Symons and Repatriation Commission [2000] AATA 1049 (28 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 1049

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/127

VETERANS' APPEALS DIVISION )

Re Peter SYMONS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date 28 November 2000

Place Sydney

Decision The Tribunal - 1. Affirms the decision under review, being the decision of a delegate of the Repatriation Commission ("the Respondent") dated 11 June 1996, that refused the claim of Peter Symons ("the Applicant") that his condition of cervical spondylosis was defence caused. 2. Varies the decision under review, being the decision of the Respondent dated 17 April 1997 that refused the Applicant's claim that his condition of Post Traumatic Stress Disorder was war caused by deciding that the words "Post Traumatic Stress Disorder" be deleted, and replaced by the words "Depressive Disorder", and otherwise affirms the decision.

..............................................

M T Lewis,

Presiding Member

1.

CATCHWORDS

VETERANS' AFFAIRS - entitlement - whether cervical spondylosis war-caused - Statement of Principles applied - whether Tribunal reasonably satisfied that cervical spondylosis war-caused - whether suffered trauma to neck prior to clinical onset or worsening of cervical spondylosis - credit of Applicant as witness

VETERANS' AFFAIRS - entitlement - whether post traumatic stress disorder is correct diagnosis of psychiatric condition - whether post traumatic stress disorder war-caused - Statement of Principles applied - whether reasonable hypothesis raised - whether experienced a stressor - whether satisfied beyond reasonable doubt that conditions was not war-caused

Veterans' Entitlements Act 1986 - ss 119, 120(1), 120(3), 120(4), 120A, 120B

Statements of Principles - 15 of 1994, 102 of 1995, 225 of 1995, 331 of 1995, 355 of 1995, 65 of 1996, 162 of 1996, 3 of 1999, 32 of 1999, 54 of 1999

Ablett and Repatriation Commision (1997) 47 ALD 796

Arnott v Repatriation Commission [2000] FCA 1336

Bey v Repatriation Commission (1997) 79 FCR 364

Binding and Repatriation Commission [1999] FCA 974

Budworth and Repatriation Commission [2000] AATA 127

Connors v Repatriation Commission [2000] FCA 783

Flentjar v Repatriation Commission [1997] FCA 1200

Gartrell v Repatriation Commission [2000] FCA 1228

Harris v Repatriation Commission [2000] FCA 873

Jehn and Repatriation Commission [2000] AATA 484

Johnston v The Commonwealth (1982) 150 CLR 331

Mason v Repatriation Commission [2000] FCA 1409

Mulvany and Repatriation Commission [2000] AATA 535

Ogston v Repatriation Commission (1999) 86 FCR 578

Olsen and Repatriation Commission [2000] AATA 909

Powell and Repatriation Commission [2000] AATA 385

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Freeman [2000] AATA 727

Repatriation Commission v Hayes (1982) 64 FLR 423

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Thompson (1993) 44 FCR 20

Repatriation Commission v Yates (1995) 38 ALD 80

Sandiford and Repatriation Commission (1997) 27 AAR 210

Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr P D Lynch, Member

1. This is a review of two decisions of delegates of the Repatriation Commission ("the Respondent"). The first decision dated 11 June 1996 refused a claim made by Peter Symons ("the Applicant") in respect of cervical spondylosis. The second decision dated 17 April 1997 refused the Applicant's claim in respect of post traumatic stress disorder ("PTSD"). The Applicant lodged an application to the Veterans' Review Board ("the VRB") on 11 April 1997 for review of the Respondent's decision in respect of cervical spondylosis, and on 28 April 1997 he lodged an application to the VRB to review the Respondent's decision in respect of PTSD. On 21 October 1997 the VRB affirmed both decisions of the Respondent. The Applicant was advised of those decisions on 3 November 1997, and on 3 February 1998 he lodged an application for review by this Tribunal in respect of both conditions.

2. Because the application for review to the VRB in respect of cervical spondylosis was out of time, the earliest possible effective date in respect of that condition is 11 October 1996, being six months before the date on which the application for review by the VRB was lodged. In respect of PTSD, as all applications were in time, the earliest effective date is 27 December 1996.

3. At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("section 37 documents") (marked exhibit T1). The following documents were tendered as evidence on behalf of the Applicant -

* Written statement of G A Martin, dated 2 June 1999 (exhibit A)

* Report of Dr M Dent, psychiatrist, dated 5 March 1999 (exhibit B)

* Two reports of Dr M Benanzio, orthopaedic surgeon, dated 20 July 1998 and 4 September 1998 (exhibit C)

4. The following documents were tendered as evidence on behalf of the Respondent -

* Additional service documents (exhibit 1)

* Report of Dr R D Lewin, psychiatrist, dated 28 May 1998 (exhibit 2)

* Report of Professor P N Sambrook, rheumatologist, dated 22 June 1999 (exhibit 3)

5. The Applicant served in the Royal Australian Navy from 14 July 1969 to 13 March 1991. He had operational service from 21 October 1970 to 12 November 1970. The standard of proof in relation to that period of service is that of "a reasonable hypothesis", pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). The Applicant also rendered eligible service from 7 December 1972 to 13 March 1991. The standard of proof in relation to that period of service is that of "reasonable satisfaction" pursuant to s120(4) of the Act. As the Applicant lodged his claims after 1 June 1994, the matter falls for consideration pursuant to s120A of the Act in respect of the first period, and s120B in respect of the second period of service.

6. The hearing of this matter was conducted on 3 June 1999 when oral evidence was given by the Applicant and Dr Benanzio, and resumed on 3 April 2000 when oral evidence was given by Dr Altman and Dr Lewin, and the Applicant gave further oral evidence.

applicant's evidence

7. The Applicant was born on 31 December 1953. He said he had a good childhood and could not recall having an anxiety problem as a child or adolescent. He grew up in Ceduna, South Australia. He could not recall providing a history to Dr Myers that "(h)e has suffered from fluctuating chronic anxiety since early adolescence". He said he could understand a reference to "early teens" only insofar as he joined the Navy when he was 15 years old. The Applicant said that his father was a harsh man but he also said that he got on well with his father. The Applicant said that his mother might have been slightly overbearing but not to excess and he does not hold any grudges towards her. The Applicant said that he does not have fears of being alone and noted that he and his brother would often go out camping, hunting and fishing on their own.

8. The Applicant admitted in cross-examination that when he was a teenager he had found the body of a friend who had been killed by a shark. He admitted that "(t)he instant we found him I suppose it looked pretty horrific.. but I don't know whether that had any lasting effects." He said he could not recall being "totally upset" by it.

9. For the first 12 months of his Navy service the Applicant was in Perth for basic training and academic studies. After this training he served on HMAS Sydney. He said he was not excited about going overseas and did not really understand what the Vietnam war was about. He "did not expect to get involved in it too much on the Sydney". He said he was told that the Sydney was going to Vietnam to transport troops and supplies. He undertook emergency stations on the Sydney as a daily routine but he said he was unable to ask more experienced officers what was going on and what he was supposed to be doing because of his low rank.

10. The Applicant said that he first started to suffer from anxiety at about the time of the first voyage of Sydney when three men tried to sabotage the ship in Sydney Harbour by burning it down. He said he was court-marshalled because the fire was lit in his work space from paint and turps he had left there. As a result of the court-marshal he was locked in a room for several days and was not allowed to go ashore or talk to other crew.

11. The Applicant said that just prior to the Sydney leaving for Vietnam, he heard of a woman who was making predictions that HMAS Sydney was going to go down with all hands because the trip was to be the thirteenth trip to Vietnam. There was a news-clipping of this woman's prediction on the ship's notice board. He said he also heard that a similar American ship had gone down with all hands in Vuong Tau harbour just prior to HMAS Sydney sailing. He said that the trip to Vietnam was fairly rough because the Sydney was an aircraft carrier (it was top heavy, with vehicles on the flight deck). It was his first experience at sea. He was seasick. He felt nervous because he did not understand what was going to happen.

12. The Applicant said that on reaching Vietnamese waters the harbour was covered with little boats. He said that it was a strange place. On occasion he and others became extra sentries for "operation awkward". Lights were put over the side of the ship and men were stationed around the upper deck with rifles. He said he was issued with a gun but no bullets because he was too young. He was told to look for divers in the water and to shoot if he saw bubbles. The Applicant said he was feeling totally confused at the time because "thunder flashes" were going off and he wasn't sure what he was supposed to do if he saw bubbles.

13. The Applicant said that of the 13 ratings who were sent to HMAS Sydney from training, most had committed suicide. He said that he was not debriefed after he returned from Vietnam. He said he gets angry about these events. He does not understand why the government or the Navy does not do anything to help. He considered that as HMAS Sydney was a training ship it should not have been sent to Vietnam. He said he was in action stations all the time he was on HMAS Sydney. He said that while on action stations he was not allowed to go to the toilet or eat, which added to his stress.

14. The Applicant said that he started to drink alcohol after returning from Vietnam. He said that the public made him feel depressed. He had to wear his uniform everywhere and as a result he was taunted by student protestors. Some protestors threw pigs' blood or red paint over him. He said that some of the older crew would sneak civilian clothes out for him and then take him and others to hotels.

15. The Applicant said that he drank to unwind and to stop getting angry. He said they were "more or less pushed" into drinking. He said he and others would drink for a couple of hours at night then would return to ship. At the time he did not drink a lot because he thought he was "intolerant" of alcohol, but nonetheless he would drink from about 4pm to 10pm each day, and on returning to the ship he would sometimes vomit. The Applicant said that the Police would take them to pubs to protect them from university student protestors and licensee police.

