Meakin-Jones and Repatriation Commission - [2001] AATA 662

DECISION AND REASONS FOR DECISION [2001] AATA 662

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/963

VETERANS' APPEALS DIVISION       )
           Re      DAVID ROGER MEAKIN-JONES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date20 July 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – claim for disability pension – post traumatic stress disorder –hypotension – ulcerative colitis – operational service – whether condition meets the requirements of the relevant Statement of Principles - eligible war service - war-caused injuries or diseases - eligibility for pension - reasonableness of hypothesis to be assessed by reference to Statement of Principles – standard of proof - reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles – experiencing a stressor
Veterans' Entitlements Act 1986, ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 20(1), 68(1) "defence service", "member of the Forces", 69(1)(a), (c), 70(1)(b), (d), (9)(b), 71(1), (2)(a), (c), (d), 120(1), (3), (4), 120A(1), (3), (4), 120B(1), (3), (4).
Statement of Principles No 15 of 1994 as amended by No 225 of 1995 concerning Post Traumatic Stress Disorder

Statement of Principles No 16 of 1994 as amended by No 226 of 1995 concerning Post Traumatic Stress Disorder

Statement of Principles No 144 of 1996 as amended by No 179 of 1996 concerning Inflammatory Bowel Disease

Statement of Principles No 145 of 1996 as amended by No 180 of 1996 concerning Inflammatory Bowel Disease

Repatriation Commission v Smith (1987) 12 ALD 798
Repatriation Commission v Deledio (1997) 49 ALD 193
Re Riley and Repatriation Commission (1995) 37 ALD 717

REASONS FOR DECISION

20 July 2001 M J Sassella, Senior Member

History of the application

On 1 October 1975 David Roger Meakin-Jones ("the Applicant") lodged a claim for medical treatment and a Disability Pension with the Repatriation Department (T4). He claimed in respect of "nervous condition, anxiety."
On 5 May 1976 the Repatriation Board rejected the Applicant's claim (T7). The Board considered that the Applicant's personality disorder was not related to his service.
On 9 April 1998 the Applicant lodged a formal claim for nerves, hypertension and ulcerative colitis with the Department of Veterans' Affairs ("the DVA") (T8).
On 17 June 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claims for conditions now described as hypertension, ulcerative colitis and generalised anxiety disorder with alcohol abuse (T9A).
On 31 August 1998 the Applicant wrote to the DVA requesting a review of the Respondent's decision by the Veterans' Review Board ("the VRB") (T10).
On 23 September 1998 the Respondent notified the Applicant that it would not conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T11).
On 18 April 2000 the VRB varied the diagnoses of the generalised anxiety disorder and hypertension to post traumatic stress disorder ("PTSD") and hypotension respectively. In all other respects the Repatriation Commission determination was affirmed, refusing the Applicant's claim to have his conditions accepted as service related disabilities (T13). The VRB found that the Applicant did not satisfy any of the minimum factors of the Statement of Principles ("SoP") in relation to PTSD, experiencing a stressor prior to clinical onset or clinical worsening of the condition, or an inability to obtain clinical management for the condition. In relation to ulcerative colitis, the relevant SoP is that for inflammatory bowel disease. Again, none of the minimum requirements of the SoP were met by the Applicant. The VRB found no evidence that Crohn's disease (as required by the SoP) was present before either his eligible war or defence service. Factors 5(b) and 5(c) of the SoP require that a veteran must have had relevant service for not less than six months. The Applicant' operational service was only some eight days and his eligible service a little over five months. Therefore none of the SoP requirements were met. It was the Applicant's further contention that his hypotension was caused by his ulcerative colitis. Because the VRB found that his ulcerative colitis was not related to service, neither could his hypotension be so related.
The Applicant has no disability accepted as war-caused at this point in time.
On 27 June 2000 the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal") (T1).
Relevant legislation
The following provisions from the Veterans' Entitlements Act 1986 are relevant: ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 20(1), 68(1) "defence service", "member of the Forces", 69(1)(a), (c), 70(1)(b), (d), (9)(b), 71(1), (2)(a), (c), (d), 120(1), (3), (4), 120A(1), (3), (4), 120B(1), (3), (4).
"6C Operational service - post World War 2 service in operational areas
(1)       Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
          (a)       a member who was allotted for duty in that area; or
          (b)       a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…"
"7 Eligible war service
(1)       Subject to subsection (2), for the purposes of this Act:
          (a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…"
"9 War-caused injuries or diseases
(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;
…
          (e)       the injury suffered, or disease contracted, by the veteran:
(i)        was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)       was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
…"
"13 Eligibility for pension
(1)       Where:
…
(b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
          (d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"68 Interpretation
(1)       In this Part, unless the contrary intention appears:
…
defence service means:
          (a)       continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
          (b)       in the case of a person who:
(i)        was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)       continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)      was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
  includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv)      the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v)     the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
  whichever occurs first; and
          (c)       hazardous service rendered before or after the terminating date;
but does not include any period of peacekeeping service;
…
member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A;
…"
"69   Application of Part to members of the Forces
(1)       Subject to this section, where a person:
          (a)       has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
          …
          (c)       if the person:
(i)        has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii)       has, whether before or after that date, completed 3 years' effective full-time service as such a member; or
          …"
70 Eligibility for pension under this Part
(1)       Where:
          …
          (b)       a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
          (d)       in the case of the incapacity of the member—pension by way of compensation to the member;
          …
(9)       The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease:
          …
          (b)       in the case of an injury suffered, or disease contracted, by the member to which paragraph (5) (d) or (5A) (d) applies:
(i)        if the aggravation of the injury or disease:
          (A)      resulted from the member's serious default or wilful act; or
          (B)      arose from a serious breach of discipline by the member; or
(ii)       unless the member has rendered hazardous service or the period of defence service or peacekeeping service that contributed to the injury or disease in a material degree, or by which the injury or disease was aggravated, was 6 months or longer."
"71 Application of certain provisions of Part II
(1)       Divisions 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.
(2)       For the purposes of the application of Divisions 3, 6 and 7 of Part II as provided in subsection (1):
          (a)       a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;
          …
          (c)       a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;
          (d)       a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and
…"
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-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.
…"
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
          (b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
…
(3)       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 hypothesis.
Note:   See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."
"120B   Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
          (b)       a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
          (a)       has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
          (b)       has declared that it does not propose to make such a Statement of Principles.
(3)       In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
          (a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
          (b)       there is in force:
(i)        a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)       a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."

