Spencer and Repatriation Commission
[2007] AATA 1769
•17 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1769
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500161
VETERANS’ APPEALS DIVISION ) Re JEFFREY SPENCER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD
Dr GJ Maynard, MemberDate17 September 2007
PlaceBrisbane
Decision The Tribunal:
(1) varies the decision under review as it relates to depressive disorder and substitutes a decision that depressive disorder is war-caused with effect from 28 November 2003; and
(2) affirms the decision that generalised anxiety disorder and alcohol abuse are not war-caused.
..............[sgd]................................
SENIOR MEMBER
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service in Australian Army – generalised anxiety disorder – depressive disorder – alcohol abuse – Statement of Principles – medical evidence – applicant claims to have experienced 9 stressful events – decision under review varied
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Gorton (2001) 65 ALD 609REASONS FOR DECISION
17 September 2007
Senior Member P McDermott, RFD
Dr GJ Maynard, MemberIntroduction
1. Mr Jeffrey Norwood Spencer has claimed that generalised anxiety disorder, depressive disorder and alcohol abuse are service related. We have to decide whether these claimed conditions are service related conditions.
Decisions
2. On 28 May 2003 the Repatriation Commission (the Commission) made a decision that alcohol dependence was not related to service.
3. Mr Spencer sought a review of this decision from the Veterans’ Review Board. On 2 December 2004 the Veterans’ Review Board diagnosed conditions of generalised anxiety disorder and depressive disorder in place of alcohol dependence and affirmed the decision under review, as varied.
4. Mr Spencer has now applied to this Tribunal to review the decision of the Veterans’ Review Board.
Issues before the Tribunal
5. We have to decide whether the claimed conditions of generalised anxiety disorder, depressive disorder and alcohol abuse are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the Act).
Date of effect
6. If Mr Spencer is successful in his application, we consider that the date of effect is 28 November 2003. The application for review to the Board was made more than 3 months, but within 12 months, of notice in writing of the decision of the Repatriation Commission.
Background
7. Mr Spencer served in the Australian Army from 19 December 1966 until 19 June 1970. He then served in the Royal Australian Air Force from 28 April 1972 until 1 November 1988.
8. For the purposes of the Act Mr Spencer has operational service in Vietnam from 4 February 1969 to 4 February 1970. He also has eligible defence service from 7 December 1972 to 1 November 1988.
9. Mr Spencer asserts in these present proceedings that certain stressful events occurred during his operational service in Vietnam and caused the conditions on which his claim is based.
10. Mr Spencer who gave oral evidence verified the contents of a number of statements that were admitted into evidence: statement, 9 September 2005 [ex. A]; statement, 9 September 2005 [ex. B]; statements, 4 & 5 October 2005 [ex. C]; statement, 25 April 2006 [ex. D].
Stressors
11. Nine stressors have been outlined in the various statements of Mr Spencer as well as in his evidence. We will later outline these stressful events. However, we mention at the outset that Mr Spencer in being cross-examined stated that it was not possible to pinpoint any one incident which specifically affected him. However, Mr Spencer in his evidence had mentioned that one memorable event was when a monkey set off the trip wire. That event is mentioned in our reasons as stressful event 2.
Stressful event 1 (Fire support base)
12. Mr Spencer as a member of 105 Fd Bty was deployed to fire support bases. At one fire support base he and other members of his unit were unable to board the vehicles which were returning to base. During the hearing before this Tribunal Mr Spencer in explaining the incident indicated that he had a degree of apprehension but that he did not actually physically foul himself. There was a minor variance as to the number of members of his unit that were at the fire support base.
Stressful event 2 (Flare incident)
13. During operations a single flare went up on the perimeter. The flare was on a trip wire which could be activated in the event that the enemy attempted to get through the wire on the perimeter. The fire support base stood to in their defensive positions in case the flare was set off by enemy action. There was no firing on this occasion. There was no sign of enemy activity. In the morning a patrol found a dead monkey on the wire.
Stressful event 3 (Clearance patrol)
14. One morning when he was on a routine clearance patrol Mr Spencer noticed somebody in the scrub. Both Mr Spencer and the other person instinctively raised their rifles at each other. The person was some 20 or 30 feet way from him. He then realised that it was another member of his patrol. When they returned to the base they discussed how close they came to firing upon each other. Mr Spencer remarked: “the time elapsed [was] a period of five to ten seconds which on reflection seemed endless”. The clearance patrol was moving in a single file along a track which was in a circular (U) shape.
15. Mr Spencer in his statement has clarified that he does not remember the name of the other soldier involved in the incident. He also stated that neither of the soldiers reported the incident to anyone in authority.
