Allan and Repatriation Commission [2002] AATA 849 (27 September 2002)

Last Updated: 27 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1118

VETERANS' APPEALS DIVISION )

Re GRAHAM ALLAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 27 September 2002

Place Brisbane

Decision The Tribunal affirms the decision under review. This means Mr Allan's application for review is unsuccessful.

....................(Sgd).....................

Dr EK Christie

Member

CATCHWORDS

VETERANS' AFFAIRS - disability pension - whether entitled to Special Rate - reasonable hypothesis - whether severe stressors experienced - "difficulties in ascertaining the existence of any fact, matter, cause or circumstance" - assessment

Veterans' Entitlements Act 1986 ss 119(h), 120(4)

Bushell v Repatriation Commission (1992) 175 CLR 408

Connors v Repatriation Commission [2000] FCA 783

East v Repatriation Commission (1987) 74 ALR 518

Mason v Repatriation Commission [2000] FCA 1409

O'Brien v Repatriation Commission (1985) 155 CLR 422

Repatriation Commission v Bey (1997) 47 ALD 481

Repatriation Commission v Deleido (1998) 49 ALD 193

Repatriation Commission v McKenna (1998) 28 AAR 7

Re Slattery and Repatriation Commission (1998) 52 ALD 90

REASONS FOR DECISION

27 September 2002 Dr EK Christie, Member

1. This is an application by Graham Allan to review the following decision of the Veterans' Review Board made on 18 October 2000 in which the Board decided to:

"(a) Affirm the [Repatriation Commission] decision under review [made on 29 March 2000] in relation to post traumatic stress disorder, alcohol dependence or abuse and irritable bowel syndrome; and

(b) Set aside the [Repatriation Commission] decision under review in relation to the assessment matter and substitute its decision that disability pension is assessed at 30% of the General rate with effect from 1 June 1999."

2. The decision of the Repatriation Commission made on 29 March 2000 was:

(i) to refuse the claims for alcohol dependence or alcohol abuse and irritable bowel syndrome on the ground that these conditions were not war-caused;

(ii) to refuse the claim for post traumatic stress disorder on the ground that the diagnosis of this condition could not be confirmed; and

(iii) to grant disability pension at 20% of the General Rate.

3. In its consideration of whether Mr Allan "experienced a severe stressor", the Veterans' Review Board concluded:

"25. The Board acknowledges that the incidents described by the veteran were undoubtedly stressful, however the veteran's evidence to the Board was very different to that described by Dr Cameron. Having regard to the evidence of the veteran and of Mr Weeks, the Board's opinion is that none of these incidents fulfil the definition of a severe psychosocial stressor, in that there is no evidence that during any of these incidents was the veteran personally confronted with threat of serious injury, or engagement with the enemy, or of atrocities. The evidence to the Board regarding the flares going up on the wire, is that no cause was found and that there was no firing or sighting of the enemy. The Board understands that flares on the wire were not an uncommon experience. In relation to the mortar round, the veteran at the time was aware of a loud explosion some 200 metres from him. He was told later that it was a mortar attack, and only saw the damaged ammunition storage dump, the following morning. With regard to the breakdown of the truck, this occurred during daylight. There were some 8 vehicles and some 20 men present the whole time during the night. Whilst several local people came out of the rubber plantation to observe the scene, there was no confrontation of any type. Radio contact with headquarters could be maintained, with no further troops sent for reinforcement.

26. The Board could find no other factor which was raised by the available evidence." (T5, Folio 82)

4. Mr Allan now seeks to establish that his conditions of post traumatic stress disorder ("PTSD"), alcohol abuse and dependence and irritable bowel syndrome are causally related to his war service and to have his disability pension re-assessed.

5. At the hearing, Mr A Harding of Counsel represented Mr Allan. The respondent was represented by Mr B Williams, a Departmental Advocate.

6. The Tribunal had before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 and the various documents tendered by the parties.

7. Oral evidence on behalf of Mr Allan was given by the applicant himself, Phillip Kline and Kevin Weeks. The respondent called no witnesses.