Also relevant are the following Statements of Principles ("SoPs"):

SoP 15/1994 as amended by 225/1995 concerning PTSD

"1. Being of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of that service, are:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(c) must be related to any service rendered by a person.
3. The factors set out in paragraphs 1(b) and 1(c) apply only where:
(a) the person's post traumatic stress disorder was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the post traumatic stress disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;

"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and (b) the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

SoP 16/1994 as amended by 226/1995 concerning PTSD

"1. Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that post traumatic stress disorder and death from post traumatic stress disorder can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986, that the factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of that service, are:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
2. Subject to clause 3 (below) at least one of the factors set out in paras 1(a) to 1(c) must be related to any service rendered by a person.
3. The factors set out in paragraphs 1(b) and 1(c) apply only where:
(a) the persons post traumatic stress disorder was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the post traumatic stress disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act.
4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or
others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes,
including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

SoP 144/1996 as amended by 179/1996 concerning inflammatory bowel disease

"Kind of injury, disease or death
2. (a) This Statement of Principles is about inflammatory bowel disease and death from inflammatory bowel disease.
(b) For the purposes of this Statement of Principles, "inflammatory bowel disease" means a group of chronic inflammatory disorders involving the gastrointestinal tract, attracting ICD code 555 or 556, the most common of which are ulcerative colitis and Crohn's disease, but does not include bowel inflammation secondary to vascular insufficiency, radiation, infection or known toxins.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that inflammatory bowel disease and death from inflammatory bowel disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting inflammatory bowel disease or death from inflammatory bowel disease with the circumstances of a person's relevant service are:
…
(c) inability to obtain appropriate clinical management for inflammatory bowel disease.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of, inflammatory bowel disease where the person's inflammatory bowel disease was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Other definitions
7. For the purposes of this Statement of Principles:
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service.
Application
8. This Instrument applies to all matters to which section 120A of the Act applies."

SoP 145/1996 as amended by 180/1996 concerning inflammatory bowel disease

"Kind of injury, disease or death
2. (a) This Statement of Principles is about inflammatory bowel disease and death from inflammatory bowel disease.
(b) For the purposes of this Statement of Principles, "inflammatory bowel disease" means a group of chronic inflammatory disorders involving the gastrointestinal tract, attracting ICD code 555 or 556, the most common of which are ulcerative colitis and Crohn's disease, but does not include bowel inflammation secondary to vascular insufficiency, radiation, infection or known toxins.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that inflammatory bowel disease and death from inflammatory bowel disease can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, inflammatory bowel disease or death from inflammatory bowel disease is connected with the circumstances of a person's relevant service are:
…
(c) inability to obtain appropriate clinical management for inflammatory bowel disease.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of, inflammatory bowel disease where the person's inflammatory bowel disease was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
Other definitions
7. For the purposes of this Statement of Principles:
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"relevant service" means:
(a) eligible war service (other than operational service); or (b) defence service (other than hazardous service).
Application
8. This Instrument applies to all matters to which section 120B of the Act applies."

Background

The Applicant was born on 6 April 1947 in England (T12). He came to Australia at the age of ten with his sister and his parents. He joined the Royal Navy in 1966 for two years and then joined the Royal Australian Navy ("the RAN") for three and half years, being discharged as medically unfit in 1973. The Applicant then joined the Maritime Services Board in Sydney where he has worked ever since.
Previous to joining the RAN in the UK he worked as a salesman in a shop where he threatened a colleague after the latter had made homosexual advances. As a result he left this job, found work as a labourer and then joined the Navy.
The Applicant has been married twice. He has four children, two from each of his marriages (T12).
The Applicant completed operational service in Vietnam during the period 14 May 1969 to 21 May 1969. His eligible service was during the period 7 December 1972 to 11 May 1973 (T9A).
Documentary medical and other evidence
On 25 February 1971 a RAN examining medical officer noted on the Applicant's entry history questionnaire that he had nightmares and "was once often depressed – now seldom suffers from any episodes" (T3, folio 16).
In a daily service medical record of an indeterminate date in 1973, the medical officer noted that the Applicant was suffering from depression and sleep disturbance and that he wanted to leave the RAN (T3, folio 7).
On 22 January 1973 a RAN outpatient record (T3, folio 8) noted that the Applicant had a reduced appetite, that there was no change in his bowel action and that he had "reversed diurnal mood variation lethargy." The Applicant also expressed a desire to leave the Navy. Further, on 24 January 1973 another entry recorded the Applicant's depression since being married, that he had lost one and a half stone and that he had reduced energy levels. He slept restlessly and suffered from nausea. This later entry also noted that the Applicant had nightmares as a child and that he liked to be alone, disappearing for two or three days at a time by himself. The examiner's opinion was that he was impulsive and immature and that he was prone to anxiety and depression when limited by discipline at home or by marriage or his employment.
On 30 March 1973 a report of the medical board of survey noted that the Applicant had the disability "anxiety neurosis" (T8, folio 54). It further noted that the condition was constitutional, that it was not due to naval service but that it was aggravated by service. It found a 10% civil disability rating and a 60% naval disability rating. A further report found a 40% naval disability rating (T8, folio 55).
Attached to the Applicant's claim form of 1 October 1975 was a statement that he had written in support of his application (T4, folio 23). He stated that his nerves and anxiety were caused shortly after transferring to the RAN from the Royal Navy. He found it hard to gain promotion whilst working as a submariner and noted he was being overlooked for promotion in favour of general service members who had not had the same amount of submarine training that he had had. The Applicant also noted the obvious animosities between officers and crew.
On 12 January 1976 the Applicant was seen by a psychiatrist (T5). The doctor noted the Applicant resented his lack of promotion and the lack discipline in the service and became depressed as a result. He was discharged from the RAN in May 1973 because he was told that he was of no further use to the service. The doctor further noted that, according to his service documents, the Applicant was untidy and inefficient. The Applicant "tends to project his grievances on to the Navy in particular." The doctor did not consider that a diagnosis of "anxiety state" was in any way appropriate. The Applicant's behaviour was more that of a "spoilt child…I just cannot see how in any way a pension is required…"
A further medical history sheet of 12 January 1976 noted that the Applicant considered himself a good worker who was passed over for promotion (T5, folio 30). The Applicant stopped his 50 cigarettes a day smoking habit in 1973 and was an occasional drinker, although he drank heavily in the Navy. The history sheet stated a provisional diagnosis of anxiety state.
On 24 March 1976 a medical report for the Department of Repatriation and Compensation stated that the Applicant had a personality disorder (inadequate personality) and that this had a negligible disability effect (T6). This same report further stated that the condition was present prior to enlistment and that it was not aggravated by his war service.
On 3 September 1992 Dr Roberts, a psychiatrist, reported on the Applicant for his employer, the Maritime Services Board (Exhibit R5). In addition to taking a detailed medical history he came to the following conclusion:
"There is no evidence that this man suffered from any inordinate inappropriate anxiety and certainly no mental disorder can be diagnosed in him. This statement does not in any way diminish from what would be deemed to be the normal appropriate anxiety and depression that would be found in any person suffering from this condition [ulcerative colitis]…His mood has clearly changed, namely he was extremely happy at the change in his symptoms…[emphasis is Dr Roberts's emphasis]
"It is quite clear therefore that his condition was a reaction to his disease which has nothing to do with the work place or any external stressor be it work or non-work related, namely neither his personal, family problems, namely the demands of his first wife nor the work have any capacity to alter the disease with which this man suffers, the cause of which is unknown."

