Ogden and Repatriation Commission - [2002] AATA 512

DECISION AND REASONS FOR DECISION [2002] AATA 512

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1062

VETERANS' APPEALS DIVISION       )
           Re      GARRY OGDEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Assoc. Professor J.H. Maynard, Member Mr A. Argent, Member

Date26 June 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – whether psychoactive substance abuse, hypertension and obesity war-caused – whether respondent can challenge acceptance of generalised anxiety disorder as being war-caused – decision affirmed
PRACTICE AND PROCEDURE-power of Veterans' Review Board to make a decision in reviewing a decision of the Repatriation Commission - characterisation of decision made - whether lodging of application for review opens up all aspects of reviewable decision
Veterans' Entitlements Act 1986 ss 9, 120(1) and (3), 120A(3) and (4), 139

Fitzmaurice v Repatriation Commission (1989) 19 ALD 297

Transport Accident Commission v Dohnal (1996) 10 VAR 361

Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Williams [2001] FCA 1195

Keely v Repatriation Commission (1999) 56 ALD 455

Repatriation Commission v Keeley [2000] FCA 532

Repatriation Commission v Budworth (2001) 66 ALD 285

Statement of Principles Instrument No. 48 of 1994
Statement of Principles Instrument No.275 of 1995
Statement of Principles Instrument No. 1 of 2000
Statement of Principles Instrument No. 5 of 1994
Statement of Principles Instrument No. 76 of 1998
Statement of Principles Instrument No. 5 of 1995
Statement of Principles Instrument No. 64 of 1998
Statement of Principles Instrument No. 31 of 2001

REASONS FOR DECISION

26 June 2002 Mrs Joan Dwyer, Senior Member Assoc. Professor J.H. Maynard, Member Mr A. Argent, Member

This is an application for review under s 175(1) of the Veterans' Entitlements Act 1986 ("the Act). The decision sought to be reviewed is a decision of the Repatriation Commission ("the Commission") made 20 October 1998, which was reviewed by the Veterans' Review Board ("the VRB"). The VRB delivered a decision, or decisions, on 21 July 2000. The VRB decision will be the subject of further consideration later in these reasons.
At the hearing Mr Thomson of Counsel appeared for Mr Ogden. Mr Purcell of Counsel appeared for the Repatriation Commission. Mr Ogden gave evidence. Evidence on his behalf was also given by Mr Priest, who served with Mr Ogden in Army Vessel John Monash, and by Mrs Ogden. The respondent called Mr O'Sullivan, who also served in John Monash. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the AAT Act and also the exhibits tendered during the hearing. At the end of the hearing the Tribunal produced a document headed "Body Mass Index Chart" which it took into evidence as exhibit A8. The Tribunal gave leave to Mr Thomson to have Mrs Ogden check her records at home for further evidence of Mr Ogden's weight gain. On 11 June 2002 the Tribunal received from Mr Thomson a facsimile informing it that Mrs Ogden had no records additional to the information conveyed in her statement at T12 p50.
THE SCOPE OF THE REVIEW
The first issue concerned the scope of the review. Mr Ogden, in his application for review lodged with the Tribunal on 5 September 2000, sought review of the refusal to accept psychoactive substance abuse, hypertension and obesity as war-caused diseases under the Act. The condition described by him in his claim as "stress and anxiety" and diagnosed by the VRB as generalised anxiety disorder, had been accepted by the VRB. However, the respondent, by letter dated 20 August 2001, advised Mr Ogden's solicitor that it was the intention of the Repatriation Commission to challenge the acceptance of generalised anxiety disorder at the hearing. Counsel raised the issue in opening. The Tribunal expressed some surprise, particularly because the reasons of the VRB make it clear that generalised anxiety disorder was accepted as war-caused on the basis of the opinion of Dr Kenny, the psychiatrist to whom the respondent sent Mr Ogden.
Mr Purcell stated that the Repatriation Commission relied on the Federal Court decision of Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 He submitted that Fitzmaurice is authority for the view that once Mr Ogden lodged his application for review of the rejection of certain conditions, the respondent was entitled to challenge any other aspects of the decision of the VRB made on 21 July 2000, including the acceptance of generalised anxiety disorder.
The decision in Fitzmaurice calls upon the Tribunal to analyse the decision or decisions of the VRB made on 21 July 2000, which included the decision that generalised anxiety disorder is a war-caused disease under s 9 of the Act.
Mr Ogden lodged a claim for pension under the Act on 24 August 1998 (T5). He applied to have the following conditions accepted as war-caused:
left knee problem, back problems, tinnitus, stress and anxiety, alcohol abuse, hypertension, skin cancer, obesity, gastro reflux, hearing loss.
The Commission, on 20 October 1998 (T8), accepted as war-caused "primary osteoarthrosis of the left knee, lumbar spondylosis, bilateral sensorineural hearing loss, bilateral tinnitus and chronic solar skin damage". The Commission rejected the claims for stress and anxiety, psychoactive substance abuse or dependence involving alcohol, hypertension, obesity and dyspepsia.
