Smith, a consultant psychiatrist who stated in her report dated 22 September 1987:
" In Vietnam, he was in signals, which involved mainly working in an office and he did not find it stressful in any particular way.
OPINION: Anxiety state with some autonomic arousal symptoms. His anxiety stems from conflict and frustration in his family relationships and from his personality make up, in which he uses obsessional defences of reaction formation, with underlying dependent traits and needs, in turns of his depressed childhood. "I am unable to find any aggravation by his Vietnam experience" (T3, pp25 b,d)
The matter was reviewed by the Veteran's Review Board on 1 December 2000 and the decision of the Respondent in relation to the Applicant's psychiatric disability was affirmed. (T22)

applicant's evidence

The Applicant informed the Tribunal that he was born on 3 December 1949 at Braidwood NSW, and moved with the family to Denmark, Western Australia, where he remained at school till he was fourteen or fifteen years old, having spent a three year period in an orphanage (Clontarf Boys Home) from the age of 12. After finishing school, his first job was in a bakery, followed by a period of one and half to two years as a postal delivery person, before joining the Army at age 17.
Following basic training at Kapooka, and signals corps training at Watsonia for six months, during which time the Applicant suffered concussion and a jaw injury as a result of a car accident, he stated that he spent six months at 1 SIG Reg at Ingleburn before being posted to the 110 SIG SQN.
The Applicant stated that he arrived in Vietnam on 3 December 1968, and was immediately flown from Ton Son Nhut Airport (Saigon) to Vung Tau and for the next two months he undertook a variety of duties.
As part of his various duties, the Applicant stated he undertook three trips to Nui Dat, in which a convoy of a truck and four Land Rowers conveyed materials and supplies. The Applicant stated that during one of those trips (believes it was the first) in late 1968/ early 1969, while travelling on a busy road (military vehicles, tanks, carts), he heard a bang and small arms fire coming from a nearby village, which he thought was Baria.
The Applicant said he jumped down from the vehicle, adopted the ambush position, and then did a sweep for 300-500 metres. He then returned to the vehicle, having observed nothing apart from the continuance of the normal road traffic, and he and the convoy proceeded into the village.
The Applicant stated that he observed a building with a hole in it and some Army Republic of Vietnam soldiers ("the ARVN"). Since some of the villagers were lying down, he thought they were dead. He was unable to estimate the distance from the vehicle to where the people were lying down. They drove onto Nui Dat, unloaded the truck, had lunch and had an uneventful return trip to Vung Tau.
The Applicant stated that the next two trips to Nui Dat were uneventful. He undertook Sentry duties around the wire at Vung Tau every third night and for the first two and a half months he was not employed in his trade duties.
The Applicant stated that he was then posted to the communication centre in Saigon as a cipher operator and for a continuous period of three months he worked at the Airport, lived in a motel and travelled to and from work in either a bus or a truck. His duties at that time included message relay of battle casualty notifications.
The Applicant stated that he then returned to Vung Tau, and again was not doing communications work. Next, he travelled by aircraft to Nui Dat where he was in his tent, when a rocket attack occurred. The length of time over which it occurred is uncertain in the Applicant's mind, but he does remember jumping into the firing pit in the signals compound where the rockets were landing north of the signals compound, which housed the radio relay shelter. The Applicant estimates that this attack occurred around mid 1969.
The Applicant also indicated that he travelled to a fire support base by Chinook helicopter before the rocket attack at Nui Dat. The Applicant stated that he returned to Vung Tau, and then returned to work in Saigon, where on one occasion, when in a night club, a group of three to four American servicemen produced .32 calibre pistols and he and some associates were chased around the block. On that occasion, the Applicant stated that he spent four to five months in Saigon, before flying home to Sydney where he experienced confrontation with anti war protesters. The Applicant indicated that he left the Army in mid 1970.
After leaving the Army, the Applicant stated that he commenced driving trucks and working at the Campbelltown Council without experiencing any difficulties. During his 10 years at Australia Post, the Applicant stated he experienced difficulty with his workmates, and that they, on occasions caused him aggravation.
Further, in the early 1980's the Applicant related an experience in which, while during his trip home from work between 4 p.m. and 5 p.m. three men, apparently drunk, dragged him out of his vehicle and proceeded to kick his truck. The incident occurred about a block from his home, and on arriving home he reported the matter to the police.
After 10 years with Australia Post he commenced as a parcel contractor, and later returned to fencing.
The Applicant stated that he met his wife in the year after he left the Army and married her in 1973. There are two children from this marriage and two from his wife's earlier marriage. Over time the Applicant stated that he has become increasingly impatient with his children and his wife; that he has had no contact with ex-service organisations and that he "gets uptight" if there are any matters concerning Vietnam on television.
In response to questions, the Applicant indicated that the earlier psychiatrist with whom he consulted, appeared to be only interested in his childhood. The consultation with Dr Iyer lasted for about 30 minutes. The Applicant described his responses to difficult situations in Vietnam as one of being 'hyped up, nervous and fearful' and in relation to the Saigon incident "I took off around the block". The Applicant also denied telling Dr Keshava of mutilated and decomposed bodies on the roadside in Vietnam.

