Re Jehn and Repatriation Commission - [2000] AATA 484

DECISION AND REASONS FOR DECISION [2000] AATA 484

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1439

VETERANS' APPEALS DIVISION       )
           Re      Anthony Gregory JEHN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J Campbell, Member

Date19 June 2000
PlaceSydney

Decision The Tribunal – 1. sets aside the decision of the Repatriation Commission ("the Respondent") dated 17 May 1997 which refused the claim of Anthony Gregory Jehn ("the Applicant") in respect of Post Traumatic Stress Disorder; and 2. in substitution therefor determines that the Applicant's Post Traumatic Stress Disorder is a war-caused disease pursuant to s 9 of the Veterans' Entitlements Act 1986, with effect on and from 9 January 1997; and 3. the matter is remitted to the Respondent for assessment of pension payable to the Applicant.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether suffers from PTSD - whether PTSD war-caused – whether satisfied Statement of Principles - whether stressor was experienced prior to clinical onset of PTSD – whether traumatic events in Vietnam involved intense fear helplessness or horror – whether hypothesis linking stressful events in Vietnam with PTSD reasonable – use of a diagnostic tool (DSM-IV) as basis of Statement of Principles (a legislative instrument)

Veterans' Entitlements Act 1986 – ss 120A, 120(1), 120(3)
Statements of Principles - Instrument No.15 of 1994, No. 225 of 1995

Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Cooke (1998) 160 ALR 17
Re Powell and Repatriation Commission [2000] AATA 385
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

19 June 2000 Mrs M T Lewis, Senior Member Dr J Campbell, Member

This is an application made by Anthony Gregory Jehn ("the Applicant") for review of a decision made by a Delegate of the Repatriation Commission ("the Respondent") dated 17 May 1997 that refused his claim for post traumatic stress disorder ("PTSD"). On 29 June 1998 the Veterans' Review Board ("VRB") affirmed that decision. All applications for review were made in time, and therefore the earliest date of effect is 9 January 1997, being a date not earlier than three months before the Applicant lodged his claim.
The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

Report of Dr M Dent, consultant psychiatrist, dated 1 July 1999 and facsimile from the Applicant's solicitor, R L Whyburn & Associates, to the Tribunal dated 29 July 1999 (exhibit A);
Discharge summary from St John of God Hospital dated 10 November 1999 (exhibit B);
Photocopy of a photograph of 3 Vietcong prisoners (exhibit C).

The Respondent tendered a medical report of Dr R Lewin, psychiatrist, dated 6 May 1999 (exhibit 1). The Applicant gave oral evidence at the hearing.

The Applicant was born on 3 April 1946. He served in the Royal Australian Navy from 8 July 1962 to 7 July 1974, including operational service in Vietnam from 5 April 1968 to 17 April 1968, and 14 September 1970 to 7 April 1971. He also rendered eligible defence service from 7 December 1972 to 7 July 1974, which is not at issue in these proceedings.
The standard of proof to be applied to the Applicant's operational service is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), which requires the Tribunal to determine, with respect to the period of the Applicant's operational service, that his PTSD was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Applicant's service.
As the Applicant lodged a claim after 1 June 1994, pursuant to s 120A of the Act, the Tribunal is also required to apply the relevant Statement of Principles in determining this matter. The Statements of Principles concerning Post Traumatic Stress Disorder, which were in place at the time the primary decision was made on 17 May 1997, are Instruments No. 15 of 1994 as amended by No. 225 of 1995, and No. 16 of 1994 as amended by No. 226 of 1995. Those Statements of Principles were revoked by Instruments No.3 of 1999 as amended by No. 54 of 1999, and No. 4 of 1999 as amended by No.55 of 1999, respectively.
The Tribunal has taken into account the decision of the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532 regarding the Statement of Principles to be applied. However, it was the parties' view, and the Tribunal agrees, that in this matter the Applicant is not affected in any material way by the changes made to the Statements of Principles. That is, the outcome is the same despite the introduction of the phrase "severe stressor" in the more recent Statements of Principles which carries the same definition as that of "stressor" in the previous Statements of Principles.
It is the Applicant's case that he experienced several stressors during his war service, particularly when he was posted on HMAS Perth for a gunline tour to Vietnam, which he claims subsequently caused his PTSD. Hence, his operational service is relevant in respect of this hypothesis. Instrument No. 15 of 1994 states that at least one of the factors described in that Statement of Principles must be found by the Tribunal to exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the Applicant's operational service. The Applicant relies on factor 1(a) which states –
Experiencing a stressor prior to the clinical onset of post traumatic stress disorder;
That Statement of Principles (Instrument No 15 of 1994) defines "experiencing a stressor" and "post traumatic stress disorder" respectively (at paragraph 4) –
"experiencing a stressor" means the following (derived from DSM-IV):
(a)       the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)       the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a)       the person has been exposed to a traumatic event in which:
(i)        the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)       the person's response involved intense fear, helplessness, or horror; and
(b)       the traumatic event is persistently re-experienced in one or more of the following ways:
(i)        recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)       recurrent distressing dreams of the event;
(iii)       acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)      intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)       physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c)       persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)        efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)       efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)      inability to recall an important aspect of the trauma;
(iv)      markedly diminished interest or participation in significant activities;
(v)       feeling of detachment or estrangement from others;
(vi)       restricted range of affect (eg, unable to have loving feelings);
(vii)      sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d)       persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)        difficulty falling or staying asleep;
(ii)       irritability or outbursts of anger;
(iii)       difficulty concentrating;
(iv)       hypervigilance;
(v)        exaggerated startle response; and
(e)       duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f)     the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

