Walsh and Repatriation Commission - [2001] AATA 483

DECISION AND REASONS FOR DECISION [2001] AATA 483

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1025

VETERANS' APPEALS DIVISION       )
           Re      Russell James Walsh
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date5 June 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside that part of the decision of the Repatriation Commission ("the Respondent") dated 16 May 1998 that determined that the condition of major depression with alcohol dependence suffered by Russell James Walsh ("the Applicant") was not war-caused; 2. Amends the condition diagnosed as "major depression with alcohol dependence" to read "depressive disorder with alcohol dependence"; 3. Substitutes for that part of the Respondent's decision, as amended, its decision that the Applicant's condition of depressive disorder with alcohol dependence is war caused, and that the effective date of this decision is 17 June 1997; 4. Sets aside that part of the Respondent's decision that assessed payment of pension to the Applicant at 60 percent of the General Rate; and 5. Substitutes for that part of the Respondent's decision so set aside, its decision that the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate, on and from 18 June 1997.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS
ENTITLEMENT – reasonable hypothesis - Statement of Principles for Psychoactive Substance Abuse and Depressive Disorder applied – whether experiences on service constituted a "severe psychological stressor" – whether Applicant had a pre-existing alcohol dependence before operational service – whether alcohol dependence developed prior to onset of depressive disorder or vice-versa – whether alcohol dependence and depressive disorder are interrelated conditions – whether hypothesis dispelled beyond reasonable doubt
ASSESSMENT – Special Rate – whether unfit to work for eight hours or less per week – whether Applicant suffered loss of earnings because his business failed and earthmoving equipment was not retained to operate business

Budworth v Repatriation Commission [2001] FCA 317
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Keeley (2000) FCR 108

Veterans' Entitlements Act 1986: subss120(1), 120(3), 120A, 24(1)(b), 24(1)(c)

Statement of Principles, Instrument No 65 of 1996 (Depressive Disorder) as amended by Instrument No. 181 of 1996
Statement of Principles, Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 16 May 1998 which refused a claim by Russell James Walsh ("the Applicant") for major depression with alcohol dependence, and assessed disability pension at 60 per cent of the General Rate. That decision was affirmed by the Veterans' Review Board ("the VRB") on 27 May 1999. The Applicant then sought review by this Tribunal. All applications for review were in time. His informal claim was lodged with the Respondent on 18 September 1997.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant and Dr A Dinnen, psychiatrist, gave oral evidence at the hearing. The following documentary evidence was tendered on behalf of the Applicant –

Report from Dr Dinnen, psychiatrist, dated 2 December 1999 (exhibit A)
Tax returns and group certificate of the Applicant for year ending 30 June 1998 (exhibit B)
Counselling records relating to the Applicant from Vietnam Veterans Counselling Service (exhibit C).

The following documents were tendered as evidence on behalf of the Respondent –

Report of Mr B O'Keefe, historian, dated 3 October 1999 (exhibit 1)
Report of Dr R Lewin, psychiatrist, dated 18 November 1999 (exhibit 2)
Report of Dr M Burns, occupational physician, dated 4 December 1999 (exhibit 3)
Letter from Department of Defence dated 29 September 1999 with copy of Record of Service Card and computer Historical Record of the Applicant (exhibit 4).

It is the Applicant's case that he suffers alcohol dependence and a depressive disorder and that these conditions are war-caused. The Applicant also seeks payment of pension at the Special Rate.
The Applicant served in the Royal Australian Navy from 3 January 1967 to 31 January 1973. He rendered operational service in Vietnam from 18 March 1971 to 11 October 1971. He also rendered eligible defence service between 7 December 1972 to 31 December 1973. It is agreed between the parties, however, that his period of defence service is unrelated to the claimed conditions.
The standard of proof to be applied to the Applicant's operational service is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"), which requires the Tribunal to determine, with respect to the period of the Applicant's operational service, that his claimed condition was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Applicant's service.
As the Applicant lodged a claim after 1 June 1994, pursuant to s 120A of the Act, the Tribunal is also required to apply the relevant Statements of Principles in determining this matter. At least one of the factors in each of those Statements of Principles must exist before it can be said that a reasonable hypothesis exists connecting the relevant condition to the circumstances of service.
The Applicant sought to rely on his accrued right to have this matter determined in accordance with the Statement of Principles in place at the time the primary decision was made: Repatriation Commission v Keeley (2000) 98 FCR 108. In particular, the Applicant relied on factors 5(b), (d), (e) and (f) of Instrument No 65 of 1996 concerning Depressive Disorder, viz-
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
…
(d)having a major illness or injury within the two years immediately before the clinical onset of depressive disorder; or
(e)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
(f)having a major illness or injury within the two years immediately before the clinical worsening of depressive disorder;

With respect to alcohol dependence, the Applicant relies on any one of the factors 1(a), (b) and (d) of Instrument No 5 of 1994 concerning Psychoactive Substance Abuse or Dependence, viz-
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or
(c)…
(d)having a psychiatric condition prior to the clinical worsening of psychoactive substance abuse or dependence.

evidence of applicant

The Applicant was born on 25 January 1951. He enlisted in the Royal Australian Navy and served in HMAS Brisbane on operational service in Vietnam from 16 March 1971 to 11 October 1971 as an able seaman weapons mechanic who carried out general duties involved in the day to day running of the ship and at actions stations - Mount 51 gun crew.
The Applicant said he spent most of his time as a safety trainer in the gun turret together with the Captain and one other person. He recalled doing four hour shifts during the day, and six hour shifts at night when the gun was being fired. There was no set pattern to the frequency of firing and he recalled during that time he was either in action stations or standing by to go into action stations, for a period of up to six weeks at a time, 18 hours per day. He said the atmosphere was always very tense and "scuffles" would break out all the time. There was no way to relax, apart from sitting on the deck or playing cards. Sleep was difficult due to the noise.
The Applicant recalled that a danger associated with his duties in the turret was the possibility of explosion in the gun barrel if it was worn, which had happened on an American ship previously. The Applicant said, in respect of that task -
...you don't like the idea of it but you are told to continue and you do as you are told…bottom line is if you didn't do as you were told…disobeying a direct order in a war zone was punishable by death, at the time…
...the threat was always there….There was nothing you could do about it so how your feelings were at the time was irrelevant.

The Applicant said he felt "very concerned" at the time.

The Applicant recalled one occasion when they fired at a bridge while bombarding on shore. One of the locals riding across the bridge on a bike was killed. The killing was confirmed by a potting 'plane. The Applicant said he was on the gun at the time. He described his reaction to the incident, viz-
..I sort of should have felt as[sic] bit more about the person that was actually killed and all the rest of it but the biggest thing was that.. we'd actually done what we'd come here to do, get casualties and all the rest of it……it was just 300 odd men on one ship that was armed to the hilt and ….they were really excited about killing one person that was riding his bike across the bridge. …I didn't feel too good about that. I didn't think it was real Australian …to be truthful.

It was put to the Applicant in cross-examination that he felt "disgusted" by people's reaction to that incident, and he agreed. He said that he could see the explosion when it hit the ground, but he did not know how far out to sea they were.