medical evidence
Dr Shand - consultant psychiatrist

Dr Shand, in his report dated 18 June 2001 (Exhibit R1), listed the Applicant's current complaints as:

(a) Insomnia - waking three to four times a night. Dreams a lot and often wakes sweating. Dreams involve weapons, being chased and someone out to get him in the bush. Commenced on his return from Vietnam and have continued.
(b) Arousal - if a car backfires he goes to the ground and tries to get to cover. Not so bad now.
(c) Argumentative - always arguing with his wife. Goes off the handle, sulks or gets depressed. Physically violent by hitting walls or other people. Has been in fights ten to twelve times when drinking since Vietnam. Unable to trust people.
(d) Difficulty in socialising with people and prefers not to be in their presence.

Dr Shand detailed his opinion and made the following comments in relation to the Applicant's condition:
" The history obtained from the Veteran indicates a personality disorder of paranoid type with alcohol abuse in the form of binges every one or two weeks. The history does not satisfy the SOP for severe stressors during operational service and his heavy drinking during operational service in Vietnam was not connected by him with severe stressors. Personality function includes obsessive traits as well as paranoid ones. He said that his unhappiness stated after discharge from the Army in Fairfield for no known reason, after being happy in the Army and after discharge from it. The description of his behaviour disorder involving his wife and others, who he blames, indicates the degree of his personality disorder, as does his abnormal behaviour in his job. This disorder has no connection with Army service. His chronic anxiety and depression are functions of his personality disorder.
In report dated 28 September 1998, Dr Balram K Iyer, psychiatrist, diagnosed "Schizoid personality disorder'.
In report dated 26 July 1999 Dr B Keshava, psychiatrist, diagnosed 'post traumatic stress disorder with chronic anxiety state and depression." He obtained the history that "he had seen mutilated and decomposed bodies of the soldiers on the roadside in Vietnam. When he was at a fire support base, the helicopters were carrying the body bags and injured soldiers. Once he was in a mortar attack and he thought that he would be killed."
Comment: The veteran gave no such history to me. My answers to your remaining questions are as follows:
2. My diagnosis of the veteran is personality disorder with paranoid and obsessional features. The history satisfies the criteria in the amendment of State of Principles concerning Personality Disorder, subtypes (I) Paranoid Personality Disorder. Subtype (x) Obsessive-Complulsive Personality Disorder.
4. The Applicant satisfied the factors listed in the applicable Statement of Principles. The Personality Disorder is not related to Mr Maplesden's periods of service.
5. The onset of the conditions diagnosed was probably in late adolescence, early adult life. The history suggests that the disorder of personality function became apparent some time after discharge from the Army when living in Fairfield or on the Central Coast.
6. GARP v Assessment is 31. Relevant forms are enclosed.
7. From the history obtained Mr Maplesden's Personality Disorder does affect his performance in his job and, according to him, his job is at risk as a result of his abnormal behaviour.
8. As far I know Mr Maplesden is employed full-time as a truck driver moving furniture. However in report dated 26 July 1999 Dr Keshava stated that 'He has helped a furniture removalist off and on over the past eight months." I am not able to state with any certainty the number of man hours per week he works." (Exhibit R1, pp 7,8)"

dr dinnen, consultant psychaitrist

Dr Dinnen commented in his report dated 31 August 2001 (Exhibit A1), that "the Applicant gave a poor account and was to some extent disinterested in the process." Dr Dinnen ascribed the following complaints to the Applicant:

"just a wreck. Always picking on me family. Getting uptight and stressed over anything that comes along".
"I don't seem to have feeling for anybody". Wants to be alone and is moody a lot of the times.
"Pretty stressful travelling in buses with wire cages". Rocket attack when in Nui Dat. Fear for his life in both situations. Pistol incident in Saigon - "It put the wind up me".
No trust in people after protesters at the Airport on return from Vietnam.

