Re Benjamin and Repatriation Commission - [2000] AATA 680

DECISION AND REASONS FOR DECISION [2000] AATA 680

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/1821

VETERANS' APPEALS DIVISION       )
           Re      DAVID BENJAMIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date9 August 2000
PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that: (a) psychoactive substance abuse is accepted as a war-caused condition; (b) post-traumatic stress disorder is rejected as a war caused condition; (c) the applicant is not entitled to special rate; and (d) the matter is remitted to the respondent to determine the applicant's general rate of pension as and from 19 June 1997.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements -- special rate – general rate – PTSD – psychoactive substance abuse – diagnosis – standard of proof considered – "traumatic event" considered – "experience" considered – "stressful event" considered – "clinical onset" considered – abuse and dependence distinguished from each other – causation – alone test – number of conditions resulting in incapacity for work
Veterans' Entitlements Act 1986 s.24
Statement of Principles No. 5 of 1994
Statement of Principles No. 15 of 1994
Statement of Principles No. 76 of 1998
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinkel [1999] FCA 1273
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Budworth and Repatriation Commission [2000] AATA 127
Re Howe and Repatriation Commission [1999] AATA 1006
Repatriation Commission v Keeley [2000] FCA 532
Re Mackay and Repatriation Commission [2000] AATA 483
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

9 August 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr David Benjamin (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 21 October 1998 (T12) which affirmed a decision of a delegate of the respondent dated 26 March 1998 (T2) refusing the applicant's claim for post traumatic stress disorder (PTSD) and alcohol dependence.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with 29 exhibits, 18 lodged by the applicant (Exhibits A1-A18) and 11 lodged by the respondent (Exhibits R1-R11). In addition, the Tribunal heard evidence from the applicant, who also called Dr A. Dinnen , Consultant Psychiatrist, Dr K. Reinhardt, Consultant Psychiatrist, and Dr M. Baz, Occupational Physician. The respondent called as witnesses Dr R. Lewin, Consultant Psychiatrist, and Dr M. Burns, Occupational Physician. The applicant was represented by Ms J. Buss, of counsel, and the respondent was represented by Ms M. Doggett, a departmental advocate.
The issues before the Tribunal are whether or not the applicant meets the relevant diagnostic criterion for PTSD and alcohol abuse or dependence; and if so, whether or not there is a causal connection between the conditions and his war service. The Tribunal was also asked to consider the applicant's eligibility for special rate.
history of the application
The applicant performed operational war service in Vietnam at various times between May 1965 and February 1969. His claim for PTSD and alcohol dependence was rejected by a delegate of the respondent on 26 March 1998 (T2). This decision was affirmed upon review by the VRB, who stated (inter alia) in their reasons for decision (T12/46):
"… the Board finds that none of the factors set out in the Statements of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran's post traumatic stress disorder and alcohol dependence was war-caused. In these circumstances, the Board is required to affirm the decision under review."
The relevant date of effect in respect of the general rate would be 19 June 1997, and 10 January 1998 in respect of the special rate.
applicant's evidence
The applicant told the Tribunal that he joined the Navy at age seventeen and served aboard several vessels in far eastern seas. He sailed aboard the Jeparit, a merchant ship crewed by Navy and some civilian personnel, from 12 December 1967 and undertook thirteen trips to Vietnam.
The applicant stated that he began drinking in the Navy but considered himself a moderate drinker until after he went to Vietnam at which time he began craving alcohol. He was only allowed up to two cans of beer per day on the Navy vessels and would occasionally get drunk prior to joining the Jeparit. His tolerance to alcohol increased during his service on this vessel. He also stated that he was able to drink as much as he wanted on the Jeparit, beginning at morning tea, and including lunch, afternoon tea and dinner, but particularly after finishing work. He further stated that he drank about a carton (24 stubbies) of beer per day by the end of his time on the Jeparit, including some wine and spirits in later journeys.
He described to the Tribunal an incident in Cam Ranh Bay (which he later agreed was in Vung Tau) when an alert was issued that apparently divers were attempting to attach mines to the ship, and he was moved onto the wharf whilst the ship was checked. He agreed that he was drinking before and during this incident. He stated that he felt very confused and very scared, especially as he did not know what was going on. He described a further incidence in Vung Tau during the Tet Offensive at which time there were bombardments and rifle fire occurring in close proximity (although at least a couple of kilometres away) to their vessel.
The applicant stated that after he left the service, he lived in a pub and continued drinking. He further stated that after he got married and his son was born he reduced his drinking to approximately six cans per night. This was due largely to a drop in income and available money, but his drinking increased when he got a job at a bowling club. He told the Tribunal that he has continued drinking heavily, and has been hospitalised on four occasions recently, in order to try and stop drinking.
He told the Tribunal that he does not like people and has got "cranky" over the years, bottles things up and gets into lots of arguments, especially in work environments. He stated that he believes that he lost his last job because of his attitude, also telling the Tribunal about the circumstances regarding the employment of another employee and the arguments at work regarding his overtime. He stated that he thinks his "crankiness" causes his drinking. He further stated that he has nightmares about running and being chased and also about sinking a couple of times per month. He dreams occasionally about the Jeparit, but not in a bad way.
