Shooter and Repatriation Commission - [2000] AATA 1076

DECISION AND REASONS FOR DECISION [2000] AATA 1076

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1493

GENERAL ADMINISTRATIVE DIVISION        )
           Re      John Charles Shooter
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member Dr J Campbell, Member Rear Admiral A Horton, AO, Member

Date7 December 2000
PlaceSydney

Decision        1. The Tribunal sets aside the decision under review in respect of the condition of diabetes mellitus and substitutes its decision that the condition is war-caused and that the Applicant is eligible for a Disability Pension from and including 12 March 1997. The assessment of the appropriate rate of Disability Pension is remitted to the Repatriation Commission for determination.   2. The Tribunal varies the decision under review in respect of anxiety state by changing the diagnosis of that condition to generalised anxiety state and psychoactive substance abuse. The Tribunal affirms the decision under review (as varied) in relation to generalised anxiety disorder and psychoactive substance abuse and hypertension.
  .............……[sgd]......................
  Ms SM Bullock
  Senior Member
CATCHWORDS
VETERANS AFFAIRS - entitlement - disability pension - operational service - generalised anxiety disorder - psychoactive substance abuse - hypertension - diabetes mellitus - smoking and alcohol habit - stressful event - assessment

Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Binding [1999] FCA 974
Re Howe and Repatriation Commission [1999] AATA 1006
Re Budworth and Repatriation Commission [2000] AATA 127
Re Jehn and Repatriation Commission [2000] AATA 484
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

Ms SM Bullock

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr John Charles Shooter, ("the Applicant") of a Repatriation Commission decision dated 7 August 1997, which refused Mr Shooter's claim for diabetes mellitus and a further decision of 25 April 1998, which refused a claim for hypertension and anxiety state. An application for review to the Veterans' Review Board ("the VRB") was lodged on 26 August 1997, in respect of diabetes mellitus and on 26 October 1998, in respect of hypertension and anxiety state. On 4 August 1999, in so far as is relevant, the VRB affirmed the decision under review in relation to diabetes mellitus, hypertension and anxiety state. That decision also set aside the Repatriation Commission's ("the Commissison") decision in relation to bilateral sensorineural hearing loss and tinnitus with effect from and including 20 November 1997. The assessment of the rate of pension to be paid was remitted to the Commission, which subsequently assessed pension at ten per cent of the General rate. Mr Shooter then made an application for review to the Tribunal on 5 October 1999, in relation to his claims for diabetes mellitus, anxiety state and hypertension.
A hearing was held before the Tribunal in Sydney on 25 October 2000. Mr Shooter attended the hearing and provided oral evidence. He was represented by Mr N Dawson, Barrister. The respondent was represented by Ms M Doggett, Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents, T1-T32") and the following exhibits:
Exhibit Number     Description Date
A1      Undated Statement by the Applicant
A2      Report by Dr A Dinnen, Consultant Psychiatrist, including an Emotional Behavioural Worksheet dated 5 April 2000.     19 April 2000
A3      Department of Veterans' Affairs publication, "Post Traumatic Stress Disorder (PTSD) and War Related Stress"
R1      Page 2 of an Emotional and Behavioural Worksheet prepared by psychiatrist, Dr S K Law (this page completed T21) 29 October 1998
R2      Report by Dr R D Lewin, Adult General and Forensic Psychiatrist     27 January 2000
R3      Supplementary Report by Dr R D Lewin 1 May 2000

Issues

The issues to be determined in this matter are whether Mr Shooter's conditions of diabetes mellitus, hypertension and anxiety state are war-caused. Also at issue is whether the diagnosis of anxiety state should be varied to include psychoactive substance abuse.
The Respondent concedes that Mr Shooter suffers from the conditions of diabetes mellitus, generalised anxiety disorder and psychoactive substance abuse and hypertension. The causation of these conditions must be determined.
Service History
Mr Shooter served in the Royal Australian Navy from 1 July 1962 to 28 August 1970. His eligible war service which is also operational service was in:

u HMAS SNIPE from:-

2 June 1964 to 29 January 1965 in the operational areas of North Borneo, the Malay Peninsula and Singapore; and

u HMAS SYDNEY in Vietnam from:-

8 April 1967 to 22 April 1967
28 April 1967 to 12 May 1967
19 May 1967 to 14 June 1967
20 December 1967 to 3 January 1968
17 January 1968 to 16 February 1968
27 March 1968 to 26 April 1968
21 May 1968 to 13 June 1968
13 November 1968 to 28 November 1968 (T4)

Legislation

A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 (Cth) ("the Act").
The standard of proof to be applied to Mr Shooter's operational service is that which is found in subsections 120(1) and 120(3) of the Act. The Tribunal is required to find that the conditions under review are war-caused unless it is satisfied beyond reasonable doubt that there is not sufficient reason for making that finding. The Tribunal must be so satisfied if it is of the view that the material does not raise a reasonable hypothesis to connect the conditions of diabetes mellitus, generalised anxiety disorder and hypertension with the circumstances of Mr Shooter's service. As relevant, subsections 120(1) and 120(3) state:
"
120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A
…"
"
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
          (a)       that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
As the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A.
…"

The Tribunal is also required to apply section 120A of the Act which states:
"
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)       a claim under Part II that relates to the operational service rendered by a veteran;
(b)       a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1:   Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:   For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)       has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)       has declared that it does not propose to make such a Statement of Principles.
(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)       a Statement of Principles determined under subsection 196B(2) or (11); or
(b)       a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:    See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
  (b)       the kind of disease contracted by the person; or
  (c)       the kind of death met by the person;
as the case may be.
…"

Statement of Principles

The Tribunal must assess the reasonableness of any hypothesis connecting a claimed condition with service, in accordance with any Statements of Principles which may exist issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. Statements of Principles set out various factors relating to service at least one of which must exist in order to establish a causable relationship between particular diseases, injuries or death and service. These Statements of Principles are binding on all decision-makers.
Recently the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532 decided that the applicable Statement of Principles is that which was in existence at the time of the primary decision. In this case, the relevant Statements of Principles are:
·     Instrument Number 47 of 1996 as amended by 187 of 1996 concerning Diabetes Mellitus
·     Instrument Number 83 of 1995 concerning Hypertension
·     Instrument Number 48 of 1994 as amended by 275 of 1995 concerning Generalised Anxiety Disorder
·     Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence

Evidence

Mr Shooter was born on 12 March 1945.
Mr Shooter stated that in the Navy he was initially trained in basic seamanship and then qualified as a Radar Plotter. He stated that the ship did not exercise any action station drills, but the crew was briefed on emergency drills. In HMAS SNIPE, Mr Shooter worked mainly in the operations room below the bridge, however he did work all over the ship including in the wheel house, the forecastle and as a lookout. Mr Shooter's first trip in HMAS SNIPE was to Borneo and the Malay Peninsula. He told the Tribunal that his first trip was "reasonable". Mr Shooter stated that he did not "see" any of the Borneo conflict but had on one occasion experienced the ship being blacked out as another unidentified ship approached. The approaching ship was signalled to identify itself and subsequently it was ascertained that the unidentified ship was no threat. After this particular incident, Mr Shooter described feeling "concerned and worried - thinking of the possibility of being shot".
Mr Shooter stated that his life aboard HMAS SYDNEY, during which the ship was deployed to Vietnam on eight occasions, was more difficult. There were no bunks only hammocks and his quarters were in the mess deck. His duties included working in the operations room and he rarely preformed lookout duties. There were procedure drills performed in relation to defence stations and action stations but there were no training programs concerning scare charges, Mr Shooter stated. There were daily routine orders issued and scare charge operations were listed on these orders. Mr Shooter further explained to the Tribunal that he knew each day of the possibility of scare charges but was not informed of the precise times of such activity.
Divers on board HMAS SYDNEY related stories of floating mines and damaged caused to other naval vessels. There were never any instances experienced by Mr Shooter involving the explosion of mines but he told the Tribunal that this could have happened. On one particular occasion Mr Shooter recalled divers checking anchor cables for the possibility of mines and this caused him to think of the possibility of HMAS SYDNEY being blown up. There were also quite a number of scare charges activated while Mr Shooter served in HMAS SYDNEY. As far as he knew, there was no contact with actual mines. The difficulty for Mr Shooter was that when a scare charge exploded he was not sure whether it was real or part of a practice procedure.
Mr Shooter was referred to a Final Medical Survey Report dated 16 July 1970, recommending that he be discharged. The report diagnosed the condition of anxiety state with the onset being 4 April 1970. The contents of the report noted by the Tribunal are:
"He claims to have become increasingly agitated, nervous and depressed because of the continuing house situation. Recently this has culminated in episodes of sleep walking both on board his ship and at home.
He was seen by Consultant Psychiatrist on 5.5.70, who noted the sailor had become tense and anxious, and that he had developed an anxiety state which will become aggravated as long as he remains in the service…. Seen again by Consultant Psychiatrist who recommended discharge on Compassionate grounds with result that F.M.S. Board recommendation of 21.5.70 was rejected. Sailor still tense and anxious." (T4, p14)

