Woodward and Repatriation Commission [2002] AATA 639 (25 July 2002)

Last Updated: 7 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/935

VETERANS' APPEALS DIVISION ) V01/936

Re ROBERT CHARLES WOODWARD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley (Senior Member)

Date 25 July 2002

Place Melbourne

Decision 1. The decision of the VRB, in so far as it concerned diagnosis, is varied and in substitution IT IS DECIDED the applicant does suffer post traumatic stress disorder and alcohol dependence or alcohol abuse. 2. The applicant did not 'experience a severe stressor' within the meaning of the Statement of Principles applicable to post traumatic stress disorder and alcohol dependence or alcohol abuse. 3. The hypotheses raised with respect to both of the above conditions are not reasonable, because factors within the Statements of Principles do not, as a minimum, exist. 4. The application, in so far as it concerns assessment of rate of pension, is adjourned to a date to be fixed in September 2002 when the hearing will resume.

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

Senior Member

CATCHWORDS

Veterans' Entitlements - Vietnam service; whether applicant suffers PTSD and or alcohol dependence abuse; whether diagnosis to be made by reference to a Statement of Principles; whether applicant 'experienced a severe stressor'; whether entitlement can be found under s.9(1)(a) only.

Veterans' Entitlement Act 1986 (Cth) ss 8, 9(1)(a), 13, 24, 120A, 196B

Statement of Principles Instrument No 58 of 1998

Statement of Principles Instrument No 76 of 1998

Statement of Principles Instruments No 3 of 1999

Statement of Principles Instruments No 54 of 1999

Repatriation Commission v Deledio (1998) 49 ALD 193

Benjamin v Repatriation Commission [2001] FCA 1879

Repatriation Commission v Cooke (1999) 28 AAR 400

Repatriation Commission v Gorton [2001] FCA 1194

Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 106

Re Freeman and Repatriation Commission [2000] AATA 727

Re Hill and Repatriation Commission [2000] AATA 1011

Re Jehn and Repatriation Commission [2000] AATA 484

Re Powell and Repatriation Commission [2000] AATA 385

Re Mulvaney and Repatriation Commission [2000] AATA 535

Re Cranage and Repatriation Commission [2000] AATA 1119

Re Binding and Repatriation Commission [1998] AATA 340

Repatriation Commission v Binding [1999] FCA 974

Repatriation Commission v Carroll (1988) 14 ALD 581

Re Jenkin and Repatriation Commission (1997) 47 ALD 721

Repatriation Commission v Keeley [2000] FCA 532

McKenna v Repatriation Commission [1999] FCA 323

Re Hampton and Repatriation Commission [2000] AATA 1117

Repatriation Commission v Law (1980) 31 ALR 140; (1981) 147 CLR 635

REASONS FOR DECISION

25 July 2002 Mr J Handley (Senior Member)

1. The applicant applies to review a decision made by the Veterans' Review Board ("VRB") on 11 July 2001, following a review of decisions made by the Repatriation Commission ("the Commission").

2. On 5 September 1999, the Commission assessed pension at 90% of the General Rate. The Commission also decided, on 29 October 1999, that a claim for post-traumatic stress disorder ("PTSD") be refused "because the diagnosis of (that) condition could not be confirmed". The Commission also refused a claim for alcohol dependence or alcohol abuse.

3. The VRB decided that a diagnosis of PTSD was confirmed, but amended it to include 'depressive disorder'. Nonetheless, it affirmed the decision that that condition was not war-caused. Additionally, it also decided the conditions of PTSD with depressive disorder and alcohol dependence or alcohol abuse were not war-caused. With respect to the earlier decision concerning the rate of pension, the VRB set aside the decision made by the Commission and increased pension to 100% of the General Rate with effect from 8 February 2000.

4. The General Rate of pension paid to the applicant is with respect to the accepted conditions of bilateral sensori neural hearing loss, solar skin damage, non insulin dependent diabetes, low back strain and right phrenic nerve palsy.

5. A short time prior to the commencement of this hearing, the respondent reviewed the medical evidence and in so far as the condition of right phrenic nerve palsy is concerned, it assessed an impairment of nil. This was because a recent spirometry examination alleged that the applicant did not suffer any impairment. When a combined impairment assessment was completed (18 April 2002), the resultant calculation of impairment produced an entitlement to General Rate pension at 60%.

6. Both parties agreed that in the event that PTSD was found to be war-caused, the applicant would achieve a minimum impairment rating of 70%. This was significant in the present application because the applicant ultimately sought pension at the special rate.

7. Alternatively, if PTSD was found not to be war-caused, it was agreed that the hearing should resume on a later date. This would allow the applicant to obtain his own medical evidence with respect to the condition of right phrenic nerve palsy, thereby putting in issue the assessment of impairment as the respondent calculated on 18 April 2002.

8. The hearing of the application therefore proceeded only with respect to the condition of PTSD and alcohol dependence or alcohol abuse.

9. At the hearing, Ms Bornstein appeared on behalf of the applicant as Counsel and Mr Purcell, a Departmental Advocate appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons. Mr Woodward gave evidence. Dr Cole, a consultant psychiatrist, also gave evidence.

10. Ms Borstein indicated that the applicant would pursue a finding of PTSD being war-caused by reference to either Instrument No. 3 of 1999 or Instrument No. 54 of 1999, both entitled "Post-Traumatic Stress Disorder".