Issues to be decided

8. There is no dispute that Mr Allan has PTSD, alcohol dependence or alcohol abuse and irritable bowel syndrome. The only issue for the Tribunal to decide was whether Mr Allan's conditions of PTSD, alcohol abuse and dependence as well as irritable bowel syndrome were service-related, rather than non-service-related disabilities.

Legal Framework

9. Three Statements of Principles ("SoPs") were relevant in this application for review:

(a) SoP Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 ("Post Traumatic Stress Disorder");

(b) SoP Instrument No 76 of 1998 ("Alcohol Dependence or Alcohol Abuse"); and

(c) SoP Instrument No 103 of 1996 ("Irritable Bowel Syndrome").

10. Despite the significant modifications to Section 120 of the Veterans' Entitlements Act 1986 by the issue of Statements of Principles by the Repatriation Medical Authority and the associated amendments to the legislation (refer particularly Section 120A), an "hypothesis" which is "reasonable" needs to be "raised".

11. With the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Court (at 206) recorded the four stages as follows:

"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

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."

12. The plain meaning of "hypothesis" was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:

"A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption."

13. The line of authority concerning the development and comprehension of the phrase "reasonable hypothesis" commenced after the High Court decision in O'Brien v Repatriation Commission (1985) 155 CLR 422 when the Parliament amended the legislation to take account of the decision of Brennan J. The Act was then amended significantly to reflect his Honour's conclusions in O'Brien's case.

14. In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:

"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

15. In reaching this conclusion, the Court relied on an unreported Veterans' Review Board decision in Stacey decided on 26 June 1985 where it was stated:

"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. It is the opinion of the Board to be reasonable, a hypothesis must possess some degree of acceptability or credibility; it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the board, we think it must find some support in that material; that is the material must point to and not merely leave open a hypothesis as a reasonable hypothesis."

16. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414) that an hypothesis is not reasonable if it is:

"obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous."

Furthermore, the High Court in Bushell said (at 415):

"But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion."

17. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five judges summarised the historical development of the concept of "reasonable hypothesis". At page 490 the Court said:

"Any doubt that attends the status of East as a correct exposition of the law relating to s.120(3) should be dispelled."

18. The Court also at page 490 concluded:

"A reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."

19. In Connors v Repatriation Commission [2000] FCA 783 at paragraph 14, Kenny J rejected a submission made by Counsel that "no individual part, or parts of the hypothesis need be supported by facts raised in or by evidence". Her Honour decided:

"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material.....If the material does raise the hypothesis, then the decision maker must determine whether it is reasonable."

20. Her Honour then relied on a passage from the decision of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 where his Honour said:

"For the purposes of s.120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles, is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated the hypothesis has to point to a connection, which starts with a disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and if need be by more than one Statement of Principles."

21. This application for review also raises issues "associated with difficulties in ascertaining the existence of any fact, matter or cause or circumstance" and Mr Allan's service in Vietnam. Section 119(h) of the Veterans' Entitlements Act 1986 is the relevant provision in this regard.

22. Section 119(1)(h) requires the Commission to:

"....take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

the absence of, or a deficiency in, relevant official records, including an absence or difficulty resulting from the fact that an occurrence that happened during the service of a veteran....was not reported to the appropriate authorities."

23. However, this paragraph may not be used to invent evidence which may serve to establish the necessary connection between an injury and war service: Mason v Repatriation Commission per Weinberg J [2000] FCA 1409.

24. In Mason v Repatriation Commission, Weinberg J stated:

"[76] ....The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:

'...in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal's obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - 'without limiting the generality of the foregoing'. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.' (footnotes omitted, emphasis added)

[76] ....The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the VE Act."

Evidence of Graham Allan

25. Mr Allan said that his PTSD and irritable bowel syndrome condition required daily medication. In addition to this medical treatment he also saw a psychologist twice a month.

26. Mr Allan described the following events, which he asserts, represent "stressors" that he had been exposed to during his service in Vietnam:-

* Picquet Duty, Perimeter Patrols and Flare Release

27. Mr Allan stated that guard duty was rotated every second night, with two hours on, four hours off. Mr Allan disagreed with the proposition that animals in the trip wire would have caused flares to be launched as the noise of animals stumbling through the wire would have been heard. However, Mr Allan acknowledged that local scavengers could have been in the trip wire. He qualified his answer by saying that if this were the case, the scavengers would have been a considerable distance from his unit. During cross-examination, Mr Allan agreed that at the time the flares were launched, no follow-up action was ordered where return fire was required.