The VRB on 21 July 2000 made a series of decisions. One question is whether they should all be characterised as part of the one decision, or as a number of separate decisions. Usually this Tribunal does not have to analyse the decision under review in that way, as the only parts to be considered by the Tribunal are those parts which the veteran seeks to have reviewed. In this matter however, the Commission also seeks to review an acceptance of a condition by the VRB.
When the VRB came to review the Commission decision, it had two applications before it. The first concerned the rejection of diseases as war-caused. The second concerned assessment of the rate of pension payable in respect of the accepted conditions. It was agreed that the assessment issue should not be decided by this Tribunal, so we can put that aside.
In regard to the claims to have conditions accepted as war-caused, the VRB affirmed the decision of the Commission, in so far as it had rejected claims to have psychoactive substance abuse or dependence involving alcohol, hypertension, and obesity accepted as war-caused. But the VRB went on to say that it varied the diagnosis of the claimed condition "stress and anxiety" to "generalised anxiety disorder". It further stated that it set aside the decision rejecting claims to have generalised anxiety disorder and dyspepsia accepted as war-caused, and, in substitution, decided that those conditions were war-caused as defined in s9 of the Act. The VRB decided that Mr Ogden was entitled to pension for incapacity arising from those conditions from and including 24 May 1998.
We have some doubt as to whether the form of decision used by the VRB was appropriate. Section 139 of the Act states that the VRB may make a decision which affirms, varies or sets aside the decision under review, but those ways of finalising a matter seem to be alternative ways of deciding a review. Section 139 provides:
139 Decision of Board
(1)On review of a decision, the Board shall have regard to the evidence that was before the Commission when the decision was made and to any further evidence before the Board on the review that was not before the Commission, being further evidence relevant to the review.
(2)It is the duty of the Board, in reviewing a decision of the Commission, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the review.
(3)For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing:
(a)   affirming the decision under review;
(b)   varying the decision under review; or
(c)   setting aside the decision under review and making a decision in substitution for the decision so set aside.
(4)Where the Board sets aside a decision of the Commission refusing to grant a pension to a person and substitutes for it a decision granting a pension to the person, the Board shall assess the rate or rates at which the pension is to be paid to the person or remit the matter to the Commission to assess the rate or rates at which the pension is to be paid to the person.
The Supreme Court of Victoria, in Transport Accident Commission v Dohnal (1996) 10 VAR 361 at pp368 to 371, considered the need for a Tribunal to make a decision in a form which complies with the section conferring powers on the Tribunal. Balmford J there said, at pp370-371, that the decision of an administrative Tribunal "must be so expressed as to be a proper exercise, of the statutory power conferred on the Tribunal". Her Honour decided to treat the decision before her as a proper exercise of power but suggested that it may be desirable for the Administrative Appeals Tribunal of Victoria, as a whole, to re-examine what appeared to be its practice as to the form of decisions.
In this matter the question is whether the decision of the VRB should be seen as a number of different decisions, each of which was within power, or as one decision which, although not so expressed, in fact varied the decision under review to provide all the things which the VRB decided. If one decision was made, Fitzmaurice established that any aspect of it may be reviewed as part of the proceeding before this Tribunal. If separate decisions were made, then it may be that the review is confined to the decisions as to which Mr Ogden sought review. Unfortunately, Counsel did not address the difficulty raised for the Tribunal by the form of decision or decisions made by the VRB. Mr Purcell simply referred the Tribunal to Fitzmaurice, where there was no similar difficulty. Mr Thomson did not make any submissions disputing the Commission's right to challenge the acceptance of generalised anxiety disorder as a war-caused disease under the Act.
In Fitzmaurice, the Full Court held that once Mr Fitzmaurice challenged the rate of pension to which the VRB had found he was entitled, it was open to the Commission to reopen the question of entitlement. The Full Court (Davies J dissenting) held that the VRB had made one decision setting aside the Commission decision rejecting the entitlement claims, and in substitution deciding that Mr Fitzmaurice had an entitlement to pension at a certain rate. Wilcox J at p 309 said:
I think that the difficulties to which I have alluded can only be avoided by reading the word "decision" in para (b) as being intended to embrace everything decided by the Board in substitution for the original decision of the Commission. Upon this interpretation it does not matter whether the conclusion reached by the Board in respect of Mr Fitzmaurice is seen as a single decision or as a series of decisions. What is important is that any application for review must raise for the Tribunal's consideration everything decided by the Board in its review of the case.