The Applicant said that in November 1999 his friend showed him a book that described that incident which "brought everything back" to his recollection. He said he had tried to "put everything out of your mind" but "it comes back completely and as it happened that day". He said for some time he did not admit to having gone to Vietnam because "there was such a human outcry about it, you were considered to be one of the mongrels that went there". The Tribunal raised with the Applicant that he did not disclose the bridge incident at the VRB hearing. He said he did not think it was relevant. When the VRB sought information regarding specific stressful incidents he experienced he said he thought they were referring to "whether you're going to live or die. … it didn't seem to be … like a major thing that would warrant any mention".
The Applicant said that he first drank alcohol on a regular basis in 1968 when he was at sea and allowed two cans of beer. However his drinking really started between the age of 19 and 20 years. He agreed in cross-examination that he drank with his colleagues from the Navy prior to going to Vietnam, but disagreed that he had been consuming alcohol for about four years before going to Vietnam. He disagreed that when he started drinking in 1968 his consumption was consistent with others around him. He agreed, however, that as he got older the quantity he drank was consistent with others around him. He said that in 1968 he was caught for speeding and at that time he was also found to have a blood alcohol of .10, at a time when the legal limit was .08. He lost his licence on that occasion.
The Applicant said he did not drink on a daily basis except when he was at sea, when he was given a ration of two cans of beer a night, although this was not permitted when he was on the gun line. He said during his operational service he went ashore at Subic Bay. The only activity available was to go drinking at one of the numerous bars. At those times he said he drank "10 or 20 beers" although he could not be sure of the quantity. He said he drank heavily while ashore because there was "no pressure" and no constraints on his drinking. He drank because that was a way to have "a good time" on "rest and recreation".
The Applicant said that the alcohol questionnaire dated 16 September 1997 (T6) was completed on his behalf by an advocate from the Vietnam Veterans' Association. He agreed that while on some occasions he drank until he "passed out", that was not always the case, but nonetheless he drank heavily whenever he was on leave. The Applicant's attention was drawn to the response on the questionnaire that he drank "due to war caused stress. It was the only way I could cope with the war caused stress". When asked by the Tribunal whether he was aware at the time that he was suffering from stress he said "no". He explained that the statement was written when he was "at his lowest". He said he was not aware when he was on the Brisbane in Vietnam what was making him feel tense. He also said that he was not conscious of being negatively affected by what was happening. However, he said he now realises he was tense because he was part of a team "throwing explosives" on to targets and people. However, most of the time he did not know where the ammunition was landing.
The Applicant agreed that during the period of his operational service he did not spend the whole time from March to October 1971 in Vietnam. He also visited Singapore and Hong Kong.
When the Applicant was asked whether, in the years that followed, he was able to "de-stress", he said that since the early 1970s -
I never even knew that you could actually do that until only possibly a couple of years ago and the only way I ever did in the past was that I'd always, my life just revolved around alcohol, and maybe that was the way I handled or dealt with being under stress.

He said that after he returned from Vietnam he continued to drink "a fair bit" whenever alcohol was available, but not on a nightly basis. He said on return to Australia and for the remainder of his time in the Navy his alcohol consumption remained the same. He said he was not able to drink while at sea, but when in a shore establishment he had a few beers at the wet canteen at lunchtime, and returned there when he finished work at 4 pm.

After the Applicant left the Navy he said his drinking continued in much the same way. At the completion of a day's work he would go to the pub or to a friend's place or friends would come to his place, and "alcohol was fairly big – well not a problem but a fair way of life … you'd drink and then you'd have to start at six in the morning, you'd go to bed at midnight and get up and do it all again". He said that when he worked for BP he started at 4 or 5 am and had "virtually no recognition of what happened the whole journey until I … got there, and … that's actually scary. … it was just straight too much alcohol the night before".
The Applicant's employment history on discharge from the Navy on 31 December 1973 was that he worked as a truck driver for about two years and then as a fitter for about two years. He then worked for BP for eight years before starting his own small earthmoving business in Melbourne which he undertook for about 5½ years. He had purchased a bobcat, back hoe and tip truck. He was not working after he moved to Mullumbimby. After five years there he moved to Ocean Shores and tried to get work by buying another tip truck and bobcat. However, it was old machinery on which he had to spend money to make it work. In cross-examination he said he spent $30,000 on the truck, that included its purchase, repairs and "everything else". He also said that after six months from the commencement of that business the bobcat broke down, although apparently he repaired it to an operational level again. He did not manage to sell it until December 1998. Although he was getting work, he was not making as much money as he was spending. He ran this business for about two years. He said in cross-examination that he would have been lucky to get 24 hours work a week "in the good time". He said –
I didn't actually stop it. It just, things just went down and down, the work situation was getting worse and worse and originally the old truck broke down and I tried to make a go of it without wasting any more money on the truck and in between time everything just went virtually, you know, things weren't going too hot anywhere … because of everything that was going on I had a de facto relationship …, it went down the gurgler at the same time.
… the work situation was getting worse and worse and when the truck broke down I sort of was hitching a ride around everywhere and off anybody that I could just to keep working with the bobcat but work was going down, like falling at the same time and … then the bobcat broke and then I thought, that's it. I'm obviously not meant to be in this game in here and I then tried getting jobs and everything around town and I started getting a job here and a job there, sort of not any repeat stuff so.
… I could see [the business] was going down but I was still very optimistic and … I knew a lot of people…I thought, I'll get a job and still continue on but it didn't - … and that's when things sort of really started falling apart for me.
… I really wasn't [coping] because … things were starting to get on me, my relationship had broken up. I started drinking probably a heap more than what I normally would have and no doubt the result wasn't good in favour of my working capacity so it had to suffer.
….everything falling to bits and my life was going nowhere. I just got to the stage I felt as though I just couldn't keep going even trying. I'd had trouble in the past. No matter what the trouble was I was able to deal with it, get on with it. … but in that period … I'd lost the drive and virtually to want to keep going.
The Applicant said that he then obtained earth moving work, truck driving, and worked in an engineering workshop. However he found it difficult working with people because most of his life he had worked in his own business. It is not clear from his evidence how long he undertook this work, except that his work in the engineering workshop was for a total of only four days across a period of four weeks. He agreed in cross-examination that it was difficult to get work because of the locality and his age. He said he has not looked for work since receiving Service Pension, but before that time he looked for work "all over the place".
The Applicant said he had worked hard during his working life. He said "you always put your job before anything else…". He said he did not comprehend the word 'stress' until about two years ago. He said that, while he was working, if he was worried about a job and it started "getting to him" he drank whatever alcohol was left in the refrigerator. He did not do that every night, but when he had a problem with work he said he was able to think clearer or get more ideas by drinking while he worked on the problem.
The Applicant said that his depression was identified only about 1997. Until he commenced counselling he was not aware that when he had days when he was "down and out" he was suffering from depression. He said that many times in the past he felt "more than just unhappy with the day because the sun didn't come up". He recalled feeling like that when he lived in Melbourne and when he worked at BP. He had his first marriage breakdown when he worked for BP. He said he "went down in a bit of a heap" then, but he was "young and strong in those days, just climbed straight back up. Kept doing it again." He also indicated that during his various relationships his aggression has been a significant problem.

