Symons and Repatriation Commission [2003] AATA 619 (30 June 2003)

Last Updated: 13 January 2004

DECISION AND REASONS FOR DECISION [2003] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL N 2001/1805

VETERANS' APPEALS DIVISION

Re: Peter Symons

Applicant

And: Repatriation Commission

Respondent

DECISION

Tribunal: P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member

Date: 30 June 2003

Place: Sydney

Decision: The decision of the Repatriation Commission dated 17 April 1997 is set aside and the Tribunal decides in lieu that the applicant's depressive disorder is a war-caused disability with effect from 27 December 1996. The matter is remitted to the Repatriation Commission for assessment.

(sgd) P. J. Lindsay

Senior Member

© Commonwealth of Australia (2003)

CATCHWORDS

VETERANS ENTITLEMENTS - disability pension - operational service --- whether depressive disorder war-caused - decision set aside.

Veterans' Entitlement Act 1986, ss. 9, 120, 120A, 196B

Repatriation Medical Authority Statements of Principles:

- Instrument No. 58 of 1998 concerning Depressive Disorder

- Instrument No. 3 of 1994 concerning Depressive Disorder (revoked)

- Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse

McKenna v Repatriation Commission (1999) 29 AAR 70

Re Burgess and Repatriation Commission [2002] AATA 702

Benjamin v Repatriation Commission (2001) 34 AAR 270

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gorton (2001) 65 ALD 609

Bull v Repatriation Commission (2001) 66 ALD 271

Stoddart v Repatriation Commission [2003] FCA 334

Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member

1. The history of this application by Mr Peter Symons (the applicant) is as follows. The Repatriation Commission (the respondent) on 11 June 1996 refused his claim under the Veterans' Entitlements Act 1986 (the Act) for acceptance of cervical spondylosis as related to his service in the Royal Australian Navy. The applicant's claim for post traumatic stress disorder was also refused by the Commission, on 17 April 1997. Mr Symons applied to the Tribunal for a review of the Commission's decisions. On 28 November 2000 the Tribunal, while determining that the appropriate diagnosis of the applicant's condition was depressive disorder and not post traumatic stress disorder, affirmed the decisions. Mr Symons appealed to the Federal Court and ultimately to the Full Federal Court. On 16 November 2001 the Full Federal Court, allowing the appeal in part, made the following orders by consent:

(i) The decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal dated 28 November 2000, to the extent that the decision affirmed the respondent's decision that Depressive Disorder was not war-caused, is set aside.

(ia) The matter is remitted to the Tribunal for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law.

(ib) The Tribunal is directed to determine whether the applicant's condition of Depressive Disorder is war-caused by reference to the Statements of Principles in force at the time of the Tribunal's review and, if necessary thereafter, the Statements of Principles in force on 17 April 1997.

2. Accordingly, the matter was remitted to the Tribunal. At the hearing Mr M Vincent, of counsel, appeared for the applicant. Mr S Modder of the Department of Veterans' Affairs (the Department) represented the respondent. Mr Symons gave evidence. The Tribunal had before it the documents prepared by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing which included the appeal book prepared for the applicant's appeal to the Full Federal Court in matter N885/2001 (Exhibit A3). Two reports by Dr A. Dinnen, consulting psychiatrist, were tendered for the applicant. Dr Dinnen stated in his report of 30 July 2002 (Exhibit A2) that he had been asked to examine the applicant and provide a report as to whether his legally determined psychiatric condition of depressive disorder could be considered a war-caused disability in accordance with relevant Statements of Principle (SoP) issued by the Repatriation Medical Authority (RMA). The Commission requested Dr R Haik, also a consulting psychiatrist, to assess Mr Symons with particular emphasis on determining whether a depressive disorder exists and whether it is related to operational service.

3. Mr Symons was born on 31 December 1953 and served in the Navy from 14 July 1969 until his discharge on 13 March 1991. His periods of service were:

* operational service in Vietnam from 21 October 1970 to 12 November 1970;

* eligible defence service from 7 December 1972 to 13 March 1991.

4. The applicant's claim for pension in respect of PTSD related to his operational service in Vietnam. Accordingly the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. As required by the Full Court's order, the Tribunal will determine, pursuant to s.120(1), that the applicant's depressive disorder was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting that psychiatric condition with the circumstances of his service: s.120(3). Since his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the Tribunal is to assess the reasonableness of the hypothesis in accordance with any SoP issued by the RMA. The Tribunal will refer to the relevant SoPs in force at the time of decision and, if necessary by reference to SoPs in force on 17 April 1997, the date of the Commission's decision.

5. In opening, Mr Vincent said the applicant's case was that he experienced a severe psychosocial stressor, as defined in SoP 58 of 1998 concerning Depressive Disorder, during his period of operational service, and he referred to Dr Dinnen's opinion in that regard. There was a hypothesis raised by the material connecting the depressive disorder with the applicant's war service. Mr Vincent said the material also pointed an alternative hypothesis and he referred to Dr Dinnen's opinion that, prior to onset of the depressive disorder, the applicant developed an anxiety disorder and or alcohol abuse directly following his return from Vietnam.