He told the Tribunal that he lacks energy to do anything, gets angry, is forgetful and is afraid of rough weather. He stated that he had been offered employment in 1998 but refused it because Dr Reinhardt did not consider him capable of permanent employment.
medical evidence
dr a. dinnen
Dr A. Dinnen, Consultant Psychiatrist, saw the applicant on 23 August 1999 and prepared a report dated 1 September 1999 (A13) in which he stated (inter alia):
"…
Opinion: This patient suffers from alcohol dependence dating from and due to his service in the Royal Australian Navy and as a result of operational service.
I think it may well be the case that he did have a degree of post traumatic stress disorder but in my view any such condition has been dissolved in alcohol for many years. In other words, the symptoms and signs consistent with the diagnosis of PTSD, identified by Dr Reinhardt, are very much swamped by his chronic alcoholism.
…"

In oral evidence, in support of his report, he stated that he did not see enough evidence to sustain a PTSD diagnosis but that this condition might possibly be linked with alcohol dependence and the PTSD symptoms masked accordingly. He stated that the "sitting and staring into space" described by the applicant is consistent with PTSD. He further stated that the feelings of helplessness and anxiety in the applicant's particular Vietnam experience would be such so as to satisfy the definition of "stressor" contained in factor 4 of SoP No. 15 of 1994. In his opinion the risk of attack in the harbour in Vietnam would equate with the trauma equated with physical attack, robbery or mugging.
dr k. reinhardt
Dr K. Reinhardt, Consultant Psychiatrist, has been treating the applicant since 1997. She prepared three reports, dated 17 August 1998 (T11), 5 March 1999 (Exhibit A11) and 15 June 1999 (Exhibit A12). In the first of these dated 17 August 1998 she stated (inter alia):
"…
Since his trauma involved an intense feeling of fear and helplessness in the face of threat to his life, he continues to be highly anxious and hypervigilant. He still has occasional nightmares and intrusive memories, particularly when he is exposed to triggers of his trauma. He avoids thinking about his traumatic experiences and restricts his lifestyle to avoid reminders. He is emotionally detached and restricted in his range of emotions. He has initial, middle and terminal insomnia and is frequently irritable and angry.
…
In summary Mr Benjamin continues to meet DSM-IV criteria for Chronic Post Traumatic Stress Disorder and alcohol abuse. This is a war caused disability, and it is as a result of this alone that Mr Benjamin is no longer able to work and is restricted in other areas of functioning. …"

In oral evidence, in support of her reports, Dr Reinhardt told the Tribunal that the applicant's PTSD and alcohol abuse/dependence were interrelated. She stated that the applicant continues to suffer PTSD symptoms when he is not drinking. She further stated that it was the threat of death that was the relevant precipitating factor to the PTSD, and that the threat of gunfire or mines in this case is a very powerful stressor. In relation to the applicant's dreams, she stated that they seem to have a constant thread of threat. She also stated that the symptoms of PTSD began to appear during the time on the Jeparit and afterwards, however a date of clinical onset would be hard to pin down due to the difficulty in linking isolated symptoms with a PTSD diagnosis.
She told the Tribunal that the applicant's intrusive thoughts have diminished, that the "weird" dreams seemed like normal "weird" dreams, and that he does not suffer from reliving experiences as some other people do. In cross-examination she agreed that the applicant's prior drinking history may be indicative of dependence although she would need to know more about the context in which such drinking occurred.
dr r. lewin
Dr R. Lewin, Consultant Psychiatrist, saw the applicant on 15 June 1999 and prepared two reports, dated 16 June 1999 (Exhibit R4) and 16 May 2000 (Exhibit R5). In the first report (Exhibit R4) he stated (inter alia):
"…
I did not diagnose Post Traumatic Stress Disorder in Mr Benjamin's case, noting that he does not satisfy diagnostic criteria, in my opinion. There is no history of a significant stressor during the period of his Military Service. The sorts of events that Mr Benjamin describes are the type of events which would give rise to transient worry, concern and apprehension. They are not the sort of events which would be expected to give rise to a life long mental illness. …
Mr Benjamin's current drinking problem is a serious problem, but I do not relate it to his Military experience .I noted that there was the problem of the stressor and I also noted that he drank heavily in the aftermath of his discharge. His problems appear to have settled once he settled into an emotionally secure relationship. His drinking problem appears to have escalated again in the last ten or fifteen years approximately.
..."
In oral evidence, in support of his reports, Dr Lewin told the Tribunal that this was essentially a drinking problem. He stated that, in his opinion, there needs to be an actual event to create a "stressor" and that possibility of harm created by simply being in a war zone was not sufficient to constitute an event. An event requires an actual happening, not just apprehension that something may happen. He further stated that he found the applicant's evidence of drinking a case of beer regularly on the Jeparit hard to accept, in that one couldn't drink that amount daily and not be affected severely the following day. He qualified that by commenting that it did not mean the applicant was lying, but that histories taken from drinkers are notoriously unreliable.
dr m. baz
Dr M. Baz, Occupational Physician, saw the applicant on 26 August 1999 and prepared a report dated 30 September 1999 (Exhibit A14) in which she stated (inter alia):
"…
In my opinion Mr Benjamin experiences significant disability as a consequence of the post-traumatic stress disorder and alcohol dependence.