His Honour went on to explain that any requirement that the Commission also lodge its own application would "add to the complexity of what was intended to be a simple procedure"Foster J, at p 314 concluded:

In my view the wording of s 175 (1) (b) can lead only to one conclusion, namely that an application for review to the Tribunal must embrace the totality of the decision or decisions made by the Board in place of the decision which it has set aside.

The facts in this matter are not identical to those in Fitzmaurice, as in that decision there was no concern about the power of the VRB to make the decision it had made. However the Full Court of the Federal Court in Collector of Customs (New South Wales) vBrian Lawlor Automotive Pty Ltd (1979) 2 ALD 1, held that this Tribunal does have power to review a decision even if it was made without power.
In Brian Lawlor Bowen CJ at pp 4-5 said:
In the Administrative Appeals Tribunal Act a wide meaning is given to the word "decision" by s 3 (3). In s 25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words "made in the exercise of powers conferred by that enactment". This may mean that it must be shown there was a decision made:—
(a) in pursuance of a legally effective exercise of powers conferred by the enactment;
(b) in the honest belief that it was in the exercise of powers conferred by the enactment; or,
(c)in purported exercise of powers conferred by the enactment.
. . .
The context of the Act appears to me to point against the adoption of interpretation (a). The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in many cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the Tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application. It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a).

The Chief Justice adopted his own suggestion (c) as consistent with the context of the Administrative Appeals Tribunal Act 1975. Smithers J said at pp 22-23:

In construing these provisions what may be seen as the objective of the Administrative Appeals Tribunal Act is I think of paramount importance. It is clear that in enacting the Act, Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government: cf Sullivan v Department of Transport (1978) 1 ALD 383 at 386;; 20 ALR 323 at 326. True it is that administrative errors may well occur in the performance of valid and legally effective administrative acts. And of course it might have been the intention of Parliament to empower the Tribunal to review only those decisions which are legally effective. In that case the function of the Tribunal would be restricted to considering whether or not in exercising its legal power validly the administrator making the decision had acted in accordance with the principles of fairness and good government. But to construe the Act as providing for the review of only such errors would leave untouched those administrative acts which are invalid and legally ineffective for one reason or another, but were performed in the course of action falling within the general purposes of a statute. To my mind such a situation would not be compatible with the objective of the Administrative Appeals Tribunal Act. If administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review. The very absence of guidelines as to the exercise by the Tribunal of its powers of review is a most significant feature supporting a conclusion that review is to proceed by reference to the standard of good government. It is a short step to infer that the overriding purpose of the Act is to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task.

Deane J dissented.