EVIDENCE

6. Mr Symons told the Tribunal he had a very happy childhood. He had been dux of his class in his final year at school. At 15 1/2 he commenced service in the Navy. There followed a period of approximately twelve months training and schooling in HMAS Leeuwin in Fremantle and then the applicant commenced his service in HMAS Sydney. His evidence at the hearing was that he felt pretty scared when he heard he was going to the Sydney, a ship that transported troops to Vietnam. He referred to the recent sinking in Vietnam of a US troop carrier and the media reports that there were no survivors. He referred also to a story circulating among his ship mates that a clairvoyant was predicting that on its next voyage, its thirteenth to Vietnam, the Sydney would sink with all hands. Mr Symons recounted that in the period immediately prior to leaving for Vietnam, he was a witness in a court martial. During that hearing, he was locked up for three days. He said that he had no liberty before departing for his service in Vietnam.

7. In Vietnam, Mr Symons acted as a guard on the deck of the Sydney while anchored in Vung Tau harbour. Since he had been given a rifle without ammunition, he said he felt useless and scared. He was instructed to look out for bubbles in the water and to notify a superior if he saw bubbles. As it turned out, he did not see any bubbles and had no need to request help. During the approximately 48 hours that the Sydney was in Vung Tau harbour, he was assigned periods of guard duty, both in the day and night. He recalled hearing thunder flashes or scare charges while on his first session of guard duty. They would cause the ship to shudder. He did not know what was going on when he heard the explosions from the thunder flashes and he felt scared. He was given no warning of their use. He had not been informed about thunder flashes prior to going to Vietnam. Later, after his first period of guard duty, he found out what the explosions were. Mr Symons said he performed guard duty on a further two or three occasions and he was scared when the thunder flashes went off near the ship. He was also scared when he heard the explosions while he was off duty. At the first Tribunal hearing he gave evidence of having participated in training drills, action stations and the standard defensive procedure known as Operation Awkward in Sydney harbour, but without the use of scare charges or thunder flashes.

8. The applicant had other duties while in Vung Tau harbour. He loaded landing craft and made about four trips to shore aboard the landing craft that were carrying troops and transports. Mr Symons said he was positioned near the front of the craft where the landing ramps were located. He was given a pistol but it had no ammunition in it. He did not know what to expect when the ramps were dropped. Although there were armed troops on board the landing craft, he felt nervous. In cross-examination Mr Symons said that while he was in Vung Tau harbour he did not see any enemy and was never actually in danger. He was relieved once the Sydney sailed from Vung Tau harbour but he was still a bit concerned about the clairvoyant's prediction.

9. On the day of the Sydney's return to Garden Island, Mr Symons and colleagues went straight to the pub. There was trouble as they went through the gates at Garden Island. A group of university students threw red paint and pig's blood over them. Mr Symons said he felt very angry when he saw the signs that the students and other protesters were carrying as he passed through the gates. He said the police attended the scene. With some colleagues, he was taken by the police directly to a hotel. He told the Tribunal that the treatment he received from the protesters was the thing that most bothered him on his return from Vietnam. A report prepared on 28 October 2002 by Captain H.A. Josephs of Writeway research service contradicted the applicant's evidence. Captain Josephs found no press articles reporting anti-war demonstrations at any location in Sydney during 11 November 1970 to 30 November 1970. Mr Symons said that he started drinking heavily on his return in November 1970 and he did not stop drinking heavily. In cross-examination he said that his drinking gradually increased during the early 1970s.

10. The applicant's evidence was that he had not drunk alcohol prior to going to Vietnam. On coming back to Australia Mr Symons would go drinking whenever he had leave, which was nearly every night. Within a month, the applicant was being reprimanded for being drunk. He was transferred to HMAS Anzac on 13 November 1970 (T4-42) where he again performed basic mess duties because he did not yet have a trade. Not long after the transfer, Mr Symons was in trouble for striking a Lieutenant who criticised his level of alcohol consumption. Shortly thereafter on 24 January 1971 (T4-42) he was transferred to HMAS Cerberus where he was given training in electronics. While there he was charged with drink driving. He then served for a few years on patrol boats in Darwin and Cairns. Mr Symons was charged again with a drink driving offence while in Cairns and as a result lost his licence. His evidence was that towards the end of 1974 there was another arrest for unlicensed driving. He was gaoled for a number of months before being released in about July 1975.

11. During service, Mr Symons experienced many difficulties with his personal relationships. He met his first partner, Valda, when he was nearly 17. She had already had a child at that stage and they later had a child together. Mr Symons said that he was involved in a serious car accident in 1971. The vehicle he had been driving ended up in a tree and a crane was needed to remove it. His infant daughter was thrown from the car. He was distraught but did not see a psychiatrist or psychologist following the accident.

12. Valda left the applicant before he went to gaol in late 1974. He was being treated for depression not long before she left. He recalled that her leaving was a significant event and it made him depressed (Exhibit A3 fol.170). A medical examination on 25 September 1974 recorded apathy, listlessness and anger at home, and referred to sexual problems during the previous eight weeks (T3-39). The diagnosis was "? Depression ??? Endogenous". An officer asked him to see a Navy psychiatrist because his excessive drinking was interfering with his work. An interview on 10 October 1974 with Dr Bennett, a Navy medical officer, noted that the applicant had been having difficulties for the previous three weeks with sexual intercourse. In turn, this caused him to be irritable at home and listless. Mr Symons was referred to Dr Myers, a consulting psychiatrist, who saw him on 10 October 1974 and noted that "He has suffered from fluctuating chronic anxiety since early adolescence. The impotence appears to be a symptom of an episode of depression and anxiety. I suggest a trial of Tofranil ..." (T3-27). This was the first medication he had been prescribed for depression.