Mr Shooter stated that he had been seen sleepwalking by other sailors and was admitted to the Naval Hospital for observation. Mr Shooter was married on 9 December 1967. He informed the Tribunal that he had told the Naval Psychiatrist that his wife was nervous about him being away and there had been arguments. This was the "house situation", referred to in the Naval Medical Report. The Tribunal noted that on 5 May 1970, there were further reports from Dr Lowry, Dr Burke and a social worker that Mrs Shooter was "in a highly nervous state, immature and anxious" (T4, p22). Mr Shooter confirmed that Mrs Shooter had spoken to Naval personnel about her concerns and difficulties.
Clinical notes of 30 April 1970, indicate that Mr Shooter had been sent to sick bay in HMAS KUTTABUL because of sleepwalking and that his wife had confirmed this. The notes record that Mr Shooter "Quite likes Navy" but "Has had a bit of domestic problems over last 12/12. Wife left him 3/12 ago. Wife very dominant partner.". The clinical notes from Dr J Cotsell on 1 May 1970 record:
"…I gather there is no confirmatory evidence of his sleepwalking.
His Captain believes that this sailor will use every measure to obtain his discharge – and he also believes that it would be better for all concerned were he to go. If sleepwalking is not confirmed the question of anxiety symptoms may arise. Would Dr McGeorge please advise…."

Dr J McGeorge, Consultant Psychiatrist, then reported on 5 May 1970:
"…He claims that his wife has seen him sleepwalking & this may well be so as a reaction to the problem & conflict arising from her neurosis….
…I recommend his discharge on medical grounds as he too has become tense and anxious & now suffers from an anxiety state which will become aggravated as long as he remains in the service & the same situation remains as it inevitably must where his wife is concerned" (T4, pp20, 22)

Apart from experiencing sleepwalking, Mr Shooter stated that he did not believe he had any other symptoms of anxiety state in the Navy. Further, Mr Shooter stated that he never had any problems of anxiety as a child and nor was he a nail biter.
Mr Shooter stated that he thought Dr McGeorge examined him in the Navy on approximately two occasions. He was not told that he had an anxiety state. He reiterated that Mrs Shooter had spoken to doctors at the time he was diagnosed with anxiety state. Mr Shooter does not recall the recommendation of free medical discharge by his Captain nor the Naval social worker.
Prior to 1970, Mr Shooter stated that he had no treatment for anxiety state. He informed the Tribunal that he did not want to go back to Vietnam, which was forecast to occur in HMAS PERTH, because he was scared something might happen to him. Mr Shooter stated that he thought about this regularly. He did admit, however, that he generally enjoyed his time in the Navy. Mrs Shooter was also worried about Mr Shooter being away and was concerned about his alcohol consumption, particularly the expense of this habit. Mr Shooter told the Tribunal the he worried about who would care for his new wife if something happened to him. At the time, Mr Shooter recalled thinking that it was his fault that he and his wife were arguing because he was away in the Navy so much.
Following discussion with a friend about his feelings, Mr Shooter was assisted by the Vietnam Veterans' Association of Australia who recommended that he consult Dr S K Law, Consultant Psychiatrist. Mr Shooter first attended Dr Law on 28 February 1997. He continues to consult him every three to six months and last saw him in October 2000. Mr Shooter has been prescribed medication for his anxiety condition, originally in the form of Nortriptyline. More recently he has been prescribed a different medication but could not recall its name. Mr Shooter explained that when he is anxious, he experiences butterflies in his stomach, his hands perspire and he experiences "cold sweats". Since taking medication and consulting Dr Law, he has felt better. This improvement has been confirmed in a brief statement by Mrs Shooter (T25, p104).
Dr Law originally diagnosed Mr Shooter's psychiatric condition as post traumatic stress disorder but in a report dated 27 January 1998, Dr Law revised his opinion to diagnose the condition as anxiety disorder, largely as a result of naval experiences (T18). Dr Law changed his diagnosis as on reflection he could find "no clear and unequivocal evidence of the presence of a stressor".
Mr Shooter told the Tribunal that he had not felt able to consult his General Practitioner, Dr A K Tan, about his feelings of anxiety but had felt easily able to discuss his emotional health problems with Dr Law. Mr Shooter explained that because of his inability to confide in Dr Tan, his General Practitioner was unaware of his anxiety condition and had therefore not reported it.
Mr Shooter told the Tribunal that when aged 15 years old and before he commenced naval service, he had smoked "the odd cigarette". Upon joining the Navy, Mr Shooter found that cigarettes were inexpensive to purchase and he later increased his consumption. In a Smoking Questionnaire of 17 February 1997, Mr Shooter wrote that during service between 1962 to 1970, he increased his cigarette consumption to one packet a day because of peer pressure and the free availability of cigarettes. After service, from 1970 until 1989, Mr Shooter reported that he was "hooked on" cigarettes and was smoking two packets of cigarettes a day. He ceased smoking in 1989 (T8, pp44, 45).

