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[2002] AATA 273
respondent. The decision under review was affirmed. The Tribunal found no reasonable hypothesis connecting the applicant’s generalised anxiety disorder with the circumstances of his operational service.
2 cited instruments linked from this judgment.
The Tribunal accepted that Meehan may have found his time in Vung Tau harbour stressful. But the applicable medical principles required material raising the possibility that the disorder began within two years of the relevant stressful event. The Tribunal found the evidence did not raise that fact. It therefore concluded that there was no reasonable hypothesis linking the disorder to operational service and affirmed the decision under review.
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The Administrative Appeals Tribunal’s Veterans’ Appeals Division reconsidered whether James Sydney Meehan’s generalised anxiety disorder was war-caused. The matter had returned to the Tribunal after a Full Court of the Federal Court made an order on 12 November 2001. That order set aside the Tribunal’s earlier decision of 18 November 2000 and remitted the question of war causation for further hearing and determination according to law. The remitted question was specifically whether the generalised anxiety disorder which the Tribunal had found to exist was war-caused [1].
Senior Member M D Allen heard the matter in Sydney on 22 March 2002. The record included the earlier appeal book and hearing transcript, reports from psychiatrists Dr Dinnen and Professor Grey, and a report from Commodore Mulcare. Meehan and Dr Dinnen also gave oral evidence [3]-[5]. The decision was delivered on 22 April 2002.
Meehan’s proposed connection was between the disorder and his service aboard HMAS Sydney, particularly his two trips to South Vietnam and time in Vung Tau harbour. He had entered the Navy at a young age after a difficult childhood. His father had been killed in Korea, his mother was often hospitalised, and he was largely raised by his grandparents. He began drinking at a young age and had spent time at Mt Penang Juvenile Facility before joining the Navy at 15 years and ten months [7]-[8].
The Tribunal accepted that the applicant was young and that time in Vung Tau harbour could have caused apprehension. His duties included serving as a bowman on landing craft travelling between HMAS Sydney and shore [9], [28]. But acceptance that an experience could be stressful did not answer the distinct question the Tribunal had to decide: whether the material raised a reasonable hypothesis that conformed to the relevant Statement of Principles.
The evidence concerning the applicant’s history was complicated by earlier accounts that he later acknowledged were wrong. The Tribunal found that statements about blacked-out conditions, body bags, and five trips to Vietnam were false or inaccurate; the applicant’s actual service involved two trips [22]. It also noted that some earlier psychiatric histories referred to seeing people killed or wounded, which the Tribunal said was not a reliable account of his service [23]-[24]. The decision therefore assessed the proposed causal connection against both the evidence about service and the differing psychiatric opinions.
The Tribunal began with the statutory approach it said was required by ss 120(1), 120(3) and 120A of the Veterans’ Entitlements Act 1986. Because Meehan had operational service, the Tribunal said the Commission and the Tribunal on review were to determine that a disease was war-caused unless satisfied beyond reasonable doubt that there was no sufficient ground for doing so. It explained that there would be no sufficient ground if the material did not raise a reasonable hypothesis connecting the disease with the circumstances of the person’s service. A hypothesis could not be reasonable unless it conformed to a Statement of Principles issued by the Repatriation Medical Authority [6].
The Tribunal then set out the four-step approach from Repatriation Commission v Deledio. In summary, the decision-maker identifies the proposed causal hypothesis; decides whether the material points to facts supporting it and whether it can be regarded as reasonable assuming those raised facts to be true; considers reasonableness as a question of fact on the whole of the material; and, if a reasonable hypothesis is raised, applies the statutory test concerning whether necessary facts are disproved beyond reasonable doubt [6].
The applicable Statement of Principles was Instrument No 48/1994. The factor central to this claim was experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder. Other listed factors concerned a stressful event within two years before clinical worsening and inability to obtain appropriate clinical management [27]. “Stressful event” was defined in the instrument as an occurrence evoking feelings of anxiety or stress. The Tribunal accepted that the applicant’s experiences in Vung Tau harbour could meet that description in the circumstances of his age and experience [28].