16. Mr Spencer informed Dr Mulholland that both he and the other soldier held his SLR (self loading rifle) on his hip. In evidence before this Tribunal he stated that the SLR was held in the ready position with the safety catch off.
17. Mr Spencer, in cross-examination, agreed that the he realised fairly quickly that he and the other person were friends. He also agreed that when he returned to based he “laughed about” the incident.
Stressful event 4 (Downed helicopter)
18. This incident involved a downed US helicopter. Not long afterwards Mr Spencer’s battery was ordered to fire onto the location where the helicopter had crashed. There was speculation in the battery as to whether the fire mission had been ordered to destroy the helicopter to prevent the enemy from capturing any equipment. No details of what happened to the downed crew were given. There was concern that the battery had fired on the downed crew. Mr Spencer under cross-examination agreed that he was about three or four miles away from the helicopter and that he did not see the helicopter strike the ground. He also stated that he did not hear any explosion nor did he see any smoke rising.
Stressful event 5 (Jungle event)
19. Mr Spencer said that he was inserted into the jungle ahead of other forces. Mr Spencer under cross-examination agreed that he did not tell Dr Athey or Dr Mulholland about this incident.
Stressful event 6 (Claymore mines event)
20. Mr Spencer found two or three claymore mines had been pointed the wrong way. These mines were located outside the concertina wires near the outer perimeters.
Stressful event 7 (Dead North Vietnamese soldier)
21. Mr Spencer said that on patrol he saw a North Vietnamese soldier whose body seemed to have been run over by a heavy vehicle. Mr Spencer in cross-examination agreed that he had a vivid memory of the incident although he did not recall it until a few weeks prior to the hearing.
Stressful event 8 (Wet canteen incident)
22. Mr Spencer was in an airmen’s mess when it was hit by shrapnel that was subsequently found to be as a result of a mortar shell being set off in another canteen nearby. In a statement Mr Spencer said that the mortar was a souvenir that did not contain any explosives in the body of the shell. The mortar just had the fuse. It was put to Mr Spencer in cross-examination that it was more likely that stones and rubbish spattered on the roof of the mess than shrapnel, to which Mr Spencer replied: “Well, stones sounds like steel on a tin roof”.
Stressful event 9 (South Vietnamese re-education facility)
23. Mr Spencer was outside a South Vietnamese choihoi centre, or a re-education facility, where he could hear the noises of people which he understood could be likened to people being tortured. In his statement he said that this was a normal practice. Mr Spencer said that the centre was in Baria which is outside of Nui Dat. At the time Mr Spencer was probably shopping.
Medical evidence
24. The only medical witness who gave evidence before us was Dr Peter Mulholland, a psychiatrist. Dr Mulholland interviewed and examined Mr Spencer on 17 November 2005 and on 24 November 2005 for a total period of 2 hours and 40 minutes. On 8 December 2005 Dr Mulholland provided a report of those examinations which was admitted into evidence [ex. R1]. In his evidence Dr Mulholland verified the accuracy of his report apart from two typographical errors which were corrected.
25. Under cross-examination Dr Mulholland confirmed his opinion, which was expressed in his report (at para 21.1), that Mr Spencer finds it difficult to express his emotions. Dr Mulholland also clarified that what he stated in his report (at para 24.4) meant that if one accepts what Mr Spencer says, then the psychiatric conditions of Mr Spencer commenced when he was in Vietnam. However, Dr Mulholland stated that there was a lack of contemporaneous evidence to support his contention.
26. In cross-examination Dr Mulholland confirmed his opinion, as mentioned in his report (at para 27.1), that it is more probable then not that Mr Spencer does have long-standing conditions. Dr Mulholland considered that the condition was best diagnosed as a major depressive disorder and generalised anxiety disorder. Dr Mulholland remarked that psychiatrists often disagree on what the exact diagnosis of a patient is, but thought that his diagnosis was the best way to categorise him.
27. Dr Mulholland confirmed in cross-examination that it was not unusual for someone such as Mr Spencer not to outline all his events in any particular document. Dr Mulholland also confirmed that it was not unusual for somebody who had difficulties following his service to self-medicate with alcohol.
28. In re-examination Dr Mulholland was asked to clarify his opinion that he expressed in his report concerning the clinical onset of Mr Spencer’s conditions. In his report Dr Mulholland remarked: “The date of clinical onset is difficult to answer and it is possible that he may have had some features of the present conditions for many years but without the fully developed conditions” (para 27.9). Dr Mullholland clarified that the condition was certainly there by 2000 or thereabouts. Dr Mulholland said that on the basis of the history which is outlined by Mr Spencer, he could probably make a diagnosis of an anxiety depression condition since he returned from Vietnam. However, Dr Mulholland stated that he had concerns about the “lack of any corroborative information over what is over thirty years; that is my concern about that”. In his report, Dr Mulholland stated that “it would be more than useful if there was some corroborative contemporaneous information available” (para 27.7).