…
In my opinion Mr Benjamin left his last employment solely because of the post-traumatic stress disorder.
I consider he is unfit for employment within his skills and experience of 8 or more hours duration weekly. In my opinion this restricted employability is due to his post-traumatic stress disorder.
…
"

In oral evidence, in support of her report, Dr Baz told the Tribunal that the PTSD prevented the applicant from working and that whilst he may have several other medical conditions, she did not consider them to be preventing him from working.
dr m. burns
Dr M. Burns, Occupational Physician, saw the applicant on 2 September 1999 and prepared two reports, dated 4 September 1999 (Exhibit R2) and 17 May 2000 (Exhibit R3). In the second report he stated (inter alia):
"…
Mr Benjamin's alcohol dependence has contributed to the loss of a number of jobs but on the whole his work history reflects some stability in employment. He worked for 17 years at the bowling club and 5 years in his last position as a driver. He was dismissed from his last job in December 1997 but won an unfair dismissal case and was awarded damages. If he had been unfit to perform his duties at the time then the dismissal could not have been seen as unfair!
Dr Baz in her report states that "he has not considered other work because of his age". Additionally he reported to me that he did have the opportunity of doing some casual work at the army camp nearby but Dr Reinhart [sic] advised him against it.
I continue to believe that Mr Benjamin does have some work capacity but due to his age, his geographic location and his alcohol problems it is unlikely that he will find suitable employment."

In oral evidence, in support of his reports, he stated that the applicant continues to have some capacity for work and could have continued in the driving job but for the unfair dismissal, although he expressed reservations about that type of occupation given the amount the applicant drinks. Whilst he conceded he is not a psychiatrist, he considered it difficult to reconcile the history the applicant gave him as to his experiences in Vietnam with PTSD.
other medical evidence
The Tribunal notes further medical evidence before it, particularly the assessment of Dr K. Dunstan dated 16 October 1997 (T5) in coming to its decision.
applicant's submissions
Ms Buss submitted, on behalf of the applicant, that Dr Reinhardt's opinion as the treating doctor should be preferred. She further submitted that the applicant only drank moderately during his Navy service and had isolated episodes of binge drinking and that it was once he joined the Jeparit crew that his heavy drinking began. She submitted that the Tribunal could not be satisfied beyond a reasonable doubt that the applicant's onset of dependence was during the applicant's Jeparit service following the stressful events, as described.
In relation to the PTSD, she submitted that the evidence suggested that the date of onset was towards the end, or just after, the applicant's Jeparit service and that the stressors required by the SoP were met in this case.
In relation to special rate, she submitted that the reason he lost his last job can be attributed to PTSD, and that the substantial causes of his inability to work are PTSD and alcohol dependence.
respondent's submissions
Ms Doggett submitted that, on the balance of probabilities, with reference to the SoPs, diagnoses for PTSD and alcohol dependence could not be made out. She further submitted that the Tribunal should prefer the opinions of Drs Lewin and Burns. She made reference to the DSM-4 criteria as an aide to determining whether or not the diagnosis had been made out for PTSD, and also submitted that there is no event that has been made out in relation to a "stressor".
She submitted that the applicant's history of alcohol use and increased tolerance at the time of his service on the Jeparit suggested dependence before this time and that the service on the Jeparit was simply temporally connected, not causative of a clinical worsening of the dependence.
In respect of special rate, she submitted that it is only mere speculation to assert a connection between his PTSD and dismissal, or that any alleged condition prevents him alone, from working more than eight hours per week.
discussion and findings
The Tribunal has only briefly set out the submissions and evidence, but takes all into account in coming to its decision. Further submissions were received in respect of the standard of proof and clinical onset, and the Tribunal will refer to those submissions in relation to that issue as appropriate.
The Tribunal has a difficult task in relation to this present application, in that it is clear that the applicant is in a poor state of health and mind. Given the applicant's history, particularly his history of alcohol dependence, the Tribunal accepts that allowances must be made in the assessment of his evidence, as there will likely be gaps in his recall and factual inaccuracies when applying his memory to events of some thirty years ago. Whilst this is a considerable lag in time, it is of course well accepted now in both the legal and medical professions that problems related to war service can be long-term, or indeed only surface at some much later date. The hypothesis raised in the present case is of the former variety, in that onset is said to be towards the end of, or some time after the Jeparit service in respect of PTSD and alcohol dependence.
