Gawley and Repatriation Commission [2010] AATA 1017 (17 December 2010)

DECISION AND REASONS FOR DECISION [2010] AATA 1017

The Tribunal affirms the decision made by the Veterans' Review Board on 28 February 2008

VETERANS' AFFAIRS - disability pension - anxiety disorder - depressive disorder - dysthymic disorder - alcohol abuse - alcohol dependence - post traumatic stress disorder - experiencing a severe stressor - traumatic event - standard of proof - diagnosis of post traumatic stress disorder - reasonable hypothesis - clinical onset - category 1A stressor - category 1B stressor - experienced witnessed or having been confronted with an event - DSM-IV-TR - DSM-IV - stressors including work conflict with children - suicide - psychologist - psychiatrist - diagnostically meaningful trauma - meaning of a threat - confronted physically - confronted in the mind - actual threat of death or serious injury - attributable to operational service

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437

Law v Repatriation Commission (1980) 29 ALR 64

Mines v Repatriation Commission [2004] FCA 1331; [2004] 86 ALD 62

Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 51 ALD 519

Re Gawley and Repatriation Commission [2009] AATA 284

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581

Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108

Repatriation Commission v Smith (1987) 15 FCR 327

Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283

Walsh v Rother District Council [1978] 1 ALL ER 510

Woodward and Another v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473

Repatriation Act 1920

Veterans' Entitlements Act 1986 ss 7, 9, 9A, 13(1), 120, 120A, 120A(3), 120(1), 120(3), 120(4), 196B(2), 196B(11)

Statement of Principles - Alcohol Dependence and Alcohol Abuse - Instrument No 76 of 1998

Statement of Principles - Alcohol Dependence and Alcohol Abuse - Instrument No 17 of 2008

Statement of Principles - Alcohol Dependence and Alcohol Abuse - Instrument No 1 of 2009

Statement of Principles - Depressive Disorder - Instrument No 17 of 2007

Statement of Principles - Depressive Disorder - Instrument No 27 of 2008

Statement of Principles - Post Traumatic Stress Disorder - Instrument No 5 of 2008

Statement of Principles - Post Traumatic Stress Disorder - Instrument No 3 of 1999 as amended by No 54 of 1999

American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edn

Chamber's 21st Century Dictionary

1. On 14 February 2007 Mr Ronald Gawley lodged a claim with the Repatriation Commission (the Commission) seeking a disability pension for what he described as anxiety/depressive disorder and alcohol abuse and dependence. Subsequently, Mr Gawley's claim was amended and he claimed he suffered from anxiety disorder and post traumatic stress disorder (PTSD); and his alcohol claim was later changed to alcohol abuse. On 29 June 2007 the Commission notified Mr Gawley that it refused his claim because those conditions were not related to his military service. It appears Mr Gawley also lodged an application for an increase in the rate at which his pension was paid. The Commission refused that claim, finding his disability pension was to be continued at 80 per cent of the general rate.
2. Mr Gawley sought a review of the Commission's decision by the Veterans' Review Board (VRB). On 30 August 2007 the VRB affirmed the Commission's decision.
3. Mr Gawley then sought review of the VRB decision by this Tribunal. On 27 April 2009 the Tribunal affirmed the VRB decision (see Re Gawley and Repatriation Commission [2009] AATA 284).
4. Dissatisfied with the Tribunal's decision, Mr Gawley appealed to the Federal Court of Australia (Federal Court). Prior to the Federal Court hearing the appeal, the parties agreed that the Tribunal had erred in law when interpreting the expression experiencing a severe stressor. The only order made by the Federal Court was that the matter be remitted to the Tribunal for further hearing and determination according to law.
5. The effect of the consent order allowing the appeal and setting aside the decision of the Tribunal means there is no operative Tribunal decision. A fresh determination must be made (see Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 51 ALD 519 and 532). There was no issue between the parties about the hearing of further or new evidence. Furthermore, there was no dispute about the fact that we should rehear all of the issues in contention in this matter. The issues which we must determine are:

1. The process of determining whether a disease or injury is war-caused involves an antecedent decision about the disease or injury from which a veteran claims he or she suffers. The problem with cases involving PTSD is that the question whether that disease is suffered by the veteran is bound up with the question of connection with war service. A diagnosis of PTSD requires identification of a traumatic event which is of such a nature that it could give rise to the disease in question. As Gray J explained in Mines v Repatriation Commission [2004] FCA 1331; [2004] 86 ALD 62, in cases involving PTSD, the diagnosis involves two questions. The first is whether the person is suffering from symptoms which, if the traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
2. Gray J also suggested that there might be more than one possible traumatic event and that there might be a question as to which event is responsible for the PTSD claimed. If any one of those possible traumatic events is not associated with a veteran's war service, the decision maker needs to resolve the question whether the symptoms result from the events associated with the veteran's war service, or with the other event or events.
3. Before outlining the two possible processes of reasoning suggested by Gray J in Mines case, one needs to understand the operation of s 120 of the VE Act dealing with standard of proof. Relevantly, s 120(1) of the VE Act provides:

120 Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

. . .

. . .

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

. . .

1. Because the decision regarding diagnosis is distinct from the decision about whether the disease is connected to a veteran's operational service, the standard of proof which must be applied to the diagnosis is that set out in s 120(4) of the VE Act. In other words, we must decide the question of diagnosis to our reasonable satisfaction (see Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) of the VE Act . . . decide the matter to its reasonable satisfaction, was comprehensively analysed by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:

Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. . . .

This means that we are required to decide the question of diagnosis on the balance of probabilities.