13. The applicant's evidence recollecting his history of depression was not consistent. At the first hearing his evidence in chief was that he first became depressed upon Valda's leaving him, yet in cross-examination he said he had been depressed for a couple of years prior to that and attributed his depression to recalling his service in Vietnam and his home coming (Exhibit A3 fol.237).

14. Valda had left the applicant prior to his next examination by Dr Myers on 24 October 1974. Mr Symons attributed her leaving to their move back to the colder climate of Victoria, which affected her rheumatoid arthritis, and problems with domestic life in Navy quarters. Dr Myers reported that the applicant had been feeling less depressed and tense, though he recommended that the applicant continue taking Tofranil. A naval medical officer diagnosed depression on 29 November 1974 but noted there was "no evidence of severe depression" (T3-38). In December 1974 a report was prepared on the applicant's psychiatric examination (T3-28). His commanding officer reported that the applicant was a good worker who required little supervision. Under the heading `Mental outlook and personal habits' the officer noted "Appears to suffer from severe marital problems which colour his behaviour. Misuses alcohol. Appears to have lost some concern for his own well-being. Under normal circumstances sailor appears to have strong character."

15. Mr Symons said that he had not previously felt anxiety similar to that experienced while in Vung Tau harbour, when he was scared and felt useless. In his evidence before the Tribunal at the first hearing, Mr Symons said he could not recall having any anxiety problems prior to his period of service in Vietnam. However, he referred an incident when he was aged 13. A friend of his brother's, with whom they had been surfing, disappeared. About two weeks later, Mr Symons said he brought in the remains of the boy's body, caught up in fishing nets that he was using. Mr Symons said that he had already completed his grieving for the boy, so did not give it much thought at the time, though the sight of the body, mauled by a shark, was horrific. He gave evidence of the murder of a young girl whose body he found in a cave that he and his friends used for storing their fishing gear. He recalled seeing her blood all around the cave and he felt horrified at the time. Mr Symons told the Tribunal that he did not recount either of these incidents to Dr Myers.

16. Drinking problems led to the applicant being examined by Dr Myers on 14 July 1975 while the applicant was in HMAS Penguin, a medical facility. Dr Myers noted that Mr Symons had consumed little alcohol since release from gaol and wished to remain temperate in his consumption (T3-23). In August 1975 Mr Symons was referred to Dr Myers for review, as the Navy medical officer thought he was adjusting well to his various problems. Dr Myers noted on 15 August 1975, that the applicant was drinking less and wanted to be posted to sea. Dr Myers considered him fit for such a posting (T3-22). Mr Symons' evidence, however, was that he had not curtailed his drinking at this point. He explained that, after release from gaol, he was in HMAS Penguin, a naval hospital, where it was to be decided whether he should be retained by the Navy. He was telling the doctors that he had reduced his drinking so that he would not be discharged. Mr Symons agreed with Mr Modder that the records of these medical examinations did not note any comments about his service in Vung Tau harbour.

17. The applicant's problems with alcohol continued. There was a bout of alcoholic gastritis on 26 February 1979. He said he was drinking constantly throughout the 1980s. His relationship with Jeannie began around 1980. They went on the IVF program, which was unsuccessful. In October 1982 the applicant was considered unfit for service on submarines due to his history of alcoholism and marital instability (T3-33). In March 1983 Mr Symons requested a psychiatric referral due to problems in his relationship (T3-32). Dr Myers saw him on 17 March 1983 and noted that domestic pressures had been building in recent months and referred to recent, failed IVF attempts. Dr Myers suggested joint interviews as soon as possible. There is a record of an attendance at a medical in September 1983 where the applicant demonstrated the following: "strong smell alcohol, slurred speech, unsteady on his feet" (T3-31). He was found unfit to perform duty on a number of occasions.

18. Mr Symons' claim dated 20 March 1997 for disability due to post traumatic stress disorder provided the following details (T8-64):

Since going to Vietnam at the age of 16 my life has been continuous turmoil, causing heavy drinking and smoking, severe depression leading to 4 suicide attempts, severe stress at times causing problems at work. I have had one failed marriage and 3 failed long term de facto relationships and am now in another unstable relationship. I find great difficulty in coping with life and socialising with people.

In support of his claim, he completed an alcohol questionnaire stating (T9) that stress was the reason he started to drink, and that this began in 1970 while serving in HMAS Sydney. Initially he drank one can a day but this increased during service because he said drinking was encouraged. The addiction led Mr Symons to increase his consumption after leaving the Navy to ten cans daily.

