Willis and Repatriation Commission [2002] AATA 118 (26 February 2002)

Last Updated: 1 March 2002

DECISIONS AND REASONS FOR DECISIONS [2002] AATA 118

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1090

GENERAL ADMINISTRATIVE DIVISION

Re: TREVOR JOHN WILLIS

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISIONS

Tribunal: M.J. Carstairs, Member

Date: 26 February 2002

Place: Melbourne

Decisions: The Tribunal sets aside the decisions under review and substitutes the decisions that the applicant's post traumatic stress disorder and alcohol abuse disorder are war-caused and that pension is payable at 90% of the General Rate from the first payday after 24 August 1998.

(sgd) M.J. Carstairs

Member

VETERANS' AFFAIRS - disability pension - post traumatic stress disorder (PTSD) - whether condition war-caused - whether material points to a hypothesis connecting the veteran's PTSD with the circumstances of eligible war service - alcohol abuse disorder - assessment of rate pension

Veterans' Entitlements Act 1986 social security.9, 120, 120A

Statements of Principles

Instrument Nº 15 of 1994 concerning Post Traumatic Stress Disorder

Instrument Nº 3 of 1999 (as amended by Nº 54 of 1999) concerning Post Traumatic

Stress Disorder

Instrument Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse

Benjamin v Repatriation Commission [2001] FCA 1879

Repatriation Commission v Budworth (2001) 33 AAR 476

Repatriation Commission v Gorton (2001) AAR 370

Repatriation Commission v Deledio (1998) 83 FCR 82

O'Neil v Repatriation Commission [2001] FCA 1492

REASONS FOR DECISIONS

26 February 2002 M.J. Carstairs, Member

1. This is an applicantion by Trevor Willis (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 12 July 2000, which affirmed a decision of the Repatriation Commission (the respondent), that the applicant's post traumatic stress disorder (PTSD) and alcohol abuse were not related to war service and that pension was to be paid at 50% of the General Rate of pension.

2. At the hearing Mr D. De Marchi, solicitor, represented the applicant and Mr G. Purcell, of counsel, represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits marked A1-A6 for the applicant and R1-R8 for the respondent.

3. Before the hearing the respondent conceded that alcohol abuse was war-caused on the basis of a report of Dr T. Gidley, consultant psychiatrist, dated 21 February 2001 (exhibit R7). That concession had been withdrawn before the commencement of the hearing, but was made again after Dr Gidley gave oral evidence. On the basis of the written and oral evidence the Tribunal finds that, in accordance with the Statement of Principles (SoP) concerning Alcohol Dependence or Alcohol Abuse (Instrument Nº 76 of 1998), the applicant's alcohol abuse is war-caused.

4. The only matter remaining before the Tribunal concerns the claim for PTSD.

BACKGROUND

5. The applicant was born on 3 July 1950 and is now aged 51. He was called up for National Service in 1970. He served in the Australian Army from 6 July 1970 to 7 January 1972 and is a veteran within the meaning of the Veterans' Entitlements Act 1988 (the Act). As he served in Vietnam from 5 February 1971 to 18 November 1971, he has operational service within the meaning of that Act. He was posted to A Battery, 12 Field Regiment, as a gun number. In Vietnam he was mostly located at fire support bases (FSBs) for several weeks at a time with returns to Nui Dat for leave days.

6. After discharge from the Army the applicant returned to his previous employment as a cleaner at Nabisco. This was followed by a series of other positions including a storeman between 1973 and 1981, a laboratory assistant at Tubemakers, and a period testing components for insulation materials in the automotive industry. Most recently, he has worked as a taxi driver. He now drives the taxi three or four days a week. For a period of some two years after he suffered a heart attack in 1998, he took time out of the workforce.