diagnoses
The Tribunal is required to be reasonably satisfied that the diagnoses of PTSD and alcohol dependence are sustainable diagnoses. The Tribunal agrees with Ms Buss that the date of clinical onset is not something which requires to be established to reasonable satisfaction at this stage of the process. This appears to be the clear implication of Repatriation Commission v Cooke (1998) 90 FCR 307 and the Tribunal does not consider that Repatriation Commission v Gosewinkel [1999] FCA 1273 does anything more than support this proposition. Diagnosis is required to be assessed by reference to the SoP definition of a disease or condition and neither the definition of "post-traumatic stress disorder" in SoP No. 15 of 1994 or "psychoactive substance abuse or dependence" in SoP No. 5 of 1994 make reference to clinical onset. Clinical onset in both SoP appears in point 1 of each SoP which relates to the factors which must exist as a minimum to sustain the hypothesis. As Repatriation Commission v Deledio (1998) 49 ALD 193 points out, it is only at the final stage of assessing the hypothesis (stage four of the Deledio steps see p206 therein) that relevant fact finding occurs, and such is using the reasonable hypothesis standard. No "onus of proof or the application of any presumption will be involved" (Deledio at p206). Date of clinical onset is a fact relevant to the reasonableness of the hypothesis, in that the date of the clinical onset will be determinative of whether or not there is a causal relationship between the war service and the claimed condition.

In respect of diagnosis however, the standard is reasonable satisfaction.
psychoactive substance abuse
The definition provided in SoP No. 5 of 1994 for "psychoactive substance abuse or dependence" 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);
…"

Without needing to detail such, it is clear and obvious from the preponderance of the medical evidence and the applicant's own evidence that sub-paragraph (a) of this diagnosis is satisfied and the Tribunal so finds. The applicant has certainly continued to use alcohol, despite the numerous problems it has caused concerning all aspects of sub-paragraph (a).
post-traumatic stress disorder
With respect to PTSD, SoP No. 15 of 1994 provides a definition as follows:
"…
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(b)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that 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
…"
With respect to paragraph (a) of the SoP definition, Ms Buss and Ms Doggett were in some disagreement as to the appropriateness of applying the DSM-IV criteria with respect to "traumatic event" and response thereto. The Tribunal was referred to Re Budworth and Repatriation Commission [2000] AATA 127 in which Deputy President McMahon relevantly stated:
"…
54.      The standard of proof to be applied in determining whether a disease was war-caused is set out in section 120. Before applying the appropriate subsection, it is necessary to determine whether or not the disease, which is the subject of the claim, exists. This determination is to be made on the balance of probabilities (Repatriation Commission v Cooke 160 ALR 17). Although some psychiatrists (particularly Dr Spragg) have suggested that Mr Budworth's psychological symptoms could be explained by reference to some other category of illness, he has claimed only in relation to a condition of PTSD. This claim has been maintained for more than 10 years.
55.      Statements of Principles promulgated pursuant to subsection 196B(2) are statutory instruments. There is one such statement (Instrument Number 15 of 1994) dealing with this disorder. Because of the age of the claim, however, it has no statutory application in the present circumstances. It does, however, refer to the Diagnostic and Statistical Manual of Mental Disorders 4th Edition published by the American Psychiatric Association in 1994 (DSM IV) and adopts much of the relevant part of that manual. A Statement of Principles as a statutory instrument is a document susceptible of legal interpretation. Diagnostic features in DSM IV do not have the same legal standing. Nevertheless, I consider it appropriate to refer to those features as an indication of current learning in identifying and diagnosing the disorder of which Mr Budworth complains.
…"

What must be considered is that in this case there is clearly an applicable SoP, as distinct from Re Budworth, and SoP No. 15 of 1994 avoids mention of "extreme". Whilst the Tribunal is mindful of the DSM-IV definition of PTSD, it does not consider that such constitutes more than a very secondary aide in this case, given the primacy of the SoP, which has legislative force. Ultimately, it is a question of fact, as to whether the Tribunal is reasonably satisfied that the applicant experienced what could be considered to be a "traumatic event" as per the SoP definition, and, if so, whether or not he experienced intense fear, helplessness or horror as a result. The Tribunal was aided by Drs Reinhardt, Lewin and Dinnen, who all commented on this aspect of whether or not the applicant suffered a "traumatic event". Dr Dinnen equated the applicant's experiences in the harbours of Vietnam with the physical trauma from mugging or assault; Dr Reinhardt considered the threat from gunfire to be a very powerful stressor; and Dr Lewin was less convinced, considering that there needs to be an "actual event" which seemed to be missing in this case.
Whilst the Tribunal is assisted by the medical opinion in respect of "traumatic event" it is ultimately an issue of the Tribunal's assessment of how the facts fit with the SoP. It does not therefore, seek to make any finding as to what medical evidence it prefers at this stage.
The Tribunal accepts that there is a necessary subjective element to "experience" as considered by Senior Member Lewis in ReHowe and Repatriation Commission [1999] AATA 1006 in relation to both SoP Nos. 15 of 1994 and 54 of 1999, noting that she handed down such decision before the Full Court decision in Repatriation Commission vKeeley [2000] FCA 532. The Senior Member stated at paragraph 29:
"29. The Tribunal notes that the Statements of Principles regarding PTSD contain detailed clarification of the concept of experiencing a stressor or severe stressor. The use of the word "experiencing" by its nature introduces a subjectivity. The submissions made on behalf of the Respondent take no account of the subjective nature of one's personal experience. It requires an "average person" or "ordinary man" test to be made to particular events. It is of concern to the Tribunal that the Respondent is now seeking to add its own gloss to the words of the Statements of Principles. It is clear from the Act that determining Statements of Principle is the task of the Repatriation Medical Authority and not the Respondent. The application of an objective test is of particular concern because it takes no account of the "eggshell skull phenomenon"."