11. Alternatively, it was submitted the applicant was entitled to a finding of diagnosis of either:

i) Generalised Anxiety Disorder by Instrument 1 of 2000 or 275 of 1995 or 48 of 1994

ii) Depressive Disorder by Instrument 58 of 1998

iii) Psycho active substance dependence or abuse under Instrument 76 of 1998.

12. Additionally, the applicant submitted that in the event that he was unable to satisfy any of the Statements of Principles, he was entitled to have a finding of injury by service pursuant to s9(1)(a) of the Veterans' Entitlements Act 1986 ("the Act"). That is to say, the applicant was entitled to a finding of war-caused injury, pursuant to that section, without reference to a Statement of Principles.

Robert Charles Woodward

13. Mr Woodward who is presently 54 years of age, was born on 20 January 1948. He was a member of the Australian Army and was engaged in operational service in Vietnam between 11 June 1969 and 14 May 1970. (Prior to the hearing the applicant provided a comprehensive proof of evidence which was received into evidence as Exhibit A. The applicant was taken through his proof of evidence in examination in chief and it will be referred to in this summary of his evidence).

14. Prior to enlistment, the applicant was a member of the St Kilda Football Club and played in the reserves and the under 19 teams. He also played cricket for a local club. He said he was a "moderate, social drinker" prior to his service in Vietnam.

15. Whilst the applicant's duties in Vietnam were principally as a clerk, he said that he was engaged in and exposed to a number of stressful events.

16. Mr Woodward recalled that shortly after he arrived at Nui Dat, a number of heavy artillery guns located adjacent to the airstrip were fired, which heightened a sense of insecurity. Shortly after arriving at base he was required to install claymore mines. He described these mines as being attached to a spike a short distance away from the front of his tent and which, if activated, would explode in an arc of 180 degrees away from the tent. This was apparently a measure of protection and deterrent against intruders.

17. Approximately one week after arrival, he was engaged in a patrol because of the belief in the presence of Viet Cong ("VC"). The applicant recalled that there had been rain shortly prior to the commencement of the patrol and water dripping from trees sounded to him as if there were persons speaking or walking. He said he was frightened. The applicant did not return to base at the conclusion of that patrol, but stayed out overnight with others. During that night a branch fell from a tree which made a sharp, loud, piercing noise. He and others were suddenly woken and he recalled that a machine gunner swung the gun around over his head because of the apparent fear of being attacked. Mr Woodward said that he then felt terrified and recalled having a "knot" in his stomach.

18. On another occasion, Mr Woodward was engaged in a patrol because of a report of an "alert" at the end of an airstrip. It was believed that there had been an infiltration of VC. Mr Woodward was armed with a rifle and ammunition with the intention of walking through nearby jungle with other members of his unit to flush out infiltrators. He said that the jungle was heavy and dense and he became separated. He eventually rejoined the rest of his patrol, but said that he had felt helpless, isolated and afraid. There were no persons found infiltrating during that patrol and he and others were not fired upon. Indeed, the applicant said that he was fearful of being fired upon by other members of his patrol because all persons had live ammunition. Also, shortly prior to the commencement of the patrol he and a number of others had been consuming alcohol in large quantities over an extended period.

19. The applicant also recalled another episode when he was engaged in a patrol with a Corporal, but they had become lost because of inadequate maps. Eventually he and the Corporal found their way back to base camp. That evening, the applicant was then engaged in guard duty, being positioned in tall grass. He said that the evening was so dark that he could not see his hand in front of his face.

20. The applicant recalled other occasions where he was enlisted to be a passenger in a helicopter, where he was required to release flares when suspected VC tunnels or bunkers were observed. Apparently the flares would indicate the presence of the tunnels and bunkers and bomber aircraft would follow and destroy those locations. The applicant said that he was seated next to the pilot, that he was strapped to his seat, but there were no sides to the helicopter. He said that he released the flares on the instruction of the pilot who was observing. The applicant said the helicopter flew a short distance from the ground at approximately the height of the treetops. He said he felt terrified and helpless and he described an occasion where a collision was narrowly avoided with a tree. Mr Woodward said that he did not know whether he was ever fired upon by VC. Second Lieutenant Jellie and Captain Donald were the pilots respectively on the two occasions that the applicant flew in the helicopter.

21. Whilst the applicant's principle duties were clerical and administration, there was an occasion when he was on duty but had been called out of bed to process forms and other documents having learnt that Second Lieutenant Jellie and Captain Donald had been shot down and killed. Mr Woodward said that he was also directed to clean out Captain Donald's tent and pack his possessions. Mr Woodward said that he recalled observing a photograph of a woman and young girl who he believed to be the wife and daughter of Captain Donald.

22. The applicant commenced to engage in heavy consumption of alcohol and cigarettes in Vietnam. He recalled that beer could be purchased at 15c per can and cigarettes at 10c per packet. Shortly after arrival in Vietnam, the applicant estimated that he was drinking between 10 and 12 cans of beer per night. On occasions, American soldiers would issue coupons to him, which could be redeemed in Vung Tau for bottles of bourbon. The applicant continued to consume alcohol in similar quantities throughout his service. After discharge, he joined a local RSL Branch where he was drinking heavily and estimated consumption at about ten cans per night, together with wine and spirits. The applicant continues to drink at that level, although he has attempted to abstain. Mr Woodward said that he was 21 years of age at enlistment and married approximately one month after returning to Australia. His marriage collapsed after five years, however he has subsequently remarried and has children.