29. Dr Mulholland was asked to explain the pathology tests that were undertaken. Dr Mulholland stated that the carbohydrate deficient transferrin, which is the most specific indicator of excessive intake of alcohol, was normal as was the MCV test. The raised GTP appeared to be part of a mild polystatic process. Dr Mulholland stated that the pathology tests are not consistent with a current existence of excessive intake of alcohol. Dr Mulholland said that there was an implication that there is an exaggeration of alcohol intake although it was an implication that could not be stated with certainty. Dr Mulholland recognised that the results of pathology tests could be more positive if a person eases off alcohol for a month or so before a test.
30. Dr Mulholland confirmed that Mr Spencer in being interviewed had reported that his daily consumption of standard drinks ranged between a minimum of 6 and a maximum of 20 (report, para 18(i).
31. Dr Mulholland also discussed the 15 years air force service of Mr Spencer. As the air force has annual medicals as well as an alcohol rehabilitation unit, Dr Mulholland had a general expectation that any problems should have been detected during that time. However, Dr Mulholland stated that “his emotional problems and drinking problems must not have been too bad at that time because otherwise you would think, well, surely it would be picked up”. Dr Mulholland, however, agreed with the proposition that it was not unusual for people who are consuming too much alcohol to behave in such a way as to minimise the chances that they would be picked up by superiors.
Legislative background
32. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
33. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. There is no issue that the applicant has not rendered operational service.
34. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
35. As the applicant has performed operational service, as defined in s 6C of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
36. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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 section.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
37. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to operational service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
38. We have to initially give consideration to whether the claimed conditions of Mr Spencer have been appropriately diagnosed.
39. In considering this application we are bound by a decision of the Full Court of the Federal Court of Australia that the issue of whether a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke (1998) 52 ALD 1 at 6. This is the standard that is prescribed by s 120(4) of the Act, which is the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 334 and 335.
40. We are reasonably satisfied that Mr Spencer has generalised anxiety disorder and depressive disorder. There is specialist psychiatric opinion which confirms these diagnoses: Dr P Mulholland; Dr R Athey, consultant psychiatrist [T4, fol 56-64] and Dr L Ding, consultant psychiatrist [T4, fol 20-28].
41. Having regard to the pathology tests mentioned by Dr Mulholland we believe that there has been an exaggeration of the level of alcohol abuse. The samples for the pathology tests were taken in November 2005. This was at a time when Mr Spencer informed Dr Mulholland that his “heavy drinking has continued” [ex. R1, para 18.1].
42. There was certainly no suggestion at his interview with Dr Mulholland that he had decreased the consumption of alcohol. We have already mentioned that Dr Mulholland had stated that the results of pathology tests could be more positive if a person eases off alcohol for a month or so before a test. However, we do not consider that this is an instance where the consumption of alcohol had in fact decreased prior to the pathology tests being taken. We are not reasonably satisfied that Mr Spencer now has symptoms of alcohol abuse.
43. We must apply the test prescribed by s 120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
44. We are satisfied that the evidence before us points to a hypothesis connecting the conditions of the applicant to his operational service. Accordingly the “first step” in Repatriation Commission v Deledio is satisfied.
45. The “second step” in Deledio requires us to ascertain whether there is a SoP which has been determined by the RMA.
46. SoPs have been determined by the RMA pursuant to s 196B(2) of the Act in respect of the conditions in question:
Alcohol Dependence or Alcohol Abuse: Instrument No 76 of 1998;
Generalised Anxiety Disorder: Instrument No 1 of 2000; and
Depressive Disorder: Instrument No 17 of 2007.
47. We now turn to the third step as enunciated in Deledio. This entails us determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.
Alcohol Dependence or Alcohol Abuse
48. We have already concluded that Mr Spencer does not suffer from alcohol abuse. It is therefore not strictly necessary to consider his claims by reference to the alcohol abuse SoP. However, we consider that even if he did have a diagnosed condition of alcohol abuse, his claims do not meet the template of the SoP.
49. Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP: Instrument No 76 of 1998 at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
50. In Clause 5 the relevant factors which are in contention are factors 5(a) and (b).
51. In the terms of factor 5(a), which states a person must be “suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse,” we are prepared to hold that Mr Spencer did indeed suffer from a psychiatric disorder at the time of the clinical onset of alcohol abuse. We accept that Mr Spencer did have a heavy consumption of alcohol at the time that he was in Vietnam.