The Applicant commenced counselling about 1998 after a friend, who was also a Vietnam veteran, perceived that he was "down" and referred him for professional counselling. For a time he was seeing both Ms Baker and Dr Hayes, a psychiatrist. He said that Dr Hayes was taking the same approach as Ms Baker and so he decided not to continue travelling the 100 kilometres to see Dr Hayes. He said he has found the counselling very helpful. Dr Hayes focussed on his alcohol problem, which he considered to be his major problem. He did not discuss with Dr Hayes whether he should be working. He said that he is now "not drinking like I used to" and he is more able to control his aggression. However he still drinks virtually every day, but he drinks less on the days when his children visit him. When his children are not with him he drinks six to eight stubbies of beer a day.
The Applicant said that he entered his first marriage on 9 December 1991 after he returned from Vietnam. He said that before he went to Vietnam he used to drink socially, but after he came back "it was a completely different story. I was … gone up into the next bracket of drinking… and that had a bearing on my first relationship" and on his subsequent relationships. He considered that his drinking pattern ever since he returned from Vietnam has been the major precipitator of his problems, including his employment and family relationships, and his lifestyle. He said that his drinking since he returned from Vietnam has remained constant.
The Applicant said that he considered he was "really relaxed" since he has been involved in counselling, compared with how he was feeling some five years ago. He is now prepared to associate with other returned service people. He said it takes a long time to get to sleep, and then he wakes after an hour or so if he has not taken medication. He agreed that he had a habit of playing with his hands which he said was "just nerves". This was obvious throughout the duration of his evidence.
The Applicant considered that although his condition had improved a lot compared with when he set up his own business in Ocean Shores, he felt he could not do that sort of work again now. He doubted that he could organise his work or drive for 25 hours a week, nor does he have the capital to set up a similar business. He considered that operating an earth moving business required one to be strong and fit. He considered he was unable to do it, both from a physical and a psychiatric perspective. He did not think he could deal with people any more, nor could he manage the financial side of the business.
The Applicant said that he was not working at the time he lodged his claim for Service Pension dated 1 September 1997 (T8). He had worked as a trades assistant in an engineering workshop for four days over a period of three or four weeks. The last day he worked was 15 August 1997. He obtained that date from his group certificate (exhibit B). He said he was not working in June 1997. He said he was working for an occasional day early in 1997 but "doing hardly anything". He said by June/July 1997 "things were starting to go bad". The Tribunal notes that exhibit B includes a 1998 Group Certificate showing that the Applicant earned gross income of $600. The Tribunal also notes from exhibit B that the Applicant's total income for the year ending 30 June 1998 was $1,948, the balance of which was income from his business.
Ms Baker, psychologist
Counselling records from Ms Baker, psychologist, of Vietnam Veterans' Counselling Service, were provided at the Tribunal's instigation (exhibit C). In summary those notes are concurrent records of each interview. No report was provided and no background history was recorded. Ms Baker did not give oral evidence at the hearing. The records show that counselling was focussed on the Applicant's functioning at the time of each consultation. It appears to the Tribunal that counselling proceeded, having assumed a diagnosis, rather than Ms Baker recording a systematic assessment to underpin that diagnosis. The records show the Applicant suffers from a significant underlying depression. At times the depression controls his life, but at other times he appears in control. The records also reflect that the Applicant has been struggling to control his drinking. Counsel for the Applicant agreed these records identify the Applicant suffers from a psychiatric condition and a drinking problem as well as reflecting the extent of the disability.
Dr Hayes, psychiatrist
Dr Hayes, the Applicant's treating psychiatrist, provided a report dated 14 March 1998 (T16). He first saw the Applicant in October 1997 suffering from major depression and alcohol dependence. Both conditions had responded partially to treatment although the Applicant continued to drink to excess.
Dr Hayes noted that the Applicant commenced drinking at the age of 16 or 17, and became a heavy drinker at age 20 years. The Tribunal notes that the drinking pattern described while the Applicant in the Navy was consistent with the Applicant's evidence to the Tribunal. Dr Hayes noted that the Applicant was "on edge and sleeping poorly". He also noted "some events remind him readily of his Naval experiences, but it does not appear to have too intrusive phenomena. He does not avoid particular situations, but does drink alcohol to excess". Dr Hayes also noted –
Following his discharge from the Navy he describes seven to ten years of difficult behaviour, being irritable and aggressive and drinking heavily. He has been more mellow in recent years, but continues to have difficulty with relationships, and is unable to maintain full time employment, particularly as a result of his record of being unreliable.
I believe his current diagnose (sic) is of major depression, alcohol dependence, and nicotine dependence. Whilst he has some anxiety symptoms, I do not feel he has a clear Post Traumatic Stress Disorder at this stage. Both his smoking and drinking began during his term in the Navy, at the age most people begin their habits. By his account his heavy substance abuse began following his wartime experience. His subsequent history of aggressive, irritable behaviour may be attributable to both untreated depression or alcohol abuse, but do not appear to be part of an underlying personality disorder.

He noted that the Applicant had made some response to treatment and appeared motivated to make some changes. However he also noted the chronic nature of the Applicant's condition.

In a later report dated 22 December 1998 (T24) Dr Hayes noted that the Applicant's clinical depression had lifted, leaving longstanding irritability and mistrust, and excessive alcohol intake. He then considered the appropriate diagnosis to be "dysthymic disorder with irritability, plus alcohol dependence". Dr Hayes opined that the Applicant would be at risk of further episodes of depression, superimposed on his dysthymia, particularly in view of his ongoing alcohol abuse.
Dr Dinnen, psychiatrist
Dr Dinnen provided a medico-legal report (exhibit A) at the request of the Applicant. He obtained the following history –
The patient said "after I came back from [Vietnam] I was never the same". He said he had been engaged before he went away and was to be married in December. That was cancelled because of "the way I was and everything was". He said the marriage ended up happening, but "I wasn't the person I was. There was another person and my life has never been the bloody same ever since". He said that he "hated the Navy". He was supposedly in the Navy for 12 years and had another 5 years to complete, but because the option of an elective discharge was brought in he applied for early discharge. He said this was "because of being in Vietnam and the bullshit that went on about it. The big gungho attitude – 'it's war and it's great' ". The patient said that it was "stinking blooming hot" in the gun crew and he had to wear very heavy flash clothing for his safety. He would be in the turret for six hours on and four hours off. The ship was on the gun line for about 6 weeks each time, and would usually return to Subic Bay (the USA base in the Philippines) for a week of rest between each period of action.
He commented: "The hyped part of it all. You're revved all the time. Constantly awake sort of thing".
The patient said that since that time he had virtually not stopped until 2 years ago "when I fell to bits". He commented again: "all I'm saying is I wasn't like it before".
In respect of the Applicant's service in Vietnam Dr Dinnen said –
The patient commented: "you are shooting bloody big bullets at people", describing the nature of his service on the gunline off Vietnam….
The patient said that as a result of their bombardments, "quite a bit got blown up and all the rest". He recalled one incident where they blew up a bridge, the fire being directed by a spotter plane. He said the officers and the others were "cheering because there was a bloke riding a bicycle, hooraying". The patient said he doesn't think about these experiences, but wonders whether "maybe I should feel more remorse for it". …
Dr Dinnen interviewed the Applicant's sister, Claire Crompton, who said she found the Applicant to be "different in personality". She visited him and his wife in 1975 and "thought he'd changed a lot". He was hard to talk to, "unapproachable", "more closed in" and "drinking a bit". She considered him to be even more "closed in" now than he was previously.
Dr Dinnen noted that the Applicant said he did not know what depression was. The Applicant told him "I would go into me moods and wouldn't talk and when I did I would be screaming and roaring and very aggressive to most people". He noted that in retrospect the Applicant was aware of a general loss of interest. He said he took his marriage "for granted" and it only lasted seven years.
Dr Dinnen noted that the Applicant had been on his own for about five years from 1984 to 1989 in his business in Melbourne and did well. At that time he had a de facto relationship. However he continued to have mechanical breakdowns with his truck and it was "driving him mad". He said "I wasn't the nicest bloke in town". After a while his de facto partner left. He said he kept going but "everything kept breaking – no one was interested in giving me a job, I was close to it, I didn't want to go on any longer". A friend who was a Vietnam veteran then referred him for counselling. Dr Dinnen also stated –
Earlier he had told me he had been self employed in an earthmoving business with a bobcat and a tip truck. He had been in Mullumbimby for 1 year and was unemployed but for 5 years before that had been in a town 30 kilometres west of Lismore running his own business.