There is clearly also a need for some objectively assessable facts which may give rise to such experience, whilst bearing in mind the range of subjective responses to any given situation.
To generate a response of "intense fear, helplessness or horror" the "traumatic event" needs to be significant. It cannot just be a general apprehension or foreboding. The applicant gave evidence to the Tribunal about the mine incident and that in which he saw gunfire and bombing, most likely during the Tet Offensive. The Tribunal has also considered the manner in which he has described these events over the years to the various doctors. It also takes into account his drinking history, as that effects his abilities as a historian. Nevertheless, the Tribunal must be mindful of the reports of the historians, Professor Grey and Mr O'Keefe, as to the objective risks, and consider the relative severity of the applicant's experiences as against other veterans it sees, and common sense approaches as to what is considered to be "traumatic". The Macquarie Dictionary 3rd Edition defines trauma as being:
"…
1. Pathology a. a bodily injury produced by violence, or any thermal, chemical, etc., extrinsic agent. b. the condition produced by this; traumatism. C. the injurious agent or mechanism itself. 2. Psychology a startling experience which has a lasting effect on mental life; a shock. …"
The traumatic event must be of sufficient magnitude so as to result in the experience of the factors listed in sub-paragraphs (b) through to (f) of SoP No. 15 of 1994. The Tribunal considers that to generate reactions of the magnitude prescribed in the said sub-paragraphs, the traumatic event must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of a war zone.
Given the SoP in force in this case, the Tribunal would not consider "traumatic event" as it was intended to be considered at the time to be of a standard as high as that held by Deputy President McMahon in Re Budworth. Very recently, in Re Mackay and Repatriation Commission [2000] AATA 483, Senior Member Allen has considered the meaning of this SoP in a quite similar factual scenario. The Senior Member also considered the application of Re Budworth, stating, (inter alia) at paragraphs 37 and 38 therein:
"37. …
In this matter, although the SOP referred to is earlier than the SOP adopted by Deputy President McMahon, I adopt as a matter of conformity his analysis of the various criteria with the exception that in the SOP applicable to this case the word "extreme" does not appear.
38. I am satisfied that none of the events referred to by the Applicant in his evidence amounted to a severe stressor as that term is defined in the SOP. The bump in the night from the kumpit was, objectively speaking, nothing and the Applicant was soon aware that it was inconsequential. I am firmly of the opinion that he is exaggerating his Vietnam experiences and, in any event, he never experienced anything like the situations referred to in the passage quoted above from Re Budworth supra."
With respect, this Tribunal considers that it not inconsistent with Re Budworth to consider that the standard applicable to SoP No. 15 of 1994 is slightly lower than that adopted by Deputy President McMahon. As Senior Member Allen notes, the word "extreme" does not appear, and furthermore, whilst the Senior Member makes reference to "severe stressor" (paragraph 38 therein), SoP No. 15 of 1994 in fact does not contain the word "severe" in sub-paragraph (a) of the definition. It simply states "stressor". Accordingly, this Tribunal considers that the standard should be slightly lower, but nevertheless, for the reasons given in paragraphs 41 and 42, there needs to be evidence of some significance to satisfy the SoP, even if such evidence is not of a type quite so dramatic as considered necessary in Re Budworth.
Taking all these considerations into account, the Tribunal does not consider, as a matter of fact, and is not reasonably satisfied that the events described to it by the applicant constitute "traumatic events" as that term is to be understood by reference to SoP No. 15 of 1994. Whilst the events were stressful, the Tribunal does not consider that they were of a magnitude so as to be considered "traumatic". It does not agree that as a matter of law, the experiences the applicant faced can be said to be comparable with that of being physically assaulted as suggested by Dr Dinnen. Whilst it is respectful of his opinion, the Tribunal must consider the matter in light of the definition included in the SoP.
The Tribunal was also not reasonably satisfied that sub-paragraph (b) of the definition in the SoP could be met by the applicant. His evidence, even making allowances for his current situation and historical recall, was not such so as to convince the Tribunal that he has recurrent, distressing recollections, dreams or "reliving" of the event, nor distress or reactivity to cues resembling aspects of the event. Whilst he is adverse to going to sea and rough weather, this could not be said to sufficiently constitute an "aspect" of the traumatic event as that term is meant to be understood by the SoP. Certainly, the Tribunal considers that sub-paragraphs (c), (d), (e) and (f) are satisfied, however failing sub-paragraphs (a) and (b), the Tribunal cannot be reasonably satisfied that the diagnosis of PTSD as required by the SoP is met and so finds. Accordingly, in respect of PTSD, it is not necessary to consider the hypothesis raised in relation to war service and the Tribunal so finds.
alcohol dependence
In relation to alcohol dependence, given that the diagnosis prescribed in the SoP is met, the next step in the process is to consider the hypothesis raised. The Tribunal finds that a SoP is in place and there is a hypothesis raised in this case which contains one or more of the factors listed in sub-section 1 of the SoP. The Tribunal is further satisfied that the hypothesis is reasonable, in that it is not inconsistent with the SoP (without making findings of fact at this stage) and is not otherwise fanciful or contrary to known scientific fact (see Byrnes v Repatriation Commission (1993) 177 CLR 564).
