Johnson and Repatriation Commission [2003] AATA 90 (31 January 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/283

VETERANS' APPEALS DIVISION

Re: DENNIS JAMES HAROLD JOHNSON

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: M.J. Carstairs, Member

Date: 31 January 2003

Place: Melbourne

Decision: The Tribunal sets aside the decision under review and substitutes the decision that the applicant's anxiety disorder is war-caused within the meaning of the Veterans' Entitlements Act 1986, with effect from 4 June 2000. The matter is remitted to the respondent for assessment of the rate of pension.

(sgd) M.J. Carstairs

Member

VETERANS' AFFAIRS - veterans' entitlements - post traumatic stress disorder - anxiety disorder - whether applicant experienced a severe psychosocial stressor - whether pension not payable because of serious default, wilful act, or serious breach of discipline

Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4), 120A(3)

Meehan v Repatriation Commission (2001) 64 ALD 366

O'Neil v Repatriation Commission (2001) 34 AAR 290

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2002] FCAFC 192

Benjamin v Repatriation Commission (2001) 34 AAR 270

Repatriation Commission v Levi (1994) 61 FCR 189

REASONS FOR DECISION

31 January 2003 M.J. Carstairs, Member

1. This is an application by Dennis James Harold Johnson (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 8 February 2001. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 14 September 2000 that lumbar spondylosis and anxiety disorder suffered by the applicant were not war-caused or defence-caused.

2. At the hearing of this matter on 14 August 2002 Mr P. Liefman, solicitor, represented the applicant and Mr G. Purcell, of counsel, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with one exhibit (Exhibit A1) tendered by the applicant and five exhibits (Exhibits R1-R5) tendered by the respondent. After the hearing the respondent filed additional submissions referring the Tribunal to various Federal Court decisions.

BACKGROUND

4. The applicant was born on 29 September 1945 and grew up in Geelong.. He was the seventh of eleven children. The family lived in a caravan, which was too small to house all the children, so the children spent time in orphanages. The applicant had a disrupted education and left school without completing high school. He cannot read or write. He undertook a variety of jobs as a labourer, factory hand and storeman until he was selected for National Service.

5. The applicant served in the Australian Army (the army) from 20 April 1966 to 19 April 1968 and from 31 July 1968 to 3 December 1993, when he was discharged with the rank of Lance-Bombardier. From 8 June 1967 to 12 February 1968, the applicant served in South Vietnam and this period is operational service under s9 of the Veterans' Entitlements Act 1986 (the Act). In the army he was in the Artillery Corps and was a gun number in Vietnam, in a team that loaded and unloaded guns.

6. After leaving the army, the applicant found difficulty in obtaining employment because of his illiteracy and work skills. Under the legislation, he has had accepted by the respondent, as due to service, the conditions of acne with  folliculitis, osteoarthritis of the knees, right lateral epicondylitis, bilateral sensori-neural hearing loss and tinnitus, alcohol abuse, peptic ulcer disease, irritable bowel syndrome, pitted keratolysis and tinea. He had previously applied to have the conditions of solitary single personality and generalised anxiety disorder accepted as due to war service. However, these claims were rejected in 1996 and 1997 respectively. On 4 September 2000, the applicant applied to the Department of Veterans' Affairs for disability pension for lumbar spondylosis and behavioural disorder. On 14 September 2000, the respondent diagnosed anxiety disorder and refused the application on the grounds that the claimed conditions were not war-caused. On 9 March 2001, the applicant lodged an application with the Tribunal for review of the decision of the VRB relating to anxiety disorder.

EVIDENCE

7. The applicant told the Tribunal that in Vietnam he served as a gunner with the 108^th Field Battery of the 4^th Field Regiment based at the Australian Task Force headquarters at Nui Dat. He described a number of stressful incidents that, he said, affected him greatly. In the first incident (the random firing incident), a New Zealand soldier had commenced firing on the camp at Nui Dat from outside the perimeter, and several bullets had struck the applicant's tent, which made him fear for his life.