* Mortar Incident

28. Mr Allan believed that the time of this incident was about one hour - but that it "felt like a lifetime when in a foxhole". He said that one mortar round dropped about 150 metres from the foxhole that he was in.

29. He described the event as "unbelievable noise, a massive explosion" and that he kept his head down as he did not know whether any other rounds might fall. Also, he was aware that shrapnel discharge was associated with mortar and, that exposure could lead to body injuries, eardrum damage and could even result in death. As a result of not being able to see anything in the foxhole in the dark, he described his emotions at the time as being "on boil" and that he was "frightened to death" not knowing what might follow.

30. During cross-examination, Mr Allan said that he could not recall the actual date of the incident as he kept no diary and because "one day ran into the next". He said that he was asleep in his tent at the time the mortar hit.

* Ammo Convoy Breakdown

31. Mr Allan described the events relating to an ammunition convey that he was part of. The convoy was transporting 105 mm rounds to a Fire Support Base. Mr Allan tendered photographic evidence of artillery unit trucks carrying bulk quantities of such ammunition (Exhibit A2). He said that there was no armoured vehicle accompanying the convoy. One truck in the convoy broke down about one hour from sundown. Mr Allan said about eight to ten soldiers remained with the broken down truck whilst waiting for repair personnel who were sent the next morning. They were about twenty to thirty kilometres from base. The soldiers had set a defensive pattern around the broken down truck.

32. Mr Allan said that at this time he felt extremely fearful of his life, as there was no support, and they were caught in the open. He said that if a grenade went off in the five tonne ammo truck, the result would be "instant death". Mr Allan stated that South Vietnamese people were around the breakdown site. The soldiers treated them all with caution as they were aware that South Vietnamese had thrown grenades at troops in the past.

33. Mr Allan stated that during the night the USAF were strafing in close radius to the truck breakdown site with a plane called "Spooky". The strafing also caused further stress for him.

34. During cross-examination, Mr Allan said that he had gone out on twelve ammo convoys and had never been accompanied by an armoured vehicle.

Evidence of Phillip Kline

35. Mr Kline served in Vietnam in 1969-1970 with 101 Field Battery. He was a driver with the Battery and this included ammo convoys to the Fire Support Base. He said that on "most occasions" they were not supported by an armoured vehicle. Weapons on the convoy were generally a machine gun mounted on the Landrover. Each truck had one soldier as a passenger with a rifle or machine gun.

36. Mr Kline recalled an event when one of the trucks in the ammo convoy broke down. They were forced to stay overnight with the truck and in a hostile area. Mr Kline said that he remembered the USAF plane called "Spooky" firing on the ground about a mile away. However, they were within firing range of the Fire Support Base, if assistance was needed.

37. Under cross-examination, Mr Kline said that he could not remember the exact date the ammo convoy breakdown incident occurred as he kept no diary to enable him to accurately identify dates and specific events occurred in Vietnam.

Evidence of Kevin Weeks

38. Mr Weeks was the Orderly Room Bombardier for 101 Field Battery and served in Vietnam from April 1969 to May 1970. His role was in the general administration of the unit including the writing of general orders of the unit.

39. Mr Weeks gave the following evidence in relation to the following issues central to the evidence of Mr Allan.

* Perimeter Patrols and Night Flares

40. Mr Weeks said that night vision glasses were used to identify whether any Viet Cong were present in the perimeter wire. The trip wire contained "claymores" which the Viet Cong tried to steal. Flares were fired to deter the Viet Cong. When movement was detected on the perimeter wire, the command post would be advised, who, in turn, would decide what action to take.

* Mortar Incident

41. Mr Weeks believed that in the latter part of his tour (April 1969 to May 1970), the old ammunition dump at Nui Dat was subject to mortar fire.