Dr Roberts provided a further report on the same date (also in Exhibit R5). While the Applicant had blamed his ulcerative colitis on his workplace environment, Dr Roberts stated that "there is no scientific evidence that would support the view that he espouses." Further to this Dr Roberts stated that there was no evidence of any stressor in the workplace.
On 19 March 1993 Dr Gillespie, a consultant gastroenterologist and physician, reported on the Applicant's recent "flare of his ulcerative proctitis" but did not comment on the relationship of the condition to service (T8, folio 53). This report was attached to the Applicant's claim for Disability Pension.
On 27 May 1998 the Applicant was examined by Dr Parsonage, consultant psychiatrist (T9). He noted that the Applicant suffered a number of anxiety provoking situations whilst serving on HMAS Ovens. This was a period of non-eligible service. The submarine hit the ocean floor a number of times because of an "inexperienced" captain. At the end of the Ovens cruise the Applicant refused to serve on another submarine because he was to get married. The Applicant still had nightmares about dying in the submarine and these continued until the colon was resected in 1993. Dr Parsonage's opinion was that:
"During the period 1973 to 1984 Mr Jones experienced persistent symptoms of anxiety and symptoms during that period would satisfy the DSM-IV criteria for Generalised Anxiety disorder and Alcohol Abuse.
"Since 1984 Mr Jones' symptoms of anxiety and alcohol abuse have reduced considerably and have not been at the level of the diagnosable psychiatric condition since 1984.
…"

On 31 August 1998 the Applicant wrote to the DVA in support of his application (T10). He claimed that because he refused to join another submarine after his cruise on the Ovens, he was subjected to continual harassment from both friends and peers for almost one year. Further, he was given no counselling or assistance for his depressed condition.

On 30 April 1999 Dr Hordern, consultant psychiatrist, provided a report on the Applicant (T12). He diagnosed severe chronic PTSD, complicated by acute-on chronic ulcerative colitis. This condition was as a result of stressful experiences on the HMAS Vampire in 1969 and on HMAS Ovens in 1972. Dr Hordern disagreed strongly with a diagnosis of personality disorder. He agreed with much of the report of Dr Parsonage (T9), but disagreed with Dr Parsonage's assertion that the Applicant had not suffered a diagnosable psychiatric condition since 1984. Dr Hordern noted the stress that the Applicant was under from the time he refused to join the Otway in 1972:
"I have no doubt that the distress and ignominy Mr Jones experienced aggravated his PTSD and made his symptoms worse…Mr Jones used alcohol and nicotine as tranquillisers and antidepressants…"

Dr Hordern found a total impairment of 19 points.

On 13 July 1999 Dr Miller, consultant physician, reported on the Applicant (T12, folio 80). He took a detailed personal and service history. Dr Miller noted that the Applicant first served on the HMAS Vampire, when he had no official uniform and was still wearing his Royal Navy kit. The Applicant "had no idea what was going to happen and was very distressed when the ship took part in the shore bombardment of North Vietnam." The Vampire was in Vietnamese waters for a week and the ship was firing its guns for several hours each day. The Applicant "suffered considerable anxiety during this period." Dr Miller also took a history of the Applicant's service on the Ovens, including the ocean floor accident and his distress that resulted from it, including diarrhoea that occurred up to 15 times per day. The Applicant found naval doctors less than helpful and went to see a civilian doctor in 1972. The Applicant stated that he had suffered from weight loss due to his diarrhoea, losing five kilograms between 1971 and 1973, including a weight loss of some nine kilograms in 1972. Dr Miller diagnosed hypotension due to chronic intractable diarrhoea and electrolyte disturbances. He further diagnosed the condition of severe ulcerative colitis which was only alleviated by radical surgery. Dr Miller noted that hypotension was not addressed in the Guide to the Assessment of Rates of Veterans' Pensions (5th edition) ("GARP"), but that ulcerative colitis, secondary to hypotension, is on the balance of probabilities related to the Applicant's defence service. This condition attracts an impairment rating of 30 points. Further to this the Applicant suffers from peri-anal inflammation and this attracts a rating of 10 impairment points. The anal disorder with moderate symptoms attracts a rating of 5 impairment points.
Dr Hordern provided another report on the Applicant dated 14 November 2000 (Exhibit A1). He again wrote quite a detailed personal and service history and provided the following diagnosis:
"Severe, chronic, post-traumatic stress disorder (PTSD) complicated by acute-on-chronic ulcerative colitis necessitating proctocolectomy in 1993. Mr Jones' illness stems directly from exposure to an extremely stressful experience whilst serving in the Royal Australian Navy on a destroyer, HMAS Vampire, in April and May in 1969, and it was reinforced by a further stressful experience that he had whilst serving on HMAS Ovens off Manila in 1972…"