In the absence of any submission to the contrary, we accept that the reasoning of the majority in Fitzmaurice is applicable and held that all the decisions made by the VRB on 21 July 2000 are to be characterised as aspects of one decision. Accordingly, the Repatriation Commission is entitled to challenge the acceptance of generalised anxiety disorder in this proceeding. However we consider it appropriate to add that we have some difficulty in understanding why the Commission chose to challenge the acceptance of generalised anxiety disorder, without calling any medical evidence in support of its contentions on this matter. We also do suggest that the practice of the VRB as to the form of its decisions may require re-examination.
SERVICE HISTORY
Mr Ogden served in the Australian Army from 13 July 1966 to 12 July 1968. It is not in issue that he had operational service with the 32 Small Ship Squadron, as a crew member of John Monash, in Vietnam from 3 December 1967 to 31 January 1968 and from 17 February 1968 to 31 March 1968. Those two periods cover two voyages to Vietnam.
THE PROCESS OF DECIDING WHETHER A DISEASE IS WAR-CAUSED
Section 9 of the Act sets out the circumstances in which an injury or disease shall be taken to be war-caused. So far as relevant it provides:
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;
(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;
The standard of proof is set out in s120 of the Act. Where a veteran has operational service the relevant provisions are s120(1) and (3). They provide as follows:
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.
Note: This subsection is affected by section 120A.
. . .
(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.
Note: This subsection is affected by section 120A.

In respect of claims made after 1 June 1994, s 120A(3) provides that a hypothesis is reasonable only if it there is a Statement of Principles ("SoP") which upholds the hypothesis. Section 120A(4) provides that s120A(3) does not apply where there is no SoP in respect of the relevant injury or disease.
It is well established that the approach to be adopted by the Repatriation Commission, the VRB and the Tribunal, in deciding whether or not a disease is war-caused, where a veteran has operational service, is as set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206. The Full Court described the application of the relevant legislative provisions as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) …
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.
Sometimes there will be two or more possibly relevant SoPs in respect of the same condition. The one in force when the original determination was made may have been revoked and replaced by a more recent one. A question arises as to which one is to be used. Two recent decisions of the Full Court of the Federal Court, Repatriation Commission v Gorton [2001] FCA 1194 and Repatriation CommissionvWilliams [2001] FCA 1195, have established that the general rule is that a SoP in force at the date of hearing is to be applied. But the Full Court recognised that Keely v Repatriation Commission (1999) 56 ALD 455, which was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532, establishes that a veteran has an accrued right to rely on the SoP which was in force when the matter was before the Commission, if it is more beneficial for him.
GENERALISED ANXIETY DISORDER
The respondent's Statement of Facts and Contentions, at paragraph 2.1, gave some indication as to the basis of the respondent's challenge to the acceptance of generalised anxiety disorder. The respondent set out the issues as to that disease as follows:
(a)the date of clinical onset of generalised anxiety disorder; and
(b)whether generalised anxiety disorder is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ('the Act') – in particular, whether the applicant experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder [SoP 48/94 – factor 1(b)]
Mr Ogden described stressful events during his operational service. He said he had suffered problems sleeping since his Army service. He also said that he drank much more during and after his Army service than he had before, and in the early stages of, that service. He said that after his discharge he had been irritable and unsociable, but his sessions with Mr Tierney, a clinical psychologist, in 1999 had helped him control his drinking as well as giving him some insight into the fact that his drinking was a problem. He said Mr Tierney had calmed him down. He said that before he saw Mr Tierney he had been "getting aggro and putting his wife through a hard time". Mr Ogden also said that when he was discharged from the Army he had attempted to return to the storeman's position at Cerberus, which he had held before his enlistment, but he found he could not do it any longer, it was too dull.
Mr Tierney on 25 November 1999 wrote a report (T14) in which he diagnosed Mr Ogden as meeting the diagnostic criteria for alcohol dependence and generalised anxiety disorder.
The respondent arranged for Mr Ogden to see Dr Kenny. On 5 July 2001 Dr Kenny provided a report (R5) in which he diagnosed Mr Ogden as suffering from a mild generalised anxiety disorder and substance abuse with alcohol.
No medical evidence was called at the hearing. The T documents did include a report from Dr Graf, who is also a psychiatrist, dated 7 October 1998 (T7) He wrote that Mr Ogden had no psychiatric diagnosis other than chronic alcohol abuse and dependence.
Mr Purcell did not submit that there was any reason for the Tribunal to prefer Dr Graf's opinion to the two more recent opinions of Mr Tierney and Dr Kenny. On that evidence we find that Mr Ogden does suffer from a mild generalised anxiety disorder.
The next question is whether the generalised anxiety disorder should be accepted as a war-caused disease. The basis of the Repatriation Commission's challenge to the acceptance of generalised anxiety disorder was that it did not comply with the minimum requirements of the Statement of Principles ("SoP") in respect of generalised anxiety disorder.
STEP 1
Applying the first of the Deledio steps, the Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by Mr Ogden.
The applicant's Statement of Facts and Contentions was prepared on 22 November 2001, after the applicant's solicitor had received the letter from DVA of 20 August 2001 advising that the respondent intended to challenge the acceptance of generalised anxiety disorder. Mr Tobin, in the last paragraph of the applicant's Statement of Facts and Contentions, wrote:
The Applicant notes that the Respondent relies upon a report of Writeway Research Service of 28 June 2001 challenging his credibility. The Applicant has obtained statements from witnesses, Michael Priest and David Gray, and will call Michael Priest in person and David Gray by telephone to give evidence on his behalf. The Applicant and his wife shall also give evidence and the matter is ready to proceed to hearing.
The respondent's Statement of Facts and Contentions was not received by the Tribunal, or presumably the applicant, until two days before the hearing on 8 May 2002.
The applicant gave evidence of a number of incidents, which he regarded as stressful, during his operational service. Mr Thomson in his final address stated that the hypothesis relied on, in regard to generalised anxiety disorder, was that it was a reaction to the stressful events Mr Ogden experienced during his operational service, and that Mr Ogden had suffered from generalised anxiety disorder since service. That was the opinion of the psychologist, Mr Tierney.
In his report of 25 November 1999 (T14), at pages 57-58, Mr Tierney set out service experiences that Mr Ogden had told him made him "fearful about his life/safety" as follows:
(1)his ship, the "John Monash", was attacked at night by pirates whilst sailing through the Malacca Straights; [sic]
(2)he witnessed an elderly Vietnamese man (who was riding a bicycle) being shot and killed for failing to respond to a policeman's whistle to stop;
(3)a man throwing something metallic into a Bar [sic] which he and others presumed was a bomb and resulting in them fleeing fearing for their lives (fortunately the object did not explode); and
(4)having to constantly watch for bombs being floated out toward his ship.