applicant's evidence

The Applicant joined the Navy in 1962. He was posted to HMAS Leeuwin as a boy seaman at the age of 16 years. Twelve months later he went to HMAS Cerberus in Victoria to undertake an electrician's course, after which in 1963 he was posted to HMAS Yarra. He worked as a gunnery electrician for 2 years. In 1965 he went to the United States on HMAS Perth. He said he was distressed because he was taken away from his family. He spent a year in America working on the sonar systems on board, doing fire fighting and damage control training, before returning to Australia some time in 1966. He then went to HMAS Albatross to undertake a course in meteorology for approximately 4 to 5 months, and then to HMAS Watson for a couple of months for navigation training. He was posted to HMAS Parramatta for 2 years in about 1968 and married in 1969.
At the age of 22 years, whilst on HMAS Parramatta and just after the Tet Offensive, the Applicant was involved in an escort trip to Vietnam. At that stage he was working as a navigator's assistant and was part of the "look out" system on board. The ship had permanent patrol boats patrolling the vessel and divers to search the bottom. Anything that was floating was shot by the permanent armed sentries. During that visit, the Applicant recalled there was "plenty of shooting and shelling over Catwick Isle", a Viet Cong stronghold. He said "it was like New Year's Eve all the time".
After the escort trip in the strategic reserve the Applicant returned to Sydney and was posted to HMAS Watson for about one year as a navigator's yeoman instructor at the Navigation and Direction School. From there he was posted to HMAS Perth as navigator's assistant and meteorological observer on the day it sailed for Vietnam for a gun line tour. This involved coast firing at targets allocated to them. The gun line was commanded by the Americans. The period of operational service was about nine months, more than six months of which were spent on the gun line. During both episodes of operational service the Applicant's vessel was moored in Vung Tau Harbour and Danang, and contrary to the statement in Dr Dent's report, the Applicant confirmed in his oral evidence that he never went ashore, but rather his ship gave Naval gun fire support to the troops on shore.
The Applicant, together with the Captain, officer and radar spotter were in a bombardment plot in the Combat Information Centre on the vessel. This involved communicating with the spotters via radio, firing a round and obtaining corrections so that their computer systems could be adjusted. The Applicant was able to hear what was being said, including the sounds of shelling and small arms being fired in the background.
The Applicant provided an undated statement (T13, pp 63-65) listing in effect a number of incidents he said had occurred during his Vietnam service. In oral evidence, he clarified that he wrote the statement about 7 August 1997, after lodging his claim and having spoken to his advocate, Col Ford, who had asked him to write the statement for the purposes of the VRB hearing. The Applicant in his oral evidence expanded on that statement and commented on his reactions to those alleged events in relation to identifying whether any of them qualified as "stressors" as defined in the Statements of Principles. Each of these incidents will be addressed in the order in which the Applicant recalled them.
Hospital Bombing
The Applicant said that on one occasion he was asked to bombard a hospital, but he refused to fire on it. The Captain was on duty at the time when that target was identified, and after protestation by the bombardment team the Captain declined to fire. The Applicant said that although it was not a mutiny as such "some heated words" had been exchanged. The shift on the next watch, however, was told that the target was an enemy base camp and bombarded it. In his written statement (T13, p63) he said –
I have been traumatised by this event, more so since the Vietnam boat people and the subsequent immigration of Vietnamese to Australia. I constantly have dreams about the bombardment of the VC hospital.

In oral evidence, the Applicant said that the incident disgusted him and made him very angry and "pretty upset". He felt bitter towards the US personnel who were involved in the decision to change the nomenclature of the target. He thought it was intentional. He said –

… we weren't in the game of killing people who were out of the game….we were professionals and we … didn't do those sort of things…..
…. I still think about it nowadays quite often…
… It shouldn't have ever happened….I sort of feel guilty in a way because I should've actually passed on to the next shift the positions which I never did and it would never have happened

Spotter killed

The Applicant described this incident in his written statement (T13, p.64) in the following way –
We were called upon to give support to troops in close contact with the enemy. We bombarded the coordinates given and could hear small arms and our shells exploding over the radio. The radio went dead. The spotter was calling fire on his own position and I was told he was killed.

In oral evidence, the Applicant said he felt sorrow and helpless. He could not recall from where the soldier came.
Helicopter Pilot incident

The Applicant stated –
I was listening on the radio when we heard a downed American pilot talking to a rescue chopper. We could hear the small arms fire between him and the enemy. The rescue chopper could not find him because of cloud cover. I don't know whether he was killed or captured but I will never forget the fear in his voice and he could hear the chopper.

At the hearing the Applicant described feelings of "helplessness" because there was nothing that could have been done.
Threat of diver

The only other disturbing event the Applicant recalled was when the vessel was attacked by a diver. They threw scare charges over the side about 20 feet away. He was asleep at the time but woke up due to the loud noises he heard. He thought that he and the others were going to die as they thought they had been hit. The Applicant said that now, if he hears any loud noises, he "jumps about 10 feet" and he wakes up in a sweat, shakes and hyperventilates. He said he is also unable to sleep with the door closed.
Explosion in Turret A
The Applicant said in his written statement (T13, p63) –
Cordite exploded in the "A" turret. Fumes from the explosion entered the ship's air conditioning. The Doctor the LSBA and the gun crew were overcome by the fumes. When the call for emergency party to the turret was heard the first thought was that we had been hit. We were in a state of panic and it was difficult to cope. My bunk was located in the foreward messdeck right alongside "A" turret. The LSBA is now in a wheelchair because of this incident and I often have nightmares about what happened

The Applicant clarified in oral evidence that he was asleep in his bunk at the time and was wakened by his shipmates after the explosion. He said he was "terrified". The Applicant admitted in cross-examination that he had become able to sleep through loud noises; he said "it became part of the atmosphere in there". The news of the sick bay attendant who ultimately was confined to a wheelchair was conveyed to the Applicant many years after the event.
Patrol boat bombardment

The Applicant noted in his written statement (T13, p64) –
At the mouth of the Cua Viet in 1 Corp there was a navigational buoy. It was very important for navigation and was a "point oscar" for our gunnery system, because of the flatness of the coastline. It was sunk by friendly fire. Because of this a patrol boat ran aground at the mouth of the river during the night. It came under heavy enemy attack. We were called for assistance and laid down a bombardment between them and the enemy. They were eventually saved I was told.

In oral evidence the Applicant said "we feared for their lives because they were run aground in North Vietnam".
Vietcong Prisoners

The Applicant said in his written statement (T13, p.64) –
We were approached by a fishing boat and sent a boarding party to investigate. On board were seven VC who were taken prisoner. I was surprised and shocked at the age of them, because some were only teenagers.