With respect to the standard of proof required by the fourth stage of Deledio, the Tribunal is also aided by the factors listed in Byrnes, at p571:
"…
(2) If a reasonable hypothesis is established … The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt …"
In relation to the hypothesis, it is claimed that the applicant experienced a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and that he has maintained the abuse or dependence post-service. In her final submission, Ms Buss also raised the prospect that were the Tribunal to find that the applicant already suffered from the condition, there was a clear clinical worsening as a result of his service aboard the Jeparit (sub-paragraph (c) of sub-section 1 of the SoP).
The hypothesis raised in connection to sub-paragraph (a) has three elements. First, is whether or not there was experience of a "stressful event". Secondly, is the date of clinical onset, and whether this was after such a "stressful event". Thirdly, is whether the dependence or abuse was maintained.
First, "stressful event" is defined in the SoP as meaning,
"… 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."
In the Tribunal's opinion, this poses a lower threshold than the "traumatic event" standard considered in the PTSD SoP. The Tribunal notes Senior Member Allen considered this aspect in Re Mackay, stating (inter alia) at paragraph 42 therein:
"42. The definition of "stressful event" in Instrument No 5 of 1994 should be read in conformity with the definition of "experiencing a stressor" in Instrument No 15 of 1994. That is to say that the test is an objective one, not subjective. I find as a fact that this Applicant did not have any stressful events of such severity or magnitude so as to conform with the definition of the term "stressful event" in the SOP. …"
This Tribunal is also cognisant of the medical opinions expressed in this case, that in any objective assessment the decision maker must consider the "eggshell skull" principle, as to the possible effects experiencing traumatic events (as objectively considered) can have on certain people. Senior Member Lewis considered in Re Howe, that the word "experiencing" connotes a subjective element as noted above in relation to PTSD. This Tribunal re-iterates it comments above in that in relation to "experiencing a stressful event", there will obviously need to be objective evidence of an "event", but bearing in mind the necessarily subjective element that one brings to life when one "experiences" any such event.
It further considers that "stressful event" does not equate to "experiencing a stressor", such that "stressful event" does not need to satisfy the criteria set out in sub-paragraph 4(b) of SoP No. 15 of 1994. The fact that SoP No. 5 of 1994 does not specify criteria, means that "stressful event" must be considered to be a term with broader application than "experiencing a stressor" and the Tribunal so finds.
It is also significant that "stressful event" does not go to diagnosis in SoP No. 5 of 1994 and so the Tribunal considers it in relation to the reasonable hypothesis standard. The applicant gave evidence that he was very scared and confused following the incidents detailed above at paragraph 8. He also described feelings of helplessness at one point in his evidence. The Tribunal considers, and so finds, that there were "external stimuli" by virtue of the mine scare and gunfire in some proximity to the applicant aboard the Jeparit. It finds on the evidence before it, that the applicant suffered a "stressful event". The circumstances of this applicant's Vietnam experience are sufficient, in the Tribunal's opinion, to satisfy the requirement of "external stimuli (such as combat) that would result in psychological stress". The Tribunal finds that external stimuli (in particular the two incidents so described aboard the Jeparit) caused psychological stress, resulting in the applicant feeling subjective symptoms of increased stress.
In respect of "clinical onset", the Tribunal agrees with the respondent that there is clear evidence of some relationship to alcohol in the applicant's years of Navy service prior to his service on board the Jeparit. This relationship clearly exceeds what one would normally expect to see in a service history, and is clearly evident of some prior problem with alcohol. The SoP links psychoactive substance "abuse" with "dependence" however the Tribunal notes Dr Lewin's evidence that (p118-9 of the transcript):
"… alcohol dependence is a physiological condition. The difference between alcohol abuse, which is using the drug incorrectly, in a harmful way, on the one hand and alcohol dependence on the other hand is that there are hallmarks of addiction with alcohol dependence and the implication there is that there is a physical change within the body, in the liver and in the brain. The body's metabolism of alcohol changes, the body's capacity to get rid of alcohol out of the system, to de-toxify the alcohol, is increased … in the initial phases one develops hallmarks of addiction which are tolerance and withdrawal symptoms and those are clinical features which are a reflection of physical changes within the body. That takes a minimum of five years, and generally 10 or more years to develop, of heavy drinking usually on a daily basis. It's unlikely that physiological addiction, or dependence, can develop in a period of less than five years, it's usually longer than that. …"

The Tribunal notes the use of the word "or" in the SoP. It is not "abuse" and "dependence", it is one or the other. The Tribunal, having carefully considered the evidence and service history of the applicant, together with the assessment it made of his evidence, considers that in relation to the SoP definition, it is clearly established that the applicant was abusing alcohol prior to his service on board the Jeparit, and therefore prior to the "stressful event". This history of abuse is documented by the continued trouble he got into, with unauthorised leaves of absence and being found with alcohol. The preponderance of the evidence suggests however, that it was more the case in the applicant's period of Navy service, that he would indulge in binge drinking, or go on "benders". It was not the case beyond a reasonable doubt that he had a daily dependent relationship with alcohol. Given the tenor of the applicant's evidence, it could be said that, but for the Navy's strict regulations, he may have had such dependence, but the Tribunal is not satisfied to the applicable standard that the applicant was dependent upon alcohol prior to his Jeparit service, as that term is understood with reference to the SoP and the explanation proffered by Dr Lewin. Whilst the applicant continued to misuse alcohol despite repeatedly getting into trouble as a result, as Dr Lewin explained, dependence is something that is physiological. It does not result only by virtue of the type of behaviour the applicant was displaying, in overindulging on weekends, and whenever else opportunity knocked.