* Accuracy and Comprehensiveness of Military Records

42. Mr Weeks stated that based on his own experience in Vietnam, Army records were not always kept of incidents that occurred and that "too many things were covered up". In addition, daily occurrences of all events occurring in Vietnam were not necessarily kept. Furthermore, he said that later in his Army career, in 1979, when he had access to the records of some 50,000 people who had served in Vietnam, he had concluded that the records "were not kept well".

43. In response to a Tribunal question to characterise the danger associated with the events described by Mr Allan, Mr Weeks said:

(a) that shrapnel from a mortar discharge would pass through a tent and anybody present would have been killed; and

(b) that he was not present when the truck in the ammo convoy had broken down, nor had he ever been in a similar situation at night. However, he would have been "nervous" in this situation.

Evidence of Hugh Conant

44. Mr Conant was a retired Lieutenant Colonel who had served as the General Staff Officer - Intelligence at the Headquarters of 1^st ATF from March 1968 to March 1969. He now conducted a business that carried out military historical research. In Mr Allan's case, this research involved an evaluation of all Army records, operations logs and databases for the period Mr Allan was in Vietnam. Mr Conant gave the following assessments of the events described by Mr Allan in his evidence, based on his review of Army records and databases.

* Picquet Duty and Perimeter Patrols and Flares

45. Mr Conant doubted the frequency of guard duty claimed by Mr Allan on a regular basis. He stated that when something was heard on the wire, quite often flares would be fired and the Task Force Commander would decide what follow up action was required. In addition, there was no evidence to substantiate the assertion that claymores explored quite often.

* Mortar Incident

46. Mr Conant stated that he was "fairly confident" that the last rocket or mortar attack in Nui Dat occurred on 27 June 1969, some six weeks before Mr Allan arrived in Vietnam. One rocket from that attack landed in a Field Battery's area without causing injury or damage.

* Ammo Convoy Breakdown

47. Mr Conant stated that it was very unusual for the trucks of Artillery Units to carry bulk quantities of ammunition, as this was the responsibility of the Transport Platoons and RAASC. Furthermore, the preferred method of transport was by air (Chinook helicopters) as a road convoy required prior aerial reconnaissance and support from armoured vehicles on the ground. He acknowledged that broken down trucks were not uncommon and that large tow trucks were available.

48. Mr Conant said that a broken down truck full of ammo would not be left in the field overnight without support to protect the troops and to ensure that the ammo was not booby trapped. Every effort would have been made to repair or to recover the broken down vehicles to ensure that the total situation was secure - including having infantry protection brought in.

49. Under cross-examination, Mr Conant gave the following responses to questions relating to the events described by Mr Allan.

(a) He acknowledged that he was not in Vietnam at the time of Mr Allan's service. He had left Nui Dat in March 1969. He had based his conclusion that the last mortar/rocket attack at Nui Dat was based on Army records - but conceded that it would not be the "first time" or "unique" that an incident occurred that was not present on the records.

(b) Mr Conant agreed that Command Post records that he relied upon would be dependent on information being passed along the line. However, he said that he could not conceive an instance, such as an ammo truck breakdown, that was not responded to immediately for defensive action and to avoid risk to soldiers. This would be standard operating procedure. In addition, there was a requirement for ammo convoys to be accompanied by armoured vehicles and, where this was not practicable, for an armoured vehicle to be "somewhere in the immediate area". Mr Conant conceded that he could not say that the standard operating procedures would have been followed on every occasion as "this was a war: Rules do not always get done on a day to day basis".

50. In response to a Tribunal question concerning the accuracy of Army records analysed by Mr Conant and his conclusion that the last mortar or rocket attack on Nui Dat occurred on 27 June 1969, Mr Conant stated:

"Very high [probability] that it would be accurate; it's as accurate as you can get it ... and [the conclusion] is 'as right as we humanly can get it.'"

51. Mr Conant also agreed that there were incidents in Vietnam where grenades were thrown by women and the Viet Cong at troops.

52. Finally, in response to a Tribunal question in terms of the events associated with the broken down truck in the ammo convoy, Mr Conant stated:

"I take the point that the event could have slipped through [for] a combination of circumstances, but I just can't see it being left on its own over-night or them, the drivers,"

and

"You don't leave [a loaded ammo convoy truck overnight] ... it just flies against everything that would have been done... The first concern was for the soldiers, [then] the truck, the ammunition. If you left it overnight you would have to put an engineer Sapper splinter team in to check the truck right over if it wasn't closely guarded."