23. Initially the applicant commenced employment in a furniture business owned by his father and another person in Cheltenham performing clerical and payroll duties. Later he became factory manager. The factory closed in 1996, but at that stage he said he was not coping, he was nervous and drinking heavily. In contemplation of other employment, the applicant said that he wanted to be engaged in something that was "mindless". Mr Woodward obtained employment as a truck driver in 1997, delivering reconditioned engines throughout Melbourne. He coped with this initially, but, by December 1999 he was suffering what he described as "phobic" attacks, where he would break down and cry whilst driving. He said that he could not then cope with traffic or with other persons. He was also engaged in part-time work as a bottle shop attendant at the Pier Hotel in Frankston in order to supplement his income. He recalled that there was an event where a person who was either drunk or drug affected approached him whilst he was in the freezer replenishing stock. He realised then that he felt vulnerable and was unable to call on assistance if needed. The applicant then ceased that employment which was about the same time that he ceased employment as a truck driver.

24. Ms Loffler, a psychologist in Rosebud on referral from the Vietnam Veterans' Association, initially treated Mr Woodward. He saw her on five occasions only, but could not afford to continue treatment. Principally, Dr Ward, of Hampton, has treated the applicant.

25. The applicant's work skills comprise of clerical and management responsibility and truck driving. He presently lives in Peacedale, which he said was approximately 12 kilometres from Frankston and 12 kilometres from Hastings. He said there is no industry or local employment in his district. He is unable to drive a car and said that he would be unable to use public transport because he cannot cope with crowds or other persons. Mr Woodward said he continues to suffer flashbacks. After he returned from Vietnam he was also suffering intrusive dreams.

26. In cross-examination, Mr Woodward said that he was 17 years of age when he left school, having completed year 11. He was initially employed by Myer Stores and then obtained employment with an accountant in Frankston. He then worked at his father's factory immediately prior to enlistment in the Army at the age of 20. The applicant was then living at his parents' home in Cheltenham and he drove to work daily. He played football and cricket. Initially the applicant did not consume alcohol as he was under the age of 18. When he achieved that age, however, he said that he would drink 4 or 5 glasses of beer on weekends only to be "sociable". He said he could not recall ever drinking to excess and could not recall ever drinking more than 4 or 5 glasses in a weekend. He denied that he had ever been under the influence of alcohol and did not drink alcohol at home other than on birthdays or at Christmas.

27. With respect to the applicant's service in Vietnam, Mr Woodward was aware that the respondent obtained a report from a historian. The historian disputed that he was ordered to travel in a helicopter and that there had been a patrol where an officer had not led him. Mr Woodward was adamant that he did not volunteer to travel in a helicopter to release flares and was equally adamant that there was one patrol where he was not led by an officer.

28. Indeed, Mr Woodward said that he recalled advice given to him by his father prior to enlistment, that he should not "volunteer for anything". Mr Woodward said that he communicated with the pilot during the helicopter flights by a throat microphone and the activation and release of the smoke flares was not a complicated exercise. Nonetheless, he said that he was frightened. He said that he typed up reports, as part of his clerical responsibilities of helicopters being fired upon yet the episode of the two pilots being shot down and killed was the only event that he could recall where there had been a fatality.

29. With respect to the consumption of alcohol, Mr Woodward agreed that there was a standing order of 2 cans per day being issued, but this was a "joke". He said he never had any trouble obtaining between 8 and 10 cans of beer per day. On one occasion when alcohol was banned, he was able to obtain cans of beer from American personnel. He acknowledged he did not drink when he knew he was rostered for a patrol.

30. With respect to the episode where Captain Donald was killed, Mr Woodward said that he typed a report that had been handwritten by an officer in charge. He said he did not attend the crash scene and whilst he knew Captain Donald, he did not regard the relationship as a friendship.

31. With respect to the three patrols in which he was engaged, Mr Woodward said he was "exceptionally frightened". He said the first patrol occurred approximately one week after arriving in Vietnam and the second patrol was "much later". On that occasion he said that he was not rostered and had been drinking heavily. In fact, he said that he was "well and truly intoxicated". Mr Woodward said that the practice of drinking regularly occurred because alcohol was readily available, it helped ease the fear he suffered in Vietnam and it helped him to sleep. Nonetheless, he agreed that he did sleep in a tent on an army base within a perimeter fence, however, he could not recall whether the perimeter fence was patrolled.

32. With respect to the report of the historian who stated that Nui Dat was never attacked, Mr Woodward said that he was unable to agree or disagree. He said he did not know. He did recall, however, that there were occasions where he and others were ordered into bunkers. Also, there was an occasion where there was a "rocket attack", but he did not know whether that was "real" or whether it was "an exercise".

33. With respect to employment, the applicant said that he worked at his father's factory since returning from Vietnam until December 1996, when the factory closed. At that stage, there had been many complaints from neighbouring residents concerning noise. The applicant's father and his partner had discussed relocating the business, but the cost apparently was prohibitive. Ultimately, it was decided to close the business.

34. The applicant was the factory manager from 1980, and he and a secretary "ran the business", which was furniture manufacturing. At its peak in the early 1980's there were 20 employees. Mr Woodward said that he was working 40 hours per week and often longer. He said it was a position of responsibility and was not a "mindless" job.

35. He said that he was engaged in truck driving because it was "mindless". He said he did not apply for any jobs as a manager or in the furniture industry because at that stage he was unable to cope with clients or employees. Nonetheless, he acknowledged that he had experience with tendering or pricing and those skills would have been "transportable" elsewhere.