In respect of dependence, the Tribunal notes that no definition appears in this SoP. Such a definition appears in the latter SoP No. 76 of 1998, from which the Tribunal notes the following:
2(b) For the purposes of this Statement of Principles,
"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"
Following Keeley, the Tribunal would clearly be in error to import such criteria from that SoP into No. 5 of 1994. Nevertheless, the Tribunal considers such factors to be a useful secondary tool to aide in its consideration of "dependence" for the purposes of the 1994 SoP, in much the same way Deputy President McMahon considered the DSM-IV in Re Budworth. This Tribunal would be somewhat more circumspect in its use of the above criteria however, and sets it out only as a rough secondary and subordinate guide. Of more use and of greater weight, is the evidence of Dr Lewin. In this regard, the Tribunal does not necessarily prefer the evidence of Dr Lewin as concerns the applicant, but notes that he was afforded the opportunity to give evidence as to definitions of alcohol dependence, and the other doctors were not. Such definitions are of assistance to the Tribunal. Dr Lewin characterised dependence as physiological, and emphasised the development of physical and psychological changes consistent with addiction and increased tolerance.
Taking into account the medical evidence and that of the applicant, the Tribunal finds that such physiological symptoms arose and were first identified subsequent to the service of the applicant on the Jeparit. It has certainly not been established beyond a reasonable doubt that such symptoms were present and detectable prior to the stressful events aboard the Jeparit. Accordingly, the Tribunal finds that the date of clinical onset of alcohol dependence is subsequent to the Jeparit service. On the evidence before the Tribunal, towards the end of the Jeparit's voyages, the applicant was drinking very heavily, and it may be said that greater reliance was placed on alcohol at this time. Clinical onset, as the Tribunal states in Re Robertson and Repatriation Commission (1998) 50 ALD 668 is (at p670 therein):
"… either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time."
Clinical onset, in respect of "dependence", taking into account Dr Lewin's evidence as to "dependence" onset and the guiding factors of SoP No. 76 of 1998, appears in this case at a time after the Jeparit service, at least in so far as the reasonable hypothesis test is concerned.
Accordingly, the Tribunal considers that there was a stressful event prior to the clinical onset of alcohol dependence and so finds.
The remaining element of the hypothesis is "maintaining". The applicant gave evidence that subsequent to his service, he drank heavily. Such drinking dropped in volume markedly when he first married and his son was born. There was some conflict as to quantum, but it was either some two or six cans per day at that time, at various points in his evidence. Dr Lewin suggests that with any estimates as to amounts consumed given by people in the applicant's position, the figure should probably be doubled, but there is a marked drop in any event. The question for the Tribunal is what is intended by "maintaining" within the context of the SoP?
There have been changes in the applicant's alcohol use over the years, as it has waxed and waned, depending upon availability, money and family pressures. Certainly, it has been consistently heavy in the past decade, and very problematic of late. The Tribunal considers that in this case, whilst the quantum may have varied over the years, contingent upon the circumstances in which the applicant found himself, quantum should not be the determinative factor of "maintaining" alcohol dependence. Maintenance will be established where there is a continuance of the dependence. Dependence, as the Tribunal has discussed, is predicated upon a number of physiological and psychological factors which are not necessarily related to quantum, but to effect and reaction. Whilst the quantum may have varied therefore, the Tribunal notes that there is no suggestion that the applicant has ever stopped consuming alcohol for longer than very short periods of time. He has remained "dependent" in the Tribunal's opinion throughout his post-service life. This satisfies the "maintaining" requirement and the Tribunal so finds. Again, this finding is predicated upon the reasonable hypothesis test, in that it has not been established, beyond a reasonable doubt, that the applicant did not "maintain" the abuse post-service and the Tribunal so finds.