(The Tribunal notes that this is a somewhat distorted version of the history given to the Tribunal by the Applicant. This reflects the major problems the Applicant has in articulating verbally. The Tribunal considers the history it obtained from the Applicant at the hearing more likely to be correct.)

Dr Dinnen agreed with Dr Hayes that the Applicant suffered from dysthymic disorder with alcohol dependence, which appeared to date back to his service in the gun line in Vietnam. He understood from the "historical documentation" that the Applicant was involved in combat operation for several months.
Dr Dinnen raised issues about PTSD and Generalised Anxiety Disorder, and he considered the symptoms suffered by the Applicant were consistent with those conditions. However he also believed the symptoms were consistent with and more indicative of a depressive illness with alcohol dependence, and that was the diagnosis he favoured. Dr Dinnen considered the Applicant's condition had gradually worsened as a result of further adverse life events over the years.
Dr Dinnen considered that the Applicant's experience in Vietnam was consistent with experiencing a "severe psychosocial stressor" as defined in the Statement of Principles for Depressive Disorder, Instrument No.65 of 1996. He noted that the nature of the Applicant's depression after he returned from Vietnam was not dramatically apparent, but it could be understood in his approach to his forthcoming marriage, his loss of interest and enthusiasm, and that he did not feel the same as he had felt previously. Dr Dinnen considered that this conveyed feelings of melancholy, despair, unhappiness, or a tone of a depressive response to service. Moreover, the way he described his perception of his service was a sad, depressive approach. Dr Dinnen considered that a depressive condition was present and his drinking at the time tended to cover up the emotion quite effectively.
Dr Dinnen considered from the history that the Applicant's drinking was a problem from the time of his Vietnam service "and maybe before". The Applicant described it more as a continuum rather than having an acute onset. He considered that there was an interconnection between depression and alcohol dependence. On his assessment of the chronology the Applicant's drinking was present before his depression was established and the drinking may well have aggravated or led to the depressive illness. He noted that people who have a tendency to depression are more likely to suffer from depression if they have a heavy drinking habit. However, he also noted the Applicant's sadness and mood change, and change in his enjoyment of life after he returned from Vietnam. Drinking was part of that, and his depression and drinking then had a "recruiting effect on each other". Ultimately, however, his evidence was that he thought the Applicant's depression came first, undiagnosed and unrecognised, and that alcoholism then covered it up. In turn his depression and alcohol abuse then contributed to his poor social and employment circumstances that in turn further affected his depression.
Dr Dinnen observed the Applicant's presentation when giving oral evidence. He said the Applicant appeared unhappy and noted that that was a "pervasive emotion". He was surprised that Dr Lewin considered the Applicant had no clear disturbance of mood. Dr Lewin's opinion that the Applicant had "some depressive symptoms" but there were "few morbid depressive symptoms" was interpreted by Dr Dinnen as Dr Lewin drawing a distinction between major depression and a chronic depressive disorder. Dr Dinnen considered that the Applicant now suffers from chronic depression rather than a major depressive disorder. He noted that the morbid features of major depression - early morning wakening, suicidal thinking, weight loss, etc - were not present.
In respect of the stress suffered by the Applicant while in Vietnam, Dr Dinnen noted recent psychiatric literature identified that awareness of inflicting damage on somebody else is a potent element of a subjective stressor. He noted that some people remain unaffected by the consequences of their actions but others are affected. Dr Dinnen considered that the Applicant's involvement in bombarding the shore for a long period and the incident of blowing up the bridge, supports his opinion that the Applicant was subjected to a significant stressor on service.
Dr Dinnen said the Applicant did not tell him he had been drinking before he went to Vietnam, nor did he ask such a question of the Applicant. However Dr Dinnen was aware that the Applicant's drinking increased while he was in the Navy. He said his interview focussed more on the cause of his drinking and his psychiatric condition rather than obtaining a precise account of the timing of his drinking.
Dr Lewin, psychiatrist
Dr Lewin provided a medico-legal report dated 18 November 1999 (exhibit 2) at the request of the Respondent. He had access to Dr Hayes' reports at the time of his consultation.
The history Dr Lewin obtained from the Applicant about his service in Vietnam included that he was "involved in a number of scuffles and had been in the Brig several times. This was mainly for brawling and for getting drunk". He was also involved in a "busy routine shipboard life", which included "refuelling, repairs in the gun turret, guard duty, standing watch or acting as Helmsman". No reference was made in his report to the Applicant being in the gun turret at action stations when he was involved in firing the gun, or of the incident when the bridge was blown up. Dr Lewin noted that the Applicant was upset by mindless discipline and having to wear heavy hot flashy gear in the tropics.
On review of the Applicant's current depressive symptoms Dr Lewin considered there was no clear disturbance of mood. He noted "some depressive symptoms" but "few morbid depressive symptoms". He also noted that the Applicant slept well but only after he drank alcohol. If he reduced his alcohol intake he had initial insomnia. Dr Lewin considered this to be a symptom of alcohol withdrawal. The Applicant reported an association between the worsening of his mood and his drinking heavily. Dr Lewin diagnosed alcohol dependence. He also considered on the basis of the history that the Applicant had developed an episode of depression that was at the time of the consultation "at least partially in remission". However, he did not consider the Applicant to be clinically depressed at that time of his consultation. He said he was "not given any history of a "severe stressor" as described in the statement of principles regarding alcohol dependence.
submissions
Applicant
It was submitted that on the evidence the preferable diagnosis is "dysthymic depressive disorder with alcohol dependence" as it addresses the interconnection between these conditions. It was submitted that there is an abundance of evidence to satisfy the Tribunal that the Applicant suffers from a psychiatric condition for which he has been treated since 1997 by Dr Hayes and Ms Baker. Although Dr Lewin did not find the Applicant to be clinically depressed when he examined him (and on that basis he opined that the Applicant did not suffer from depression or a psychiatric disorder), he diagnosed that the Applicant suffered from alcohol dependence. It was submitted that there is no apparent disagreement between the parties in respect of that diagnosis. Dr Burns diagnosed depression with alcohol dependence as an interrelated diagnosis. Additionally, on the basis of the counselling records from Ms Baker, the Applicant's depressive disorder and his alcohol dependence are significantly interrelated.
It was submitted that during the Applicant's operational service he was "keyed up" during the four to six weeks he served in HMAS Brisbane in Vietnam waters because of his duties on the gun line between "R and R" trips to port. He felt "badly" about shelling people, in particular in relation to the incident involving a man on a bicycle crossing a bridge that was blown up while he was operating the gun. It was submitted that this action should be regarded as combat. Dr Lewin provided his opinion on the basis that the Applicant was not involved in combat, whereas in the opinion of Dr Dinnen the duties in which the Applicant was involved were stressful.
In respect of the Statement of Principles for Psychoactive Substance Abuse and Dependence Instrument No.5 of 1994, it was submitted that on the evidence supported by Dr Dinnen the hypothesis is raised that because of the stressful nature of his service on the gun line he developed alcohol dependence.
It was submitted that notwithstanding Dr Dinnen's uncertainty as to whether the Applicant's depression came first or his alcohol dependence, it was more likely that the depression occurred first. The Applicant's evidence was that he drank his beer issue at every opportunity, and when they were on leave in Subic Bay he drank in clubs until he had to return to the ship. His drinking habit did not appear to change much after that time. When he returned to Vietnam he drank at lunch and from 4 pm when he finished work. The history given to various doctors is that he has had a heavy drinking habit that has not really changed over the last 30 years. It was conceded that since counselling with Ms Baker began there is some evidence that at times the Applicant has been trying to limit his drinking using techniques he has learned in counselling.