16. On cross-examination the Applicant said that he had considered leaving the Navy a couple of times prior to 1991, but he did not leave because he liked to finish what he started. He said that he was not aware of complaints about the quality of his work, but complaints had been made about his attitude.

17. The Applicant said that after returning to Sydney from Vietnam he was sent to a training ship for about six months and then to training school. He was trained in electronics and then assigned to patrol boats in Darwin.

18. The Applicant said that prior to going to Darwin he had a motor vehicle accident in which his wife and young daughter were also involved. Service medical records show that this occurred on 29 November 1971 (exhibit 1, p121). His daughter was thrown through the back window and his wife sustained an ear injury. They were all taken to Frankston Hospital. The Applicant said he had a cut on his head and "perhaps" had dislocated his arm. He was concerned about his family. He admitted to suffering anxiety and depression since the motor vehicle accident but he could not identify what triggers this.

19. The Applicant said that after the accident he had compulsory sport, and at those times his right arm would often be sore and "out of joint". The Applicant said that he probably did have tenderness and pain in his neck from the time of the accident. The Applicant said that he continued to have arm and shoulder pain for a while after the accident. This included pain from his wrist to his shoulder, and his wrist was weak. The shoulder dislocation ceased after a while, but he then started to feel pain and "pins and needles" in his fingertips. He said that the pain started in his left thumb and first two fingers, and then moved to all fingers and the whole arm. At present he said he suffers from "pins and needles" throughout his left arm, and also in his right hand and all fingertips.

20. The Applicant said that he did not mention neck pain to doctors who had examined him at the time of the injury, because it was only his shoulder that was disrupting his work. He said that he was reluctant to seek medical attention as a young sailor because if he were prevented from going to sea he would lose his seagoing pay. Further, if he were found in sick bay for a minor complaint, such as a sore neck, he said he would be punished. He said that while in the Navy he consulted a doctor only when told to go.

21. The Applicant said that pain in his neck has changed over the years. He said he sustained a fall in Darwin between 1972 and 1973, and he fell while serving on HMAS Torrens between 1976 and 1978. He said that the pins and needles alerted him to some change in his neck after the falls.

22. The Applicant said that he now gets pain in his lower back that distracts him from neck and arm pain. At present he has cortisone injections to remain mobile. He said that he has had lower back pain for a few years, which is getting worse.

23. The Applicant said that his duties as an electrician in the Navy involved a full range of upper body movement. He said he continued to perform his duties because there was no one else to do them. He took Panadol at the time to control the pain that was always there. He said he was always falling down ladders and would have frequent pain around the neck and down the arms from being thrown around in the patrol boats during rough weather. The patrol boat would go under water and then become airborne. He said that he did not like anyone saying that he could not do his job, so he always persisted.

24. The Applicant recalled a fall while in Darwin. He had one battery on either shoulder and tried to climb up a ladder. He said he slipped down several (six to eight) rungs and the batteries jerked his shoulders. He said he did not want to drop the batteries because they were expensive. Each battery weighed about 40 kilograms, and measured 35 centimetres by over a metre. He said it was easier to maintain his balance by carrying two rather than one battery. He said that some fishermen that were moored in front of the boat pulled him up with ropes around his legs and chest. He said he remained on the wharf for a couple of hours until the pain left and then he continued with his work and was able to drive the batteries around in a car. The Applicant said that once he got the batteries completed he rested on board for a day and a half before they sailed. The Applicant said that he was "probably" sore the next day but could not remember how long the pain lasted for. He said he could not climb ladders for a while afterwards, and others would do that for him. He said there was severe pain in his shoulders, back and the whole of his spine. He remembers large black bruises around the top of his shoulders and down his back. He concluded from this that he "probably" did not have much movement in his arms. In response to Tribunal questions the Applicant said that it was "a good few days" before his acute symptoms resolved.

25. On cross-examination the Applicant said that after this accident it was hard to lie on his back because the shoulder and back areas were bruised and he had "awful pain". He could not recall if he could turn his head. He did not report the incident officially and said he was not advised to seek medical attention. The coxswain asked how he felt and the Applicant said that he "would be okay to go to sea". He said he could not go to hospital as he was going on patrol for three weeks on the Monday. He also said there were no medical facilities anywhere near the patrol boat wharf at the time. He indicated that he felt pain in his neck at T1 and above.

26. In response to Tribunal questions, the Applicant mentioned a second fall when he was carrying one battery that weighed about 50 kilograms down a ladder while on a patrol boat. He said he "skinned his back" after having "slid down quite a few rungs". He said his "whole neck and back" were jarred. The Applicant said on that occasion his acute symptoms lasted a few hours. He said that falls were a common occurrence on patrol boats that were greasy as a result of dieseline fuel being spilled from the engine.

27. The Applicant said that his worst fall was while on the HMAS Torrens. He was holding on to a chain while pulling a cable with one hand. It would not move so he then used two hands. When the cable moved he said he fell on his spine approximately 3½ storeys on to hatch-combing. The Applicant said that he was "in total pain" and remained immobile for about 6 hours. He did not receive any treatment. He took a shower and then went to bed. He said that was "probably" sore all over for days but had to get back to work. He remembers having soreness throughout his back, with bruising.

28. The Applicant said that he did not seek medical attention as it seemed "pointless". He said that he "wasn't going to walk from the ship, up about 60 flights of stairs to HMAS Kuttabul to find there was only a seaman there who would give me a couple of Panadol". The Applicant said he took Panadol and went to bed.

29. The Applicant recounted another incident on the Torrens when he was electrocuted by about 40,000 volts and was thrown about 2 metres across the sonar room. He hit his back and head against a sonar electronic cabinet and was knocked unconscious. He had large burn holes in the palm of his hand. He could not recall for how long he was blacked out. He said that he was sore, but because it was an "exercise" environment he had to continue with his work almost immediately. He said he did not seek medical attention after this incident.

30. The Applicant said that he has had to adjust his behaviour because of pain and discomfort. His current job involves writing. He cannot sit for long periods, and needs to get up and move around. He finds he has to slouch over the keyboard or his hand goes numb. He said he could not sit in the car for long periods. A physiotherapist made him a noose to keep his head to one side and he would "dangle" himself to ease the pain and tingling.

31. The Applicant said that in the later part of his Naval career he would drink every night he was in port for most of the non-working period. He would drink anything from a dozen to twenty or more schooners. He said he would drink to sleep at night and to get rid of the day's stress.

32. The Applicant said that he would not drink heavily when he was in a relationship as there was always something to keep him busy. When he was instructing at HMAS Cerberus he would only drink on weekends because he was teaching during the day and at night. He said it was only when a relationship would split up that he would start drinking heavily. He could not remember consulting medical staff or a counsellor for his drinking.

33. The Applicant recalled an occasion when, after attending a party on board a ship, he was stopped by the Police when driving while disqualified. He was sentenced to six months in Stuart Creek Prison prison, a maximum security prison.

34. The Applicant recalled that in 1975 he was deserted by his de facto wife, Valda, and their two children. He said that this is why he started drinking heavily and this was the first major significant event causing depression that he remembered. The Applicant said he drank "so he wouldn't get angry". Before he commenced taking medication he said he would get angry about everything. He said that this anger started around the early 1970s. He said that he would always try to find a place to work alone because he would get angry or show a lack of tolerance.

35. The Applicant said that he has had sleeplessness for years. It first started while he was on the patrol boats because of the ship's movement, but he noticed it more on the Torrens. Nevertheless he remained alert during the day.

36. Dr Altman prescribed Aurorix, which the Applicant said slows him down. He also said his back is getting "so bad", preventing him from undertaking physical activity.

37. On cross-examination at the resumed hearing the Applicant said that he first treated for depression because of relationship problems in the 1970s by a psychiatrist, possibly Dr Myers. He was prescribed anti-depressants. He said he did not take these very often and tended to rely on alcohol. The next time he took anti-depressants was a few years ago, prescribed by Dr Altman.

38. The Applicant described ongoing contact with his ex-partners and their children. He has been denied access to his own children for some eighteen months. At the resumed hearing he advised that his wife and three children had left him three weeks previously.

39. The Applicant said that he had taken 20 to 25 days off work since June 1999 because he does not feel like going to work and because of alcohol. He said he had stopped taking Aurorix because of the side effects and had started drinking heavily again, sometimes a six pack and at other times a carton of beer a day. He had recommenced heavy drinking during the interval between the first and second days of the hearing. He said that alcohol helps with the pain and sleep. He said he usually drinks daily from about 4 pm until midnight. However, he does not drink when he goes to see Dr Dixon for cortisone injections for his lower back.

40. The Applicant said he had stopped seeing Dr Altman and he did not want to see psychiatrists any more. He said he wrote to Dr Altman ten days before the resumed hearing to see if he could make appointment. He also said that he had seen a psychologist from the Vietnam Veterans' Counselling Service on one occasion and was planning to see her fortnightly.

41. The Applicant said that he had made four suicide attempts. He said that in the early 1970s he tried to harm himself in a car accident. This was separate from the 1971 accident that involved his family.

cervical spondylosis

42. The Tribunal notes from a written statement made by Gregory Andrew Martin dated 2 June 1999 (exhibit A) that he witnessed an incident that occurred between 1976 and 1978 when the Applicant was working above a hull outfit and fell from 2 deck through an access hatch into the hull outfit compartment below. Mr Martin stated:

He appeared to be in considerable pain and was immobile for some time. He continued to give directions to his sub-ordinates so as to have the compartment secured for sea - as the ship was to sail the next day.