7. On 24 November 1998 the applicant lodged a claim for "nervous condition, heart disease, hearing loss and tinnitus and alcohol abuse". In the course of investigating the claim, the diagnosis of PTSD was given to "nervous condition". A delegate of the respondent on 4 October 1999 accepted the conditions of ischaemic heart disease and sensori-neural hearing loss (left ear) with tinnitus. As a result of accepting those claimed conditions, the rate of pension payable was assessed at 50% of the General Rate. The delegate however rejected the claims for PTSD and alcohol abuse.

8. On 11 October 2000 the applicant sought review by the VRB of the decision rejecting the claims and assessing the rate of pension at 50%. On 12 July 2000 the VRB affirmed the delegate's decisions on both issues. On 11 September 2000 the applicant sought review by the Tribunal.

EVIDENCE

9. The applicant told the Tribunal that as a gunner he was involved in field operations in Vietnam. His duties involved fire missions and patrols as well as picket duties. He was usually part of a battery of six guns, often engaged in defensive firing to cover Australian troops in field situations. He said he was often firing within 50 to 75 yards of their own troops and found that "was very pressured". He said that along with other troops he was airlifted in to the FSBs by helicopter. They had to dig themselves in and lay sandbags and set up their positions. They would arm claymore mines at night. Another part of his duties was firing howitzers in response to orders from forward observers calling grid references to direct the firing. He said he found it highly pressured, checking and rechecking the grid references for accuracy. The applicant's periods at FSBs were of some six weeks' duration and then he would get two days' leave in Vung Tau, where he would drink heavily. Only a couple of days were spent at some FSBs, though the applicant spent two months at FSB Ziggy. He said in evidence that he never had a proper night's sleep when he was out bush and was doing shifts where he would stand all night and then go on picket duty. He described nights as distressing; being able to see nothing for the darkness, but every small sound raised the thought that the enemy was near. "It's the uncertainty and we always knew that - there's an old saying in Vietnam that Charlie owned the night and we owned the day. ... [N]ight time was Viet Cong time for us".

10. The applicant gave evidence that there was one attack on FSB Centenary when he was there. He believed that there was both outgoing and incoming fire. When it was put to him in cross-examination that there was no historical record of incoming fire at FSB Centenary (exhibit R8) he said that on the occasion that he recalled, they had been given orders to move the gun forward, and fire. He said they obeyed these orders, though he acknowledged that he did not know whether there was incoming fire, as he was too busy firing. He acknowledged also that they were firing outside the perimeter. He said in answer to a question in cross-examination that at the VRB hearing he did not use the expression "full-scale attack". He could not explain how the VRB came to use that expression in its written decision. The applicant said he would not know what a full-scale attack was. He also gave evidence of a Bombardier Kennedy waking him up to say that he had shot "some bloke" though the applicant said it was probably a deer that he shot at. He said it was the following night that they were ordered to carry out the firing at FSB Centenary.

11. The applicant gave evidence of another occasion when a water truck was bogged down and the armoured personnel carrier (APC) sent in to tow it out hit a mine and blew up. He did not see this but learned of it later.

12. The applicant described an incident to which he had made reference to throughout his claim, including in discussions with medical practitioners. That incident was when he had been assigned, as a punishment for some infraction of his duty, to accompany a Lieutenant Mathers in the field. At the last minute another gunner (caught asleep on sentry duties) was sent in his place, again as a punishment. Lieutenant Mathers was killed in the field. The applicant said he found it "devastating" to lose the Lieutenant, but he also thought it could have been him accompanying the Lieutenant. When it was put to him in cross-examination that it was unlikely that a gunner would be sent to accompany a lieutenant as batman (research with his superiors not having confirmed that such punishments might have been given - exhibit R8), the applicant said "... they say it never happened, but it did."

13. In periods of rest leave at Nui Dat, he said, he would get "blind drunk" though he was not a drinker before serving in Vietnam. He said that he drank to forget and because he thought that whenever he was going out bush he had a chance of not returning. When he returned to Australia he said that he went back to his old job but lasted only a month, as he could not handle it, felt closed in and could not talk to people. He said he was "hitting the booze" regularly. His wife left him for a period in 1980 due to his drinking. He says he sleeps fitfully and takes sleeping tablets at night but still wakes regularly. He takes ducene and previously has been prescribed prozac and prothiaden.