The Applicant's primary submission was that, in relation to factor 1(a) of the Psychoactive Substance Abuse or Dependence Statement of Principles, he experienced a "stressful event" during his operational service prior to the clinical onset of psychoactive substance abuse or dependence that he maintained post-service. In the alternative, it was submitted that, in relation to factor 1(b), the Applicant suffered a psychiatric condition, that being PTSD, prior to the clinical onset of psychoactive substance abuse or dependence. It was submitted that the raised facts were not merely left open.
To follow the alternative path of satisfying factor 1(b) it was submitted, on the evidence of Dr Dinnen, the Applicant's action on service was sufficient to meet the definition of "stressor" in the Post Traumatic Stress Disorder Statement of Principles, Instrument No15 of 1994. In this Instrument "experiencing a stressor" is defined as follows:
a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
b) the person's response to that event involved intense fear, helplessness or horror;
It was submitted that there is no doubt the Applicant was confronted with the consequences of his actions. He was personally involved in firing some 7,760 shells, and this constituted "experiencing a stressor". It was submitted that his reaction was probably more one of horror than of fear and that the best assessment of what occurred is that the Applicant suffered PTSD.
In moving to the test pursuant to s120(1) of the Act, it was submitted for the Applicant that the only evidence against his case was that of Dr Lewin, who said he was not given any history of a "severe stressor". It was submitted that in referring to a "severe stressor" Dr Lewin was not taking account of the relevant Statement of Principles for Psychoactive Substance Abuse or Dependence. Dr Lewin does not discuss whether the Applicant suffered from PTSD at any time and therefore his evidence does not provide any disproof of factor 1(b). It was submitted that Dr Lewin's assumption that the Applicant was not involved in combat is not correct and has no probative value in disproving Dr Dinnen's assessment based on a correct understanding of the Applicant's combat.
In relation to the diagnosis of "depressive disorder", the amendment in Instrument No.181 of 1996 to the definition "severe psychosocial stressor" states:
"'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 in 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". (Tribunal's emphasis)

It was submitted that as the term "distress" has replaced "anxiety in an individual or which is perceived as stressful" in Instrument No.65 of 1996, the term "distress" is now inclusive of anxiety but is not confined to it. In considering the Applicant's current symptoms, on the evidence of Dr Dinnen the Applicant no longer suffers from PTSD. However, on the basis of the clinical history Dr Dinnen considered that the Applicant has a depressive reaction to his operational service and also symptoms of anxiety.

The Applicant relied on factor 5(b) of Instrument No.65 of 1996 for Depressive Disorder, viz.
Experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;

In this regard the Applicant relied on his experience in the gun turret in respect of a "severe psychosocial stressor" and his observations and feelings about what was being done to those on shore. The definition requires "substantial distress". It was submitted that the examples given in the definition were not definitive but needed to be of the same order as the examples. Relying on the oral evidence of Dr Dinnen (transcript p.43 of 24 July 2000) it was submitted that the onset of clinical depression was within two years of experiencing "substantial distress" in the course of his operational service in the gun turret. It was also submitted it is doubtful that Dr Lewin obtained that history at all, and certainly Dr Lewin's evidence does not disprove this hypothesis.

The Applicant sought to rely on factor 5(c) – "having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder". It was submitted that there is no dispute between the parties that alcohol dependence is a psychiatric condition, and that Dr Lewin diagnosed the Applicant as suffering from that condition. Dr Lewin placed the onset of the Applicant's alcohol dependence within two years of his Vietnam service and considered it was in response to that service. Notwithstanding that it was Dr Dinnen's preferred view that the Applicant's depression preceded his alcohol dependence, he also noted that the depression and alcohol dependence were interrelated. It was submitted, therefore, that it was appropriate to raise the hypothesis that his alcohol dependence caused his depression, and there is agreement between the psychiatrists that alcohol dependence can lead to a depressive reaction. On the issue of disproof of this hypothesis, it was submitted that the lack of clarity of whether depression preceded alcohol dependence, fell short of disproving it to the requisite standard.
The Applicant also relied on factor 5(f) "having a major illness or injury within the two years immediately before the clinical worsening of depressive disorder". On the issue of disproof of that hypothesis, it was submitted that some degree of disproof arose from the lack of evidence as to whether alcohol dependence was sufficiently severe in the early years after the Applicant's service to meet the definition of "major illness". Applying the definition, the illness has to be life-threatening or involving damage to the body. It is clear that the Applicant's alcohol dependence involved damage to the body as time passed and it became life-threatening because of the dangerous manner in which he performed his tanker driver duties. It is not established clearly, however, that the deleterious effects of his drinking were established at the time of the clinical worsening of the depressive disorder.
The Applicant relied on factor 5(e) - a "severe psychosocial stressor" within the two years immediately before the clinically worsening of the depressive disorder. It was submitted that the Tribunal could take account of the domestic and employment losses that the Applicant has experienced from time to time that have clearly worsened his depression. It was submitted that these events came about, at least in part, because of the Applicant's alcohol dependence. But for his alcohol dependence the Applicant might have been able to continue his business in Melbourne without retreating to the north coast. Similarly, it was submitted that his drinking compromised his personal relationships and he might have been able to continue work if it was not for his drinking. The history recorded by the doctors about his domestic situation, his work performance and the viability of his business, demonstrated how he ended up on the north coast in "a hopeless situation" where he had no business that was viable even if he was fit to work. It was also submitted that there was no evidence that went towards the disproof of this hypothesis.
Counsel for the Applicant submitted that the Applicant's oral evidence demonstrated that he was inarticulate and "muddled" in the words he used to convey meaning to his thoughts. However despite this his evidence was consistent. It was submitted that the Tribunal should not doubt his veracity and should find that the way he presented in giving his evidence is the result of his psychiatric condition.
Respondent
It was the Respondent's case that on the Applicant's evidence the onset of alcohol abuse occurred prior to his operational service, and therefore he would have to rely on aggravation of alcohol abuse.
It was submitted that the Applicant's case relied heavily on Dr Dinnen's evidence, notwithstanding the shortcomings in his report. His consultation was hampered by lack of time to enable him to canvass all the issues with the Applicant. He did not know when the Applicant's drinking commenced. It was submitted that the Applicant served with the Navy for three or four years before his operational service, and obviously he drank quite a bit during that period. However, Dr Dinnen assumed that the Applicant's drinking was a reaction to his service in Vietnam. It was submitted that the Navy culture before the time of his operational service was exemplified by the Applicant's evidence about travelling with others from Sydney to Melbourne when it was decided that he should drive because he was the least intoxicated in the group. [The Tribunal notes this is not an accurate representation of the Applicant's evidence, which was that he offered to drive because he considered he had "only had a few" (transcript 24 July 2000, p57)]. He was charged with Driving Under the Influence on that occasion, with a blood alcohol level of .1. It was submitted for the Respondent that the Applicant was "happily entrenched" in the "heavy drinking culture" before the commencement of his Vietnam service.
It was also submitted that the Applicant never came under enemy fire, although it was conceded that he was involved in bombarding the shoreline. The Applicant's evidence that he reacted with "disgust" when he realised an innocent civilian was killed while riding a pushbike across the bridge which the Applicant was responsible for blowing up, was not consistent with the definition of "severe psychosocial stressor" in the Statement of Principles for Depressive Disorder, Instrument No. 181 of 1996.
It was submitted that during his service in Vietnam the Applicant's drinking was associated with his concern to be part of the group and because he enjoyed drinking. It was not his evidence that he drank because of his distress about the bridge incident. It was submitted that Dr Dinnen assumed the Applicant's Vietnam service was generally stressful, but Dr Dinnen's definition of a "severe psychosocial stressor" was not consistent with the examples in the Statement of Principles.
In respect of the Statement of Principles for Psychoactive Substance Abuse or Dependence Instrument No.5 of 1994, it was submitted that it is difficult to determine the onset of alcohol abuse on the evidence of the Applicant and Dr Dinnen. However, the history of the Applicant's heavy drinking prior to his operational service was not given to Dr Dinnen or to Dr Lewin. It was submitted for the Applicant in reply that there was no evidence that the Applicant had a history of heavy drinking prior to his Vietnam service. It was his evidence that he commenced drinking on a regular basis in 1968 on a voyage to Cairns. While the Applicant agreed that many of his colleagues drank and that he drank "a few cans of beer at night" this does not constitute heavy drinking. His evidence was that his drinking in Vietnam was higher than it had been previously. It was submitted for the Applicant that he was not asked whether he had a drinking problem prior to his Vietnam service. It was also submitted that the issue relates to the onset of the Applicant's alcohol dependence and not alcohol consumption. There is no evidence that the Applicant suffered an aggravation of alcohol dependence arising from his operational service.
In respect of the Statement of Principles for Generalised Anxiety Disorder Instrument No.48 of 1994, it was submitted for the Respondent that the evidence about the clinical onset of the Applicant's condition is quite vague. Dr Hayes, the Applicant's treating psychiatrist, did not consider that the Applicant suffered from an anxiety disorder. He treated the Applicant for major depression and alcohol dependence. Nor did Dr Hayes consider that the Applicant had symptoms of PTSD. In relation to the Statement of Principles for Post Traumatic Stress Disorder Instrument No.15 of 1994, it was submitted that the Applicant's response to the civilian being killed on the bridge did not involve "fear, helplessness or horror". Rather, his evidence was that he felt "disgust". It was submitted for the Respondent that although the Applicant was inarticulate, that does not mean his answers were unreliable. He did his best to give an honest account of his experiences.
It was submitted for the Applicant in reply that the Respondent had not properly represented Dr Hayes' evidence regarding PTSD, which was "I do not feel he has a clear Post Traumatic Stress Disorder at this stage" (T16, p63). Similarly, Dr Lewin (exhibit 2) did not properly record Dr Hayes' opinion.
consideration of evidence and findings of fact
The Tribunal finds on the balance of probabilities, pursuant to the definition in s5D of the Act, the Applicant suffers from a disease. The issue of the diagnosis of the claimed condition/s, and whether in particular the Applicant suffers from a depressive disorder (or some other condition) as well as alcohol abuse, is part of the issue to be determined pursuant to s120(1) and (3) of the Act: Budworth v Repatriation Commission [2001] FCA 317.
There is no dispute between the parties that the Applicant suffers from alcohol dependence, and the Tribunal so finds. The raised facts are that –