The Applicant further explained that the seven Vietcong prisoners were taken on board after they had surrendered and were handed over to the South Vietnamese who assassinated them. He said he was given this information by a crew member, one of the underwater controllers, who "apparently" witnessed one of the assassinations on the quarterdeck immediately after the incident. The Applicant said that he and others had assumed all seven prisoners were assassinated. The Applicant described his reaction to the news of the assassination in the following terms –

Revulsion, anger, disgust - still feel the same way now. They surrendered to us because they thought they would get a good go because they surrendered to the Australians. They actually came out to us because they knew an Australian ship was there. They could have just surrendered to the South Vietnamese or the Americans at any time. They waited for us to come thinking they would be looked after, and they were only kids, that's the problem. They were out of the game.
As an Australian I feel guilty. As a professional serviceman I feel guilty. ... Because they came out to us, thought they were going to get a good go…

The Applicant said that he continues to think about that incident and he referred to a television program which he saw the night before the hearing which caused him to recall the incident. He said "I get very angry when I think of it, very angry".
Korean troops

The Applicant described a further incident which also caused him some distress, viz. –
We were called on to assist Republic of Korea troops who had a large number of enemy infantry in the open. The US Coast Guard Cutter "Rush" and "Perth" bombarded the position and killed 64 enemy and 8 probable KIA. The "Rush" had her shells set with proximity fuses and her shells burst into the clouds.

He said that this incident resulted in the Korean troops being overrun by the Vietcong. The Applicant said that this made him very upset with the Americans whom he considered to be "incompetent".

The Applicant was referred to the following passage in a report by Dr Law (T5) which was quoted subsequently by Dr Dent (exhibit A) –
…he often harboured guilt feelings of 'having killed more than a hundred enemies during the war time with other mates'. Intrusive memory of having captured [Tribunal's emphasis] 14 or 15 old Viet Congs when he felt disgusted was frequent

The Applicant confirmed that he and the others had not killed "more than a hundred enemies"; the number was "about 90". He said that he was not distressed by this whilst on the ship, but he kept thinking about it later on in his life. However some of the other incidents like the hospital blast and the scare charges did affect him whilst on board. Particularly, he said loud noises affected him immediately after the scare charges incident. The constant guns firing did not bother him.

In a publication entitled Reflections on the RAN, Ch. 24 "DDGs in Vietnam: HMAS Perth" by Ian Burnside (T17, p92-95) at 345-347 the following comments were made –
Operations
South Vietnam was divided, originally, into four military Corps Zones numbered consecutively from 1 in the north by the DMZ to 4 in the Mekong Delta region …
For our deployment we were not allowed north of the DMZ, so we did not have a threat from shore battery fire. Near the DMZ, however, we did not close to less than about 5,000 yards offshore to reduce the threat of mortar attack. Nor was there supposed to be any air threat - nevertheless, and particularly near the DMZ, we kept a wary eye on any air activity. We always assumed that there was the threat of underwater swimmer attack wherever we went and, indeed, on one calm night off the DMZ we thought we had been attacked and withdrew to make a bottom search …
The coastline in 4MR to the west of the Delta is quite featureless. The waters offshore are so shallow that we could not approach any closer than an average of about 10,000 yards …

The Applicant said that Ian Burnside was their Captain, and he agreed with the abovementioned description by Captain Burnside. The Applicant also said that the various incidents he had identified had occurred in various regions. He said "we were jumping from place to place all the time".

The Applicant said he lodged his claim for PTSD only after speaking with the Vietnam Veterans' Association in late 1996/early 1997, when it was suggested that he seek psychiatric help. He said he had been having flashbacks and sleeping problems about that time. He said that it was difficult to discuss the incidents that had occurred but added "I got it off my chest". He admitted reading about the history of HMAS Perth in about early 1997, before the VRB hearing.
The Applicant said that when he left the Navy he "never had anything to do with anybody involved with it … I just left it behind me". He admitted in cross-examination there were times when he got "fed up" with the Navy, notwithstanding that he experienced some good times. In 1967, before his Vietnam service, he admitted his dislike for some of the officers in the Navy (T3, p15a). In cross-examination he agreed that he had been surprised after looking at his Naval medical records that he had been psychiatrically evaluated whilst in the Navy. As far as he was concerned, he did not consider he had any psychiatric problems arising from his regular Navy service, apart from the one time when he wanted to leave so he could be with his girlfriend. He admitted having difficulties when he changed from the electrical branch to the meteorology department, but he considered that these problems related only to coping with the technology changes. He admitted he was happy with the duties he was required to perform whilst in that position. He found it challenging and was able to work without a boss.
After his discharge from the Navy the Applicant joined the waterfront in 1974. He said he did not tell anyone there that he had been to Vietnam to avoid being the subject of ridicule. He remained in employment at Patrick Stevedores for about 25 years, mostly as a stevedore, operating mechanical equipment. He was appointed union delegate for a few years with respect to safety issues. He also worked with the Sydney Waterfront First Aid Service on a roster basis and from 1983 to 1988 he worked as a first aid officer. On several occasions he was involved in treating serious injuries and did not have any difficulty in carrying out his role there. Notwithstanding that he was working with ships he said he did not consider his job at the waterfront to be distressing and it was very different from his Navy service.
The Applicant was one of the employees on the picket lines at the time when the dogs and guards were brought in during the "Patrick's lock-out". He participated regularly in the protests and admitted that it was a stressful time. He said that he wanted to be a stevedore until he retired. After the Patrick's lockout, he accepted an offer of voluntary redundancy in September 1998 "because of therapy of the continuing knee problems and increased medication for the treatment of post traumatic stress disorder".
Subsequently the Applicant registered for job seeking assistance through Centrelink, which he did not receive until May 1999. In the meantime he had registered with the Salvation Army as well as the Commonwealth Rehabilitation Service for retraining. He applied for positions at Foster House as a Skills trainer, Accidental First Aid, Westmead Hospital and Mission Employment Services, but was unsuccessful. He believed this was due to his disability.
In cross-examination the Applicant denied that he told Dr Lewin (exhibit 1) that "he expects to receive superannuation pension until he is 55". He said he told Dr Lewin that when he turned 55 years he would look at his "options". Dr Lewin had also recorded that –
Mr Jehn told me he was experiencing increased difficulty at work….He put this down as symptoms in his knee….But also to an increasing rate of conflicts in the workplace.

The Applicant clarified that his reference to "conflicts" related to his PTSD and were not conflicts relating to the changes and sackings in the company after the "lockout". The Applicant explained that five days prior to his appointment with Dr Lewin he had undergone a knee operation. He was suffering intense pain and was taking Panadeine Forte. Notwithstanding that he was feeling quite defensive at the time of the consultation and he considered that he would have been more alert except for the medication he was taking.