Dr Dinnen made the following comments and detailed his opinion in his report as follows:
" Comment: As you noted in your letter of the 5th July, the first problem is to establish a correct or preferred diagnosis. I am singularly unimpressed with Dr Iyer's report, and am not surprised at the lack of information about operational service in Dr Clarice Smith's report of some fourteen years ago - I was working at the Department at that time and it was not general practice to enquire about service experiences, and information was only obtained if the patient volunteered it. With patients who are coping with long term chronic post traumatic stress disorder it is not easy to obtain detailed information about service experiences, as this patient's evaluation over the last few years clearly demonstrates.
Opinion: In my view the appropriate diagnosis of best fit is that of chronic post traumatic stress disorder. The criteria set out in Statement of Principles Instrument No.15 of 1994 are satisfied, in my expert opinion."(Exhibit A1, pp 5)

In verbal evidence before the Tribunal, Dr Dinnen stated that earlier psychiatric reports had been written at a time when the Applicant was very much avoiding discussion of issues and events arising from his Vietnam Service. Dr Dinnen stated that the Applicant's post traumatic stress disorder was the result of the cumulative effect of many stressful experiences and that his post traumatic adaptation mechanism had controlled his symptomology for many years, with decompensation occurring with age.
In response to specific questions Dr Dinnen stated that there were a variety of symptoms referring to arousal, dreams disturbing memories, avoidance, reluctance to talk about anything to do with Vietnam and that there were a number of stresses involving both specific and general incidents.
A diagnosis of post traumatic stress disorder was in Dr Dinnen's opinion, the appropriate diagnosis of the Applicant's psychiatric condition, with Dr Dinnen indicating to the Tribunal that certain aspects of the Applicant's symptomology satisfied elements of the diagnostic criteria contained within the DSM IV requirements.
The clinical notes of Dr Keshava commence with notes documenting the Applicant's attendance on 27 June 1999. The clinical notes are difficult to read, but indicate a number of attendances thereafter, namely 30 August 1999, 9 February 2000, 4 August 2000. A report to the referring doctor on 26 July 1999 details Dr Keshava's opinion, and this has been detailed earlier in this decision (Exhibit R5).

clinical notes dr curry

The clinical notes of Dr Curry reveal that the Applicant attended the practice in June 1987, and relatively infrequently until 1997. In May 1998, a record of anxiety associated with tension headaches and a rash is noted; in September 1998 a note indicating psychiatric review concerning generalised anxiety; in January 1999, a note concerning insomnia and his inability to stand people; again in January 1999 counselled re insomnia; in June 1999, a note stating Applicant's inability to cope with insomnia and a reference is made to Vietnam Veterans for counselling, together with a referral to Dr Keshava (Exhibit R4).

historical report

Mr Tilbrook, Write Way Research Services, in his report dated 22 October 1999, concluded the following in relation to relevant question asked of him by the Veterans' Review Board:

That the Applicant was posted to 110 SIG SQN between 3 December 1968 and 19 December 1969, and that an operator keyboard and cipher was tasked by SIG SQN, and that such an operator may have served in Saigon, Vung Tau and for short periods of relief duty to the 110 SIG SQN Relay Station at Nui Dat.
That small support teams from 110 SIG SQN men deployed on four separate occasions during 1969 to accompany HQ IATF (Main) to the field, namely at FSB's Julia, Kerry, Jillian and Martine to operate the MRC-69 Radio Relay Shelter. In such situations, as at Nui Dat the personnel from 110 SIG SQN shared the same unit lines and facilities with 104 SIG SQN and as such were seen to be part of the host unit and shared some of the routine security duties.
That the IATF base was subject to no less than four enemy rocket attacks in May and June 1969, with a total of 61 rockets exploding inside the base.
That there was no major enemy attack upon the township of Baria during the period 3 December 1968 to 19 December 1969 but an attack did occur on Binh Ba on 6 June 1969 during the mini TET offensive (T21, pp100-107).