14. The applicant said that not a day goes by that he does not think about Vietnam:

It's just something that stays with you. It's you know...hard to explain to people who haven't experienced it. It really is. I mean there were the people who can handle it, you know. Some people can go in there and - all gung ho ... but everybody has a different reaction to it. (trans p24)

15. Dr E. Cole, consultant psychiatrist, had prepared a report dated 13 March 2001 (exhibit A4) and gave oral evidence before the Tribunal. In his report Dr Cole stated that the applicant told him that he had served with the artillery in Vietnam and would be out in the bush for weeks at a time. Dr Cole said in his report that the applicant told him that he was only fired upon once and that he did not see any bodies or casualties. Dr Cole reported that the applicant had told him that apart from leave periods he was on duty at night for the whole tour, carrying out sentry duty for periods of two hours.

...

The scariest place was at Long Khan. The enemy was all around them. He had never been so scared in all his life. They were there for eight or nine days. Again they had to establish gun emplacements from scratch. Two of them at a time had to go out on listening patrols in the jungle for four hours. He hated the night time as the enemy always attacked at night. He was on edge and always expecting something to happen. He used to start hearing things. The enemy sneaked in during the night and placed a mine near the gateway. An APC hit it and was damaged, although the three men in the crew were uninjured. ...

16. In the report Dr Cole said that the applicant found it hard to settle down after his Vietnam service and was jumpy and short-tempered. The applicant told Dr Cole he felt depressed and had been prescribed prozac and prothiaden and other drugs by his medical practitioner. He found it hard to concentrate; had difficulty sleeping and had flashbacks about Vietnam.

...

He was able to watch documentaries on Vietnam, although some of them upset him., On his return he lost friends as he could not talk to people. He would get drunk and make a fool of himself. He found it hard to share in their activities and did not socialise. Although he knew that he was different he could not figure out why. He and his wife had not slept in the same room for the last six years, not so much because of his restlessness as because she could not handle his mood swings. She had left him four times. He had never been to an ANZAC Day March or a reunion and although he joined the RSL he lasted only a week before he got into a fight. He disliked being reminded of what had happened during the war. All the nervous symptoms he had described dated from the time of his discharge.

17. Dr Cole gave the opinion that the applicant was suffering from a chronic PTSD of moderate degree accompanied by alcohol abuse.

...

His post traumatic stress disorder is directly attributable to his service in Vietnam. Although he might not have seen a great deal of action, his life was in danger for much of the time that he was there and he reacted with feelings of intense fear and helplessness. He suffers from recurrent and intrusive distressing recollections of the events and nightmares. He tries to avoid thinking about his experiences, as well as avoiding activities, places or people that arouse recollections of those experiences. He has a sense of detachment form others to whom he finds it hard to relate and has few interest or hobbies. He suffers from insomnia, irritablity, difficulty in concentrating and is easily startled. His symptoms have been troublesome ever since his discharge from the Army and have impaired his social and occupational functioning, as well as causing him clinically significant distress.

18. Dr Cole rated the applicant's psychiatric disturbance at 33 points, applying Chapter 4 of the Guide to the Assessment of the Rate of Veterans' Pensions (GARP V).

19. In oral evidence Dr Cole said that he was satisfied that the applicant's experiences were stressful and that the applicant perceived them as such. In answer to suggestions in cross-examination that the circumstances relied upon by the applicant were not of sufficient magnitude to constitute severe stressors within the meaning of the applicable SoP, Dr Cole said that in his view the applicant experienced an extended period of time in which he felt threatened; he was in a hostile and threatening environment and as a gunner performing gun placements and defending positions, he was in danger of enemy attack. He said that the fact that men were killed had the effect of reinforcing the sense of threat felt by the applicant. This met the definition of "severe stressor" within the SoP, in Dr Cole's view. Dr Cole said that while the examples of stressors in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) were of intense short-lived stress, there were many cases where the person is subjected to less intense but more prolonged stress, where the person feels they have less control over events and have a real sense of fear and threat. Dr Cole considered it was sufficient that the applicant was faced with danger to his life or person.