The Applicant agreed that while working as a stevedore for 25 years he visited his medical practitioner only 2 to 3 times a year, mainly for flu, sprains, strains and other similar injuries. The only time he discussed his psychiatric problems was with Dr Phillips in 1997 when he reported having nightmares.
The Applicant's evidence was that he felt anxious quite often, which usually ended in fits of anger, kicking, screaming or hitting anything in sight. The Applicant also said he had memory problems for several years. He recalled having sleep disturbance ever since he returned from Vietnam, which was not bad until his children were about 16 years of age. He said that prior to that time it was not as bad because he was very busy with shift work and his children. The Applicant noted that whilst on the gunline tour he had only about two hours' sleep a day. He also admitted to a "fairly irregular" sleeping pattern as a waterside worker because of shift work. He said that in the last five to six years his sleeping problems have become worse.
The Applicant describes having interrupted sleeping habits. Normally, he consumes about eight to ten beers each night whilst watching television. Most times he falls asleep on the lounge at around 1 or 2 am, then wakes up after an hour or so and goes to bed. He said he sleeps for a maximum of about two hours, then wakes up, has a drink, watches television or puts the computer on for a couple of hours. He then goes back to bed again for a couple of hours and by daylight he is usually soundly asleep. He said he could not read due to poor concentration. He does not like the dark, so he usually leaves a light on in another room and has his bedroom door open. When asked why, he replied "I just like to have… an escape route, I suppose".
The Applicant said that quite often he experiences flashbacks and dreams. Current affairs on television tend to trigger these. Loud noises also remind him of his war experiences. He recalled having a "panic attack" when subjected to a fireworks display on Australia Day. He said he had to get out of the car and walk around and then sit down for about ten minutes before driving again. He explained that this was a usual reaction to triggers that reminded him of his service. However he said that there have also been times where his response has been to throw chairs at walls, and kick doors and tables. He said he has panic attacks, mostly at night, about once a month. He said that he avoids going to places where triggers may occur, such as RSL clubs and the ANZAC day march. He avoids watching war movies on television. He does not talk about his experiences with anyone. When the memories do intrude, he said he remembers "pretty vividly" and can recall conversations. Although he has trouble recalling most of his dreams, he does remember waking up with pins and needles in his fingers and experiencing breathing difficulties. He understands this to be part of his hyperventilation triggered by nervousness. Despite the fact that Dr Lewin (exhibit 1) recorded that the Applicant did not give any history of nightmares, in oral evidence the Applicant said that he had nightmares intermittently on quite a few occasions for a few years, prior to taking Prozac.
The Applicant has had a two week admission to St John of God hospital for alcohol and stress management. He was expected to have returned early in 2000 for another two weeks to complete the open course and for a further four weeks to complete the closed course.
Since his admission to St John of God Hospital, although the Applicant still drinks he said he no longer drinks full strength beer and is attempting to limit his intake to about six cans of beer a day. Up to a few weeks before the hearing, the Applicant said he was mowing the lawns at 8.30 am as an excuse to have a beer. This happened once or twice a week. In the recent past he was drinking up to a carton of beer a day and 20 beers on the weekend. During the weekdays, he would drink anything from six to twelve beers in order to sleep. This pattern has existed since returning from Vietnam, although he doubted that he drank as many as 20 cans a day then. He also drinks scotch and port. Prior to his admission to St John of God Hospital, about once a week he also used to drink half a bottle of scotch as well as beer. He also used to drink a bottle of port about once every 3 weeks.
The Applicant currently takes Prozac. Prior to that, he was on Nortryptiline and Allegron, prescribed by Dr Law, whom he currently consults about every four to six weeks. The Applicant said that Prozac does assist him, he no longer has fits of anger and is better able to cope. He is assisted also by relaxation tapes. He said that he wakes about 9 am, watches television and "potters" in the garden. Notwithstanding that he is uncomfortable being in crowds, he takes his wife shopping. Occasionally he visits his son's house or goes to a restaurant, but does not frequent pubs or clubs. The Applicant said that he ceased playing golf and soccer, coaching and refereeing soccer, breeding and showing dogs and taking long walks because of his knee condition. His only "release" now is the Internet.
The Applicant said that he does not relate to anybody apart from his wife and sons. He described his marriage as having its "ups and downs". He said that his wife was a very tolerant person who has "put up with a lot" from him. He has little contact with his extended family. He described his relationship with his children as being "terrific" now.
The Applicant's wife provided a statement to the VRB dated 20 June 1998 (T17, p91) which stated –
Since my husband came back from Vietnam I have noticed a change in him that has persisted and become worse over the past years. I have asked him about Vietnam and he refuses to talk about it.
His drinking has increased considerably and he now drinks heavily every day. I feel that his drinking has lost us our social life, as we in the past had quite a large circle of friends, and now we don't have any. He has frequent mood swings and becomes very irritable, abrupt and argumentative for no apparent reason.
He finds it very difficult to have a good nights sleep as he is up and down all night. He just wanders around the house smoking and when he is asleep his [sic] tossing & turning all the time.
I feel that he has trouble concentrating as I'm always telling him things that he denies I've said and his [sic] always forgetting things. Greg up untill [sic] 4 or 5 years ago was involved in sports & was a regular golfer who played at least once a week, and now has no interests at all in any activities, he blames all this on his knee.
The last few years I have tried to encourage him to go to the RSL club & try and meet some of his old friends & go to the Anzac Day reunion but he just refuses.

medical evidence

A medical examination of the Applicant was conducted for the Navy by Dr G Mendey on 6 April 1965 (T3, p18). Dr Mendey reported that the Applicant, then aged 19 years, was a "very anxious young man Pulse 84 RTA and BP 135/85".
A Navy medical record dated 9 September 1965 noted a diagnosis of "electrical phobia". It was also noted at that time that the Applicant liked the Navy and did not want to leave. On 21 September 1967 the Applicant was then referred to Dr Reynolds who diagnosed an obsessive and compulsive personality "reflected by his triple-checking his work" (T3, p15). It was noted in the referral document to Dr Reynolds that the Applicant had apparently consulted a psychoanalyst or psychologist in 1966, but that no report was available. It was also noted in the referral to Dr Reynolds that –
He is a very unhappy – unsettled rating – hates being at sea and cannot settle. He changed his rating from EMWE to N.A. mid. last year without any improvement.
On 4 October 1967 Dr Reynolds stated in his clinical notes (T3, p15a) –
It would seem that although this man is an obsessive and compulsive personality, it is not this which is worrying him: I misunderstood him. He merely wants to get out of the Navy and after much obsessional remissions, fears that his dislike of officers will reach such a pitch "I'll clock someone", one or other of the officers. There are no psychiatric grants [sic] for discharge.