1. Gray J in Mines case stated that more than one process of reasoning was possible when determining the question regarding the diagnosis of PTSD. He said, at 71-72:

. . . The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD. If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran's operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt. It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt. The steps required by Deledio [Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82] would be satisfied without difficulty. . . .

1. The alternative process of reasoning suggested by Gray J is to treat all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered by a veteran, on the reasonable hypothesis basis required by s 120(1) of the VE Act. According to his Honour, a decision-maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent with the finding of PTSD. The question of whether there was PTSD would be determined on the reasonable hypothesis basis, using the four steps referred to in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
2. Gray J said, despite what was said in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564, the Full Court of the Federal Court has consistently followed the first process of reasoning to which we have referred above. The process, he said at 73-74, was:

'The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.'

1. While we have no doubt that the process described by Gray J is correct, and in any event, we are bound to follow it, since his Honour decided Mines case, the Statement of Principles (SoP) dealing with PTSD has altered. The current SoP, which took effect from 9 January 2008, is Instrument No 5 of 2008. The significant difference between the current SoP and the SoP which was current at the time Gray J decided Mines case, lies in the factors which must exist before it can be said that a reasonable hypothesis has been raised connecting the disease with the circumstances of the person's relevant service. In the SoP which was current at the time of the Mines decision (Instrument No 3 of 1999 as amended by No 54 of 1999), one of the factors which had to exist was described as experiencing a severe stressor prior to the clinical onset of PTSD. The expression, experiencing a severe stressor, was defined in terms identical to Criterion A1 which is set out in DSM-IV-TR (4th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders) as follows:

A. The person has been exposed to a traumatic event in which both of the following were present:

1. 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.

2. the person's response involved intense fear, helplessness, or horror.

1. However, in the current SoP, that factor is now described as experiencing a category 1A stressor before the clinical onset of PTSD or experiencing a category 1B stressor before the clinical onset of PTSD. The definitions of a category 1A stressor and a category 1B stressor are no longer consistent with Criterion A1 in DSM-IV-TR. A category 1A stressor involves experiencing a life threatening event but no longer includes being confronted with such an event. It includes being subject to a serious physical attack and being threatened with a weapon, being held captive, being kidnapped or being tortured; but there is no reference to events concerning persons other than the veteran. The definition of category 1B stressor includes being an eyewitness to a person being killed or critically injured; being an eyewitness to atrocities inflicted on another person or persons; being an eyewitness to or participating in the clearance of critically injured casualties; viewing corpses or critically injured casualties as an eyewitness; or killing or maiming a person. While some of the events described under the definition of a category 1B stressor could fit the description of being confronted with events involving death or serious injury, the effect of the definition is to significantly narrow the nature of events which fit the description.
2. The problem which we perceive exists under the current SoP concerning PTSD is the fact that Criterion A in DSM-IV-TR continues to refer to a person being confronted with an event that involved actual or threatened death or serious injury or threat to the physical integrity of self or others. However, to satisfy the definition of a category 1A stressor, a person must experience the events described under Criterion A. There is no reference to being confronted with any of those events. Under a category 1B stressor, there is a reference to being an eyewitness to events which might fall within the Criterion A description, as well as killing or maiming a person. There is no reference to being confronted with an event of the type described in Criterion A.
3. The difficulty we face is that the Full Court of the Federal Court in Woodward and Another v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 () rejected the notion that being confronted with an event meant that the person had to be present in the sense that they either experienced or witnessed the event. The Court said, at 495:

The definition of "experiencing a severe stressor" has three elements that relate to a person's encounter with an event involving death -- the person must have "experienced, witnessed or [have been] confronted with an event that involved death ...". Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be "confronted with" an event that he or she has neither experienced nor witnessed.

In any event, as a matter of ordinary usage to be "confronted" with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he "confronts". This is no less the case when the confronting event [sic] is one involving death or serious injury.

1. Therefore, while the diagnostic criteria set out in DSM-IV-TR might be met, thereby permitting a diagnosis of PTSD, when it comes to applying the factors which must be present before it can be said that a reasonable hypothesis has been raised connecting a claimant's PTSD with the circumstances of his or her relevant service, they may not be able to satisfy the category 1A or category 1B stressor definitions. For example, if a veteran was confronted with (but did not witness or experience) an event which involved a threat to the physical integrity of self or another person, while that could satisfy Criterion A of DSM-IV-TR, it would not fall within the category 1A or category 1B stressor definitions. If we are correct about that, what Gray J said in Mines case regarding the first process of possible reasoning may no longer apply. That is, it is no longer possible to assume that if we are reasonably satisfied on the balance of probabilities that a traumatic event confronted during operational service led to the PTSD, there will exist a reasonable hypothesis sustained by reference to the SoP. While this appears to be an anomaly created by the amended SoP No 5 of 2008, we must deal with it as best we can having regard to the processes outlined by Gray J in Mines case.
2. We also need to be mindful of what the Full Court said in Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200 regarding the characterisation of the disease suffered by a veteran. The Full Court said, at 207-208:

. . . This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence . . . shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).