19. Dr G Altman, consultant psychiatrist, examined Mr Symons on a number of occasions from March 1997 to September 1998. In a report of 17 March 1997 (T12) Dr Altman noted that the applicant presented with sleep disturbance and diurnal variation in mood, low appetite, low libido, low confidence and motivation and general lack of enjoyment in activities. There was friction with his partner. The applicant was then drinking approximately 4 to 6 beer stubbies daily and at times three-quarters of a bottle of whisky daily and, on weekends, 15 to 20 stubbies a day.

20. At the time of Dr Altman's interview, Mr Symons was studying for a Bachelor of Teaching, with a view to specialising in vocational training. The history Dr Altman was given (T12) referred to three things that happened during the applicant's service that were stressful for him. The first occurred about a week before leaving Australia for Vietnam. He was required to give evidence at the court martial of three soldiers who set fire to HMAS Sydney. As part of the proceedings, he was locked up and unable to enjoy leave with his mates prior to sailing for Vung Tau harbour. The second was his guard duty while in Vung Tau harbour. He informed Dr Altman that he was looking out for small boats that could indicate mines were being set. He could not tell who was who and did not know what he had to do because no one had told him. The third thing was the hostile reaction of anti-war protesters that he experienced when he first went ashore in Brisbane on return from Vietnam, and the similar treatment he received in Sydney.

21. Dr Altman reported that the applicant's Vietnam experience had the following effects on him: he is generally more irritable, regularly becomes angry and sometimes violent; he is always impatient; he is intolerant; he smokes and drinks too much; he is hyperactive but has poor concentration; dislikes crowds; suffers from nightmares and disturbed sleep; has recurrent, intrusive thoughts about service in Vietnam; avoids discussion of Vietnam and veterans' reunions; he is hypervigilant; he has diminished interest in former hobbies of stamp collecting and water sports; and he has difficulty showing affection. Dr Altman diagnosed a severe post traumatic stress disorder with an associated major depression and alcohol dependence as a result of the applicant's experience in Vietnam.

22. At the Tribunal's initial hearing of the matter, Dr Altman gave evidence that the applicant's anger at the reaction he received from protesters at Garden Island originated from his post traumatic stress disorder. In his opinion the applicant's post traumatic stress disorder was central to his problems, leading to his marital problems, his drinking problems, work problems and depression.

23. Dr Altman prepared a further report dated 20 October 1997 (T16). Since the initial interview, Dr Altman reported that the applicant had informed him of other stressful events encountered while serving in Vietnam. Those events were the explosions from thunder flashes that were dropped frequently and the stories of the war that he heard from the soldiers being transported back to Brisbane. Dr Altman also noted that the period of service was 28 days, including travel to and from Vung Tau harbour, and that the Sydney went into action stations on a number of occasions while in the China sea.

24. At the request of his solicitors, Mr Symons was interviewed by Dr Dent, consultant psychiatrist, on 5 March 1999. The applicant described the anxiety he experiences when in lifts, and while patronising bars and the like, if he cannot position himself next to a wall and near an exit. The history referred to poor concentration, sleeping no more that five hours a night, and nervousness if things come on the television, such as demonstrations, that remind him of his own service experience. Additionally, Dr Dent reported (Exhibit A3) that the applicant increases his drinking when depressed.

25. Dr Dent diagnosed alcohol abuse. In his opinion it had a direct connection to the applicant's service, initially in Vietnam and then continuing and escalating since that time. As to the applicant's series of failed relationships, Dr Dent stated that "We should take note of this difficulty in sustaining and maintaining relationships, for surely it's also an indicator of mental disorder and its effects upon him." Dr Dent disagreed with Dr Altman's diagnosis of post traumatic stress disorder and with Dr Lewin's diagnosis of personality disorder. In Dr Dent's view, the applicant's alcohol abuse " ... appears to have a direct causal nexus to his period of service initially in Vietnam and then continuing and escalating since that time." He said that there was an ongoing stress reaction that involved alcohol abuse.. While he could not diagnose major depression, Dr Dent settled for depressive disorder (not otherwise specified) because the applicant

... has got a depressed mood for most of the day for more days than not for over 2 years, where there are the presence of low energy or fatigue, low self-esteem, inertia and suicidal feelings at times ... this equates with a significant Depression and not one that is based on effects of alcohol, but rather another contributory cause to the reason why he abuses alcohol; he's described how alcohol makes it worse.

26. Dr Lewin, consultant psychiatrist, examined Mr Symons on 22 May 1998 and provided a report to the respondent dated 28 May 1998 (Exhibit A3). There was no reference to disturbed sleep patterns, in contrast with the history obtained by Dr Altman. Dr Lewin referred to the applicant's happy childhood, but noted that he regarded his father was rather severe in his punishment. His mother was overbearing, excessively attentive and intrusive. Dr Lewin considered that the history was clearly at variance to that given to Dr Myers in 1974 who had referred to a "fluctuating chronic anxiety state since early adolescence" (T3-27). Dr Lewin recorded the applicant's very disrupted marital history. Mr Symons gave no history of panic attacks or current depressive symptoms. Dr Lewin noted that:

he [the applicant] said that his mood was responsive to circumstances. `If things are running OK then I am fine.' He added that he feels like a having a drink if there are problems at home. He told me that he habitually drank to excess and this made him feel much worse. Depressed feelings last for periods of between a few hours and one or two days at the most. He described feelings of worthlessness. ... He did not give a history of a clearly defined depressive disorder independent of his alcohol use.