Dr Hordern rated the Applicant's current score under GARP as 21. The Applicant's primary stressor was his experience on the Vampire when he was not a member of the regular crew and when he had no knowledge of where the ship was when it was firing. This was supported by the Applicant's visit to the Vampire some 31 years later when he felt distinctly uneasy while on board. The PTSD initiated the looseness of the bowels which later evolved to ulcerative colitis. The experience on the Ovens when it hit the seabed reinforced these illnesses.
On 10 January 2001 Dr Schutz, consultant surgeon, reported on the Applicant (Exhibit R3). He confirmed the diagnosis of ulcerative colitis, but did not consider it related to the seven days of service in 1969 or to service until 1973. There are no external stressors known to cause this condition. Ulcerative colitis is an auto-immune condition. There was no evidence of hypotension. Dr Schutz found an impairment rating of only 5 points, for "minor faecal incompetence associated with occasional soiling."
On 21 January John Tilbrook wrote a historical report at the request of the Respondent (Exhibit R4). He confirmed the Applicant's service details and his recruitment from the RAN. He stated, in regard to the Applicant's contention that he was unaware of where the Vampire was when it was firing, that there was evidence from the then CMDR Hughes that the entire crew was made aware of the voyage to Vietnam. Mr Tilbrook confirmed that the Vampire fired its weaponry on 2, 5, 9, 14 and 19 May 1969, as well as 26-30 May 1969 when the Applicant had already departed the ship.
On 26 March 2001 Dr Shand, psychiatrist, provided a report on the Applicant at the request of the Respondent (Exhibit R2). It was his opinion that the Applicant did not suffer from PTSD because the stressors referred to do not satisfy the relevant SoP. The Applicant told Dr Shand that he did not have any nervous disorder. Further, no relationship could be found between the Applicant's condition of ulcerative colitis and stressors during naval service. Therefore it was not necessary to make an assessment under GARP.
The hearing
A hearing was convened before the Tribunal on 6 July 2001. The Applicant was represented by Mr Jones of Rockliffs Solicitors and the Respondent by Mr Modder from the DVA. The following documentary material was taken into evidence at the hearing:

Applicant's statement of facts and contentions dated 17 November 2000 (Exhibit A1)
Report of Dr Hordern dated 14 November 2000 (Exhibit A2).
Respondent's statement of facts and contentions dated 29 June 2001 (Exhibit R1).
Report of Dr Shand dated 26 March 2001 (Exhibit R2).
Report of Dr Schutz dated 10 January 2001 (Exhibit R3).
Historical research report of Mr John Tilbrook dated 21 January 2001 (Exhibit R4).
Applicant's employment records from Waterways (Exhibit R5).
RAN daily medical record of uncertain date on 9 October 1972 (Exhibit R6).
RAN daily medical record apparently dated 18 October 1971 (Exhibit R7).

Findings on material questions of fact with reference to the evidence and other material in support of the findings

In this application the Applicant seeks the following outcomes. He wishes to have his disabilities of PTSD, ulcerative colitis and hypotension accepted as war-caused. The condition of hypotension, if accepted, will attract no impairment rating under GARP but would be treated at government expense.
The Tribunal finds that the Applicant rendered operational service from 14 to 21 May 1969 and eligible service (in the form of "defence service") from 7 December 1972 until 11 May 1973 (T9A).
The Tribunal finds that the Applicant lodged a valid claim for a Disability Pension in respect of the nominated conditions on 9 April 1998 (T8).
The Tribunal finds that the date of effect of any decision of the Tribunal favourable to the Applicant is to be 9 January 1998 (s 20(1) of the Act).
The Tribunal notes that the standard of proof in relation to conditions allegedly caused or aggravated during operational service is the reasonable hypothesis standard (s 120(1), (3) of the Act).
The Tribunal notes that the standard of proof in relation to conditions allegedly caused or aggravated during defence service is the reasonable satisfaction standard (s 120(4) of the Act). This equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 12 ALD 798).
The Tribunal notes that the Applicant claimed on or after 1 June 1994 (T8). Sections 120A and 120B of the Act therefore apply and the Tribunal must address any SoP relevant to the conditions in respect of which the Applicant is taken to have claimed. The Tribunal notes that the SoPs in issue in the instant case are SoP 15/1994 as amended by 225/1995 concerning PTSD. SoP 16/1994 as amended by 226/1995 concerning PTSD. SoP 144/1996 as amended by 179/1996 concerning inflammatory bowel disease. SoP 145/1996 as amended by 180/1996 concerning inflammatory bowel disease.
The Tribunal notes that, in relation to disabilities allegedly related to operational service, the approach sanctioned in the decision of the full Federal Court in Repatriation Commission v Deledio (1997) 49 ALD 193, 206 is to be adopted.
In relation to disabilities allegedly related to eligible war service other than operational service the approach is different. It is essentially a matter of whether the Tribunal can accept on the balance of probabilities that a hypothesis connecting service with the disability exists.
The Tribunal will proceed to consider each of the Applicant's claimed disabilities and its possible relationship with operational service and, if necessary, defence service.
Possible relationship between PTSD and operational service
The Applicant presented the following hypothesis leading to PTSD as a possible war-caused condition related to operational service. This was that the Applicant experienced a stressor on the HMAS Vampire prior to the clinical onset of PTSD in May 1969 and this led to the Applicant's PTSD. In addition it is claimed that the Applicant was unable, in the Navy, to obtain appropriate clinical management for his PTSD. The Tribunal finds that step 1 of Deledio (supra) has been satisfied. There is at least one hypothesis.
There is a relevant SoP on PTSD that applies to the Applicant. This is SoP 15/1994 on PTSD as amended by 225/1995. Step 2 of Deledio (supra) is satisfied.
The Tribunal finds that the third step in Deledio (supra) is satisfied. The hypotheses as presented resemble the requirements in the SoP.
The fourth step in Deledio (supra) is to ascertain whether the Tribunal can be satisfied beyond reasonable doubt that any of the requirements in the relevant SoP cannot be met in the Applicant's case. Referring to the SoP on PTSD, the following questions are prompted from the terms of the SoP:
Does the Applicant have PTSD as defined in paragraph 4 of the SoP?