20. Dr I. Parkin, consultant psychiatrist, had submitted a report to the respondent dated 18 January 1999 (T11) in which he diagnosed PTSD, saying it was clear the applicant had PTSD "since his Vietnam experience." Dr Parkin had attached the Veterans Psychiatric Impairment Assessment Form, which uses the diagnostic descriptors for PTSD from DSM IV. Using these he noted of the applicant that he had suffered a traumatic event through his Vietnam experiences identifying the applicant's fear of night and of attack. He noted that the applicant had recurrent thoughts that disturbed him and twelve nightmares a month about Vietnam, with reliving of events on a lesser frequency. He stated that the applicant had palpitations and was upset with the sound of helicopters. Whilst the applicant could push thoughts of Vietnam from his mind, he avoided Anzac Day and the RSL, and had a diminished interest in work, a sense of no future and felt that he had lost all his friends after Vietnam and did not fit in anywhere. Additionally he had disturbed sleep and was on medication for this, was short tempered and unable to cope in his job, was hypervigilant and easily startled.

21. In the report, Dr Parkin stated that the applicant had told him that he found his Vietnam experience frightening. "... He described how he would be waiting at night for the attack that never came and almost wishing that it would come so that at least there would be something definite." Dr Parkin noted the applicant's continued heavy drinking after his return from Vietnam and a pattern of interrupted employment. Dr Parkin's report in 1999 predated the applicant's resumed alcohol consumption after the VRB hearing in 2000. He summarised his opinion:

... this man suffered with Psychoactive Substance Abuse and dependence for the period 1973 to '89. During this period he should be assessed as having drunk approximately 18 cans per day of standard beer. He is no longer drinking and therefore is no longer suffering from this disorder. He does ... suffer from a very significant Post-traumatic Stress Disorder and is impaired to the level of 36 points.

22. The clinical notes of Dr A. Ramsay, the applicant's general practitioner, (exhibit R2) included a report dated 6 August 1998, shortly after the applicant suffered a heart attack in 1998. In that report Dr Ramsay stated that he had treated the applicant for many years "... for anxiety and depression which date from his Vietnam war experiences". He stated that over the years he had treated the applicant with a full range of anti-depressant medications and as psychotherapy under specialist supervision. Dr Ramsay recorded that he had seen the applicant repeatedly for depression, anxiety and migraine between 1993 and 1997. In a further report dated 19 December 2000 (exhibit R1) Dr Ramsay commented "prior to 1989 I noted worsening of anxiety + depressive symptoms with panic attacks". He noted that the applicant was very isolated from friends and family and spends time watching TV and avoiding social contact. Dr Ramsay attributed the applicant's condition to PTSD "aggravated by alcohol".

23. Dr Gidley prepared two reports, 21 February 2001 and 12 April 2001 (exhibits R3 and R4). Dr Gidley stated the applicant described frequent dreams of Vietnam and a preoccupation with thinking about Vietnam "most days". Dr Gidley stated that the applicant complained of being very short-tempered and angry, had no tolerance for others and had feelings of being tense "most of the time". The applicant told Dr Gidley that he had taken valium for fifteen years. He said to Dr Gidley, as he had to Dr Cole (exhibit A4) and Dr J. Hammond, physician, (exhibit R5) that he had his tonsils removed in 1976 as he was waking feeling he was choking, though he now considered that the problem was not his tonsils. Dr Hammond diagnosed these as likely to have been attacks of globus hystericus, a condition where the person experiences a sensation of a ball in the throat causing choking.

24. The applicant described his Vietnam experiences to Dr Gidley by saying that while he did not come under direct fire himself, on several occasions he was aware the enemy was nearby. The applicant said to Dr Gidley that "... He often felt afraid and [my] fears were heightened by night conditions when all noises sounded like the enemy approaching".