1. To assist us in determining these issues, we have analysed various medical reports and clinical notes.
2. We had in evidence clinical notes from Dr Harold Cashmore, Mr Gawley's general practitioner, from as early as 1977. The notes indicate that Mr Gawley consulted Dr Cashmore in March 1992 about his claims for a pension under the VE Act, in respect of tinea. However, there is nothing in the clinical notes which would suggest that Mr Gawley was suffering from anxiety, depression or alcohol abuse or dependence until the unfortunate event of Mrs Gawley's suicide on 29 March 1994. This event, understandably, was extremely distressing for Mr Gawley and in a consultation some two weeks after Mrs Gawley's funeral, Dr Cashmore recorded that Mr Gawley was exhibiting symptoms indicative of depression. Dr Cashmore also recorded that in April 1994 Mr Gawley was receiving counselling from a psychologist at Veterans' Affairs. Dr Cashmore recorded that Mr Gawley was experiencing anger, guilt, blame and sadness following his wife's death. It is also from about this time that Dr Cashmore records in his clinical notes the fact that Mr Gawley had problems sleeping. There is nothing of this nature recorded in the clinical notes between 1977 and 1994.
3. It was only in March 2000 that Dr Cashmore's clinical notes first referred to PTSD, depression and stress. This was when Dr Cashmore assisted Mr Gawley when he made a claim regarding PTSD. However, Dr Cashmore did not mention any alcohol problems in his clinical notes at this stage. In a consultation on 2 October 2000, Dr Cashmore recorded that Mr Gawley's attempt to increase his pension to 80 per cent of the general rate was disallowed and he made the note: PTSD à hasn't got it. There was also a reference to grog abuse.
4. Dr Cashmore's clinical notes indicated a consultation on 28 November 2002 where he took a history of depressed mood for a period of five years. He diagnosed reactive depression. In a note made on 26 November 2004, Dr Cashmore indicated depression and PTSD were discussed. On 3 August 2006 the clinical notes of Dr Cashmore refer to PTSD having been diagnosed. This was following Mr Gawley's admission to the Heidelberg Repatriation Hospital (HRH).
5. Mr Gawley was examined by Dr David Baron, a psychiatrist, on three occasions in 2000. These examinations were apparently conducted on behalf of the Department of Veterans' Affairs (DVA) and they appear to relate to Mr Gawley's claim at that time. Dr Baron provided a written report dated 14 June 2000 in which he diagnosed Mr Gawley as suffering from chronic anxiety disorder.

[they] would apply the Statement of Principles in a draconian way, and would certainly find against his claims on all counts. I have enough experience to be quite sure of this.

1. In a subsequent hand written report dated 21 August 2002, Dr Seabridge explained that there was no way that the VRB would accept Mr Gawley's South Vietnam experience as fulfilling the SoP. He said there was nothing to substantiate a finding of anxiety within 12 months of his service. He also said:

He certainly could not establish a diagnosis of PTSD, with even stricter criteria and the same criteria would be required to substantiate alcohol abuse.

1. In 2006 Mr Gawley presented himself to the Vietnam Veterans' Counselling Service and was admitted to the HRH. The reason for his admission appears to have been low mood and suicidal ideation. A discharge summary dated 7 August 2006 records that his low mood and suicidal ideation was in the context of a number of stressors, including conflict with his children, his wife's son being diagnosed with cancer and work stressors. Mr Gawley reported feeling low in mood with sleep and appetite disturbance, poor concentration and suicidal ideation. That had been ongoing since his wife died some 12 years ago. In fact, Mr Gawley's wife committed suicide in 1994.
2. A summary of the clinical notes made by the HRH stated that Mr Gawley believed his wife's suicide was due to his work habits, putting in too many hours per day and hardly ever at home. He also put it down to his mood swings and often violent nature when he consumed alcohol. The discharge summary also reported Mr Gawley as stating that he had recurrent nightmares of his experiences in Vietnam, flashbacks, hyper-arousal and avoidance of Vietnam related events. He was drinking three to four cans of beer on a daily basis plus binge drinking every 10 or so days. The summary report was prepared by a Registrar in the Veterans' Psychiatry Unit.
3. Dr Caroline Fisher, a neuropsychologist, prepared a neuropsychology assessment report dated 4 December 2006. According to Dr Fisher, Mr Gawley was referred for evaluation due to observed difficulties on cognitive screening measures in the areas of executive functioning and tension. Dr Fisher reported that Mr Gawley exhibited shaking in his hands when participating in writing tasks and was told by Mr Gawley that this often occurs when he is nervous. She said his affect was anxious. Dr Fisher reported that mild to moderate difficulties were observed with concentration, information processing speed and planning. She said it was somewhat difficult to interpret the results of the testing because Mr Gawley told her he had consumed around 10 standard drinks the night before his morning assessment. However, she noted that he did not appear intoxicated during the assessment and did not smell of alcohol. Dr Fisher reported that there were no other significant cognitive difficulties observed in the areas of memory, language, visuo-perceptual and spatial processing, or executive functioning.
4. Dr Frederick Stamp, a psychiatrist, wrote to Dr Cashmore on 4 September 2004 reporting that Mr Gawley continued to receive treatment from the Repatriation Hospital for alcohol problems and continued to be reviewed for his mood disturbance. In that letter, Dr Stamp said:

He is endeavouring to get an increase pension however with the Veterans' Affairs advocate states that he has no chance since there is no specific incident.

