McKlaren and Repatriation Commission

[2005] AATA 448

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 448

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/421

VETERANS' APPEALS DIVISION		)
Re		ROBERT JOHN McKLAREN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date19 May 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s post traumatic stress disorder, depressive disorder and alcohol abuse (in partial remission) are war-caused with effect from 24 March 2003.  As agreed between the parties the question of assessment of rate of pension above 100% of the General Rate is now remitted to the respondent for assessment.

.................[Sgd]........................

M J Carstairs
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – operational service – PTSD, depressive disorder, alcohol abuse – reasonable hypotheses and application of SoPs

Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B

Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Delahunty v Repatriation Commission [2004] FCA 309

REASONS FOR DECISION

19 May 2005   Ms M J Carstairs, Member

1.      This is an application by Robert John McKlaren (the applicant) for review of that part of a decision made by a delegate of the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (the VRB) that refused the claims for post traumatic stress disorder (PTSD), depressive disorder and alcohol dependence on the ground that these conditions were not war-caused. 

2.      At the hearing the applicant was represented by Mr A Harding instructed by Gilshenan and Luton, Solicitors.  The respondent was represented by its advocate Mr B Williams.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A5 for the applicant and R1 – R2 for the respondent.

BACKGROUND

4.      The applicant is aged 60.  He left school at the age of 14 to work on the New South Wales Railway.  While working on the railways he joined the Citizen Military Forces (CMF) and obtained several heavy vehicle licences during that service. He joined the Royal Australian Air Force (RAAF) in November 1964, at the age of 20.  He served in Vietnam from 26 April 1967 until 12 August 1967.  While in Vietnam his duties utilised the heavy vehicle licences that he had obtained in the CMF and he was engaged as a truck and stores driver including driving troops daily to Vung Tau for meals.

5.      His enlistment had been for a term of six years (T4, p1) and he was discharged from the RAAF with the rank of corporal in 1970 at the age of 26.

6.      On 26 June 2003 the applicant claimed for a number of disorders including PTSD, depressive disorder and alcohol dependence. These claims were rejected by the respondent’s delegate and by the VRB, though in the course of review his rate of pension was increased to 100% of the general rate.  The applicant sought review with this Tribunal on 7 June 2004.  The issues for the Tribunal were those of diagnosis of any medical conditions from which the applicant suffers, and whether any of these are related to the applicant’s service.

7.      The applicant and his wife married in 1967 and have three children.   They, with some family members, operate businesses in Montville, Queensland.  One of the issues initially before the Tribunal was whether the applicant was entitled to be paid at one of the higher, earnings related, rates of pension.  At the commencement of the hearing the parties agreed that the question of assessment of the rate of pension, if the applicant succeeded in his claim for the medical conditions, should be remitted to allow further examination of taxation records for the business.

EVIDENCE

8.      In written statements (T4, pp 34-35; statement dated 20 June 2003 attached to Dr B Anderson’s report Exhibit A5; and Exhibits A1 – A3) and in oral evidence the applicant referred to four incidents in his Vietnam service that he regarded as stressful. 

·     An explosion in a bar in Vung Tau shortly after he had departed from it, and when he was still within 50 metres (Vung Tau bar incident).

Booby traps and mutilation were frequent in the Vung Tau area.  Booby traps were placed under seats, in carry packs, under wheels of vehicles and many other places.  On a rare visit to a bar it was not long after leaving the area the bar was ripped by an explosion, I would have been approx. 50 to 60 metres away on ignition of the explosion.  I later heard that a carrier pack was left in the bar area and all it took was someone to trip or kick the bag to set off the explosion.(T4)

…the feeling of absolute terror and fear as I could have tripped over the bag left in that bar.  I quickly returned to the compound and for the remainder of my tour in Vietnam I confined myself to my duties and barracks.  I constantly have recurring dreams of an explosion, fire, then falling through space.  I wake up suddenly with a rapid heart beat and feel disoriented and clammy…Sudden loud noises and explosions get me very agitated and startled and the pressure seems to build inside of me to a point that I have to get out of that area. (Attachment to Exhibit A5)

·     When driving alone between Vung Tau and the RAAF base he had to stop and change a tyre in darkness (the tyre incident):

One of my main duties was the transporting of troops into Vung Tau.  This involved up to six trips per day through areas that were vulnerable to attack particularly mines, booby traps and sniper fire….Several of these were made after dark and at times being the sole occupant .… of the vehicle the stress was overwhelming and many times I arrived in cold sweats and very stressed dreading future trips. (T4)

I remember starting to change the tyre but then all I remember is arriving at my destination at Vung Tau in a saturated wet condition (sweat) and in a very agitated state.  Since this incident over the past 37 years I experienced panic attacks if in a dark quiet area of which the effects last for seven days.  On one occasion I was frozen with fear and my wife took me to our G.P. who then admitted me to the Ipswich Hospital for assessment and observation.  This was in the early 70s and I was prescribed anti-depressant drugs which I took for many years. (Exhibit A3)

·     Death of a catering chef at Vung Tau (the death incident).  The chef was killed outside the compound in Vung Tau.

