Mason and Repatriation Commission - [2001] AATA 607

DECISION AND REASONS FOR DECISION [2001] AATA 607

ADMINISTRATIVE APPEALS TRIBUNAL )

)No S1998/259
)and S1999/189

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STEPHEN ANTHONY MASON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date29 June 2001
PlaceAdelaide

Decision      The decision of the Tribunal is that the decisions under review with respect to post-traumatic stress disorder and depressive disorder are set aside and in substitution therefor it is determined that 1.     post-traumatic stress disorder is a war-caused disease with date of effect being 30 July 1997. 2.     depressive disorder is a war-caused disease with date of effect being 18 August 1997. 3.     the matter be referred back to the respondent for assessment of the appropriate rate of pension.
  ..............(Signed).................……….
  DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
VETERANS' AFFAIRS –whether post-traumatic stress disorder and/or depressive disorder are war-caused diseases – relevant Statements of Principles – decisions set aside.

Veterans' Entitlements Act 1986 – ss 5D, 120, 120A
Repatriation Commission v. Deledio (1998) 83 FCR
McMillan & Others v. Repatriation Commission (1998) 152 ALR 459
Etheridge and Repatriation Commission (1998) 51 ALD 175
Repatriation Commission v. Keeley (2000) FCA 532 (28 April 2000)
Gorton v. Repatriation Commission (2001) FCA 286 (23 March 2001)
Repatriation Commission v. Thompson (2001) FCA 341 (2 April 2001)
Meehan v. Repatriation Commission [2001] FCA 597
Williams v. Repatriation Commission [2001] FCA 601
Repatriation Commission v. Cooke (1998) 90 FCR 307
Statements of Principles – Instrument No 15 of 1994 as amended by Instrument No 225 of 1995, and Instrument No 58 of 1998

REASONS FOR DECISION

29 June 2001 Deputy President B.H. Burns

This is an application by Mr Stephen Anthony Mason ("the applicant") for review of a decision of the delegate of the Repatriation Commission dated 23 December 1997 as affirmed by the Veterans' Review Board on 8 March 1999, which refused an application for post-traumatic stress disorder ("PTSD") and a decision of a delegate of the Repatriation Commission dated 7 January 1998 as affirmed by the Veterans' Review Board on 8 March 1999, which refused an application for depressive disorder.
The Tribunal received into evidence the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1986 (the "T" documents) together with other documentary material tendered by way of exhibit. The Tribunal received T documents for both of the S1998/259 and S1999/189 matters. However, all references to the T documents in this decision relate to the S1999/189 matter. In addition to the documentary material placed before it, the Tribunal heard oral evidence from the applicant, as well as from Dr Atchison, psychiatrist, who gave evidence on the applicant's behalf. The respondent called Dr Furze, psychiatrist, to give oral evidence on its behalf.
The applicant was represented by Ms C. Hokin and the respondent was represented by Mr Mellows, both of counsel.
The applicant was a member of the Australian Army from 31 July 1968 until 10 September 1977 (T4/23-29). He served in Vietnam from 11 November 1970 to 15 December 1970, from 30 July 1971 to 4 August 1971, from 2 August 1972 to 13 August 1972 and from 31 August 1972 to 8 September 1972 (T11/109), which is operational service for the purposes of s6 of the Veterans' Entitlements Act 1986 ("the Act"). The applicant also had eligible defence service from 7 December 1972 until the date of his discharge on 10 September 1977 (T11/109).
On 20 August 1997 (T6/71-76) and on 18 November 1997 (T9/85-100), the applicant lodged claims with the Department of Veterans' Affairs to have certain medical conditions accepted for the purpose of disability pension under the Act. The conditions of depressive disorder and PTSD were rejected by the respondent (T8/80-84) and (T11/109-115).
The applicant had also lodged a claim with the Department of Veterans' Affairs on 31 July 1995 to have the conditions of alcoholic cardiomyopathy and psychoactive substance abuse or dependence accepted for the purpose of disability pension under the Act (see T documents S1998/259). However, during the course of the hearing of this matter, the respondent conceded that the applicant was suffering from war-caused alcoholic cardiomyopathy and psychoactive substance abuse or dependence and so the only issues for consideration by the Tribunal relate to the respondent's rejection of the applicant's claim for PTSD and depressive disorder (S1999/189). The applicant's evidence in relation to the conditions of alcoholic cardiomyopathy and alcohol abuse or dependence, in particular in relation to his alcohol consumption, remains relevant only for credit purposes and for the purpose of connecting the applicant's medical conditions to his operational service.
The Evidence
The Applicant
The applicant gave oral evidence before the Tribunal. In his evidence, he described the circumstances of his service with the Australian Army that he said were connected with his current medical conditions.
The applicant gave evidence that he was born in London on 18 June 1943 and is currently 58 years old. The applicant testified that he served in the British Army until 1967 and during that service had served outside the UK in Cyprus, Aden and the Middle East. The applicant could not recall experiencing any particularly distressing incidents whilst in the British Army but rather he enjoyed his service. The applicant referred to his Certificate of Service (Exhibit A15) where his military conduct was described as "exemplary". The applicant said that he was heavily involved in sports and athletics whilst in the British Army and did not consume much alcohol.
The applicant testified that he subsequently came to Australia and joined the Australian Army in 1968. He joined in the capacity of an engineer and was qualified as a seaman and freight-handler. The applicant said that his general health at that time was excellent. The applicant testified that he was posted to "32 Small Ships" - small landing craft and landing ship transports, delivering stores, supplies, tanks and ammunition and it was with this unit that he served overseas in Vietnam.
The applicant gave evidence about four main incidents during his Vietnam War service which had a significant impact upon him. The first main incident, referred to during the hearing as the "storm incident", occurred during the applicant's first trip to Vietnam in 1970 on a ship called the "Harry Chauvel". He said that it was an old and rusting "landing ship transport" (Transcript, p33) with a crew of about 50. The ship became involved for two days in a cyclone in the South China Sea. The applicant said that he believed that the ship was going to sink because it was a flat-bottomed boat which was not designed for such weather conditions. There were problems with the bow doors as the bolts would keep coming loose and the crew had to keep tightening them every half hour or else the water would have come in. In addition, the chains up on the deck holding the tanks had to be tightened, or else they would break. The applicant said that in his role as coxswain, he was supposed to steer the ship in 4 hourly cycles. However, during the storm, he was up for about 36 hours non-stop. The applicant testified that at the time he was fearful and frightened as he thought that the ship was not going to make it through the storm and would sink if he and the other crew members did not keep the bow door bolts tightened and the tanks and heavy commodities secured. The applicant said that in the boat, the crew members lived beneath the tanks and there was only a little hole to get out of if anything happened. The applicant said that he felt angry that the Australian Army had let him down by putting his life at risk unnecessarily.
The second incident, which was referred to during the hearing as the "mined village incident" occurred once the applicant's ship had arrived in Vietnam. His ship was sent up river to a bombed out jetty. The crew was allowed to get off the ship and the applicant and another man walked through a nearby village until they nearly walked into a mined area. The applicant testified that they were walking towards the edge of the village when the freight handlers screamed: "Stop, it's mined"(Transcript, p34). The applicant said that he stopped and saw, about 20 or 30 feet away, a huge black mound and something hanging in a tree, which he thought was part of a dead body. The applicant testified that at the time he felt total fear, he went cold and just froze before rapidly returning to the ship. The applicant said that it was his first experience of Vietnam, and it shook him up a bit. The applicant told the Tribunal that he commenced to drink heavily after this incident. The applicant agreed during cross-examination that he was relying upon the advice of others that the village was mined and that he did not see a mine go off. The applicant testified that it was his belief that his feelings were not as a result of having arrived in a theatre of war but were related to the thought that if he had taken one more step, he might have been blown up too.
The third incident emphasised by the applicant was referred to as the "Viet Cong incident" during the hearing. The applicant described an incident at Newport where he became involved in an argument and an American soldier hit him across the forehead with the barrel of his gun. The applicant told the Tribunal that he was then taken to the American hospital to have his head stitched up before being put in an American jeep with two MP's, to be taken back to the barracks at Newport. On the way back, the jeep ran into a line of about 15 or 20 Viet Cong going up around the corner about 20 feet away on the left hand side of the road. The applicant was in the back of the jeep and the two men in the front screamed something and accelerated through or past them, before radioing back to base that they had spotted some Viet Cong. The applicant said that he believed what he saw were definitely Viet Cong because they were all in black pyjamas and were on the street after 11:00pm. The applicant said that he felt pretty frightened, cold and a bit clammy and he just felt hopeless, that if anything happened, he would be gone. The applicant agreed that no shots were fired during this incident and that the Viet Cong were just as surprised as they were when the jeep went past them. The applicant said that he believed it was a situation of danger and that he was in fear for his life even though the incident happened very quickly. The applicant said that he believed that the only reason that the Viet Cong did not attack the jeep was because they had their minds on doing something else. When it was pointed out to the applicant that he had told Dr Atchison that the jeep was surrounded by Viet Cong and the driver was forced to drive through them, the applicant said that it was probably just the way that he put it to Dr Atchison.
The applicant said that his alcohol consumption was getting pretty heavy at this time. The applicant said that he drank at this time because he used to get depressed and was behaving in an irrational way all the time and could not understand why. The applicant said that he was always getting into trouble, and if someone had a "go" at him, he would get very aggressive and react.
The applicant then outlined to the Tribunal the fourth major incident, which was referred to during the hearing as the "police station incident". He had left once again for Vietnam on 9 June 1972 and he went ashore to a bar in Saigon in the afternoon and lost track of time, staying there until 9:00pm. The applicant said that he and another corporal realised that the 11:00pm curfew was coming down and saw a Vietnamese police station and went in. He was told to sit down and after sitting there for a while, an officer started to get into an argument with two women. The officer pushed one of the women and started to punch the other. The applicant said he and his companion got up and walked to the door and they were just outside the police station door when the officer came screaming at the door with a revolver in his hand, ordering the two of them to get back inside. The applicant said that he and his companion froze because two "white mice" (Transcript, p48) [Vietnamese police] were at either side of the door and both had machine guns cocked at him and his companion. The applicant said he heard two clicks and assumed that they had taken off the safety catches of their guns. The applicant testified that he went cold, clammy, and wet his pants because of the fear of the situation. The applicant said that he and his companion decided to turn and walk away slowly. The two men kept walking until they found a little hotel and lay behind a wall until 6:00am in fear. The applicant said that he was frightened and was shaking, cold and felt helpless that night. The applicant agreed during cross-examination that there were no shots fired at him. The applicant agreed that he had had a fair bit to drink that night, maybe 16 beers and scotches, but denied that he was not so inebriated that his judgment was impaired about the events that happened afterwards. The applicant said that he remembered everything about the evening.
The applicant gave evidence that he continued to consume large amounts of alcohol at this time to help relieve the stress and strain caused by feelings of fear, unpredictability and helplessness. The applicant said that he experienced these feelings in the first couple of days in Vietnam. He testified that he was feeling pretty low and used to be depressed nearly every day. The applicant told the Tribunal that he used to get angry and would not do what he was told, and he did not understand what was happening to him.
The applicant also highlighted two other stressful incidents that occurred in Vietnam. One incident concerned a time when his ship was moored at the jetty in Vung Tau at night and he had to drop grenades over the side of the ship to deter any Viet Cong from attempting to mine the ship. Some of the American servicemen on the jetty suddenly began shooting and dropping grenades, saying that they had seen a couple of Viet Cong. The applicant said that he felt helpless at the time because the Americans were in control of the wharf. The other incident that the applicant described as stressful concerned when the applicant's ship had to travel up river to Saigon when the ship's main armament was not working. The applicant said that he was scared because the Viet Cong were known to sit on the mud banks and fire rockets at passing ships. Although no Viet Cong were seen, the applicant described it as a dangerous situation.
The applicant testified that after leaving the Army, he went to work at the Parramatta RSL as a casual barman for about six weeks and then joined MSS as a patrol officer doing security work and sales work for 11½ years. The applicant said that he retired from MSS when he was very sick. The applicant said that he had cardiomyopathy and was in bed for two years. He took drugs for his cardiomyopathy for a couple of years before having a heart transplant. The applicant testified that he was currently receiving specialist treatment from a cardiologist.
The applicant informed the Tribunal that he was currently in the day program at the Repatriation Hospital for PTSD. He attends on Thursdays because at that particular session no one talks about their war experiences and the session is more focused on talking about life in general and how to achieve things.
The applicant informed the Tribunal that he saw Dr M. Atchison, psychiatrist, on a regular basis. The applicant said that Dr Atchison relaxed him and he had opened up a bit to her. The applicant said that when he came back from Vietnam, he hid everything and it was only in recent times that he had started to get his experiences in the correct chronological order, since he had been receiving treatment and had started to cope better with life. The applicant testified that he did now consume alcohol but not as much as he used to.
The applicant agreed during cross-examination that since going through counselling with the Repatriation Commission and Dr Atchison, his feelings of depression have become less intense and less frequent. During cross-examination, the applicant testified that earlier on in the year, he would get depressed every couple of days and lock himself in his house. The applicant said that if he heard a noise, he was up out of bed all night. The applicant said that he did not sleep, he got nervous, he shook all night, had sweats and sometimes had nightmares. The applicant agreed during cross-examination that he had had two broken marriages and another relationship which broke down. He said that these relationships failed because he had a great deal of trouble in his relationships with women.
The applicant told the Tribunal that he saw Dr Truman, psychiatrist, for about half an hour in relation to his applications to the Department of Veterans' Affairs in 1995. The applicant said that he did not get on with him very well because Dr Truman did not ask him questions and glossed over everything. The applicant testified that he had also visited the Vietnam Veterans' Counselling Service and saw Dr Furze, psychiatrist, on two occasions, once for his marriage problems and once for the purpose of preparation of a report regarding depression or PTSD. The applicant said that he got along reasonably well with Dr Furze.
The applicant said that he told Dr Atchison about the mined village incident but could not remember telling the other psychiatrists about it. The applicant said during cross-examination that he told Dr Furze but not Dr Truman about the storm incident because Dr Truman did not ask him about it and did not seem very interested in what he said. The applicant said that he did not remember telling Dr Furze, Dr Truman and the other Service psychiatrists about the pistol whipping incident. The applicant said that he told Dr Furze about the Viet Cong incident but not Dr Truman. The applicant agreed that the police station incident was something that he would never forget but admitted that he did not tell Dr Truman about it and did not remember whether he told Dr Furze and the other Army psychiatrists about it.
During cross-examination the applicant told the Tribunal that he also saw some Army psychiatrists as a result of disciplinary matters that arose during the course of his service. The applicant said during cross-examination that he had seen Dr Grady, psychiatrist, in 1971 while he was in the military correction establishment for striking an officer (T4/32-33). He said that he had gone to see Dr Grady because he could not understand the way he was behaving and needed help. The applicant agreed that he told Dr Grady that he was ordinarily able to inhibit aggression very well but had been disinhibited by alcohol. The applicant said that he did not remember telling Dr Grady about the storm incident. He said that there were a lot of things depressing him at the time that he did not speak about for many years. The applicant said that everything in general was depressing him, but in particular his behaviour, which he considered to be out of character.
The applicant gave evidence that he subsequently saw Dr Gwinner in July 1972 while stationed in Singapore and Dr Gwinner prepared a report about him (T3/24). The applicant testified that he had been "crying his eyes out" (Transcript, page 74). He agreed that he did not tell Dr Gwinner about the storm incident because he did not ask. The applicant said that Dr Gwinner focused upon why the applicant was behaving the way he was at the time, getting angry and depressed. The applicant said that Dr Gwinner said that it was a disciplinary matter and ordered him back to the ship. The applicant said that he did not remember how much of a history he gave the doctor, because of the state he was in at the time. The applicant said that he was deployed back on the ships and went back to Vietnam after this particular assessment.