Dr Reynolds had previously prescribed Nardil and Librium, which he discontinued at the second consultation.

A later Navy medical record noted "history of psychiatric disorder" (T3, p24). The date on the report is partly obliterated but the Applicant was aged 25 years at the time, and the Tribunal concludes that this record was made on 31 August 1971.
The Applicant consulted Dr Law, psychiatrist, on numerous occasions in 1997 and 1998. Dr Law recorded in his report dated 1 April 1997 (T5) that the Applicant often had intrusive memories and dreams of past war scenes and "other themes" and that he "harboured guilt feelings of 'having killed more than one hundred enemies during the war time with other mates'".
Dr Law noted that on 17 and 27 March 1997 the Applicant was "tense and distressed" and he became more apprehensive and restless having given an account of his war experiences and subsequent psychological feelings. Dr Law diagnosed the Applicant as suffering from moderate to severe PTSD "as a result of his past adverse war experiences". He noted the Applicant's symptoms to be "moderate" and "persistent". He gave a GARP rating of 30 at that time.
Dr Law reviewed the Applicant again on 6 June 1997 (T11) and reported that he continued to have feelings of "nervous tension, irritability, and he was often distractable". He noted that the Applicant felt depressed and his sleep was impaired. He added –
… also said he often remembered an incident, when his warship was asked by the Americans to bombard an enemy hospital …
He also informed me that his application for service pension was rejected, as 'no stressor was identified by the Department of Veterans' Affairs.
…
My opinion is that his clinical picture of having nervous problems is obvious. So if no stressor could be identified, then I will need to change the diagnosis to that of anxiety disorder which again is, in my view, service-related, but which diagnosis will not require a specific stressor of life threatening proportions to be identified.
After having examined the Applicant on 18 November 1997 (T17, p85) Dr Law reported that the Applicant had continued to suffer from "intrusive memory daytime and repeated dreams at night of past war scenes", and "flashbacks of some past war scenes on and off". At that time Dr Law reverted to his previous diagnosis of significant PTSD, in light of the additional information of stressors which the Applicant provided at the consultation, including recounts of the diver and cordite explosion incidents. Dr Law considered that those events were stressors of a life threatening nature to the Applicant.
In his reports dated 16 March 1998 and 22 June 1998 (T17, pp87-90) Dr Law noted a continuation of the Applicant's symptoms – flashbacks and nightmares relating to his past war experiences, he was anxious and dejected and still drinking about 7 to 8 bottles of beer a day. The Applicant had also reported to him that a display of fireworks in January 1998 precipitated a panic attack. Dr Law continued to be of the opinion that the Applicant suffered from moderately severe PTSD. He provided a GARP rating of 27.
Dr M Dent, consultant psychiatrist, examined the Applicant on 27 May 1999 and prepared a medico-legal report dated 1 July 1999 (exhibit A). He also diagnosed the Applicant with PTSD and opined that it was a direct consequence of his Vietnam service. He considered the Applicant's complaints satisfied the necessary criteria of the relevant Statement of Principles.
In respect of assessment, Dr Dent assessed 37 points using the relevant GARP table. He considered the Applicant required admission to a PTSD unit for more intensive treatment, but even after such treatment he did not consider the Applicant would be capable of working for more than 8 hours per week, wholly due to his PTSD condition. He also considered that the Applicant's alcohol abuse was "self-medication" for his PTSD.
Dr Lewin, psychiatrist, reviewed the Applicant on 4 May 1999 at the request of the Respondent and prepared a report dated 6 May 1999 (exhibit 1). He diagnosed the Applicant to have an adjustment disorder with mixed emotional features. He found no evidence of any depressive condition. He opined that the Applicant did not fulfil the diagnostic criteria for PTSD because of the absence of the first criterion relating to a stressor, but he also considered that the Applicant's history did not fulfil in detail the other criteria. He considered that the Applicant's "low grade reactive anxiety and depressive" state arose from his experience in his job at the waterfront. He concluded that, except for one, the incidents described by the Applicant did not fall into the period of operational service. In his opinion there was no psychiatric illness related to his war service. He stated –
One would have expected an experienced sailor, serving on a Naval vessel to have been shocked or distressed for a period of time, and to have gradually responded or recovered. There was no direct confrontation with life threatening danger. And I think it most unlikely indeed that his history would satisfy the diagnostic criteria for Post Traumatic Stress Disorder.

submissions

It was submitted for the Respondent that although the Applicant was a credible witness, he could have obtained some assistance from his reading of the history of his former vessel before producing the statement that he provided. It was not suggested that the Applicant had fabricated any of the events that he described, but it was argued that it was quite remarkable that he recollected some of the intricate details in the manner in which he did.