27. Dr Lewin found no clear features of alcohol addiction and thus did not diagnose an alcohol dependence syndrome. Questions put to the applicant relating to psychiatric symptoms were answered by reference to his avoidance of crowds, anger at and annoyance with the protesters upon his return from Vietnam, and his then current distress relating to separation from his partner. In summary, Dr Lewin did not diagnose a current psychiatric illness. He could not agree with a diagnosis of post traumatic stress disorder because the diagnostic criteria were not met. In this regard he instanced the absence of any stressor consistent with an overwhelming event. Dr Lewin saw a significant association between the breakdown of the applicant's relationships and his drinking. His diagnosis was a mixed personality disorder. In cross-examination during the first Tribunal hearing, Dr Lewin emphasised the significance to his diagnosis of the applicant's early entry into adult responsibilities, disruptive interpersonal relationships and alcohol abuse. Dr Lewin disagreed with an approach that would link a condition of alcohol abuse back to a depressive condition or post traumatic stress disorder in particular. In relation to Dr Myers' comment about chronic anxiety since early adolescence and the possibility that the incident involving the tragic death of his brother's friend caused a post traumatic stress disorder, Dr Lewin thought it a fairly long bow to suggest that the applicant's operational service aggravated that condition.

28. Dr Dinnen first examined Mr Symons on 15 April 2002 and provided a report dated 29 April 2002 (Exhibit A1). Dr Dinnen noted that the Full Court had remitted the matter to the Tribunal for decision regarding the causation of the applicant's depressive disorder. Dr Dinnen obtained a history of Mr Symons being in a state of apprehension while serving in HMAS Sydney. The clairvoyant's prediction and stories by older sailors fed his apprehension. While in Vietnam he was "scared shitless". On returning to Australia, he was distressed by his encounters with demonstrators. Dr Dinnen reported that the applicant believed he was both depressed and becoming involved in a pattern of heavy drinking on his return. However, Dr Dinnen noted that the applicant's relationship with Valda came to an end for reasons other than his depression or heavy drinking. Mr Symons recalled that he had signed on with the Navy for twelve years and he then felt trapped, unable to do anything about it. His parents were not sympathetic at the time. Dr Dinnen noted the applicant's four attempts at suicide, the last being in around 2000, which his then partner had stopped.

29. Dr Dinnen was certain that the applicant's experience while on operational service was a `severe psycho-social stressor', as that term was defined in SoP 58 of 1998, and that the onset of depressive disorder occurred within two years of the psycho-social stressor. Based on the history of depression and drinking occurring during the same time, and being present from the time the applicant returned from service in Vietnam, Dr Dinnen felt that the genesis of the applicant's condition dated back to his service in Vietnam and the commencement of his anxiety and drinking problems. Alternatively, if Mr Symons had chronic anxiety prior to his service, then in Dr Dinnen's opinion service aggravated his condition. Dr Dinnen postulated a hypothesis that Mr Symons

... either had a level of preexisting anxiety, which was aggravated by his operational service, or his anxiety disorder commenced as a consequence of that operational service. This led to alcohol abuse, and he had therefore a preexisting, `clinically significant psychiatric condition' present up until the time of the clinical onset of depressive disorder in 1974. Factor 5 (c) of Statement of Principles Instrument No 58 and Factor 5 (b) of Statement of Principles Instrument No 59 are satisfied.

30. Although Dr Dinnen did not re-examine Mr Symons, he provided a further report dated 30 July 2002 (Exhibit A2). He reiterated that the applicant's operational service in Vietnam at a tender age was relevant to his development of anxiety and heavy drinking, which preceded the onset of depressive disorder in 1974 consequent to marital problems. Dr Dinnen's hypothesis was that the applicant's alcohol abuse was a clinically significant psychiatric condition prior to the clinical onset of depressive disorder, and predisposed him to such a reaction when the relationship broke down.

31. The Commission arranged for Dr Haik, consulting psychiatrist, to interview Mr Symons on 28 March 2002 and he prepared a report (Exhibit R1) of the same date. Dr Haik noted that Mr Symons provided a resentful and aggrieved description of his early years in the Navy and that these experiences led to his having depression. Mr Symons described being scared all the time while in Vung Tau harbour, referring to his guard duty and hearing explosions from thunder flashes without knowing what was going on. He also referred to his being denied leave in the period immediately prior to going to Vietnam and the hostile reaction from demonstrators on his return home.

32. Dr Haik noted Mr Symons drinks less when he is in a good relationship. Mr Symons said he was depressed after Valda left. He said he started to use alcohol in the Navy because of the stress as well as the peer pressure and camaraderie. Dr Haik noted that Mr Symons was not averse to service life given his re-enlistment in 1981 following 12 years service. After discussing the applicant's reaction to Valda's leaving Dr Haik stated:

For him to suffer depression in that period and again in the 1980s because of the torment he felt with Jeannie, who he married and with whom adopted a child, is understandable but this depression is not related to the navy. It was a reactive depression that is so common at times of relationship crisis. In other words, the breakdown of the relationships were the psychosocial stressors that led to his feeling depressed.