1. As we understand it, Dr Stamp's reference to no specific incident is a reference to experiencing a stressor as defined in the SoP concerning PTSD. Dr Stamp suggested that such an incident could be the fact that Mr Gawley was bitten by a monkey when in Vietnam and required rabies shots. He suggested that such an event would raise the fear of contracting an incurable disease such as rabies and the prospect of prolonged and very uncomfortable treatment with rabies shots.
2. Dr Stamp examined Mr Gawley in 2006. This followed Mr Gawley expressing suicidal ideation while intoxicated. Dr Stamp reviewed Mr Gawley at approximately monthly intervals. He provided a report dated 11 May 2007. Dr Stamp took a history from Mr Gawley about his military service in Vietnam. Dr Stamp stated that Mr Gawley experienced significant apprehension following a monkey bite. He also experienced apprehension when doing patrols, although he claimed the first two patrols were uneventful. The third patrol caused him significant anxiety because it was conducted at night and a number of flares were fired, illuminating the ground in the immediate vicinity. He could hear gunfire but he didn't know where it was coming from. He was left in a state of considerable uncertainty and confusion. Mr Gawley also told Dr Stamp about being charged with being absent without official leave (AWOL) while in Australia on R & R. Those are the only matters recorded by Dr Stamp which related to Mr Gawley's service in Vietnam.
3. Dr Stamp recorded that Mr Gawley experienced anxiety and sadness. He displayed marked anxiety in the course of his interviews with Dr Stamp. He said Mr Gawley tended to be preoccupied with his anxiety, his concern about security of work and his extended family relationships. Dr Stamp diagnosed Mr Gawley as having PTSD. He also noted Mr Gawley suffered from generalised anxiety disorder, and that some traits of anxiety and dependency were apparent.
4. Dr Stamp made a very brief report dated 21 August 2007, having reviewed Mr Gawley again after his claim for PTSD was rejected by the Commission. Dr Stamp said that Mr Gawley told him he was not drinking although he was of the view that the tone of Mr Gawley's reply suggested some drinking was continuing. He also recorded some mild initial insomnia and slightly impaired concentration. He found no significant vegetative symptoms of depression. He nevertheless accepted that Mr Gawley had PTSD.

(b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):

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

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

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

1. The Full Court of the Federal Court in Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 said that the approach mandated by a combination of the VE Act and the Full Court's decision in Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 required a sequential approach to be taken where the current SoP is different from that which was current at the time the Commission made its decision. The Full Court held that the correct approach was to first apply the current SoP to determine whether the hypothesis is upheld. If the hypothesis is upheld, we would not need to examine the superseded SoP. However, if the hypothesis is not upheld by the current SoP, we need to examine the superseded SoP in order to determine whether the hypothesis is reasonable.
2. SoP No 5 of 2008, which came to effect on 9 January 2008, at Clause 3(b), describes precisely the same diagnostic criteria in DSM-IV-TR as was the case for the diagnostic criteria under DSM-IV set out above.
3. Criterion A in DSM-IV requires the person to have experienced, witnessed or having been confronted with a particular event or events. We need to apply what the Full Court in Woodward's case said about being confronted with an event. That is because the three stressors which Mr Gawley has described; the mortar attack on the base at Nui Dat, seeing bodies of two Vietnamese persons lying on the ground and the night patrol where flares went up and he heard the sounds of gunfire, do not fit within the expression having experienced or witnessed an event or events that involved actual death or serious injury.
4. Although Mr Gawley said he observed the bodies of two Vietnamese lying beside a road, that incident does not fit the description of a person who witnessed an event which involved death. The expression clearly indicates that the person must be a witness to the killing of others. That was not the case as we understand Mr Gawley's description of that event.

1 a warning that one is going to or might hurt or punish someone. 2 a sign that something dangerous or unpleasant is or may be about to happen. 3 a source of danger.

1 to make or be a threat to someone or something. 2 to give warning of something, usually unpleasant or dangerous. 3 intr said of something unpleasant or dangerous: to seem likely to happen.

1. While we have no doubt that the risk of harm to Mr Gawley while at Nui Dat and while on the night patrol was present, those events as described by Mr Gawley do not satisfy the definition of a threat for the purposes of the VE Act.
2. Mr Gawley at various times referred to manning a guard post on the perimeter fence when he heard shots in the distance. He also reported seeing tracers from gunships in the distance. Although Mr Gawley described himself as being fearful the whole time he was at Nui Dat, again, there was no evidence at all of any threat which could properly be described as a warning or a sign that something dangerous or unpleasant was or might be about to happen.
3. The more difficult aspect of determining whether a person has been exposed to a traumatic event which fits the description in Criterion A1 of DSM-IV is whether a person was confronted with the events described therein. As the Full Court made it clear in Woodward's case, the expression confronted with something more commonly means being confronted with it in the mind rather than physically, although it may also be a reference to being brought face to face with something physically. Furthermore, the Full Court in Woodward's case agreed with what Mansfield J said in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283 regarding the subjective and objective elements which must be considered when determining the diagnostic criteria in Criterion A of DSM-IV. His Honour said, at 293:

The definition of "experiencing a severe stressor" relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity.

The adjectival clause "that involved actual or threat of death or serious injury ..." explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury.

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 (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.

1. We should also add that the Full Court in Woodward's case said, at 499:

We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.

