Riley and Repatriation Commission - [2001] AATA 418

DECISION AND REASONS FOR DECISION [2001] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1230

VETERANS' APPEALS DIVISION       )
           Re      Donald William RILEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date18 May 2001
PlaceSydney

Decision       The Tribunal – 1.   Varies the decision under review, being that part of the decision of the Repatriation Commission dated 24 August 1995 that refers to "Chronic Depressive Illness with Secondary Alcohol Dependance (sic)" by changing the diagnosis to read "Generalised Anxiety Disorder" and "Alcohol Dependence", and 2.   Affirms that part of the decision under review, as varied.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – operational service – whether reasonable hypothesis that anxiety disorder related to war-service – whether reasonable hypothesis that alcohol abuse related to war-service - whether reasonable hypothesis was dispelled beyond reasonable doubt

Connors v Repatriation Commission (2000 59 ALD 61
Johnston v Commonwealth of Australia (1982) 150 CLR 331
Re Howe and Repatriation Commission [1999] AATA 1006
Re Hughes and Repatriation Commission [2000] AATA 571
Re Mackay and Repatriation Commission [2000] AATA 483
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Wedekind [2000] FCA 649
Repatriation Commission v Yates (1995) 38 ALD 80.

Statement of Principles Instrument No. 48 of 1994 (Generalised Anxiety Disorder)
Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

Veterans' Entitlements Act 1986: ss120(1), 120(3), s120(A)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 24 August 1995 that refused the claim of Donald William Riley ("the Applicant") in respect of a condition diagnosed by the Respondent as chronic depressive illness with secondary alcohol dependence. That part of the decision was reviewed by the Veterans' Review Board ("the VRB") on 7 April 1998 and affirmed. The Applicant was notified of the VRB decision by letter dated 22 July 1998. He then lodged an application for review by this Tribunal on 2 September 1998.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

Reports of Dr Peter Klug, psychiatrist, dated 2 March 1999 and 30 March 1999 (exhibit A);
DSM-IV Diagnostic criteria for Separation Anxiety Disorder (exhibit B);
Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75, by Major General R F Mohr (exhibit C).

The following documents were tendered on behalf of the Respondent –

Report of Dr Robert D Lewin, psychiatrist, dated 17 May 1999 (exhibit 1);
Reports of Mr Brendan O'Keefe, historian, dated 1 February 2000 (exhibit 2) and 1 June 2000 (exhibit 3);
Clinical record of R Stannard, psychologist, in respect of Applicant, dated 21 July 1966 (exhibit 4).