8. In the second incident (the artillery fire incident) during the Tet Offensive, the applicant claimed to have come under enemy artillery fire while assisting a New Zealand battery. In the third incident (the friend's death incident), a close friend was killed in action and the applicant was distressed, though he was not present when the friend died. In the fourth incident (the provocation incident) he said that he suffered verbal taunts by a Bombardier after failing an education course, and felt humiliated and distressed. He lost control and threatened to shoot the Bombardier and had to be restrained.

9. The transcript of evidence given at the VRB hearing dated 8 February 2001 (Exhibit R4) provided additional detail on the four stressful incidents. In that evidence the applicant confirmed that he suffers from nightmares in which he dreams that the Bombardier whom he threatened with the gun after the provocation incident, is in bed strangling him. The applicant told the VRB that he thinks constantly about the death of his friend. He told the VRB he trained with his friend at Puckapunyal and artillery training. They were then both posted to 108^th Field Battery in Vietnam (Exhibit R4).

10. Under cross-examination, the applicant agreed that he did not have a good memory of the random firing incident, but insisted it had happened. He said that he did not see the gun, nor did he see the New Zealander being subdued afterwards. He said he could not explain the reference by his psychiatrist, Dr van der Linden, to the shots being from an M60 machine gun. The applicant could not recall the names of others in the tent with him and told the Tribunal that he only spoke to his gun sergeant, whose name he could not recall and who said the New Zealander had been restrained.

11. In a report dated 28 August 1991 (T4, p43), Dr J. Douglas, the director of psychiatry at Repatriation General Hospital, Heidelberg, stated that the applicant had been seeing Dr Taylor, psychiatrist, regularly for eight months after the death of the applicant's mother and sister within a short space of time. Dr Douglas stated that the applicant was of normal mood, though evasive about his drinking habits and that he had recovered from depressive symptoms suffered after his mother's and sister's deaths.

12. In a report dated 26 March 1991 (T4, p61), Dr J.F. Taylor, consultant psychiatrist, stated that the applicant had seen another psychiatrist some three to four years previously, after becoming upset at work following a confrontation with one of his superiors. He stated that the applicant was suffering from symptoms of anxiety and depression with underlying personality adjustment problems. The applicant's medical discharge papers in 1993 (T4, p65) show boxes ticked "yes" for the presence of nervous trouble and severe depression.

13. In a report dated 6 January 1994 (T5), Dr D.F. Davey, medical examiner, noted that the applicant had developed an oral "tic" after his service in Vietnam, and that he was easily irritated or upset and driven to temper, especially in situations of frustration, criticism, teasing or pressure. He considered the applicant ...a simple fellow with poor emotional or mental resources.

14. In a report dated 21 June 1994 (T6), Dr M. Benjamin, psychiatrist, stated that the applicant, who had left the Army six months previously, was having difficulty adjusting and was consuming alcohol heavily. Dr Benjamin diagnosed mild symptoms of anxiety associated with irritability and explosiveness. Dr Benjamin stated that the applicant reported that he was nervy when he left Vietnam but not as nervy at the time he saw him. Dr Benjamin said that he could not attribute the applicant's state to war or other service. He said that the applicant presented as a solitary person who had lost the supporting environment that he had in the army for 27 years. He said that there was no history to suggest post traumatic stress disorder (PTSD) and he would not attribute his nervous state to war service but to a personality pattern reinforced by the security of the army and lost to him after discharge.

15. In a written report dated 11 June 1996 (T8), Dr D. Shum, consultant psychiatrist, noted the applicant's deprived childhood, and stated that the applicant suffered ill treatment in the army due to his illiteracy. Dr Shum recorded that the applicant described himself as a nervy person and as having developed a nervous rash and excessive sweating in Vietnam that led to hives all over his body and disturbed sleep. Dr Shum referred to the applicant's lack of temper control being exhibited against officers and to one incident when he threatened to shoot a fellow soldier and was confined to barracks for four weeks. Dr Shum gave the opinion that there were no symptoms of depression, PTSD or other psychiatric conditions but diagnosed ...A Generalised Anxiety Disorder of moderate intensity, ... likely to have been escalating slowly over the past30 years.. He also considered that there were traits of attention deficit disorder and dyslexia. He said that all conditions were biological, but that it was likely that the stress of war had aggravated his symptoms during and immediately after service in Vietnam.