36. Whilst the applicant had earlier described his feelings and symptoms whilst truck driving, he said he was also discriminated against within the employment by the son of another driver which eventually produced conflict. Mr Woodward said that he was working about 40 hours per week, but was driving approximately 1,000 kilometres per week. He regarded the work as being very stressful. He ceased work as a truck driver and at the Pier Hotel at about the same in December 1999. Eventually, Mr Woodward qualified for disability support pension on the advice of Dr Ward, his general practitioner.

37. In re-examination, Mr Woodward said that he felt as if he could be killed or wounded whilst he was on patrols and felt as if he could be shot at or killed whilst he was a passenger in the helicopters. On all of these occasions, the applicant said that he had little protection.

38. With respect to his employment, Mr Woodward said that he was responsible for making sure that work flowed through the factory in order to meet customer orders. He said that he was not coping with people, including employees and customers. He said that he felt as if he was working in a sheltered workshop because of the position given to him by his father. He said his behaviour would not permit him to remain employed elsewhere and other employers would not tolerate it.

Edward Cole

39. Dr Cole is a consultant psychiatrist who examined the applicant on 13 September 2001, at the request of his solicitors. He provided a report dated 2 October 2001.

40. Dr Cole concluded that the applicant was suffering from a chronic post-traumatic stress disorder of a mild to moderate degree. He attributed the condition to his service in Vietnam and said that the applicant's symptoms "would meet the requirements of the Statement of Principles for the diagnosis". He also said "that there was a good deal of evidence to suggest that he suffers from alcohol dependence or abuse as a result of his war service". Dr Cole noted that the VRB found that the applicant did suffer from PTSD and alcohol dependence or abuse, but decided that the definition of "experiencing a severe stressor" was not satisfied. He concluded, "I fail to see that the very real fears that he described had no basis in fact".

41. Dr Cole said that the applicant did suffer a "depressive disorder" as defined at paragraph 2(b) of Instrument No 58 of 1998. He said that the applicant also suffered a generalised anxiety disorder, as defined in paragraph 8 of Instrument No 1 of 2000. Dr Cole said that both conditions were also consistent with the diagnosis per DSM-IV.

42. Dr Cole was taken to the report completed by Dr Strauss, a consultant psychiatrist, engaged by the respondent. At page 6 of the report, Dr Strauss found that the applicant did suffer from PTSD with depressive disorder and substance abuse involving alcohol. However, Dr Strauss concluded that "it cannot be said that this man experienced a severe stressor".

43. Dr Strauss reported, "I have no doubt that his time in Vietnam was distressing and upsetting for this man and he was fearful throughout his time there. It is noted of course that many people who went to Vietnam did not develop post-traumatic stress disorders, even though they may have been apprehensive and distressed whilst there. It seems that Mr Woodward is a sensitive individual who could not cope with the pressures of being in Vietnam, even though in my opinion he did not suffer from a severe stressor".

44. Dr Cole referred to a history that he obtained from Mr Woodward whilst serving in Vietnam. He noted that the applicant was engaged in patrols outside perimeter fences at night whilst armed. He noted that the applicant was engaged in laying claymore mines, had been alerted on a number of occasions and transported in personnel carriers to areas where there was a belief of the presence of VC. He noted the applicant became lost during a patrol and was frightened and experienced a sense of helplessness. He had a history of the applicant releasing smoke flares from a helicopter, with an expectation of being fired upon. It was noted that on another occasion an aircraft was "lost" and two pilots were killed. He disagreed with the opinions of Dr Strauss, because in his experience people react differently to stressful and pleasurable situations.

45. With respect to the applicant's work capacity, Dr Cole said that whilst he noted that the applicant had been employed for many years after service and had been a well motivated person, he had ceased all employment as the result of an episode at a bottle shop in Frankston. He thought the applicant was no longer capable of working because of his psychiatric condition. In fact, he noted that a feature of PTSD is that a person can become incapacitated. He was also of the opinion that a person suffering from a depressive disorder or a generalised anxiety disorder could be incapacitated.

46. In cross-examination, Dr Cole said that he found that the applicant did suffer from chronic post-traumatic stress disorder of a mild to moderate degree which he associated with service. He said that he did not, however, consider the Statement of Principles with respect to alcohol dependence or abuse, because he believed that the VRB found that that condition was associated with service. He acknowledged that he did not record in his report that the applicant suffers from a generalised anxiety disorder, but said that the symptoms of the applicant were consistent with that diagnosis. However, he preferred PTSD as being the "better description of his symptoms".

47. In the alternative, Dr Cole said that if the applicant did not satisfy the PTSD Statement of Principles, his symptoms were the same or the equivalent as those that exist under a diagnosis of generalised anxiety disorder. That is, the symptoms of both conditions are common. It was his opinion, however, that the more appropriate diagnosis was PTSD.

48. With respect to the applicant's capacity for work, Dr Cole said that whilst he did not specifically comment upon it in the body of his report, he found in an annexure to it that the applicant would attract 6 points under Table 4.4 of the Guide to Assessment of Repatriation Pensions. He said that it was implicit by this rating that the applicant was unable to work.

49. Dr Cole said that he obtained a history from the applicant that his father and his partner were not "getting on well" and the business eventually closed. He had no history of the business closing because of complaints by local residents. He noted that the applicant was General Manager of the factory for many years that engaged a staff of 20. He said he knew the applicant eventually obtained work as a truck driver and part-time employee of a bottle shop, which he said was not indicative of the absence of any psychiatric condition. He said it was possible to draw "inferences" by the applicant's employment as a truck driver that he regarded as being a "step down".