The Applicant gave oral evidence at the hearing. Oral evidence was also given by Dr Klug called by the Applicant, and Dr Lewin called by the Respondent.
The Applicant was born on 24 August 1946. He enlisted in the RAAF on 15 June 1965 and was discharged on 3 July 1968 on the basis that he was "temperamentally unsuited to service life" (T3). He had two periods of operational service. The Department of Defence identifies these as being from 5 May 1966 to 3 November 1966 in Ubon, and three flights to Vietnam between 8 and 11 June 1967. The Tribunal questions whether the Applicant's Ubon service continued until 3 November 1966, as the service medical records show that he was medivaced from Ubon on 30 June 1966 and arrived in Richmond (Australia) on 6 July 1966 (T3, p28).
As the Applicant had operational service, and as the claim relates to that operational service, the matter falls for consideration pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). The Applicant lodged his claim after 1 June 1994 and therefore s120A of the Act also applies. Relying on the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 31 AAR 150, the Applicant sought to rely on his accrued rights. Therefore the relevant Statements of Principles to be applied in this case are those that were applicable at the time the primary decision was made, being Instrument No. 48 of 1994 for Generalised Anxiety Disorder and Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence.
evidence
Applicant
The Applicant said that at Ubon they were accommodated in huts situated about 200 metres from the airstrip. He said that aircraft involved in bombing missions were taking off or landing every four minutes, throughout a 24-hour period. The Applicant was deployed as an aerodrome defence guard. He said that Vietcong terrorists were found getting through the fence to the airstrip while attempting to throw dynamite at phantom bombers. He said this made him feel "pretty on edge". He said there was a fuel dump close to their huts and terrorists used to throw rocks there at night time.
The Applicant referred to an occasion during an 'alert' when he and others were "in the trench" and he was ordered to leave the trench to get drums of water. He indicated that when the 'alert' changed from 'amber' to 'red' he had failed to get the water before he entered the trench. When he retorted "what if I get shot?" he was advised to the effect that he was dispensable because of his mustering. He said he was in the trench for seven or eight hours and "just kept guard". He also said "when the red alerts went on we were out guarding perimeters of a night time". He said that he never knew when an amber alert would occur and at those times "we would get everything ready". He said there was an 'alert' "a couple of times" while he was at the base. The Applicant said he was also required to unload injured and dead soldiers from aircraft returning to the Ubon base.
The Applicant said he suffered a bout of dengue fever while in Ubon. He said he was in hospital for a week, unconscious, and had been told "we nearly lost you". He said "a couple of days after that" he was medivaced to Butterworth and back to Australia because of "nerves". He also said he did not remember much about it. He said he was disappointed and upset that he was not allowed to stay at Ubon.
On return to Australia the Applicant was in hospital for a few days and then worked at the hospital for three months while continuing to receive treatment as an outpatient. When asked how he felt when he left hospital he said "it was good, I was with my mates …". He was later deployed to do clerical work and work as a runner, and in 1968 he went to Darwin on an exercise.
The Applicant was also involved as an assistant loadmaster doing trips out of Butterworth to Van Rang and Vung Tau delivering cargo and ammunition in 1967. He said that they had four Phantom bombers as fighter escorts during those visits. He found these flights to be "a bit worrying". He said that during their visits there was a flurry of activity to "get out of the place quick".
After his discharge from the Air Force the Applicant worked for a short time in a poultry farm and then worked at the RAAF Base at Richmond in the Department of Works for the next 28 years until he was made redundant in 1998. After undertaking a cleaner's course he then commenced work as a cleaner at the RAAF Hospital at Richmond, which has continued.
The Applicant said that he commenced seeing Dr Ahmed, a psychiatrist, a few years ago, having been referred by the Vietnam Veterans' Association. He said that in about 1987 or 1988 he noticed he was crying for no reason. From time to time he feels "down in the dumps", but he takes medication which controls his symptoms.
The Applicant said that prior to joining the Airforce he did not drink much. After he enlisted he and his mates "used to go into town and used to play up a fair bit" when they had weekend leave. He said he was drinking full strength beer at the time, and used to get drunk.
When he went to Ubon he drank after work. After a few beers he would start to drink vodka and orange. He said "in the end I was leaving the orange out". He said he drank about half a bottle of vodka a day. He said he drank because "there was nothing else to do really". He said he drank because he "was just trying to be one of the boys". He did not associate his drinking in Ubon with worry. When they went to town when off duty he drank Mekong (local spirits) "a fair bit". He also said he had about five bottles of vodka stored in his locker because he could not get to town every day.
The Applicant said that when he returned to Australia his drinking increased, but he did not know why he was drinking more. He said that when it was dinnertime "the beer would just open up" and he spent most of his time drinking until closing time at 10 pm. He said he spent most of his time drinking. His marriage broke up about 1990 and after that his drinking increased further. After his job at the Department of Works ceased in 1998 he said his drinking increased further. However, since he started work as a cleaner at the hospital he has to start work at 5 am, so he now drinks only light beer, normally "half a dozen beers" at lunchtime when he finishes work, and at night he has "a couple of rum and cokes". Prior to that he estimated that he drank about 15 schooners of full-strength beer a day in addition to rum. He continued that pattern of drinking until he was advised by his doctor "a couple of years ago" to give up drinking. He said he has not been conscious that he drinks because of worry.
Dr Klug
Dr Klug, in his report of 2 March 1999 (exhibit A), diagnosed "probable anxiety based symptoms from the time of his father's death and probably exacerbated by his experiences in Vietnam". He also noted that alcohol dependence, depressive disorders and anxiety disorders are intimately related to each other. Dr Klug noted in his report of 30 March 1999 (exhibit A) that he had difficulty in forming a diagnosis but in referring to the DSM-IV he considered the Applicant suffers from a "possible" Generalised Anxiety Disorder. Dr Klug stated –
It is my view that he had pre-existing problems but that his war experiences including his dengue like illness are a substantial contributing factor to his anxiety based symptoms.

In cross-examination Dr Klug said "I think there is a likelihood that he has" a Generalised Anxiety Disorder. In cross-examination Dr Klug was asked to identify the onset of the Applicant's Generalised Anxiety Disorder. He said –

It seemed to me … that he was stressed in Ubon and … that he also had an episode of being transferred back to Australia with what was diagnosed as Dengue fever. Now, I think that's a stressful event especially for somebody who may not fully understand the nature of what he's got. Dengue fever is a mosquito borne viral illness. People don't generally die from it but it is a very debilitating illness for an extended period of time. You develop a high fever, rashes, joint pains, headaches and it's relapsing so you have a bout of it, it goes, you have another bout of it, it goes and then you are in a rather debilitated state which takes, even with good care, at least about, you know, three months' recuperation. I would regard that as a reasonably stressful event. So I suspect that going to Vietnam (sic), being stressed and having his pre-existing vulnerabilities, being shunted back to Australia with an illness he may not fully have understood and then, I believe … going back to Vietnam, would have been a stressful series of events for him.

Dr Klug said in his oral evidence that the Applicant had a predisposition to anxiety and anxiety disorders but that does not mean that at that point he had a disorder. Causative factors must then be superimposed on the background of a predisposition. He said that the Applicant had a predisposition because of his dependent traits, his dull average intelligence and possibly also biological factors. However, despite his intermittent anxiety from an early age he did not have a "disorder". While the Applicant was on overseas service he was exposed to a variety of stressful circumstances and events, and from that time "he developed worse anxiety than he had and in retrospect probably what we would now diagnose, using our systems of diagnoses, as a Generalised Anxiety Disorder". He said the Applicant's service was a substantial cause of his anxiety in combination with his predisposition.
Dr Klug also said the Applicant suffered from alcohol dependence that had been in existence for many years.
Dr Ahmed
In his report dated 24 June 1997 (T9) Dr Ahmed, psychiatrist, noted that he had treated the Applicant since 21 August 1995. He opined –
… it is quite obvious that his active service during Ubon when he developed a Dengue-like virus and anxiety state, due to the stresses involved, which made him vulnerable to contracting the Dengue-like virus and also anxiety.