Mr Tierney concluded:

The diagnosis and cause of Generalised Anxiety Disorder: Mr. Ogden has reported the following symptoms which support the diagnosis of Generalised Anxiety Disorder:
(1) excessive worry, occurring more days than not for many years primarily about his children, work and his mother, which he finds difficult to control;
(2) he experiences the following symptoms- restlessness, being easily fatigued, poor concentration, irritability and sleep disturbance;
(3) these symptoms are not due to features of an Axis I disorder, do not occur as a result of PTSD, a mood disorder, a psychotic disorder or a pervasive Developmental disorder or result from the physiological effects of a drug of abuse, medication or a general medical condition; and
(4) these symptoms have caused significant distress. He requested counselling because he had become very "short" with his family often getting annoyed about trivial things. His irritability with people has resulted in his wife having to intervene to stop him becoming violent towards others. It has also resulted in complaints from customers at work and him being relocated to the bottle shop where his contact with people is brief and he is thus less likely to become annoyed/aggravated. To cope with his anxiety he has drunk alcohol heavily. He was involved in an accident whilst over .05 that resulted in injuries to others, damage to 4 cars and traffic lights and loss of employment.
Mr. Ogden has experienced a number of significant stressors since leaving the Army. These include a motor bike accident which resulted in physical injury to himself, a car accident and a failed business that has resulted in financial problems. Whilst these incidents would have added to his level of stress/anxiety, Mr. Ogden attributes the onset of his anxiety symptoms to his Army service. It is on this basis that I believe it to be a reasonable hypothesis that the onset of Mr. Ogden's anxiety is attributable to his service experience. However, at this point it is difficult to determine the amount of anxiety related to his Army Service specifically and the amount related to post-service stressors.

Dr Kenny in his report (R5) set out a similar history. He wrote at p2 of his report:
He said he did a three [sic] trips to Vietnam. They would unload the ship and return. He said it was a bit worrying being there and he said he had a few experiences there. He said that they were warned that at night the enemy might float explosives in the hope of damaging vessels and they then had to shoot at anything that looked suspicious, which meant that shots were going off all the time.
He would also hear bombs. He vividly recalls seeing an old man who was shot, saw his eyes – only a matter of metres away.
He assured me that he doesn't harp back to that, except when he sees someone who looks like that man. He said it is not always in his mind.
He also recalls having been into the town of Vung Tau. They went to have a few drinks in a bar. He recalls something being thrown in and everybody hit the deck because they thought it was a bomb – it wasn't.
He recalled an incident being in the Malacca Straits at night when they confronted a pirate ship which had spotlights on it and disappeared when they realised it was an Army vessel that had machineguns et cetera.
The pirates had fired shots into the air and at the body of the ship before they left.
He said that was frightening.
(i) the pirate ship incident
In his evidence Mr Ogden described the four incidents set out in the histories he gave to Mr Tierney and Dr Kenny. As to the pirate ship incident, he said that it occurred when John Monash was sailing in the Malacca Straits. He said at dusk they heard loud hailers and the firing of guns. He was inside the ship at the time, but came out onto the deck when he heard the noise. He saw a cruiser type of boat coming from behind John Monash. He said that John Monash fired its machine guns and that "stirred them away".
Mr Priest, who served with Mr Ogden in John Monash, also described that incident. He said that he served with Mr Ogden on both trips to Vietnam. He said at the time of the pirate ship incident he was acting as the Captain's steward. He said that "late one evening" they saw a boat which was thought to be an Indonesian gun boat. When it drew closer they saw it was not an Indonesian gun boat, but there were men with guns on board. The men were shouting through loudspeakers. He said the men on board the vessel indicated that they wanted to board John Monash. It was Mr Priest's belief that the "pirates" thought John Monash was a cargo ship. He said (trans. p106):
We rushed down and uncovered the Bofors and we uncovered the 59 [sic] calibre - we let a few shots off with the 50 calibre in the air, then they realised we were military and they did a turn to go . . .
(ii) The shooting of the elderly Vietnamese man
Mr Ogden said that he had gone ashore in Vung Tau. While there he heard an umpire's whistle blow. He, and the men he was with, were told to stop in a cordoned area. Three Vietnamese police checked them for money or other items and then told them to go . He said there was an "old fellow" beside him who went to get his pushbike which was leaning against the wall behind him. Mr Ogden heard a call and turned around and saw that the police had shot the old fellow. Mr Ogden said he did not look too closely, "I just thought he was dead" (trans. p86). He said that after the shot "I was out of there" (trans. p51).Mr Ogden said (trans. p51):
I heard the shot, I turned around, I saw the old boy on the ground and I was away so whether he was dead or whether he fell off his bike with the noise of the gun, I don't know. No, I don't.
(iii) Something metallic being thrown in the bar
Mr Ogden said this occurred in a "swanky" bar with a marble floor. He said he was there when someone threw a can into the middle of the floor from outside and yelled out. He said, " I was very fearful. I hit the floor" (trans. p24).
(iv) Conditions in Vung Tau harbour
Mr Ogden said that when they went to anchor at Vung Tau harbour the crew were told that if they saw any cans floating in the sea, they were to shoot them. They were also told that if they saw any bubbles they had to drop a hand grenade on them. He said he was on watch at times and was fearful, although he did not see any divers or see anything blown up. In cross-examination, he said he shot at cans when he was on sentry duty a number of times. He said he felt fearful in Vung Tau harbour.
Applying the first of the Deledio steps, the material points to a hypothesis connecting the disease of generalised anxiety disorder with stressful events experienced by Mr Ogden during operational service. It is not relevant for the Tribunal at step 1 to consider any inconsistencies in the evidence. There is a hypothesis raised connecting the disease of generalised anxiety disorder with the circumstances of the particular service rendered by Mr Ogden.
STEP 2
There are two SoPs in respect of generalised anxiety disorder. The one which was in operation when the Repatriation Commission considered Mr Ogden's claim in respect of stress and anxiety, now diagnosed as generalised anxiety disorder, was Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995. The 1994 SoP was revoked and replaced by Instrument No. 1 of 2000 from 28 January 2000.
Step 2 provides that if the material does raise a hypothesis connecting the disease with the circumstances of Mr Ogden's operational service, the Tribunal must ascertain whether there is a relevant SoP. As already stated there are two possibly relevant SoPs. Applying the Full Court decisions of Gorton and Williams, the Tribunal should apply the current SoP at the time of hearing. However, Mr Ogden is entitled to rely on Instrument No. 48 of 1994, if he can establish that it is more beneficial to him. Mr Thomson submitted that it is more beneficial.
Instrument No. 48 of 1994 included as a factor that must as a minimum exist, before it could be said that a reasonable hypothesis had been raised connecting generalised anxiety disorder with the circumstances of a veteran's service:
(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder.