16. In a form headed "Medical Examination - Psychiatric" dated 22 February 1997 (T10), Dr J. Newman, general practitioner, stated that the applicant had chronic anxiety with inability to function in crowds and relate to people. In regard to the condition of acne with folliculitis (a condition accepted as being due to war service), Dr Newman commented that the applicant developed a non-specific skin irritation that probably related to his anxiety. In a document dated 4 September 2000 (T18) Dr Newman referred to the applicant as having the conditions of stress disorder and alcohol dependence.

17. In a written report dated 10 July 1997 (T11). Dr N. Pomorin, consultant psychiatrist, referred to the provocation incident and the applicant's feeling that others looked down on him which led to outbursts of temper. He referred to the friend's death incident, but Dr Pomorin did not consider that any of the stressful events were sufficiently emotionally traumatic to satisfy the criteria for PTSD. Dr Pomorin stated that he was unable to elicit any symptoms of anxiety. He diagnosed alcohol dependence reactive to stresses as a result of the applicant's service in Vietnam but found that the applicant did not suffer from PTSD, depressive illness or personality disorder.

18. In a written report dated 29 July 1997 (T12,) Dr F.J. Morgan, senior medical officer (appeals) with the Department of Veterans' Affairs, stated that he agreed with the four psychiatric reports (Drs Taylor, Benjamin, Shum and Pomorin) that the applicant did not have PTSD. Dr Morgan considered that the applicant suffered from an anxiety state and alcohol dependence, the latter attributable to service in Vietnam but the former not so attributable.

19. In a written report dated 2 June 2000 (Exhibit R3), Dr M. van der Linden, consultant psychiatrist, stated that the applicant had numerous symptoms of PTSD including anxiety, nightmares, insomnia, and marked irritability. He noted that the applicant was alcohol dependent and experienced withdrawal symptoms, blackouts and memory loss. Dr van der Linden referred to the applicant's difficult childhood. He diagnosed alcohol dependence with a possible underlying PTSD. In a report dated 17 October 2000 (T22), Dr van der Linden stated that the applicant's general practitioner, Dr Newman had referred the applicant to him, with a worsening history of nightmares and appearances of a person he almost shot as a soldier in Vietnam. It was reported to Dr van der Linden that the applicant increased his  alcohol consumption to deal with his worsening symptoms. In his report Dr van der Linden said that the applicant told him that in Vietnam he was frightened at times and was very frightened during the artillery fire incident but the  most  memorable incident was the provocation incident. The applicant told Dr van der Linden that in the random firing incident he thought that he was going to die. Dr van der Linden recorded that the applicant told him that an M60 machine gun was fired. The applicant also told Dr van der Linden that he began drinking heavily in Vietnam to quieten the nerves and to be less tense and frightened.

20. In oral evidence Dr van der Linden stated that he had treated the applicant for over two years, focussing on his alcohol abuse but also treating him with tranquillisers and anti-depressants. Dr van der Linden considered that the random firing incident was the most important as a stressor, to support a diagnosis of PTSD. Under cross-examination, Dr van der Linden acknowledged that, if the random firing incident were found not to have occurred, and thus was removed as the stressor for a diagnosis of PTSD, then the preferred diagnosis would be that of generalised anxiety disorder.

21. In a written report dated 26 November 2001 (Exhibit R1), Dr L. Walton, consultant psychiatrist, stated that the incidents described by the applicant were not sufficient to fulfil the criteria for a severe stressor under the Statement of Principles (SoP) for PTSD unless the random firing incident were accepted. Dr Walton stated that the applicant told him that the onset of psychiatric symptoms was in Vietnam. Dr Walton noted that the applicant has an anxious concern that he may behave violently towards others.