A friend who was a chef wandered just a few metres away from the pickup point and was killed by a local policeman (White Mice). This only added to my fears and stress of having lost a friend so close to home.

·     Constant anxiety which he experienced when he was transporting troops to and from the air force base to Vung Tau for meals, often travelling alone and without firearms for protection.

9.      The applicant said that during his tour of Vietnam, troops were constantly reminded by the RAAF Defence Forces Guard that they must examine the trucks  for suspicious objects or booby traps before commencing any journey and that when engaged in driving vehicles they must not stop the vehicle under any circumstances.  He said it was well-known and a topic of discussion that enemy forces infiltrated the perimeter, and he had been told about atrocities and mutilations, he believed carried out against American servicemen by the enemy.  He said that he was constantly on edge and fearful for his life whilst he was in Vietnam.

10.     When speaking about the tyre incident he reiterated that he could not remember anything from the time he alighted to change the tyre to the time he returned to the base.  He recalled that the blow-out occurred in a poorly lit area.  It was dark and he had only the light of his vehicle to work by, though he could see the light of a house some distance ahead.  He said his fear was so great he could think of nothing but the reported mutilations of servicemen and the warnings that they had been given by security that they must not stop the vehicle under any circumstances.  He said that he always travelled unarmed.

11.     The applicant said in oral evidence that there was no-one in his unit in Vietnam with whom he could discuss his fears.  He could not say why he had not asked for weapons protection.  He had felt comfortable speaking with the catering chef in Vung Tau, who was later killed (the death incident).  He said he could not remember the chef’s name now, but had taken meals with him in Vung Tau and, whilst he did not otherwise socialise with the chef, he had taken some comfort from being able to talk with him.

12.     The applicant said that for many years after his service he denied his symptoms of psychiatric disturbance and kept searching for organic causes for the way that he felt, despite urgings by his general practitioner that he seek some psychiatric assistance.  This was supported by the clinical notes of his treating psychiatrist, Dr B Anderson (T4, pp 46-47) which stated: Depressed on and off since his return from Vietnam.  Would not accept treatment for depression in the 1980’s.  The applicant agreed under cross-examination that he made no mention of the stressors that he now relies upon when he made a claim on the Department in 1971.

13.     In a medical report dated 5 March 1971 (T4, pp 20-23) the applicant was examined for symptoms (amongst others) of a nervous condition, described as periodically wants to get away from everything and everyone.  The applicant stated that he first noticed these symptoms in 1967.  The provisional diagnosis was depression.  He was referred to a psychiatrist who diagnosed:

Anxiety reaction with tension headaches in an obsessive person with difficulties in handling hostility.

14.     In a written statement dated 16 June 2003 Mrs S McKlaren, the applicant’s wife, stated that before his Vietnam service the applicant was normal, healthy, active and easy-going.  She said that she had to write to him when he was in Vietnam to advise him of her pregnancy with their first daughter.  The applicant arranged for a short period of compassionate leave and when he returned to Australia she was surprised about how much weight he had lost and how edgy he appeared, especially if in crowded or closed-in circumstances.  She and the applicant married shortly after he returned from Vietnam and she observed that he was easily startled, drinking a lot, suffering from headaches and easily angered. 

15.     In oral evidence Mrs McKlaren said that she was seventeen when she found that she was pregnant and as she and the applicant and their families lived in Moree in northern New South Wales, attitudes at the time dictated that she move to Sydney for the pregnancy.  She said that when the applicant returned from Vietnam he was quite reclusive and seemed to need an undue amount of sleep.  He would never discuss his Vietnam experiences.  She said that she knew something had occurred over there but he would never talk about it.  She said that in the end she simply tried to accept him as he was and carry on.