25. Dr Gidley gave the opinion that the applicant was suffering from alcohol abuse disorder with a maladaptive pattern of alcohol use since Vietnam. Dr Gidley described the applicant as "tense but not depressed". He considered that the applicant did not meet the criteria for PTSD. In ruling out PTSD Dr Gidley said he did not consider that the applicant had experienced a "severe stressor" as defined in the SoP, stating that:

... the veteran was not involved in an event where there was an actual threat of death or serious injury, he did not directly engage the enemy and he did not witness major casualties, atrocities or abusive violence. (emphasis added)

Dr Gidley stated that to be confronted with an event (in the phrase in the SoP "... experienced, witnessed or was confronted with an event) required a degree of proximity.

26. Dr Gidley added that although the applicant's recollections of Vietnam were recurrent he did not consider that they had the necessary intrusive quality and there were minimal avoidance behaviours demonstrated. He said that people could avoid Anzac Day and the RSL for a number of reasons that would not meet the criteria that were being looked at in PTSD diagnosis. He said that while the applicant had nightmares, they were not of specific events.

27. Dr Gidley's opinion was that the applicant had an alcohol abuse disorder probably "... linked to his Vietnam service through him suffering an Adjustment Disorder with Anxiety in Vietnam at the time of his onset of heavy drinking" (exhibit R3). Dr Gidley considered that the applicant had a maladaptive pattern of alcohol use and met the definition and factors in SoP Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. The links with service were the applicant's difficulty in adjusting to the military environment in general; hearing about the combat deaths of other soldiers; and stress arising from the constant sense of being at risk from enemy attack. Dr Gidley said the applicant's adjustment problems extended to his early post-war service (exhibit R4).

28. Dr Gidley had read the report of Dr Parkin (T11) but not that of Dr Cole (exhibit A4). When cross-examined about the differences of opinion, Dr Gidley acknowledged that the concept of a stressor in the diagnosis of PTSD was a grey area. He said that PTSD was a concept developed around a reaction to an actual event rather than the possibility of an event occurring. It entailed, he said, a "direct encounter with an event where there is a risk of life and integrity of self or other people around you". He acknowledged that it was difficult to define in absolute terms the kind of stressors that can produce PTSD and he said that the approach increasingly is to look at an individual's vulnerability and susceptibility, because the same stressor will not have an identical effect on different people.

29. Dr Gidley addressed a question from the Tribunal:

... Mr Willis presents with some ongoing problems. ... [H]is difficulties at work and difficulties in his family life, could that be evidence of a chronic adjustment disorder still continuing for him?---No. I think for a chronic adjustment disorder to continue, what has to continue is the situation that is causing the adjustment problem. Like, if a person has cancer they can develop an adjustment disorder to the cancer, and if the illness sort of continues on for four or five years then the adjustment disorder becomes chronic. But if the circumstances that caused the adjustment disorder cease to exist, then the symptoms themselves don't continue. By definition that is what an adjustment disorder is. So the symptoms that Mr Willis is currently experiencing aren't due to an adjustment disorder related to his war service, they could be due to what I am calling the consequences of his long history of alcohol abuse and the impact that has had on family adjustment and his employment record, and also the impact that has on his own sort of nervous system. I think heavy drinking over a long period of time can make people emotionally more fragile and irritable and, you know, that often doesn't settle down. The other factor in Mr Willis' case that may be contributing to chronicity is just his personality. There are, you know, people by nature who are more anxious than others and who are more irritable and who get more easily upset. ...

And it may have been the case that proneness may have made it a problem for him being in Vietnam?---Yes, that may be why he had sort of more difficulty adjusting there than some other people. I think in my report I refer to him having - I think I used the adjective, untrusting personality, that he is someone who has a long history of not getting on with other people and sometimes not being sure of the motives behind their behaviour towards them. ...