In an undated statement to the Tribunal, Mr Shooter reported that he started smoking about ten cigarettes per day at the age of 17 after commencing service in HMAS SNIPE. By mid 1964, when Mr Shooter was on operational service, he was smoking possibly 20 to 30 cigarettes per day progressively increasing over the years to 60 to 70 cigarettes per day. Mr Shooter further reported that in 1984, he ceased smoking for a while then started and stoped again a few times, finally ceasing permanently in 1989 (Exhibit A1).
In oral evidence to the Tribunal, Mr Shooter stated that he had completed the Smoking Questionnaire in February 1987 (T8), but believed that he had underestimated his consumption of cigarettes of one packet per day between 1962 and 1970. He told the Tribunal his actual cigarette consumption was higher than that. Further, Mr Shooter's evidence was that in 1989, whilst he had reported giving up smoking, he was still smoking, including cigars and a small quantity of cigarettes. He did not in fact cease smoking until 1991.
Referring Mr Shooter to a Department of Veterans' Affairs "Entitlement Medical Report" dated 31 January 1986, it was noted that Mr Shooter had ceased smoking in 1984, his consumption level being 60 to 70 cigarettes per day (T5, p31). Mr Shooter's explanation for this different date of cessation in the medical report was that he had told the Departmental Medical Officer what he thought the doctor would want to know. Mr Shooter wanted to present himself in the best light and did not want the doctor to know that he was still smoking, which in fact he was.
A slightly different history was recorded by the Veterans' Review Board (T25, p93) in which Mr Shooter was reported as smoking approximately 20 cigarettes per day from the time of his enlistment in 1962 until 1966, when his consumption increased to approximately 40 cigarettes per day increasing further to 60 to 70 cigarettes per day from 1971 - 1972 (T25, p93).
Mr Shooter acknowledged that he had great trouble detailing his smoking history as he had been worried over the years of what people might think if they knew he was still smoking.
The Tribunal understood Mr Shooter's final evidence to be that he smoked small quantities of cigarettes on enlistment either five or ten cigarettes per day at most but that in 1964, when he was serving in HMAS SNIPE in the Borneo/Malay Peninsula area, his cigarette consumption increased to the level of 20 cigarettes per day and then further increased to 60 or 70 cigarettes per day up to the time of discharge. His smoking continued at this level and sometimes increased from this level until he attempted to cease unsuccessfully in 1984, recommencing very soon afterwards and continuing to smoke at least 60 or 70 cigarettes per day until 1989, when he tapered off to small amounts of tobacco consumption in the form of cigars and cigarettes until he ceased smoking in 1991.
In relation to Mr Shooter's alcohol consumption, he stated that he had consumed little alcohol prior to enlistment in 1962. At that time one or two 26 ounce cans of beer were issued as a ration, which he consumed at sea. On shore he consumed greater quantities of alcohol, usually beer. Currently, Mr Shooter consumes six standard cans of beer per day and this was the level of alcohol consumption prior to his discharge in 1970. Mr Shooter told the Tribunal that he could trace his increase in alcohol consumption in the Navy to the time when there was a fear of mines in Vietnam waters.
Mr Shooter had tried to give up his alcohol consumption approximately 18 months to two years ago but was unsuccessful. He has been warned by various doctors over the years to cease his alcohol consumption. Mrs Shooter was also very concerned about his high level of alcohol consumption. Mr Shooter continues to drink, commencing drinking in the afternoons. He prefers to drink at home.
In his Alcohol Questionnaire completed on 17 February 1997, Mr Shooter noted that his consumption of alcohol commenced because the Navy supplied a nightly beer ration and his consumption increased because of "stress related matters" (T7). A Departmental Medical Officer on 31 January 1986, noted that Mr Shooter began to consume alcohol at age 17 after enlistment. In 1986 he was reported to be consuming about three cans of beer per week and once or twice a year he would drink at a hotel or club, consuming two to three drinks on each occasion (T5, p31). Mr Shooter told the Tribunal that the information contained in the Departmental Medical Officer's Report concerning alcohol was clearly incorrect and again explained that he had only told the doctor of this lower level of alcohol because he did not wish it to be known that in fact he was consuming high levels of alcohol.
Mr Shooter confirmed that following discharge his alcohol consumption increased. He noted, however, that he was and continues to be careful about drinking and not having his alcohol consumption impact upon his work nor any other activity. He confirmed he had no criminal charges as a result of his alcohol consumption nor had he been counselled, disciplined or chastised for alcohol consumption while at work.
Mr Shooter stated that Dr Law, in a report dated 16 April 1997, when detailing Mr Shooter's excessive drinking in the Navy, as described by Mr Shooter, concluded that Mr Shooter now drinks a moderate amount. Mr Shooter stated that Dr Law's consideration of a moderate consumption of alcohol was not in fact "the correct picture". "Moderate" for Mr Shooter involved consumption of six cans per day, which in fact is higher than what would normally be considered a moderate amount of alcohol (T9).
Mr Shooter explained to the Tribunal that he consumes alcohol to settle his nerves. He does not consider himself to be "a drunk" and does not become abusive when he drinks alcohol. Current arguments with his wife are related to the expense of alcohol consumption and while there is concern for his overall health, this did not seem to be the main reason for disagreement. While Mr Shooter stated that he is aware of the need to control his alcohol consumption, he finds that he just cannot do this.
Dr Law later reported that Mr Shooter had been very upset by the death of his brother-in-law in 1998. Mr Shooter stated that he did not think he was very much more anxious following this death. He was certainly distressed about his brother-in-law but only in so far as it made him think about how short life is and how unfair it can be.
In relation to Mr Shooter's hypertension, he was not certain as to when this condition was first diagnosed nor of its onset but believed he was first prescribed medication for hypertension in 1996. The condition continues to be controlled by medication and Mr Shooter's understanding is that on medication his blood pressure remains "normal".
In his claim for diabetes mellitus, Mr Shooter reported that this condition commenced in 1997. He told the Tribunal at the hearing that the condition was discovered after 1996 and that he takes medication and also uses diet to control the condition.
After discharge from the Navy, Mr Shooter undertook various labouring positions and worked with Australian Paper Manufacturers (APM) at Botany in various labouring positions from 1970 to 1988, when he was retrenched. Mr Shooter then purchased a Taxi and drove it. He became more and more stressed on the road and also because of his hypertension, he decided to use contract drivers to drive the cab. Mr Shooter still owns the Taxi. Currently, Mr Shooter undertakes part-time contracting work as a courier and has been undertaking this work for the past nine or ten years. He mostly works in the country because city driving is too stressful. Mr Shooter takes his wife with him as she can assist with the driving duties and he also finds her presence a great comfort.
Mr Shooter describes his current situation as "getting on reasonably well in life". He has been married for 33 years and finds his wife a great support to him though he reports that he is often short tempered and argumentative with her. There are arguments about once or twice a week and they are mostly about his alcohol consumption. Mr and Mrs Shooter have an adult daughter and son. Mr Shooter reports having a good relationship with his children and they have frequent contact. Mr Shooter has a few friends and about every two or three weeks he and his wife go out with his friends to a club or a restaurant. In his free time, Mr Shooter likes to play computer games for about half an hour at a time or to read for half an hour at a time. He follows sport and attends Rugby League matches every Saturday.
Medical History
Dr S K Law, Consultant Psychiatrist
Dr Law has provided a number of reports namely 16 April 1997 (T9); 27 January 1998 (T18); 28 May 1998 (T20); 2 November 1998 (T21); and 2 August 1999 (T25, p103).
Dr Law initially considered that the diagnosis of Mr Shooter's psychiatric condition was post traumatic stress disorder but revised this diagnosis on 27 January 1998 to that of anxiety disorder (T18). Dr Law reported that as there was "no clear and unequivocal evidence of the presence of a stressor", he had to change his diagnosis. A subsequent report indicated a worsening of the anxiety condition with symptoms of palpitations, feeling nervous, poor sleep and lack of concentration. Dr Law reported that the anxiety condition is "causally related to past military experiences" (T20). On 29 October 1998, Dr Law provided an assessment according to the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide") as 27 points (T21, Exhibit R1). Most recently, on 2 August 1999, Dr Law opined that Mr Shooter's anxiety condition was slightly worse than in 1998.
Dr J K Tan, General Practitioner
In a brief report of 29 April 1997, Dr Tan noted that he had been treating Mr Shooter since 1980 and that Mr Shooter had never to that date, consulted him about post traumatic stress disorder. Dr Tan further reported that in recent times, Mr Shooter is short tempered and experiencing flash backs of his war time experiences but these symptoms had not been revealed to him by Mr Shooter until 29 April 1997. Dr Tan reported that he had not treated Mr Shooter for any emotional or stress problems (T10).
In a Medical Report dated 1 July 1997, concerning diabetes mellitus, Dr Tan reported Mr Shooter had been obese since 1981, has non-insulin dependant diabetes (Type 2) and was doing well on oral medication (T12).
DR H Pope, General Practitioner
In March 1998, Dr Pope reported that Mr Shooter had hypertension as a result of excessive alcohol consumption. Dr Pope did not provide a date of onset of hypertension (T17, p71).
Dr A Dinnen, Consultant Psychiatrist
On 19 April 2000, Dr Dinnen opined that the diagnosis of Mr Shooter's psychiatric problem was generalised anxiety disorder and psychoactive substance abuse. Dr Dinnen reported that Mr Shooter believed his condition was a problem for about two years prior to his discharge from the Navy (Exhibit A2). Dr Dinnen opined that from his understanding of "a stressor", Mr Shooter's account of events in the Navy including discussions with Naval divers about floating mines, the presence of an unidentified ship and his wish not to return to Vietnam, satisfied the requisite definition of a stressor.
An assessment by Dr Dinnen undertaken using Chapter Four of the Guide assessed Mr Shooter as having an Impairment Rating of 19 points but concluded that Mr Shooter was not prevented from undertaking full-time work. Dr Dinnen considered that Mr Shooter had a mild disability.
Dr R D Lewin, Adult General and Forensic Psychiatrist
Dr Lewin provided a report to the Department of Veterans' Affairs on 27 January 2000. Dr Lewin reported a history of features of anxiety disorder in childhood and in Mr Shooter's adolescence. Dr Lewin opined that Mr Shooter's predominant problem was alcohol dependence syndrome developed against a lifelong trait of anxiety. He concluded that Mr Shooter had a low grade generalised anxiety disorder and alcohol dependence syndrome. Mr Shooter may have already had had an established anxiety disorder in his childhood and teenage years. Dr Lewin further reported that he did not find evidence of a "severe stressor" occurring while Mr Shooter was in the Navy. While accepting that Mr Shooter met the diagnostic criteria for generalised anxiety disorder as detailed in the relevant Statement of Principles, Dr Lewin did not think there was a causal connection between Mr Shooter's service and the conditions of generalised anxiety disorder and psychoactive substance dependence (Exhibit R2).
Dr Lewin further reported on 1 May 2000, that he had subsequently been provided with a copy of Mr Shooter's statement (Exhibit A1) in which Mr Shooter described various events which had occurred during his Naval service. Dr Lewin noted that he had previously been aware of the events detailed by Mr Shooter and referred to his original report in which the events of making contact with an unknown vessel, dealing with floating mines and of the experience of scare charges were recorded. Mr Shooter's statement did not cause Dr Lewin to alter his opinion as expressed in his original report that there was no causal relationship between Mr Shooter's Naval service and his conditions of generalised anxiety disorder and psychoactive substance dependence (Exhibit R3).
Submissions
Mr Dawson for the Applicant noted that as there was agreement between the parties that Mr Shooter suffers from generalised anxiety disorder and psychoactive substance abuse, diabetes mellitus and hypertension, he was not going to make submissions with respect to the issue of diagnosis.
Turning first to generalised anxiety disorder, Mr Dawson submitted that it was clear from the documentary evidence and Mr Shooter's own evidence, that he suffered from an anxiety disorder at the time of his discharge from the Navy. There is no suggestion, Mr Dawson further submitted, that when Mr Shooter was treated in 1970, that there was already in existence a childhood disorder. There was, however, an attempt to blame the onset of anxiety disorder on marital problems.
Referring to Statement of Principles, Instrument Number 48 of 1999, concerning Generalised Anxiety Disorder, as amended by Instrument Number 275 of 1995, Mr Dawson submitted that the relevant factor is factor 1(b). Factor 1(b) states:
"(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or …"