Contentions and Submissions of the Parties

53. Mr Harding submitted that the hypothesis central to Mr Allan's application was that his war service in Vietnam led to his conditions of PTSD and alcohol abuse/dependence. Given that PTSD was a psychiatric condition, then the hypothesis could be extended to incorporate irritable bowel syndrome.

54. Mr Harding contended that the definition of "severe stressor" contained in the SoPs for PTSD and alcohol abuse/dependence were reasonably similar - but that the definition for the latter was at a "lower threshold".

55. Mr Harding submitted that Mr Allan satisfied the SoP Factor 5(a) requirement for PTSD and the SoP Factors 5(a) and 5(b) for alcohol abuse/dependence.

56. It was Mr Harding's contention that the following events came within the prescribed meaning for a "severe stressor" experienced by Mr Allan during his service in Vietnam.

(a) Mortar blast whilst Nui Dat was under attack.

There was a risk of continuing attack following the first blast as well as a risk of death or severe injury from the mortar blast. Accordingly, Mr Allan was in a situation of an actual or a threat of danger to his life.

(b) Ammo Convoy Breakdown

The circumstances of this event, as described by Mr Allan, placed him at a risk of actual or potential danger from the enemy or civilians - given the nature of the truck's load. The risk could be further characterised by the presence of a USAF plane strafing in the locality. Furthermore, Mr Weeks described such a scenario as one that made him "nervous". In addition, Mr Conant acknowledged that there were occasions when local civilians threw grenades at Australian troops.

(c) Perimeter Flares

Mr Harding submitted that little weight should attach to Mr Conant's evidence that disturbance on the wire could have been buffalo or scavengers as this statement could not be corroborated.

57. With respect to Mr Conant's overall evidence, Mr Harding submitted that his evidence was not based on his personal experience at the time Mr Allan served in Vietnam. Mr Conant had left Vietnam in March 1969. Moreover, Mr Conant's evidence relied entirely on military records. However, Mr Conant had conceded that not every incident or event may have been recorded. Some of these omissions, Mr Harding submitted, could be identified as "stressors" for Mr Allan.

58. Finally, it was Mr Harding's contention that it was significant that Mr Conant had acknowledged that the standard operating procedures were "rules that were not always followed" as this was "war after all".

59. Mr Williams submitted that the test for an actual threat should be an objective one. He submitted that neither of the three incidents described by Mr Allan were "severe stressors" to come within the meaning as prescribed in the SoPs.

60. It was Mr Williams' contention that the evidence of Mr Conant that relied on Army records could only lead to one conclusion: the mortar attack on Nui Dat described by Mr Allan did not occur. He contended that there would not have been a failure to record such an attack if it had occurred. Furthermore, it was Mr Williams' contention that given thirty years have passed since the events described by Mr Allan and Mr Weeks, there was a question what weight the Tribunal could give to this evidence as an event that "actually happened".

61. Mr Williams submitted that although there was a release of flares in the perimeter wire, Mr Allan was never required to fire back. Accordingly, in these circumstances, there was an "element of doubt" as to whether the SoP meaning for "severe stressor" was satisfied.

62. Mr Williams acknowledged that some ammo transports were undertaken as road convoys although the preferred method was the use of helicopters.

63. With respect to the ammo truck breakdowns, he submitted that an objective test that an actual threat existed was not met because (a) defence precautions had taken place and (b) whilst approaches may have been made by local people, there had been no problems that night.

Consideration of the Issues

64. The Tribunal has adopted the four stages specified in Repatriation Commission v Deledio in considering whether Mr Allan's contentions of PTSD, alcohol abuse/dependence and irritable bowel syndrome are disabilities related to his service in Vietnam in 1969 - 1970.

Whether the Material Before the Tribunal Points to an Hypothesis that Connects the Injury or Disease with the Circumstances of Service

65. The Tribunal concludes that such a connection exists in Mr Allan's circumstances of service in Vietnam in relation to his conditions of PTSD and alcohol abuse. Dr Lillian Cameron, Consultant Psychiatrist, states that "there is a direct relationship between the conditions diagnosed [PTSD, alcohol abuse] and his army service" (T4, Folio 39).