43. In his report dated 20 July 1998 (exhibit C) Dr Mario Benanzio, orthopaedic surgeon, opined that on the basis of the history and radiological evidence the Applicant suffered from cervical spondylosis. He considered that the C5/6 pathology most likely was precipitated by the first accident of 1973 or 1974 with perpetuation of the complaints caused by the nature and condition of his work and a number of further accidents. He also opined that the nature and conditions of the Applicant's service, together with a number of accidents while on service, contributed to, aggravated, and/or accelerated the evolution of the cervical degenerative pathology.

44. In his oral evidence in respect of the motor vehicle accident in 1971, Dr Benanzio considered that it resulted in an injury to the right shoulder but he was not given a history of the neck ache. However, he said that the accident could have caused neck strain. He understood that the neck complaints started in 1973 of 1974. He said it was likely but not necessary that the onset of the Applicant's cervical spondylosis occurred as a result of the car accident.

45. In considering the incident when the Applicant was carrying the two batteries, Dr Benanzio said that it was feasible from an orthopaedic point of view that the Applicant's pain in his neck and trapezia was related. Dr Benanzio also accepted that such an accident would cause soft tissue bruising across the back and shoulders and jarring of the neck and lower back. He said that bruising does not necessarily suggest articular injury and it could have been caused by the ropes on the shoulder. He opined that this incident probably caused a compression injury and that it could account for the degenerative change reported at C5 to C6 in x-rays. Dr Benanzio considered that such a complaint might last from two to several days. He also considered that a young man could carry on his activities despite the injury. Dr Benanzio considered this injury to be the most serious of the incidents suffered by the Applicant in relation to the pathology in his neck.

46. In relation to the cable incident Dr Benanzio said that the whole spine would have been sore following a fall from 40 feet. He said that the Applicant's evidence that he rested for several hours suggested that the Applicant might have been unconscious and that he probably had a fused spinal ache, and contusions and strains. He said he could not get a firm answer from the Applicant about how long the pain lasted. However he could accept that such a fall could have caused an aggravation of a pre-existing neck condition and a degree of intermittent discomfort in the neck and back.

47. In relation to the electrocution accident Dr Benanzio said that when one is electrocuted there is a contraction of muscles. Therefore, there could have been a jarring of muscles caused by being thrown, by the fall, and by muscular contraction caused by the electrocution.

48. Dr Benanzio considered that the injuries occurred prior to the development of radiological evidence or clinical evidence of cervical spondylosis and that trauma occurred before the clinical onset of cervical spondylosis.

49. Dr Benanzio considered that Dr Koch's report indicated that the Applicant was presenting degenerative changes in the cervical spine at C5 to C6 in 1987, 15 years after the 1973 accident. He considered that if the Applicant did sustain the first episode of neck symptoms at the time of the 1971 motor vehicle accident, then the 1971 episode was the precipitating factor causing injury to the cervical spine at C5 through C6, and the series of accidents then acted as aggravations.

50. The definition of "trauma to the cervical spine" in the Statement of Principles caused Dr Benanzio to change his views. He said that trauma caused the appearance of pain immediately which lasted for a number of days. He was not aware of the duration of the Applicant's pain. In relation to the cable incident, Dr Benanzio said that the Applicant understood from the Applicant that the pain lasted a long time, but that he could not be specific. Dr Benanzio accepted that the Applicant could have had difficulty negotiating steps or ladders for some days. When asked whether the Applicant ever described an altered range of movement or mobility, Dr Benanzio said that if one has a pain in the neck related to the muscles which control neck movement, the implication is that one does not have a normal range of movement.

51. In relation to the jerking of the patrol boat, Dr Benanzio said that the neck is subject to strain and stress whenever one is subject to movement and hence the Applicant being on a boat in high seas would cause irritation if not aggravation of a neck complaint.

52. In relation to Professor Sambrook's report Dr Benanzio said that the x-ray reports confirm degenerative changes and no disc prolapse. He said the Applicant's main problems in his neck are degenerative changes in the cervical spine bilaterally and that this was consistent with the paraesthesia in both hands. He considered the Applicant's cervical spondylosis to be moderate and of a significant degree. The Applicant had a series of service incidents that most likely put degenerative pathology in motion, and there is more than generalised degenerative changes evident on the Applicant's x-ray reports.

53. Professor Phillip Sambrook, rheumatologist, in his report dated 16 June 1998 (exhibit 3) diagnosed that the Applicant suffers from cervical spondylosis with disc degeneration at C5/6 and the clinical onset of that condition was in 1986. He noted that there was no definite evidence of trauma to the cervical spine in the 1971 motor vehicle accident although there was a complaint of limitation of movement of the neck from about that time.

54. Professor Sambrook noted the incident when the Applicant fell down a ladder while carrying two heavy batteries, and that he was able to return to work a few hours later. He also noted two episodes on HMAS Torrens, one being when he fell from the second deck through a hatch, and the other where he was thrown across the room after being electrocuted. Professor Sambrook noted that although the Applicant felt quite severe pain at this time, it settled after a few hours.

55. Professor Sambrook viewed the Applicant's cervical spine X-rays dated 6 February 1992 that showed mild reduction in the height of the C5/6 disc with slight degenerative change. He also noted some encroachment by osteophytes upon the intervertebral foramina. X-rays taken on 4 November 1997 showed the encroachment to be a little more advanced. An MRI scan on 18 October 1990 was reported to show bulging of the C2/3 disc without significant encroachment upon the dural sac, a small disc prolapse at the C5/6 level causing slight encroachment on the dural sac and spinal cord, and a minor bulge at the C6/7 level.

56. On the basis of his examination and the evidence before him Professor Sambrook considered that factor 5(g) in Instrument No.162 of 1996 to be most relevant. That factor stated -

Suffering a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of the intervertebral disc prolapse;

Professor Sambrook said, however, that for such a claim for aggravation to succeed cervical spondylosis would have to be present before or during the relevant service, yet the first documentation of disc degeneration was in 1986, which was after the incidents when he fell down the hatch and when he suffered the electrocution.

Cervical Spondylosis - Consideration of submissions, evidence and Tribunal's Findings

57. It was submitted for the Applicant that, relying on the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 in the majority judgment at paragraph46 it was clear that the Applicant "is at liberty to take advantage of the more generous provisions of the later instrument", viz. factor 5(e) of Instrument No.162 of 1996. It was also noted that there was an advantage for the Applicant in the definition of "trauma to the cervical spine" in clause 7 of that Instrument.

58. However, it was also submitted for the Applicant that relying on the Full Court in Keeley (supra) the "correct" Instrument to be applied is Instrument No.331 of 1995. It was submitted for the Applicant that the definition of "trauma to the cervical spine" in clause 7 of Instrument No.331 of 1995 does not require the pain, swelling or tenderness to last for any specified number of days. "Force" and "extraneous" and "physical" agent have relevantly been considered by the Tribunal in Re Ablett and Repatriation Commission (1997) 47 ALD 796 and Sandiford and Repatriation Commission (1998) 27 AAR 210 to extend to simple repeated physical exertions.

59. It was submitted for the Respondent that Instrument No.331 of 1995 is not the relevant Instrument concerning the claimed condition, and the Applicant's interpretation of Keeley (supra) is incorrect. The majority in Keeley clearly decided where there are several Statement of Principles that could apply, the applicable one was that which was in existence at the time of the primary decision. Referring to Thompson v Repatriation Commission [2000] FCA 939, 19 July 2000, the Respondent contended that the weight of authority is that the applicable Instrument is that which is in force at the time of the primary decision. The Respondent relied on the decision of the Full Federal Court in Gartrell v Repatriation Commission [2000] FCA 1228, noting the Court's approval of Ogston v Repatriation Commission (1999) 86 FCR 578. The Respondent also contended that the Applicant's interpretation of Keeley cannot stand reconciled with the law decided in Ogston. Accordingly, the Respondent submitted, the applicable Statement of Principles for the condition of Cervical Spondylosis is Instrument No.355 of 1995, which amended Instruments No.102 of 1995 and No.331 of 1995.

60. Because the issue of the appropriate Statement of Principles to be applied is still being litigated in the High Court, the Tribunal will in the first instance, attempt to apply the Statements of Principles in place at the time of the primary decision (relying on the Applicant seeking to rely on his accrued rights, and on the most recent Statement of Principles, that is, No.32 of 1999). The Tribunal rejects the submission of the Applicant that, applying Keeley (supra) it is open to the Tribunal to apply the Statement of Principles in place at the time the claim was lodged with the Tribunal. The Tribunal also rejects the submission of the Applicant that, applying Keeley, it is open to the Tribunal to apply any later Statement of Principles that is more in his favour, that is Instrument No.162 of 1996. That Statement of Principles does not find favour in the issue of "accrued rights" which relate specifically to the matter being determined according to the legislation in place at the time the primary decision was made. The only alternative, to the Statement of Principles in place at the time of the primary decision is the current Statement of Principles, that being Instrument No.32 of 1999: Re Olsen and Repatriation Commission [2000] AATA 909, 18 October 2000.

61. It was submitted for the Applicant that he gave evidence of various falls during service, for example, he had fallen down ladders and the pain and discomfort he suffered increased after those incidents. It was also submitted for the Applicant that the work he was required to do on service involved a full range of movements of his upper body, which at times, because of pain, required him to stop this work until the pain went away, and to rest or take Panadol.

62. It was submitted for the Applicant that that there were a number of significant incidents, viz:

(a) The "Wharf Incident" on HMAS Advance when he was climbing down the ship's ladder to the wharf at Darwin whilst carrying two batteries slung around his shoulders and lost his footing on the ladder and slipped many rungs.