33. In accepting that Mr Symons suffers from depressive disorder, Dr Haik said it was the result of episodic personal relationship difficulties and not related to service. He stated that the applicant's claim of feeling depressed while on operational service was unlikely to be a psychiatric disorder, more an emotional response to unusual situations. In a later report of 12 July 2002 (Exhibit R2) Dr Haik expressed the view that there was no evidence that the applicant's eligible defence service from 7 December 1972 had exposed him to any of the factors in the depressive disorder SoPs.

34. The Commission asked Dr Haik to respond to Dr Dinnen's reports. Without providing reasons, Dr Haik stated in a report dated 12 September 2002 (Exhibit R3) that Mr Symons did not satisfy the SoP for alcohol abuse. Further, he rejected Dr Dinnen's hypothesis that the applicant's alcohol abuse predisposed him to a depressive disorder which developed when his relationships broke down.

CONSIDERATION OF ISSUES

35. The Tribunal notes that although they differ in relation to aetiology, the opinions of Dr Dent, Dr Dinnen and Dr Haik support a diagnosis of depressive disorder. The Tribunal is thus reasonably satisfied to the standard mandated by s.120(4) that the applicant's symptoms constitute that condition (see Benjamin v Repatriation Commission (2001) 34 AAR 270, 283). The issue in dispute, being the matter remitted to the Tribunal, is whether the applicant's condition can be connected to his service.

36. Section 9 of the Act sets out the criteria relevant to determining whether a condition is service related and provides:

Section 9 War-caused injuries or diseases

(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;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...

37. The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 has laid down a number of principles that should be applied in determining whether the applicant's depressive disorder is connected with his service (at 206):

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). ...

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.

38. Based on Dr Dinnen's opinion, Mr Vincent submitted that there is material pointing to a hypothesis connecting service with depressive disorder, in the sense that the applicant's depressive disorder "arose out of, or was attributable to, service" as referred to in s.9(1)(b) of the Act. It was submitted that the material raised alternative hypotheses connecting the applicant's depressive disorder with his war service. Reference was made to a number of SoPs during the hearing. In relation to depressive disorder, the current SoP is No. 58 of 1998. For the purposes of the SoP, `depressive disorder' is defined as the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified. Relying on Dr Dinnen's opinion, it was submitted that Mr Symons experienced a psychosocial stressor within the two years preceding clinical onset of his depressive disorder, thus satisfying factor 5(b) of SoP 58 of 1998. Alternatively, and again relying on Dr Dinnen's opinion, it was submitted that Mr Symons developed an anxiety disorder and or alcohol abuse directly following his return from Vietnam. Each of these clinically significant psychiatric conditions was present up to the onset of depressive disorder and thus Mr Symons satisfied factor 5(c) of SoP 58 of 1998. Referring to McKenna v Repatriation Commission (1999) 29 AAR 70, Mr Vincent acknowledged that for an alternative hypothesis to be reasonable, it must conform with any applicable SoP for the posited psychiatric conditions that are links in the chain of causation.

First hypothesis

39. Mr Vincent submitted that there was ample material before the Tribunal that raised a hypothesis connecting the applicant's depressive disorder with experiencing a psychosocial stressor while on service. In particular, counsel emphasised the applicant's evidence of what he experienced while in Vung Tau harbour, his acquiring a habit of excessive alcohol consumption on return to Australia, the service records detailing his psychiatric treatment for depression in 1974 and the evidence of Dr Dinnen. The Tribunal agrees and finds that the material raises such a hypothesis. As to step 2, the Tribunal notes that the relevant SoP concerning depressive disorder is SoP 58 of 1998. However, the Full Federal Court in Repatriation Commission v Gorton (2001) ALD 609 held that while the Tribunal must apply the SoP in force at the time of its decision, the applicant retains an accrued right to rely on the SoP in force when the Commission determined the matter, should that SoP be more beneficial.

40. As to step 3, Mr Vincent submitted that the hypothesis is consistent with factor 5 (b) of the template in SoP 58 of 1998 which states:

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

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

The Tribunal must form an opinion as to the reasonableness of the hypothesis. While proof of facts is not an issue at this stage of the Tribunal's decision-making, if the hypothesis does not fit within the template of the SoP, it is not a reasonable hypothesis. The Full Federal Court in Bull v Repatriation Commission (2001) 66 ALD 271 has provided the following guidance for determining whether a hypothesis is reasonable (at 276):

It is important to understand the following about East [East v Repatriation Commission (1987) 16 FCR 517]. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis ... .

41. Mr Vincent highlighted the applicant's age and thus his vulnerability. Mr Symons was still just 16 when he served in Vietnam. There was reference to his inexperience as a guard while on the deck of HMAS Sydney, being provided with an unloaded rifle and not knowing what he was supposed to do. In addition, the applicant's evidence was that he was scared by the loud explosions from the thunder flashes while in Vung Tau harbour. He had not been warned about their use. He was scared while going ashore, positioned at the front of the landing vessel but not provided with a loaded weapon. Dr Dent accepted that the applicant, when a 16 year old, experienced stressors while in Vung Tau harbour. Mr Vincent conceded that the actions of the anti-war protestors that Mr Symons experienced on leaving Garden Island in Sydney did not occur during his period of operational service. However, in written submissions received subsequent to the conclusion of the hearing, Mr Vincent contended that those verbal and physical assaults constituted psychosocial stressors as defined in SoP 58 of 1998 and a `stressful event' as defined in SoP 48 of 1994 concerning generalised anxiety disorder. Dr Dinnen observed that the impact of the applicant's operational service was clearly recalled by the applicant and has a continuing emotional impact on him. Dr Dinnen has "no doubt" (Exhibit A1) that the experience could be described as a psychosocial stressor or stressors particularly on someone who was young and impressionable.