30. Dr Gidley agreed in cross-examination that if PTSD were accepted as a war-caused condition, the rating of 33 points assigned by Dr Cole was correct. The rating of 17 points that he gave was based upon the consequences of alcohol abuse disorder, while an acceptance of PTSD would require a higher rating consistent with that of Dr Cole.

31. Dr Hammond gave oral evidence relating to assessment. His written report (7 June 2001) was exhibit R5. Dr Hammond considered that the applicant's acute myocardial infarction in June 1998 had been successfully treated with the implantation of a stent, however chest pain continued to be suffered. He considered the applicant asymptomatic at moderate levels of activity (4-5 METS) though he would become symptomatic when performing activities involving 5 to 6 METS. However, in cross-examination, Dr Hammond acknowledged that, if the applicant's evidence of his current inability to perform certain specified activities were accepted, the applicant's "tolerance" would currently be 3-4 METS.

CONSIDERATION OF THE ISSUES

32. Section 9 of the Act prescribes the circumstances in which a veteran's disease or injury shall be taken to be war-caused including where the disease or injury arose out of or was attributable to the veteran's war service (s9(1)(b)).

33. The Tribunal noted that there was no dispute between the parties that the applicant had rendered operational service, and that subsections 120(1) and s120(3) of the Act apply. The Tribunal must determine that the disease or condition was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 120(3) is affected by s120A which applies to a claim for a pension made on or after 1 June 1994 where operational service has been rendered by a veteran. The operation of s120A depends upon whether there is in force an SoP determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Subsection 120A(3) provides that for the purposes of subsection 120(3) a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.

34. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

35. Mr Purcell submitted that the claim for PTSD was not before the Tribunal as the applicant, by Statements of Facts and Contentions (exhibits A5 and A6), had withdrawn that as the claimed condition. The Tribunal rejects that submission. Exhibits A5 and A6 sought an amendment of diagnosis rather than withdrawing the claim. It is clear from Benjamin v Repatriation Commission [2001] FCA 1879 that the Tribunal is not to limit its consideration "to the 'case' articulated by an applicant".

36. Mr Purcell submitted that the standard of proof on questions of diagnosis was that provided for by s120(4) of the Act which requires that the Tribunal be reasonably satisfied of matters to be determined under that subsection. On that standard, he said, the diagnosis of PTSD was not established. He submitted that a diagnosis of adjustment disorder could not be supported, as on the evidence of Dr Gidley, it was of a temporary nature. In his submission the alcohol abuse disorder stood on its own as a separate disability.

37. Mr De Marchi submitted that on the material before the Tribunal, the applicant was entitled to have the conditions of PTSD, psychoactive substance abuse, (this submission antedating the respondent's concession) and adjustment disorder accepted as being service related.

38. Since the hearing, Federal Court decisions in Benjamin and Repatriation Commission v Budworth (2001) 33 AAR 476 have confirmed that the question of whether a veteran is suffering from a particular injury or disease is to be decided to the reasonable satisfaction of the decision-maker in accordance with s120(4) of the Act. Taking into account the medical and other evidence in this case, the Tribunal is reasonably satisfied that the alcohol abuse disorder (now accepted by the respondent) encompasses the adjustment disorder which, on Dr Gidley's evidence, was in existence on service and shortly thereafter. The Tribunal is reasonably satisfied that the adjustment disorder resolved shortly after service.

39. The Tribunal accepts the diagnoses of PTSD by Dr Cole and Dr Parkin. Dr Ramsay's clinical notes (exhibit R1) offer support by showing the persistent presence of psychiatric disturbance, which Dr Ramsay refers to as depression and anxiety. The clinical notes show early references in 1993 and 1994 to the applicant discussing Vietnam with his doctor. The applicant was raising these matters clinically throughout the period in the 1990s when his alcohol abuse disorder was in remission.