(b) The "Ladder Incident" which also occurred on HMAS Advance when the Applicant was carrying a single battery down a ladder on the ship.

(c) The "Hatch Incident" which occurred on HMAS Torrens when the cabling that the Applicant had been pulling on gave way whereupon he fell backwards approximately 40 feet onto hatch combing.

(d) The "Electrocution Incident" on HMAS Torrens when he was working in the sonar control room on board ship.

63. It was submitted for the Applicant that the Wharf, Ladder, Hatch and Electrocution incidents individually constituted trauma within the definition of "trauma to the cervical spine" in clause 7 of Instrument No.331 of 1995. The Applicant also stated that the general condition he experienced on patrol boats in heavy seas also constituted "trauma".

64. Counsel for the Applicant submitted that the Applicant also meets the more restrictive definition of "trauma to the cervical spine" given by the later Instrument No.355 of 1995. This definition requires an injury "that causes development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred...". It was submitted for the Applicant that although he was unable to recall exactly how long the various incidents caused him pain, tenderness and incapacity, the Tribunal could find, on the evidence of the Applicant that he had a three week period of ongoing symptoms from the injury. It was also submitted for the Applicant that s119(h) of the Act requires the Tribunal to take account of the effect of the passage of time on the ability to establish the fact of the number of days the Applicant had suffered pain, tenderness and incapacity. The Tribunal should be reasonably satisfied that the symptoms relating to the Wharf Incident lasted for 10 or more days (or 7 or more days) noting that the Tribunal has previously held that symptoms do not have to be continuously present during the required number of days: Re Sandiford (supra).

65. It was submitted for the Respondent that s119 in the current matter has no work to do, much like the situation in Arnott v Repatriation Commission [2000] FCA 1336. The Respondent also noted the Federal Court decision of Flentjar v Repatriation Commission [1997] FCA 120010 October 1997, where it was held that s119 could not apply to overcome the failure of an Applicant to meet the requirements of s24 of the Act. Deficiencies in satisfying specific statutory requirements cannot be rectified by s119, whether delegated legislation or otherwise. The Respondent relied on a recent decision of Mason v Repatriation Commission [2000] FCA 1409 where Weinberg J held ,following Bey v Repatriation Commission (1997) 79 FCR 364, that s119 cannot be invoked to remedy deficiencies in the evidence in raising a reasonable hypothesis.

66. The Respondent noted the relevant authority in relation to the definition of "trauma", viz Connors v Repatriation Commission [2000] FCA 783, 13 June 2000; Harris v Repatriation Commission [2000] FCA 873 (4 July 2000); Arnott v Repatriation Commission [2000] FCA 1336. The Respondent noted that these decisions involved the interpretation of "trauma to the lumbar spine" where the "reasonable hypothesis" standard was applicable. Nevertheless, it was submitted that these cases gave strong support to the Respondent's submission on trauma.

67. The Respondent submitted the decision of Ablett and Sandiford are not authority for the proposition that "trauma" would embrace such general events as being buffeted by rough seas. The Respondent notes the factual scenarios in those cases were quite different from the facts of the present matter. The Ablett case concerned a Nursing Orderly required to perform repeated heavy, physical activity in the course of her duties. The Sandiford case involved a soldier required to perform repeated heavy duties such as digging trenches, using a jackhammer, chopping wood, heavy lifting and arduous marching. The Respondent contended that the Applicant was confusing the issue of irritation per se, with possible aggravation from defined incidents. The Respondent submitted that the decision of Sandiford is incorrect in law given the Federal Court authority of Connors supra, which held that each essential element in a definition in a Statement of Principles must be satisfied. The Respondent contended that the temporal requirement in the definition must of necessity be satisfied, amongst other essential elements.

68. In relation to the "wharf incident", the Respondent submitted that notwithstanding part of the relevant definition is met ("force", "extraneous", "physical agent"), on the balance of probabilities the definition of "trauma to the cervical spine" has not been satisfied. The Applicant could not recall with any exactitude the site, intensity or the duration of the pain or indeed any specific restrictions. Indeed, the evidence is that he was able to undertake his duties following the incident and apart from some restriction for a "couple of days" in other alternate duties, he was able to carry out his functions. Having regard to the evidence, and in the light of the authority in Connors, Harris and Arnott, the Respondent contended that there is no evidence that the Applicant suffered a "significant injury". There is no evidence to show, on the balance of probabilities, that the Applicant had acute symptoms and signs of pain, tenderness, altered mobility or range of movement for the requisite period of ten days.

69. In respect of the "ladder incident" It was submitted for the Respondent that the Applicant did not satisfy the Statement of Principles for Cervical Spondylosis, specifically the amending Instrument No.355 of 1995 in respect of the definition of "trauma to the cervical spine". The Applicant's evidence was that his acute symptoms only lasted a few hours, clearly less than a period of 10 days. The Respondent also submitted that there is no evidence that this incident left the Applicant suffering from a "significant injury" as envisaged by the Harris decision.

70. In relation to the "Hatch Incident" the Respondent submitted that, even putting aside the issue of the Applicant not seeking medical attention and attendant credit issues, the evidence would not implicate such an incident in the context of the claimed Cervical Spondylosis on the balance of probabilities. The Respondent also submitted that there was no evidence to establish, on the balance of probabilities, a "serious injury" or acute symptoms and signs of pain, tenderness and altered mobility and the like for the requisite period of ten days. At most there is a history of severe pain and immobility for six hours, and perhaps something lesser than that on the following day.

71. In relation to the "Electric Shock" Incident the Respondent submitted that the Applicant did not sustain a "significant injury" as envisaged by the definition of "trauma of the cervical spine", given his return to duties almost immediately, and his lack of recollection of the duration or site of the pain. Even Dr Benanzio's opinion about possible "muscle spasms" does not fulfil the requirement that there be "acute" symptoms and signs of altered mobility/range of movement. The Respondent also noted that the Applicant's credit must be viewed somewhat critically. The Respondent submitted that on the balance of probabilities there is insufficient evidence to show a requisite connection between the incident and the Applicant's condition.

72. The Applicant's Counsel noted that the only significant non-defence service incident that may have caused injury was a motor vehicle accident in 1971. The Applicant received treatment for a cut to the head and he dislocated his arm. He cannot remember how much pain or discomfort he had then, being concerned instead for his family. The Applicant did not have ongoing pain in his neck. There is no evidence comparable to that concerning the later defence service injuries. In any event, if it was established to the Tribunal's satisfaction that the car accident was causative of cervical spondylosis, the defence service incidents were of such nature to have aggravated the spondylosis, if it was then present, or alternatively that they caused spondylosis, if clinical onset had not yet occurred.

73. Since the defence service incidents the Applicant developed pain and restriction of movement in his cervical spine, and from time he needed to rest. He used a noose to alleviate pain. In Dr Benanzio's opinion, the Wharf, Electrocution and Hatch incidents, either separately or in combination, caused and/or aggravated the Applicant's cervical spondylosis. X-rays were taken when the applicant was aged 33 years, and in the opinion of Dr Benanzio, a person of that age would not be expected to have had the degenerative changes that were present, and therefore at some stage there must have been an injury to the C5/6 disc.

74. It was submitted for the Applicant that Professor Sambrook's opinion is of no assistance to the Tribunal because he appears to have confined his reasoning to that adopted by the VRB and does not independently exercise his opinion. Professor Sambrook nominated factor (g) as "most" relevant, but fails to state which other factors he also considers to be relevant. Having nominated factor (g), he says the issue is then one of aggravation (factor (g) deals with onset, not aggravation). It was submitted that overall, Professor Sambrook's expression is so unclear that his meaning cannot be ascertained and that it would not be safe for the Tribunal to rely on his opinion. The Applicant noted that the Respondent did not take the opportunity to have Professor Sambrook provide a supplementary report to address the oral evidence and/or otherwise supplement the view he had already expressed, and was not called to give oral evidence to the Tribunal.

75. The Respondent submitted that it was not shown by the Applicant that Professor Sambrook did not independently exercise his opinion, he simply advanced a medico-legal opinion consistent with the Statement of Principles. Professor Sambrook quite rightly, when examining the issue of "aggravation", referred to the need for there to be a material aggravation.

76. In relation to "aggravation" the Respondent cited Repatriation Commission v Yates (1995) 38 ALD 80, where it was held that for there to be evidence of aggravation there must be a material contribution to the condition, such that there is a worsening of the condition, and not merely the worsening of symptoms as such. The respondent submitted that the incidents mentioned by the Applicant in his evidence cannot be taken as initiating trauma, or on the other hand, the continuation of symptoms related to the trauma. The submission that the Applicant had a continuum of symptoms related to the "Wharf Incident" for a three week period is inconsistent with the Applicant's evidence that he had suffered from pain and for a "good few days". The Respondent submitted that Sandiford is not wide ranging authority and its authority must now be in doubt following the Federal Court decisions of Connors, Harris and Arnott. It was submitted that the Applicant's submissions do not recognise the fundamental distinction between irritation per se, and specific aggravation in the nature of a further traumatic injury as held in Yates.

77. On the question of the Applicant's credit, it was submitted for the Respondent that his evidence as to why he did not seek medical treatment was unconvincing. The Respondent noted that the Applicant's evidence is inconsistent with the fact that he had consulted Naval doctors for a variety of maladies during his service such as ear troubles and burns. The Applicants evidence cannot be reconciled with the material in his service records. Even if the Applicant had been involved in incidents that could have implicated his neck, there is also the fact that they were not serious enough to report in any officially capacity, or to seek any formal treatment. For similar reasons, the Applicant's evidence of being in "constant pain" "all over" his body from being bounced around in rough weather is open to question.