16.     The medical reports prepared in relation to the applicant were those of:

·     Dr P Mulholland, psychiatrist – reports dated 16 November 2004 (Exhibit R1) and 3 May 2005 (Exhibit R2)

·     Dr B Anderson, psychiatrist – reports dated 22 July 2003 (T4, pp 44-45), 10 December 2003 (T4, pp 126-127), 5 July 2004 (Exhibit A4) and 5 April 2005 (Exhibit A5)

17.     Dr Mulholland and Dr Anderson agreed that the applicant suffers symptoms of chronic anxiety disorder, chronic depressive disorder and chronic alcohol abuse (in partial remission) and that the clinical onset of these conditions was in Vietnam. 

18.     Dr Mulholland commented that the applicant grew up with an alcoholic father amidst domestic discord, and said this could have made the applicant more susceptible than the average person to later developing psychiatric problems.  In oral evidence Dr Mulholland said that it was very significant that the applicant reported an anxiety problem in 1971 as it indicates the presence of problems he was experiencing.  He noted that the psychiatrist at the time referred to symptoms of depression.  Dr Mulholland agreed that the applicant would have been under additional stresses in Vietnam when he learned of the pregnancy of his seventeen year old girlfriend in Australia.  He said he would regard this factor as a psycho-social stressor though he would not label it as being severe. 

19.     Dr Mulholland considered that the applicant’s past history of heavy drinking had abated when he was in his late 30s and is now best described as alcohol abuse/dependence in partial remission.  He said the applicant was possibly partially dependant on anti-anxiety medication from his late 20s to early 40s but reduced his dependency when he suffered atrial fibrillation at the age of 28. 

20.     Dr Mulholland considered that the applicant had the necessary symptoms of PTSD as set out under criteria B, C, D and E of the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV), and said that the applicant’s thought content is dominated by depressive and post-traumatic themes.  However, Dr Mulholland considered that the stressors relied upon by the applicant from his Vietnam service were not sufficiently severe to satisfy Criterion A of the diagnostic tool, which requires that :

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;

21.     Dr Anderson diagnosed the applicant as suffering PTSD.  He stated:

Prior to going to Vietnam Mr McKlaren was a normal young man who had no emotional problems and did not drink.  While in Vietnam Mr McKlaren was often fearful and experienced horror at some of the things he witnessed and often felt that his life was in danger.  Immediately on return from Vietnam he had the symptoms of Post Traumatic Stress Disorder and Depression.  He was also drinking heavily and his dependence on alcohol escalated until he developed a cardiac arrhythmia at the age of 28.

22.     Dr Anderson also diagnosed the applicant with major depression and alcohol dependence until 1974.  Dr Anderson’s reports included his assessment of the applicant as demonstrating the symptoms required under Criteria B, C, D and E for a diagnosis of PTSD under DSM-IV (T4, pp 126-127).  Dr Anderson noted that the applicant was diagnosed with an anxiety state in 1971 and commented that at that time the terminology PTSD was not in the official nomenclature of psychiatry.  Moreover, he said the presence of anxiety disorder in 1971 would not preclude the later development of PTSD. 

23.     In his report at Exhibit A5, Dr Anderson concurred with Dr Mulholland’s diagnosis of chronic depressive disorder and the appropriateness of diagnosis of chronic alcohol abuse in partial remission.  He noted that symptoms of generalised anxiety disorder, as diagnosed by Dr Mulholland, form part of the profile of PTSD and noted further that most diagnoses in DSM-IV that are similar are mutually exclusive as the manual commonly states that a diagnosis is used only if the symptoms are not better accounted for by another diagnosis.  Dr Anderson remained satisfied that the applicant had experienced sufficiently severe stressors to satisfy Criterion A for a diagnosis of PTSD. 

24.     Dr Anderson stated (Exhibit A4) that when considering the issue of whether the applicant was exposed to a sufficiently severe stressor, account needs to be taken of the fact that his intrusive recollections relate solely to experiences in Vietnam and he observed that a person’s individual perceptions of threat will be pivotal in determining whether an emotional disorder results.

CONSIDERATION OF THE ISSUES

25.     The first issue which the Tribunal must determine is that of diagnosis.  There is considerable agreement between Dr Mulholland and Dr Anderson.  There is no disagreement between them that the applicant has the symptoms of PTSD.  Dr Mulholland refers to his thought content as having post traumatic themes but he could not agree that the trauma was sufficient. 

26.     In this case the Tribunal considers that more weight must be given to the treating doctor who has had the opportunity of treating and counselling the applicant for over two years.  This enables him to have greater insight into the applicant’s condition and its causes than Dr Mulholland who saw the applicant on one occasion.  The Tribunal accepts that the applicant suffers from PTSD.   

27.     Dr Mulholland and Dr Anderson are in agreement that the applicant suffers from depressive disorder and alcohol abuse (in partial remission), and the Tribunal accepts their evidence and so finds. 