When asked by the Tribunal about the accuracy of what he had told the various medical practitioners that he had seen, the applicant said that he had been pretty right, in what he could remember at the time about the events.
When cross-examined about the fact that the events that he had recounted to the Tribunal and to Dr Atchison were substantially different to the history given to the Veterans' Review Board, the applicant said that at the time of his Veterans' Review Board case, he was in a bit of a state and was drinking pretty heavily and was emotionally unstable – his marriage had broken up and he had gone bankrupt. The applicant said about the Board review: "There was 3 people there and they were firing questions left, right and centre and it went from one of the other, the other and I was just totally – I just lost it." (Transcript, page 144) The applicant agreed that his recollection of events should be better and clearer now than it was at that time.
When referred to page 5 of the Veterans' Review Board transcript (Exhibit R3) in relation to the police-station incident, the applicant explained that he had not told the Veterans' Review Board at the time about wetting his pants because he had just rushed over the incident at the time before the Board – he remembered certain things and then just carried on rambling.
It was put to the applicant that it was very difficult to distinguish between what he had assumed happened and what actually happened, from the way the applicant was giving his evidence. In relation to saying at the Veterans' Review Board hearing that during the police station incident the officer had stopped the others from shooting (Exhibit R3, page 5), the applicant said that it was an assumption that he had made and he had no recollection of seeing an officer restrain his men from shooting because he had turned away. In relation to the Viet Cong incident, the applicant admitted that he had assumed that the men were Viet Cong because of their dress and the fact that it was after curfew but he did not know if they were really Viet Cong.
The applicant testified during cross-examination that he had told Dr Furze about "white mice" but not about having a gun pointed at him. The applicant said that he did tell Dr Atchison about the police station incident over a period of time and that he had told the Board about the pistol whipping and the police pointing the guns at him, but he did not remember telling Doctors Furze and Truman.
When questioned about his depression, the applicant said that he first experienced feelings of depression when he was up in Vietnam and on and off over the years. The applicant said that at the time that he spoke to the Army psychiatrists, he did not understand what was happening to him. It was only later when he was sick with his heart transplant in 1998 that he found out what depression was and could relate it back to his feelings in Vietnam.
When asked about having occasional flashbacks to the traumatic events where his life was in danger, the applicant told the Tribunal that he had flashbacks on and off, periodically, and has the odd nightmare. He said that he used to wake up sweating and screaming and he did not know why. The applicant said that they would happen just out of the blue and he could not control them. The applicant told the Tribunal that he had had recurring dreams about the storm incident, the police station incident and the pistol-whipping incident. In relation to flashbacks, the applicant said that the ones that he had were mainly about the police station incident.
The applicant told the Tribunal during cross-examination that his younger brother had been killed in Ghana on exercise in a parachute regiment in 1971. The applicant was on his second trip to Vietnam at the time when he was notified of his brother's death. The applicant said that he was semi-close to his brother and agreed that he was quite upset for some time and probably still was about his brother's early demise. The applicant agreed that he had told Dr Gwinner about the death of his brother during their interview in July 1972. The applicant said that at the time that he went to see Dr Gwinner, he was looking for answers as to why he was acting the way he was and the death of his brother was just one of many things that was on his mind.
The applicant told the Tribunal that he compiled some notes (Exhibit A17) in order to assist Dr Atchison in her assessment of his condition for the purposes of the hearing before the Veterans' Review Board. The applicant could not recall exactly what he had written in the notes but recalled that they contained a series of his recollections about the stressful events that occurred in Vietnam. The applicant testified that Mr Henstridge, his representative at the Veterans' Review Board hearing, had suggested he compile a list after outlining the criteria required for a diagnosis of PTSD.
The applicant told the Tribunal that he believed that the notes were an accurate record of his experiences in Vietnam. In terms of the incidents mentioned in the notes, the applicant testified that some of the incidents caused him great fear and stuck in his mind and others were not so important. The applicant gave evidence that the purpose of compiling the notes was to get some cohesion of the things that had happened to him whilst in Vietnam. The applicant told the Tribunal that he got the dates mentioned in the notes from the records that the Department of Veterans' Affairs sent to him.
The applicant told the Tribunal that in the past, he did not want to speak about his experiences in Vietnam and no one bothered to ask him about them. The applicant testified that he had had no association with the Vietnam Veterans' Association and had been to the RSL twice in about two years and before that he went more regularly when on drinking binges. The applicant gave evidence that he did not like it at the RSL and Vietnam Veterans' Association because of the veterans' way of aggressively reliving their Vietnam war experiences.
The applicant gave evidence that he did not like Vietnamese people as they brought back bad reminders to him. The applicant testified that he got a feeling of revulsion when he saw them. The applicant gave evidence that to him, the smell of Vietnamese cooking was like rotting vegetation and it reminded him of Vietnam.
The applicant gave further evidence that after going to Vietnam, he has had no involvement with boats because he does not want anything to do with the sea again as it had nearly killed him once.
Dr Michelle Atchison
Dr Atchison told the Tribunal that she currently works in private practice at Kent Town and has a particular interest in post-traumatic stress disorder. Dr Atchison said that she developed an interest in post-traumatic stress disorder through her training at the Repatriation and General Hospital and continued that interest by working with Vietnam veterans and looking at post-traumatic stress disorder in civilian populations. Dr Atchison testified that she is also on the SA Panel for PTSD for Second Opinions in relation to the Department of Veterans' Affairs.
Dr Atchison was referred to her reports (Exhibits A2, A3, A4 and A8). In relation to the initial report that she prepared for the Veterans' Review Board (Exhibit A2), Dr Atchison testified that she saw the applicant on one occasion for the preparation of that report. Dr Atchison testified that she determined in the report that the applicant fulfilled the DSM-IV criteria for post-traumatic stress disorder and also dysthymia.
Dr Atchison gave evidence that her first interview with the applicant was difficult. The applicant was not easy to gain a rapport with and he had difficulty talking to authority figures and doctors. The applicant spoke relatively freely but he was obviously very distressed during the interview. He was agitated and at times quite tearful when talking about his experiences.
Dr Atchison testified that there are several criteria that need to be fulfilled in order to give a diagnosis of PTSD in accordance with the relevant Statement of Principles ("SoP") namely Instrument Number 15 of 1994 as amended by Instrument No. 225 of 1995 (A11). Dr Atchison referred to the definition of post-traumatic stress disorder as set out in paragraph 4 in regard to the issue of diagnosis and detailed several experiences that the applicant described to her that she believed at the time fulfilled criteria (a) of the definition of PTSD as well as criteria (a) and (b) of the definition of "experiencing a stressor". Dr Atchison said that at the time of the initial report, the applicant had described to her quite a number of events that seemed to have built up and caused anxiety for him whilst he was in Vietnam and whilst sailing in waters off Vietnam and for the purposes of her initial report, there were two incidents – the Viet Cong incident and the police station incident - which she in particular detailed which she felt fulfilled the criteria. Dr Atchison subsequently included two other incidents as also fulfilling the criteria, namely the storm incident and the mined village incident. Dr Atchison gave evidence that in her first report (Exhibit A2) she only mentioned the Viet Cong incident and the police station incident as the main traumatic events because these were the experiences that were foremost in the applicant's mind during that initial interview and Dr Atchison felt that these incidents were sufficient for the diagnosis of PTSD.
Dr Atchsion told the Tribunal that the applicant outlined to her the storm incident during their first interview. The applicant told her that he went through a cyclone on the voyage to Vietnam and his ship was in danger of sinking. The applicant told her the ship was flat-bottomed and he had spent some 24 hours awake trying to keep the boat afloat. Dr Atchison testified that it had only been after two or three months of psychotherapy that the applicant had been able to piece the incident together and conclude that the intense fear that he experienced during the storm incident set the stage for his ongoing anxiety in Vietnam. Dr Atchison said that it was her opinion that this incident satisfied the definition of "experiencing a stressor" as well as paragraph (a)(i) and (ii) of the definition of "post-traumatic stress disorder" as set out in paragraph 4 of the relevant SoP, and that from the applicant's description of the event, it was an event where his life was in danger and an event where he spent 24 hours at the very least feeling intensely fearful for his own life. The applicant told her that in the British Army the ships were a lot better maintained. Dr Atchison's conclusion was that it was an event where the applicant's life was at threat and that his response was one of intense fear.
Dr Atchison gave evidence that the applicant also told her about the mined village incident. The applicant told Dr Atchison that on his first day in Vietnam, he went to a village that he was aware had been mined and he was conscious of the Viet Cong being around and he was frightened for this own safety. He saw areas of blackness and lumps on the ground that he believed were people. Dr Atchison testified that the applicant had witnessed an event that involved the actual death of others and he responded to the event with intense fear and horror. Dr Atchison gave the opinion that this event satisfied the definition of "experiencing a stressor" and also part (a) of the definition of PTSD.
Dr Atchison testified that the applicant also told her about the pistol whipping incident. Dr Atchison gave the opinion that this incident did not cause the applicant to be in fear for his life, but rather the drive home from the hospital afterwards caused him distress.
Dr Atchison testified that the applicant told her about the Viet Cong incident and that she had concluded that it was an event satisfying the definition of "experiencing a stressor" and subparagraph (a) of the definition of PTSD. Dr Atchison testified that the applicant told her that after attending the hospital in Saigon after the pistol whipping incident, he was in a jeep and was surrounded by a gang of Viet Cong and the driver had to ram through the Viet Cong and the applicant believed that at the time he was in physical danger and that he could well have been killed if the vehicle had stopped. Dr Atchison told the Tribunal that her notes indicated that the applicant had told her that on the way back from the hospital he ran into Viet Cong and that she interpreted that as meaning that he was "surrounded" (Exhibit A2, page 2) by Viet Cong. Dr Atchison gave evidence that despite the fact that no shots were fired, the applicant's perception of the event may have been that it was an experience that endangered his life. Dr Atchison gave the opinion that it was the veteran's perception of the experience that was paramount but there was also an objective basis for the stressor in that not only he but the others in the jeep all believed the men to be Viet Cong. Dr Atchison told the Tribunal that the applicant had told her that he was in intense fear of death during the Viet Cong incident.
Dr Atchison gave evidence that the applicant told her about the police station incident. The applicant told her that he and a colleague had gone into a Vietnamese police station after missing curfew and the police were interrogating a South Vietnamese woman there and assaulting her. They realised that this was not the place to be and the South Vietnanese police turned and pulled their guns on them. Dr Atchison testified that the applicant subsequently told her that he had wet himself at that time, and that they had quickly left the police station and hid for the rest of the night. Dr Atchison testified that the applicant told her that he truly believed that there was a good risk that he would have been killed and that he experienced such intense fear that he lost control of his bladder. Her conclusion was that objectively it was a situation where his life was threatened and subjectively he felt very frightened and distressed by that experience. Dr Atchison gave the opinion that this event fulfilled the definition of "experiencing a stressor" and subparagraph (a) of the definition of PTSD.
In relation to criteria (b) of the definition of PTSD (re-experiencing the traumatic event), Dr Atchison gave the following evidence:

(a) In relation to (b)(i), the applicant had described intrusive thoughts of incidents where his life was in danger, particularly the incident in the police station. Dr Atchison told the Tribunal that the applicant said, "I think about them all the time, they're always on my mind." (Transcript, p337). When detailing the events, Dr Atchison said that the applicant tended to become very focussed and would be overcome by the events and kept going over and over them in his mind. Dr Atchison testified that the events that the applicant experienced have stayed with him as traumatic memories over the years.

(b) In relation to criteria (b)(ii), Dr Atchison testified that the applicant experienced distressing dreams and nightmares. It was Dr Atchison's belief that those dreams and nightmares were descriptive of the life-threatening experiences that Dr Atchison referred to in her report. Dr Atchison testified that the applicant told her that he had dreams about the Viet Cong incident in particular and also dreams about some other incidents in Vietnam that were not any of the four major events previously outlined.

(c) In relation to criteria (b)(iii), Dr Atchison gave evidence that the applicant described to her occasional flashbacks to incidents where his life was in danger. However, Dr Atchison was uncertain as to which incidents the applicant had flashbacks to, and later in her evidence, she gave the opinion that he did not experience flashbacks to the particular traumatic experiences which she highlighted – the flashbacks were not so specific.

(d) In relation to criteria (b)(iv), Dr Atchison gave evidence that the applicant presented as agitated during the interview and overtly distressed when discussing his war experiences. Dr Atchison gave the opinion that this satisfied the requirement of intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.

(e) In relation to criteria (b)(v), Dr Atchison gave evidence that, relying on the history given by the applicant and his demeanour, it was her opinion that the applicant did show physiological reactivity on exposure to internal or external cues that symbolised or resembled an aspect of the traumatic event.

In relation to criteria (c) of the definition of post-traumatic stress disorder, which relates to persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), Dr Atchison gave the opinion that several of these were satisfied:

(a) Dr Atchison gave evidence that the applicant had made efforts to avoid thoughts, feelings, or conversations associated with the trauma in accordance with criteria (c)(i). Dr Atchison testified that the applicant had spent a great deal of his time over the years trying not to think about his war experience in Vietnam, including the traumatic episodes focused upon. Dr Atchison described cognitive and behavioural avoidance, emphasising that it has taken her several years to slowly piece together the history of the applicant's war time experiences. Dr Atchison gave evidence that the applicant made efforts to avoid thinking about his experiences and also tried to avoid his feelings and in relation to conversations the applicant told her that he made efforts not to be involved with any sort of veteran activities, for example, Anzac Day, RSL Clubs.

(b) Dr Atchison told the Tribunal that the applicant also made efforts to avoid activities, places or people that arouse recollections of the trauma in accordance with criterial (c)(ii) in that he generally avoided situations where he would come into contact with other veterans or where there might be reminders of his war service. The applicant told Dr Atchison that he stayed away from anyone who talked "War-ries: (Transcript, p345). Dr Atchison testified that it was impossible for the applicant to avoid the specific places of the traumatic events, for example, police stations, but rather the applicant avoids anything associated with those experiences, for example, Vietnamese people, other war veterans, places where there is Vietnamese cooking. He clearly had little to do with other war veterans until quite recently.

(c) Dr Atchison did not believe that criteria (c)(iii) was satisfied, but later gave evidence that considering the difficulties the applicant has had with his history over time and the way that he has been able to elaborate on that history, it might have been a factor.

(d) Dr Atchison gave evidence that the applicant did satisfy criteria (c)(iv), namely markedly diminished interest or participation in significant activities in that prior to his war service in Vietnam, the applicant was heavily involved in athletics and sport was his life and how he got his self-esteem. He stopped doing those important activities after Vietnam because he could not be bothered, because he was drinking too much and for a variety of reasons.

(e) Dr Atchison gave evidence that the applicant did satisfy criteria (c)(v), namely feeling of detachment or estrangement from others in that he had difficulties in interpersonal relationships. Dr Atchison highlighted the facts that the applicant had had a failed marriage, he had been estranged from his children and that recently his defacto relationship had fallen apart. Dr Atchison testified that there was a difference in his ability to have relationships before and after Vietnam. Her conclusion was that in his relationships he had experienced estrangement. In terms of detachment, Dr Atchison described her relationship with the applicant, in that the applicant found it difficult to talk on an emotional level. The applicant also did not want to have social interactions with others. However, later in her evidence, Dr Atchison indicated that she did not think that the applicant had great feelings of attachment and strong relationships prior to the trauma in comparison to after the trauma, so she was unsure whether that criteria was actually satisfied.

(f) Initially, Dr Atchison gave the opinion that the applicant also satisfied criteria (c)(vi), namely restricted range of affect (eg, unable to have loving feelings) in that he described difficulties in interpersonal relationships, his difficulty in finding someone to spend his life with now and his difficulty showing affection to women in particular. Dr Atchison told the Tribunal that she was assuming that he did not have these difficulties prior to his war service. Dr Atchison said that it was her understanding that things at the very least have been much worse since the trauma. However, later in her evidence, Dr Atchison testified that whether or not the applicant fulfills this particular criteria is complicated by the applicant's description of being depressed for many years and his depression affects his range of affect and his ability to experience a range of moods. Dr Atchison gave evidence that his restricted range of affect was more a marker of his depression than PTSD.

(g) Dr Atchison gave evidence that the applicant did not satisfy criteria (c)(vii), namely sense of a foreshortened future.

In relation to criteria (d), namely persistent symptoms of increased arousal (not present before the trauma) as indicated by two or more of the following, Dr Atchison gave evidence that the applicant satisfied (i), (iii), (iv) and (v):

(a) Dr Atchison gave evidence that the applicant satisfied criteria (d)(i) - difficulty falling or staying asleep. The applicant described to her a very disturbed sleep pattern and was taking sleeping tablets. Dr Atchison gave the opinion that this difficulty in falling or staying asleep did not exist prior to his Vietnam war service.

(b) Dr Atchison gave evidence that the applicant did not satisfy criteria (d)(ii), namely irritability or outbursts of anger. Dr Atchison told the Tribunal that the applicant did not describe such symptoms, although Dr Atchison was aware of problems related to the applicant's alcohol abuse within his Australian Army service.

(c) Dr Atchison testified that the applicant satisfied criteria (d)(iii) - difficulty concentrating. The applicant described to her trouble with his short-term memory – he had to keep lists of everything and felt very distractable. Dr Atchison gave the opinion that this problem did not exist prior to the applicant's Vietnam war service.

(d) Dr Atchison initially gave evidence that the applicant satisfied criteria (d)(iv), namely hypervigilance. Dr Atchison defined hypervigilance to mean a generalised sense of increased anxiety, feeling on edge all the time. Dr Atchison gave the opinion that the applicant did not suffer from hypervigilance prior to his Vietnam war service, based on his description of having a good work ability and no difficulties when he was serving with the British Army and describing the onset of anxiety symptoms as during his Vietnam war service. However, later in her evidence, Dr Atchison indicated that she did not specifically ask the applicant about hypervigilance.