50. In re-examination, Dr Cole said that it was not uncommon for persons with PTSD to remain employed and "battle on". Additionally, he said it was not uncommon in his experience for persons with PTSD to take time off work or to resign and be reluctant to explain PTSD as being the basis for resignation. He said that the applicant having obtained a job as a truck driver which was described to him as being "mindless", reinforced his opinion that Mr Woodward was looking for less demanding work because of his emotional state. He also noted that the applicant felt vulnerable working in the bottle shop and his PTSD would have caused him to be vulnerable in the circumstance where another person confronted him.

51. Dr Cole said that he did not consider Instrument No 76 of 1998, namely "Psycho Active Substance Abuse or Dependence", in his report. He said he did not "question" the applicant during the consultation concerning this Instrument because he "read it had been accepted by the VRB". He said he was unable to comment on it in evidence because he did not have enough information as to whether the applicant met the criteria for "alcohol dependence", within the meaning of that Instrument.

Submissions

52. At the conclusion of the evidence of Dr Cole, the hearing was stood down temporarily to permit Ms Bornstein to obtain some instructions. When the hearing resumed she indicated that the review would proceed on an alternative basis, namely:

(a) the applicant would proceed only to establish that the PTSD or the psycho active substance abuse or dependence Statement of Principles would be satisfied, thereby not pursuing the other Instruments with respect to generalised anxiety disorder or depressive disorder; or

(b) pursuing a finding of war-caused injury pursuant to the provisions of s9(1)(a) of the Act. In so far as this submission was concerned, it was put that there was no necessity to make a finding that the injury arose out of or was attributable to service. It was put that the connection to service need be no more than temporal. Additionally, and in support of this submission, it was put that satisfaction of Statement of Principles have no relevance to a finding under s9(1)(a) and the determination of a Statement of Principles does not displace the operation of this section.

53. With respect to the first submission as outlined above, Ms Bornstein made detailed and comprehensive submissions as to the hypothesis advanced by the applicant and its reasonableness. Relying on the four stages of analysis as determined by a Full Federal Court in Repatriation Commission v Deledio ("Deledio" (1998) 49 ALD 193 at 206), it was put that there was material pointing to a hypothesis connecting service with PTSD or psycho active substance abuse or dependence (alcohol). It was put that the applicant experienced or was confronted with events which were severe stressors. In making these submissions, the phenomena of "experiencing a severe stressor" was common to PTSD Instruments No 3 and 54 of 1999 and the psycho active substance abuse or dependence Instrument No 76 of 1998. The factor of "experiencing a severe stressor" is found at paragraph 5 of each applicable Instrument and was the factor upon which the applicant relied. It therefore followed that the second stage of Deledio was satisfied, because Instruments had been determined under s 196B of the Act. It was put that the hypothesis was reasonable because there was a consistency with the "template", as found within the Statement of Principles. The events upon service and the applicant's reactions were detailed by Ms Bornstein to advance this part of the submission.

54. In conclusion, it was put the fourth stage of Deledio was satisfied because the Tribunal could not be satisfied beyond reasonable doubt that the injury was not war-caused.

55. Having submitted, therefore, that either the condition of PTSD and psycho active substance abuse or dependence were war-caused, Ms Bornstein submitted that the applicant would attract an impairment rating of greater than 70%, thereby causing enquiry into special rate entitlement. It was put that the applicant was incapacitated, that he would satisfy the "alone" test under s 24 and he was, in the circumstances, entitled to pension at the special rate.

56. Mr Purcell submitted that the applicant's reaction to events on service were necessarily subjective and that there had been nothing objective about his service which would permit satisfaction of either of the three applicable Instruments. Additionally, it was put that the amendment to the PTSD Instruments, by inserting the phenomena "of experiencing a severe stressor" in Instrument No 3 of 1999, (as opposed to "experiencing a stressor" in the earlier Instruments) indicated a clear intention on the part of Parliament to uphold the objectivity required to find the hypothesis to be reasonable when connecting either PTSD or psycho active substance abuse/ dependence with service. He submitted that there was no evidence of any stressors which involved intense fear, helplessness or horror with service. It was acknowledged that the applicant did suffer chronic mild PTSD with depression and alcohol dependence, but this was not related to service because the objective standard the Instrument imposed was not satisfied.

57. Mr Purcell then made detailed submissions with respect to events in service as the applicant advanced and urged findings that those particular events would not satisfy the template of the Statements of Principles in issue. Additionally, he made detailed submissions against the applicant's claim for special rate pension in the event that it was found that either Instrument was satisfied.

Conclusion & Reasons For Decision

58. It is not necessary to detail the above submissions because I am not satisfied that factors exist as a minimum permitting me to find that a reasonable hypothesis has been raised connecting either PTSD or psycho active substance abuse or dependence with service.

59. In reaching the conclusions that I have, I have no doubt that the applicant was engaged in service which he found to be very stressful and frightening. I accept without reservation that the applicant travelled to Vietnam with very little experience or insight into the events to which he would be exposed. Dr Strauss reports "many people who went to Vietnam did not develop post-traumatic stress disorders, even though they may have been apprehensive and distressed while there". He also records that Mr Woodward "is a sensitive individual who could not cope with the pressure of being in Vietnam even though in my opinion he did not suffer from a severe stressor". Comments of this type are not helpful when many veterans are seeking an acknowledgment of the horror of service and the events that they endured. To dismiss the connection with service because the applicant "is a sensitive individual who could not cope" might also be thought to be insulting.