In two further reports dated 2 and 3 February 2002 (Exhibit R2 and R3) Mr Tilbrook was unable to find any particular evidence which would substantiate the Applicant's narrative, as related to the Veteran's Review Board, with the possibilities associated with the Applicant's service remaining those listed in his earlier report.
According to these reports from Dr Tilbrook, it was unlikely that the Applicant would have been involved in convoy duty during the Binh Ba activity on 6-8 June 1969.
Mr Tilbrook confirmed his written reports in oral evidence given by telephone during the hearing.

submissions
applicant

Mr Jones on behalf of the Applicant contends that the Applicant suffers from post traumatic stress disorder and he relies upon the opinions of Dr Keshava and Dr Dinnen.
In addressing the issue of the Applicant experiencing a severe stressor, Mr Jones points to material which raises the possibility of such stressor, namely the rocket attack at Nui Dat, bodies on the side of the road while travelling to Nui Dat and activities associated with his Saigon Service.
Furthermore, Mr Jones contends that Mr Tilbrook's various reports fail to disprove beyond reasonable doubt the existence of one or more of the severe stressors, which gives rise to the Applicant's post traumatic stress disorder.
It is the Applicant's contention that he satisfies factor 5(a) of SoP Instrument No.3 of 1999 as amended by Instrument No 54 of 1999, and that the date of effect, if his contentions are accepted is 4 March 1998.

respondent

The Respondent contends that the Applicant satisfies the diagnostic criteria for a diagnosis of personality disorder, but does not meet the diagnostic criteria for a diagnosis of post traumatic stress disorder, the diagnostic criteria for both conditions being contained within the relevant Statement of Principles.
The Respondent further contends that the Applicant's personality disorder is not related to service. In making such contentions, the Respondent relies upon the opinion of Dr Shand in relation to the issues of diagnosis and causation and on the opinions of Drs Shand and Iyer to rebut a diagnosis of post traumatic stress disorder.