(e) Dr Atchison gave evidence that the applicant satisfied criteria (d)(v), namely exaggerated startle response. Dr Atchison testified the that applicant told her, "I get very nervous, I jump very easily." (Transcript, p454).

In relation to criteria (e), namely the duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) being more than one month, Dr Atchison testified that the disturbance (the applicant's anxiety state) had been present since his Vietnam war service. Dr Atchison testified that if there was a pattern of behaviour for more than one month, then there was a diagnosis of PTSD and it may only go into remission.
In relation to criteria (f), namely the disturbance causing clinically significant distress or impairment in social, occupational or other important areas of functioning, Dr Atchison referred the Tribunal to that part of her report headed "Current Disability" (Exhibit A2, pages 3-5), where she referred to the functional effects of the disturbance on the applicant, his social interaction difficulties including his domestic situation, and his occupational problems. Dr Atchison asserted that despite cardiac problems being the immediate cause of the applicant leaving his work, he was not fit to work at the time because of his psychological state.
In relation to the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised, in relation to paragraph 1(a), namely experiencing a stressor prior to the clinical onset of PTSD, Dr Atchison gave evidence that there were several major traumatic incidents that occurred to the applicant during his Vietnam war service that qualified as "experiencing a stressor". These are outlined previously in the summary of her evidence, but consist of the storm incident, the mined village incident, the Viet Cong incident and the police station incident. In terms of the clinical onset of PTSD, Dr Atchison gave evidence that the applicant's PTSD began in the 24 hours before he set foot on Vietnam, when he was involved in the storm. The disease developed over time but that was when it began.
In relation to the SoP concerning depressive disorder, Instrument No. 65 of 1996 as amended by Instrument No. 181 of 1996 (Exhibit A13), Dr Atchison gave the following evidence:

(a) Dr Atchison gave evidence that the applicant's condition of dysthymia was not included in the definition of "depressive disorder" found in paragraph 2 of the SoP, which only included major depression. Dr Atchison gave evidence that the applicant's depression was really secondary to his post-traumatic stress disorder and arose out of his intense ongoing distress and anxiety.

(b) However, Dr Atchison gave the following evidence about the other criteria in that SoP (Exhibit A13). First of all, in relation to the definition of "severe psychosocial stressor" as set out in paragraph 7, Dr Atchison told the Tribunal that in her opinion, the events that he went through in Vietnam were more events that provoked anxiety rather than depression at that time.

(c) In relation to the factors that must as a minimum exist before it could be said that a reasonable hypothesis had been raised, as set out in paragraph 5, Dr Atchison gave the opinion that the applicant satisfied paragraph 5(c), namely having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder, in that the applicant's depressive illness may have arisen out of his persistent alcohol abuse. Dr Atchison gave evidence that her understanding was that the applicant did drink alcohol in moderation before going to Vietnam, but after experiencing the initial events in Vietnam, for example the storm incident and the mined village incident, he began drinking alcohol to self-medicate his anxiety. From there, his alcohol abuse became alcohol dependence where it began to interfere with his occupational function. Dr Atchison gave the opinion that alcohol dependence fell within the definition of "psychiatric condition" as set out in paragraph 7 of the SoP.

(d) In relation to the clinical onset of his dysthymia, Dr Atchison gave evidence that it was her belief that the applicant suffered from depression at least in 1971 and that would bring it within two years from the onset of his alcohol dependence. However, Dr Atchison testified that she was not aware of when the applicant's first episode of depression actually occurred. After examining the applicant's medical records at the time of his war service (T4/22-45), Dr Atchison gave the opinion that there was medical evidence that doctors believed that the applicant was depressed prior to 8 September 1971 (T4/32), that he was referred for a psychiatric opinion because of that concern and his medical board examination of 3 August 1973 (T4/37) corroborated that history. Dr Atchison said that she had no doubt that the applicant's alcohol use has over the years been sufficient to cause a depressive illness and the applicant struggled with a number of other stressors in his life concerning his Vietnam war experience that also led him to feel extremely depressed and distressed.

In relation to the SoP concerning depressive disorder, Instrument No. 58 of 1998 (Exhibit A18), Dr Atchison gave the following evidence:

(a) In relation to the definition of "depressive disorder" as set out in paragraph 2, Dr Atchison gave the opinion that the applicant suffered from dysthymia, a condition that fell within the definition at subparagraph 2(b)(A)(ii). Dr Atchison testified that the applicant had had chronically depressed moods since his Vietnam war service and he described ongoing sleep disturbance, difficulties in concentration, poor appetite, low energy and suicidal ideation, which were all symptoms overlapping with his PTSD symptoms but in the circumstances fitted with dysthymia. Dr Atchison gave evidence that her diagnosis was in accordance with DSM-IV.

(b) Dr Atchison gave evidence that the cause of the applicant's dysthymia was not a result of one specific traumatic experience but more generally a build up of persistent ongoing stress that led to him feeling depressed as opposed to traumatic experiences where one tends to feel anxious. These stressors consisted of situations where the applicant felt that he had limited control over his own personal safely. There were several aspects of the service that the applicant found distressing in this manner. One was that he had a sense of disenchantment with his superiors in that he did not believe that they knew what they were doing. He also felt that the ships that he was on whilst sailing to and from Vietnam were unseaworthy and had very limited weapons and the crew were unable to defend themselves. Dr Atchison also included the smaller stressors that the applicant described, including being moored up in Vung Tau Harbour and being fearful that the people were going to come and mine the ship as they had done to other ships in the harbour, being fearful when he went into Vung Tau or to Saigon when he did not know who were the enemy while being aware that the Viet Cong were around.

(c) In relation to the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised, Dr Atchison put forward the opinion that the applicant fulfilled subparagraph 5(b) and (c). In relation to subparagraph 5(b), namely, experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder, Dr Atchison gave evidence that the severe psychosocial stressor that the applicant experienced was the experience of a number of accumulative distressing experiences both on the way to and from Vietnam and in Vietnam where he felt that his life was in danger and he did not feel backed up by his superiors. Dr Atchison gave evidence that the definition of "severe psychosocial stressor" as outlined in paragraph 7, had an objective and a subjective component, in that an event had to have occurred, but one had to look at the impact of that event on a specific individual.

(d) Dr Atchison gave evidence that the clinical onset of the applicant's dysthymia was unclear, although it appeared to begin during his Vietnam war service. Dr Atchison gave the opinion that the applicant's dysthymia was an illness that developed more slowly than the PTSD or alcohol dependence. However, during cross-examination, Dr Atchison did not rule out that the death of his brother could have been a factor contributing to the onset of dysthymia.

(e) In relation to factor 5(c), namely having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder, Dr Atchison gave evidence that the onset of two clinically significant psychiatric conditions, alcohol dependence and PTSD, appeared to predate the onset of the applicant's dysthymia, therefore factor 5(c) was satisfied.

When asked during cross-examination why the applicant told her but did not mention some of the major stressful incidents relevant to a diagnosis of PTSD to Doctors Furze and Truman, Dr Atchison explained the importance of doctor-patient communication within a psychiatric context – people find it difficult to bring up and discuss traumatic experiences. Dr Atchison testified that it had taken quite a deal of time to build up enough trust with the applicant for him to be able to discuss things that had happened to him and to piece together the chain of events leading up to his problems. Dr Atchison said that she believed the applicant was giving her a true and fair account of the experiences that he had had and she did not question the reliability of the information he gave her. Dr Atchison testified that over the time that she had seen the applicant he had not changed his story but had only elaborated upon it. Dr Atchison agreed during cross-examination that if the incidents which she identified as life-threatening directly to the applicant had not been reported or elicited at interview, then she would have agreed with the conclusions of Dr Truman.
Dr Atchison said that the information a psychiatrist would receive would depend upon the line of questioning that one took during the interview. Dr Atchison testified that in her experience, people would often keep things to themselves and unless they were specifically asked about their experiences, the psychiatrist would not get the required history from them. Dr Atchison testified that her understanding of the applicant was that he had a memory of the traumatic events that he had carried with him since the events occurred but had tried to push the memories down by drinking as much alcohol as he could consume as his way of trying to forget. In relation to the other events, such as the storm incident, the applicant had only just connected it to his anxiety condition. Dr Atchison gave evidence that the applicant clearly described that he always felt under threat in Vietnam, he did not know where his enemy was coming from and his whole war experience was stressful. However, Dr Atchison testified that there were also periods of that war experience that stood out for him as being more stressful than others.
Dr Atchison gave the opinion that she was in no way surprised that the applicant did not speak to the medical officers and psychiatrists within the Australian Army at that time about what happened to him. Her opinion was that it was a culture where you did not talk about things that happened and if you became distressed and upset you drank as much as you could to keep the memories away.
Dr Atchison was asked during cross-examination whether the pattern of alcohol consumption and level of alcohol consumption was something which must be taken into account in determining the reliability of symptoms conveyed to her such as to formulate her diagnosis. Dr Atchison gave evidence that she would take alcohol consumption into account if the patient was intoxicated at the time of speaking or if the patient had brain damage secondary to alcohol abuse, both of which would point to an unreliable historian. However, Dr Atchison indicated that she has many patients with PTSD who have also had alcohol abuse during the time of their war service and she would not see that as affecting the reliability of their history. In relation to intoxication at the time of the incidents, Dr Atchison testified that the event was either stressful or not stressful and if you were intoxicated and found it stressful, it was stressful. Dr Atchison gave evidence that she would not change her opinion of the person's perception of the event just because the person was intoxicated at the time.
Dr Atchison gave evidence that for the purposes of her diagnosis she did think the fact that the applicant was in a war setting was relevant in that she believed that the ongoing stress of being in the war zone was one of the contributing factors to his depressive illness. She also believed it made him more vulnerable to developing PTSD in that if one is persistently anxious all the time and a traumatic experience is put on top of that, then that makes one more vulnerable to getting a severe anxiety disorder from that experience.
In relation to the fact that in 1970–1971, Dr Grady found no depression present in the applicant (T4/32-33), Dr Atchison testified that with dysthymia, one did not have to be depressed every day, and she would not see Dr Grady's comments as sufficient to withdraw her diagnosis of dysthymia. Dr Atchison was also shown where Dr Gwinner had recorded in 1972 that he had found "no gross psychiatric disorder" (T4/34-36) and also that the applicant was highly identified with his younger brother who was significantly recently tragically killed in an exercise with a parachute regiment. Dr Atchison said that the applicant had not told her that he had lost his brother tragically. Dr Atchison gave evidence that the death of his brother was the sort of event where typically people become depressed for a short period while grieving and it was unlikely to be the sort of event which would result in a long-term depressive illness of 30 years standing. Dr Atchison also agreed that the applicant had certainly had some other stressful life experiences, including two broken marriages and a broken de facto relationship.
Dr Atchison told the Tribunal that she had received some notes from the applicant (Exhibit A17). Dr Atchison gave evidence that she presumed the applicant gave the notes to her as soon as he came into the interview room. Dr Atchison testified that for the sake of politeness, she would have glanced at them before proceeding to take the applicant's history but did not refer to the notes at the time of preparing her report. Dr Atchison informed the Tribunal that she placed no reliance upon the notes in coming to her diagnosis at the interview – she preferred to rely upon a person's oral description of what had happened to them and how they felt.
Dr Peter Furze
Dr Furze told the Tribunal that he is a medical specialist and psychiatrist. In addition to his private practice, he also practises for the Dept of Veterans' Affairs, the Vietnam Veterans' Counselling Service and has had occasion in the course of his work to treat psychiatric conditions related to war service and traumatic events, such as depressive disorder and PTSD. He is familiar with the diagnostic criteria employed for such purposes. He has also had occasion from time to time to refer to the various SoPs concerning PTSD and depressive disorder. During the course of his evidence, Dr Furze was referred to Dr Atchison's reports (Exhibits A2, A3, A4, A8) as well as the other reports relevant to the case – Dr Truman (Exhibit R5), Dr Grady (T4/32-33) and Dr Gwinner (T4/34-36).
Dr Furze testified that he had seen the applicant on two occasions, on 25 September 1997 at the Vietnam Veterans' Counselling Service, and on 7 November 1997, in his rooms. Dr Furze said that his interviews were conducted in a situation designed to maximise the applicant's comfort and there was sufficient time to enable Dr Furze to obtain the requisite history from the applicant. Dr Furze referred to his report (Exhibit R6) and to his notes taken at the time of his interviews with the applicant.
Dr Furze testified that his diagnosis on 25 September 1997 was that the applicant suffered from alcohol abuse syndrome, probable alcohol dependence and chronic depression, which is a dysthymic disorder according to DSM-IV. Dr Furze explained that the essential features of dysthymic disorder were prolonged low grade depressive disorder with depressed mood, lack of motivation, energy and activity, and sometimes social withdrawal.
Dr Furze testified that the features of the applicant's presentation at the time and the symptoms on which he based his diagnosis were the history of long-standing depressed mood and social withdrawal, and his demeanour at the interview. Dr Furze testified that there did not appear to be anything in particular in the history that he took of the applicant which was troubling him or which pointed to the focus for that depression – the applicant had a history of a very unhappy and very troubled life. It was not possible in that history to identify one or two events that appeared to be related to that depression exclusively. Dr Furze testified that his opinion at the time was that the severe damage to his health, the deterioration in his relationships and his relative social isolation appeared to be the major determinants of the problem. Dr Furze specifically pointed to the breakdown of the applicant's two marriages and his de facto relationship, the difficulty in his relationship with his children and, apart from his regular visits to Flinders Medical Centre to see treating specialists, his only major social interaction appeared to be contact with other veterans at the RSL on an occasional basis. There were other issues, such as his war time involvement, but he could not narrow it down to just that involvement as the cause of his problems.