The Applicant experienced a severe psychosocial stressor on service in Vietnam;
From that time he developed a pattern of alcohol abuse that he sustained thereafter;
He suffered from a depressive condition immediately he returned from Vietnam;
Subsequently his heavy drinking caused marital problems and affected his work;
He has suffered at least two bouts of significant major depression, the last being in 1997;
He now suffers from alcohol dependence and a dysthymic disorder (chronic depression);
His depression and alcohol dependence are essentially interconnected;
The diagnosis of the claimed condition is depressive disorder with alcohol dependence.

The Tribunal notes the Applicant's major difficulty in articulating his evidence and in particular, but not exclusively, his feelings and emotions. This must be taken into account in interpreting his evidence and in considering the history he has given to various doctors. Despite his best efforts and those of Counsel, the doctors, and the Tribunal, I am left with a somewhat potted version of events.
The Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517 (at 532-3) endorsed the following definition of a "reasonable hypothesis" –
The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a (sic) least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.
We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
The Tribunal also notes the decision of the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564, relating to assumed facts, where (at 569) the Court said –
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumed that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered.
These authorities provide a context in which to consider the evidence and the hypothesis raised on behalf of the Applicant.
Depressive Disorder
The first issue is whether the Applicant's experiences on his service in Vietnam constitute a "severe psychosocial stressor". This phrase is defined in the relevant Statement of Principles for Depressive Disorder, Instrument No.181 of 1996, as –
an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in 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;
From the Applicant's evidence there are two "identifiable occurrences". The first was his frequent deployment over a period of weeks in the gun turret while at action stations, where he was responsible for preparing the gun for firing for the purpose of bombardment of the shore in an act of aggression against the enemy. Secondly, during one of these periods in the gun turret, he was directly involved in bombardment of the shore in blowing up a bridge on which, it was reported by a spotter plane, a civilian was riding his bicycle and was killed.
The next issue is whether this evoked "feelings of substantial distress" for the Applicant. In cross-examination the Applicant was asked whether he felt "disgusted" by this, and he said "yes". Given the Applicant's very limited ability to express himself articulately, and given the way that evidence was led, the Tribunal places little importance on the word "disgusted" as a reflection of a specific emotion felt by the Applicant at the time. It is necessary to consider that evidence in the context of the rest of the history provided by the Applicant to the Tribunal, and to Dr Dinnen and Dr Hayes. Relying on the authorities of Byrne (supra) and East (supra), it is open on the evidence to assume that the Applicant felt "substantial distress" at these times, in the context of his very limited ability to be in touch with his own emotions let alone being able to articulate them. The Applicant, after all, is a man who could not identify that he was depressed over a period of some 25 years or more, until he was assisted through psychotherapy in understanding that emotion. There is no doubt on his evidence that, at the time, he felt negative about the bridge incident, sufficiently at least not to be able to share in the excitement at the time about the killing. He said –
… they were really excited about killing one person that was riding his bike across the bridge … I didn't feel too good about that. I didn't think it was real Australian … to be truthful.

Since that time the Applicant's evidence was that he tried to put everything out of his mind, but he also said "it comes back completely and as it happened that day". The description of the incident in the book the Applicant was shown in November 1999 "brought everything back".