It was submitted for the Applicant that ultimately the Respondent is at large to take the view that it has taken that there exists no PTSD at all in this case. However, Counsel urged that the Applicant does suffer from PTSD; the symptomatology of the Applicant's PTSD has existed over a significant period, it has worsened since he gave up work, and it has had a significant impact on him. The two week intensive course at St John of God Hospital for PTSD further points to the conclusion that he suffers from that condition. Moreover, Dr Dent has also diagnosed PTSD and this is consistent with the award that was made by the Respondent to cover the Applicant for treatment for PTSD. With respect to Dr Lewin's contrary conclusions, it was submitted that his opinion was not the only one to be considered by the Tribunal.
Counsel for the Respondent submitted that Dr Laws' reports were of limited assistance to the Tribunal, in that he was prepared to change his diagnosis to suit the situation. Overall, it was submitted that Dr Lewin's opinion should be preferred when evaluating the medical evidence.
Both parties made detailed submissions with respect to each section of Instrument No.15 of 1994 regarding whether the Applicant satisfied the relevant criteria for PTSD. In essence, the Applicant's submission was that he experienced several stressors during his war service which led to the development of PTSD. It was submitted for the Applicant that he was exposed to several stressors during the gun line tour, to which he reacted strongly. Counsel conceded however that on the Applicant's evidence, he coped with some of the stressors which he identified having occurred during his service.
It was submitted for the Applicant that there were two factors that had to be met in order to satisfy that he had experienced a stressor; the threat, and the reaction to that threat. It was submitted that the threat must be subjectively perceived. It was conceded for the Respondent that it was likely the Applicant sustained intense terror, helplessness and fear in accordance with the description provided in the Statement of Principles. However the material before the Tribunal remained vague in its details, straining to satisfy the phrase "experienced, witnessed or was confronted with an event" in the Statement of Principles.
It was submitted for the Respondent that the events which caused the Applicant trouble as described by him were not ones that he "experienced" or "witnessed" or was "confronted with" in accordance with the ordinary meaning to be associated with those words. Although that particular phrase has not been authoritatively construed, it was submitted that the phrase suggests a quite powerful level of immediacy, that one is actually faced with a particular event, and simply being informed about an event that someone else has witnessed could not be the intended meaning.
In reply, Counsel for the Applicant submitted that it would be both reductive and dangerous to read down the words "confronted with" to merely face-to-face dealings. Such an interpretation would result in a structural bias and in any event, it was submitted that the Statement of Principles does not require such an interpretation. In essence, the stressor is a subjective response, where confrontation could constitute "being told" about a particular event.
Accordingly, it was submitted by Counsel for the Applicant that the diver incident constituted a stressor for the purposes of the Statement of Principles. The Applicant's evidence was that he was very frightened, and that he and the others feared for their lives because they thought they had been hit. The fact that he had not been hit was irrelevant. SimiIarly, with respect to the hospital bombing incident, although the Applicant did not express "helplessness or horror" as required by the Statement of Principles, the meaning ascribed to his responses was consistent with those emotions. In any case, it was submitted that with regard to the incident of killing a spotter and the helicopter accident, the Applicant did explicitly describe feelings of "helplessness". With respect to the Viet Cong prisoners, it was submitted that the Applicant's response to news of their assassination again amounted to a response that satisfied the Statement of Principles.
In respect of the hospital bombing, cordite explosion, spotter and diver incidents, it was submitted for the Respondent that the Applicant was not "confronted" with any of those events, because being informed about an event which has not been experienced personally did not fit within the definition of confronting an event for the purposes of PTSD. As far as the incident involving the Viet Cong prisoners was concerned, the emotion that was expressed was of disgust and disappointment, emotions outside the scope of "intense fear, helplessness or horror" as required. Furthermore, the Applicant had not witnessed this event either.
Overall, it was argued for the Respondent that neither of the reactions described by the Applicant met the level of experience that is described in subs. (ii) of para. 4(a) of the Statement of Principles which speaks of "intense fear, helplessness or horror". It was submitted that "intense" actually describes all three nouns that follow it and that there must exist a very profound reaction on the part of the person who has either experienced, witnessed or confronted the event.
With respect to para. 4(b) of the Statement of Principles, it was submitted for the Applicant that he met subs. (i), (ii), (iv) and (v). Counsel for the Respondent submitted that neither the evidence of the Applicant nor the medical evidence suggested that this was the case. It was conceded that the most persistently re-experienced event was the hospital bombardment. However the Applicant's reaction to that was focused more on the shameful and disgusting aspects of it. A similar response was conveyed with respect to the Viet Cong surrender. As the Respondent understood the Applicant's evidence, he did not claim recurring recollections of either the diver incident or the cordite explosion. Furthermore, he could not remember the content of his dreams. There was also no evidence of intense psychological distress at exposure to internal or external cues that resembled an aspect of a traumatic event.
In relation to para. 4(c), Counsel for the Applicant submitted that the Applicant clearly satisfied subs. (i) and (ii). It was clear that the Applicant was someone who avoided discussing events for nearly 27 years, and continues to be reluctant to do so now. It was also evident on the evidence, that he avoided activities associated with his military service. It was submitted the Applicant also satisfied subs. (iv), (v) and (vi).
It was submitted for the Respondent that the whole purpose of para. 4(c) is to look for avoidance of stimuli so that the person can avoid re-experiencing horrific events, emotions and recollections which were associated with them. In this case, feelings of shame, disgust and disappointment constituted the overwhelming impression for avoidance of stimuli, emotions that are not required by the Statement of Principles. In reply, Counsel for the Applicant noted that "disgust" was only one of the several emotions felt by the Applicant. With respect to subs. (iv), it was submitted for the Respondent that the Applicant was quite frank in admitting that he gave up the relevant activities because of his knee condition, and that there was no evidence that the departure from previous activities were associated with his alleged PTSD. In regard to subs. (vi), it was submitted that the Applicant clearly expressed warmth towards his wife and children, and therefore did not satisfy that criterion.
In relation to para. 4(d), it was argued for the Applicant that he presented with all of the factors, except for hypervigilance. Counsel for the Respondent highlighted that the Applicant had sleeping difficulties arising from his shift work for 25 years and one could not discern a particular sleeping problem linked with his PTSD. The Respondent conceded the Applicant had given evidence demonstrating irritability and outbursts of anger. However, with respect to his problems concentrating, it was submitted that this was linked to his alcohol abuse. In relation to subs. (v), it was argued that being woken from sleep by loud noises is a fairly commonplace observation in human behaviour, and the phrase "exaggerated startle response" is to mean that one experiences a far more exaggerated reaction than others.
With respect to para. 4(f), it was submitted that the Applicant has managed 25 years of good occupational performance without any intervening distress, and that he only surrendered his occupation after a knee injury and the changes arising from the "Patricks' lockout". It was argued that the Applicant's psychiatric problem in the nature of an adjustment disorder, was far more likely to have arisen from the difficulties in the workplace and the enormous stress that would have been involved in the changes in the stevedoring industry.
In relation to whether the Tribunal had power under the head of this application to change the diagnosis when it was so specifically claimed as PTSD, it was submitted for the Applicant that if the Tribunal was satisfied that the Applicant suffered instead from another type of anxiety disorder, then a finding to that effect could be made. Similarly if the Tribunal was to make a diagnosis of PTSD with Alcohol Abuse under the head of this application, that finding was also open for the Tribunal to make. However, Counsel for Applicant also suggested that it may be problematic for the Tribunal to diagnose PTSD with Alcohol abuse as that would raise the question whether it should be separately diagnosed.
It was submitted for the Respondent that a substance abuse claim could not be dealt with by the Tribunal in these proceedings. It appeared that alcohol abuse was symptomatic of PTSD. In any case, it had not been through a review process and had not been claimed in the first instance.
consideration of evidence and findings of fact
The Tribunal notes the submissions of the Respondent that the Applicant should be accepted as a truthful witness but that his evidence might have been influenced by his reading of the history of the ship in which he served in Vietnam. None of the doctors whom he saw for the purpose of these proceedings questioned his genuineness, which the Tribunal considers significant. The Tribunal is reasonably satisfied that the evidence he gave is a reliable account of his experiences while on operational service, notwithstanding the possibility that he has been influenced by what he has read. The Tribunal has also taken into account the long period between the Applicant's service and his first presentation to a doctor about his psychiatric condition in 1997 at the instigation of the Vietnam Veterans' Association.
Applying the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 160 ALR 17, the Tribunal must be reasonably satisfied that a disease or injury existed before proceeding to apply the reasonable hypothesis test provided in ss 120(1) and (3) of the Act. That the Applicant suffers from a psychiatric illness is not at issue, although the diagnosis of the condition from which he suffers is at issue. The Tribunal interprets the effect of the Full Court decision in Cooke to require that it must be reasonably satisfied that the Applicant suffers from PTSD and not just that he suffers from a psychiatric condition. As this is a matter to which Instrument No. 15 of 1994 applies, then in effect in order for the Tribunal to find that the Applicant suffers from PTSD for the purpose of the Act he must meet the criteria set out in that definition (see para 8 supra). Thus, the Tribunal must be satisfied, on the balance of probabilities, that the Applicant meets the description of PTSD by meeting each of the five criteria specified in the Statement of Principles: Re Powell and Repatriation Commission [2000] AATA 385.
The Tribunal notes the psychiatric consultations reported in the Naval medical records which the Applicant had prior to his Vietnam service, when he was diagnosed as having an obsessional and compulsive personality. The Tribunal also notes the opinion of Dr Law who considered the service medical records, that this diagnosis referred to his personality and that is to be distinguished from a personality disorder, which is a psychiatric condition. Furthermore, the Tribunal notes the history taken by Dr Lewin about the Applicant's childhood, in comparison to that taken by Dr Dent. The Tribunal finds Dr Lewin's history to be inadequate. The experiences of the Applicant during his childhood, and the fact that he had an obsessional and compulsive personality prior to his operational service, causes the Tribunal to be reasonably satisfied that the Applicant was likely to be more vulnerable than most to the stresses of operational service. Dr Lewin appears not to have taken this into account when he wrote (exhibit 1) –
One would have expected an experienced sailor, serving on a Naval vessel to have been shocked or distressed for a period of time, and to have gradually responded or recovered. There was no direct confrontation with life threatening danger and I think it most unlikely indeed that his history would satisfy the diagnostic criteria for Post Traumatic Stress Disorder.