Dr Furze was asked to speculate on the likely impact of a history of substantial alcohol consumption upon the applicant's intellectual function. Dr Furze said that the applicant had undertaken very excessive alcohol consumption over a long period of time, with the exception of two years after his cardiac transplant, when he remained sober. Dr Furze testified that the applicant had had alcoholic cardiomyopathy and a history of drinking to drunkenness on a regular basis. It was the opinion of Dr Furze that with the level of drinking and the amount of time that the applicant had been drinking heavily, it was impossible to believe that he had not suffered neurological damage.
Dr Furze informed the Tribunal that with alcoholic brain damage, there are two broad patterns of damage - a general loss of functioning brain tissue right across all the cortex and subcortical matters and a selective and more severe impairment of the memory pathways. The consequences are impairment of the person's ability to put new information into long-term memory files, a retrieval problem of the previously held memories and a tendency to lose the temporal arrangement of those memories. In addition, Dr Furze mentioned a phenomenon called confabulation where, in recounting something from the historic past, a person with alcoholic brain damage will draw memories that are held and place them together in a plausible framework. This may result in a memory from a different time placed out of context. It might also only be a memory of a narrative - something that happened to someone else that they were told about. The summation of that is a person with a 30-year history of heavy drinking is likely to be a less reliable historian.
Dr Furze told the Tribunal that he found the applicant a difficult, disorganised historian and this was quite consistent with subtle damage to the brain. Dr Furze said that PTSD is quite different from almost every other condition in DSM-IV in that there is the history of an event and the history of psychological distress and a connection must be drawn between the event and the distress. When a patient's history is taken, it is necessary to make an assumption that the event occurred. One is reliant on either the person's description of that event and any corroborative historical evidence. During examination of the person, the person's reactions to probing are examined but to a large extent the examiner is dependent on the history given by the person.
Dr Furze told the Tribunal that the history that he obtained from the applicant was that the applicant's time in Vietnam was scattered between 1969 and 1972 and the applicant described Vietnam as a fearful place, he did not like it from day one and he was afraid the whole time that he was there. Dr Furze testified that the applicant also described to him disturbing memories about being in New Guinea, Indonesia and Da Nang, when he felt in danger of being killed. Dr Furze testified that nothing stood out in the history given to him by the applicant as a discrete event that he could identify as a traumatic event of the kind referred to in DSM-IV and the relevant SoP for PTSD (Instrument No.15 of 1994 as amended by Instrument No.225 of 1995)(Exhibit A11).
Dr Furze told the Tribunal that the applicant did not single out the storm incident to him but the applicant did mention a cyclone of which Dr Furze had made a note, and the story of the cyclone did match with accounts given by several other soldiers on similar ships. Dr Furze said that he was inclined to believe that this was quite a prolonged and stressful experience lasing several days in a very uncomfortable ship and as the applicant was a Corporal Coxswain, he would have been on duty a fair bit of the time. Dr Furze gave the opinion that the applicant would have found the British Army environment much more disciplined, controlled and supportive than the Australian Army environment. Dr Furze told the Tribunal that the type of ship that the applicant was on was an extremely boring environment and was also very uncomfortable in any sort of sea. The applicant would have found a contrast between these ships and the equipment that would have been used by the British services in Aden and Cyprus. It was not suggested that the Australian ships were not seaworthy, but they certainly had a lot of maintenance problems and would have been thrown together fairly quickly.
In relation to the police station incident, Dr Furze indicated that in a note he had written that the applicant had told him that he was out after curfew at a time where the white mice would be patrolling. The applicant and his friend hid behind and slept behind a stone wall and were frightened that they would be found by the white mice and shot. Dr Furze said that he had no history of police pointing their guns at the applicant in a police station or of the applicant wetting himself. Dr Furze indicated that he would have expected that some sort of history would have emerged, but it did not, in either interview.
Dr Furze was not given any history by the applicant of the mined village incident or the Viet Cong incident, both of which were highlighted by Dr Atchison.
In relation first of all to the relevant SoP for PTSD, Instrument No. 15 of 1994 as amended by Instrument No. 225 of 1995 (Exhibit A11), Dr Furze gave the following evidence.
In relation to the paragraph 4 definition of "experiencing a stressor" and in particular the part (a) of the definition of "experiencing a stressor", Dr Furze gave the opinion that the event had to be something located in history, something that that occurred in actual fact, in that there has to be some objective element calculated of its inherent nature to cause the sort of feelings which are set out in part (b) of the definition of "experiencing a stressor" in the SoP. It is not just in one's subjective perception of the event. In his evidence, Dr Furze testified that based upon the history he gained from the applicant during their interviews, the applicant did not experience a stressor of the nature required by the SoP during his time in Vietnam.

(a) In relation to the storm incident, and on the history given to him by the applicant, Dr Furze gave the opinion that the storm incident did not satisfy part (a) of the definition of "experiencing a stressor". Whilst the storm incident caused the applicant stress, and this stress was significant, in terms of his diagnosis, it did not reach the level of stressor required for PTSD. He testified that in the hierarchy of stressors, he would see it only as a severe stressor to match the description on the SoP for depressive disorder. Dr Furze said that if the ship was swamped, if it had sunk, if the crew members were killed or washed overboard, then the event may have reached the required standard.

(b) In relation to the police station incident, Dr Furze gave evidence that if he had been given the history that was given to Dr Atchison, then he would have been satisfied that that incident met the level of "stressor" required by the SoP for PTSD because it was an event where a person had a lethal weapon aimed at him by people that clearly had a reputation for using those weapons without asking too many questions.

(c) In relation to the Viet Cong incident, Dr Furze gave evidence that if he had been given the history that had been given to Dr Atchison, he would still have had doubts as to whether that incident met the level of "stressor" required.

(d) In relation to the mined village incident, Dr Furze gave the opinion that if he had been given the history that was given to Dr Atchison, and if the applicant had walked through a village that had been mined and there were human remains scattered around or hanging from trees, that would meet the "stressor" criteria.

In relation to the paragraph 4 definition of PTSD, paragraphs (a)(i) and (ii), Dr Furze gave the same evidence as above when addressing the definition of "experiencing a stressor".
In relation to criteria (b) of the paragraph 4 definition of PTSD, namely that the traumatic event is persistently re-experienced in one or more of the listed ways, Dr Furze gave the opinion that his examination of the applicant and the history he obtained did not support a finding that criteria (b) was satisfied. When directed during cross-examination to his report where he referred to the applicant's frequent nightmares, Dr Furze explained that the applicant was unable to describe the detail of the nightmares and so Dr Furze was unable to diagnose that the applicant was experiencing "recurrent distressing dreams of the event", which would satisfy (b)(ii) of the definition of PTSD. In relation to paragraph (b)(iii) of the definition, namely 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), Dr Furze commented that where Dr Atchison referred in her report to the applicant experiencing "intrusive thoughts and flashbacks" (Exhibit A2, page 3), the term "flashback" actually had a specific technical meaning and it appeared that Dr Atchison was using the term in its more popular way rather than the technical way. Dr Furze gave evidence that if he had been convinced that the applicant had intrusive recollections to the incident where his life was in danger, for example, having intrusive disturbing memories of the police station incident, then he would have no trouble with a PTSD diagnosis.
In relation to criteria (c) of the definition of PTSD, namely 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 listed criteria, Dr Furze gave the opinion that the applicant met three of the criteria - (iv) markedly diminished interest or participation in significant activities, (v) feeling of detachment or estrangement from others and (vi) restricted range of affect (eg, unable to have loving feelings).
In relation to criteria (d) of the definition of PTSD, namely persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the listed criteria, Dr Furze gave evidence that the applicant met two of the criteria – (i) difficulty falling or staying asleep and (iii) difficulty concentrating. Dr Furze gave the opinion that criterion (b) represented the "core" concept of PTSD and that criteria (c) and (d) overlap with the criteria for dysthymia (depressive disorder).
Dr Furze told the Tribunal that if he had been given the same history as Dr Atchison and provided that he was convinced that criterion (b) was satisfied, then he would have made the same diagnosis of PTSD of the applicant.
Dr Furze conceded that a reasonable explanation for the applicant not telling him as much as he told Dr Atchison was that the applicant had only slowly come to trust Dr Atchison over a long period of time. Dr Furze told the Tribunal that Vietnam veterans do have for historic reasons a distrust of authority and authority figures and are reluctant to talk about their experiences.
In relation to the SoP concerning depressive disorder, Instrument number 65 of 1996 as amended by Instrument number 181 of 1996 (Exhibit A13), Dr Furze gave the opinion that the applicant did not fit the criteria for depressive disorder in that that SoP limits the definition of depressive disorder to include only major depression. Dr Furze gave evidence that the applicant did not meet the criteria for major depression as set out in DSM-IV but rather had dysthymia, a condition not covered by the above SoP. However, he made the following comments about the applicability of the SoP:

(a) In relation to the definition of "severe psychosocial stressor" as oulined in paragraph 7 of the SoP, Dr Furze gave evidence that the storm incident satisfied this level of stressor. In addition, the death of the applicant's brother and the breakdown of his marriages and de facto relationship also satisfied this level of stressor.