42. For the respondent it was submitted that Mr Symons did not experience a severe psychosocial stressor as defined in SoP 58 of 1998, or SoP 65 of 1996 also concerning depressive disorder, as amended by SoP 181 of 1996, during his operational service or his eligible defence service. Clause 8 of SoP 58 of 1998 contains the following definitions:

- `severe psychosocial stressor' means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems".

`psychiatric condition' means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;

Thus it was submitted his depression was not related to service. Mr Modder said that for the hypothesis to be reasonable, it must be supported by evidence that matches or fits factor 5 (b). There was no evidence of experiencing a psychosocial stressor or stressors in his submission. There had not been an identifiable occasion that evoked feelings of substantial distress, let alone an occurrence of the nature contemplated in the definition in the SoP, that instanced being shot at or the death or serious injury of a colleague. Mr Modder submitted that the correct way to determine whether a veteran had experienced a psychosocial stressor or stressful event was to identify and assess particular incidents that had occurred during service, rather than the applicant's approach of a global assessment of his entire period of operational service. Nothing happened, as opposed to what Mr Symons apprehended, in Vung Tau harbour and Mr Modder cited Re Burgess and Repatriation Commission [2002] AATA 702.

43. The Tribunal accepts the respondent's submission. The material before the Tribunal, including the paint and blood throwing that happened subsequent to the service, does not point to such a stressor being an identifiable occurrence, such as an actual threat to his life, while on operational service. As the SoP concerning depressive disorder in force at the time of the Commission's decision contained a comparable definition of `psychosocial stressor', a hypothesis based on the earlier SoP is similarly considered not to be reasonable.

Second hypothesis

44. Mr Vincent contended that a reasonable hypothesis connecting depressive disorder with service can be raised under factor 5(c) of SoP 58 of 1998 which states:

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

Clause 8 of the SoP defines `psychiatric condition' as meaning any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV.

45. Starting firstly with the claim that the evidence points to Mr Symons having alcohol abuse within the two years before clinical onset of depressive disorder and so fitting within factor 5(c) of SoP 58 of 1998, the Tribunal notes:

* the applicant's evidence that he had not consumed alcohol prior to his return from operational service and that he then started to drink to relieve stress (T9);

* the volume of alcohol consumed grew steadily through the early 1970s. Within a month of concluding his operational service he was getting into trouble for returning to his ship while drunk. He said alcohol "has been the root of all evil" in his life.

* during service in HMAS Anzac from 13 November 1970 to 24 January 1971 he struck a Lieutenant who had reprimanded him for his drinking habits.

* he was convicted of drink driving offences in the early 1970s, the precise dates of which were not presented to the Tribunal. Shortly before Mr Symons was gaoled in late 1974, Dr McGovern found the applicant had been depressed, but he was unsure whether the depression was reactive or endogenous. Dr McGovern noted that alcohol was certainly a complicating factor.

* Dr Dinnen's hypothesis is that the applicant's "alcohol abuse was a clinically significant psychiatric condition prior to the clinical onset of depressive disorder, and predisposed him to such a reaction, when the marriage broke down". (Exhibit A1)

* Dr Dent reported that

... we should understand that what has occurred is an ongoing stress reaction that involves Substance Abuse - Alcohol, and another mental category of the DSM IV commencing since his time of service in Vietnam, and which he has described to me, and which I understand to be not only in the 28 day period of service, but specifically relates to events that he found personally frightening when he was a lad of 16 in Vung Tau. (Exhibit A3)

* although Dr Altman diagnosed a different condition, alcohol dependence, he thought the condition was service related.

* On the other hand, Dr Haik, without giving reasons, stated that Mr Symons did not have alcohol abuse. Dr Lewin addressed only alcohol dependence and not alcohol abuse.

46. Pursuant to clause 7 of SoP 58 of 1998, the Tribunal must consider whether the hypothesis is consistent with the SoP concerning alcohol dependence or abuse that is currently in force, SoP 76 of 1998. Mr Vincent submitted that the relevant factor raising a reasonable hypothesis connecting alcohol abuse with service is factor 5 (b) which refers to "experiencing a severe stressor" within the two years immediately before the clinical onset of alcohol abuse. Clause 8 of that SoP contains the following definition:

`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

47. The expression "experiencing a severe stressor" was recently discussed by Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334 in the context of SoP 76 of 1998 in the following passage:

[55] In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.