22. After considering other psychiatrists' opinions in this case, as provided to him for the purposes of preparing his report, Dr Walton stated that he considered that, clinically, the applicant had a history of chronic anxiety.. Because the applicant related stressful events to him, Dr Walton considered that PTSD would be the preferred diagnosis, rather than anxiety. The anxiety problems, he said, would be subsumed under the diagnosis of PTSD and he confirmed that symptoms of PTSD could also be symptoms of anxiety condition and of alcohol dependence. Dr Walton stated that the applicant suffers from excessive anxiety, overlapping with alcohol dependency. In his written report he said:

Thus I find myself in a rather confused situation of not preferring a clinical diagnosis of an anxiety disorder but, if the veteran's account of his military service and his response to the situation where he alleges he was shot at is accepted, then he would seem to meet the relevant Statement of Principles in relation to anxiety disorder.

23. In regard to the provocation incident, Dr Walton said that the applicant was vulnerable, and likely to react more adversely than would a person with more robust self-esteem. Dr Walton said that it was possible that such an incident would trigger the development of an anxiety condition and agreed that it could have exacerbated an anxiety condition if the applicant had one prior to service.

24. In a written report dated 31 August 2001 (Exhibit R2) Lieutenant-Colonel H. Conant (retired), of Writeway Research Service, stated that in compiling his report he researched the Vietnam Database of all activities of interest within a radius of 30-40 kilometres of Nui Dat. He also referred to the Vietnam Casualties List, records of the 4th Field Regiment and his own knowledge of operating procedures in Vietnam. In relation to the random firing incident Mr Conant could find no report that related to a New Zealand soldier firing shots from outside the perimeter fence that hit tents within the base. While he found some reports of incidents involving shots and lights around perimeter positions, none matched the incident as described by the applicant.

25. In regard to the claim that during the artillery fire incident the applicant came under fire while assisting a New Zealand battery Mr Conant stated that there were two mortar attacks on Nui Dat during the time that the applicant was in Vietnam. The rounds fell south of the base but the noise would have been heard in the 108^th Field Battery accommodation lines. Mr Conant agreed that it would be unremarkable for the applicant to have assisted a New Zealand Battery to sustain firing when out on operations at a fire support base. In regard to the friend's death incident, Mr Conant confirmed that the applicant and Lance Bombardier Tregear were in the same unit, arriving in Vietnam together, and had trained together. He said the body would have been evacuated direct to mortuary facilities and not observed by the applicant.

26. In regard to the provocation incident Mr Conant could find no record of the applicant attending an education course in Vung Tau, though he noted that on later occasions the applicant failed promotion courses. He stated that there was no record of the applicant pointing a loaded weapon at another person, though he said it was possible that he was disarmed without the incident being reported. Mr Conant said that if observed, the matter would have been treated seriously and such an act, committed on active service, would have resulted in the applicant being brought before a military court.

CONSIDERATION OF THE ISSUES

27. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.

28. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact.

29. The SoP's relevantly raised in this case were those for PTSD (Nº 3 of 1999) and for anxiety disorder (Nº 1 of 2000).

30. The factors within SoP No 3 of 1999 that must be related to service are set out in clause 5 of the SoP as follows:

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 ... 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; ...

31. The SoP then provides in clause 8 (as amended by Instrument Nº 54 of 1999) that:

"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' Entitlement 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;

32. The SoP defines the condition of PTSD to mirror the requirement in the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition (DSM-IV) that for a diagnosis of PTSD the essential feature "...is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event ...".. The SoP states as follows in its definition of PTSD:

...

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

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

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

33. In SoP Nº 1 of 2000 for anxiety disorder, factor 5(a)(ii) and 5(a)(v)require:

...

(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; ...