A "stressful event" is defined within the Statement of Principles as:

"…an occurrence which evokes feelings of anxiety or stress".

In relation to the definition of "stressful event", Mr Dawson noted that within the Tribunal there have been a range of decisions dealing with the conditions of post traumatic stress disorder and generalised anxiety disorder, which apply differing interpretations of the meaning of the definition.

Of relevance to the Tribunal's consideration, Mr Dawson submitted, is a booklet entitled "Post Traumatic Stress Disorder (PTSD) War-Related Stress", a Department of Veterans' Affairs Publication (Exhibit A3). Referring to page 14 of the document, Mr Dawson noted that while the booklet dealt with post traumatic stress disorder, this disorder is not the only response to trauma but that anxiety can also develop. While the booklet contained no specific subheading concerning generalised anxiety disorder, nevertheless the publication had been prepared by mental health professionals with considerable experience in the area and should be seen as espousing a view endorsed by the Department of Veterans' Affairs. Mr Dawson submitted that the book properly considers anxiety, not just as a symptom of PTSD but as a condition in its own right. Mr Dawson contended that the publication is a guide for veterans and their families. At page 6, the publication discusses what is a stressful event. Trauma or a stressful event is a personal issue, Mr Dawson submitted, and a person's reactions to such stressful events involve individual responses.
Mr Shooter was faced with something, which was frightening to him, and he reacted in a particular way. The variation of a person's reaction to a stressful event understandably varies because of individual personalities, beliefs, personal values and previous experiences. In relation to post traumatic stress disorder, the definition of experiencing a traumatic event provides a higher test than the requirement of experiencing a stressful event as defined in the Statement of Principles for generalised anxiety disorder. What is important, Mr Dawson submitted, is that while the test for post traumatic stress disorder requires a response of intense fear, helplessness or horror, generalised anxiety disorder only requires that feelings anxiety or stress are evoked. Feelings of anxiety or stress are personal and subjective.
Further, in its consideration of Mr Shooter's evidence, Mr Dawson submitted that the Tribunal should conclude that it was "unexaggerated in the extreme". Mr Shooter stated that he felt "a bit nervous" or "concerned". Further, the Tribunal should consider that when providing evidence, Mr Shooter "let slip", that living near the Bankstown Airport causes him stress because of the effect which the sound of helicopters has on him. This description to the Tribunal should be seen as favourable to the veteran who in no way attempted to exaggerate his feelings or to make more of his reactions than was there, Mr Dawson contended.
Mr Dawson submitted that based on the medical reports, particularly those of Dr Law and the very experienced Dr Dinnen, the clear hypothesis before the Tribunal is that events while serving in HMAS SNIPE, as described by Mr Shooter, and the events from HMAS SYDNEY, are in themselves enough to meet the definition of experiencing a stressful event.
Mr Dawson further contended that the test for a stressful event goes no higher than there being suggestions that Mr Shooter experienced stress. It is not necessary to show that he had experienced combat or was threatened with actual harm.
In relation to the fact that Mr Shooter was diagnosed in 1970 as having generalised anxiety, this does not necessarily mean that that was the point of clinical onset. Referring to Repatriation Commission v Gosewinckel [1999] FCA 1273, Mr Dawson submitted this case was not authority as the Respondent submitted, for the proposition that veterans who can prove diagnosis by a medical practitioner within the two years of a stressful event, will succeed. The fact that Mr Shooter was diagnosed in 1970, does not necessarily mean that there has to be a stressful event between 1968 and 1970 as the onset could have occurred before that diagnosis was made. One does not need to work backwards from what might otherwise be considered as a late diagnosis.
The Tribunal must also consider the evidence about how Mr Shooter felt when he came home from the Navy, Mr Dawson submitted. This evidence can then be assessed against the Statement of Principles for the purpose of considering whether or not Mr Shooter met the factors either post his period of service, or post particular events on service. Mr Dawson noted that Mr Shooter provided evidence that he did not want to return to Vietnam. If that was not "apprehensive expectation", Mr Dawson submitted he did not know what was. He was thinking about the possibility of having to return to Vietnam almost every day for a few hours per day (Exhibit A2) and this should be considered by the Tribunal as evidence of stress and anxiety being evoked as a result of service.
The Tribunal was referred to Re Howe and Repatriation Commission [1999] AATA 1006. While that decision concerned post traumatic stress disorder, Mr Dawson submitted that it was nevertheless relevant to considering the appropriate definition for generalised anxiety disorder. At paragraph 29 of that decision, the Tribunal noted that the word "experience", by its nature introduces an element of subjectivity. The submissions made by the Respondent in this matter take no account of the subjective nature of one's personal experience. It requires an "average person or an ordinary man test" [sic] to be made to the particular events, Mr Dawson contended.