CONSIDERATION AND FINDINGS

The Tribunal, having reviewed all the evidence that is before it, observes that the Applicant's evidence in relation to his period of Vietnam service has evolved over time. Dr Smith in her 1987 report speaks of non stressful service in devoting only three lines of her three page handwritten report to this period, while Dr Iyer in his 1998 report does acknowledge the Applicant's concern for his life during his Vietnam service, but again with scant detail. Dr Keshava, in his report of July 1999, details graphic descriptions of non-specific incidents that the Applicant experienced while serving in Vietnam. Nevertheless, the Tribunal observes a relative consistency in the Applicant's story following the second Veteran Review Board hearing, in two further different psychiatric assessments and in the evidence presented before this Tribunal.
The Tribunal in following the evolving story as detailed in this matter does note however that the Applicant has not been particularly forthcoming in relation to his Vietnam Service, and when he has detailed incidents, particulars of those incidents have been sparse. Nevertheless the Tribunal, in noting the Applicants disavowal of statements alleged to have been made by him to Dr Keshava, concludes that for whatever reason the Applicant is not a good historian. The Tribunal, however does not conclude that the Applicant is not a credible witness, but recognises that his memory of events is not particular as to detail of the events, and that this may, in part, be a reflection of the psychiatric condition suffered by him.
In turning to the issue of diagnosis in this matter, the Tribunal notes that four of the five psychiatrists, Dr Iyer being the exception, consider the Applicant to be suffering from anxiety and depression. Dr Iyer considers the Applicant to "show traits of schizoid personality disorder", while Dr Shand considers the Applicant's chronic anxiety and depression to be part of his personality disorder. Dr Smith considers the Applicant to suffer from anxiety arising from difficult family relationships and his personality make up, while Drs Keshava and Dinnen consider the Applicant to be suffering from post traumatic stress disorder.
In considering a diagnosis of personality disorder, the Tribunal notes the diagnostic criteria for such a diagnoses as listed in SoP No.13 of 1997 concerning personality disorder, noting in turn that such diagnostic criteria are derived from DSM-IV. Among the criteria listed are:
"(d) the pattern of behaviours is stable and of long duration and it's onset can be traced back at least to early adolescence or early adulthood; and
(e) the enduring pattern is not better accounted for as manifestation or consequence of another mental disorder."
The Tribunal has been particular in noting that each of the psychiatrists have referred in detail to the Applicant's early life, his family situation and the time he spent in an orphanage. However, the Tribunal also notes from the various psychiatric reports, the Applicant's acceptance of his general lot in life as a child, the stability and happiness he experienced in the orphanage, and his schooling endeavours and football prowess.
Further the Tribunal notes the Applicant statements as to his enjoyment and contentment with Army life, his initial period after discharge and during the early years of his marriage.
The Applicant's psychiatric difficulties seemed to have surfaced in about 1977 and consisted of "nerves, anger and depression" The Tribunal notes that up to this time there has been no detailed evidence on any antisocial behaviour, difficulties with schooling, difficulties in the Army or with either pre service or post service employment.
The Tribunal, in accepting the Applicant's statement that his psychiatric difficulties commenced when he was living in Fairfield with his family, by which time the Applicant was in his mid to late 20's, concludes that there is no evidence before the Tribunal which allows the Tribunal to be satisfied on the balance of probabilities that the onset of the Applicant's pattern of behaviour can be traced back to early adolescence or early adulthood.
Further, the Tribunal observes that neither Dr Smith nor Dr Iyer are specific in terms of stipulating a diagnosis of personality disorder. Dr Smith speaks of an anxiety state with some automanic arousal symptoms arising from conflict and frustration in his then family relationships coupledwith some underlying dependent traits and needs arising from his deprived childhood. Dr Iyer talks only of the Applicant showing traits of schizoid personality disorder which can be related to his deprived childhood.
More importantly both Drs Keshava and Dinnen state categorically that the appropriate diagnosis in this matter is post traumatic stress disorder. Furthermore, Dr Dinnen was particular in his oral evidence in detailing in his opinion how the various aspects of the Applicant's clinical history and symptomology met the criteria for a diagnosis of post traumatic stress disorder, such criteria being nominated in SoP Instrument No.3 of 1999 in paragraph two, with such criteria having being derived from DSM-IV.
In Dr Dinnen's exposition, both the individual incidents as outlined by the Applicant to him and to the Tribunal as well as the cumulative effect of being a year in a war zone (the year being an event) were all events that involved the Applicant with actual or threatened death or serious injury to or a threat to the physical integrity of himself or others, and that his reaction to these events involved intense fear, helplessness or horror. Further, Dr Dinnen indicated that the Applicant satisfied the following diagnostic criteria nominated in para 2 of SoP Instrument No3 of 1999:
"B       (ii) - recurrent distressing dreams of a man chasing him with a gun. Wakes at night sweating.
          (iii) - inability to recall aspects of trauma
C        (iv) - markedly diminished intent or participation in significant activities
          (v) - feeling of detachment or estrangement from others
          (vi) - restrained range of affect
D        (i) - difficulty falling or staying asleep
          (ii) - irritability or outbursts of anger
          (iii) - difficulty concentrating
E        - duration longer than a month
F        - causes clinically significant distress and impairment in social, and other important areas of functioning."