(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or

Paragraph 8 of the SoP defines severe psychosocial stressor as:

...

"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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems...

34. Mr Liefman submitted that the evidence of Dr van der Linden and Dr Walton should be accepted in that, subject to the acceptance of the incidents relied upon by the applicant, the correct diagnosis was PTSD. Mr Leifman submitted that at least one incident (the random firing incident) was capable of being the severe stressor required by the SoP for PTSD. He submitted also that in regard to the friend's death incident, the applicant was confronted with an event that involved death and he experienced helplessness, within the definition of severe stressor in the SoP for PTSD. He also submitted that the artillery fire incident met the definition, though he acknowledged with the provocation incident the response of extreme fear, helplessness, or horror was absent. Mr Liefman submitted that the person's subjective response was paramount in assessing whether an incident was a severe stressor. He submitted that it is sufficient in this case that the applicant believed he was under attack in the random firing incident. Mr Liefman submitted that the evidence from Dr Walton and Dr van der Linden supported factor 5(a) in the SoP for PTSD being met. Therefore the hypothesis was reasonable, and the applicant satisfied the third and fourth steps of Deledio.

35. Mr Liefman said that Dr van der Linden's evidence supported an alternative diagnosis of generalised anxiety disorder. In regard to this alternative diagnosis he submitted that the four incidents relied upon by the applicant would each fit within the definition of severe psychosocial stressor in the SoP for anxiety disorder.

36. Mr Purcell submitted that the preferred diagnosis was generalised anxiety disorder and not PTSD. He said that under the SoP for PTSD it is necessary for the diagnostic criteria for the condition (clause 2(b)) to be met. He did not disagree that the applicant had demonstrated symptoms consistent with a diagnosis of PTSD. He submitted, however, that using an objective test, it could not be established that a traumatic event had occurred, consistent with the requirements of the SoP.

37. Mr Purcell submitted that Benjamin v Repatriation Commission (2001) 34 AAR 270 is authority for the contention that the standard of proof to be applied to the question of whether a veteran is suffering an injury or disease is that of the reasonable satisfaction of the decision maker: s120(4) of the Act. He submitted that the claim must fail as the Tribunal could not be reasonably satisfied that the applicant has PTSD.

38. In regard to the random firing incident Mr Purcell submitted that there were four versions given by the applicant and significant differences appeared in each account. Mr Purcell submitted that the evidence of the applicant was inconsistent, suggesting that he had problems with his memory, which may be related to his alcohol abuse. Mr Purcell submitted that the most detailed account of the random firing incident was that given to Dr van der Linden, and was the version referring to an M60 machine gun being used. It was on this account of the incident that Dr van der Linden based his diagnosis of PTSD. Mr Purcell submitted that, after thorough research by Mr Conant, the occurrence of the random firing incident could not be confirmed.

39. Mr Purcell submitted that the provocation incident could not be relied upon as a severe stressor (for PTSD) nor a severe psychosocial stressor (for anxiety disorder) because of the provision made in s9(3) of the Act that an injury or disease will not be compensible if it resulted from a serious breach of discipline committed by the veteran, or arose from an occurrence that happened while the veteran was committing a serious breach of discipline. Mr Purcell submitted that the evidence of Mr Conant was that threatening an officer was a serious breach of discipline.

40. Mr Purcell submitted that if the Tribunal is not satisfied of a diagnosis of PTSD, it must look at whether an alternative diagnosis was appropriate. He submitted that the alternative diagnosis of generalised anxiety disorder was made out, based on the applicant's medical history. He submitted however that factor 5(a)(ii) of the SoP requires that the person experience a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder. Mr Purcell submitted that the random firing incident, the death of a friend incident and the artillery incident did not meet the definition of severe psychosocial stressor in the SoP. Furthermore, he submitted that there was no evidence of clinical onset of anxiety disorder within two years of service in Vietnam. Rather, the evidence pointed to clinical onset in 1991 after the death of the applicant's mother and sister, and again, later in 1994, as a reaction to discharge from the army.

41. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions of the parties.

42. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that, when considering the first step, the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal had before it psychiatric evidence provided from numerous medical practitioners, giving a range of diagnoses. The first diagnosis of PTSD was that made by Dr van der Linden in 2001. Dr Walton supported that diagnosis. However, the strong impression that he gave in his report was that diagnosis in this matter was difficult. Dr van der Linden and Dr Walton were in agreement that if the random firing incident was not confirmed factually, as the severe stressor defined in the SoP for PTSD, then generalised anxiety disorder was the preferred diagnosis.

43. The Tribunal takes into account that, in the medical material which predates the reports of Dr van der Linden and Dr Walton, Dr J Taylor diagnosed anxiety and depression with underlying personality adjustment problems; Dr Davey referred to the applicant having an oral "tic" after Vietnam and as having a personality problem; Dr Benjamin diagnosed mild anxiety, along with difficulty adjusting to leaving the army; Dr Shum diagnosed generalised anxiety disorder (which he referred to as escalating for thirty years) as well as attention deficit disorder and dyslexia; Dr Newman diagnosed chronic anxiety, stress disorder and alcohol dependence; Dr Pomorin diagnosed alcohol dependence, ruling out PTSD, anxiety, depression, or personality disorder; and Dr Morgan diagnosed anxiety state and alcohol dependence.

44. As noted above, in written reports and oral evidence Dr van der Linden and Dr Walton were tentative on the diagnosis of PTSD. Each confirmed that this diagnosis depends on the acceptance of the occurrence of the random firing incident. Each said that in the absence of confirmation of this incident the preferred diagnosis would be anxiety disorder. Taken as a whole, the medical evidence, in particular the reports of Dr Davey and Dr Benjamin, suggests that the applicant had significant disturbance after returning from Vietnam. The VRB transcript refers to the applicant's mother's concern about changes when the applicant returned from Vietnam, and about threatened violence after his bouts of drinking.

45. In the psychiatric reports, which predate those of Dr Walton and Dr van der Linden, the incident most frequently referred to is the provocation incident. The applicant gave evidence before the VRB (exhibit R4) and told Dr van der Linden that the nightmares that he suffers involve visualising the Bombardier whom he threatened in the incident. This incident is referred to in Dr Benjamin's report. For the alternate diagnosis of PTSD, reliance is placed on the random firing incident, the first mention of which occurs in 2000 to Dr van der Linden. It is the provocation incident that Dr van der Linden identifies as being the incident most affecting the applicant's mental state. Dr van der Linden acknowledged in oral evidence that the other incident that the applicant discussed may meet the definition of severe psychosocial stressors as defined in the SoP for anxiety disorder (transcript p44).

46. The evidence of Dr Walton was that the presence of alcohol abuse disorder in this case makes diagnosis more difficult. This condition affects the applicant's memory so that his recall of the incidents is partial. Dr Walton said in evidence the symptoms of PTSD, anxiety disorder and alcohol abuse could be mistaken for one another. Taking into account the medical evidence as a whole, and the reservations that Dr Walton and Dr van der Linden had about their own diagnoses of PTSD, the Tribunal is reasonably satisfied that the correct diagnosis in this case is anxiety disorder and not PTSD.

47. The relevant SoP for anxiety disorder is Instrument No 1 of 2000. Applying Deledio, the Tribunal is satisfied that the material points to a hypothesis connecting the applicant's anxiety with the circumstances of the particular service rendered by him, so that the first and second steps in Deledio are satisfied.

48. In respect of the third step, the factors that are raised, as set out above at para 33, are 5(a)(ii) and 5 (a)(v) based upon the evidence of Dr Walton that the applicant may have had an anxiety disorder prior to service.

49. In respect of the third step, for a hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. In relation to factor 5(a)(ii) of SoP Nº 1 of 2000, it is necessary that the evidence points to incidents that meet the definition of severe psychosocial stressor and that the evidence points to the onset of anxiety disorder within two years of the experience of those incidents.