Accordingly, although the requirements of factor 1(a) of SoP No. 5 of 1994 are met, the Tribunal is not satisfied beyond a reasonable doubt that the applicant's condition of psychoactive substance dependence is not war-caused.
special rate
The test for special rate is contained in section 24 of the Veterans' Entitlements Act 1986 (the Act). Two aspects arise of particular note for this appeal. First, is the question of whether or not, given the above findings in relation to alcohol dependence and PTSD, the applicant would satisfy sub-paragraph 24(1)(a) of the Act, in achieving a minimum of 70%. Secondly, whether or not the applicant's accepted war-caused disabilities alone have rendered the applicant incapable of work (sub-paragraph 24(1)(b)) and caused a resultant loss of wages (sub-paragraph24(1)(c)).
In relation to the second identified issue, the Tribunal notes Dr Reinhardt and Dr Baz both consider that the applicant is incapacitated from undertaking more than eight hours work per week as a result of his PTSD (as diagnosed by Dr Reinhardt) (sub-paragraph 24(1)(b)). They further contend that he is prevented from undertaking work that he was undertaking because of his PTSD (sub-paragraph 24(1)(c)). The Tribunal has high regard for Dr Reinhardt's opinion as the applicant's treating psychiatrist. It rejects Ms Doggett's submission that medico-legal specialists should be preferred to treating doctors. Where the treating doctor is as highly respected and objective as Dr Reinhardt appeared to this Tribunal, it must consider that she is in an advantageous position in respect of proffering an opinion given her greater level of exposure to the applicant. It must be remembered that medico-legal assessments are not legal assessments, for that is the Tribunal's job. They are medical assessments done within the context of legal proceedings. Whilst the Tribunal has ultimately found that PTSD is not a war-caused condition in this case, that is more a matter of fact and law than medicine.
The difficulty for the Tribunal is that it cannot accept PTSD as a war-caused condition, as it does not satisfy the SoP. This is not to say that as a matter of clinical treatment, the applicant does not suffer from a psychiatric condition which affects his ability to work or continue working, and that from a clinical perspective, PTSD may be an appropriate label for such a condition. It means, that as a matter of law, the diagnosis of PTSD is not made out and the applicant does not fit the legally prescribed definition. The Tribunal does find however, that the applicant suffers from some psychiatric problems, and that these have affected his capacity to work, and indeed his ability to continue in the remunerative work he was undertaking. Such problems (however labelled) are not conditions accepted as being war-caused, as a matter of law. As a matter of law, there are clearly other factors, and other non-accepted disabilities impacting upon both incapacity for, and prevention from continuing work, and the Tribunal so finds. In relation to his last held employment, the applicant lodged an unfair dismissal claim, which was settled at the pre-hearing stage. It is not this Tribunal's task to seek to "look behind the veil" of that settlement agreement, and whilst the taking of the action is indicative of the fact that the applicant thought himself that he was capable of working, it is clear that in respect of a latter job, Dr Reinhardt, did not. It appears from the evidence that the reasons for the applicant's dismissal were multi-factorial, but that not least of which was the applicant's attitude and the difficulties associated with his aggression and the resultant arguing. If indeed it was the case that the company was downsizing, one could perhaps appreciate that an employer might prefer someone with less experience to the applicant, given his problems with aggression. On this basis, it may well be a reasonable conclusion that the applicant's psychiatric problems led to his dismissal, and if such problems had not occurred (clinically labelled PTSD by Dr Reinhardt) he could have maintained that job. Not all such problems stem from his alcohol dependence however, and as such, do not stem from his war-caused disabilities alone.
In respect of his other previous employment, as Dr Burns commented, there is some evident stability in his working history. By the applicant's own evidence however, whilst his arguing may have contributed to him losing previous jobs, the underlying reasons he argues so much are not all related to his drinking. As such, they do not satisfy the "alone" test for the purposes of section 24 of the Act.
Accordingly, even were the applicant to still satisfy sub-paragraph 24(1)(a) of the Act, the Tribunal finds that the "alone test", particularly relevant in this instance to sub-paragraph 24(1)(c) of the Act is not satisfied. The Tribunal finds that special rate is not payable on this basis.
It is appropriate in the circumstances to remit the matter in order that the appropriate rate, in respect of psychoactive substance abuse, can be determined. Whilst assessments have been performed and ratings given, it would be appropriate for separate assessments to be done, to reflect the alcohol dependence alone. The Tribunal notes the difficulty that will be associated with this, given, as it accepts Dr Reinhardt's evidence on this point, that there is some clear interrelationship between his alcohol dependence and other psychiatric conditions. An assessment must be performed however, as to the extent to which his alcohol dependence, being an accepted disability, is incapacitating.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that:
(a)psychoactive substance abuse is accepted as a war caused condition;
(b)post-traumatic stress disorder is rejected as a war caused condition;
(c)the applicant is not entitled to special rate; and
(d)the matter is remitted to the respondent to determine the applicant's general rate of pension as and from 19 June 1997.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         ..........................(signed)..........................................
  Personal Assistant
Date/s of Hearing  22, 23, 24 May 2000
Date of Decision  9 August 2000
Counsel for the Applicant        Ms J. Buss
Solicitor for the Applicant         Legal Aid Commission of NSW
Counsel for the Respondent    Ms M. Doggett
Solicitor for the Respondent    DVA