Whether a SoP is in Force

66. Three SoPs are in force which are relevant to this application for review (see paragraph 9).

Whether the Hypothesis is Reasonable

67. The Tribunal concludes that the hypothesis for PTSD and alcohol abuse identified by the applicant (see paragraph 53) is reasonable because, pursuant to subsection 120(3) of the Act, the following factors are contained within the SoPs and are consistent with the "template" or factor:

(a) SoP No 3 of 1999 / SoP No 54 of 1999 (PTSD): Factor 5(a);

(b) SoP No 76 of 1998 (Alcohol abuse/dependence): Factors 5(a) and 5(b); and

(c) SoP No 103 of 1996 (Irritable bowel syndrome): Factor 5(b).

Whether Analysis of Facts Discharges the Legal Standard of Proof

68. The Tribunal has carefully considered all of the evidence and information before the Tribunal. Particular attention has been given to the application of subsection 119(h) to evidentiary difficulties associated with the existence of any disputed fact or circumstances that may have occurred 30 years earlier. In this regard, the Tribunal has adhered to the reasoning of Weinberg J in Mason v Repatriation Commission (see paragraphs 23, 24).

69. The essential foundation for determining this matter is the expert evidence of Dr Cameron. Dr Cameron states:

"Onset of both of these [PTSD, alcohol abuse] diagnosis was 1970 after he was discharged from the army. There is a direct relationship between the conditions diagnosed and his army service. There are no other factors impacting from the past on his mental status." (T4, Folio 39, 18 January 2000)

70. The threshold question for the Tribunal to decide is whether Mr Allan experienced a "severe stressor" prior to the clinical onset/worsening of PTSD. The medical evidence is clear on Mr Allan having the condition of PTSD (see paragraph 69). The Tribunal must determine, before reaching the stage of whether or not there is a reasonable hypothesis, whether Mr Allan suffers from PTSD in accordance with the relevant SoPs [see para 67(a)]. In the factual circumstances of Mr Allan's case, he must show that he has been exposed to a traumatic event in which he experienced, witnessed or was confronted with an event, or events, that involved actual or threatened death or serious injury or a threat to his or others physical integrity (see SoP, Factor 2(b)A, "Kind of injury, disease or death", Factor 5, "Factors"; and Factor 8, "Other definitions" ("experiencing a severe stressor")).

71. SoP No 3 of 1999 states the following factors that must be satisfied to raise a reasonable hypothesis for PTSD:

"Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:

(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or

(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c) inability to obtain appropriate clinical management for post traumatic stress disorder."

72. SoP No 54 of 1999 defines "experiencing a severe stressor" as:

"'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;"

73. In Slattery and Repatriation Commission (1998) 52 ALD 90 at 106, the Tribunal said:

"the word 'witnesses' 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."

74. In relation to whether the Tribunal can accept sufficient of the facts to support the raised reasonable hypothesis, the Tribunal makes the following findings, based on all of the evidence and information before the Tribunal at the time of the hearing:

(a) Flares at the Perimeter Wire

There is no dispute that no follow-up action was ordered in relation to the release of flares at the perimeter wire. There was also no return fire or any sighting of the enemy. The prescribed requirements for "experiencing a severe stressor" are not satisfied in these circumstances.

(b) Mortar Attack

The Tribunal accepts the evidence of Mr Conant that the range of Army records he reviewed in relation to mortar and rocket attacks, gave a "high probability" and that they were "as accurate as you can get it". Mr Weeks and Mr Conant's evidence confirms that an old ammo dump at Nui Dat was subject to mortar fire. Mr Conant's evidence was that the last mortar or rocket attack at Nui Dat occurred on 27 June 1969, that is before Mr Allan's tour commenced. Mr Weeks could not give a date for the mortar attack other than a belief that it occurred in the "latter part of his tour" (para 41). In the absence of any corroborative evidence related to the nature, time and/or extent and/or duration of the mortar attack described by Mr Allan, and because the effect of Mason's case and the application of subsection 119(h), the Tribunal cannot establish the necessary connection between the mortar attack necessary to qualify it as "experiencing a severe stressor" according to the requisite standard of proof.