Dr Lewin

Dr Lewin, psychiatrist, in cross-examination, agreed that the Applicant's symptoms met the criteria in clause 4 of the Statement of Principles for Generalised Anxiety Disorder. He also conceded the Applicant had been abusing alcohol and that he was dependent on alcohol.
Dr Lewin agreed in his oral evidence that the Applicant had a "personality vulnerability", as opposed to suffering from specific diagnoses such as an alcohol problem, an anxiety problem and a depressive problem. He said the symptoms of this "personality problem" are seen in a pattern of difficulty in coping. In particular, a pattern of anxiety and depressive symptoms that come and go from time to time, and also symptoms of alcohol abuse. He said the Applicant's "bit below average intellectual ability" would magnify the effect of the personality vulnerability.

Historical evidence

Documentary evidence was obtained by the Respondent from Mr Brendan O'Keefe, historian (exhibits 2 and 3). Mr O'Keefe noted that guards provided security against guerrilla attack by patrolling the base's perimeter defences, as well as an area outside the perimeter extending seven kilometres to the north of the base. He noted that as a defence guard the Applicant would have been involved in this work. On the basis of Mr O'Keefe's research he found only one reference to an "untoward incident" during the time the Applicant served at Ubon. This incident occurred on 26 June 1966 when the Contingent was placed on increased alert. Mr O'Keefe also noted that on 4 July 1966, a few days after the Applicant was medivaced out of Thailand, the Ubon base was closed for security reasons on the basis of 'information received' and the airfield defence guards were placed on full alert. Later in July Ubon was again placed on alert.
Mr O'Keefe found no report of a Phantom aircraft having been blown up by guerrillas, and noted that if such an incident occurred it would have been noted in US and Australian reports and in subsequent histories dealing with the American and Australian presence at Ubon.
Mr O'Keefe noted that it was possible that the bodies the Applicant reported seeing at the Vung Tau airfield were those of VietCong guerrillas who had been killed at some other location and whose remains were later brought to Vung Tau.
In his supplementary report (exhibit 3) Mr O'Keefe noted the content of the Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 (exhibit C) and noted that the Review stated "no danger eventuated in the sense that there were no actual combat engagements" and that "so far as is known they were never engaged in an exchange of fire".
Included as an attachment to Mr O'Keefe's report was an extract of a publication by Alan Stephens entitled Going Solo: The Royal Australian Air Force, 1946-1971, (Canberra, AGPS, 1995) (attachment to exhibit 2), the Tribunal notes the following passages under a heading "Ubon" –
In the meantime, the situation at Ubon became more complex. In February 1965 the RAAF's senior officer at the base was asked by the USAF in Thailand whether the Sabres would fly top-cover for American aircraft engaged in search and rescue missions in Laos, a request which was rejected. The following month the officer commanding Butterworth, Air Commodore N.P Ford, visited Ubon and was asked by an American brigadier general from the Thirteenth Air Force about the likely RAAF reaction to the USAF's intention to deploy twelve ground attack F-4 Phantoms and about five hundred personnel to Ubon, a proposal about which, at the time, the Thais 'knew nothing'.
The impending arrival of USAF strike aircraft raised a number of questions. Two important organisational matters had to be resolved: would the RAAF still manage Ubon, and who would provide the base support services? Chief of the Air Staff … Hancock proposed a partial answer in a personal message to the commander-in-chief of the Pacific Air Forces in April 1965, suggesting that the RAAF should retain control of Ubon with the American squadrons becoming fully independent, self-supporting lodger units. As Hancock elaborated, with the RAAF nominally in command, the base would at least retain the veneer of being a Seato establishment. More complex still was the status of the Sabres, as it seemed the rationale for the RAAF's presence at Ubon would fundamentally change. No.79 Squadron would be defending not only Thai territorial integrity under the Seato agreement, but also American forces which would be prosecuting an American war against North Vietnam. Back in Canberra, air staff planners concluded that the North Vietnamese could justifiably regard No.79 Squadron as part of the American bombing campaign, a conclusion which indicated the possibility of limited war with communist China.
Presumably because of the impending changes at Ubon, the RAAF found its offer to join Thailand's integrated air defence system was now accepted. No.79 Squadron officially became part of the system from 25 June 1965, after which the Australians maintained two aircraft armed with Sidewinder missiles and 30-millimetre cannons on 'Alert 5 Status' from dawn till dusk, seven days a week. That change in the squadron's role increased substantially the extent of the operational control exercised by the USAF. Notwithstanding any Air Board directives, real authority over what the RAAF did rested with the USAF director of operations at Don Muang, who alone decided whether one of the integrated air defence system's fighters would be scrambled, and who also could declare an intruder aircraft 'hostile' and therefore liable to destruction. RAAF commanders could override the director of operations only when weather conditions at Ubon were marginal and therefore impacted on flight safety.
…
The first squadron of Phantoms flew in to Ubon on 7 April 1965. Eventually the base became the home of the USAF's Eighth Tactical Fighter Wing and more than 3500 Americans involved in the massive bombing campaign against North Vietnam known as Operation Rolling Thunder. Missions were flown from Ubon around the clock; on occasions, seventy-five armed Phantoms would take off in just over an hour. While the Phantoms attacked the North, No.79 Squadron remained responsible for the air defence of Ubon and the surrounding area. In other words, the RAAF's Sabres were defending the USAF at Ubon and had therefore become de facto participants in the Vietnam War.
In the Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 (exhibit C) under a heading "Consideration" it was reported –
The period after June 1965 until withdrawal of the RAAF Squadron in August 1968 is, however, a different matter. Four fundamental changes to the original directive and rules of engagement were made in June 1965 which placed the RAAF Contingent Ubon on a very different footing than in earlier years as follows:

Operational control passed from Canberra to the AOC at Don Muang and the airborne pilot became the final arbiter of when to 'open fire'.
Deletion of the words 'attacking with weapons' meant that the pilot could shoot first and not have to wait till the enemy aircraft had first attacked Thailand or friendly forces.
All friendly forces were at last integrated into one cohesive system for the air defence of Thailand and Ubon.
Maintenance of 'Alert State Five' operational readiness was the highest feasible operational status.
'Alert State Five' was not peacetime or garrison duty, nor was it a training exercise. 'Alert State Five' required that two fully armed aircraft be at the end of the runway with pilots in close presence, ready and able to be airborne within five minutes to engage an intruding aircraft with a view to its destruction, subject to identification or lack of it. The danger of casualties was clearly forecast.
The question then remains as to whether or not this was 'warlike' or 'non-warlike'. Did the squadron face an objective danger? Did they 'incur danger'? Even though no danger eventuated in the sense that there were no actual combat engagements, they were armed for combat and had been told by those who knew more of the situation that danger did exist and they must hold themselves in readiness to meet it, not at some indeterminable time in the future, but at five minutes notice.
In regard to base security this fell into two distinct areas. First, there was security within the base itself. The review heard from a number of those who have been at Ubon. It is clear from what was said that within the base itself the RAAF contingent had prepared defensive protection and arms had been issued for use if needs be. Second, the ADG patrolled both day and night outside the perimeter of the base and in so doing saw evidence of terrorist activity. So far as is known they were never engaged in an exchange of fire, but the danger of terrorist activity in the general area was known and precautions taken. These patrols were armed and authorised to fire if the situation called for fire.
The rules of engagement for the RAAF contingent from 1965 onwards signified the contact with hostile forces of an enemy should be expected and that these hostile forces were to be engaged in armed combat with the aim of destroying them. In these circumstances there was an expectation of causalities. (Tribunal's emphases)

From the service medical documents (T3) it appears that the Applicant was hospitalised from 3 to 8 June 1966 (T3, p32) because of a dengue-like viral disease that was considered "not true dengue". He had marked lymphadenopathy. An entry on 10 June 1966 stated –
Symptomless dengue wise. WCC normal. Lymphadenopathy persist. Somewhat anxious.

An entry dated 19 July 1966, after the Applicant returned to Australia, notes that after his discharge from hospital following the dengue-like illness he had three or four days sick leave and returned to duty feeling well. It is clear from the documents, however, that from 10 June 1966 the Applicant's anxiety condition was apparent.