40. The diagnoses of Drs Cole and Parkin more comprehensively account for the very real symptoms, evident and ongoing, experienced by the applicant through the 1980s and 1990s whereas alcohol abuse with a resolved adjustment disorder (which ceased, on Dr Gidley's evidence, shortly after service) does not. Whilst Dr Gidley rules out PTSD on the basis that the recurrent thoughts of Vietnam are not sufficiently intrusive, the Tribunal is satisfied on the basis of the applicant's evidence and on the evidence of Dr Cole and Dr Parkin, that he is troubled by recurrent thoughts, and that the reliving of events and experiences is intrusive. The Tribunal does not accept Dr Gidley's view that there is no avoidance shown by the applicant, and indeed Dr Gidley did not suggest what other reasons might make the applicant avoid Anzac Day and the RSL than those that the applicant gave. Furthermore Dr Gidley's written report (see para 25 these reasons) appears to overstate the requirements of a stressor for PTSD, as he states that "actual threat of death" is required. The Tribunal accepts his oral evidence that the concept of stressor is a grey area.

41. In this case the Tribunal has considered each of the steps in Deledio. In terms of the first step, the applicant suffers from PTSD and the material points to hypotheses connecting the disease with the circumstances of the particular service rendered by the applicant. There are two SoPs in force that are available in this case in regard to PTSD. There was no dispute between the parties that SoP Nº 3 of 1999 (as amended by Nº 54 of 1999) for PTSD is in force at the time of the decision (Repatriation Commission v Gorton (2001) AAR 370). SoP Nº 3 of 1999 came into operation on 27 January 1999, the date of revocation of the previous Instrument (Nº 15 of 1994). As the applicant's claim was lodged on 24 November 1998 his case may be considered under the earlier Instrument as well.

41. The third step, according to Deledio, is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP, it will be reasonable. The hypotheses raised must contain at least one of the factors in the SoP that the Sop requires, and that factor must be related to the applicant's service. The relevant factor arising in the SoP is "experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder".

42. Mr Purcell submitted that two stressors were raised on the evidence: one in relation to the death of Lieutenant Mathers when the applicant might have been assigned to go with him into the field, and the second in relation to the applicant's general apprehension of possible injury in a war zone when he was at FSBs, particularly his fear at night.

43. Mr Purcell submitted to the Tribunal that the stressors relied upon were not events such as could be said to be ones in which 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 other". He submitted that a generally hostile and threatening environment was not sufficient to meet the definition of severe stressor and therefore the hypothesis did not fit the template. Mr Purcell also cast doubt on the applicant's credit.

44. Mr De Marchi submitted that the Federal Court decision in O'Neil v Repatriation Commission [2001] FCA 1492 should be applied in interpreting the question of "experiencing a severe stressor". While O'Neil's case considered a different provision (namely "stressful event") in another SoP, Mr De Marchi submitted that O'Neil's case stands for the proposition that the test is a subjective one. However, the definition in the SoP for PTSD is sufficiently different from that under consideration by the Court in O'Neil that the decision is not of assistance. In the SoP in issue in O'Neil the definition required that the person had "experienced a stressful event" defined as "an occurrence which evokes feelings of anxiety or stress". In the SoPs for PTSD (both Nº 3 of 1999 and Nº 15 of 1994) the definition of "severe stressor" sets out a more detailed description of the content of the event or occurrence than does the definition examined in O'Neil. The SoP in O'Neil defined the occurrence by the person's reaction rather than external descriptors of the event.

45. For the definition of severe stressor in the SoP for PTSD the person must have experienced "... an event or events that involved actual, or threat of, death or serious injury". The events that the applicant describes meet that description. He was engaged in hazardous service. He was fearful of the enemy surrounding him at night and when out on missions. He knew from incidents such as the death of Lieutenant Mathers and the incident with the APC hitting the mine that the danger was real; this added to his fear. He was in situations at the FSBs where the threat of death or serious injury or threat to the integrity of persons was clearly present. The definition of "experiencing a severe stressor" in the SoP requires no more than this and the Tribunal so finds.