Mr Dawson submitted that it is clear from the Act that the responsibility for determining Statements of Principles is the task of the Repatriation Medical Authority and not the Respondent. The application of an objective test is of particular concern because it takes no account what Mr Dawson referred to as the "egg shell skull phenomenon". Mr Dawson urged the Tribunal to consider that its task is to ensure that Mr Shooter actually suffered stress or anxiety and to be reasonably satisfied as to the facts. The Tribunal must then determine if the facts meet the reasonable hypothesis test.
Further referring to Re Howe (supra), Mr Dawson noted that that Tribunal had found that Mr Howe had been confronted with the death of friends and in the course of his fork-lift duties in Vietnam been threatened with death or injury. The Tribunal in Re Howe (supra) found that his experience of a traumatic event involved experiencing tracer fire all around him and this was as close as Mr Howe came to combat. In relation to Mr Shooter's situation in HMAS SYDNEY, the situation was not nearly so confronting but nor is the test for a stressful event as strict or rigid as for traumatic event as defined in the Statement of Principles concerning Post Traumatic Stress Disorder. Mr Dawson referred the Tribunal to Repatriation Commission v Binding [1999] FCA 974 for a discussion of the issues concerning "experiencing a stressor" in relation to the relevant Statement of Principles concerning Post Traumatic Stress Disorder. Binding (supra) has relevance for Mr Shooter's case, Mr Dawson submitted.
Mr Shooter stated that while on operational service he was frightened and nervous. In Mr Dawson's submission, that is sufficient to meet the test of having feelings of anxiety or stress. If a traumatic event as defined in the Department's booklet on post traumatic stress disorder can involve being in a dangerous war zone or taking part in peace keeping missions under difficult and stressful conditions, then clearly the lesser definition for generalised anxiety disorder was met by Mr Shooter. Mr Dawson submitted that an event is not a discreet moment in time but can extend over the period during which a veteran is exposed to dangerous war zones or peace-keeping activities. The definition of a stressful event could therefore, in Mr Dawson's submission, extend to the whole period of Mr Shooter's service in HMAS SNIPE and SYNDEY. The Tribunal should not be limited to considering discrete incidents.
Mr Dawson turned to consider the condition of psychoactive substance abuse in the form of alcohol abuse. The relevant Statement of Principles is Instrument Number 5 of 1994, concerning Psychoactive Substance Abuse or Dependence. Mr Dawson submitted that Mr Shooter could meet either factors 1(a) or 1(b) of the Statement of Principles. Those factors are:
"(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b) having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or …"

A "stressful event" is defined as:

"…an incident in which there are external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."

Considering factor 1(a), Mr Dawson submitted that Mr Shooter has provided evidence of two specific incidents, which would meet the test of him experiencing a stressful event. These refer to the blacking out of HMAS SNIPE, the scare charges being exploded during Mr Shooter's service in HMAS SYDNEY and the associated concern about the explosion of mines.
In relation to Mr Shooter having a psychiatric condition, if the Tribunal finds that Mr Shooter suffers from a war-caused generalised anxiety disorder, then factor 1(b) of the relevant Statement of Principles for psychoactive substance abuse or dependence is met.
In relation to the condition of hypertension, Mr Dawson submitted that if the Tribunal accepted that Mr Shooter has war-caused psychoactive substance abuse in the form of alcohol abuse, then he would meet factor 1(b) of Instrument Number 83 of 1995 concerning Hypertension. Factor 1(b) of that Statement of Principles requires:
"(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or ..."

Mr Dawson submitted that Mr Shooter was suffering from alcohol abuse before and continued to suffer from this condition at least until the accurate determination of hypertension. Therefore, the decision as to whether or not Mr Shooter has a war-caused condition of hypertension will turn on the Tribunal's decision in relation to psychoactive substance abuse, in the form of alcohol abuse.

In relation to the condition of diabetes mellitus, Mr Dawson submitted that the appropriate Statement of Principles is Instrument Number 47 of 1996, as amended by Instrument Number 187 of 1996. The relevant factor, Mr Dawson submitted, is factor 5(c), which states:
"(c) in relation to type 2 diabetes mellitus, smoking at least 10 cigarettes per day for at least 20 years, and continuing to do so within the 10 years immediately before the clinical onset of diabetes mellitus;…"

In order to meet this factor, Mr Dawson submitted that not only does Mr Shooter have to satisfy the Tribunal of a war-caused smoking habit, but the Tribunal must also be satisfied in relation to the required level of tobacco consumption. The veteran must also satisfy the psychoactive substance abuse tobacco test. Mr Dawson acknowledged that the Tribunal had a difficult task of assessing whether Mr Shooter was tobacco dependant prior to the stressful event and the clinical onset of generalised anxiety disorder and further, he conceded that the Tribunal would have some difficulty with the mathematical calculation of establishing whether Mr Shooter satisfied the tobacco consumption required for this factor.