The following entries were then made –
15 Jun 66       Anxiety state. Immature personality who is not standing up to separation from his mother. Father was killed three years ago. ? ever since then Riley has had an accident phobia. He complains of shaking hands, inability to concentrate, loss of memory, bad temper etc. For review by Padre.
21 Jun 66       Anxiety worse – on verge of tears. Shaking like a leaf – unable to pull himself together. Px phenobarb gr ¾ tds. After consultation with the padre I think this man should be sent back to Aust & given psychiatric aid.
28 Jun 66       Some improvement – happy to be going home – still shaking ++. Says he is eating better, & getting more sleep
1.7.66            In transit only. Therapy continued. For medivac to Aust Monday 4.7.66. To continue therapy.
7.7.66            Mild Anxiety State. Px Amytal 65 mg. Bd.
   Seconal 200 mg nocte
   Appt. Psychiatrist
To see Med. Registrar Weekly until psychiatrist
An entry dated 7 July 1966 indicates that the Applicant was medivaced from Ubon on 30 June and arrived at Richmond on 6 July 1966 (T3, p28). Ultimately he was considered to be "dull, dependent and immature" (T3, p26). On return to Australia the Applicant continued to be posted at Richmond, which was close to home. His anxiety condition settled after he returned to Australia and he did not require further medical treatment for his anxiety state after August 1966 (T3, p12). However, it was considered that if he were again posted away from the Sydney area his condition would probably recur. Notwithstanding this, apparently he was deployed to undertake flights from Butterworth to Vietnam between 8 and 11 June 1967, and on his evidence he undertook an exercise in Darwin in 1968. He was discharged on 3 July 1968, being "temperamentally unsuited to service life".
submissions
Applicant
It was submitted for the Applicant that he suffers from generalised anxiety disorder and psychoactive substance abuse. He has significant memory impairment and little verbal ability particularly when called on to describe his feelings. It was submitted that the Applicant suffered from a personality vulnerability prior to his operational service. During his service in Ubon he was exposed to a number of discrete stressful events which, in toto, caused his generalised anxiety disorder and/or psychoactive substance abuse. In the alternative it was submitted that the Applicant suffered from generalised anxiety disorder that was caused by his operational service in Ubon, and that subsequently his psychoactive substance abuse commenced. It was also submitted that the Applicant's service in Vietnam aggravated his generalised anxiety disorder.
Counsel for the Applicant submitted that a "stressful event" does not necessarily have to be "over in a few moments" or for "a short period of time" and "nor does it have to be singular". In Repatriation Commission v Binding [1999] FCA 974 the Federal Court accepted that serving on HMAS Sydney in Vietnam waters while anchored in the outer harbour for days could be a stressful event without there having to be some microcosm of a more traumatic event within that period. It was submitted that the Applicant's service in Ubon in itself was a stressful event, and within that stressful event there are other identifiable events.
It was submitted that in respect of generalised anxiety disorder the Applicant's evidence and that of Dr Klug and Dr Ahmed, and the oral evidence of Dr Lewin, satisfied clause 1(b) of the Statement of Principles, including the definition of "stressful event". In respect of alcohol abuse, it was submitted, on the basis of the evidence of Dr Klug and the oral evidence of Dr Lewin, the Applicant satisfied clauses 1(a) and (b) of the Statement of Principles.
It was submitted that the diagnosis provided by Dr Lewin of separation anxiety is a diagnosis of childhood, and in this case there was no evidence that the Applicant suffered from that condition during his childhood.
The Applicant sought to rely on the decision of the Federal Court in Binding (supra), the Tribunal's decision Re Howe and Repatriation Commission [1999] AATA 1006 and the decision of the Tribunal Re Hughes and Repatriation Commission [2000] AATA 571, that the concept of experiencing a stressor is a subjective and not an objective concept. It is not a test where one considers the response of "an average person" or "a reasonable person" to the situation. It was submitted that in the Statement of Principles for Generalised Anxiety Disorder "stressful event" means "an occurrence which evokes feelings of anxiety or stress". Relying on the rules of statutory interpretation, it is not appropriate to import any other definition into the relevant Statement of Principles.
It was submitted that Mr O'Keefe's reference to the Review report (see para. 19 supra) was "selective" and that he had omitted significant parts of two quotations with the effect that the intent was changed, viz. –
Even though no danger eventuated in the sense that there were no actual combat engagements, they were armed for combat and had been told by those who knew more of the situation that danger did exist and they must hold themselves in readiness to meet it, not at some indeterminable time in the future, but at five minutes notice. (That part of the quotation in bold was not included by Mr O'Keefe)
and
So far as is known they were never engaged in an exchange of fire, but the danger of terrorist activity in the general area was known and precautions taken. These patrols were armed and authorised to fire if the situation called for fire." (That part of the quotation in bold was not included by Mr O'Keefe).
It was submitted that taking into account that the Applicant was an aerodrome defence guard, together with the importance of security to the base and the general conditions that existed at Ubon at the time, his service must have been extremely stressful for him. His evidence was that at the time of the 'red alerts' "you just didn't know what was going to happen". Counsel for the Applicant conceded that it was a few days after he was returned to Australia that the Ubon base was closed for security reasons. It was submitted, however, that it was clear that around this period the situation in Ubon was becoming quite intense.
In respect of meeting the Statement of Principles for Generalised Anxiety Disorder, it was submitted that the Applicant satisfied clauses 1(b) and/or 1(c). Clause 1(b) was in relation to his service in Ubon, and 1(c) in relation to his flights in and out of Vietnam. The Applicant relied on Dr Klug's report of 30 March 1999 (exhibit A) that he had a pre-existing condition prior to his operational service.
It was submitted that the service medical records contained numerous documents referring to the Applicant's anxiety state from June 1966, and he was evacuated from Ubon at that time because of an anxiety state. This was evidence of the fact that the Applicant experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder [factor 1(b)].
In respect of psychoactive substance abuse it was submitted that the Applicant satisfied factor 1(a) of Instrument No. 5 of 1994 in that he experienced a stressful event. Alternatively, it was submitted that the Applicant satisfies clause 1(b), having a psychiatric condition prior to the clinical onset of psychoactive substance abuse. Prior to contracting dengue fever the Applicant was also suffering from a diagnosable generalised anxiety disorder.
It was submitted that, on the evidence of Dr Klug, the Applicant's psychoactive substance abuse is secondary to his generalised anxiety disorder. Dr Lewin's evidence was that the Applicant had probably been abusing alcohol for years before he became dependent. It was submitted that therefore the Applicant could have had a psychiatric condition for some years before he satisfied the Statement of Principles in relation to abuse or dependence. It was submitted that the binge drinking for the short period the Applicant was in Ubon might not necessarily have been the period that is defined to be abuse or dependence, but abuse or dependence could follow years later if the psychiatric condition is a condition that is caused by service and if that condition causes the consequential abuse or dependence.
It was submitted that in respect of the s120(1) test, the opinion that the Applicant suffered from separation anxiety is medically incorrect as this is not a disorder suffered in adulthood.