46. Therefore applying the third step in Deledio, the hypothesis that is raised is reasonable and is consistent with the template in the SoP. The Tribunal finds that the applicant's experiences, particularly those at night at the FSB's, fit within the definition of severe stressor in the SoP. The Tribunal does not regard the incident where Lieutenant Mathers was killed as fitting within the definition of severe stresssor as the applicant was not sufficiently proximate to that event.

47. In regard to the fourth step in Deledio, pursuant to subsection 120(1) of the Act, having reviewed all of the evidence and material before it, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's PTSD was war-caused with effect from 24 August 1998. The Tribunal considered that the applicant was truthful and consistent in his evidence given to doctors throughout the time that the matter has been under review. He has done no more than to describe his own terror regarding the situation in which he found himself.

48. For these reasons, the Tribunal concludes that PTSD and psychoactive substance abuse are war-caused within the meaning of the Act with effect from 24 August 1998.

49. On the assessment issues, Mr De Marchi submitted that the disability of tinnitus was rated at 10 points by Dr F. Morgan, senior medical officer (appeals), and Dr Ramsay (exhibit R6) and 15 points by Mr G. Themistoklis, audiologist, but he submitted that the preferred assessment was that of 10 points. He further submitted that one rating only should be given for the combined effects of PTSD, adjustment disorder, and psychoactive substance abuse. Mr De Marchi contended that the rating given by Dr Cole was to be preferred, and was conceded as correct by Dr Gidley. He further contended that there should be two periods for rating in the assessment period. Until July 2001, he submitted that the applicant should receive an overall impairment rating of 90% of the General Rate. Mr De Marchi submitted this based upon 10 points for tinnitus, 33 points for PTSD and 28 points for ischaemic heart disease (taking the applicant as symptomatic at 5-6 METS in accordance with the report of Dr Hammond (exhibit R5). Mr De Marchi further submitted that thereafter the rating should be at 100% of the General Rate as the applicant had a reduced ability to carry out physical activities from that time. The applicant should be taken from July 2001 as symptomatic at the level of 3-4 METS on the evidence of Dr Myers (exhibit A1).

50. In regard to matters of assessment the Tribunal applies GARP V and finds as follows:

(a) Hearing loss and tinnitus: 10 points - accepting Dr Ramsay (exhibit R1) and Dr Morgan (exhibit R6).

(b) PTSD: 33 points - Dr Cole (exhibit A4) and Dr Gidley (para 30 above).

(c) Ischaemic heart disease: 28 points - Dr Hammond (exhibit R5).

51. In making the finding in regard to the rating for ischaemic heart disease the Tribunal prefers the evidence of Dr Hammond and takes into account that the applicant has increased his work as a taxi driver to three or four days per week after being out of the workforce for two years after suffering a myocardial infarct. Whilst the Tribunal accepts the applicant's evidence of decreased activity, this may be due to his depressed mood and alcohol intake. On the evidence of his ability to increase his hours as a taxi driver, the Tribunal does not accept that the decreased activity he described is due to an increase in cardio-respiratory impairment beyond that rated by Dr Hammond. The combined impairment results in 90% of the General Rate, with effect from 24 August 1998.

52. The incapacity arising from psychoactive substance abuse is sufficiently accounted for in the symptoms and rating of the applicant's PTSD.

53. For these reasons, the Tribunal sets aside the decision of the VRB assessing the rate of disability pension at 50% of the General Rate and substitutes the decision that the rate of pension payable is 90% from the first payday after 24 August 1998.

DECISIONS

54. The Tribunal sets aside the decisions under review and substitutes the decisions that the applicant's post traumatic stress disorder and alcohol abuse disorder are war-caused and that pension is payable at 90% of the General Rate from the first payday after 24 August 1998.

I certify that the fifty-four [54] preceding paragraphs are a true copy of the reasons for the decision herein of

M.J.Carstairs, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 20 September 2001

Date of decision: 26 February 2002

Solicitor for applicant Mr D. De Marchi, Messrs De Marchi & Associates

Counsel for respondent: Mr G. Purcell

Solicitor for the respondent: Advocacy Section, Department of Veterans' Affairs