60. In Deledio, the Full Federal Court decided that there were four stages of analysis to determine whether a Statement of Principles is satisfied, namely-

"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".

61. Diagnosis of an illness, injury or disease is to be decided on the balance of probabilities (refer Repatriation Commission v Cooke ((1999) 28 AAR 400). Doctors Cole and Strauss both diagnosed the applicant as suffering PTSD. I am satisfied as a fact that the applicant does suffer PTSD. I am also satisfied that the diagnosis of alcohol dependence/abuse is a condition the applicant suffers. On that basis, inquiry is then to be made whether the applicant satisfies a factor within the PTSD and or alcohol dependence/abuse Statement of Principles. A Statement of Principles is not however, the basis for, nor relevant to, diagnosis (refer Benjamin v Repatriation Commission [2001] FCA 1879). This could lead to some controversy or confusion because the Statements of Principles contain a definition of what constitutes PTSD and alcohol dependence/abuse. The PTSD definition is reproduced as follows-

"(b) For the purposes of this Statement of Principles, "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 symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize 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 this disturbance (indicated by the relevant symptoms set our (sic) 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 areas of functioning".

62. As to alcohol dependence/abuse, being the alternative basis upon which this claim was put, Dr Cole said this diagnosis could also be made. The condition of "alcohol dependence" and "alcohol abuse" are both independently defined in Instrument 76 of 1998. I repeat for the purposes of this alternate diagnosis, the comments made in paragraph 61. The definitions of these conditions are reproduced as follows-

""alcohol dependence" means the presence of constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of alcohol

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for alcohol

(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) alcohol is often taken in larger amounts or over a longer period than was intended

(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from it effects

(6) important social, occupational or recreational activities are given up or reduced because of alcohol use

(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;

"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent. The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows

A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) or the following, occurring within a 12-month period:

(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home

(2) recurrent alcohol use in situations in which it is physically hazardous

(3) recurrent alcohol - related legal problems

(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol

B. The symptoms have never met the criteria for alcohol dependence.

The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.

Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0."

63. Irrespective of whether either of the diagnoses satisfies or are compatible with the Statement of Principles - and Benjamin suggests a Statement of Principle is not relevant to diagnosis - the applicant has to meet a phenomena applying in both instruments, namely, "experiencing a stressor". The language of the report of Dr Strauss suggests he focused on whether the applicant "experienced a stressor" as defined. Those words are reproduced - as they appear - in Instrument 76 of 1998 and Instrument 54 of 1999 as follows-

"'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence."

64. Instrument No 54 of 1999 amended Instrument No 3 of 1999 only by inserting the word "severe" immediately before the word "stressors" in the second paragraph as reproduced above. It appears that the amendment is either to correct an oversight from the amending Instrument No 3 of 1999 or to impress the Parliamentary intention in introducing the phenomena of "experiencing a severe stressor" in lieu of the phenomena of "experiencing a stressor" as appeared in earlier Instruments. At all relevant times, the PTSD Instruments number 3 and 54 of 1999 applied (refer Repatriation Commission v Gorton [2001] FCA 1194). In my view, there is no practical difference between both Instruments by the absence of the word "severe" from Instrument No. 3 of 1999.

65. The first two stages of Deledio are satisfied because hypotheses have been advanced and there are applicable Instruments. However, the claims fail because neither hypothesis satisfies the definition of "experiencing a severe stressor". Because the hypothesis fails to meet the template (the applicable factor within each Statement of Principles), it is deemed not to be a reasonable hypothesis.

66. The words "experienced", "witnessed" and "confronted", as these words appear in the definition of "experiencing a severe stressor", were analysed in Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 108. The Tribunal then said:

"The word "witnessed" suggests that the person was present at the event involving real or present (i.e. actual) or threatened death. The word "experienced" suggests that the person observed or encountered such an event and the word "confronted" that he or she was faced with such an event".

67. I can find nothing from the material the applicant raised which would satisfy the definition of "experiencing a severe stressor". Whilst the applicant was in fear and had a sense of helplessness and horror and resorted to alcohol for comfort, there was no material raised or pointing to of the applicant experiencing, witnessing or being confronted with an event or events involving actual or threatened death or serious injury or threat to him or others.

68. Despite what is recorded earlier as to an illness, injury, or disease being diagnosed without reference to a Statement of Principles, a number of Tribunal decisions (before Benjamin) did consider the definition of PTSD, as it appeared in Instrument No. 15 of 1994. That definition was in similar terms to the definition that appears at Instruments Nos. 3 & 54 of 1999. I now doubt the relevance of the following analysis, but I equally doubt the relevance of defining an illness, injury or disease, in a Statement of Principles when diagnosis is not to be made by reference to a Statement of Principles. Nonetheless, the material does not point to the definition of "PTSD" being satisfied. This is because sub-paragraph (A)(i) requires an objective analysis and interpretation of the events of the applicant's service, unlike sub-paragraph (A)(ii) which requires a subjective analysis. All parts to the definition must be satisfied. The objective analysis required by sub-paragraph (A) is consistent with many decisions of this Tribunal over many years (refer Re Freeman and Repatriation Commission (2000) AATA 727; Re Hill and Repatriation Commission (2000) AATA 1011; Re Jehn and Repatriation Commission (2000) AATA 484; Re Powell and Repatriation Commission (2000) AATA 385; Re Mulvaney and Repatriation Commission (2000) AATA 535; Re Cranage and Repatriation Commission (2000) AATA 1119). In fairness, however, it should be noted that the Tribunal found a contrary position in Re Binding and Repatriation Commission (1998) AATA 340 and affirmed on appeal - Repatriation Commission v Binding [1999] FCA 974.