If the Applicant does not have PTSD can his claim in respect of PTSD be taken to apply to any other disability?

If the Applicant has PTSD has he experienced a stressor as defined in paragraph 4 of the SoP (SoP factors 1(a) and (b))?

If the Applicant has experienced a stressor was it prior to the clinical onset of PTSD (SoP factor 1(a))?

If the Applicant has experienced a stressor and it was not prior to the clinical onset of PTSD, was it prior to the clinical worsening of PTSD (SoP factor 1(b))?

If the Applicant did not experience a stressor was he unable to obtain appropriate clinical management for his PTSD (SoP factor 1(c))?

If the answer to any of questions 3, 4 or 5 is yes, was the relevant factor related to the Applicant's operational service (SoP paragraphs 2 and 3)?

Question 1 - Does the Applicant have PTSD as defined in paragraph 4 of the SoP?

Dr Hordern (T12 and Exhibit A2) provides the strongest opinion to the effect that the Applicant has PTSD. He traces the PTSD back to stressful experiences on the HMAS Vampire in 1969. He considered the condition exacerbated by the incident on the HMAS Ovens when the submarine bottomed. Dr Hordern gave evidence by telephone during the hearing. He said that the Applicant was in a difficult position when he joined the Vampire. He had been trained as a submariner in the UK Royal Navy. He was transferred to the RAN to work in Australian submarines. He found himself in Singapore working on surface vessels when he had expected to travel on to Australia. He had been in the Scottish winter in the Royal Navy and had to adjust to the hot climate in Singapore without his proper kit. He was accommodated in the stewards' and cooks' mess and had no contact with seamen. There were rumours the ship was to go to Vietnam but this was not clarified. He was given a vulnerable action station to occupy just below the ship's large guns. Asbestos flakes fell on him in action stations. He was frightened, in fear of his life. He had no knowledge what was happening. He experienced the onset of his bowel symptoms at this time.
Dr Hordern spoke also of the period on the HMAS Ovens, a period of non-eligible service when the submarine bottomed. This exacerbated his bowel symptoms which had subsided meanwhile. He had nightmares and took to alcohol and cigarettes to allay the symptoms. The bowel condition was not properly treated and so Mr Meakin-Jones lost "most of his colon".
Specifically in relation to PTSD Dr Hordern said that the Applicant suffered severe stress. That rendered him in fear for his life. He felt helpless and hopeless on the Vampire. He experienced later repetitions in nightmares. He has experienced repetitive, intrusive thoughts. He was anxious and depressed. He had sleep problems and a startle reaction.
In cross-examination Dr Hordern agreed that in his first report (T12) he had seen the bottoming of the submarine as the primary stressor. He said that, on reflection after seeing the Applicant for the second time, he had decided that the Applicant's stressful experiences on the Vampire were the more significant stressful experiences. He had underrated the Vampire experience when he first met the Applicant. That had been reflected in oral evidence. In cross-examination Mr Modder put to Dr Hordern that the firing exercises on the Vampire were largely target firings, as attested to by the historian in Exhibit R4. Dr Hordern saw that this made no difference. The Applicant was not in a position to know that.
Mr Modder asked Dr Hordern to address the definition of "experiencing a stressor" in SoP 15/1994. This requires:
"(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."

Dr Hordern did not address the issue of threat of death. He said that Mr Meakin-Jones was "in the dark". He did not know this. He refused to agree that any misgivings would reduce as firing practices were repeated. He said that the problem was the lack of any warning given to the Applicant.
Dr Shand (Exhibit R2) considered that the stressors identified did not satisfy the SoP. The Applicant also "told [Dr Shand] that he considers that he does not have any nervous disorder and therefore is not in need of any treatment for it".
Dr Roberts (Exhibit R5) in 1992 found that the Applicant did not suffer from any inordinate or inappropriate anxiety and no mental disorder could be diagnosed. Dr Parsonage in 1998 (T9) concentrated on the events on the Ovens (outside the eligible service period) and found that he probably suffered as a result of those events from generalised anxiety disorder and alcohol abuse. However, his symptoms have reduced considerably and there has not been diagnosable psychiatric condition since 1984. This echoes a remark by Dr Shand to the effect that there may at an earlier time have been a diagnosis of alcohol abuse but since 1984 the Applicant has given up alcohol and cigarettes. He did not elicit a history consistent with generalised anxiety disorder.
The historical material (Exhibit R4) does not support aspects of Mr Meakin-Jones's account. The historian confirms Mr Meakin-Jones's account of his joining the RAN. His time on the Vampire is thought to have been an orientation period. The historian wrote,
"at the time that he was allotted to HMAS VAMPIRE on 18 Apr 69 the Veteran was not told that HMAS VAMPIRE was scheduled for operational duty in Vietnam waters in the forthcoming weeks, but certainly once he joined the vessel he would have been apprised of the planned 'turnaround' voyage to Vietnam. … the (then) CMDR Oscar Hughes was serving aboard the ship as the Weapons Engineer whose purview included the ships gunnery. RADML Hughes advised the Researcher that all crew members of HMAS VAMPIRE were aware of the intended voyage to Vietnam, and the training program conducted in the first half of May 69 formed part of the preparations for that period of operational duty."

It is not very likely, therefore, that the Applicant knew as little as he says he did at the time about the disposition of the ship. It is of course possible that he was in a state of confusion. He was young. He was stationed where he had not expected to be. He was a supernumerary crewman. That may mean he was not included in general social activity on the ship to the usual extent.