The Tribunal must consider the effect that the Applicant's service had on him personally. Dr Lewin's assumptions about "an experienced sailor serving on a Naval vessel" take no account of individual vulnerability.

Dr Law, the treating psychiatrist, has seen the Applicant on many occasions since 1997, and has given specific attention to the issue of whether or not, clinically, the Applicant suffers from PTSD or a generalised anxiety disorder. He has concluded, on the basis of his clinical assessment on a number of occasions, the Applicant suffers from PTSD. Moreover, the Applicant has had hospital treatment in a special program for PTSD sufferers, and the discharge summary provided by Dr Schmidtman at St John of God Hospital dated 10 November 1999 (exhibit B) records a diagnosis of "chronic post traumatic stress disorder alcohol dependence". The Tribunal would expect that if there was any doubt about the diagnosis it would have been raised within the clinical treatment context, but the Applicant's treating doctors appear to have no problem with the diagnosis of PTSD. Additionally, the Respondent has accepted responsibility for the provision of medical treatment for PTSD. The Tribunal also notes that Dr Dent, who provided a medico-legal report for the Applicant (exhibit A), diagnosed PTSD. The only medical challenge to the diagnosis of PTSD has been made by Dr Lewin (exhibit 1) who diagnosed "adjustment disorder with mixed emotional features". Dr Lewin based his opinion on an assumption that there was only one incident which the Applicant claimed to be stressful that was related to his operational service. That is not consistent with the evidence before the Tribunal, nor is it consistent with the Tribunal's findings. Having considered all this evidence however, it must be put to one side, while the Tribunal considers whether the evidence meets the description of PTSD in the Statement of Principles.
The Tribunal accepts the Applicant's evidence that he encountered a number of stressful incidents, but this is not sufficient of itself to meet the criteria set down in the Statement of Principles in respect of "experiencing a stressor". The Tribunal finds that the hospital bombing incident does not comply with the definition in that his response to it was one of guilt, anger and upset – it did not involve intense fear, helplessness or horror.
Similarly, the alleged assassination of the Viet Cong prisoners caused the Applicant to be "angry" and "guilty", notwithstanding that this event was not caused by him personally. For the same reasons, however, it does not meet the criteria set down in the Statement of Principles as "experiencing a stressor" for the purpose of causing PTSD. The Tribunal rejects the submission for the Applicant that, for example, his response to the news of the assassination of the prisoners, being one of guilt and anger, "amounted to a response that satisfied the Statement of Principles". Guilt and anger are emotions quite different from fear, helplessness and horror. The Tribunal is required to conform with the words in the Statement of Principles. It cannot transpose words relating to other emotions for those in the Instrument.
The Tribunal finds that the spotter incident was different. The Applicant said that –
We were called upon to give support to troops in close contact with the enemy. We bombarded the coordinates given and could hear small arms and our shells exploding over the radio. The radio went dead. The spotter was calling fire on his own position and I was told he was killed. (Tribunal's emphasis)

Quite understandably, the Applicant said in his oral evidence that he felt "helplessness". The Tribunal finds that the spotter incident was one in which the Applicant was confronted with an event that involved actual death of another person and his response was a feeling of helplessness. Hence, the incident met the criteria for "experiencing a stressor" in the Statement of Principles. However, there is no evidence before the Tribunal that this incident in particular has been involved in para. 4(b) and 4(c) of the Statement of Principles; that is, the event is not persistently re-experienced and there is no evidence of persistent avoidance of stimuli associated with that trauma.