The Tribunal also notes that the clinical history and symptomology detailed by both Drs Keshava and Shand also outline the features detailed by Dr Dinnen. The Tribunal, in turn, concludes the Applicant satisfies the criteria for a diagnosis of post traumatic stress disorder. Dr Shand, however, interprets the clinical situation as one in which the Applicant's chronic anxiety and depression are functions of a personality disorder with obsessional and paranoid features.
In reviewing all the material outlined in relation to the diagnosis of the Applicant's psychiatric condition, the Tribunal finds that on the balance of probabilities the diagnosis is post traumatic stress disorder with features of chronic anxiety and depressions. In so finding, the Tribunal has relied on the history as detailed to the Tribunal and to the five psychiatrists involved, the opinions of Drs Dinnen and Keshava and in part the opinions of Drs Smith and Shand, in so far as it relates to a diagnosis of anxiety and chronic anxiety and depression respectively.
The Tribunal is unable to accept Dr Shand's preferred diagnosis of personality disorder, in that the Tribunal is not satisfied that the necessary criteria for such a diagnosis has been made out. Accordingly, the Tribunal is unable to make such a diagnosis on the balance of probabilities, being aware that it is possible for both personality disorder and post traumatic stress disorder to co-exist in the same individual.
In addressing the issue of war causation, the Tribunal identifies the hypothesis in this matter as the Applicant's post traumatic stress disorder is related to the Applicant's service in Vietnam. More particularly the Tribunal, having reviewed all the material in evidence, is satisfied that there is material which points to the Applicant suffering a psychiatric condition, namely post traumatic stress disorder and that there is material which points to the Applicant experiencing stressors during his period of operational service prior to the clinical onset of his post traumatic stress disorder. In summary, the Tribunal is satisfied that the material does point to the necessary elements which form the hypothesis.
Upon further consideration, the Tribunal does identify that there is in existence a SoP, namely Instrument No3 of 1999, concerning post traumatic stress disorder, which states what factor(s) must exist as a minimum before a reasonable hypothesis can be made connecting the post traumatic stress disorder with the circumstances of a person's relevant service.
In addressing the issue of whether the hypothesis is reasonable, the Tribunal again observes that the material points to the Applicant experiencing a number of incidents during his period of operational service in Vietnam. These include a rocket attack at Nui Dat in June 1969, being subject to being confronted with a pistol in a night club and being chased by Americans with pistols down the street in Saigon in the later months of 1969, and observing dead bodies by the side of the road outside Baria, in the early months of 1969.
The Tribunal, in noting the definition of experiencing a severe stressor in paragraph 8 of SoP Instrument No.3 of 1999, is satisfied that the material nominated does point to the Applicant experiencing a severe stressor, in that the material does point to incidents involving threat of serious injury or death, and/or witnessing casualties. The Tribunal further notes that the material points to the Applicant's clinical onset of post traumatic stress disorder occurring after experiencing a severe stressor.
As a consequence, the Tribunal concludes that the hypothesis satisfies "the template" nominated in SoP Instrument No3 of 1999, and accordingly the Tribunal finds that a reasonable hypotheses exists pursuant to section120(3) of the Veterans' Entitlement Act 1986
In turning to the final phase of consideration, the Tribunal must then consider section 120(1) of the Act, which states that the Applicant's claim will be successful unless the existence of the required facts or the required relationship to service are disproved beyond reasonable doubt, or the existence of another fact in the material, which is inconsistent with the hypothesised connection to war service is proved beyond reasonable doubt, thus disproving beyond reasonable doubt the hypothesis.
In addressing this issue, the Tribunal notes the three reports prepared by Mr Tilbrook and his oral evidence to the Tribunal and in particular the detail contained therin. The tribunal in considering this material, finds that it is supportive, in part, in relation to, the Applicant's contentions as to his places of service within Vietnam, namely Saigon, Vung Tau, Nui Dat and fire support base Kerry, at 110 SIG SQN cipher key operators could have served in such places in 1969. Further the reports confirm the existence of rocket attacks on Nui Dat in June 1969, with the injuring of one SAS soldier. The Tribunal notes that the reports do not deal with the incident in Saigon involving the Americans with pistols.
Further, the reports are more than particular in stating that no action occurred in or around Baria in the early months of 1969, that is, there is no confirmation of the Applicant's story as regards enemy activity involving his convoy in early 1969.
In assessing such material, the Tribunal does conclude that factual material has been raised which in the Tribunal's view does prove beyond reasonable doubt that the description of an incident at Baria as provided by the Applicant and in which the Applicant was a guard in a convoy takings stores to Nui Dat did not occur, as it is clear to the Tribunal that all such incidents were reported to Army authorities and that there is no such record of this incident as described. Further, the Tribunal is unable to make a conclusive finding as to whether the Applicant has been confused to place, time and circumstances of the incident and accordingly is unable to carry the matter any further.
Nevertheless, in considering the other two nominated incidents, the Tribunal finds that no material has been adduced which would permit the Tribunal to be satisfied beyond reasonable doubt that the Applicant was not present at Nui Dat in June 1969 when a rocket attack occurred on the base, nor was the Applicant a party to the situation in a night club in Saigon, where a number of Americans produced pistols and chased him and others down the street.
In view of the Tribunal's findings, the Tribunal further determines that the Applicant's claim linking his condition of post traumatic stress disorder to his period of operational service must succeed.

determination

The Tribunal determines that the decision under review be set aside and in substitution therefor determines that:
(a) the Applicant's psychiatric disability is post traumatic stress disorder with features of chronic anxiety and depression; and
(b) the Applicant's psychiatric disability is war-caused; and
(c) assessment of the Applicant's psychiatric war caused disability is remitted to the Respondent to undertake, with date of effect being 4 March 1998.

I certify that the preceding 74 paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: S. Swamy .....................................................................................
  Associate
Date of Hearing  4 February 2002
Date of Decision  21 May 2002
Solicitor for the Applicant         Mr Jones
Advocate for the Respondent Ms Hardie