Both the Respondent and Dr Lewin appear to be concerned that the Applicant did not experience combat. While not making a finding on whether or not the Applicant's activity in the gun turret constituted combat, that is not the test in the definition in any event. There are a number of examples of an 'identifiable occurrence' given in the definition at issue, but none of these include the term "combat". Moreover, the Tribunal notes from the examples given that they are not all of the same order, eg. "being shot at" for many would be significantly more distressing than the "loss of employment" or "serious injury of a close friend or relative". Additionally, it cannot be held that those examples identify the precise nature or degree of the "substantial distress". There is nothing definitive or restrictive about an example. It is no more than illustrative.
"Substantial distress" is essentially a subjective phenomenon, and it relates to the nature of the occurrence and one's ability to cope with it. The Tribunal notes and accepts the evidence of Dr Dinnen that for some the awareness of inflicting damage on another person is a potent element of a subjective stressor. In the matter now before the Tribunal the issue is one of the Applicant causing or contributing directly to the death of a civilian who happened to be crossing the bridge as it was blown up.
The Tribunal finds that the history obtained by Dr Dinnen about the psychological state of the Applicant on his return from Vietnam, and his expert opinion about that history, is sufficient to raise the fact that he suffered the clinical onset of a depressive disorder within two years of experiencing the severe psychosocial stressor on service. Therefore, on the evidence the raised facts are sufficient to meet factor 5(b) of the Statement of Principles for Depressive Disorder, and therefore a reasonable hypothesis has been raised pursuant to s120(3) and s120A of the Act.
Moving now to s120(1), the Tribunal must make findings of fact on the evidence, and in so doing apply the reverse criminal standard of proof. The Tribunal accepts the Applicant as a credible witness, and the evidence of Dr Dinnen as that of an appropriately qualified expert to provide an opinion. The fact that Dr Lewin, at the time he interviewed the Applicant, did not perceive that the Applicant showed any clear disturbance of mood, is no more than a very mild conflict of medical opinion about the Applicant's symptoms at that time. Indeed, Dr Dinnen's oral evidence that his opinion and that of Dr Lewin may be very similar if Dr Lewin can be interpreted as saying that the Applicant showed no present evidence of a major depression but that he continues to suffer from a chronic depressive disorder, is quite feasible. The reality is that there is no evidence before the Tribunal sufficient to disprove the reasonable hypothesis beyond reasonable doubt. The Tribunal determines that the Applicant's depressive condition is war-caused.
Alcohol dependence
The next issue to consider is that of alcohol dependence. Factor 1(b) of the Statement of Principles for Psychoactive Substance Abuse or Dependence, Instrument No.5 of 1994, is relevant in the light of the evidence and the Tribunal's findings on the condition of Depressive Disorder being war-caused –
having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;

"Psychoactive substance abuse or dependence" is defined in the Statement of Principles to mean –

a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated).

The raised facts are that the Applicant developed a depressive disorder immediately he returned from his operational service, and subsequently he developed a pattern of alcohol abuse and ultimately alcohol dependence as a consequence of his depressive disorder. The Tribunal notes that, in applying s120(3) of the Act, it is not necessary to make any findings of fact. A reasonable hypothesis is found if the facts raised meet the relevant Statement of Principles. The Tribunal finds the Applicant to be suffering from a "psychiatric condition", namely, a depressive disorder. On the evidence of Dr Dinnen this condition developed prior to the clinical onset of his alcohol abuse. Thus, factor 1(b) of the Statement of Principles for Psychoactive Substance Abuse or Dependence is met, and therefore a reasonable hypothesis has been raised.
Moving now to s120(1), the Tribunal must find that the Applicant's alcohol dependence is war-caused unless it is satisfied beyond reasonable doubt that the condition was not war-caused. There is no doubt that the Applicant had been introduced to drinking alcohol in the Navy prior to his Vietnam service, and that on at least one occasion during that period he had a blood alcohol level of 0.1 and was charged with Driving Under the Influence. However there is no evidence that he had an established drinking problem at that time, let alone a condition that meets the definition in the Statement of Principles of "psychoactive substance abuse or dependence". While driving with a blood alcohol level of 0.1 was illegal when the legal limit was .08, the Tribunal is not satisfied beyond reasonable doubt that it constituted being "physically hazardous". Although the Applicant's drinking during his operational service had increased significantly when he went ashore on leave, it was not of an order at that time to meet the definition of "psychoactive substance abuse or dependence". On the evidence of Dr Dinnen it was possible that the Applicant drank heavily and persistently only after he started to become depressed, and that the depression emerged as soon as he returned from his operational service. From about that time his use of alcohol, on the evidence of Dr Dinnen, became associated with his depression. The Applicant's evidence was that on return from his operational service he maintained much the same level of heavy drinking thereafter. It is possible, therefore, that a pattern of alcohol abuse, that some time later became alcohol dependence, occurred not long after he returned from operational service.
The Tribunal is not satisfied beyond reasonable doubt that the Applicant had a pre-existing alcohol abuse or dependence prior to his operational service, and the Tribunal is not satisfied beyond reasonable doubt that this condition developed prior to the clinical onset of his depressive disorder. The Tribunal notes that it is only in retrospect that the clinical onset of the depressive disorder at a time soon after the Applicant's operational service has been established by Dr Dinnen, but that is sufficient.
The Tribunal is not satisfied beyond reasonable doubt, therefore, that the Applicant's alcohol dependence is not war-caused.
Although the conditions of depressive disorder and alcohol dependence can be, and indeed have been, established as two separate conditions for the purpose of applying the relevant Statement of Principles, on the evidence of Dr Dinnen, these conditions are essentially interrelated in the Applicant's case, and therefore the Tribunal determines that the correct diagnosis of the claimed condition is "depressive disorder with alcohol abuse". The effective date from which pension shall be paid for this condition is 18 June 1997, being a date not earlier than three months before the Applicant's informal claim was lodged.
assessment
General Rate
Dr Dinnen assessed the Applicant's medical impairment from his psychiatric condition using GARP-V as 35 points. Dr Burns, occupational physician, examined the Applicant and provided a report dated 4 December 1999 (exhibit 3). He provided a GARP-V assessment in respect of the Applicant's war-caused conditions of chronic airflow limitation and tinnitus, as well as for the current condition of depressive disorder with alcohol dependence. He assessed a combined impairment rating of 59 (rounded to 60 points) for all these conditions, and an average lifestyle rating of 4. This provides a General Rate Assessment of 100 percent. The Tribunal notes that if Dr Dinnen's assessment of 35 points was factored in to the total General Rate Assessment a rate of 90 percent would be achieved. The Tribunal also notes the Respondent's submission that in effect whether the assessment is 90 or 100 percent, is not really an issue. The Tribunal would agree, given its findings in respect of the Special Rate assessment. Formally, however, the Tribunal finds that, relying on Dr Burns' evidence, the Applicant's pension is assessed at 100 percent of the General Rate.
Special Rate
The Applicant is seeking payment of pension at the Special Rate. On the basis of the Tribunal's findings in respect of the General Rate assessment, he meets the requirements of s24(1)(a) of the Act.
In respect of s24(1)(b) it was submitted for the Applicant that the medical evidence is clear that the Applicant is unable to work. Dr Dinnen considered that the Applicant is unable to engage in paid work "for 8 hours a week or less" solely because of his psychiatric condition. In his oral evidence he said he did not consider the Applicant to be employable, nor was he interested in working. He said it was not so much that, theoretically, the Applicant could not work but the reality was that he was unlikely to work, particular as he has been in receipt of Service Pension for two years and "he has given up". Dr Dinnen said the Applicant's poor motivation could not be separated from his depression.
Dr Hayes considered that in view of the Applicant's long term symptoms of irritability and alcohol abuse he did not expect him to be able to return to the workforce. The unreliability of the Applicant in his employment, noted by Dr Hayes, is part and parcel of his psychiatric condition. Dr Hayes, in his report dated 22 December 1998 (T24), notes that in view of the Applicant's long-term symptoms of irritability and alcohol abuse he did not consider the Applicant would be able to return to work.

Dr Burns (exhibit 3) considered that because of the Applicant's "current physical state" he could not work "mainly" due to his alcohol abuse and dependence, but he also said –
I do not believe that his chronic airflow limitation and tinnitus would have a significant effect upon his capacity to work. I thus believe that his accepted disabilities would not preclude him from working but that his psychological problems and more specifically his alcohol dependence currently would.
In respect of the Applicant's work capacity, Dr Burns (exhibit 3) opined -–
I believe that in his current physical state it would not be possible for him to work, mainly due to his alcohol abuse and dependence. I do not believe that his chronic airflow limitation and tinnitus would have a significant effect upon his capacity to work. I thus believe that his accepted disabilities would not preclude him from working but that his psychological problems and more specifically his alcohol dependence currently would.