The historical research confirms that Mr Meakin-Jones would have bunked down with the cooks and stewards.
The research report is apparently thorough in relation to the fire watch and gun action involving the Applicant. It is confirmed that as a supernumerary he would have been assigned to fire watch, ie to look for outbreaks of fire on board ship. As regards firing duty, the cooks and stewards were employed as loaders in the ship's magazine area situated on the lower deck below "'A' Turret". Mr Meakin-Jones would have been used in this work, "albeit under close supervision". As for live firing of the ship's guns while the Applicant was on board, the researcher found that firing occurred on five days. There was a demonstration firing on 2 May 1969 in Singapore. There was a night torpedo firing and surface target firings on 5 May 1969 in Singapore. There was a demonstration for the Royal Thai Navy on 9 May 1969. There was a live anti-aircraft firing in the Singapore Exercise Area on 14 May 1969. On 19 May 1969 in Vung Tau Harbour the "Ship's sentries fired small arms at 'suspicious' floating boxes on the ebb tide, and a total of eight (8) 'Scare Charges' were dropped by [the ship] during the conduct of Operation AWKWARD when at anchor between 0645 hrs and 1100 hrs on 19 May 69." It is likely, says the researcher, that Mr Meakin-Jones "was deployed below to work as a member of the loading party in the powder magazine during the ship practice live firings on 2 May, 5 May and 9 May 69. This represents firings on three (3) days of 17 days that he spent at sea with HMAS VAMPIRE, which included his operational duty spanning from 14 May 69 to 21 May 69."
The researcher summarises on this point:
"The Veteran's claim that he was extremely frightened working below as a member of the loading party during firings is possible, although not understood by the Ships senior Weapons Engineer at the time (RADML Hughes), given that the ship was only exercising and was not being targeted by enemy forces. As a trained submariner it would be expected that the Veteran would have had some prior experience in the RN working below the water line in confined spaces."

The Applicant claimed that the Vampire had been firing bombardments upon enemy installations on the coast of Vietnam on every day of operational service. The researcher does not find this sustained in the official ship's records. RADML Hughes does not agree that this occurred. The only live firing in Vietnam between 14 and 19 May 1969 was on the first day of passage when the ship carried out an unsuccessful anti-aircraft live practice shoot in the Singapore Exercise Area.
"HMAS VAMPIRE was not employed in any coastal bombardments in Vietnam waters in May 1969, and the only instances of firings occurred in VUNG TAU harbour which involved the ships posted sentries firing small arms weapon at 'floating' boxes in the water during the conduct of routine Operation AWKWARD State 2 … ."

The researcher says he has been advised that "the overall voyage to Vietnam was uneventful" and his contacts are "not aware of any traumatic incidents that were experienced by any members of the ships company on that voyage".

In view of this it is difficult to find that the SoP requirements for "experiencing a stressor" have been satisfied. The Applicant is required to have experienced, witnessed or been confronted with an event involving actual or threatened death or serious injury. There does not seem to be any event in the relevant sense. Perhaps the historian provides some support for a finding that the other part of the definition has been satisfied, ie that the Applicant's response involved intense fear, helplessness or horror. However, that begs the question, "what is the event to which the Applicant was responding?"
The Tribunal is also cognisant of the evidence in paragraphs 56 and 57 above from experts who do not accept that the Applicant any longer has a psychiatric disability of any kind.
The Tribunal has, on the basis of this material, has found beyond a reasonable doubt that at least one of the requirements necessary for a finding that the Applicant suffers from PTSD is absent. The Tribunal has therefore found that the Applicant does not suffer from PTSD.
Question 2 - If the Applicant does not have PTSD can his claim in respect of PTSD be taken to apply to any other disability?
There is no obligation on a veteran to identify accurately the exact disability that may be war-caused (Re Riley and Repatriation Commission (1995) 37 ALD 717). However, the type of other disability that a decision-maker might consider applicable in the absence of PTSD is most likely generalised anxiety disorder, anxiety disorder due to a general medical condition or psychoactive substance abuse or dependence. In view of the evidence above from Drs Parsonage, Shand and Roberts the Applicant, since about 1984, has not suffered from any of these psychiatric disabilities. In any case these other conditions frequently require the existence of a stressor for their onset. In some instances the existence of another serious medical condition can be the precipitating factor. In the instant case it may be worth returning to this question once it is determined whether the ulcerative colitis is war-caused. If ulcerative colitis is war-caused then an anxiety condition might be linked to it and become a war-caused disability. Barring that possibility, however, the Tribunal finds that there is no other psychiatric disability suffered by the Applicant.
Question 3 - If the Applicant has PTSD has he experienced a stressor as defined in paragraph 4 of the SoP (SoP factors 1(a) and (b))?
This has already been answered in the negative in relation to question 1.
Question 4 - If the Applicant has experienced a stressor was it prior to the clinical onset of PTSD (SoP factor 1(a))?
It is unnecessary to answer this question in view of the answer to question 1.
Question 5 - If the Applicant has experienced a stressor and it was not prior to the clinical onset of PTSD, was it prior to the clinical worsening of PTSD (SoP factor 1(b))?
It is unnecessary to answer this question in view of the answer to question 1.
Question 6 - If the Applicant did not experience a stressor was he unable to obtain appropriate clinical management for his PTSD (SoP factor 1(c))?
As the Tribunal has found that the Applicant did not have PTSD this question need not be pursued.
Question 7 - If the answer to any of questions 3, 4 or 5 is yes, was the relevant factor related to the Applicant's operational service (SoP paragraphs 2 and 3)?
In view of the findings and answers above this question is now superfluous.
Possible relationship between PTSD and defence service
The Tribunal finds that there is no relationship between PTSD and the Applicant's defence service. This is for a number of reasons. The first is that the above finding that the Applicant does not have PTSD removes the matter from contention. The second is that, in any event, the standard of proof is more difficult in relation to defence service than it is for operational service (s 120(1), (2) and (4) of the Act bring about this result). If the Applicant cannot recover in respect of the events that occurred in his operational service it will be logically not possible for him to recover in relation to defence service unless an identifiable new stressor has arisen in that period. That was not suggested in the instant case and there is no evidence before the Tribunal that this occurred.
Possible relationship between the Applicant's ulcerative colitis and operational service
The hypothesis advanced for the Applicant is that he was unable to obtain appropriate clinical management for inflammatory bowel disease in the period of his defence service (1 June 1972 to 11 May 1973) and that this aggravated the disability.
There is a relevant SoP, ie 145/1996 as amended by 180/1996.
The hypothesis advanced for the Applicant matches the requirements in the SoP.
As defence service is involved here, s 120(4) of the Act stands for the proposition that the Applicant's claim will fail if the Tribunal is satisfied on the balance of probabilities that any one or more of the requirements in the SoP is not met. The requirements in the SoP prompt the following questions:

Does the Applicant have ulcerative colitis as defined in SoP 180/1996?