52. We now consider whether certain events that Mr Spencer has outlined in the stressor statement fits into the category of a “severe stressor” within the meaning of that expression in that SoP.
53. The Alcohol Abuse SoP: Instrument No 76 of 1998 factor 5(b) requires that there must be evidence of an applicant “experiencing a severe stressor”.
54. For the purposes of the Alcohol Dependence or Alcohol Abuse SoP, the expression in factor 5(b) “experiencing a severe stressor” has be interpreted having regard to the definition in clause 8. We conclude that Mr Spencer has outlined events that involved actual or threat of death or serious injury, or a threat to Mr Spencer’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror. These events were Stressful event 7 involving the dead Vietnamese soldier whose body seemed to have been run over by a heavy vehicle, as well as Stressful event 8 which is when the wet canteen was hit by shrapnel.
55. We have been guided by the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55]. We consider that events 7 and 8 judged objectively from the point of view of a reasonable person in the position of the applicant was capable of and did convey (on a subjective basis) the risk of death or serious injury or to physical integrity.
56. We, however, have no material before us which establishes that there was in fact the clinical onset of an alcohol condition within two years of the alleged stressor.
57. We have come to the conclusion that any alcohol consumption of Mr Spencer was not in fact related to service. Mr Spencer informed Dr Mulholland that peer pressure was the reason why he took up heavy drinking and smoking at 17 years of age [ex R1, para 18.4]. It is upon this evidence that we have concluded it is not reasonable to have a hypothesis that the alcohol condition of an applicant is war-caused if the reasons given by the applicant include the statement that if you did not drink or smoke there was “something wrong with you” and/or “you were not one of the boys”, etc. [ex. R1, para 18.4]. These reasons given by Mr Spencer are quite inconsistent with any reasonable hypothesis that that the heavy drinking was service related such as the contention that Mr Spencer may have used alcohol for self-medication. For this reason we consider that the case of Mr Spencer does not fit the “template” for the Alcohol Dependence or Alcohol Abuse SoP.
58. We therefore consider that factors 5(a) and (b) of the Alcohol Dependence or Alcohol Abuse SoP are not established in this application.
Anxiety Disorder
59. Under clause 4 of the Anxiety Disorder SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
60. The relevant factor which is in contention is factor 5(a)(ii) which refers to the veteran “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”. ‘Severe psychosocial stressor’ is defined in clause 8, as follows:-
“…an identifiable occurrence that evokes feels of substantial distress in an individual, for example, being shot at, death or serious injury...”
61. We have had regard to the stressors that have been outlined by Mr Spencer. We consider that events 7 and 8 certainly come within the definition of a “severe psychosocial stressor” as required by factor 5(a)(ii) in the SoP.
62. Having regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55] we again consider that the flattened dead body and the explosion of a mortar shell judged objectively from the point of view of a reasonable person in the position of the applicant was capable of and did convey (on a subjective basis) the risk of death or serious injury. However, there is no material before us which points to the clinical onset of anxiety disorder being within the two year period as required by factor 5(a)(ii).
63. We have also considered the application of factor 5(a)(iii) of the SoP. This factor requires a veteran “having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder. Dr Mulholland in his evidence has stated that he would probably make a diagnosis of an anxiety depression condition since the veteran returned from Vietnam. However, there is no material to show that there was a “clinically significant” psychiatric condition of the veteran within the required timeframe of two years before the time of onset.
64. We have therefore concluded that factors 5(a)(ii) and 5(a)(iii) of the Anxiety Disorder SoP are not established in this application.
Depressive Disorder
65. We next have to consider the Depressive Disorder SoP: Instrument No 17 of 2007.
66. Factor 6(c) of the Depressive Disorder SoP: Instrument No 17 of 2007 provides that depressive disorder can be connected to service through experiencing a “category 1B stressor” within the five years before the clinical onset of depressive disorder: see definition of “a category 1B stressor” in clause 9 of the SoP. In considering the application of this SoP we have to decide when there was the clinical onset of depressive disorder.
67. The respondent has mentioned that the former SoP required the clinical onset of depressive disorder to be within 2 years of experiencing a severe psychosocial stressor. The current SoP requires the clinical onset to have happened by February 1975 if factor 6(c) is relied upon.