(b) In relation to the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised and in particular Factor 5(b), namely experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder, Dr Furze gave evidence that in 1972, two psychiatrists did not diagnose depression and psychiatric illness was ruled out by both of them. Dr Furze told the Tribunal that even allowing for the fact that dysthymia is a new term, the psychiatrists could have used words such as depression, reactive depression or neurotic depression. Dr Furze's conclusion was that he could not identify the time of clinical onset of dysthymia but it appeared to him that it was not present in 1972.

In relation to the later SoP concerning depressive disorder, Instrument number 58 of 1998 (Exhibit A18), Dr Furze gave the following evidence:

(a) In relation to the paragraph 2 definition of "depressive disorder", which includes dysthymia at subparagraph 2(b)(A)(ii), Dr Furze testified that the applicant did suffer from dysthymia at the time he diagnosed him in accordance with DSM-IV and that the condition of dysthymia that he diagnosed coincides with the definition of dysthymia found in paragraph 2(b)(A)(ii) of the SoP. However, Dr Furze referred to his report (Exhibit R6, page 6) where he ascribed multiple causes of the dysthymia, including his alcohol, his current socially isolated position and his severely impaired health status.

(b) In relation to Factor 5(c), namely having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder, Dr Furze gave evidence that the applicant had a clinically significant psychiatric condition - alcohol abuse syndrome. Dr Furze testified that the historic evidence suggested that the applicant started drinking heavily on arrival in Vietnam and from then on the applicant was drinking abusively and it was certainly well in train by the time that he was assessed by the two psychiatrists in 1972. Dr Furze gave the opinion that the applicant began to regularly drink to drunkenness after the storm incident.

(c) However, Dr Furze had difficulty in identifying the clinical onset of the dysthymia. Dr Furze gave evidence that in 1997 and today, the applicant suffered from dysthymia. However, based on the psychiatrists' reports in 1972 (T4/32-36) the dysthymia was not present in 1972. Dr Furze told the Tribunal that dysthymia is a new diagnosis and would not have been available in 1972. However, there were equivalent terms that could have been used - neurotic depression, reactive depression, inadequate personality or dependent personality were terms which might have been used to describe the chronic unremitting depression with multiple inputs which is now known as dysthymia. Since none of these terms were used, Dr Furze concluded that the psychiatrists did not find the applicant had depressive disorder in 1972.

(d) Dr Furze gave the opinion that the applicant was referred to psychiatrists in 1972 because he had struck a senior officer and it seemed out of character with a soldier who otherwise was holding a responsible position. Dr Furze speculated that a medical officer decided to get a psychiatric report on the applicant to check that there was no psychiatric reason why the incident had occurred. This was to ascertain whether the incident was related to psychiatric, as opposed to disciplinary, problems.

Submissions of the Parties

The Tribunal has had the advantage of receiving substantial written submissions from both parties and also oral submissions from the respondent in this matter and sees no purpose in reciting the submissions in detail as they are well-known to the parties. The Tribunal has confined itself in these reasons to an outline of the main submissions.
Submissions of the Applicant
Ms Hokin outlined the evidence given by the applicant and by Dr Atchison and submitted that the diagnostic criteria as laid down in Instrument Number 15 of 1994 concerning PTSD (Exhibit A11) was satisfied. It was submitted that the evidence of Dr Atchison should be preferred to that of Dr Truman and Dr Furze as Dr Atchison was the applicant's treating psychiatrist and she had been able to develop a rapport with the applicant after treatment of some 2½ years.
It was submitted that the applicant has not felt comfortable talking about his experiences in Vietnam and has kept them shut away for 20 years. Ms Hokin pointed to the fact that both Dr Furze and Dr Atchison agreed that they had difficulty establishing a rapport with the applicant. It was submitted that the applicant is better able to talk about these things now than in the past and is consuming less alcohol.
Ms Hokin submitted that Dr Furze spoke to the applicant on only two occasions some three years ago and he obtained a history not inconsistent with that provided by the applicant to Dr Atchison, although less detailed. Ms Hokin submitted that Dr Furze gave evidence that if he had been provided with the same history as Dr Atchison and provided that he was satisfied as to factor (b) of the definition of PTSD, then he would have reached the same diagnosis as Dr Atchison, feeling satisfied at least that the police station incident and the mined village incident were stressors.
Ms Hokin submitted that much had been made of the issue of disclosure of the various incidents at particular times. It was submitted that given the limited time frame Dr Furze spent with the applicant, it was certainly open to assume that had further exploration of the matters been made, greater details may have come to light. It was submitted that a symptom of the condition of PTSD was that people do not wish to discuss their traumatic experiences. Ms Hokin submitted that this fact, coupled with a high level of alcohol consumption, means that it was unrealistic to expect a consistent "news reel" relay of events by the applicant at all possible occasions.
Ms Hokin submitted that much had been made of the production of notes by the applicant to Dr Atchison. It was submitted that the notes were not created for the purpose of trying to fit into the criteria for PTSD but rather were an aid to his memory. It was submitted that the applicant did not have a detailed knowledge as to the criteria at all.
In relation to the applicant's evidence at the Veterans' Review Board hearing, it was submitted that at the hearing with respect to the conditions of cardiomyopathy and alcohol dependence (Exhibit R3), he detailed the storm incident, the pistol whipping incident, the Viet Cong incident and the police station incident, along with other incidents.
Ms Hokin submitted that consideration needs to be given to the fact that the relevant incidents occurred nearly 30 years ago. It was submitted that the applicant had provided clear and consistent evidence to the Tribunal and that evidence concurred with earlier evidence provided to the Veterans' Review Board hearings and was not inconsistent with details provided to Dr Furze.
Ms Hokin submitted that the reasonable hypothesis raised by the material before the Tribunal pursuant to section 120(3) of the Act was that the applicant experienced a stressor prior to the clinical onset of PTSD during his operational service. There were four separate incidents outlined as the relevant stressors relied upon – the storm, the mined village, the pistol-whipping/Viet Cong incident and the police station incident.
In relation to the issue of depressive disorder, Ms Hokin submitted that both Dr Atchison and Dr Furze provided a diagnosis of dysthymia. However, only Dr Atchison found a causal link between that condition and the circumstances of the applicant's operational service. It was submitted that the applicant's service records revealed that the applicant was referred to psychiatrists for investigation of depression, and even though the subsequent psychiatric reports found that there were no signs of depression present at that time, it could not be ruled out that the applicant did experience depression during his Vietnam war service. Ms Hokin pointed to the applicant's medical board examination dated 3 August 1973 which detailed a history of mental depression and nervous disorder rendering him unfit for Operation Seaspray.