In relation to the onset of the condition of diabetes mellitus, Mr Dawson noted that the condition was diagnosed in 1997 but that it does not necessarily mean that this was the onset of the condition. It would not be uncommon in the case of non-insulin dependent diabetes, Mr Dawson submitted, for Mr Shooter to have had the condition for some period of time before it was properly diagnose. Mr Dawson concluded that Mr Shooter should not be penalised because he did not know that he had diabetes before it was diagnosed in 1997.
If the Tribunal found in favour of the Applicant, Mr Dawson submitted that the earliest date of effect for the condition of diabetes mellitus would be 12 March 1997; while for anxiety state, psychoactive substance abuse and hypertension, the earliest date of effect would be 26 April 1998.
Ms Doggett for the Respondent firstly considered the issue of diabetes mellitus. While there was no disagreement that Mr Shooter suffers from diabetes mellitus, the issue of clinical onset remained and it was the Respondent's submission that on the balance of probabilities the clinical onset of diabetes mellitus was not any time prior to 1997. The best information that the Tribunal has is that which was provided to the Veterans' Review Board at folio 93 of the T-Documents where the veteran was reported as having stated that he had been monitored for years in relation to diabetes, possibly on the basis that his mother had been a diabetic. The condition was not diagnosed as being present and no medication or diet control was provided until 1997. Given that Mr Shooter was regularly monitored because of a family history of diabetes, Ms Doggett submitted on the balance of probabilities that the Tribunal could not determine a clinical onset prior to 1997 when it was diagnosed. Given a clinical onset of 1997, the requirement within the Statement of Principles is that Mr Shooter smoked at least ten cigarettes per day for at least 20 years and that he continued to do so within the ten years immediately before the clinical onset of diabetes. There is no requirement to refer to pack years in this Statement of Principles, Ms Doggett submitted.
Mr Shooter's evidence is that from 1984 to 1989 he did try to cease smoking. Ms Doggett submitted that on the basis that Mr Shooter did not continue to smoke ten cigarettes per day within ten years immediately prior to the clinical onset of diabetes because of his various attempts at cessation, then he necessarily must fail factor 5(c) of the relevant Statement of Principles. Ms Doggett submitted that the smoking history provided by Mr Shooter is of a gradual increase of cigarette consumption. He started smoking prior to his service having the "odd" cigarette; on enlistment, Mr Shooter's cigarette consumption increased when he had more money and then increased gradually up to 70 cigarettes over a period of nine years. Ms Doggett submitted that there where no jumps of increases during that period but rather there was a gradual and "natural" increase. Further, Ms Doggett asked the Tribunal to consider the obvious inconsistencies provided by Mr Shooter in relation to his smoking history. Thus, Ms Doggett concluded that in relation to diabetes mellitus, Mr Shooter failed factor 5(c) on two bases. Firstly, he did not continue to smoke within the ten year period prior to the clinical onset and secondly, even if the quantity was met, Mr Shooter's smoking was not causally related to his war-service.
In relation to the condition of generalised anxiety disorder and the Statement of Principles being 48 of 1994 as amended by 275 of 1995, once again, the diagnosis of the condition is conceded. Ms Doggett noted, however, that the clinical onset of the condition is at issue. Ms Doggett submitted that on the basis of the decision in Repatriation Commission v Gosewinckel (supra), the Tribunal is required to find on the balance of probabilities that the diagnostic criteria set out in the Statement of Principles is satisfied at the time of clinical onset. Accordingly, the Tribunal needs to look at the diagnostic criteria which are contained within paragraph four of the Statement of Principles for generalised anxiety disorder, which must be met at the time of clinical onset. It was Ms Doggett's submission on the oral and documentary evidence, that the earliest date for clinical onset of generalised anxiety disorder is 1970, when Mr Shooter was first diagnosed and obtained treatment for the condition. There was no evidence of Mr Shooter seeking treatment prior to that and he had not had any episodes of sleepwalking reported prior to that. There is therefore no evidence that Mr Shooter satisfied any of diagnostic criteria prior to 1970. While Dr Lewin reported childhood symptoms of anxiety, it may well be the case, Ms Doggett submitted, that Mr Shooter had an anxiety trait during his childhood but she contended that it is clear from all the evidence that the clinical onset of a generalised anxiety disorder was 1970. The requirement in the Statement of Principles is that a stressful event must have occurred not more than two years before the clinical onset of generalised anxiety disorder, that is, in Mr Shooter's case, within the period between 1968 and 1970. During this period, the experiences in HMAS SNIPE are not relevant for the factor. It is only the last two trips to Vietnam in HMAS SYDNEY that are relevant to the Tribunal's consideration, Ms Doggett submitted.
Referring to Mr Dawson's reliance on the Departmental publication concerning post traumatic stress disorder (Exhibit A3), Ms Doggett contended that it is quite clear from the introductory pages of the book that the purpose of the document is to provide information to assist veterans and their families to develop an understanding about the response and symptoms they might have as a result of their war service (Exhibit A3, p4). Ms Doggett noted that the clear focus of the booklet is on post traumatic stress disorder and while there is some discussion of associated problems, these are only as they relate to post traumatic stress disorder. While accepting that anxiety is an associated symptom of post traumatic stress disorder, Ms Doggett contended that anxiety disorder is a completely different condition. Ms Doggett further submitted that it was to stretch the purpose of the booklet to say that it had relevance for generalised anxiety disorder and the Tribunal should give little weight to it.
Referring to Mr Dawson's reliance on Re Howe (supra), Ms Doggett pointed out that decision also dealt with post traumatic stress disorder and not generalised anxiety disorder. There is little value in using discussion in relation to post traumatic stress disorder, in order to make determinations about generalised anxiety disorder nor to consider the application of the definition of a stressful event. The terminology and definitional material used in post traumatic stress disorder are different than that used for generalised anxiety disorder. The purpose of Re Howe (supra) deals with the objective element involved in assessing a traumatic event and Ms Doggett submitted that the Senior Member determining Re Howe (supra) has subsequently changed her mind in a recent decision, Re Jehn and Repatriation Commission [2000] AATA 484.
In relation to the decision of Repatriation Commission v Binding (supra), Ms Doggett submitted that the Federal Court did not turn its mind to the issue of whether a stressor needed to be objective or subjective and not much weight could be given to that decision so far as it related to the facts in Mr Shooter's case. Further, the decision of ReBudworth and Repatriation Commission [2000] AATA 127 while also dealing with post traumatic stress disorder and experiencing a stressful event, determines that the definition required an objective test.
Mr Doggett submitted that in relation to generalised anxiety disorder, the issues before the Tribunal must not only include consideration of the oral evidence but of the whole of the material before it. Ms Doggett submitted that when Mr Shooter went to Vietnam he knew about scare charges. He might momentarily have thought, "I don't know whether that is a scare charge or an explosion", but that has to be looked at in the context of Mr Shooter having been in service for five years. The evidence was that he had drilled repeatedly at action stations and emergency procedures had been discussed. Indeed, Mr Shooter admitted that scare charges were part of the regular routine. Ms Doggett further submitted that this was not the first time Mr Shooter had experienced such occurrences and by the relevant period of service between 1968 and 1970, he had been in Vietnamese waters on three or four occasions and had certainly experienced the use of scare charges prior to that. Ms Doggett referred to Dr Dinnen's report which noted that Mr Shooter had told him he had seen nothing to cause any concern but had heard stories which caused him to be worried. Within this context, and looking at the history of Mr Shooter's service, the Tribunal must take into account the level of training which he received prior to going to Vietnam. If Mr Shooter had gone to Vietnam during conflict without any experience, without any training on a naval vessel and without having heard a scare charge previously, he may well have satisfied the definition of a stressful event. However, with Mr Shooter's naval history and experience, Ms Doggett submitted that he did not meet the requirement of experiencing a stressful event. The crux of the matter is that the stressful event must cause the generalised anxiety disorder. It is not enough that someone has generalised anxiety disorder and someone has experienced a stressful event, there has to be a causal relationship between the event, the service and the onset of the condition in order to form a hypothesis. The Tribunal needs to determine in Mr Shooter's circumstances whether the stressful event he relies upon is of a nature that would cause a life long psychiatric condition of generalised anxiety disorder.
Turning to the issue of psychoactive substance abuse, Ms Doggett submitted that the diagnosis is conceded and Mr Shooter's evidence was that he had been drinking about six schooners a day for many years and he was drinking six schooners of beer per day prior to his discharge. Ms Doggett submitted that the clinical onset of the condition was probably in 1968 or 1969, which is the evidence Mr Shooter provided as to when he commenced drinking alcohol at that level. Therefore, the onset of psychoactive substance abuse was actually prior to the onset of Mr Shooter's generalised anxiety disorder. Ms Doggett submitted therefore that the relevant factor is not factor 1(b) but rather 1(d) which deals with having a psychiatric condition prior to clinical worsening of psychoactive substance abuse. There is no evidence in this case, however, Ms Doggett submitted, of a clinical worsening of alcohol abuse.
In relation to factor 1(a) of experiencing a stressful event prior to the onset of alcohol abuse, the definition of experiencing a stressful event is different to that contained within the generalised anxiety disorder Statement of Principles. In the Psychoactive Substance Abuse Statement of Principles, the example of combat is given as a stressful event. In these circumstances, Ms Doggett submitted the Tribunal should have regard to the magnitude of the stressful event that is required by the Statements of Principles. Ms Doggett contended that Mr Shooter did not experience a stressful event which could satisfy this definition. In such circumstances it could not be found that Mr Shooter's alcohol abuse was war-caused.
Turning to consider the claimed condition of hypertension, Ms Doggett conceded that should the Tribunal find that Mr Shooter has a psychoactive substance abuse condition, in the form of alcohol abuse, which is related to his service, then the factor 1(b) of Instrument Number 83 of 1995, concerning Hypertension would be met. Accordingly, in those circumstances hypertension would be found to be service related.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the legislation and case law.
The Tribunal considers that Mr Shooter provided honest evidence to the best of his ability. He was, however, noted to be clearly inconsistent in detail about various aspects of his naval service but in particular in relation to his smoking history. The Tribunal did not take these inconsistencies to mean that Mr Shooter was dishonest or deliberately misleading the Tribunal. The events being discussed occurred some considerable time ago and this must be taken into account in addition to the context and nature of Mr Shooter's various disabilities. Before turning to consider each of Mr Shooter's claimed conditions, the Tribunal considers it important to set out the approach it will follow in deciding whether Mr Shooter's condition of generalised anxiety disorder, psychoactive substance abuse, hypertension and diabetes mellitus are war-caused.
Mr Shooter rendered operational service during periods detailed at the beginning of this decision. In this context, the appropriate standard of proof to be applied is that of subsection 120(1) of the Act. Subsection 120(3) deals with the situation in which the Commission or decision-makers must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining amongst other matters that a disease or injury was war-caused.
In circumstances such as these, the approach to be adopted where Statements of Principles are in existence was determined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Full Court concluded as follows:
"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). 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 ss 196(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or know scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that incapacity did not arise from a war-caused injury. If not 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…."