1. While we have no doubt that Mr Gawley feared for his life during the time he was in Vietnam, and this is the way he described his response to being in South Vietnam in the claim form he lodged in October 2006, that by itself is not sufficient to satisfy Criterion A1 of DSM-IV. As for the particular stressors described by Mr Gawley, viewed objectively, there was no threat of death or serious injury to him or a threat to the physical integrity of himself or others.
2. Although Mr Gawley may have sincerely believed that his life was threatened as a consequence of the incidents he described, the problem for Mr Gawley is that, as Mansfield J said in Stoddard's case, the expression that involved actual or threat of death or serious injury ... contemplates an objective and assessable state of affairs. It does not provide for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within that description. In fact, the Full Court in Woodward's case made it clear that although it agreed with the reasoning of Mansfield J in Stoddard, it declined to express an opinion about a situation in which the perception of the threat, although real in the mind of an individual, is not objectively reasonable.
3. In this case, we are of the view that the events described by Mr Gawley as stressors fitting the description for a diagnosis under Criterion A1 of DSM-IV, judged objectively, do not fall within the description in DSM-IV. We therefore find that the incidents relied on by Mr Gawley do not satisfy Criterion A1 of DSM-IV. It follows that a diagnosis of PTSD could not be made based on the incidents recited by Mr Gawley.
4. Our findings regarding PTSD are not inconsistent with the majority of medical reports which were in evidence. Dr Baron diagnosed Mr Gawley as suffering from chronic anxiety disorder. Dr Stamp considered that Mr Gawley's general anxiety disorder and alcohol abuse constituted some 60 per cent of his problems, while PTSD constituted about 40 per cent of his problems. Dr Stamp based his diagnosis only on the patrol incident recited by Mr Gawley. Dr Seabridge was certain that Mr Gawley could not establish a diagnosis of PTSD. In his opinion, a more acceptable diagnosis was anxiety disorder. Although Dr Cashmore referred to PTSD in the course of treating Mr Gawley, he referred Mr Gawley to Dr Seabridge who disagreed with that diagnosis. Dr Baron also provided a report to DVA dated 14 June 2000, in which he described Mr Gawley as presenting with a number of anxiety symptoms, together with many symptoms of PTSD. He described Mr Gawley as having found his experiences in Vietnam as distressing and stressful, despite the fact that for much of the time he was a storeman at Nui Dat. After four patrol experiences, he had made no contact with the enemy. He said that severe homesickness and the constant thought that he was going to be killed were the main contributors.

as far as I can tell, there appears to be no mention of any mental health conditions which might have affected him before March of 1994, i.e. the time of his wife's suicide.

However, in arriving at his diagnosis, Dr Glaser qualified his opinion by noting that Mr Gawley claimed he was experiencing significant psychiatric problems before his wife's suicide. Therefore, Dr Glaser concluded that if Mr Gawley had been experiencing psychiatric problems prior to the death of his first wife, only then would it be reasonable to say that he had pre-existing, and currently ongoing psychiatric problems, which were related to his military service.

1. Dr Walton reported that Mr Gawley appeared to have first come to psychiatric attention in 1994 following his wife's suicide. Dr Walton referred to Mr Gawley's psychiatric history since 1994 and said that he could not diagnose PTSD, despite the fact that on examination, Mr Gawley was obviously distressed. His preferred diagnosis was dysthymic disorder. He also diagnosed alcohol dependency. Dr Walton also made the observation that Mr Gawley might meet the diagnostic criteria for PTSD resulting from his wife's death, however his clinical profile was not consistent with that disease.
2. In our opinion, Mr Gawley does not satisfy the criteria for diagnosis of PTSD. That finding is consistent with the reports of all medical practitioners who have examined Mr Gawley. Those who have suggested Mr Gawley exhibits symptoms of PTSD have noted that he had no psychiatric history prior to his wife's suicide in 1994 but subsequent to that event, his psychiatric problems became apparent. In our opinion, that event is the more likely trigger for Mr Gawley's current psychiatric problems. This is despite the fact that Mr Gawley expressed a view that it was his PTSD and his Vietnam experiences which led to his wife committing suicide. We cannot agree with that and prefer the views of the medical practitioners who have examined Mr Gawley, including Dr Cashmore, who has been Mr Gawley's general practitioner since about 1977. Accordingly, we find, on the balance of probabilities, Mr Gawley does not satisfy the criteria for a diagnosis of PTSD.

ANY OTHER PSYCHIATRIC CONDITION - DIAGNOSIS AND CLINICAL ONSET

1. The preponderance of medical evidence points to Mr Gawley suffering from a depressive disorder. In fact, Dr Cashmore recorded in his clinical note dated 5 February 1995 that Mr Gawley was showing signs of depression. He later described Mr Gawley's condition as reactive depression. Dr Cashmore referred Mr Gawley to Dr Seabridge in 2002. Although Dr Seabridge suggested anxiety disorder, he did so on the basis that it might be more acceptable to DVA. He did not appear to make a diagnosis of anxiety disorder. In 2000, Dr Baron described Mr Gawley's mental state as down in the mouth, withdrawn and extremely anxious. It appears Dr Baron focused on Mr Gawley's anxiety as he was sweating profusely during the three interviews he conducted. Dr Baron also referred to Mr Gawley's depression which he said was currently being treated. He nevertheless diagnosed chronic anxiety disorder.
2. In 2007 Dr Stamp recorded that Mr Gawley told him that his life fell apart totally following the death of his first wife. He also recorded Mr Gawley telling him that his current stressors included conflict with his daughter and sister-in-law, the remission of his son's cancer, his father-in-law's age and frailty, the lack of contact he has had with his own son and the uncertainty he experienced in his work situation. Dr Stamp recorded that Mr Gawley's affect was always apprehensive and anxious which interfered with his concentration. He described Mr Gawley as subjectively experiencing anxiety and sadness. He also displayed marked anxiety during the interviews and he seemed pre-occupied by his anxiety. Dr Stamp considered that Mr Gawley suffered from general anxiety disorder and alcohol abuse with symptoms of PTSD.
3. The clinical notes from the HRH record a final diagnosis of depression, adjustment disorder and alcohol abuse. Dr Fisher, in her neuropsychology assessment report recorded that Mr Gawley continued to exhibit high anxiety levels and lowered mood. On a self-report checklist of thinking changes, Mr Gawley endorsed a number of items indicating current anxiety and depressive symptomology including irritability, worrying, social isolation, feelings of depression and emptiness. The clinical notes made in the course of his admission at Heidelberg Hospital frequently refer to a lowered mood and, at times, anxiety.
4. Dr Thompson from the HRH described Mr Gawley's mental status on initial examination as:

Affect anxious and depressed with restricted range. Thoughts dream and form normal. Thought content was of depressive themes.