78. In conclusion it was accepted by the Respondent that the correct diagnosis of the Applicant's condition is cervical spondylosis. However, it was submitted that the relevant factors in the relevant Statements of Principles have not been satisfied as a minimum, and therefore the Tribunal cannot be satisfied on the balance of probabilities that the Applicant's cervical spondylosis is related to his service.

79. The Tribunal finds that the Applicant had no difficulty with his neck prior to 1971 and therefore the only issue before the Tribunal is whether his cervical spondylosis is related to his defence service from 7 December 1972 to 13 March 1991. This part of his service is to be determined pursuant to s120(4) and s120B, to the Tribunal's reasonable satisfaction. The Tribunal is reasonably satisfied on the evidence of Professor Sambrook that the clinical onset of the Applicant's cervical spondylosis was 1986. Although he would have the Tribunal believe that he experienced neck pain and numbness in his hand and arm prior to that time, he did not consult a doctor about the condition until 1986, at which time there was evidence of minor degenerative changes.

80. The Tribunal notes that all the incidents about which the Applicant gave evidence, referred to variously as the "ladder incident", "wharf incident", electric shock incident" and "hatch incident", occurred prior to 1986, being the date from which the Tribunal accepts clinical onset of cervical spondylosis. Therefore, none of these incidents can be claimed as aggravation of cervical spondylosis, because the clinical onset of the condition had not then occurred.

81. In order to consider the overall context in which the abovementioned specific incidents occurred, the Tribunal notes that the motor vehicle incident in 1971 was prior to the Applicant's defence service, and therefore it is not at issue before the Tribunal. Also, in the additional service documents (T3, p37) the following medical record dated 27 February 1975 is noted:

Sailor p/u (picked up) from home following a phone call to say he would not be coming to work as he fell down stairs and had concussion.

Eyes = & react to light.

No neck stiffness

No bumps on the head

No headaches

A small scratch on stomach

Sailor claims he was alright & could carry out his duty.

The Applicant made no reference to this 1975 incident in his evidence.

82. The Tribunal does not consider that Instrument No.355 of 1995 can be ignored merely because it was issued between the date of the claim and the date the claim was determined. Applying the Full Court decision in Keeley, it is the Statements of Principles in place at the time of the primary decision that must be applied in the event of the Applicant seeking to rely on his accrued rights. Hence, the Tribunal will apply Instrument No.102 of 1995, amended by Instrument No.331 of 1995 and later amended by Instrument No.355 of 1995.

83. "Trauma to the cervical spine" is defined in Instrument No.355 of 1995 as -

an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg. Splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.

Factor (ea) "suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis" is the only relevant factor in this case, having excluded the "clinical worsening" factor on the grounds that the clinical onset of cervical spondylosis was not until after the specific events at issue.

84. The Tribunal notes the evidence of the Applicant in respect of each of the specific events, and finds in relation to each event that it does not meet the definition of "trauma to the cervical spine" as identified (supra).

85. If, however, the Tribunal was required to use the definition of "trauma to the cervical spine" as it appears in Instrument No 331 of 1995, the Tribunal would first have to consider the issue of credit raised by the Respondent, that was also a concern for the Tribunal. The Tribunal did not consider the Applicant to be an impressive witness. He was at best a poor historian. Moreover, the Tribunal remains concerned about the total lack of formal reporting by the Applicant of any of these events. In contrast the Tribunal notes that in 1975 he reported having fallen down the stairs at home, causing concussion, and telephoning to say that he could not come to work. However, when he was taken to the Naval base and medically examined, he then decided that he was able to do his work. The Tribunal is not reasonably satisfied that each of the incidents about which the Applicant gave evidence occurred, and on the same basis the Tribunal cannot be reasonably satisfied that any of the incidents occurred as described. The Tribunal has also taken the statement of Mr Martin regarding the Applicant's alleged fall down the hatch into account in making its finding.

86. Taking into consideration the submissions made by the parties, and the evidence, the Tribunal is not reasonably satisfied that the Applicant suffered an "injury to his cervical spine caused by the force of an extraneous physical or mechanical agent that causes pain, swelling or tenderness within the 24 hours after the force has been applied".

87. The Tribunal is unable to give much weight to the evidence of Dr Benanzio, who appears to rely on aggravation and the nature and conditions of the Applicant's service. For different reasons, neither of these factors are ones which assist the Applicant to meet the relevant Statement of Principles.

88. Turning now to Instrument No.32 of 1999, being the Statement of Principles currently in place for Cervical Spondylosis, the Tribunal notes that the definition of "trauma to the cervical spine" in that Instrument means -

a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least 10 days following their onset save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:

(a) immobilisation of the cervical spine by splinting, or similar external agent; or

(b) injection of corticosteroids or local anaesthetics into the cervical spine; or

(c) surgery to the cervical spine.

The Tribunal is unable to find on the evidence that any of the incidents reported in his evidence meet this definition.

89. Hence, on the totality of the evidence the Tribunal is not reasonably satisfied that the Applicant's cervical spondylosis has any causal relationship with his defence service. That part of the decision under review will therefore be affirmed.

psychiatric disorder

90. Dr Graham Altman, who had been the Applicant's treating psychiatrist, gave oral evidence to the Tribunal. He had last seen the Applicant on14 September 1998, that being the Applicant's fifth consultation. Over that period Dr Altman did not observe any great change in the Applicant's overall condition. He believed that the Applicant suffers from PTSD as a chronic permanent condition that fluctuates with an associated major depression and alcohol dependence.

91. In a report dated 17 March 1997 (T12), apparently following the first consultation, Dr Altman stated that on and just prior to service in Vietnam the Applicant stated he found the fire incident and subsequent court-martial, his guard duty on the upper deck in Vietnam, and the abuse from protestors, to be stressful. Dr Altman said that the Applicant's Vietnam experience affected him in the following ways:

* he suffers from nightmares;

* he has recurrent intrusive distressing thoughts about his Vietnam experience (demonstrations remind him);

* he avoids thoughts associated with his Vietnam experience, he does not talk about it or attend Anzac Day marches and becomes distressed on exposure to reminders of his Vietnam experience;

* he is much more of a loner;

* has difficulty showing affection to loved ones;

* his activities and hobbies have diminished;

* suffers from sleep disturbance;

* concentration is poor;

* far more irritable; and

* is generally hypervigilant.

92. Dr Altman also stated that the Applicant:

... presented with a number of significant depressive symptoms... Since Vietnam he has been drinking approximately four to six stubbies per day and at times "at least three-quarters of a bottle whiskey" and on the weekends approximately fifteen to twenty stubbies per day. Prior to his going to Vietnam he did not drink alcohol... In summary, in my opinion as a result of his Vietnam experience Mr Symons suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence.

93. In a further report dated 20 October 1997 (T16), Dr Altman confirmed his opinion in his previous report, and also stated that the Applicant :

... found being on action stations stressful. In other words although he may have been in Vietnam for approximately two days, he was in a war situation for approximately twenty eight days. In addition to what I outlined as being stressful for him in my report... dated March 17, 1997 he stated that the following was stressful for him:

1. "When they dropped thunder flashes every few minutes - I never knew what a thunder flash was and I thought they were explosions".

2. He found it stressful hearing stories from other soldiers about what had happened in Vietnam when taking these returned soldiers back to Brisbane.

94. In his oral evidence Dr Altman noted the young age of the Applicant when he joined the Navy and he considered that it is well documented that age was a vulnerability factor in developing PTSD. Dr Altman considered the Applicant met the diagnostic criteria for PTSD. The Applicant felt his life was in danger and because he was not kept informed of what was going on, he felt helpless and hopeless, and therefore from the Applicant's perspective it was life threatening. Dr Altman considered that these factors were stressful enough to cause PTSD.

95. Dr Altman noted that it was significant that the Applicant has been consulting psychiatrists since the 1970s. Dr Altman noted from Dr Lewin's report that he had diagnosed a mixed personality disorder, but Dr Altman could not find the basis for that diagnosis.

96. Dr Altman considered that because the Applicant saw flares and heard depth charges and did not know what they were the Applicant "could have believed he was in action". Dr Altman also noted that the Applicant was given a weapon which he thought he was expected to use, and this could have caused him to think he had been "in action". Dr Altman agreed that the general apprehension of action is a significant factor in determining a stressor. Dr Altman considered the Applicant's anger originated from his PTSD, but agreed that being locked up in a maximum security prison for 185 days would have caused anger and resentment.

97. Dr Altman considered that the Applicant's major depression is directly related to his PTSD, but he acknowledged that the Applicant had other life events subsequent to his service in Vietnam which could also have been depressing. Additionally, he considered the Applicant's PTSD to be central to a lot of his marital, work and drinking problems and depression.

98. Dr Altman noted that the general pattern of the Applicant's drinking was four to six stubbies per day and at times at least three quarters of a bottle of whiskey, and on the weekends approximately 15 to 20 stubbies per day, but noted the Applicant's drinking habits have fluctuated over time.

99. Dr Altman considered that an indication of the Applicant's PTSD was that he was working long hours, and he said that PTSD sufferers tend to be workaholics, perfectionists, neglect the family and drink a lot. Moreover, just because the Applicant was working long hours does not mean that he was working well.

100. Dr Altman agreed that the motor vehicle accident could have been a traumatic event to trigger PTSD, but he would need to explore that further with the Applicant.