Generalised Anxiety Disorder

There is agreement between the parties that the psychiatric condition suffered by Mr Shooter is correctly diagnosed as generalised anxiety disorder. This diagnosis is supported by the opinions of psychiatrists Dr Law, Dr Lewin and Dr Dinnen. The Tribunal has considered the diagnostic criteria contained in paragraph four of the relevant Statement of Principles and is reasonably satisfied that Mr Shooter does indeed suffer from the condition of generalised anxiety disorder.
The date of onset for generalised anxiety disorder is considered by the Tribunal to have occurred in April 1970. The Tribunal bases this finding on contemporaneous Service Medical Reports noting that from April through to July 1970, Mr Shooter was assessed, investigated and eventually diagnosed as having this condition (T4). Further, the Tribunal notes Dr Law's opinion written on 27 January 1998 that Mr Shooter had over the past many years since navy service, often experienced feelings of anxiety which were hard to control (T18). Dr Law opined:
"Mr Shooter probably suffers from a clinically significant degree of anxiety disorder, largely as a result of his adverse navy experiences. I arrive at the conclusion that based on findings from his past navy medical record as well as his present symptoms…." (T18, p77)

Despite Mr Shooter not mentioning any symptoms to his General Practitioner, Dr Tan, Dr Law was not prevented from making this diagnosis.