69. Some of the above decisions considered Instrument No. 15 of 1994, which Instrument No. 3 of 1999 revoked. The former Instrument had a definition of "experiencing a stressor". It is similar to the definition of "experiencing a severe stressor", which appears in Instrument No. 3 & 54 of 1999, but it did contain the sub-paragraph-

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

70. It was this paragraph that the above decisions concluded should be treated subjectively. The same paragraph also appeared as part of the definition of PTSD - as it continues to form part - refer (A)(ii). The observations as to an objective/subjective analysis continue to apply to the interpretation of the definitions of "experiencing a severe stressor" and "Post Traumatic Stress Disorder".

71. In concluding this part, this application is another example of a veteran who, on the diagnosis of the medico legal consultants of both parties, would have been entitled to a finding of PTSD and alcohol dependence/abuse being war-caused were it not for the regime since 1994 requiring consideration and application of Statements of Principles.

72. Insofar as the alternative submissions were concerned, Ms Bornstein pursued entitlement pursuant to s9(1)(a) of the Act which reads as follows:

"(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service ...".

73. It was submitted that that sub-section provided authority for the connection between operational service and injury to be no more than temporal. That is to say, it is not necessary that the occurrence arose out of or was attributable to service.

74. Ms Bornstein relied on the majority decision in Repatriation Commission v Keeley [2000] FCA 532 ("Keeley"). Keeley was a decision of a Full Federal Court where the issue concerned whether entitlement under the Act is to be determined by reference to the Statement of Principle in force when a primary decision was made or by reference to the Statement of Principle in force at the time of subsequent review.

75. Keeley concerned an application brought by a widow where primarily the Court considered s 8(1)(a) of the Act. That section is in identical terms to s 9(1)(a).

76. After the majority (Lee and Cooper JJ) discussed the applicable legislation, they recorded at paragraph 15:

"It is to be noted that in respect of a veteran who rendered "operational service", s 8(1)(a) contemplates that the link between the death of the veteran and the war service rendered may be no more than temporal. Where s 8(1)(a) refers to "an occurrence that happened while the veteran was rendering operational service", it is not necessary that the occurrence arose out of, or was attributable to, the "operational service". That is, the connection between the event, or events, and the "operational service" may be coincidental and not causal. Furthermore, the occurrence may be an event with a direct consequence, such as the suffering of injury or contraction of a disease, or it may be an event, or series of events, with a latent or delayed consequence in which the effect of an injury, or onset of a disease, is not manifested until some later date. Irrespective of when the consequence is manifested, the event, or series of events, would be an occurrence that happened while the veteran was rendering "operational service".

77. It was submitted that the applicant in the present proceedings was exposed to a number of occurrences during his service. Upon the basis that an occurrence is an "event", "incident" or "mishap", consistent with the High Court decision of Repatriation Commission v Law (1980) 31 ALR 140, s9(1)(a) confers a benefit upon a veteran where the injury results from an occurrence.

78. It followed upon the applicant's submissions that the occurrences in service precipitated PTSD and/or psychoactive substance abuse and dependence. It followed, therefore, that the applicant was able to demonstrate a connection between service and injury, and the applicant was therefore entitled to benefits under the Act.

79. Indeed, the applicant submitted that having been engaged in operational service, his entitlement is to be determined after a reasonable hypothesis has been raised upon a more relaxed standard of proof. Ms Bornstein relied on paragraph 21 of the majority decision in Keeley which said:

"It may be seen, therefore, that Statements of Principles determined by the Authority under s 196B of the Act may have relevance to part only of the circumstances to which s 8 may apply. The Act has introduced Statements of Principles to restrict the field of "medical-scientific" discourse able to support a hypothesis that relies upon "medical-scientific" opinion. The Act does so by providing that a hypothesis is not reasonable for the purpose of s 120(3) unless a Statement of Principles "upholds" the hypothesis. Whatever meaning is to be attributed to the word "upholds", that provision will not apply to a hypothesis relevant to s 8 that is not addressed by a Statement of Principles, for example, a hypothesis not involving "medical-scientific" opinion. For example, it is unlikely that any Statement of Principles determined in respect of death resulting from the disease dipsomania, would include a death resulting from that disease as described by the facts in Carroll."

80. In conclusion, it was put that s120A of the Act did not apply in the present circumstance where a veteran was entitled to the benefit of s9(1)(a) of the Act.

81. Mr Purcell submitted that s9(1)(a) of the Act could not apply independently of the provisions of s120A of the Act. He submitted that a decision of the Tribunal in Re Hampton and Repatriation Commission ([2000] AATA 1117 ("Re Hampton")) specifically dealt with a submission put that a Statement of Principles need not be applied in instances where an injury arose by an "occurrence" during service pursuant to s 9(1)(a). Mr Purcell submitted that the Tribunal decided in Re Hampton that ss 8 and 9 of the Act did not displace the requirement to determine the reasonableness of a hypothesis, pursuant to a Statement of Principles.

82. It was submitted that s120A of the Act specifically was concerned with the reasonableness of a hypothesis being assessed by reference to a Statement of Principles. Sub-section 120A(1) provides that the section applies to claims made after 1 June 1994 and, in the case of operational service, to claims made under Part II. Sub-section 120A(3) provides that:

"(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11) ...".