(c) Ammo Convoy Breakdown

Mr Allan's evidence that such a breakdown had occurred was confirmed by Mr Kline. Mr Allan's evidence was that he was fearful and worried that possible action taken by civilians or the enemy might cause him injury (see para 32). Mr Conant's evidence was that in the circumstances, every effort would have been taken to secure the area, including the bringing in of infantry protection as required. Mr Kline's evidence was that assistance, if necessary, was available from a nearby Fire Support Base. Radio contact with command was maintained the whole time (See T5, Folios 80,82). However, no confrontation of any form arose, notwithstanding several local people came out to observe the scene. Nor was any infantry support called in. The prescribed requirements for "experiencing a severe stressor" are not satisfied in these circumstances.

75. Based on the above findings, the Tribunal can find no fact to prove beyond reasonable doubt that Mr Allan's PTSD is war-caused. Thus, the Tribunal is satisfied beyond reasonable doubt, pursuant to subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Allan's PTSD is war-caused.

76. The Tribunal makes the observation that the SoP for PTSD requires a threshold test of "experiencing a severe stressor" to be satisfied. Because of individual differences in trauma thresholds, some individuals may be more protected, and some more vulnerable, to developing clinical symptoms after exposure to different stressful situations. In the Repatriation Medical Authority Report on "Consensus Conference: Stress and Challenge, Health and Disease", Brisbane (9-11 February 1998), the following conclusion appeared in the "Executive Summary" with respect to situations that qualify as "stressors" [see paragraph 72] under the Veterans' Entitlements Act 1986:

"It was recognised that this definition of stressor was at the more severe end of the spectrum of psychosocial stressors that individuals can be faced with either in military service or in civilian life.

The participants recognised that less obviously severe stressors might contribute to morbidity but chose not to deal with data concerning such effects because of lack of consistent systematic definitions for such stressors in the scientific literature and the very diverse methodologies and outcome measures which allowed little opportunity for pooling of data or comparison."

Given the beneficial nature of the legislation, some reconsideration may be warranted, in the future, for an update of "service stressors" and PTSD through a review of contemporary medical research and publication.

77. Given that Mr Allan does not have a war-caused psychiatric condition (PTSD), there is no need for the Tribunal to consider the SoP for "Irritable Bowel Syndrome" in this application for review.

78. The SoP for "Alcohol Dependence or Alcohol Abuse" (No 76 of 1998) specifies the following factors that must be satisfied in order to establish a "reasonable hypothesis". Factors 5(a) and (b) were subject of submissions by Mr Harding:

"Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:

(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or ..."

79. Based on the findings for PTSD (paragraph 75), the Tribunal concludes that Factor 5(a) is not satisfied.

80. SoP No 76 of 1998 defines "experiencing a severe stressor" as:

"'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 other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.

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;"

81. This definition is reasonably similar for the meaning given for PTSD. Notwithstanding this "extended meaning", the Tribunal's conclusion, based on its earlier findings [see paras 74 and 75], is that none of the three events described by Mr Allan fulfil the meaning of a "experiencing a severe stressor" as defined in the SoP for "Alcohol Dependence or Alcohol Abuse".

82. Based on the above conclusion, the Tribunal can find no fact, to prove beyond a reasonable doubt, that Mr Allan's alcohol dependence or abuse is war-caused. Thus the Tribunal is satisfied beyond reasonable doubt, pursuant to subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Allan's alcohol dependence or abuse is war-caused.

83. The Tribunal concludes, for all of the above reasons, that there are no sufficient grounds for determining that Mr Allan's PTSD, alcohol dependence or alcohol abuse and irritable bowel syndrome are war-caused disabilities at the requisite level of proof prescribed by statute.

84. The Tribunal affirms the decision under review.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed: Sarah Oliver

Associate

Date of Hearing 19 July 2002

Date of Decision 27 September 2002

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Messrs Gilshenan and Luton

Solicitor for the Respondent Mr B Williams, Departmental Advocate