1. Dr Walton described his preferred diagnosis as that of dysthymic disorder. DSM-IV-TR describes the diagnostic criteria for dysthymic disorder. Criterion A refers to a depressed mood for most of the day, for more days than not, indicated either by subjective account or observation by others, for at least two years. Criterion B refers to the presence, while depressed, of two or more of the following:
   • (a) poor appetite or overeating;
   • (b) insomnia or hypersomnia;
   • (c) low energy or fatigue;
   • (d) low self-esteem;
   • (e) poor concentration or difficulty making decisions; and
   • (f) feelings of hopelessness.

Dr Walton was also of the opinion that the dysthymia did not become an established diagnosis until the aftermath of Mr Gawley's wife's suicide.

1. In our opinion, the medical evidence is consistent with the diagnostic criteria for dysthymic disorder as was the opinion of Dr Walton. Accordingly, we find on the balance of probabilities, that Mr Gawley does suffer from dysthymic disorder. We find that the clinical onset of dysthymic disorder was in 1994, following his wife's suicide.

ALCOHOL ABUSE - ALCOHOL DEPENDENCE - DIAGNOSIS AND CLINICAL ONSET

1. Mr Larkin submitted that we should find Mr Gawley suffered from alcohol abuse, and if we could not find that he suffered alcohol abuse, we should find that his alcohol abuse had now become alcohol dependence. In fact, Mr Larkin suggested that his alcohol dependence was now in remission.
2. In his written statement, Mr Gawley said that prior to service in Vietnam, he was an occasional light drinker of alcohol. He said that before his Vietnam tour, on average, he would consume alcohol not more than once every one to two weeks and on those occasions, he would consume not more than about two or three glasses of beer. Mr Gawley said that from fairly early in his Vietnam tour, he started drinking alcohol to excess because alcohol was readily available and cheap and he was encouraged to drink. He said there was little else to do in the off duty hours and there was some element of peer pressure. He also said that primarily, he drank to excess because he found alcohol tended to soothe his nerves. He said that after he returned from Vietnam, he drank alcohol every day and on most days he drank to excess. This caused some friction in his marriage.
3. Mr Gawley described having trouble settling down after his return from Vietnam and said that within 18 months, he had been employed in about 10 different occupations in the printing industry. After that, he obtained employment with Triset Business Systems (Triset) as a printer and he remained in that employment for about 20 years. Triset was subsequently bought out by Kalamazoo Business Systems (Kalamazoo). He was apparently successful in this employment, reaching the position of manager of Kalamazoo's Moorabbin printing workshop. After his wife's suicide in 1994, he ceased work and took about 12 months off. In 1995 he resumed work for about one month in a managerial position but was unable to cope. He ceased that employment and obtained employment as a forklift driver. Mr Gawley said that his current alcohol consumption was mainly under control although he tends to binge drink. He said he suffered binge drinking episodes approximately once every month.
4. The current SoP dealing with alcohol dependence and alcohol abuse, No 1 of 2009, states that for the purposes of the SoP, alcohol dependence and alcohol abuse mean a psychiatric condition that meets the relevant diagnostic criteria derived from DSM-IV-TR. Save for the fact that DSM-IV-TR now refers to substance dependence and substance abuse, the SoP simply substitutes the words alcohol dependence and alcohol abuse in the criteria set out in each of the DSM-IV-TR diagnostic criteria. Because there is some doubt about whether the symptoms disclosed by Mr Gawley fit the criteria for alcohol dependence, we have set out in full the description of each condition set out in the SoPs. They are:

"alcohol dependence " means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):

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

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

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

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

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

(a) the characteristic withdrawal syndrome for the alcohol; or

(b) the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.

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

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

(5) A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.

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

(7) The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).

"alcohol abuse" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):

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

(1) Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).

(2) Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).

(3) Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).

(4) Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).

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

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

1. The evidence regarding Mr Gawley's alcohol consumption was anything but clear. Mr Gawley completed an alcohol questionnaire for DVA in March 1994. On that questionnaire, he stated that he began to consume alcohol on a regular basis in 1969 as a result of the stress he felt being in a war zone. He described his alcoholic drinks as beer and on occasion spirits, and that he consumed approximately 6-8 cans on each drinking occasion. He said that he drank either every day or 2 to 3 times per week. Mr Gawley also responded that his alcohol consumption changed significantly approximately two to three years after discharge from the army. He said his consumption reduced to approximately one can of beer per week or less due to health. At that time, Mr Gawley was diagnosed with Gastro Oesophageal Reflux Disease (GORD). Mr Gawley also reported that he continued to consume alcohol, but less than once per week. The kind of alcohol he consumed was recorded as beer and on average, he said he consumed 6-8 cans on each occasion.
2. When taken to this document in cross-examination, and particularly to his report of having reduced his alcohol consumption within two to three years after discharge from the army to approximately one can of beer per week or less, Mr Gawley responded: I've lied. He said although he was not an alcoholic at that time, he was on the way. When it was put to him that his answers on that questionnaire were said to be true and correct, Mr Gawley responded by stating that people with drinking problems tend to lie about their alcohol consumption. We also note that Mr Gawley completed this alcohol questionnaire on 8 March 1994, which was some three weeks prior to his first wife's suicide.
3. On 26 April 2000, Mr Gawley completed another alcohol questionnaire for DVA. Although Mr Gawley said he did not fill out the form himself, but rather he believed an advocate from the Vietnam Veterans' Counselling Service completed it, he said he probably read it before signing it. On that questionnaire, Mr Gawley recorded that he began to consume alcohol on a regular basis on his posting to South Vietnam because it helped to quieten his nerves, the beer was cheap, and NCOs encouraged the drinking. He said he consumed beer every day and occasionally had spirits. He referred to binge drinking. In answer to a question about how much he consumed on each occasion, Mr Gawley said he drank until he couldn't stand up. He referred to drinking at least 10 cans of heavy beer. He also recorded that he had to reduce his consumption due to ill health but he did not record the amount of the change in consumption. In answer to the question whether he still consumed alcohol, he ticked the box and indicated that he drank three to four times per week, being beer and spirits, and he consumed 6-8 beers on each occasion and one bottle of bourbon per fortnight.