83. Section 13 is a section within Part II of the Act and it provides where a veteran becomes incapacitated, the Commonwealth is, subject to the Act, liable to pay pension by way of compensation in the case of incapacity of that veteran. It followed upon the submissions of Mr Purcell that the provisions of s9 become embodied within s13, that is say, entitlement to pension under s13 (being a section within Part II) exists only if there has been an injury suffered by a veteran within the meaning of s9. Part II is specifically referred to in s120A which says that that section applies with respect to operational service and sub-section (3) provides that the hypothesis will only be reasonable if there is a Statement of Principle in force under s196B.

84. Mr Purcell submitted that the paragraphs referred to above, being part of the decision of the majority of the Full Court in Keeley, were obiter and therefore have no binding application.

85. It was submitted that the propositions put by the applicant on this point were contrary to a decision of the Full Federal Court in McKenna v Repatriation Commission [1999] FCA 323, where the Full Court approved the process of analysis as decided in Deledio. Additionally, it was put that the propositions advanced were contrary to a decision of the Tribunal in Re Jenkin and Repatriation Commission (1997) 47 ALD 721 ("Re Jenkin"), being a 3 member Tribunal, where the presiding member was the former President, Mathews J.

86. Having heard the submissions put by the representatives for both parties, I am satisfied as a matter of law, that the respondent's submissions must be upheld.

87. The comments made by the majority of the Full Court in Keeley may be seen to be obiter. That appeal concerned whether to determine liability by reference to a Statement of Principles in force at the time of primary decision or at the time of AAT review. It also extended to an examination of s196B of the Act and whether that section affected accrued rights of review. Put simply, the appeal concerned the application of Statements of Principles. It was not concerned with whether Statements of Principles did not apply. The passages of the decision reproduced earlier must be regarded - with the greatest of respect to their Honours - in the nature of discussion so as to explain the basis for decision-making and to assist in the interpretation of the legislation. Additionally, the Full Court discussed a decision of Repatriation Commission v Carroll (1988) 14 ALD 581 ("Carroll"), which was determined under s9, but at a point in time many years earlier than the date upon which Statements of Principles were introduced. The discussion concerning Carroll extended to the very unusual nature of the hypothesis then advanced and the absence of reliance upon "medical/scientific" opinion. This is important because s196B of the Act, which establishes the functions of the Repatriation Medical Authority, prescribes that the Authority must determine a Statement of Principles if it is of the opinion that sound medical/scientific evidence is available connecting injury, disease or death with service.

88. The combined effect of ss9, 13 and 120A dictate that claims made after 1 June 1994, with respect to operational service, can only be found to have a hypothesis which is reasonable if there is in force a Statement of Principles (determined under s196B). It is to be noted that the word "only" appears in s120A(3), as if to reinforce that claims under ss 8 or 9 cannot establish entitlement to a pension or other benefits independently of a Statement of Principles.

89. A regime of this type was clearly contemplated and intended by the 1994 amendments and Parliamentary speeches (refer discussion by Heerey J in Keeley and also Deledio).

90. Additionally, and in conclusion, I can locate no authority - nor was any known to both counsel who appeared - where the passages relied on in the Full Court decision of Keeley have been upheld and applied elsewhere. In Re Jenkin and Re Hampton, the Tribunal decided that the effect of the 1994 amendments were to cause Statement of Principles to be binding on all decision-makers at all levels. In Re Hampton, the Tribunal found, following the respondent's submissions, that s 9 extends only to a finding of a connection between service and injury. Nonetheless, liability for benefits under the Act will only exist if material is raised or points to a hypothesis upheld by a Statement of Principles.

91. It follows that the applicant's entitlement to pension or benefits under the Act cannot be determined under s9(1)(a) in isolation from a Statement of Principles.

92. As referred to at the commencement of this decision, an issue might emerge in the event that a connection was not found between service and PTSD or psychoactive substance abuse or dependence. That issue relates to the assessment of General Rate of pension. This issue has emerged because the respondent assessed the applicant with respect to the condition of right phrenic nerve palsy shortly prior to the commencement of the hearing and determined that there was nil impairment. If that opinion was applied, it would have the effect of reducing the applicant's pension entitlement from 100% to 60%. The parties agreed that in the event that the conditions of PTSD and psycho active substance abuse or dependence were not found to be war-caused, that this review would be completed by a resumed hearing confined to the issue of assessment of pension, on a date to be fixed. This is to allow the applicant an opportunity to obtain an opinion of his own concerning right phrenic nerve palsy. Also, I am satisfied that there was no reasonable opportunity to the applicant to investigate that issue prior to the commencement of the hearing.

93. Accordingly, the decision of the VRB in so far as it concerned diagnosis is set aside and in substitution it is decided the applicant does suffer PTSD and alcohol dependence or abuse. However, for reasons given in paragraphs 63-67 inclusive, the applicant did not "experience a severe stressor". The hypotheses raised are not reasonable because the factors within the appropriate Instruments do not exist as a minimum.

94. The remaining part of the application, in so far as it concerns assessment of pension, is adjourned to a date to be fixed in September 2002.

I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley (Senior Member)

Signed: Katherine Navarro..................................

Associate

Date/s of Hearing 21 May 2002 and 22 May 2002

Date of Decision 25 July 2002

Counsel for the Applicant Ms Judith Bornstein

Solicitor for the Applicant Williams Winter & Higgs

Counsel for the Respondent Mr Gerry Purcell

Solicitor for the Respondent Department of Veterans' Affairs