Respondent
It was submitted that the Applicant was working at the Ubon air base for only three weeks before he was hospitalised for dengue fever on 3 June 1966 and he was subsequently evacuated to Australia. Having a dengue-like virus while in Ubon "objectively" does not constitute a stressful event and is not sufficient to give rise to an ongoing generalised anxiety disorder even though it might give rise to a short-term condition.
In respect of the "red alert incident" and the "trench incident" it was submitted that there is no objective historical evidence that those events occurred within the three-week period when the Applicant was working at the air base. The only historical evidence of an incident was on 26 June 1966 when the records show that the base was placed on "increased alert", but by then it was submitted the Applicant was not on the air base. In respect of the alleged incident of a guerrilla attempt to sabotage Phantom aircraft on the airstrip, it was submitted that, on the evidence of Mr O'Keefe, there was no report of the alleged incident. It was submitted that, on Mr O'Keefe's evidence, the Applicant was not exposed to any stressful event, but it was conceded that a threat existed at Ubon as there were "potential stressful events".
The Respondent disputed that the Applicant's three flights to Vietnam between 8 and 11 June 1967 were "stressful events". On the evidence of Mr O'Keefe there was no enemy activity on the air bases throughout the time the Applicant visited, and there were no attacks on the ten primary air bases in Vietnam throughout the war.
It was submitted that the contemporaneous medical records made no reference to the Applicant feeling stress or anxiety because of the "red alert incident" or the "trench incident", or that he had feelings of stress or anxiety because of the aeroplanes taking off and landing near his hut for 24 hours a day. Therefore, even if the alleged events occurred, there is no contemporaneous evidence to indicate that the Applicant was psychologically affected by those events.
There was an obvious inconsistency between the Applicant's oral evidence and the contemporaneous documents. It was submitted that if the Tribunal accepts the hypothesis then the Tribunal would have to give more weight to the oral evidence of the Applicant and the history he has provided to Dr Lewin and Dr Klug than to the numerous psychiatric, psychological and other opinions in the contemporaneous medical records and the Applicant's own assessment of his condition in 1968 (T3, pp11-15). Noting that the Applicant has significant memory problems then it was submitted it was preferable to rely on the contemporaneous evidence rather than the Applicant's evidence or the history he has given recently to various doctors. Although it was the Respondent's contention that the Applicant's evidence was unreliable, it was accepted that this was "through no fault of his own".
In respect of generalised anxiety disorder it was submitted that, applying the Statement of Principles there is no probative evidence to support a conclusion that by June 1968 the Applicant had the condition as defined in clause 4. Moreover, the Applicant's service medical records clearly demonstrate that by June 1968 he did not meet the definition of Generalised Anxiety Disorder. The contemporaneous psychiatric evidence demonstrates that between 1966 and the time of his discharge in 1968 the Applicant was consistently diagnosed by psychiatrists and psychologists as having an immature personality. The service documents demonstrate that the Applicant's symptoms occurred intermittently. While the Applicant may have had a tendency to be anxious, there is no clear history that he had all the relevant symptoms "on more days than not" for a continuous period of at least six months (factor 4a(ii)). The Respondent relied on the decision of the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 in respect of the claimed condition. It was submitted that there must be material that points to the Applicant having the required symptoms "for more days than not for the previous six months" by June 1968: Connors v Repatriation Commission (2000) 59 ALD 61. It was submitted that on the contemporaneous evidence there was no recurrence of his anxiety state between the time the Medical Board determined on 13 September 1966 that he was not to be posted outside the Richmond area and his discharge from the Air Force in July 1968.
In respect of the Applicant's contention of aggravation of his anxiety condition, it was submitted that to meet factor 1(c) of the Statement of Principles he must have had the condition as defined by clause 4, by 8 June 1967 when he visited Vietnam. It was submitted that there is no probative evidence that on the balance of probabilities the Applicant met the definition of Generalised Anxiety Disorder by 8 June 1967.
It was submitted for the Respondent that while Dr Lewin conceded that the Applicant currently meets the definition of Generalised Anxiety Disorder, he did not concede that the definition was met in 1967 or 1968. It was also submitted that there was no probative evidence that the Applicant's condition was made worse than it would otherwise have been by the alleged stressful events in Vietnam: Repatriation Commission v Yates (1995) 38 ALD 80; Repatriation Commission v Wedekind [2000] FCA 649; Johnston v Commonwealth of Australia (1982) 150 CLR 331.
It was submitted that the material does not point to each element of factor 1(c) of the Statement of Principles but merely left open the connection between the condition and the Applicant's operational service. As factor 1(c) has not been satisfied there is no basis on which a reasonable hypothesis can be raised pursuant to s120(3) of the Act. Therefore the Tribunal must be satisfied beyond reasonable doubt that pursuant to s120(1) of the Act there is no sufficient ground for determining that the Applicant's claimed condition of Generalised Anxiety Disorder is related to his operational service: Connors v Repatriation Commission (2000) 59 ALD 61.
In respect of the Applicant's claim for psychoactive substance abuse or dependence, it was conceded for the Respondent that the Applicant satisfies the diagnosis of psychoactive substance abuse but that he does not satisfy the definition of "stressful event" defined in clause 4 of the Statement of Principles. The Tribunal was urged also to follow the decision of the Tribunal Re Mackay and Repatriation Commission [2000] AATA 483 on the issue of "stressful event", which stated (at para.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 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. Apart from the fact I regard the Applicant as exaggerating his experiences in Vietnam, even on his own evidence he did not experience combat. As far as the collision is concerned it was, as stated above, objectively, a minor event. Any feelings of anxiety whilst in the Transmitting Room would have dissipated when sea going service ceased but, in any event, it cannot be compared to actual combat.
It was submitted for the Respondent that the material does not point to each element of factor 1(a) in the Statement of Principles, but it merely leaves open the possibility of a connection between psychoactive substance abuse and operational service. Therefore pursuant to s120(3) of the Act there is no basis on which a reasonable hypothesis can be raised, and for the purposes of s120(1) of the Act there is no sufficient ground for determining that the Applicant's psychoactive substance abuse is related to his operational service.
consideration of evidence and findings of fact
Anxiety condition
On the contemporaneous medical evidence the Tribunal finds that the Applicant's service in Ubon was stressful for him, particularly because of his personal vulnerability, and he developed an anxiety state superimposed on a dependent immature personality. He was also of low average intelligence. Indeed, because of his anxiety state and his dependent immature personality he was repatriated to Australia. However, using the same contemporaneous medical evidence, the Tribunal finds that the Applicant's anxiety state resolved within a period of a few months, leaving the underlying dependent immature personality in a person of low average to borderline intelligence.