The horror, fear and helplessness during my period in SVN (South Vietnam), drove me to self medication, to try and forget.

1. In that claim form, he also set out his employment history for the previous 10 year period. He stated that between 1975 and 1995, he was a printer manager at Kalamazoo. When asked when he in fact became a manager there, his answer was in about 1990 or 1991. He worked there as a printer from 1975 through to 1995. He then recorded that in 1999 he had two jobs as a store person and following that he had another job as a store person with Sleepmaster where he was currently employed. He said that he was dismissed by a company named Omnitech in 1999 when he was working as a storeman due to alcohol abuse and his failure to fit in. His application form also records that he could not go back to Kalamazoo after leaving that managerial position because of the stress associated with it and he attributed that to his continuous anxiety and alcohol dependence. In his oral evidence, he said that he was drinking heavily while working at Kalamazoo. He said he was able to hide it and that the staff there would cover for him. After the death of his first wife, he had some time off work. He said he was offered a job with Kalamazoo in Sydney but declined. The plant in Melbourne was closing. After a while out of employment, he obtained work as a forklift driver which is what we understand he has described in his application form as a store person.
2. In 2006 Mr Gawley sought medical intervention for his alcohol consumption through the HRH. The clinical notes from the HRH indicate bouts of drinking after or in response to distressing events.
3. Records from the Roads Corporation Victoria indicate that Mr Gawley was convicted in 2002 of driving while exceeding the prescribed concentration of alcohol. He had a blood alcohol reading of .152%. That is the only recorded offence for driving with excess alcohol concentration. In his evidence in chief Mr Gawley said that his current wife tends to look after him regarding his drinking although he still occasionally binge drinks.
4. There are also contradictory statements about the effect alcohol had on his marriage. In his evidence in chief Mr Gawley said that his drinking had quite an impact on his marriage. He said he did not come home for meals which upset his wife and children.
5. Mr Gawley's brother, Mr Jeffrey Gawley, provided a statement dated 1 June 2010 and he also gave oral evidence. Mr Jeffrey Gawley described his brother as being a social drinker of alcohol prior to enlistment. However, on return from Vietnam, he was moody and he drank a lot of alcohol. He said that Mr Gawley's first wife phoned him on numerous occasions complaining that her husband was intoxicated and . Mr Jeffrey Gawley said he would collect his brother and take him to his house to sober up. He frequently stayed overnight. He was abusive when intoxicated and this was frightening to his first wife. Mr Gawley often spent weekends with his brother and his wife because of his consumption of alcohol.

1. Where a veteran is incapacitated from a war caused injury or a war caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension to the veteran by way of compensation (s 13(1)).
2. Section 9 of the VE Act relevantly provides that, subject to s 9A (which does not apply in this case):

... 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:

...

(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; ...

1. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service (s 7, VE Act).
2. Mr Gawley contended that his psychological problems, however described, can be attributed to his operational service.
3. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has arisen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437, where Barwick CJ said, at 443:

Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". ...

1. Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510. Regarding the expression attributable to, Donaldson J said, at 514:

... these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.

1. Toohey J said, in relation to the Repatriation Act 1920, at 72:

In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.

1. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where the veteran rendered operational service, that the injury, death or disease of the veteran was war-caused, unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given that Mr Gawley rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his dysthymic disorder.
2. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth.
3. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP, determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply to a claim for incapacity resulting from injury or a disease or the death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2), nor declared that it does not propose to make a SoP.
4. The method by which ss 120(1), 120(3) and 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Deledio's case. There Beaumont, Hill and O'Connor JJ said:

(i) 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.

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

(iii) 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.

(iv) 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.

1. Mr Gawley contended that the onset of his psychological problems arose from his service in Vietnam, in particular, the anxiety and stress he experienced from simply being in a war zone, and three incidents we have referred to above, namely, the night patrol, viewing the bodies beside a road and the mortar attack on Nui Dat base.
2. In our opinion, the material which was before us does point to a hypothesis connecting Mr Gawley's psychological problems with his operational service.

1. The RMA has made a SoP concerning dysthymic disorder. The current SoP is No 27 of 2008 which came into effect on 5 March 2008. The SoP which was current prior to that date was No 17 of 2007. It came into effect on 10 January 2007. Because the Commission's decision regarding Mr Gawley's claim was made on 29 June 2007, a sequential approach should be taken when referring to the relevant SoP (see Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 and Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321). However, because the relevant factors relied on by Mr Gawley for his claim are identical in both SoPs, it matters not which SoP is relied on in this case.