28. The next issue is whether the applicant’s PTSD, depressive disorder and alcohol abuse (in partial remission) are related to his operational service, as referred to in s9 of the Veterans’ Entitlements Act 1986 (the Act). Section 9 prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:

9(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran…

29. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1) of the Act). Section 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principle (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Section 120A(3) provides that, for the purposes of s120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is a SoP in force that upholds the hypothesis.

30.     The relevant SoPs in this case are Instrument No 3 of 1999 (as amended) for PTSD; Instrument No 58 of 1998 for depressive disorder; and Instrument No 76 of 1998 for alcohol dependence.  The SoP for PTSD provides in factor 5(a):

(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; ….

where experiencing a severe stressor means:

…the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s physical integrity.

31.     The definition is similar to that provided in the SoP for alcohol abuse or dependence where the SoP provides for experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.  In view of the agreed medical evidence on the issue of clinical onset of anxiety, depression and alcohol abuse in the applicant’s case, the applicant can also rely on factor 5(a) for the SoP for alcohol abuse, namely, suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse. 

32.     The four hypotheses formulated in relation to the stressors set out above at paragraph 8 addressed factor 5(b) in the SoP for depressive disorder which provides as a factor raising a reasonable hypothesis of connection between depressive disorder and relevant service, experiencing a severe psychosocial stressor within the two years before the clinical onset of depressive disorder.    The SoP then defines severe psychosocial stressor as:

…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault…severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;

33.     In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:

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 a SoP determined by the Authority under s 196B(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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

34.     Thus, the hypotheses raised by the applicant rely upon the stressful events outlined above at paragraph 8, and that any or all of these incidents were either severe stressors or, for purposes of PTSD and alcohol abuse, were severe psychosocial stresses for depressive disorder.  The question of alcohol abuse essentially follows from an acceptance of either of the conditions of PTSD or depression, under factor 5(a) of the relevant SoP (as referred to in paragraph 31 above) in view of the agreed medical evidence about clinical onset of all psychiatric conditions in this case. 

35.     The relevant Federal Court authorities that provide a guide for the interpretation of severe stressor and severe psychosocial stressor are:Stoddart v Repatriation Commission [2003] FCA 334, Repatriation Commission v Stoddart [2003] FCAFC 300, White v Repatriation Commission [2004] FCA 633.

36.     Mr Harding also referred to Delahunty v Repatriation Commission [2004] FCA 309. In that case the Federal Court said:

27.      The term ‘stressor’ denotes something which leads to stress.  It is inherent in the notion of ‘stress’ that there is a perception on behalf of an individual.  The existence or extent of the stress will depend on each particular personality.  This concept injects a subjective element into the determination.  What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers.  As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account.  It is clearly not a purely objective construct such as is applied in negligence cases.  It is not a case of deciding how ‘the man on the Clapham omnibus’ might react.  There is more.  The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions.  While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances.  This indicates that the definition must be approached in a manner which is not unduly restrictive.

37.     There are hypotheses raised for each of these conditions and there are SoPs in force for them.  Steps 1 and 2 as set out in Deledio are met.

38.     The third step in Deledio requires a consideration of whether any of the hypotheses raised are reasonable and as this is understood in the setting of the legislation, requires that the hypotheses fit the template provided by relevant factors in a SoP and any definitions provided within the SoP. 

39.     The material before the Tribunal in relation to the death incident and the applicant’s general feelings of apprehension when carrying out his driving duties in Vietnam, do not point to circumstances sufficient to meeting the definition of experiencing a severe stressor in the SoPs for PTSD and alcohol dependence.  Both SoPs provide a definition supported by examples, namely, threat of serious injury or death, engagement with the enemy and witnessing or participating in casualty clearance atrocities or abusive violence.  These two incidents, whilst providing a background in which the applicant would have heightened anxiety, did not engage him in actual, direct experience or confrontation with threat of death and serious injury.  However, the evidence relating to the Vung Tau bar incident and the tyre incident were incidents capable of conveying the risk of death or serious injury.  Whether they did so is the question to be determined at Step 4 of Deledio but these incidents raise, in accordance with factor 5(a) of the SoP for PTSD and 5(b) of the SoP for alcohol abuse or dependence, hypotheses of a relationship to service which are reasonable. 