In relation to the causation of depressive disorder, Ms Hokin submitted that the applicant's dysthymia did not arise as a result of one specific traumatic experience but more generally from a build up of numerous traumatic experiences, a sense of disenchantment with his superiors and with the Australian Army in particular.
It was submitted that Dr Furze, in determining that the applicant's dysthymia was caused by the severe damage to the applicant's health, the deterioration in his relationships and his relative social isolation, placed too much reliance upon the contemporaneous psychiatric records which he described as suggesting no history of depression. Ms Hokin submitted that this reliance ignored the findings of the medical board examination at that time.
It was submitted by Ms Hokin in turning to the relevant SoP concerning depressive disorder, that there were actually two in issue. The first such SoP, being Exhibit A13, was the SoP concerning depressive disorder that was in force at the time of the original determination of the Repatriation Commission, namely Instrument No.65 of 1996 as amended by Instrument No.181 of 1996 (Exhibit A13). It was submitted that the applicant's condition of dysthymia did not satisfy the definition of depressive disorder provided by paragraph 2(b) of that SoP. However, the SoP concerning dysthymia in existence as at the time of the Tribunal hearing in this matter, namely Instrument No. 58 of 1998 (Exhibit A18) revoked the earlier SoP and included as part of the definition of depressive disorder the condition of dysthymia. Ms Hokin submitted that the evidence of Dr Atchison and Dr Furze both provided the opinion that the applicant suffered from dysthymia in accordance with paragraph 2(b)(A)(ii) of the definition of depressive disorder in this later SoP.
It was submitted first by Ms Hokin that there was no relevant SoP concerning dysthymia in force at the time of the Commission's original determination. It was submitted that the applicant's original claim (T9/96) was for chronic depression and that the Repatriation Commission in their determination of 7 January 1998 assigned the diagnosis of depressive disorder to the applicant's claimed condition and found that the applicant did not meet the definition of depressive disorder as laid down in the SoP in existence at that time, namely Instrument No.65 of 1996 (Exhibit A13). It was submitted that Instrument No. 65 of 1996 never applied to the applicant's claimed condition as it was not a SoP determined by the Authority with respect to the disease of dysthymia.
Ms Hokin submitted that the Act is quite clear in stating that a SoP is designed to cover a particular kind of injury, disease or death and not to cover the field with respect to a particular field of disorders, and a SoP's applicability to a particular injury or disease could only be determined by reference to the definition of the medical condition outlined in the SoP.
It was submitted that in determining whether or not a SoP was in existence which applied to the applicant's claim, it was not simply a question of looking at the title of the SoP as "Depressive Disorder" as this was overly simplistic. One had to look to the definition of the condition to which the SoP purports to apply.
In addition, it was submitted that at the time of the Commission's original determination, no determination was made that there should be no SoP with respect to dysthymia, rather the disease had not been considered by the Authority.
Ms Hokin's first submission therefore, was that when stage 2 of Repatriation Commission v Deledio (1998) 83 FCR 82 was reached in relation to this matter, the answer to the question of whether or not there was an applicable SoP was "no". The hypothesis raised must still be reasonable but there was no requirement that it fit within a template of a SoP as there was no SoP applicable. Ms Hokin referred to the cases of McMillan & Others v Repatriation Commission (1998) 152 ALR 459 and Etheridge and Repatriation Commission (1998) 51 ALD 175 as support for this position.
If in fact it was the decision of the Tribunal that Instrument No.65 of 1996 did apply to the applicant's case such as to preclude him from fitting the requirements of the SoP, it was submitted by Ms Hokin in the alternative that Instrument No.58 of 1998 concerning depressive disorder (Exhibit A18) was the more appropriate SoP to be applied.
It was submitted that the cases following Repatriation Commission v Keeley (2000) FCA 532 more clearly supported the view that an earlier SoP in force at the time that the claim was lodged need only be applied if in fact it was more beneficial to the applicant than any later SoP. Ms Hokin referred to the decisions of Gorton v Repatriation Commission (2001) FCA 286 (23 March 2001) and Repatriation Commission v Thompson (2001) FCA 341 (2 April 2001) as support for this contention.
Therefore, it was submitted that if the present case was in fact a situation where one was compelled to choose between a more and less beneficial SoP, in the sense of the earlier SoP for depressive disorder being less beneficial and the later more beneficial, then it would clearly be appropriate for the Tribunal in the present case to apply the later SoP, Instrument No.58 of 1998.
It was submitted by Ms Hokin that the applicant did satisfy the factors laid down in the later SoP in that he suffered a severe psychosocial stressor connected with his operational service. The applicant was diagnosed by Dr Atchison as meeting the diagnostic criteria in that later SoP.
It was the applicant's submission that the date of effect for depressive disorder was 18 August 1997 and the date of effect for PTSD was 20 May 1997.
Submissions of the Respondent
It was submitted by Mr Mellows on behalf of the respondent that the relevant SoP which applied to the condition of depressive disorder was the one in force at the date of the Commission's decision on 7 January 1998, namely Instrument No.65 of 1996 as amended by No.181 of 1996 (Exhibit A13). It was submitted that any other SoPs sought to be relied upon were irrelevant because the SoP which applied throughout the whole review process was the one in force at the time the Commission made its original determination. Mr Mellows referred to the case of Keeley as authority for this position.
In relation to the issue of depressive disorder, Mr Mellows submitted that the relevant legislation contemplated a SoP covering a particular field of disorders and in this case, Instrument No. 65 of 1996 (Exhibit A13) was expressed to cover depressive disorders and dysthymia did not come within that definition. It was submitted that the problem for the applicant was not that there was no relevant SoP but rather that his condition did not satisfy the ingredients or template of the SoP and accordingly the applicant's claim must fail.
In the alternative, it was submitted that if there was a contest between an earlier and a later SoP, then the Full Federal Court in Keeley held that the appropriate SoP to apply was the one in force at the time the Commission made its decision.
In the further alternative, it was submitted that even if the later SoP applied, the evidence did not raise a reasonable hypothesis.
It was submitted by the respondent that the applicant has led a life stricken with grief, unhappiness and tragedy. The applicant had suffered serious health problems and had experienced a number of unhappy events in his past, for example, the death of his brother, two broken marriages and a failed relationship, and the misfortune of being involved in a difficult and dangerous time in Vietnam. Mr Mellows submitted, however, that this time in Vietnam and the events the subject of the applicant's claim occurred over 30 years ago, against a backdrop of the theatre of war and since that time they had been overtaken by a number of other events.
The respondent submitted that the process of review must include an analysis of the applicant's evidence to enable the Tribunal to determine whether a reasonable hypothesis had been raised. It was submitted that the applicant's evidence was given in fits and starts and about matters which took place 30 years ago. It was submitted that the Tribunal may conclude that the applicant did his best, but there were grave doubts about the reliability of the applicant's evidence in some major respects. Mr Mellows submitted that the applicant's testimony in general was wandering, partly reliant upon being led from notes, and the applicant was inconsistent in his presentation in the history which he gave to the various doctors, to the Veterans' Review Board and the Tribunal. Mr Mellows outlined in his written submissions some particular examples of inconsistencies in the applicant's evidence.
Mr Mellows drew the Tribunal's attention to the effect of the applicant's alcoholism and poor health on his own life and memory. Mr Mellows submitted that even if one accepted the major incidents such as the storm incident, the Viet Cong incident and the police station incident, a question mark still existed as to how reliable and how accurate the applicant's recollection of those incidents was.
It was submitted that there was no sound basis for a reasonable hypothesis in regard to depression or PTSD which would be consistent with or meet the applicable SoP.
It was submitted that the condition of dysthymia did not come within the relevant SoP concerning depressive disorder (Instrument No.65 of 1996) nor did the applicant satisfy the criteria relating to severe stress. In any event, it was submitted that the applicant was not aware of his depressive illness until 1987-1988 and was not diagnosed by Dr Furze until then. Mr Mellows submitted that the Army psychiatrists ruled out any psychiatric disorder and there were many other stresses in his life then which were likely to have produced depression, for example, the death of his brother, and it was not reasonable to latch onto or single out any one of them.
In relation to PTSD, Mr Mellows submitted that the applicant did not satisfy the relevant criteria, either under DSM-IV or the relevant SoP. It was submitted that the evidence of Dr Furze should be accepted in preference to that of Dr Atchison because the facts that Dr Atchison based her diagnosis upon were very tenuous and the applicant's evidence was unreliable. It was submitted that there was no proper foundation for a reasonable hypothesis upon which to make a diagnosis.
Mr Mellows submitted that the date of effect for depressive disorder was 18 October 1986. Mr Mellows further submitted that the date of effect for PTSD was 30 July 1997 because the applicant did not lodge his Veterans' Review Board appeal within three months of the primary claim decision.
the tribunal's findings reasons and decision
At the outset the Tribunal would indicate that it is mindful that in these proceedings the four steps in decision-making as prescribed by the Full Court of the Federal Court in Deledio are applicable. 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 s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.       If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.       The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

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. Whilst the applicant also had eligible defence service as outlined in that same paragraph, it is the former service which is relevant for present purposes.
The applicant claims in these proceedings that he has two diseases which are war-caused (ie PTSD and depressive disorder). In addition to the four step prescription in Deledio, the Tribunal has the additional guidance of the reasoning of Wilcox J in Meehan v. Repatriation Commission [2001] FCA 597 and Williams v. Repatriation Commission [2001] FCA 601 – Meehan with respect to the applicable standard of proof regarding a disease as distinct from a particular ailment, disorder, defect or morbid condition such as PTSD – Williams with respect to the relevant SoP to be considered. It is clear from Meehan 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, is to be determined by the Tribunal "to its reasonable satisfaction" pursuant to s120(4) of the Act and that that standard of proof is not applicable as to whether a veteran suffers or did suffer a particular ailment, disorder, defect or morbid condition.
As Wilcox J points out in Meehan (paragraph 38), "a determination about the proper diagnosis of a condition may depend on its supposed wartime causation. That would seem to be the case in relation to PTSD which, by definition, must be related to a traumatic stressor."
It is clear from Meehan that the Full Court of the Federal Court in Repatriation Commission v. Cooke (1998) 90 FCR 307 "was doing no more than saying the issue whether a veteran suffered from a disease (as distinct from a particular disease) must be determined under s120(4), rather than upon the reverse criminal standard provided by s120(1)" (paragraph 39).
Disease relevantly means for present purposes "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) …" (Section 5D(1)(a) of the Act). The Tribunal is reasonably satisfied (ie on the balance of probabilities), having regard to the whole of the material before it, and in particular the evidence of the applicant and Drs Atchison and Furze, that the applicant does suffer from a mental ailment, disorder or morbid condition and hence a disease for the purposes of the Act.
The Tribunal now sets out those aspects of ss120 and 120A of the Act which are relevant for present purposes.
Section 120 relevantly provides:
"(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."

Section 120A(3) reads:

"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypotheses."

The Tribunal now turns to the four steps prescribed by Deledio.

Step 1
The Tribunal determines after having considered all of the material before it that that material points to the following hypotheses connecting disease with the circumstances of the particular service rendered by the applicant in Vietnam.

(a)the applicant suffers from PTSD which is causally related to one or more events which occurred in Vietnam. Those events have previously been referred to earlier in these reasons and for convenience are referred to as "the storm incident", "the mined village incident", "the Viet Cong incident" and "the police station incident".
(b)the applicant suffers from depressive disorder ie dysthymic disorder which is causally related to events which occurred during the applicant's service in Vietnam by
(1) experiencing severe psychosocial stressors ie the abovenamed incidents (in paragraph (a) above) during operational service within two years immediately before the clinical onset of depressive disorder in the form of dysthymic disorder.
(2) having a clinically significant psychiatric condition (PTSD and/or alcohol dependence) within the two years immediately before the clinical onset of depressive disorder (dysthymic disorder).

The evidence of the applicant and that of Dr Atchison clearly points to the above hypotheses. The Tribunal would indicate that no question of fact finding does or has occurred at this point in time.
Step 2
The task of the Tribunal is to ascertain whether there is in force SoPs determined by the Authority under s196B(2) or (11) of the Act relevant to the above hypotheses. It is clear in so far as PTSD is concerned that SoP (Instrument No 15 of 1994), as amended by SoP (Instrument No 225 of 1995) is relevant. (Exhbit A11). In so far as depressive disorder is concerned, there is SoP (Instrument No 65 of 1996), as amended by SoP (Instrument No 181 of 1996) (Exhibit A13), and SoP (Instrument No 58 of 1998) (Exhibit A18) which revoked, on 3 September 1998, the earlier SoPs (ie 65 of 1996 and 181 of 1996).

As at the date of the respondent's refusal to accept depressive disorder as being war-caused, the relevant SoP was No 65 of 1966, as amended by No 181 of 1996. As at the date of the Veterans' Review Board's decision affirming the respondent's decision, the later SoP had come into existence, namely that of 3 September 1998 (No 58 of 1998). This latter situation currently exists.
As to the applicable SoP in relation to depressive disorder, the Tribunal has been guided by and has followed the reasoning of Wilcox J in Williams v. Repatriation Commission [2001] FCA 601, Stone J in Gorton v. Repatriation Commission [2001] FCA 286 and the interpretation of the various authorities referred to therein. Consequently, the Tribunal is of the opinion that the applicant is entitled to rely upon SoP (No 58 of 1998) in relation to depressive disorder.
Step 3
The Tribunal now turns to consider whether each or any hypothesis raised is a reasonable one, ie whether a hypothesis fits, that is to say, is consistent with the "template" to be found in the relevant SoP. 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 ss196B(2)(d) and (e)).

The Tribunal turns firstly to PTSD – the applicable SoP being No 15 of 1994 as amended by No 225 of 1995 (Exhibit A11). 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. 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;"

The raised hypothesis does, in the opinion of the Tribunal, fit "experiencing a stressor" as part of the minimum factor referred to above. Evidence in this regard is to be found as follows.

"The storm incident" – the evidence of Dr Atchison at pages 163-164, and 405 of the transcript and the evidence of the applicant at pages 33-34 and 69-72.
"The mined village incident" – Dr Atchison's evidence at pages 161-162, 164 and the applicant at pages 34-35, 78-82.
"The Viet Cong incident" –the evidence of Dr Atchison at pages 160-162, 184-189 and the applicant at pages 42-44, 96-98, 113-114.
"The police station incident" – the evidence of Dr Atchison at 160, 162, 189-190, 405 and the applicant at pages 47-49, 98-105, 116-121.

Accordingly, the raised hypothesis fits paragraph (a) of "experiencing a stressor" in relation to each of the incidents.
As to paragraph (b) of "experiencing a stressor" the following evidence comprising the hypothesis is relevant.

As to "The storm incident" – the evidence of Dr Atchison at pages 163-164, 332, 405 and that of the applicant at pages 33-34, 69-72.
As to "The mined village incident" – the evidence of Dr Atchison at pages 161-162, 164 and the applicant at pages 34-35, 78-82.
As to "The Viet Cong incident" – the evidence of Dr Atchison at pages 160-162, 184-189 and the applicant at pages 42-44, 96-98, 113-114.
As to "The police station incident" – the evidence of Dr Atchison at pages 160, 162, 189-190, 405, 406 and the evidence of the applicant at pages 47-49, 98-105, 116-121.