The term "stressful event" was defined as follows:

"stressful event" means an occurrence which evokes feelings of stress.

Instrument No. 1 of 2000 which revoked Instrument No. 48 of 1994 also covers generalised anxiety disorder. The equivalent factor in that SoP is factor (a)(ii):
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.

A "severe psychosocial stressor" is defined as follows:

"severe psychosocial stressor" means 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 (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;

The later SoP, Instrument No. 1 of 2000, does appear to be more difficult for Mr Ogden to satisfy, by reason of its requirement of "a severe psychosocial stressor" rather than simply a "stressful event". Thus, applying Gorton, he is entitled to rely on SoP Instrument No. 48 of 1994.
STEP 3
At step 3 the Tribunal must form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis is consistent with the "template" to be found in the SoP. The hypothesis must contain one or more of the factors which the Repatriation Medical Authority ("RMA") has determined to be the minimum which must exist and be related to Mr Ogden's service. The Full Court has explained that if the hypothesis does contain these factors it can neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. The term "stressful event", as set out in paragraph 45, is defined in the relevant SoP as follows:
"stressful event" means an occurrence which evokes feelings of anxiety or stress.

The evidence of Mr Ogden is that the events he described were stressful events in that they did evoke feelings of anxiety or stress.

The next issue concerns the date of clinical onset of generalised anxiety disorder. Both Mr and Mrs Ogden described him having some of the symptoms set out by Mr Tierney and Dr Kenny in their reports, from the time of his discharge from the Army. That discharge was just four months after the conclusion of Mr Ogden's period of operational service. The symptoms mentioned were poor sleep, heavy drinking, lack of interest in social situations, instability and restlessness.
As to the requirement in factor (b) of the SoP that the stressful event was experienced not more than two years before the clinical onset of generalised anxiety disorder, Dr Kenny addressed that at p8 of his report (R5). He was asked "At what date did the clinical onset of the condition [ie the diagnosed conditions of generalised anxiety disorder and substance abuse/dependence with alcohol] occur?" He replied:
2.I am simply unable to define that. He seems to have drifted into the substance abuse during his years in the service and I am sure it developed beyond that. So I think it's been continuous since his war service.

The evidence of Mr and Mrs Ogden and Dr Kenny's report do raise or point to the clinical onset of generalised anxiety disorder being not more than two years after Mr Ogden's first voyage to Vietnam.
STEP 4
Step 4 is very important and so we are repeating it, although it is set out earlier. The Full Court explained:
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.

Thus the question is whether we are satisfied beyond reasonable doubt that Mr Ogden's incapacity due to generalised anxiety disorder does not arise from a war-caused disease. If we are not so satisfied, beyond reasonable doubt, the claim must succeed.

Mr Purcell identified a number of inconsistencies in the accounts of the allegedly stressful events given by Mr Ogden to Dr Graf, Mr Tierney, Dr Kenny and to the VRB. Those minor inconsistencies do not satisfy us beyond reasonable doubt that Mr Ogden's evidence was mistaken or fabricated. First, to place any weight on the inconsistencies, we would need to assume that each medical witness took down the whole of the description of those events given to him by Mr Ogden, and set it all out in his report. But, more significantly, we consider it not at all surprising if Mr Ogden has become somewhat confused over the years, as to what exactly happened more than 30 years ago.
Mr Purcell also pointed to inconsistencies between the accounts of the pirate ship incident given by Mr Ogden and Mr Priest. The matters to which he drew our attention concern the time at which the incident occurred, and whether it was late afternoon, dusk or night. There were further questions as to the description of the pirate ship and whether it came from behind or from the front. But both Mr Ogden and Mr Priest were quite definite that the incident occurred.
Bearing in the mind that the incident is claimed to have occurred in early 1968, approximately 34 years ago, we do not find it all surprising that there may be some inconsistency between the accounts given by Mr Priest and Mr Ogden, or, that Mr Ogden himself might have described the incident somewhat differently on different occasions.
Mr Ogden appeared to be a credible witness who was not intentionally exaggerating in order to improve his prospects of success. At times he gave answers which were not helpful to his case. One example is that when the Tribunal asked him how he enjoyed his service in John Monash, he said "I enjoyed it all. Loved it".
Mr Priest also appeared to be genuine. He insisted that the incident had occurred. He explained that he remembered it because John Monash did not have any real fighting experience, and it was good to at least have an account of the pirate incident to tell friends and family.
The inconsistencies pointed to by Mr Purcell are not such as to satisfy us beyond reasonable doubt that Mr Ogden did not experience a stressful event involving a ship which he and others in John Monash believed to be a pirate ship. However, the evidence of Mr O'Sullivan does satisfy us beyond reasonable doubt that no incident occurred such as that described by Mr Ogden and Mr Priest.
The respondent placed considerable reliance on the fact that the incident involving the pirate ship, if it occurred, should have been reported in the ship's log. Mr Conant of Writeway Research Service provided reports (R3 and R4) stating that he had checked all relevant records without finding any entry concerning the incident. Both Mr Ogden and Mr Priest said that John Monash had fired some shots from its machine guns at the time. If that was so, it was agreed by all witnesses, that the incident should have been reported.
Mr Priest, who said he was the Captain's steward at the relevant time, said that he believed the ship had been seriously off course at the time of the event. He suggested that if the incident was not in the logs, it was possibly because the Captain and officers had not wanted to report that they had been off course.
Mr O'Sullivan addressed that issue in his evidence. He was the Gunnery and Communications Officer and Officer of the 4-8 Watch. He was also a Navigation Officer. He only served in John Monash on the first of Mr Ogden's two voyages to Vietnam, but that was the only voyage on which John Monash transited the Malacca Straits. He said he stayed on the bridge as the ship proceeded up the Malacca Strait until after midnight.
Mr O'Sullivan wrote in his statement (R11):