40.     The Tribunal took account of the evidence and formed the opinion that these two incidents also meet the definition of severe psycho-social stressor within the SoP for depressive disorder.  The Tribunal considers that the death incident met that definition on the applicant’s evidence of his substantial distress in learning of the death of his friend in circumstances where the applicant was already fearful of the kind of threat to which his friend had succumbed.  The Tribunal took account of the submission by Mr Harding that the events and experiences of the applicant have to be understood in the context of a young man of quite limited education and experience who found himself in a very unfamiliar and stressful environment and had the additional pressures of his concerns for his newly pregnant girlfriend when he was so far away from her and felt at risk of death. 

41.     The Tribunal noted in particular that the definition of severe psycho-social stressor includes experiencing a loss such as divorce or separation and clearly anticipates personal events, unrelated directly to service itself, but capable of making that service more difficult for an individual to cope with emotionally. 

42.     The Tribunal agrees that it is within that background of events that the applicant’s experiences in Vietnam must be understood.  The hypotheses raised by the applicant in regard to the Vung Tau bar incident and the tyre incident match the template in the SoP for PTSD and for alcohol abuse.  In regard to alcohol abuse it was not necessary for the applicant to rely on factor 5(b) alone as the medical evidence was in agreement that the applicant’s psychiatric difficulties stemmed from his Vietnam service and so factor 5(a) suffering from psychiatric disorder at the time of clinical onset of alcohol dependence or alcohol abuse was met. 

43.     The hypotheses raised in regard to the Vung Tau bar incident, the death incident and the tyre incident meet the definition of severe psycho-social stressor and fit the template for depressive disorder in factor 5(b) of the SoP.    

44.     In regard to the fourth step in Deledio for the applicant’s claim to fail after the third step is met, the Tribunal must be satisfied beyond reasonable doubt that the incapacity is not war-caused within the meaning of s9 of the Act.

45.     The Tribunal accepts that the applicant was giving an honest and forthright account of the events as he experienced them in Vietnam.  The Tribunal accepts the submission of Mr Harding that account must be taken of the applicant’s own experiences, perceptions and understandings.  The applicant’s evidence was that he felt fearful and isolated and was very mindful of the stories of atrocities as well as the urging of those in charge of security warning always of the dangers, particularly in the course of vehicle travel.

46.     The Tribunal takes into account that at the time of his Vietnam service, the applicant was a relatively junior soldier.  He was a person who had left school at the age of 14 with a limited education.  He found himself in Vietnam in circumstances where, in addition to the anxiety he was experiencing in overseas service, he had the stress of learning that his very young girlfriend was pregnant.  The Tribunal accepts his evidence that this made him more fearful for his own mortality. 

47.     The Tribunal accepts that the applicant was constantly afraid and that his experience of narrowly escaping what might have been a very serious outcome in the Vung Tau bar incident confirmed his fears.  The fact that he did escape from that incident unscathed does not detract from the impact it would have on a person who was already fearful.  The death incident would also have served to confirm to the applicant that the dangers he apprehended were very real.  

48.     The respondent did not seriously dispute that any of the incidents relied upon occurred but sought to minimise their significance.  For instance, it was said that the chef was not a close friend.  However, the Tribunal accepts the applicant’s evidence on the significance of that friendship to him and, like other evidence in this case, it stands unchallenged on material points.  The Tribunal accepts the applicant’s evidence that the chef was a confidante and someone upon whom he relied for  release of his concerns and feelings of anxiety.

49.     The Tribunal took into account that in the early claim made in 1971 the applicant did not refer to the stressors on which he now relies.  However, this must be seen in the context of the way his symptoms developed, and must take account of his evidence that he was searching for an understanding of why he felt the way that he did on his return from Vietnam.

50.     The Tribunal was not satisfied beyond reasonable doubt that the incidents relied upon did not occur in the way the applicant described.  Accepting the applicant’s evidence, the Tribunal was satisfied that the fears that he held were real to him and affected him severely.  The Tribunal was not satisfied beyond reasonable doubt that a reasonable person in the applicant’s position at the time would not have felt the same way.  The reactions he had to the circumstances in which he found himself resulted in damaging psychiatric consequences for this applicant. 

51.     For these reasons the applicant’s claim for PTSD, depressive disorder and alcohol abuse (in partial remission) succeed.

DECISION

52.     The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s PTSD, depressive disorder and alcohol abuse (in partial remission) are war-caused with effect from 24 March 2003.  As agreed between the parties the question of assessment of rate of pension above 100% of the General Rate is now remitted to the respondent for assessment.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:               Denise Burton

Administrative Assistant

Date/s of Hearing  5 May 2005
Date of Decision  19 May 2005      
Counsel for the Applicant         Mr A Harding      
Solicitor for the Applicant          Gilshenan and Luton 
For the Respondent                  Mr B Williams, Departmental Advocate