48. The applicant's evidence was that he was nervous and scared by the explosions caused by the thunder flashes which he said were utilized by other vessels in the harbour. In addition he was scared when he was guarding the deck of the Sydney and while going ashore on the landing craft, positioned as he was at the entrance to the craft and without a loaded weapon. These events happened in a climate of apprehension that was created by a lack of briefing about the applicant's duties as a guard or about the use of thunder flashes, the clairvoyant's foretelling disaster and the Sydney having been set on fire by crew members shortly before leaving Australia. Mr Symons also referred to the confusion he felt when he saw many different vessels in the harbour and he was unsure of what he was to do while keeping guard. He was then a youth of 16 on operational service in Vietnam who said that it was the first time he had ever been there and he had heard nothing but stories from the older sailors and soldiers on the ship. Dr Myers was later to observe that the applicant had suffered from fluctuating chronic anxiety since early adolescence. The applicant's circumstances can be contrasted, therefore, with others who performed like duties of similar duration while in Vung Tau harbour. The Tribunal considers that a reasonable person in the applicant's position, especially having regard to his age and his vulnerability, could reasonably understand that there was a risk of death or serious injury on hearing and feeling the exploding thunder flashes, and while on guard duty and when going ashore without a loaded weapon.

49. Turning to the remaining matter in factor 5(b) of SoP 76 of 1998, the date of clinical onset of alcohol abuse, Mr Modder submitted that the applicant's level of alcohol consumption during the period 1970 to 1974 was not demonstrated by records to be a clinically significant psychiatric condition. If the applicant had such a condition, Mr Modder would place its clinical onset around the time of the drink driving charges. Against that submission is the material referred to in par 45 above that points to the applicant's commencing his alcohol habit as a result of his experiences on operational service. That material suggests clinical onset of alcohol abuse was within two years of his experiencing a severe stressor. The absence of service records detailing problems with alcohol in 1970 to 1974, is only one part of the material before the Tribunal. It does not lead the Tribunal to conclude that the hypothesis connecting alcohol abuse with operational service is too remote, fanciful or incredible.

50. Despite obtaining a history that Mr Symons commenced his abuse of alcohol and depression soon after returning from Vietnam, Dr Dinnen was satisfied that the clinical onset of the depressive disorder could be taken to have been in 1974. Other material, including the reports of treatment for a psychiatric condition by Dr Myers and Dr McGovern, indicates that the clinical onset of the applicant's depressive disorder was around the middle of 1974. There is material, therefore, that points to Mr Symons suffering from a clinically significant psychiatric condition, alcohol abuse, within two years before clinical onset of the depressive disorder in mid-1974.

51. Consequently, the Tribunal finds the hypothesis raised on the material connecting the applicant's alcohol abuse with his experience of a severe stressor while on operational service and his depressive disorder with his alcohol abuse, is not obviously fanciful or untenable and has been raised by the material before the Tribunal. The hypothesis of Dr Dinnen that the alcohol abuse was a clinically significant psychiatric condition prior to the clinical onset of depressive disorder, and predisposed the applicant to such a reaction when the marriage broke down, is not untenable or fanciful.

52. As for step 4 of Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's alcohol abuse was not war-caused. In a matter of this kind, the Tribunal does not make findings on the balance of probabilities. Mr Symons will succeed unless the Tribunal is satisfied beyond reasonable doubt, that it should not accept his evidence about his continued alcohol use despite failing to fulfil obligations at work, such as obeying officers and not attending for duty while intoxicated. There is no evidence that would satisfy the Tribunal beyond reasonable doubt that the applicant's alcohol abuse was not war-caused. On the contrary, he gave evidence about his consumption of alcohol in the months that followed his operational service and that led to his being reprimanded by officers. He said that, as a result of his behaviour, he was transferred from the Anzac to HMAS Cerebrus after a couple of months. This transfer was in January 1971 (T4-42). The Tribunal is not satisfied that it should reject the applicant's evidence. In the absence of any matter establishing beyond reasonable doubt that there is no sufficient ground for determining that the alcohol abuse was war-caused, the Tribunal finds that the fourth step is satisfied.

53. Thus the essential content for a reasonable hypothesis connecting depressive disorder with service, being the content of the relevant SoP, in this case factor 5(c) in SoP 58 of 1998, is present (see Repatriation Commission v Hill [2002] FCAFC 192 at [57]). Accordingly, the Tribunal considers that the material raises an hypothesis connecting the applicant's alcohol abuse with experiencing a severe stressor, the alcohol abuse being present within the two years before the clinical onset of depressive disorder.

54. Section 120(6) of the Act provides that there is no onus of proof on either party. For the above reasons, and in the absence of any matter establishing beyond reasonable doubt that there is no sufficient ground for determining that the depressive disorder was war-caused, the Tribunal finds that the applicant's claim succeeds.

55. It is not necessary, therefore, to consider whether Mr Symons suffered from a generalised anxiety disorder that was caused by his operational service and present within the two years preceding clinical onset of his depressive disorder.

56. The decision should be set aside and in substitution the Tribunal decides that the applicant's depressive disorder is a war-caused disease with effect from 27 December 1996. The matter is remitted to the Commission for assessment.

I certify that the preceding 56 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member and Dr P.D. Lynch, Member:

Signed:

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

(Associate)

Date of Hearing 17 October 2002

Date of Decision 30 June 2003

Written submissions received: 5 and 22 November 2002, 21 March and 7 April 2003

Applicant's Counsel Mr M. Vincent

Respondent's Representative Mr S. Modder, Department of Veterans' Affairs.