The Applicant has received psychiatric treatment from Dr Ahmed since 1995, but the Tribunal finds that Dr Ahmed does not provide any psychiatric diagnosis of the Applicant's condition and his evidence does not assist in making a causal connection between his current psychiatric condition and his operational service.
On the evidence of the Applicant and the history he provided to Dr Klug he has suffered from intermittent depression from 1988 that Dr Klug noted was associated with marital disharmony. His marriage of 26 years broke up in 1990, and at that time his already heavy drinking habit worsened. Anti-depressant medication since 1995 has controlled his depression, and he has recently reduced his drinking significantly on medical advice.
Dr Klug, in his report dated 2 March 1999 (exhibit A), noted that alcohol dependence, depressive disorders and anxiety disorders are intimately related to each other. They have a strong association. There is an association between alcohol dependence and the Applicant's excessive dependent traits. Dr Klug noted the Applicant's history of –
Dull-average intelligence
Probable anxiety based symptoms from the time of his father's death and probably exacerbated by his experiences in Vietnam (sic)
Intermittent depressive symptoms possibly in the order of a major depressive disorder which have been most apparent since 1988 in the lead-up to his divorce in 1992, continuing from that time
Alcohol dependence
Personality vulnerability in the form of excessive dependent traits.

Dr Klug made no diagnosis of the Applicant's current psychiatric state in his first report, but addressed this in a supplementary report dated 30 March 1999 (exhibit A). He noted a difficulty in diagnosing with any certainty on the basis of the symptom described by the Applicant. He did not consider he suffered from a major depressive disorder. Using the DSM-IV classification Dr Klug said the Applicant "suffers from the following":

Possible generalised anxiety disorder
Probable dysthymic disorder with possible intermittent major depressive episodes
Alcohol dependence
Personality trait of excessive dependence.

Dr Klug then concluded –

It is my view that he had pre-existing problems (prior to Vietnam (sic) service) but that his war experiences, including his dengue-like illness, are a substantial contributing factor to his anxiety based symptoms, dysthymic disorder (and possible major depression) and alcohol dependence.