Dr Dinnen also diagnosed generalised anxiety disorder and opined that Mr Shooter "suffered an anxiety condition since it was first diagnosed during service" (Exhibit A2).
Dr Lewin opined in relation to generalised anxiety disorder, that Mr
Shooter may have had the condition as an adolescent. While the Tribunal accepts that Mr Shooter may have had an anxiety trait during his adolescence, the Tribunal is reasonably satisfied on all the available oral and documentary evidence that a generalised anxiety state had its onset in April 1970.
The hypothesis put by the Applicant is that there is a link between the stressful events on Navy service including the blackout of HMAS SNIPE when an unidentified vessel approached, or in HMAS SYDNEY when Mr Shooter experienced scare charges and the threat of floating mines exploding. While the incident in HMAS SNIPE occurred between 1964 and 1965, the events in HMAS SYDNEY occurred between April 1967 and November 1968, when HMAS SYDNEY was in Vietnam. The hypothesis is that these were stressful events and this led to the onset of generalised anxiety disorder. The Tribunal finds that there is nothing fanciful or impossible about the hypothesis and hence in such circumstances turned to consider whether or not a reasonable hypothesis could be raised in terms of the template contained in the relevant Statement of Principles as amended. The Tribunal agrees that the relevant factor is factor 1(b) which has already been detailed and which requires the experience of a stressful event not more that two years before the clinical onset of generalised anxiety disorder. The Tribunal has already found that the onset of generalised anxiety disorder was in April 1970. Accordingly, the stressful event must have occurred within two years of 1970 and on Mr Shooter's history, this would need to be between 1968 and 1970. During this period, Mr Shooter was on operational service while serving in HMAS SYDNEY from January 1968 to November 1968.
"Experiencing a stressful event" means an occurrence which evokes feelings of anxiety or stress. Mr Shooter's expression of anxiety or stress involved descriptions of being "a bit concerned" or that he thought about the possibility of threat to himself. The events he experienced were not direct threats to him but involved discussion with naval divers as to events that had occurred or involved his being alert over scare charges. The Tribunal notes that Mr Shooter had previous sea experience, was trained in action and defence stations and was aware and experienced in the use of scare charges. The Tribunal agrees with Mr Dawson's submission that Mr Shooter's evidence was unembellished and unexaggerated. Even allowing for Mr Shooter's understated evidence, the Tribunal nevertheless finds that Mr Shooter provided evidence as to how he truly felt - he was "a bit concerned" and may have been worried from time to time. This experience does not, in the context of Mr Shooter's overall circumstances, persuade the Tribunal that he in fact suffered a stressful event. That he was concerned or indeed anxious from time to time does not lead the Tribunal to find that there was a particular stressful event or events, which satisfies the definition of a "stressful event" as provided for in the Statement of Principles.
Further, the Tribunal does not consider that the booklet referring to post traumatic stress disorder is of assistance in this matter. On the Tribunal's reading of the publication, it has reference squarely for post traumatic stress disorder.
Although the Tribunal accepts Mr Dawson's submission that the definition of "experiencing a stressful event" is a less rigorous and onerous test to meet than the definition of "experiencing a severe stressor" in the Statement of Principles concerning Post Traumatic Stress Disorder; the Tribunal maintains its finding, however, that even with the less stringent definitional requirements Mr Shooter did not experience a stressful event. Therefore, the Tribunal determines that factor 1(b) of the relevant Statement of Principles concerning Generalised Anxiety Disorder is not met. On considering the remaining factors, the Tribunal finds that no other factor is met. Therefore, the Tribunal considers on the material before it that none of the minimum factors set out in the relevant Statement of Principles is raised by the evidence in Mr Shooter's case. The Tribunal is therefore of the view that the material does raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act. As a consequence, the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Shooter's condition of generalised anxiety disorder is war-caused.
Psychoactive Substance Abuse
The Tribunal notes that the Repatriation Commission's decision and that of the Veterans' Review Board referred only to the condition of generalised anxiety disorder, though both the Respondent and Applicant accept that the proper diagnosis of Mr Shooter's psychiatric problem is generalised anxiety disorder and psychoactive substance abuse. The Tribunal agrees with the extension of this diagnosis. Accordingly, the Tribunal considers it must vary the diagnosis of the condition of generalised anxiety disorder to include the addition of psychoactive substance abuse in the form of alcohol abuse. Having so varied the diagnosis of the condition, the Tribunal turns to consider the separate but related condition of psychoactive substance abuse.
Considering the opinions of Dr Law, Dr Lewin and Dr Dinnen and noting Mr Shooter's evidence, the Tribunal considers that Mr Shooter's alcohol abuse fits the diagnostic criteria contained within paragraph 4 of the Statement of Principles being Instrument Number 5 of 1994, concerning Psychoactive Substance Abuse or Dependence. The Tribunal considers that psychoactive substance abuse had its onset at the time of discharge in 1970 or shortly thereafter.
The hypothesis raised is that either Mr Shooter experienced a stressful event prior to the onset of alcohol abuse (factor 1(a)) or he had a psychiatric condition prior to the onset of psychoactive substance abuse (factor 1(b)). The Tribunal finds therefore that a hypothesis has been raised. The next step following the Full Court's approach in Repatriation Commission v Deledio (supra) is that the Tribunal must consider whether a reasonable hypothesis is raised as provided for in subsection 120(3) of the Act. Accordingly the Tribunal turned to consider the Statement of Principles Instrument Number 5 of 1994.
The Tribunal has already found that Mr Shooter did not have a war-caused psychiatric condition and hence Mr Shooter does not meet factor 1(b) of the relevant Statement of Principles and a reasonable hypothesis can not be raised in such circumstances.
In relation to factor 1(a), requiring the experience of a stressful event prior to the onset of alcohol abuse, the definition of experiencing a stressful event includes the example of experiencing combat. This definition is a harder test to meet than that contained within the generalised anxiety disorder Statement of Principles. Mr Shooter was not involved in any direct combat nor threatening situation and as such, the Tribunal considers that the circumstances of his service do not satisfy the definition of experiencing a stressful event. The Tribunal does not consider that any other factor in the Statement of Principles is met.
Therefore, on all the material available to the Tribunal, it finds that none of the factors contained within the Statement of Principles, Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence is raised by the evidence. The Tribunal determines accordingly that no reasonable hypothesis is raised within the meaning of section 120(3) of the Act. Accordingly, the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act that there is no sufficient ground for determining that the condition of psychoactive substance abuse in the form of alcohol abuse is war-caused. In these circumstances, the Tribunal must affirm the decision under review.
Hypertension
The hypothesis put by Mr Dawson is that Mr Shooter's hypertension was caused by his suffering from psychoactive substance abuse in the form of alcohol abuse before the determination of hypertension and continuing at least until the accurate determination of hypertension. Factor 1(b) of the Statement of Principles Instrument Number 83 of 1995 is therefore relevant. It is not clear to the Tribunal as to the date of onset of hypertension nor when the condition was first diagnosed.
The Tribunal accepts that Mr Shooter has a condition of alcohol abuse and the onset of this was at discharge from the Navy or shortly thereafter. The hypothesis put by Mr Dawson is that hypertension is related to Mr Shooter's alcohol abuse problem. This is not a fanciful nor impossible hypothesis. The Tribunal then turned to subsection 120(3) of the Act, to consider whether a reasonable hypothesis could be raised. The difficulty for Mr Shooter is that the Tribunal has already determined that psychoactive substance abuse while existing, is not service-related. In such circumstances there is no reasonable hypothesis raised within the template as factor 1(b) is not met. Accordingly, the Tribunal considers that the evidence before it does not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act and as a consequence, the Tribunal is satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Shooter's condition of hypertension was war-caused. In these circumstances, the Tribunal is also required to affirm the decision under review in respect of hypertension.
Diabetes Mellitus
The Tribunal accepts that Mr Shooter has a condition of diabetes mellitus and the condition meets the diagnostic criteria for Type 2 diabetes, which is non-insulin dependent diabetes mellitus. The diagnosis of the condition was confirmed by Dr Tan on 1 July 1997 (T12).
In relation to the onset of the condition of diabetes mellitus, the Tribunal is reasonably satisfied that the onset occurred in 1997. There is nothing in the material to suggest an earlier onset and the Tribunal is confirmed in its view, noting Mr Shooter's evidence to the Veterans' Review Board that because his mother had been diabetic, he was regularly monitored for diabetes by his doctor. Mr Shooter had been attending his General Practitioner, Dr Tan since 1980, so there was consistency of medical approach and investigation. The Tribunal further finds that there is no notation in a Departmental Medical Report in 1986 of there being any presence of diabetes mellitus.
The Applicant's hypothesis is that Mr Shooter's smoking habit has caused his diabetes. This is not beyond the realms of scientific possibilities and is not an unreasonable proposition. Hence the Tribunal turned to consider whether or not a reasonable hypothesis is raised as provided for within subsection 120(3) of the Act. The relevant factor is factor 5(c) of the Statement of Principles, which for Type 2 diabetes requires the smoking of at least ten cigarettes per day for at least 20 years and continuing to do so within the ten years before the onset of diabetes mellitus. To succeed, Mr Shooter is required to satisfy the Tribunal that he had a service-related smoking habit and that this habit continued at least to the level of smoking ten cigarettes per day for 20 years and up until at least 1987 which is ten years before the onset of diabetes mellitus in 1997.
Determination of Mr Shooter's smoking history is extremely difficult given the inconsistency in the information provided by Mr Shooter. The Tribunal has already found that Mr Shooter has not deliberately lied to the Tribunal nor tried to mislead it. The Tribunal is of the opinion that Mr Shooter's inability to accurately recall his smoking history relates to his memory loss and other associated condition of his anxiety state and his alcohol abuse. The Tribunal determines on all the available evidence that Mr Shooter smoked nominal quantities of cigarettes before Naval service but commenced smoking consistently from 1962 when he enlisted in the Navy. This smoking gradually increased from between five to ten cigarettes per day on enlistment in 1962 increasing to 20 cigarettes per day in 1964 when he was serving in HMAS SNIPE on operational service. There was a further increase in cigarette consumption up to two packets of cigarettes per day until 1989. The Tribunal accepts that Mr Shooter may have ceased smoking for a very short period in 1984 but determines that the cessation was for a very brief period and not sufficient to effect the history of smoking at least 20 cigarettes per day. The Tribunal considers that while there was smoking at the commencement of enlistment and before his operational service, this was minimal and not to the level of an established habit. There was, however, a marked increase in Mr Shooter's smoking consumption when he undertook operational service in HMAS SNIPE. Not only were cigarettes freely available and inexpensive, but Mr Shooter was away from home and anxious about serving in the Borneo/Malay Peninsula area. Thus the Tribunal accepts with some leniency, that Mr Shooter had a war-caused smoking habit. The Tribunal turned to subsection 120(3) of the Act to consider whether or not a reasonable hypothesis could be raised using factor 1(c) of the Statement of Principles for diabetes mellitus. The Tribunal accepts that Mr Shooter smoked 20 cigarettes per day from at least 1964 and continued to do so at this rate until at least 1989 which is within the ten years of the onset of diabetes mellitus.
The Tribunal determines that factor 5(c) is met by the evidence in this case and therefore determines that a reasonable hypothesis has been raised within the meaning of subsection 120(3) of the Act. The Tribunal is therefore of the opinion that as the material raises a reasonable hypothesis, it must turn to the application of subsection 120(1) of the Act to determine whether it can accept sufficient facts as are necessary to support this raised hypothesis.
The Tribunal has noted Mr Shooter's inconsistency in his smoking history but reiterates that it does not consider that this inconsistency relates to dishonesty or an attempt to mislead the Tribunal or previous decision-makers. The Tribunal accepts that the reason for Mr Shooter's marked increase in his cigarette consumption in 1964 relates to the stress of being on operational service in Borneo and Vietnam and the fact that cigarettes were freely available. The Tribunal also considered whether its finding that in relation to the reasons for increase in tobacco consumption might be inconsistent with its previous findings that Mr Shooter had not experienced a stressful event while on operational service. The Tribunal is of the view that its finding there had been an increase in smoking for reasons including the stress of being away from home and operational service was not inconsistent with its findings that Mr Shooter had not experienced a stressful event as defined with in the Statement of Principles. The Tribunal considers that the discrete incidence of a stressful event, as defined in the Statement of Principles, is different and as a test more difficult to satisfy, than that of the general circumstances of Mr Shooter being away from home on operational service which caused him to turn in circumstances of easy availability of tobacco, to the establishment of a smoking habit and an increase in his cigarette consumption to ease his concerns.
Accordingly, in all the circumstances and for the reasons explained above, the Tribunal finds that having considered all of the material before it, it is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is not sufficient ground for determining that Mr Shooter's diabetes mellitus is war-caused. The decision under review in relation to diabetes mellitus is therefore set aside and the Tribunal substitutes its decision that Mr Shooter's condition of diabetes mellitus was war-caused pursuant to section 9 of the Act with effect from 12 March 1997, being three months from the date his claim was lodged. The issue of assessment is remitted to the Commission for determination.
In summary the Tribunal affirms those parts of the Repatriation Commission's decision of 25 April 1998 as affirmed by the Veterans' Review Board on 4 August 1999 that generalised anxiety disorder and psychoactive substance abuse (the diagnosis as varied) and hypertension are not war-caused. As detailed above, the Repatriation Commission's decision concerning diabetes mellitus is set aside as the Tribunal determines that this condition is war-caused.

I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         ........................ [sgd]...............................
  Sharonne Brainenberg, Associate
Date of Hearing                  25 October 2000
Date of Decision                  7 December 2000
Representative for the Applicant            Mr N Dawson, Barrister
Representative for the Respondent        Ms M Doggett, Advocate