The ship did not stray from her intended course. It was during the period of confrontation with Indonesia and care was taken not to create an international incident by errors of navigation. In any event, the navigable channels in the Malacca Strait are relatively narrow and any loss of course keeping could have resulted in a grounding.
There was no firing of the .50 cal weapons. Indeed to have done so might well have precipitated an international incident where relations between Malaysia and her allies, the UK and Australia, were strained in respect of Indonesia. Indeed the main armament, a 40mm Bofors mounted forward was covered in a tarpaulin so as not to provoke an international incident with Indonesia as the ship proceeded around Singapore and northward up the Malacca Strait.
. . .
Generally
I do recall the Captain telling stories on the bridge about the kinds of vessels (from his experience) which may be encountered in the Malacca Strait. That included native fishing type vessels (sampans) with a remarkable turn of speed. The ship did not encounter any such vessel on the relevant transits of the Malacca Strait however.

He confirmed those matters in evidence.

Mr O'Sullivan was quite definite that the guns on John Monash were not fired at all during the voyage through the Malacca Strait, or in fact at any time while he served in John Monash, other than when training off Australia.
Because of his duties as the Gunnery Officer and a Navigating Officer, and his role as Officer of the Watch, we find that Mr O'Sullivan was in a position to know for certain whether or not there was any shooting of guns or any incident involving pirates. We also accept his evidence as to the course taken by John Monash and the fact that any incident such as that relied on would have been logged. We are satisfied beyond reasonable doubt that there was no incident involving a pirate ship as described by Mr Priest and Mr Ogden. It is quite possible that they heard stories of encounters with pirate ships on other voyages and over time came to believe that they had been involved in such an incident themselves.
However the other events described by Mr Ogden, particularly the shooting of the elderly Vietnamese man, whether in fact he was shot dead or not, and the throwing into the bar of what Mr Ogden wrongly believed to be a bomb, were, according to Mr Ogden, occurrences which evoked feelings of stress and anxiety and thus satisfy the definition of "stressful event".
Mr Conant in his report (R3) raised no significant doubt about such events occurring. He did say, as to the shooting of the elderly man, that he thought it unlikely that an elderly man would have been shot, but he acknowledged that the "White Mice", as the South Vietnamese Police were called, were "quite draconian on occasions", and were apt to shoot those who threatened them. We cannot be satisfied beyond reasonable doubt that Mr Ogden did not witness the event he described.
Mr Conant also verified that incidents such as the throwing in of a metallic object to a bar, could have occurred, even if done as a joke or prank. Thus we are not satisfied beyond reasonable doubt that no event that frightened Mr Ogden in a bar, and caused him to suffer anxiety and stress, did occur.
The final matter raised by Mr Ogden was his feeling of fear, stress and anxiety while John Monash was unloading in Vung Tau Harbour. Mr Conant wrote of this time (R3 p8):
There were rare incidents of Viet Cong engineers attempting to damage or destroy ships in the Vung Tau harbour. They also attacked bridges on Route 15, the only road into Vung Tau. These engineers, who called themselves the A32 Water Sapper Unit of the Vung Tau Guerrillas, used floating, improvised explosive devices. While the threat was very small it did exist and was enough to make it necessary to take precautions. The protection measures adopted on Australian Army Ships were known as Operation "Awkward". The ships unloading or loading in the harbour, either at the wharves or in the stream, had armed guards posted to watch for such activity. These guards also regularly threw percussion grenades into the water to catch Viet Cong swimmers and to act as a deterrent to swimming.
When Mr O'Sullivan was asked about how the crew reacted to their first exposure to enemy waters he said (trans. pp14-15):
[M]ost of the guys that were on the ship, it was their first trip there and they didn't know what to expect. I confess that I was one of those: I didn't know what to expect, and it was a nervous and uncomfortable time, I must say. The old hands seemed to be pretty comfortable about the whole thing, and it didn't seem to bother them very much, but certainly, there was an air of expectation of - which is perfectly understandable in the circumstances - that something could happen, and people were a little bit on edge.
Dr Kenny was provided with a copy of Mr Conant's report (R3) which challenged Mr Ogden's accounts of the stressful events to which he was exposed. Mr Conant concluded that report (R3 p4):
23.The research conducted for this Report shows:
a.There was a very small threat to the ships in Vung Tau from a Viet Cong water engineer unit. Precautions were taken to prevent enemy swimmers getting close to the ships.
b.There is a strong denial that such an event with pirates occurred. This was made by an officer who was on the ship on the same two voyages to Vietnam as Mr Ogden.
c.The shooting of an elderly man by the White Mice (police) is considered implausible.
Dr Kenny wrote in his report of 10 July 2001 (R6):
Since seeing this man and dictating my report I have been provided with a report of Write Way Research Service which challenges some of his claims but leaves us still with the view that there were significant psycho/social stressors while he was in Vietnam.
But that report doesn't change my opinion.
On the whole of the evidence we cannot be satisfied beyond reasonable doubt, that Mr Ogden's time at anchor in Vung Tau Harbour and ashore at Vung Tau was not "an occurrence which evoked feelings of anxiety and stress".
As to the date of clinical onset of generalised anxiety disorder, Dr Kenny, as set out in paragraph 50 above, wrote that he thought the generalised anxiety disorder had been continuous since service. That service finished within two years of Mr Ogden's first period of operational service. Thus on Dr Kenny's evidence the stressful event was experienced not more than two years before the clinical onset of generalised anxiety disorder.
We are not satisfied beyond reasonable doubt that Mr Ogden's generalised anxiety disorder is not a war-caused disease.
PSYCHOACTIVE SUBSTANCE ABUSE
Dr Graf, Mr Tierney and Dr Kenny all diagnosed Mr Ogden as suffering from alcohol abuse. Mr Purcell pointed out that, since Mr Ogden was successfully treated by Mr Tierney, he has been able to control the level of his drinking and manage it so that it no longer interferes with his employment. Thus it may be that Mr Ogden no longer suffers from alcohol abuse.
The relevant SoP at the time of the Repatriation Commission decision of 20 October 1998 was Instrument No. 5 of 1994. That was revoked and replaced by Instrument No. 76 of 1998 with effect from 1 December 1998.
The relevant factors in Instrument No. 76 of 1998 are factors 5(a) and (b) which read:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
. . .
The term "experiencing a severe stressor" is defined in that SoP as follows:
"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 other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
In Instrument No. 5 of 1994 the relevant factors were factors 1(a) and (b) which provide:
1. Being of the view that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence and death from psychoactive substance abuse or dependence 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 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 psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service, are:
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b) having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or
. . .
The term "stressful event" is defined in that SoP as follows:
"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
There are certain difficulties facing Mr Ogden in respect of his claim to have a alcohol abuse accepted as war-caused. The first is that although Mr Ogden probably did suffer from alcohol abuse in 1998 when he lodged his claim, the evidence is that he has now conquered that problem. He and Mrs Ogden both said that he now only drinks on four nights a week, as he drives a taxi on Friday, Saturday and Sunday and must have a zero alcohol reading those nights. He no longer drinks spirits. His usual habit is to have six stubbies an evening with his wife four nights a week. He drinks about four of the six stubbies. About once a week Mr and Mrs Ogden share a bottle of wine.
Mr Ogden's current drinking pattern would not fit the definition of alcohol abuse or dependence in SoP Instrument No. 76 of 1998 which reads as follows:
"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2)withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol -related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Nor would it fit the definition in SoP Instrument No. 5 of 1994 which is as follows:
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
The Full Court in Repatriation Commission v Budworth (2001) 66 ALD 285 said that the question of diagnosis is to be determined by reference to the medical definitions such as those in DSM IV rather than those in a SoP. We had no medical evidence but SoP Instrument No. 76 of 1998 expressly adopts the DSM IV definitions. We find that Mr Ogden no longer suffers from alcohol abuse or dependence.
Section 19(5C) of the Act requires the rate of pension payable to be assessed from time-to-time during the assessment period. We find no pension is payable in respect of alcohol abuse from the time Mr Ogden started driving taxis. However Mr Ogden could be entitled to pension in respect of alcohol abuse for the period from 24 May 1998 to the time when he started taxi driving. He said he has now been driving taxis for nearly two years. In order to decide that issue it is necessary to consider the Deledio steps.
STEP 1
The hypothesis relied on by Mr Thompson was that Mr Ogden's experiences on operational service caused him to start drinking heavily. As the VRB pointed out, Mr Ogden did not himself describe the increase in his drinking as related to the stresses of his operational service. He simply said that he drank more after his voyage to Vietnam than he had before. He seemed to attribute the increase in drinking to the ready availability of beer and spirits on board.
STEP 2