50. The definition of severe psychosocial stressor, while more comprehensive than was the definition of stressful event in the preceding SoP for generalised anxiety disorder (SoP no 49 of 1994) is not dissimilar in its terms. The Federal Court looked at the definition of stressful event in that SoP, in O'Neil v Repatriation Commission (2001) 34 AAR 290. In that case North J said that the definition, which provided that a stressful event means an occurrence which evokes feelings of anxiety or stress, requires that a decision-maker look at the experience, which will be something peculiarly personal and dependent upon subjective feelings. He said that the task of the Tribunal was to determine whether it could be satisfied that the applicant actually subjectively felt anxious. He rejected the submission that a decision-maker had to make a separate (`objective') assessment of whether an occurrence was of such a character that it could fall within the description of an occurrence that evoked feelings of anxiety or stress. He said, at p292:

... It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.

51. Though the definition of severe psychosocial stressor in the current SoP is more detailed, particularly in the examples it gives, the same approach as set out in O'Neil applies. The task of the decision-maker is to be satisfied to the relevant level that there was an identifiable occurrence and that the person experienced substantial distress in reaction to it.

52. When speaking to medical practitioners the applicant makes particular reference to the random firing incident, the provocation incident and the death of a friend incident. In his written report Dr van der Linden noted of the provocation incident: ...he believed that the most memorable aspect of his time in Vietnam was having failed in an education course in Vung Tau and being denigrated by fellow soldiers (T22). Dr Pomorin's report (T8) and Dr Walton's report (exhibit R1) also refer to that incident.

53. The evidence from Mr Conant was that there was no record or investigation of the random firing incident, even though the incident, as related by the applicant, would be a serious matter and was said to have been observed by others. The death of a friend incident is confirmed by Mr Conant's evidence. The applicant's oral evidence was that he still thinks about his dead friend. Detailed evidence about the friendship was presented to the VRB.

54. The Tribunal accepts that that the provocation incident was of great significance to the applicant. His evidence was clear on this issue. It was not an occurrence that could be confirmed by Mr Conant, whose evidence was that it was unlikely that an event of this importance would be unreported. However he acknowledged that if others restrained the applicant, it could have escaped reporting. That incident is an identifiable occurrence that fits within the definition of a severe psychosocial stressor and within the reference in both factors 5(a)(ii) and 5(a)(v).

55. The death of the friend incident also fits within the definition, as the definition provides for distressed reactions to the death of a friend or relative. The death is confirmed in the written report of Mr Conant. The evidence given to the VRB was that the applicant remains affected by the death and still has photos of himself taken with Mr Tregear, which distress him (exhibit R4). As the evidence points to these as identifiable occurrences it is not necessary for the Tribunal to look further to the other two incidents relied upon by the applicant.

56. The factors in the SoP for anxiety disorder also require that clinical onset occur within two years of the experiencing of a severe psychosocial stressor.. The Tribunal took into account the evidence of Dr Shum that the applicant developed a nervous rash and excessive sweating in Vietnam, and hives all over his body and disturbed sleep (T8). Dr Shum diagnosed generalised anxiety disorder likely to have been escalating slowly over the past 30 years which dates onset to 1966. Dr Davey refers to the applicant having developed an oral `tic' after Vietnam and stated that any situation of frustration, criticism, teasing or pressure will precipitate symptoms. In his report, above the word teasing Dr Davey wrote re `tic' (T5). Dr Newman stated that the applicant developed skin irritation, probably related to anxiety and saw this symptom as a major problem (T10). Dr van der Linden (T22) emphasised the provocation incident and stated also that the applicant drank heavily in Vietnam to quieten his nerves and to be less tense and frightened.