The Tribunal assumes that Dr Klug's reference to Vietnam was intended to be a reference to the Applicant's service in Ubon. The Tribunal finds that Dr Klug has not identified the way in which the Applicant's present condition, however it might be diagnosed, is associated with his operational service. He merely asserts that the Applicant's service was a substantial contributing factor. In cross-examination Dr Klug said that from the time of the Applicant's overseas service "he developed worse anxiety than he had had". The Tribunal finds that this is not in accordance with the facts. The Tribunal does not accept that the Applicant's anxiety has continued from the time of his overseas service. Indeed, there is evidence that it resolved well before he was discharged from the Air Force. This is insufficient in the Tribunal's opinion to show a causal connection. At the very most it merely leaves open the connection, and that is not sufficient to raise a reasonable hypothesis.
In his report Dr Lewin did not diagnose any current psychiatric illness. He considered the Applicant's anxiety condition that developed when he was in Thailand "settled fairly rapidly" on his return to Australia. In respect of the Statement of Principles for Generalised Anxiety Disorder, Dr Lewin reluctantly conceded in cross-examination that the Applicant met the criteria in clause 4. The evidence before the Tribunal is that from a time shortly before the Applicant's marriage broke up he became anxious and depressed, and ultimately he commenced psychiatric treatment and his symptoms have been relieved by psychotropic medication. The Tribunal finds that, notwithstanding the Applicant's anxiety state that developed while he was on service in Ubon, that condition resolved and he remained well, psychiatrically, until his marriage problems developed around 1987.
The Tribunal accepts that the Applicant's current psychiatric condition could be diagnosed as Generalised Anxiety Disorder, despite the diffidence of Dr Klug and Dr Lewin in coming to that diagnosis. However, the hypothesis raised by the Applicant on the raised facts is that the Applicant suffers from Generalised Anxiety Disorder and that he suffered from an anxiety disorder during and as a result of his service in Ubon. There is no evidence before the Tribunal that the Applicant's symptoms relating to his anxiety state in 1966 continued following his discharge from the Air Force and that the condition from which he now suffers has continued since that time. There is a fundamental gap in the raised facts regarding the chain of causation that leads the Tribunal to conclude that a reasonable hypothesis has not been raised by the facts and therefore the Applicant's claim in respect of Generalised Anxiety Disorder fails pursuant to s120(3) of the Act.
However, if indeed the hypothesis can be held to be reasonable and the Applicant satisfies the test of s120(3), then in moving to s120(1), the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that his condition is war-caused, because of the absence of any reliable evidence that he suffered from Generalised Anxiety Disorder during the period 1968 to 1986. His personality is such that at all times he is vulnerable to periods of pathological anxiety and depression when he experiences stress. The period from about 1987 when he was experiencing marriage problems and subsequent marriage breakdown, and the period in the 1990s since his mother's health has not been good, have provided stress for him sufficient to develop a new pathological state that has no association with his war service.
Alcohol Dependence
As the Tribunal has refused that part of the claim relating to Generalised Anxiety Disorder, it is appropriate now to consider that part of the claim relating to alcohol dependence as a separate diagnosis. The Tribunal finds that the Applicant commenced drinking before his operational service, he increased his drinking during operational service and increased his drinking further when he returned to Australia. His service on return to Australia is not eligible service. Although the Applicant commenced drinking prior to his service in Ubon the Tribunal finds that it did not constitute psychoactive substance abuse or dependence at that stage, and therefore factors 1(c) to 1(e) of the Statement of Principles for Psychoactive Substance Abuse or Dependence do not apply.
The Tribunal finds that the Applicant did not suffer from psychoactive substance abuse as defined in the Statement of Principles while he was serving in Ubon, but that the condition developed subsequently, probably during the two years of his service in Australia before his discharge from the Air Force in 1968. It was not until much later that the pattern of alcohol abuse became alcohol dependence.
The Tribunal finds that the Applicant was suffering from a psychiatric condition, that being an anxiety state, prior to the clinical onset of psychoactive substance abuse or dependence, but by 1968 his anxiety state resolved and his drinking continued.
The Tribunal also finds that the Applicant experienced a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, that stressful event being his guard duty while at Ubon. In so finding the Tribunal considers that the stress experienced by the Applicant was more severe and more significant because of his dependent and immature personality and his intellectual limitations, and thus this introduces a subjective aspect into the consideration of his experiencing a stressful event. The Tribunal considers that it is not necessary to separate out the various components of his guard duty into discrete incidents, such as the 'red alert' incident. It is sufficient that he found the guarding of the perimeter of the airfield stressful and he found the 'amber alert' activities that necessitated his involvement in preparing for a state of readiness for a 'red alert' stressful. That he found these things stressful is evidence of the fact that he developed a pathological anxiety state while in Ubon sufficient to cause his repatriation to Australia within a few weeks of it becoming evident.
Having found in effect that the Applicant meets factors 1(a) and (b) of the Statement of Principles the Tribunal finds that a reasonable hypothesis has been raised. Moving now to s120(1), the Tribunal must consider whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's alcohol dependence is related to his service.
On the evidence of Dr Lewin the Tribunal finds that the Applicant was more susceptible to becoming alcohol dependent if he suffered from an anxiety disorder. The Tribunal has already found that his anxiety disorder is not related to his service. Moreover, there is no evidence that he commenced drinking or increased his drinking on service in Ubon because of the stress of his service. He drank in Ubon because of boredom and to be one of the boys. He was not introduced to drinking alcohol there as he had commenced drinking prior to going to Ubon. He merely increased the amount that he drank while he was in Ubon. In reality, therefore, the period of his drinking while at Ubon was from 5 May 1966 to 30 June 1966, with the exception of the week that he spent in hospital suffering from a dengue-like illness. In those circumstances the Tribunal would expect that when the Applicant returned to Australia where he was stationed close to the support of his home and family, his drinking would have reduced. Instead, on his evidence it increased, and indeed the heavy and consistent pattern of drinking that he reported when he returned to Australia and throughout the rest of his service, at the same time as his anxiety condition was resolving, is interpreted by the Tribunal to mean that his heavy drinking was not related to his service in Ubon or to his anxiety disorder that he suffered immediately on his return to Australia.
The Tribunal is satisfied beyond reasonable doubt that there is no sustainable link between the Applicant's alcohol abuse and ultimately his alcohol dependence and his service. The Tribunal has reached that high level of satisfaction having also taken into account Dr Lewin's evidence that alcohol dependence is more likely to occur in persons suffering from anxiety disorders. Additionally, on the evidence the Tribunal finds that the Applicant has a dependent personality, and this too is a factor in his becoming alcohol dependent. The test in s120(1) has not been satisfied.
The Tribunal finds that the diagnosis of chronic depressive illness with secondary alcohol dependence should be amended to read Generalised Anxiety Disorder and Alcohol Dependence as two separate conditions. The decision under review will be amended to that effect. The decision under review, as amended, is affirmed.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  26 July 2000
Date of Decision  18 May, 2001
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         Whyburn & Associates
Solicitor for the Respondent    Ms S Breur, Department of Veterans' Affairs