The next question is whether there is a relevant SoP. On the one hand SoP No. 5 of 1994 could be more beneficial to Mr Ogden because its definition of a "stressful event" in factor 1(a) was easier to satisfy than that of a "severe stressor" in factor 5(b) of SoP No. 76 of 1998. However factor 5(a) which is included in the later SoP is more beneficial to Mr Ogden than factor (b) in SoP No. 5 of 1994. That SoP required that Mr Ogden have a psychiatric condition prior to the clinical onset of his alcohol abuse. The later SoP simply requires that he have a psychiatric disorder at the time of the clinical onset of the alcohol abuse.
STEP 3
Do the SoP's uphold the hypothesis relied on by Mr Ogden? It is interesting that the definition of a "stressful event" in Instrument No. 5 of 1994 is more onerous than that in SoP Instrument No. 48 of 1994 which applied to generalised anxiety disorder. The definition in SoP Instrument No. 5 of 1994 in respect of Psychoactive Substance Abuse or Dependence, as set out in paragraph 80 above, is as follows:
"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
That definition requires that the event "would" result in psychological stress. That incorporates an objective test. Bearing in mind Mr Ogden's evidence, which was supported on this issue by Mr O'Sullivan, there is evidence that being anchored in Vung Tau Harbour and going ashore there, at least on a first visit, would result in apprehension and anxiety.
However the definition requires a specific "incident in which there were external stimuli (such as combat)", rather than simply being in a location which could give rise to feelings of apprehension and anxiety. Mr Ogden's evidence as to the pirate ship incident, the shooting of the Vietnamese man and the throwing of the can into a bar could be seen to raise or point to that requirement. We refer to the pirate ship incident here, although we have already found in paragraph 62 that there was no incident involving a pirate ship, as that finding was only made at Step 4 of the Deledio process. At Step 3 no question of fact finding arises.
The definition in Instrument No. 5 of 1994 also requires that "there were subjective symptoms of increased stress". The evidence of Mr Ogden in our view did not point to him suffering "subjective symptoms of increased stress" as a result of the shooting of the shooting of the old man or the can throwing incident. He reacted to both those incidents, on his own evidence, in a very normal way. As to the shooting of the Vietnamese man, he was "out of there". After the can was thrown he "hit the floor", and felt fear. He said he continued to remember the incident. Mr Ogden did describe some reaction to the pirate ship incident, as he remembered it. He said "It feared me – I still think of it, a car will back-fire or someone says something and it just activates it" (trans. pp25 and 26):
The Tribunal did not have any medical evidence as to whether or not a normal reaction to something apparently dangerous, such as getting away fast, or hitting the ground is a "symptom". We do not consider those reactions to be subjective symptoms of increased stress. Nor do we consider remembering the shooting incident or the pirate ship incident to be symptoms of increased stress. It is quite normal to remember the events of one's life. Mr Ogden did not give an account of being troubled by his memories of the relevant incidents. When the Tribunal asked Mr Ogden how he felt about life at sea in John Monash, he replied:
[H]ow did shipboard life on that John Monash strike you at the time? --- Oh, it was - once you finished your shift you'd go and have a shower, go down to the mess and have a few drinks, talk to your mates, go for tea, whatever you wanted to do, go to bed, take a book, go up on deck, have your own time.
And did you like it the same whether you were on the Vietnam voyage or the New Guinea voyage? --- Yes, I did. It was just the - even when you were - even when we went to Vietnam I found that the minute we got there I was - I was - the heart was fluttering because I realised I was here and I didn't know what to expect or - the second time I went it was different. It wasn't as bad. But the trip over and the trip back was lovely. I enjoyed every minute of it. I enjoyed the New Guinea trips. I enjoyed it all. Loved it.
We have concluded that Mr Ogden's evidence does not raise a reasonable hypothesis which fits the template in SoP Instrument No. 5 of 1994 raised by factor (a). There is no material pointing to an incident in which there were external stimuli which caused subjective symptoms of increased stress. Mr Ogden said that being anchored in Vung Tau caused his heart to "flutter", but that was because he realised he was there and "didn't know what to expect". It was not a reaction to an "incident in which there were external stimuli (such as combat)". Similarly the evidence does not raise or point to Mr Ogden "experiencing a severe stressor" as defined in SoP No. 76 of 1998 in respect of factor 5(b).
However, because we have decided generalised anxiety disorder is a war-caused disease, it is appropriate to consider also the factors relating the onset of the psychoactive substance, i.e. alcohol abuse, to a service related psychiatric condition. This matter was not specifically raised at the hearing so the Tribunal arranged for the Deputy Registrar to write to the parties inviting them to make submissions on the issue. The applicant and respondent lodged submissions. We have considered those submissions.
In the 1994 SoP, No. 5 of 1994, factor 5(b) required that the veteran have a psychiatric condition prior to the clinical onset of the alcohol related condition. In the current SoP, No. 76 of 1998 factor (a) requires:
suffering from a psychiatric disorder at the time of clinical onset of alcohol dependence or abuse.
As set out in paragraph 50 of these reasons the only evidence before the Tribunal as to clinical onset of substance abuse was that of Dr Kenny who wrote in his report (R5) as to the onset of the conditions of generalised anxiety disorder and alcohol abuse:
He seems to have drifted into the substance abuse during his years in the service and I am sure it developed beyond that so I think its been continuous since his war service.
The applicant's submission that the clinical onset of substance abuse was at a later stage does not find support in the material. Although Mr Tierney, at Tdocs p59, referred to drinking being a means of coping with distress and problems since leaving the Army, that is still consistent with Dr Kenny's view that he drifted into substance abuse during service. It is true, as pointed out in the applicant's submission, that there is some inconsistency between the passage quoted from Dr Kenny, and Dr Kenny's conclusion at page 8 of his report that to some extent at least, the alcohol abuse should be regarded as secondary to the generalised anxiety disorder. Dr Kenny did not give evidence and therefore this matter could not be explored further with him. He seems to be saying that alcohol abuse started during service and became more significant because of the generalised anxiety disorder.
That evidence does not raise the factor of Mr Ogden suffering generalised anxiety disorder prior to or at the time of the clinical onset of alcohol abuse. Dr Kenny, in the passage quoted in paragraph 96 of these reasons, suggests rather that the generalised anxiety disorder developed after the substance abuse. In other words, as the respondent submitted, the evidence points to clinical onset of alcohol abuse occurring prior to the clinical onset of generalised anxiety disorder.
The evidence does not raise a reasonable hypothesis which fits the template in factor 5(b) of SoP No. 5 of 1994 or factor 5(a) of SoP No. 76 of 1998 because there is no evidence of Mr Ogden suffering from a psychiatric disorder prior to or at the time of clinical onset of alcohol dependence or abuse.
The decision rejecting the claim in respect of alcohol abuse will not be changed. We recognise that the evidence points to alcohol abuse developing during service but that is not sufficient to render the alcohol abuse a war-caused disease or to entitle a veteran to pension in respect of that alcohol abuse.
HYPERTENSION
According to the report of Dr Williams of 7 May 2002 (A3), Mr Ogden was diagnosed as suffering from hypertension on 30 September 1983. His treatment according to Dr Williams has been limited to measures such as weight reduction, reduction in alcohol consumption and reduction in stressors. There has been no medication prescribed for the hypertension.
STEP 1
The hypothesis relied on by Mr Thompson, on Mr Ogden's behalf was that his obesity, due to heavy consumption of alcohol, and his alcohol abuse were the causes of his hypertension and they were both related to service.
STEP 2
There are two possible SoPs for hypertension Instrument No. 64 of 1998 and Instrument No. 31 of 2001. Mr Thompson did not point to any way in which the earlier SoP was more beneficial to Mr Ogden. Therefore we will apply SoP Instrument No. 31 of 2001.
STEP 3
Factors 5(a) and (b) in SoP Instrument No. 31 of 2001 read as follows:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
(a) being obese at the time of the clinical onset of hypertension; or
(b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; or
The SoP defines "being obese" as follows:
"being obese" means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The SoP defines alcohol abuse and alcohol dependence as follows:
"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent;
"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the continuing or past consumption of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour;
Clause 7 of the SoP provides:
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
The applicant relied only on his alcohol abuse as the cause of being obese. Thus in regard to both factors he relied on alcohol abuse. As we have found that Mr Ogden's alcohol abuse was not a war-caused disease, we must conclude that the hypothesis raised does not contain one or more of the factors in the SoP which is "related to the person's service" in accordance with clause 7 of the SoP . Accordingly the claim in respect of hypertension must fail.
CONCLUSION
The decision under review will be affirmed.
I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Assoc. Professor J.H. Maynard, Member Mr A. Argent, Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  8 May and 5 June 2002
Date of Decision  26 June 2002
Counsel for the Applicant        Mr C Thomson
Solicitor for the Applicant         Mr G Tobin
Counsel for the Respondent    Mr G Purcell
Departmental Advocate           Ms J McCulloch