1. A hypothesis raised by a veteran will be reasonable if it is consistent with the template found in the SoP. That is, the hypothesis must contain one or more of the factors which the RMA has determined must exist and be related to the person's service. The factors, one of which must exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a person's relevant service are, for dysthymic disorder, set out at clause 6(a) of the SoP. The factors which are relevant, on the evidence before us are:

(ii) experiencing a category 1A stressor within five years before the clinical onset of depressive disorder;

(iii) experiencing a category 1B stressor within five years before the clinical onset of depressive disorder; and

1. There are also a number of factors set out in the current Sop under clause 6(b) which relate to substance-induced mood disorder with depressive features only. One of the factors set out under that sub-paragraph heading is having alcohol dependence or alcohol abuse at the time of the clinical onset of depressive disorder. However, and although Dr Walton was of the view that Mr Gawley's alcohol dependence was not unrelated to his mood disorder, he did not diagnose substance-induced disorder with depressive features.
2. Clause 9 of the current SoP concerning depressive disorder defines a category 1A stressor and a category 1B stressor as follows:

"a category 1A stressor" means one or more of the following severe traumatic events:

(a) experiencing a life-threatening event;

(b) being subject to a serious physical attack or assault including rape and sexual molestation; or

(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;

"a category 1B stressor" means one of the following severe traumatic events:

(a) being an eyewitness to a person being killed or critically injured;

(b) viewing corpses or critically injured casualties as an eyewitness;

(c) being an eyewitness to atrocities inflicted on another person or persons;

(d) killing or maiming a person; or

(e) being an eyewitness to or participating in, the clearance of critically injured casualties;

1. The problem for Mr Gawley regarding dysthymic disorder is that the clinical onset of his dysthymic disorder was in 1994**.** That of course is some 24 years after his Vietnam service. Therefore, even if it could be said that Mr Gawley's experience when viewing corpses by the roadside would fit the description set out in a category 1B stressor, he cannot satisfy the factors set out in clause 6(a) of the SoP which limits the time between exposure to the stressor and the clinical onset of depressive disorder to five years. Therefore, we find that Mr Gawley's hypothesis does not fit within the template established by the SoP concerning depressive disorder. As is stated in Deledio's case regarding the third step, it follows Mr Gawley's hypothesis cannot be reasonable. Therefore, Mr Gawley's claim on this account cannot succeed.

1. We again need to follow the four steps set out in Deledio's case in order to determine this question.

1. Mr Gawley's contention was that his alcohol dependence arose out of his Vietnam service and in particular the stressors which we have referred to above. Therefore, as in the case of depressive disorder, we find that the material before us does point to a hypothesis connecting Mr Gawley's alcohol dependence with his operational service.

1. The RMA has made a SoP concerning alcohol dependence and alcohol abuse. The current SoP is No 1 of 2009 which came into effect on 19 December 2008. The SoP which was current at the time the Commission made its decision on 29 June 2007 was Instrument No 76 of 1998. That Instrument was itself revoked by Instrument No 17 of 2008 which came into effect on 5 March 2008. Therefore, in accordance with what the Full Court said in Keeley and Gorton, we need to refer first to the SoP which is in force at the time of making this decision. If the current SoP does not uphold the hypothesis, then, because Mr Gawley has an accrued right under an earlier SoP, that being the SoP which was in force at the time of the Commission's decision, it may be relied on by him if that is more favourable to his case.

1. The current SoP concerning alcohol dependence sets out the factors one of which must, as a minimum exist before it can be said that a reasonable hypothesis has been raised including:
   • (a) having a significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse;
   • (b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
   • (c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse.
2. The expressions category 1A stressor and category 1B stressor are defined at clause 9 of the SoP and they are identical to those we have referred to above in the instrument concerning depressive disorder.
3. As we have already found, Mr Gawley's depressive disorder did not become clinically significant until 1994. Therefore, he cannot satisfy the first of the factors referred to above. Also, for the same reasons we have given in respect of the depressive disorder SoP, Mr Gawley did not experience a category 1A stressor or a category 1B stressor within five years of the clinical onset of alcohol dependence or alcohol abuse. We therefore find that Mr Gawley's hypothesis does not fit within the template established by the current SoP concerning alcohol dependence.
4. If we were to then examine Instrument No 76 of 1998, the relevant factors connecting a person's service with his alcohol dependence includes:
   • (a) experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
5. We have already found that events relied on by Mr Gawley in his PTSD claim did not constitute a severe stressor as that expression is defined in Instrument No 76 of 1998 in the same terms as Criterion A of DSM-IV-TR. Accordingly, Mr Gawley's claim does not fit within the template established by Instrument No 76 of 1998. Therefore, in accordance with the third step described in Deledio's case, Mr Gawley's hypothesis regarding alcohol dependence cannot be reasonable. We therefore find this claim cannot succeed.

1. We have found that Mr Gawley does not meet the diagnostic criteria for PTSD. The weight of evidence indicates that Mr Gawley's psychiatric condition is properly described as dysthymic disorder, which, for the purposes of the SoPs, is grouped under depressive disorder. We have also found that the clinical onset of this condition was in 1994, following the death of his first wife by suicide. It was not connected with his operational service in Vietnam.
2. We have found that the medical evidence supports Mr Gawley's claim that he suffers from alcohol dependence. However, we have found that Mr Gawley's alcohol dependence was not war caused because none of the factors which must exist and be related to a veteran's operational service exist. That is so whether we consider the SoP currently in force or the SoP which was in force at the time of the Commission's decision. Therefore, Mr Gawley cannot succeed on his alcohol dependence claim.
3. We find that the decision of the VRB made on 28 February 2008 was correct. We affirm that decision.

I certify that the one hundred and thirty [130] preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ..........[sgd]..................................................................

Solicitor for the Respondent Australian Government Solicitor