101. Dr Altman noted the Applicant drinks as a comfort when he experiences stress. He did not agree that the Applicant had a personality disorder that caused problems in his personal life. He considered that the Applicant has too many symptoms of PTSD for Dr Altman not to take note of it.

102. Dr Altman said that he found it difficult to obtain a history from the Applicant as he is difficult to engage, tends to give mono-syllabic answers and lacks insight.

103. Dr Altman agreed that the shark incident was a significant event, but noted that he had experience of many people with PTSD who had previously experienced trauma but whose war experience actually caused the deterioration.

104. Dr Malcolm Dent, consultant psychiatrist, in a report dated 5 March 1999 said that he could not make a diagnosis of PTSD according to the Statement of Principles. He diagnosed Substance Abuse - Alcohol, related to a mental disorder. He found no evidence of personality disorder, but he did find evidence of an ongoing stress reaction involving alcohol abuse. Dr Dent considered that a diagnosis of Anxiety Disorder - Not Otherwise Specified could me made in accordance with DSM IV. Dr Dent considered that the Applicant's alcohol abuse and anxiety disorder were caused by his eligible war service. He said that he did not consider that the Applicant suffers from major depression, although he noted significant depression was evident. Dr Dent said that the description of the Applicant's symptoms accorded with a diagnosis of Dysthymia or Depressive Disorder - Not Otherwise Specified.

105. Dr Lewin, Forensic Psychiatrist, noted that the Applicant's time in Vietnam was only 48 hours in Vung Tau harbour, he had not been directly involved in combat, had not been injured and was not fired upon. Dr Lewin noted in his report dated 28 May 1998, that the Applicant had a number of anxiety symptoms which did not prevent him going about his business. On the basis of the background history, Dr Lewin considered it likely that the Applicant had a mixed personality disorder and a degree of personality vulnerability. He noted Dr Myer's remarks in relation to a history of anxiety in the Applicant's teenage years, although the Applicant did not give Dr Lewin the same history. Dr Lewin also noted:

He has a trait of obsessionality and I observed a degree of entitlement in his attitude and behaviour during the examination. It is likely that there is a degree of narcissistic vulnerability in this case as well.

I concluded that Mr Symons is not suffering from any current psychiatric illness. I do not feel that he requires ongoing psychiatric treatment of an intensive nature. I did not find evidence of an Anxiety Disorder or of a depressive condition and there was certainly no sign of a morbid mental illness in this case.

106. In his oral evidence Dr Lewin considered from the history of alcohol consumption provided by the Applicant there was a significant alcohol problem, but he did not find any specific explanation for the Applicant's drinking problem. He considered it likely that there was an "alcohol dependency syndrome" but he did not make that diagnosis because the Applicant did not fulfil the diagnostic criteria. Dr Lewin said that he could not determine from the marital difficulties, criminal charges, imprisonment, his wife's illness and dissatisfaction with the marriage, whether the Applicant became more depressed because of his drinking or whether his alcohol intake increased because of his depression. Dr Lewin considered that the disrupted relationships indicated a more long-term problem.

107. Dr Lewin did not diagnose PTSD in the Applicant's case. Rather, he considered that the Applicant has a personality disorder or personality vulnerability. He did not consider the history was sufficiently clear for him to be "categorical", but on clinical grounds this would be his first hypothesis having regard to the history of harsh rearing and other adversities in childhood as well as early entry into adult responsibility, disrupted personal relationships and alcohol abuse.

108. Dr Lewin could not agree with Dr Altman's diagnosis of PTSD on the history he obtained. Dr Lewin regarded the car accident involving the Applicant, his wife and young daughter as being a significant stressor. He also considered that the Applicant seeing parts of his friend's body after the shark accident would be a traumatic experience. Dr Lewin did not agree with Dr Dent's diagnosis of anxiety disorder and considered that diagnosis to be unspecific and lacking clarification.

109. Dr Lewin noted the Applicant's history of harsh treatment by his father, but considered that he "played down the possibility that there might have been excessive punishment or physical abuse in his childhood years" (exhibit 2). In his oral evidence he agreed that this opinion included "a conjectural element".

110. Dr Lewin agreed that the Applicant suffers from alcohol abuse. He agreed that the Applicant's early enlistment in the Navy, including his duties on operational service, was part of his early entry into adult responsibilities. He considered that these factors might be consistent with a pattern of personality dysfunction. Dr Lewin acknowledged that one is more susceptible to emotional impact of trauma at the extremes of the age continuum, so that the child tends to react disproportionately when compared to a healthy robust adult. He accepted that when the Applicant went to Vietnam he was not a robust adult.

111. Dr Lewin agreed that if there was a pre-existing history of anxiety, that may increase the likelihood of the Veteran being anxious when exposed to a stressor. He said that the Applicant's reaction to the demonstrators on his return from Vietnam lacks the quality and intensity of a stressor or a history of terror or profound fear. He said that it was more likely a response of anger, outrage and confusion, but it was conceivable the Applicant might have experienced a transient adjustment disorder.

112. Dr Lewin acknowledged in his oral evidence that he "was not absolutely convinced" that the Applicant does not have PTSD. He acknowledged a possibility that the Applicant had a pre-existing PTSD. He said that the shark incident was likely to have had a significant impact, but he could not say how long that emotional reaction would have lasted, and it could have extended to the time the Applicant went to Vietnam. He also agreed that if one already had PTSD then certain stimuli could aggravate that condition. The stressor needed to aggravate PTSD is not the same sort of stressor needed to initiate it, and if the Applicant had a pre-existing PTSD condition it might have been aggravated by the events of service. However, one needs to consider the actual stressor in the Applicant's case, given the history of illness and personality vulnerabilities. Dr Lewin accepted as a general proposition that the experience of a stressor that induces anxiety can worsen PTSD.

113. Dr Lewin considered it more likely than not that the Applicant has a mixed personality disorder rather than PTSD. He considered that the Applicant's stressors on service would not satisfy the diagnostic criteria regarding "severe stressor". However, if there was an established illness then a more mild stressor on service might have exacerbated an already established condition.

114. The Tribunal notes from the Applicant's service records (T3) that there was considerable documentation of the Applicant's domestic problems. In a report dated 10 October 1974, Dr Myers, psychiatrist, stated that the Applicant "has suffered from fluctuating chronic anxiety since early adolescence". Dr McGovern in a report dated 12 March 1975 said:

He describes being on Tofranil since October, 1974 when his wife and children left him... he has been boozing heavily since... He describes that his wife would complain of being sick of being tied down and wanting live her own life... and that she had spent four years in a wheel chair pre marriage with Rheumatoid Arthritis... He described being depressed... and when off duty would go off the boat to the pub. He described that he slept and ate well, had a slight loss of weight only, had normal energy, interest levels etc. He described that Tofranil helped at first but he has not been taking any now for the past couple of months... He offers no cause to adequately explain the rupture of this relationship and we may not be getting the whole history... Alcohol has certainly been a complicating factor...

115. In a report dated 14 July 1975, Dr Hill, consultant psychiatrist ,said:

Deserted by de facto wife Oct. 1974... Appalling conditions in Civilian prison. He is determined never to see the inside of another prison. He realises his wife has gone for good, but he misses his 2 children... He wishes to remain temperate in his drinking habits...

116. Dr Hill provided a further report dated 15 August 1975, in which he said:

Drinking less. Reconciled to the loss his defacto wife... would welcome a posting that would allow him to go to sea... In my opinion he is fit for such a posting.

117. Dr Myers, psychiatrist, report on 17 March 1983:

Domestic stress has been mounting in recent months. His wife has had emotional problems... At present they are in the Q Vic Hosp. PIVOT programme and recent ovarian pickup attempt failed.

118. The Applicant's oral evidence about this was that the program worked better for his wife than for him.

Psychiatric condition - Consideration of submissions, evidence, and findings of fact

119. It was submitted for the Applicant that on the evidence of Dr Altman the Applicant suffers from a psychiatric disorder that is diagnosed as PTSD with associated Major Depression and Alcohol Dependence. It was submitted that Dr Altman as the treating psychiatrist since March 1997 is in a stronger position than Dr Lewin to diagnose the Applicant's condition on the basis of the symptoms he has recorded and his knowledge of the level of incapacity suffered. On the other hand Dr Lewin saw the Applicant only once and was unable to diagnose any current psychiatric illness. Dr Altman diagnosed alcohol dependence as part of the Applicant's PTSD, while Dr Lewin diagnosed alcohol abuse but also considered there to be a "fair likelihood" of alcohol dependence.

120. It was submitted for the Applicant that the applicable Instrument in respect of the PTSD is Instrument No.15 of 1994 concerning Post Traumatic Stress Disorder as amended by Instrument No.225 of 1995.

121. It was submitted that the stressor that the Applicant, as a teenage boy, was exposed to was his subjective perception that his life and/or safety were at risk whilst he was on guard duty on HMAS Sydney, and whilst thunder flashes were being discharged. At that time he was 16 years of age, and came from a relatively sheltered regional upbringing. Dr Altman and Dr Lewin agreed that age is a well-documented vulnerability factor in the development of PTSD. Dr Altman considered the stressor and the response to it to be sufficient to meet the requirement of the Statements of Principles. Dr Lewin, in his report, did not consider that there had been a sufficient stressor, but he modified his view in oral evidence.