68. The respondent has submitted that neither exhibit G (psychological record, RAAF) nor the further evidence-in-chief of the applicant is sufficient to support a finding that the clinical onset of depressive disorder occurred within five years of the Vietnam service of Mr Spencer. However, we have had regard to the evidence of Dr Mulholland who states that on the basis of the history which is outlined by Mr Spencer, he could probably make a diagnosis of an anxiety depression condition since he returned from Vietnam. We are therefore prepared to conclude that the clinical onset of depressive disorder was during his service in Vietnam.
69. We have had regard to Stressful Event 7 when Mr Spencer saw the viewing of the body of a North Vietnamese soldier which was run over a number of times by a heavy vehicle. We consider that this event certainly comes within the ambit of the definition of a “category 1B stressor” which includes the viewing of a corpse. (See event (b) of the definition of “a category 1B stressor” in clause 9 of the SoP).
70. We have also considered Stressful event 8 which is when Mr Spencer was present when the wet canteen was hit by shrapnel. We consider that this event certainly comes within the ambit of the definition of “a category 1A stressor” (factor 6(b)) as this would be a life-threatening event. (See event (a) in the definition of “a category 1A stressor” in clause 9 of the SoP).
71. We consider that the template of factor 6(b) and 6(c) of the 2007 Depressive Disorder SoP would be satisfied if the relevant stressors had occurred within five years before the clinical onset of depressive disorder. Dr Mulholland in his evidence confirmed that he can make a diagnosis of such a condition when the veteran returned from Vietnam.
72. Having regard to the decision in Repatriation Commission v Gorton (2001) 65 ALD 609 at [65] we have borne in mind that Mr Spencer is entitled to have his application considered with reference to the Depressive Disorder SoP which was in force at the time of the decision to reject his claim. That SoP is Instrument No 58 of 1998.
73. Under clause 4 of the 1998 Depressive Disorder SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
74. Under that 1998 SoP the relevant factor that is in contention is factor 5(b) which refers to a veteran “experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.
Clause 8 of the 1998 SoP contains the following definition:-
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
75. We have had regard to the stressors that have been outlined by Mr Spencer. We consider that events 7 and 8 certainly come within the definition of a “severe psychosocial stressor” in the 1998 SoP. Having regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55], we consider that both events judged objectively from the point of view of a reasonable person in the position of the applicant was capable of and did convey (on a subjective basis) the risk of death or serious injury.
76. We consider that factor 5(b) of the 1998 Depressive Disorder SoP is satisfied.
77. For these reasons we consider that the “third step” in Deledio is satisfied in relation to the claim for depressive disorder.
78. We therefore have to proceed to consider the “fourth step” in Deledio.
79. We must determine whether we are satisfied beyond reasonable doubt that the depressive disorder condition did not arise from a war-caused injury under s 120(1).
80. When Mr Spencer appeared before the Board he was asked to describe the events he experienced in Vietnam in order of the most stressful first. Mr Spencer recalled four incidents which are earlier mentioned in these reasons as: Stressful event 1 (Fire support base incident); Stressful event 2 (Flare incident); Stressful event 3 (Clearance patrol incident) and Stressful event 4 (Downed helicopter). These four events were also mentioned to Dr Mulholland when he interviewed Mr Spencer.
81. Mr Spencer is being consistent in mentioning these four events to both the Board and to Dr Mulholland. We observe that prior to being interviewed by Dr Mulholland he was being represented by a firm of solicitors who regularly act for veterans. It is understandable that the respondent was concerned about whether the incidents that are mentioned in Mr Spencer’s most recent statement did in fact occur. We are not prepared to make a finding that we are satisfied beyond reasonable doubt that the recent incidents did not happen. We are troubled that Mr Spencer can describe an event such as finding a dead Vietnamese as “vivid” and yet not mention the event to the Board or the examining psychiatrists. However, as Dr Mulholland has stated in his evidence that he could probably make a diagnosis of an anxiety depressive condition since the veteran returned from Vietnam, we have come to the conclusion that the claim for the condition of depressive disorder should be allowed.
Decision
82. For the above reasons, we:
(1) vary the decision under review as it relates to depressive disorder and substitute a decision that depressive disorder is war-caused with effect from 28 November 2003; and
(2) affirm the decision that generalised anxiety disorder and alcohol abuse are not war-caused.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD and Dr G J Maynard, Member
Signed: ..............[sgd]................................................................
F. Kamst, Legal Research OfficerDate of Hearing 27 September 2006; 30 January 2007
Date of Decision 17 September 2007
For the applicant Mr D O’Gorman (hearing)
Counsel for the applicant Mr A Harding (resumed hearing)
Solicitor for the applicant Mr T O’Connor (resumed hearing)
For the respondent Mr J Stoner, departmental advocate
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