57. The respondent submitted that the evidence of onset is at the death of the applicant's mother and sister or at the time of his discharge from the army in 1994. The Tribunal accepts that the applicant had episodes of anxiety or depression in 1991 and 1994. However, on the basis of the recorded symptoms immediately after the applicant's Vietnam service, the onset of an anxiety condition is earlier, though it may have been complicated in its presentation by the presence of alcohol abuse disorder. Furthermore, based on Dr Walton's evidence and Dr Shum's report, it may be the case that the applicant had an anxiety condition prior to service and that an incident such as the incidents on service led to a worsening of that condition. Factor 5(v) in the SoP would then apply.

58. On the whole of the material, the clinical onset of psychiatric problems consistent with a diagnosis of anxiety disorder is indicated as occurring within two years of service. The hypotheses raised in this case connect the occurrence of incidents with the medical evidence of symptoms of anxiety within the relevant time. This fits the template in the SoP for anxiety disorder, and the hypotheses can therefore be taken to be reasonable, whether the anxiety condition is one that commenced on or shortly after service, or whether service aggravated a pre-existing anxiety condition.

59. In applying the fourth step in Deledio, the Tribunal must grant the claim unless satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained. The Tribunal accepts the evidence of the applicant, and finds as a fact, that the provocation incident occurred and that his reaction was one of uncontrolled distress and anger. The medical reports and the evidence of what the applicant has said to psychiatrists, show that the incident resulted in ongoing symptoms. The Tribunal accepts the evidence that symptoms of an anxiety state were present during and immediately following the applicant's Vietnam service. This means that the hypothesis connecting the provocation incident with the onset of an anxiety disorder is not disproved beyond reasonable doubt.

60. The Tribunal considered the respondent's submission that the provocation incident is ruled out under s9(3) of the Act, which provides, as exceptions to the provisions otherwise made in s9 for injuries or diseases to be taken as war-caused, the following:

...

(3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:

(a) resulted from the veteran's serious default or wilful act; or

(b) arose from:

(i) a serious breach of discipline committed by the veteran; or

(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.

61. While the action by the applicant, of threatening the Bombardier, would be a serious default or a serious breach of discipline, the sub-section requires that the injury or disease resulted from the serious default or that it arose from the serious breach of discipline. The injury or disease in this case is an anxiety disorder arising from provocative insulting language, used to a person who, on all the evidence, was peculiarly vulnerable, based on his personality, illiteracy and learning difficulties. The injury here results from that provocation, not from the veteran's default or wilful act (s9(3)(a)). Nor did the injury arise from serious breach of discipline on the part of the applicant for the same reason (s9(3)(b)(i)). In considering whether the injury or disease arose from an occurrence that happened while the veteran was committing a serious breach of discipline (s9(3)(b)(ii)), this injury has arisen from the provocation by the Bombardier. The Bombardier's act is separate from the applicant's reaction to it. The Tribunal finds that the injury has not arisen from the applicant's subsequent threatening action to the Bombardier. His reaction was a serious breach of discipline but in the sequence in which the events occurred, the applicant was not the deliberate creator or author of his own injury or disease: Repatriation Commission v Levi (1994) 61 FCR 189.

62. The Tribunal further finds that the death of a friend incident is an incident in regard to which a reasonable hypothesis is raised and not disproved. Mr Conant confirms the evidence of the applicant in regard to that occurrence. Therefore the applicant's claim is made out on the bases of the provocation incident and the death of a friend incident.

63. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that anxiety disorder is not a war-caused condition for the purposes of s120(1) and so finds that the condition is war-caused within the meaning of s9 of the Act.

DECISION

64. The Tribunal sets aside the decision under review and substitutes the decision that the applicant's anxiety disorder is war-caused within the meaning of the Act with effect from 4 June 2000. The matter is remitted to the respondent for assessment of the rate of pension.

I certify that the sixty-four [64] preceding paragraphs are a true copy of the reasons for the decision herein of

M.J. Carstairs, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 14 August 2002

Date of decision: 31 January 2003

Solicitor for applicant Mr P. Liefman, Peter J. Liefman

Counsel for respondent: Mr G. Purcell

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