Does the Applicant have inflammatory bowel disease as defined in SoP 145/1996, paragraph 2?

Did the Applicant obtain appropriate clinical management for ulcerative colitis between 1 June 1972 and 11 May 1973 (SoP 145/1996 factor 5(c))?

If the Applicant did not obtain appropriate clinical management for ulcerative colitis between 1 June 1972 and 11 May 1972 was that because of an inability to obtain appropriate clinical management (SoP 145.1996 factor 5(c))?

If the answer to the previous question is "yes", was this related to the Applicant's defence service (SoP 145/1996, paragraphs 4 and 6)?

The Tribunal will now consider each of these questions.
Question 1 - Does the Applicant have ulcerative colitis as defined in SoP 180/1996?
The relevant definition is "a chronic inflammation of the gastrointestinal tract, which primarily affects the large bowel and is usually limited to the mucosa and submucosa, attracting ICD code 556". In Dr Roberts's reports dated 3 September 1992 (Exhibit R5) he diagnosed ulcerative colitis. Dr Charles McDonald, a gastroenterologist, had diagnosed this condition in August 1992. Dr Gillespie (T8), another gastroenterologist, diagnosed ulcerative proctitis in March 1993. This appears a synonym for ulcerative colitis. Dr Miller (T12) diagnosed severe ulcerative colitis in 1999. Dr Schutz (Exhibit R3) diagnosed ulcerative colitis in 2001. In view of this preponderance of consistent evidence the Tribunal finds that the Applicant suffers from ulcerative colitis.
Question 2 - Does the Applicant have inflammatory bowel disease as defined in SoP 145/1996, paragraph 2?
As the definition of inflammatory bowel disease in SoP 145/1996 refers to ulcerative colitis, and as the Tribunal has found that the Applicant suffers from this disease, the Tribunal finds that the Applicant suffers from inflammatory bowel disease.
Question 3 - Did the Applicant obtain appropriate clinical management for ulcerative colitis between 1 June 1972 and 11 May 1973 (SoP 145/1996 factor 5(c))?
It is conceivable that the Applicant did not suffer from ulcerative colitis in 1972-1973. Dr Roberts took a history that is recounted in Exhibit R5. He wrote:
"His problems commenced in 1986 when he thought he had an anal fissue [sic], he attended a local medical practitioner in Ballina, a Dr J.O. BEESTON who undertook a sigmoidoscopy and ordered suppositories. He referred to having occasional pain on defecation. Bleeding continued on and off, he attended a local medical practitioner at Telegraph Point, a Dr John GLASCOTT, at that stage he noticed bleeding around the anal orifice, he was prescribed suppositories.
"In 1989 his condition progressively became worse and he suffered from diarrhoea, blood was being passed per rectum and he was suffering from an anal discharge. He attended Dr John GLASCOTT who referred him to Dr W.E .JONES a surgeon at Port Macquarie.
"In early 1990 he saw Dr JONES. Mr Meakin-Jones referred to having many problems, that he was generally feeling unwell, he underwent a colonoscopy approximately one month after initially seeing Dr JONES and a provisional diagnosis of ulcerative colitis was made. …
"In 1991 he attended Dr JONES again, a further colonoscopy was undertaken, medication was continued, but from then on his condition 'really deteriorated'. By February 1992 he has lost some 8 to 9 kilos within a short period of time."