In respect of the helicopter pilot incident, it is apparent from the Applicant's evidence that he was on the ship at the time and was aware of the incident. He heard the fear in the pilot's voice which he said "I will never forget". He described feeling "helpless". The Tribunal finds that this incident meets the definition of "experiencing a stressor" in the Statement of Principles. It was a traumatic event which he experienced insofar as he was able to hear the voice of the pilot and it apparently involved the death of the pilot.
It was submitted for the Respondent that the word "intense" in the phrase "intense fear, helplessness, or horror" qualified to all three nouns. Although there is an ambiguity about the phrase, the interpretation provided for the Respondent is certainly one that can reasonably be made, and it is the preferable interpretation insofar as it would be difficult to justify requiring intense fear, but not intense helplessness or intense horror. The Tribunal interprets that the word "intense" is there to indicate that any of these three emotions were to be of a high degree. While the Applicant did not qualify the degree of helplessness which he felt, the Tribunal finds that in the context of the particular incident and the fact that the Applicant said "I will never forget the fear in his voice", it is reasonable to find, and the Tribunal so finds, that the Applicant's feeling of helplessness was intense. Therefore, the Tribunal finds that this incident constitutes a "stressor". The Applicant also meets para. 4(a) and subs. (i) of para. 4(b) of the definition of PTSD in the Statement of Principles.
The Tribunal notes the evidence in the publication by Ian Burnside, the Captain of the ship on which the Applicant served when "on one calm night off the DMZ we thought we had been attacked [by an underwater swimmer] and withdrew to make a bottom search". The Tribunal finds that this is consistent with the Applicant's evidence about waking to a loud noise (presumably a depth charge) and he and others thought they had been hit and rushed on deck. The Tribunal finds that this incident, given the Applicant's vulnerable personality and level of anxiety prior to the commencement of his operational service, also fits that of "experiencing a stressor", in that he feared for his life and he continues at present to be startled by loud noises, including sweating, hyperventilating and shaking. The Tribunal is of the view that as well as taking into account the nature of the stressor (which is an objective assessment) it must also consider the reaction that the Applicant had to that stressor (which essentially is subjective). Whether or not others in the same situation had the same reaction is not at issue. Thus, the Tribunal finds that this incident also can be included as a stressor which in turn enables him to meet the definition of PTSD in the Statement of Principles; that is, he satisfies para.4(a) and subs. (iv) of para. 4(b).

Moving now to para. 4(c), the Tribunal finds that the Applicant has persistently avoided stimuli associated with that trauma in that, on the evidence of Dr Dent in respect of subs. (i) the Applicant has avoided thinking about the trauma, and indeed when he was required to recall it for the purpose of his VRB hearing his symptoms were exacerbated (exhibit A). On the Applicant's evidence and taking into account his wife's statement (T17, p91) the Tribunal finds in respect of subs. (iv) that the Applicant has a markedly diminished interest in participating in significant activities. Additionally, he meets the criterion in subs. (v) in that, apart from his immediate family, he has detached himself from all other relationships. As the Applicant meets three of the factors in para.4(c) he has complied with the requirements therein.
In respect of para. 4(d), the Applicant has considerable difficulty in sleeping, he is irritable, he has difficulty in concentrating, he is hypervigilant and has exaggerated startle responses. Therefore he meets the requirements in para. 4(d). His condition has occurred for more than one month, and indeed it has been persistent for a number of years. His condition causes clinically significant distress in his social functioning which indeed now requires medication and psychotherapy. Therefore he meets the requirements of para. 4(e) and 4(f). Therefore, the Tribunal is reasonably satisfied that in accordance with the definition of PTSD in the Statement of Principles, the Applicant suffers from PTSD.
Before leaving the issue of how the Tribunal reached its decision that the Applicant meets the definition of PTSD in the relevant Statement of Principles, the Tribunal finds that the Applicant has had a heavy drinking habit since the time of his operational service which on the evidence before the Tribunal is a symptom of his PTSD. There is no evidence before the Tribunal to lead to a finding that the Applicant meets the factors set out in Instrument No. 5 of 1994, or in the subsequent Statement of Principles regarding Alcohol Abuse. There is some argument as to whether the condition of Alcohol Abuse could or should be considered as a separate condition under the head of this application. The Tribunal does not propose to deal with that issue, but merely makes the finding that the Applicant's heavy drinking is a symptom of his PTSD.
In passing, the Tribunal considers it appropriate to comment that while the Applicant's treating specialists apparently and appropriately had confidence in their diagnosis of PTSD, before the Tribunal could be reasonably satisfied that the Applicant met the legal definition of PTSD as set out in the Statement of Principles, a seemingly tortuous exercise has had to be undertaken in rigidly applying the criteria set out in the Statement of Principles. This matter epitomises the problems in using a legal instrument modelled specifically on DSM-IV as a diagnostic instrument designed to be used only as an aid to diagnosis in clinical practice, and is an issue that the Repatriation Medical Authority may wish to consider further.
The Tribunal must now determine whether a reasonable hypothesis has been raised linking the Applicant's PTSD with the circumstances of his operational service. The Tribunal is required to follow the principles established by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, which stated (at 97, 98) –

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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

The Tribunal finds that on the material before it an hypothesis has been raised that the Applicant's experiences during his operational service in Vietnam contributed to the later development of PTSD. The Tribunal finds, pursuant to s 120(3) and 120A of the Act, on applying Instrument No. 15 of 1994, which on the Full Federal Court decision in Keeley (supra) is the relevant Statement of Principles to be applied in this matter, that the hypothesis is reasonable. The Tribunal cannot be satisfied beyond reasonable doubt that the Applicant's psychiatric incapacity did not arise from the stressful events which he encountered during his operational service. The only evidence before the Tribunal which goes to the test in s 120(1) is that of Dr Lewin. The Tribunal found Dr Lewin's evidence to be based on a history that was not adequate or accurate, and therefore little weight can be given to his opinion. Notwithstanding Dr Lewin's opinion that the Applicant's psychiatric condition arose from the events in his employment prior to his ceasing work with Patricks Stevedores, an opinion which the Tribunal finds he did not justify, this does not provide evidence to the requisite high standard of proof, that it was this experience and this alone which caused his psychiatric condition.
The Tribunal therefore sets aside the decision under review and decides that the Applicant's condition of PTSD is war caused pursuant to s 9 of the Act, and that pension is payable to the Applicant in respect of this condition with effect on and from 9 January 1997.
The Tribunal notes that there is some documentary evidence before it which goes to the issue of assessment of the rate of pension payable to the Applicant, but as the evidence did not deal comprehensively with all higher rate issues, the matter will be remitted to the Respondent for assessment.

I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr J Campbell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  12 November 1999
Date of Decision  19 June 2000
Counsel for the Applicant        M. Vincent
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    N/A
Advocate for the Respondent Z. Mijanovic, Dept. of Veterans' Affairs