The Tribunal is of the opinion that the hypothesis fits paragraph (b) of "experiencing a stressor" in relation to each of the incidents. As paragraphs (a) and (b) of "experiencing a stressor" are met by the hypothesis, the Tribunal now turns to consider whether the hypothesis fits the remainder of paragraph 1(a) of the SoP No 15 of 1994 which dictates that this experience occurs prior to the clinical onset of PTSD.

PTSD is defined in SoP No 15 of 1994 (as amended) (Exhibit A11) as follows:
"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 symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise 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 outburst 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."
As to paragraph (a) of the above definition, the evidence of the hypothesis regarding paragraphs (a) and (b) of "experiencing a stressor" outlined above is relevant and, in the opinion of the Tribunal, fits this aspect of the SoP's template.
As to paragraph (b)(i) of the definition of PTSD, the following evidence regarding the hypothesis is relevant and fits this aspect of the template – the evidence of Dr Atchison at pages 159, 306, 327-328, 332-337.
As to paragraph (b)(ii) of the same definition, the following evidence regarding the hypothesis is relevant and fits this aspect of the template – the evidence of Dr Atchison at pages 307, 333, 335, 338, 447-449 and that of the applicant at pages 153, 232, 245-246, 255-259.
The evidence comprising the hypothesis does not fit paragraph (b)(iii) – relevant in this regard is the evidence of Dr Atchison at pages 407-408.
As to paragraph (b)(iv), the following evidence regarding the hypothesis is relevant and fits this aspect of the template – the evidence of Dr Atchison at pages 449-450 and page 4 of Exhibit A2.
As to paragraph (b)(v), the following evidence regarding the hypothesis is relevant and fits this part of the template – the evidence of Dr Atchison at page 450.

The Tribunal now turns to paragraph (c) of the subject definition.

As to paragraph (c)(i), the following evidence regarding the hypothesis is relevant and fits the template – the evidence of Dr Atchison at pages 159, 306, 340-343, 408-410, 450-451 and the evidence of the applicant at page 382.
As to paragraph (c)(ii), the following evidence regarding the hypothesis is relevant and fits the template – the evidence of Dr Atchison at pages 159, 345, 408-410, 413-414, 451 and the evidence of the applicant at pages 383-385, 396, 397, 385-386, and 397-398.
The hypothesis does not include paragraph (c)(iii) as seen by the evidence of Dr Atchison at page 411 of the transcript.
As to paragraph (c)(iv), the following evidence regarding the hypothesis is relevant and fits the template – the evidence of Dr Atchison at pages 345-346, 411, 450-451 and that of the applicant at pages 54, 68.
As to paragraph (c) (v), (vi) and (vii), it is clear that the hypothesis does not include these aspects of the template – this is seen from the evidence of Dr Atchison at pages 259, 344, 346, 347, 411-412 and 451.

The Tribunal now turns to paragraph (d) of the definition of post-traumatic stress disorder.

As to paragraph (d)(i), the following evidence regarding the hypothesis is relevant and fits the template – the evidence of Dr Achison at pages 159, 307-308, 349 and 453 and the evidence of the applicant at page 59.
As to paragraph (d)(ii), it is clear that the hypothesis does not fit this aspect of the template – in this regard is the evidence of Dr Atchison at pages 349 and 453.
In the opinion of the Tribunal the subject hypothesis fits paragraph (d)(iii) having regard to the evidence of Dr Atchison at pages 159, 307, 348-349 and 453.
It also fits paragraph (d)(iv) courtesy of the evidence of Dr Atchison at pages 159, 307, 348 and that of the applicant at page 59.
Evidence of Dr Atchison at pages 453-454 fits paragraph (d)(v) of the template.
As to paragraph (e) of the subject definition, the following evidence regarding the hypothesis is relevant and fits the template – the evidence of Dr Atchison at pages 349-350 and 454.
Paragraph (f) of the definition is also met by the evidence of Dr Atchison at page 350 and Exhibits A2, A3, A4 and A8 relevant to this aspect of the template.

The Tribunal now returns to paragraph 1(a) of the SoP. It is the evidence of Dr Atchison that suggests that the applicant has PTSD which was preceded by the applicant experiencing a number of stressors. These allegedly occurred during the applicant's operational service. The evidence of Dr Atchison suggests that the clinical onset of PTSD was present ever since the applicant's Vietnam service. The considered view of the Tribunal is that the raised hypothesis regarding PTSD fits the template of SoP No 15 of 1994 and is a reasonable hypothesis.
The Tribunal now turns to the fourth step as outlined in Deledio in relation to the hypothesis regarding PTSD and in doing so would indicate for the reasons given by this Tribunal in Varricchio v. Repatriation Commission and delivered this day, that the standard of proof set out in s120(1) relates to whether the Tribunal is satisfied beyond reasonable doubt that (for present purposes) the disease, ie PTSD, is not war-caused.
As to the fourth step, 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 (both oral and written) and to the submissions of the parties. Regarding the oral evidence before the Tribunal, the Tribunal would indicate the following. The Tribunal found the applicant to be a credible witness. He did his best to accurately portray the events in question. His evidence was complemented and magnified by the testimony of Dr Atchison who was a most impressive witness. She had the advantage of gaining the trust of the applicant in recent years which enabled a much more detailed and clearer picture to emerge of the events which had occurred during the applicant's operational service, and of the applicant's symptomology, than had previously emerged and had been medically reported by others including Dr Furze. The latter's evidence suffered as a consequence.
The Tribunal accepts the applicant's evidence and that of Dr Atchison. Having regard to their oral evidence, the applicant's statements Exhibits A5 and A17 and the reports of Dr Atchison, Exhibits A2, A3, A4 and A8, the Tribunal makes the following findings of fact (and in doing so the Tribunal has preferred the above evidence to that which might be said to be at variance).
The Tribunal finds that whilst on operational service the applicant experienced the four stressors outlined earlier in these reasons. These stressors 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 s120(1) of the Act, the Tribunal determines that PTSD is a war-caused disease.
The Tribunal now moves to further consider the hypotheses regarding depressive disorder. Steps 1 and 2 are as outlined earlier in these reasons.
Step 3
This step relates to whether or not the hypotheses raised are reasonable and involves examining whether each hypothesis fits or does not fit the template of SoP 58 of 1998 (Exhibit A18). For an hypothesis to be reasonable, it 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. The evidence of Drs Atchison and Furze indicate that the applicant has a depressive disorder in the form of dysthymic disorder which fits the DSM-IV definition and that contained in paragraph 2(b) of SoP 58 of 1998.
The hypotheses raised relate to paragraph 5(b) and (c) of the SoP. As to paragraph 5(b), the evidence of the applicant and that of Dr Atchison as outlined earlier in these reasons with respect to "experiencing a stressor" in SoP 15 of 1994 also, in the opinion of the Tribunal, fall to be described, ie fit the template under consideration, as "experiencing a severe psychosocial stressor" – they are the four incidents earlier referred to in these reasons with the transcript references, together with the evidence of Dr Atchison appearing at pages 357-358, 424, 468-469 and 472-474. Whilst those four incidents do not fit the examples given in the definition of "experiencing a severe psychosocial stressor", the Tribunal does not regard those examples as being exclusive and certainly the four incidents each allegedly were identifiable occurrences that evoked feelings of substantial distress in the applicant.
The evidence of Dr Atchison at pages 424-425, 468 and 470 is to the effect that the above incidents occurred within two years of the clinical onset of depressive disorder. And so the hypotheses with respect to Factor 5(b) fit the template of SoP 58 of 1998 and are therefore reasonable.
As to the hypotheses with respect to Factor 5(c), the evidence of Dr Atchison at pages 172, 173, 470, 471 and 472 indicates that PTSD and alcohol dependence occurred within two years immediately prior to the clinical onset of dysthymic disorder and are clinically significant.
The Tribunal is accordingly of the opinion that the hypotheses with respect to Factor 5(b) and (c) fit the template of SoP No 58 of 1999.
The Tribunal now turns to the fourth step in Deledio bearing in mind the standard of proof comments made earlier at paragraph 128. The Tribunal would indicate that it has had regard to the whole of the evidence (both oral and written) and to the submissions of the parties. Regarding the oral evidence before the Tribunal, the Tribunal would indicate the following. As earlier referred to in these reasons, the Tribunal found the applicant to be a credible witness. He did his best to accurately portray the events in question. His evidence was complemented and magnified by the testimony of Dr Atchison who was a most impressive witness. She had the advantage of gaining the trust of the applicant in recent years which enabled a much more detailed and clearer picture to emerge of the events which had occurred during the applicant's operational service, and of the applicant's symptomology, than had previously emerged and had been medically reported by others including Dr Furze. The latter's evidence suffered as a consequence.
The Tribunal accepts the applicant's evidence and that of Dr Atchison. Having regard to their oral evidence, (in particular that referred to in paragraph 130 of these reasons) the applicant's statements Exhibits A5 and A17 and the reports of Dr Atchison, Exhibits A2, A3, A4 and A8, the Tribunal makes the following findings of fact (and in doing so the Tribunal has preferred the above evidence to that which might be said to be at variance).
The Tribunal finds that whilst on operational service the applicant experienced severe psychosocial stressors, namely the four incidents referred to earlier in these reasons within the two years immediately before the clinical onset of depressive disorder ie dysthymic disorder. The considered view of the Tribunal with respect to this reasonable hypothesis regarding depressive disorder is that it is not satisfied beyond reasonable doubt that that disease is not war-caused.
The Tribunal also finds that the applicant had the clinically significant psychiatric conditions of PTSD and alcohol dependence within the two years immediately before the clinical onset of depressive disorder (dysthymic disorder) being causally related to his operational service. The considered view of the Tribunal is that it is not satisfied beyond reasonable doubt that that disease is not war-caused.
Accordingly, the Tribunal determines, pursuant to s120(1) of the Act that depressive disorder is a war-caused disease.
As to the date of effect re PTSD, it appears that this claim was received on 20 August 1997 (See Summary of Events in the T documents). This claim was refused on 23 September 1997. The applicant then lodged an application for review by the Veterans' Review Board on 30 January 1998 outside the three months (T1/5) and so the date of effect is 30 July 1997 as submitted by the respondent.
As to the date of effect re depressive disorder, it appears that this claim was received on 18 November 1997 and refused by the respondent on 7 January 1998. The application for review by the Veterans' Review Board was lodged on 30 January 1998 (T1/5) within three months of the latter date and hence the date of effect is 18 August 1997 as submitted by the applicant.
The decision of the Tribunal is that the decisions under review with respect to post-traumatic stress disorder and depressive disorder are set aside and in substitution therefor it is determined that
(1)post-traumatic stress disorder is a war-caused disease with date of effect being 30 July 1997.
(2)depressive disorder is a war-caused disease with date of effect being 18 August 1997.
(3)the matter be referred back to the respondent for assessment of the appropriate rate of pension.
I certify that the 141 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ...............(Signed).........……..
  Barbara Armstrong (Associate)
Date/s of Hearing  16-18 October 2000, 29 January,
  28 February and 14 March 2001
Date of Decision  29 June 2001
Counsel for the Applicant        Ms C Hokin
Solicitor for the Applicant         Lempriere Abbott McLeod
Counsel for the Respondent    Mr R Mellows
Solicitor for the Respondent    Australian Government Solicitor