It was submitted that in the context of Dr Burns' report his use of the word "mainly" is in effect negated by this latter statement

On the issue of fitness for work Dr Lewin (exhibit 2) noted that the Applicant ceased work in September 1997 when he was clinically depressed, and that his depression has now largely settled. However his alcohol problem continues without much change and his drinking problem has adversely affected his capacity for work. Dr Lewin also noted that the Applicant had a five year period of unemployment before he purchased the earthmoving equipment, but then he experienced a business failure, having spent $30,000 to $35,000 on repairs for his truck (the Applicant disputes this – he said that this amount includes the purchase of the truck as well as its repairs). Dr Lewin noted that the Applicant acknowledged that his drinking contributed to his difficulties. He concluded that the Applicant would be fit for work "at least on a part time basis".
The Applicant disputes the finding of Dr Lewin that after the Applicant ceased work in September 1997 when he was chronically depressed he received treatment for that condition and "this has now largely settled". Dr Lewin did not consider the Applicant had clear depressive disorder and considered he would be fit for work at least on a part-time basis. It was submitted that that was an understatement of the Applicant's level of incapacity and it is predicated on his view that the Applicant was not suffering from a depressive disorder. On the other hand Dr Lewin does not think he is capable of more than part-time work. It was submitted that Dr Lewin's opinion should be given little weight.
It was submitted that the Applicant's last day of work was undertaken on 15 August 1997, that being a job that took about four days spread over some three or four weeks. His group certificate indicated that even in June 1997 he was doing very little work. The earliest date of effect is 18 June 1997.
It was submitted for the Respondent that, on the evidence of Dr Lewin, the Applicant was capable of working for eight hours a week. It was submitted that both Dr Lewin and Dr Dinnen left open the issue of the Applicant's ability to work part time. It was submitted that on the evidence of Dr Dinnen, the Applicant was not employable and was not interested in working. Nonetheless, theoretically, the Applicant had a capacity to work, but he was not likely to work because he is receiving Service Pension. It was submitted that there was not a lot of work for the Applicant to do on the North Coast in relation to his earthmoving business, but when he was not having problems with the machinery he could work 24 or 25 hours a week. On the evidence of Dr Burns it was the Applicant's business problems associated with an unwise investment in his truck that brought about the collapse of the business. It was about that time that he commenced treatment with Dr Hayes for depression, and it was submitted in effect that his depression was associated with his business problems. It was submitted that the Applicant was capable of working 24 hours a week despite his chronic airflow limitation.
It was submitted for the Respondent that the Applicant worked for many years in different capacities with his alcohol problem. It was never the basis of any reprimand from his employers. It was submitted that the following extract from Ms Baker's counselling notes dated 28 July 1998 (exhibit C) was support for the Respondent's contention that the Applicant had some residual earning capacity –
Russell continues to do well. The kids having (sic) been staying with him for two separate weeks this last month and he found that he fell into a deep hole after they went home. I think the loneliness and lack of direction in his own life at present is putting him at risk of becoming too involved in the kids' lives. Russell agreed that this was a possibility and that he had come to the same realisation that he couldn't keep sitting around waiting for a DVA decision, he would have to get on with some project or another, to give his life a sense of purpose. He is interested in woodturning and car restoration but doesn't have the premises to do either so he has come up with the idea of building a habitable shed at his mother's place. He thinks this could provide a solution so will run it by his mother.

It was submitted that while this related to a diversional activity, it could lead to "something else".

It was submitted for the Respondent that it was not the Applicant's accepted disabilities or his psychiatric problems that are the reasons why he suffered a loss of earnings. He suffered a loss of earnings because of the severe equipment problems he had, that eventually made it untenable for him to continue his business, and he got rid of both vehicles as soon as he could. Indeed, he had invested in poor equipment and problems arose because of that.
It was conceded for the Respondent that the Applicant's back condition did not prevent him from working. It was also conceded that he was seeking work until the time he commenced receiving Service Pension on 5 March 1998.
It was submitted for the Applicant in reply that Dr Dinnen's oral evidence was clear that the Applicant's poor motivation for work was because of his depressive disorder. The Applicant also relied on the oral evidence of Dr Dinnen (transcript 24 July 2000, p52) –
Dr Lewin quite rightly points out we are not dealing with a major depression which is where we can give an anti-depressant and get a person back. While this is a chronic simmering depressive condition where the person really is not very much interested in what's going on around him and is leading a narrow existence. I think that's the nature of chronic depression with alcohol abuse, that's the picture you find unfortunately quite common and it's not easy to point out that this lack of sort of drive and interest is not a character or logical thing. It's not a question of personality structure I don't think, I think it's part of this general mood and approach to life which is part of the depression.

It was submitted that, on the basis of this evidence, the Respondent had raised a false dichotomy in saying that the Applicant was capable of work but was not interested in working.

The Tribunal notes that the date of the Applicant's claim was 17 September 1997, and therefore the Tribunal is required to consider the assessment issues from that date. The Tribunal notes that at that stage the Applicant was suffering a major depression and that he was considered to be permanently incapacitated for work. He was paid Service Pension on the basis of medical evidence supporting permanent incapacity. Although it is apparent that the Applicant's major depression has largely resolved, an underlying chronic depressive disorder has remained. However, importantly so too has his alcohol dependence remained. It is that condition, largely, that now incapacitates him for work. The Tribunal also finds that the Applicant was incapacitated at least from 18 June 1997. At that time he was working for an engineering workshop for a period of four days spread across some 3 or 4 weeks that concluded on 15 August 1997. This is consistent with a work capacity aggregating 8 or less hours per week. Since 15 August 1997 he has not engaged in any remunerative employment.
The Tribunal is reasonably satisfied, having considered the totality of the evidence, that the Applicant is prevented by his war-caused conditions alone from undertaking the remunerative work that he had been undertaking for periods aggregating more than 8 hours per week, and therefore he meets the requirements of s24(1)(b) of the Act.
In respect of s24(1)(c), the Tribunal finds that although the Applicant does not continue to own his earthmoving equipment and does not now have the capital to purchase it, he relinquished it precisely because it was no longer of any use to him. He had by that time been granted a Service Pension on the grounds of permanent incapacity. The issue is hypothetical. However, taking that hypothetical issue, if the Applicant had an ongoing capacity, without his war-caused disabilities, to continue with his earth moving business he would also have been able to repair the equipment and to obtain sufficient work to provide the necessary capital to finance the maintenance of his equipment. The reason why his business got into difficulties was because his psychiatric disability prevented him from operating it as a viable business. He had demonstrated through his previous business in Melbourne that he had the ability to succeed in this sort of venture. There is no evidence that when he set up a similar business on the North Coast that there was not sufficient work there for him. To the contrary, he was not able to operate the business because of his war-caused incapacities.

The Tribunal is reasonably satisfied, on all the evidence, that as at the application date, but for the Applicant's war-caused conditions, he would not have suffered a loss of earnings on his own account that he has suffered. The Applicant is entitled to payment of pension at the Special Rate, on and from 18 June 1997.
The Tribunal will set aside the reviewable decision, and determine that the Applicant's condition of depressive disorder with alcohol dependence is war- caused and that he is entitled to payment of pension at the Special Rate on and from 18 June 1997.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 July 2000 and 7 November 2000
Date of Decision  5 June 2001
Counsel for the Applicant        Mr M Vincent
Solicitor for the Applicant         R L Whyburn & Associates
Solicitor for the Respondent    Mr S Modder, Dept of Veterans' Affairs