122. It was submitted for the applicant that it is necessary to view the stressors in context. At age 15 the Applicant went to HMAS Leeuwin as a cadet and was later transferred to HMAS Sydney. HMAS Sydney was not a training ship. The Applicant was on board the vessel when it went on its 13^th trip to Vietnam. Prior to the voyage the Applicant had heard predictions of disaster. The Applicant recalls first having suffered anxiety about this time when he was court-martialled and confined to quarters due to an incident of damage to ship's property involving the setting alight of paints and chemicals. Once HMAS Sydney arrived in Vietnamese waters the Applicant was put on guard duty and given a rifle without bullets. He was told to watch for bubbles from enemy divers. There were thunder flashes being discharged from time to time but he received no explanation about the nature of the explosions. He felt totally confused. He was not debriefed after the trip. On the evidence of Dr Altman the Applicant suffered a stressor and his response to the stressor was of the required severity. It was submitted that since the early 1970s the Applicant had had symptoms of anger and intolerance and to deal with this he would try to work on his own.

123. It was submitted for the Applicant that the hypothesis raised is that his PTSD has been caused or aggravated by his operational service, in terms of factors 1(a) and (b) of Instrument No.5 of 1994. Factor 1(a) is raised by the stressors and the Applicant's reaction to them. It was noted that the Applicant himself is not articulate, and had difficulty describing his emotional state. In respect of factor 1(b), although the Applicant regarded his childhood as very happy there was an incident when the Applicant was aged 13 or 14 when he observed the body of a friend who died after being mauled by a shark. The Applicant said the incident affected him. Dr Lewin agreed that it was likely the episode would have made a significant impact. He also agreed that it was reasonable that if a post traumatic condition is already established, then the same level of stressor is not required to aggravate the condition as it does to initiate it.

124. Taking note of Dr Lewin's evidence that it was a conceivable hypothesis, but a "long bow", that the Applicant suffered from PTSD and major depression, it was submitted for the Applicant that an hypothesis has been raised that was pointed to by the facts that to some degree the Applicant already suffered from PTSD at the time he undertook operational service. Accordingly, factor 1(b) of Instrument No.15 of 1994 has been raised. There is no evidence before the Tribunal that would disprove the raised hypothesis beyond reasonable doubt.

125. The Respondent relied on the decision of the Tribunal Re Jehn and Repatriation Commission [2000] AATA 484, 19 June 2000, which cited Repatriation Commission v Cooke (1998) 160 ALR 17 as authority that in cases of PTSD the Tribunal must use the Statement of Principles to establish the existence of the condition to its reasonable satisfaction, before the reasonable hypothesis standard is applied to determine a nexus between the condition as established and service.

126. It was submitted that Dr Altman's opinion was somewhat inflexible and generalised. He considered the Applicant was generally apprehensive about being involved in action, but the Applicant's evidence was that he "did not expect to get involved in it too much". Dr Altman conceded that he deferred consideration of a diagnosis of personality disorder, and relied instead on a diagnosis of PTSD. The Respondent submitted that Dr Altman has applied a pre-fabricated diagnosis without concerning himself with real alternatives. By way of contrast, Dr Lewin did consider the possible alternative diagnosis of PTSD.

127. It was submitted for the Respondent that Dr Lewin correctly tentatively diagnosed the Applicant's problems as being manifestations of a personality disorder, constitutional in nature. In considering the diagnosis of the Applicant's condition, Dr Lewin took into account the discordant history given by the Applicant and recorded in his service documents as well as the history provided to him and subsequently to the Tribunal.

128. It was submitted that the Tribunal's decisions Re Powell and Repatriation Commission [2000] AATA 385 and Re Jehn (supra) are persuasive (albeit not binding) in holding that all of the diagnostic criteria in the Statement of Principles must be established before a diagnosis of PTSD can be made out. The decision of the Federal Court in Connors v Repatriation Commission [2000] FCA 783, 13 June 2000 is authority for the proposition that all of the essential elements must be met when having regard to a defined condition in a Statement of Principles.

129. It was submitted for the Respondent that all of the essential elements necessary for a diagnosis of PTSD have not been made out in the present case. While arguably a case has been made out for the Applicant meeting paragraphs (d) (e) and (f) of the definition of PTSD in the Statement of Principles, paragraphs (a) (b) and (c) are in dispute.

130. In relation to diagnostic criteria paragraph (c) "persistent avoidance", the Respondent submitted that the Applicant does not satisfy the requisite three or more "sub criteria" under this heading, although it was conceded that there was some evidence to support his satisfying (v) and (vi). However there is no suggestion on the evidence that he satisfies (vii). Additionally the Applicant fails to meet (iii) and indeed, to the contrary, he has had no difficulty recalling the salient aspects of the alleged traumatic events. Additionally, in respect of (ii) there has been no effort to avoid activities, places, or people that arouse recollections of the trauma. Moreover, there is no evidence in respect of (i) that the Applicant avoided having conversations, thoughts or feelings associated with the alleged trauma. In respect of (iv) the Applicant has not shown that he has a "markedly diminished interest or participation in significant activities insofar as his psychological problems are concerned. His evidence was that he would have no trouble coping with activities such as renovating his house, were it not for his back problems. He said that the "mind's there but the body's not there". His major difficulties at present relate to his drinking which he does to counter back pain and possibly "stress at work".

131. In relation to the diagnostic criteria in paragraph (b) that "the traumatic event is persistently re-experienced in one or more of the following ways" the Respondent submitted that paragraph (i) is not satisfied. In respect of paragraph (ii) Dr Altman conceded there is no direct evidence that the Applicant has suffered from recurrent distressing dreams of the trauma he alleged occurred during his Vietnam service. It was submitted also that paragraph (iii) is not established on the evidence, and in respect of (iv) and (v) there is a paucity of evidence. In respect of (iv), there was no evidence of intense psychological distress.

132. In relation to diagnostic criteria paragraph (a), being "exposed to a traumatic event" where "the person's response to the event involved intense fear, helplessness or horror", the Respondent submitted that this criteria is not satisfied on the evidence. The Applicant's responses to his stressors on service comprised "total confusion" and "anger" and he was not intensely frightened, or horrified by his experiences apart from a vague generalisation of being anxious and slightly scared from superstitious premonitions and stories told on board. The Applicant was confused about the detonation of "flash charges" in Vung Tau harbour and about his guard duty role, as well as being angry about being "kept in the dark" and used like "dogsbodies". Further, on returning from Vietnam, the Applicant became even more angry given the behaviour of the protestors. It was submitted that confusion and anger are quite different emotions from fear, helplessness and horror. It was conceded for the Respondent that Dr Lewin referred to "severe" stressor, a term not used in the 1995 Statements of Principles. However, in his oral evidence he did not change his opinion after having considered the unqualified term "stressor".

133. It was submitted for the Respondent that the words of the definitions are clear and unambiguous, and do not require any interpretation other than what their ordinary meaning reveals: Repatriation Commission v Thompson (1993) 44 FCR 20 and should not be strained beyond their "true signification": Repatriation Commission v Hayes (1982) 64 FLR 423.

134. The Respondent noted that the nature of the stressor when viewed in context is a subjective one: Re Binding and Repatriation Commission [1999] FCA 974. Nevertheless, the Respondent submitted that an objective standard is appropriate in this context, for which the Respondent relied on the matters of Budworth and Repatriation Commission [2000] AATA 127; Re Mulvany and Repatriation Commission [2000] AATA 535and Re Repatriation Commission and Freeman [2000] AATA 727.

135. In response to the Applicant's submissions on "vulnerability", the Respondent contended that these arguments should be balanced against several other salient considerations of the Applicant's training. He was not in danger of being fired upon, or having to fire, he was given an unloaded rifle in Vung Tau harbour, and his general consideration was that he would not be involved too much in action in Vung Tau harbour.

136. In relation to aggravation, the Respondent noted the Applicant's submission regarding the alternate hypothesis that the Applicant had a pre-existing PTSD due to the shark incident before his operational service in Vietnam. The evidence in relation to the shark tragedy arose only during cross-examination and the Applicant stated that he did not think that incident plagued him at the time he joined the Navy. It was submitted for the Respondent that Dr Altman did not have any history on the shark incident, he conceded it would be a significant and traumatic incident in the Applicant's life but he could not evaluate its significance vis a viz any other incident. The Respondent conceded that Dr Lewin raised the possibility of the Applicant suffering from PTSD as a pre-existing condition due to the shark incident, and then the issue is whether the PTSD was aggravated or exacerbated by the Applicant's service. However, Dr Lewin said that having regard to the seriousness of the original stressor compared to the subsequent exacerbation it is "a flare up" rather than "a crescendo". Accordingly the Respondent submitted that any aggravation was not permanent and as such is not a material contribution to the clinical worsening of the condition. Any aggravation should be of a permanent nature of the underlying condition itself: Re Yates and Johnston v The Commonwealth (1982) 150 CLR 331.

137. Additionally, it was submitted that even if Dr Lewin's opinion was accepted without reservation, the Applicant still could not satisfy factor 1(b) of Instrument No.15 of 1994. It was also submitted that if the Applicant cannot satisfy the requirements of the Statement of Principles for prior to the clinical onset of the condition, neither can he satisfy it for the purposes of experiencing prior to the clinical worsening of the condition. Dr Lewin's opinion cannot raise an hypothesis which is outside the terms of a Statement of Principles.

138. In relation to the Applicant's consumption of alcohol the Respondent submitted that the evidence of the Applicant's consumption of alcohol was temporal and not connected with his alleged PTSD condition. In that regard the Respondent notes the variation in the evidence given by the Applicant as to the commencement of his alleged drinking habit. In relation to the recent evidence of alcohol consumption, the Applicant said he drinks quite heavily on occasions, but he stops drinking from time to time - for example, when he consults his doctor.