The point of quoting from Dr Roberts at some length is that it would seem that the onset of the ulcerative colitis was in about 1986 at the very earliest, judging from the Applicant's own history. If correct, it would not be possible to argue that he was unable to obtain appropriate clinical management in the Navy.
Dr Miller (T12) accepted that the Applicant had diarrhoea attributable to the bottoming of the HMAS Ovens and that naval doctors were "less than helpful". He therefore went to a civilian doctor in 1972.
The history taken by Dr Schutz (Exhibit R3) mentioned frequent bowel motions when he was on the HMAS Vampire. This was of course a short assignment (18 April to 21 May 1969 – Exhibit R5). There was a subsequent improvement. Later in service and after, the Applicant seems to have had occasional bowel problems. Things worsened in 1977 when he had up to 20 bowel motions a day, some with blood. He saw doctors but largely self-medicated with Kaomagma. In 1989 a greater amount of blood appeared in his motions. He then saw Dr Jones. The history then becomes similar to that taken by Dr Roberts. Dr Schutz refers to the Applicant's proctocolectomy operation performed in 1993.
Dr Schutz wrote, "On his history he developed bowel symptoms which I understand were slight at the time when he was on the Vampire but became worse after he ceased at the Vampire while he was with the Australian Navy. He said he did not seek any treatment for his bowel problems at that time."
Dr Schutz thinks it possible that the Applicant had ulcerative colitis in 1969. This is based on the Applicant's reported loose bowel actions. However, he says, there are other potential causes such as salmonella or amoebiasis. If he had ulcerative colitis it was not severe at the time.
Dr Schutz wrote, "On balance I consider it unlikely possible but unproven that Mr Meakin-Jones had ulcerative colitis in 1969. He may have had ulcerative colitis in 1972-3. If he did have ulcerative colitis in 1969, the condition then was not severe. I do not consider that the basic pathology has suffered in any way as a result of not having the condition further investigated and possibly diagnosed and treated at that time."
Dr Schutz states that he does not consider that the ulcerative colitis relates to war service in the relevant seven day period in 1969 or to service until 1973.
Dr Schutz places the clinical onset of ulcerative colitis as about 1989 as there is no evidence of the disease prior to then, although the presence of blood in motions suggests a possibility of ulcerative colitis from about 1972-1973.
The Applicant's evidence on his bowel disease included the following. When on the HMAS Oxley he said he still had his "gut problem" but did not give it much thought. He said his bowel problem worsened on the HMAS Ovens. The problems worsened back on shore after that.
The Applicant told the Tribunal that when he saw the Navy doctors he told them he was totally drained. He said that he was tired. He did not initially mention his diarrhoea probably because of the stigma involved in having a bowel problem. He thought the problems may stem from his fear and exhaustion after serving on the Ovens. He did not seek to see a specialist because he would have to see the local medical officer in the Navy first and he would be accused of malingering. He recalled that he was treated unsympathetically and ridiculed when he had a physical injury to his leg at around this time.
The Applicant eventually saw a civilian doctor in Kirribilli about his stomach problems. That doctor thought Mr Meakin-Jones had a viral infection. He was given tranquillisers. The Applicant did not take them. Eventually he saw a naval doctor in October 1972 who diagnosed severe gastroenteritis. Exhibits R6 and R7 are relevant here. Exhibit R6 shows that the Applicant was diagnosed with "resolving gastroenteritis". The notes say, "Was sick [2 days] ago with … vomiting, diarrhoea colicky abdo pain. Now well. Advise re fluids and food. Nil else." Exhibit R7 indicates a naval diagnosis of gastritis. "Vomiting on several occas[ions] after eating in H Kong. Now gets abdo pain on eating hot and cold food. No diarrhoea … NAD. Mylanta … pm. Review two days if no better."
The Applicant rightly observed that the naval doctors tended to see his problems as psychological. This is possibly not surprising. The Applicant had not said much about his bowel condition. The notes in T3 show that the Applicant received a great deal of attention from the Navy doctors and the notes tend to suggest that the Applicant was reporting sleeping problems, reduced appetite, a caged feeling, depressive symptoms and a desire to leave the Navy.
Mr Jones, for the Applicant, directed the Tribunal to folio 8 of the Section 37 Statement where on 23 January 1973 the naval doctor recorded "appetite reduced. Weight lost 1 ½ stone in a year. Energy reduced. Does job. Sleep restless. Local medical officer prescribed tablets. Morning nausea." Mr Jones argued that this, especially the weight loss, should have put the naval doctors on notice that he required further investigations. These may have unearthed the Applicant's ulcerative colitis. Dr Hordern took this view in his oral evidence. He said that that would have been general practice in 1973.
In cross-examination the Applicant grudgingly agreed that he was properly treated for physical conditions he brought to notice in the Navy. Mr Modder referred to notes by Navy Dr Taylor at folio 10 of the T documents. These refer to anxiety neuroses and impulsive personality disorder. It seems he did not mention his bowel problems to Dr Taylor. The Applicant said that he was "a wreck" in 1973. He could not care. He did not accept that anyone was listening. Similarly, folio 11 of the T documents contains the Applicant's medical examination record for 13 March 1973. The only incapacity noted is to do with emotional stability. There is no mention of gastroenterological problems. The Applicant could not recall this examination.
The Applicant was referred to a letter he sent, apparently to the Repatriation Department late in 1975 when he was seeking a Disability Pension, in which he referred to his nerves and anxiety but did not refer at all to his gastroenterological problems. This is at folios 23-25 of the T documents. The Applicant explained that this would be because of the stigma attached to bowel conditions. Additionally he was smoking and drinking at the time and attributed his bowel condition to those activities.
The Tribunal considers that the Applicant's clinical management by the Navy was not inappropriate given the state of knowledge the Navy had about the Applicant. As far as the Navy knew, according to the records in T3, the Applicant's major problems were psychological or psychiatric and he was treated for these. The Applicant's reliance on a January 1973 report of weight loss as a trigger that should have put the Navy on notice can be taken only so far. It is not inconceivable that the Applicant's nausea and loss of appetite, noted at the same time, may have explained the weight loss, at least in part. These symptoms could, in turn, have been associated with psychological difficulties. It is noteworthy that on the same folio in the T document (folio 8) it is noted that the Applicant's bowel action is unchanged. At the end of the day the Tribunal finds it difficult to accept that the Navy should be held responsible for not treating the Applicant for a condition which, if it existed at the time, was not reported by the Applicant.
The Tribunal for that reason, but also in reliance on the evidence from Dr Schutz and Dr Roberts, has found on the balance of probabilities that the Applicant was not unable to obtain appropriate clinical management in the Navy for his inflammatory bowel disease. The Tribunal is reasonably satisfied that the Applicant obtained appropriate clinical management from the Navy for any medical condition he had that was made known to the Navy.
Question 4 -If the Applicant did not obtain appropriate clinical management for ulcerative colitis between 1 June 1972 and 11 May 1972 was that because of an inability to obtain appropriate clinical management (SoP 145.1996 factor 5(c))?
The premise on which this question is based has not been sustained by the Tribunal. The question is therefore not applicable.
Question 5 - If the answer to the previous question is "yes", was this related to the Applicant's defence service (SoP 145/1996, paragraphs 4 and 6)?
This question is no longer applicable.
Hypotension
In view of the findings in relation to ulcerative colitis there can be no argument that the Applicant's hypotension, again if it exists, which Dr Schutz challenges, is war-caused. The suggestion was that the hypotension stems from the condition of ulcerative colitis. Dr Miller supported this theory.
The Tribunal therefore finds that the Applicant has no war-caused disability of hypotension.
Conclusion
The findings made above mean that the Tribunal has agreed with the VRB that the Applicant's disabilities are not war-caused under the Act.
Decision
The decision under review is affirmed.

I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6 July 2001
Date of Decision  20 July 2001
Representative for the Applicant              Mr Jones
Representative for the Respondent        Mr Modder