139. The Applicant cited the problems in his household being linked to his alcohol consumption arising from back pain, which is hardly a factor that implicates his PTSD in his drinking habit. It was submitted for the Respondent that, on this history of alcohol consumption, the Applicant's drinking habit is not causally linked to any PTSD condition and in fact does not support the hypothesis advanced by the Applicant.

Diagnosis of claimed condition

140. As the Applicant lodged a claim after 1 June 1994, pursuant to section 120A of the Act, the Tribunal is required to apply the relevant Statement of Principles in determining this matter. Although both parties argued this case on the basis of a PTSD diagnosis, it is the Tribunal's responsibility to determine on the balance of probabilities the correct diagnosis of the claimed condition: Cooke (supra).

141. The "reasonable hypothesis" Statements of Principles concerning Post Traumatic Stress Disorder, which were in place at the time the primary decision was made on 17 April 1997, was Instrument No.15 of 1994 as amended by No.225 of 1995. These were revoked by Instrument No.3 of 1999 as amended by No.54 of 1999. In effect the Applicant sought to rely on his accrued right to have the matter determined on the basis of the Statements of Principles in place at the time of the primary decision: Repatriation Commission v Keeley (2000) 98 FCR 108.

142. The Applicant relies on factors 1(a) and 1(b). Factor 1(a) states:

Experiencing a stressor prior to the clinical onset of post traumatic stress disorder;

Factor 1(b) states:

Experiencing a stressor prior to the clinical worsening of post traumatic stress disorder;

143. That Statement of Principles (Instrument No.15 of 1994) defines "experiencing a stressor" and "post traumatic stress disorder" respectively (at paragraph 4) -

"experiencing a stressor" means the following (derived from DSM-IV):

(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror;

"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):

(a) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness, or horror; and

(b) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii) recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and

(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg, unable to have loving feelings);

(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

(ii) irritability or outbursts of anger;

(iii) difficulty concentrating;

(iv) hypervigilance;

(v) exaggerated startle response; and

(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

144. Applying the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 160 ALR 17, the Tribunal must be reasonably satisfied that a disease or injury existed before proceeding to apply the reasonable hypothesis test provided in s120(1) and (3) of the Act. That the Applicant suffers from a psychiatric illness is not at issue, although the diagnosis of the condition from which he suffers is at issue. The Tribunal interprets the effect of the Full Federal Court decision in Cooke to require that it must be reasonably satisfied that the Applicant suffers from PTSD before considering whether there is a reasonable hypothesis that that condition was war caused. As this is a matter to which Instrument No.15 of 1994 applied, then in effect in order for the Tribunal to find that the Applicant suffers from PTSD for the purposes of the Act he must meet the criteria set out in that definition (see para. 143 above). Thus, the Tribunal must be satisfied, on the balance of probabilities, that the Applicant meets the description of PTSD by meeting each of the five criteria specified in the Statement of Principles: Re Powell (supra); and Re Jehn (supra).

145. The Tribunal does not accept the submissions of the Respondent that an objective standard is appropriate in considering the nature of a stressor, and notes that an appeal against the decision of the Tribunal Re Budworth (supra) has been heard by the Federal Court but no decision has yet been handed down. It is sufficient for present purposes, however, to find that in this case the Applicant was not confronted with an event that involved actual or threatened death or serious injury, or a threat to his physical integrity or that of others, and the Tribunal so finds. There is no evidence that the Applicant felt anything more than confusion, uncertainty, anxiety and anger. Taking account of the Applicant's young age and vulnerability because of his previous experiences, there is, nonetheless, no evidence that his response involved intense fear, helplessness or horror.

146. The Tribunal accepts the Respondent's submissions on the point that there are a number of essential aspects of the definition of PTSD which the Applicant fails to meet. Certainly, the Tribunal cannot be reasonably satisfied that the Applicant now suffers from PTSD. Moreover, on the evidence the Tribunal cannot be reasonably satisfied that the Applicant has ever suffered from that condition, at least insofar as he has at no time met the definition in the Statements of Principles. Therefore, the Applicant's case in respect of an hypothesis relating his PTSD with his war service must fail.

Depressive Disorder

147. It is now necessary to consider evidence in respect of alternative diagnoses that have been proposed. The real difficulty with the evidence of Dr Altman is his propensity to generalise rather than providing evidence specific to the case at issue. Doing the best we can with his evidence and the other psychiatric evidence before us, the Tribunal is reasonably satisfied that the Applicant has at an earlier point in time suffered from major depression, associated with his domestic and marital problems that commenced in 1974 and were exacerbated in 1983. Taking into account all the psychiatric evidence and the evidence of the Applicant, the Tribunal is reasonably satisfied that depressive disorder is now the correct diagnosis for the Applicant's claimed condition. The Tribunal is reasonably satisfied that he continues to suffer from a depressive disorder.

148. The parties did not make any submissions about an alternative diagnosis for the claimed condition, although the Tribunal made it apparent to the parties at the end of the first day of hearing that the differential diagnosis of the Applicant's psychiatric condition should be addressed in further evidence. Therefore, doing the best we can with the evidence now before us, the Tribunal will consider whether a reasonable hypothesis has been raised in respect of the relationship between the Applicant's depressive disorder and his operational service. There was no suggestion in the evidence that his later defence service was implicated causally.

149. The relevant Statement of Principles for Depressive Disorder that was in place at the time of the primary decision is Instrument No65 of 1996. The following factors are contained in that Statement of Principles:

(a) being a prisoner of war before the clinical onset of depressive disorder; or

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c) having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or

(d) having a major illness of 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; or

(g) having a psychiatric condition within the two years immediately before the clinical worsening of depressive disorder; or

(h) inability to obtain appropriate clinical management for depressive disorder.

150. Clearly, factors (a), (d), (f) and (h) do not apply in this case. In respect of (b), the Applicant would say that he experienced a severe psychosocial stressor on service in Vietnam. His evidence was that the first major significant event where he recalled being depressed was when he was deserted by his de facto wife and their children. From contemporaneous service documents it appears that was in 1974, and there is evidence in those documents of the clinical onset of a depressive disorder at that time. Therefore, as the hypothesis is that the experience of the stressor was on his Vietnam service in October/November 1970, this does not meet the two year interval between the stressor and the clinical onset of the depressive disorder. Hence, factor 5(b) is not raised on the evidence.

151. In respect of factor 5(c), although there is evidence to suggest the possibility of some anxiety symptoms arising from the Applicant's childhood or adolescence, the evidence is insufficient to conclude that this was a psychiatric condition, or that it occurred "within the two years immediately before the clinical onset of the depressive disorder". In any event, the link between any pre-existing condition and the subsequent depression in 1974 with the Veteran's operational service is missing in the raised facts. Hence, factor 5(c) is not raised on the evidence.

152. In respect of factor 5(e), as there was no clinical depression until 1974 then it is not possible to raise an hypothesis that the depressive disorder was worsened by the stressor on operational service, and therefore this factor is not raised on the evidence.

153. In respect of factor 5(g), as for factor 5(c), as there is insufficient evidence to conclude that the Applicant suffered a psychiatric condition prior to the depression he suffered in 1974, this factor is not raised on the evidence.

154. The Tribunal finds that on the evidence the hypothesis is no more than left open by the evidence. The evidence does not point to a link between the Applicant's depression and his operational service. As none of the factors in the Statement of Principles for Depressive Disorder are raised in the evidence, therefore the Tribunal must conclude that a reasonable hypothesis has not been raised pursuant to s120(3) of the Act. Indeed the evidence strongly supports a finding that the Applicant's depression arose from and was causally related to his domestic and marital problems that commenced in 1974 and were exacerbated in 1983. He was treated with anti-depressants, but at times he abandoned that medication and abused alcohol instead.

155. There is evidence that the Applicant was managing well until the time of his marriage breakdown, notwithstanding that in 1974 he provided a history of "fluctuating chronic anxiety since early adolescence". Assuming that there is some personality vulnerability, but not a personality disorder, there is no evidence that the Applicant was psychologically affected, other than perhaps in a transient way, by the few days of his service in Vuong Tau harbour or the related sea journeys that comprised his short operational service. The Applicant has had a series of distressing events in his adult life, following his operational service, including a motor vehicle accident where his wife and child were injured, being imprisoned in a maximum security prison for six months, being deserted by his wife, being denied access to his children, having a de facto relationship break down. The Tribunal finds that those events are of a much more serious nature than any transient anxiety generated during his operational service.

Alcohol Abuse

156. There is considerable evidence before the Tribunal about the Applicant's alcohol abuse. It was the Applicant's case that this condition arose out of his psychiatric condition and it was part of that condition. He did not make a separate claim in respect of alcohol abuse. Having determined that the Applicant's psychiatric condition is not war caused, there is no need to consider the issue of alcohol abuse any further, as there was no separate claim made in respect of that condition. 157. The Tribunal notes that in the decision under review the diagnosis of the claimed condition was PTSD. The Tribunal varies the decision under review so as to change the diagnosis of the claimed condition to depressive disorder, and that part of the decision under review, as varied, is affirmed.

I certify that the 156 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr P Lynch, Member

Signed: .....................................................................................

Associate

Date of Hearing 3 June 1999 and 3 April 2000

Date of Decision 28 November 2000

Counsel for the Applicant Mr M. Vincent

Solicitor for the Applicant R L Whyburn & Associates

Counsel for the Respondent N/A

Advocate for the Respondent Mr G. Wright, Dept. of Veterans' Affairs