The decisive difficulty was not, therefore, whether the service experiences could have been stressful. It was whether there was enough material to raise as a fact that clinical onset occurred within the period required by the Statement of Principles. At paragraph 29, the Tribunal identified the proposed hypothesis as service aboard HMAS Sydney in Vung Tau harbour causing or contributing to the diagnosed generalised anxiety state. It then found no evidence sufficient to satisfy it that the anxiety state developed within two years of the second voyage [29(iii)]. At paragraph 30, it expressed the conclusion in terms of the relevant requirement: there was no sufficient material to raise as a fact, “whether true or not”, that clinical onset occurred within two years after the final voyage.
The medical evidence was mixed. Dr Dinnen supported a connection between the applicant’s anxiety and service, and considered that alcohol had masked symptoms for many years. But his evidence, as summarised by the Tribunal, included the view that the applicant did not exhibit symptoms of an anxiety state within two years of operational service [20], [29(v)]. Dr Dinnen’s later report discussed the applicant’s account of becoming anxious during the two trips and drinking to control fear [21]. The Tribunal weighed that evidence against the absence of an anxiety diagnosis during naval service, the 1973 diagnosis of alcoholism/personality disorder, and other possible influences in the applicant’s life [14]-[16], [29(v)-(vi)].
Other psychiatrists disagreed with Dr Dinnen in various respects. Dr Richardson reported no evidence of post-traumatic stress disorder and recorded that the applicant’s alcohol abuse pre-dated service; his report did not mention an anxiety state [24]. Dr Akkerman diagnosed post-traumatic stress disorder [25]. Dr Walden disagreed with Dr Dinnen’s anxiety diagnosis, considered the described symptoms more consistent with aggressiveness and an antisocial personality disorder, and could not relate the symptoms to war service [26]. The Tribunal’s conclusion was not that every psychiatrist agreed there was no anxiety disorder. Rather, it found the evidence did not raise the specific timing fact needed to satisfy the relevant Statement of Principles factor.
The Tribunal also considered whether the factors concerning clinical worsening or inability to obtain appropriate clinical management could apply. It found no evidence of an anxiety state before or during operational service and concluded that paragraphs 1(c) and 1(d) did not apply [31]. Without a reasonable hypothesis conforming to the Statement of Principles, the statutory framework led the Tribunal to conclude that there was no sufficient ground to determine the disorder was war-caused [32].
The decision’s account of the legal framework is specific to the provisions and authority it discusses. The Tribunal relied on ss 120(1), 120(3) and 120A of the Veterans’ Entitlements Act 1986 and the relevant Statement of Principles, Instrument No 48/1994 [6], [27]. It also treated the Deledio method as governing the analysis [6].
The reasons do not give a historical account of the law before Deledio, nor do they identify later amendments to the Act or later versions of the Statement of Principles. It would therefore go beyond this source to describe a general before-and-after development of veterans’ entitlements law. What can be said from this decision is that the Tribunal applied Deledio’s staged method to identify the hypothesis, assess whether the material raised supporting facts, test conformity with the Statement of Principles, and then consider the statutory standard [6], [29]-[32].
The decision also illustrates how the statutory framework operated in this particular claim. The Tribunal did not treat the applicant’s operational service or the possibility of stress as sufficient by themselves. It required the asserted connection to satisfy the applicable medical-principle factor, including the specified relationship in time between a stressful event and clinical onset [27]-[30]. That is an account of the reasoning in this case, not a statement that every claim involving anxiety or stressful service will turn on the same evidence or factor.
At paragraph 6, the Tribunal explains the statutory test: a disease is to be treated as war-caused unless the decision-maker is satisfied there is no sufficient ground, and a hypothesis is not reasonable unless it conforms to the Statement of Principles. In plain English, the claim had to identify a plausible service connection that fitted the relevant medical criteria. A connection that did not satisfy those criteria could not pass the reasonable-hypothesis stage.
At paragraph 27, the Tribunal quotes the central Statement of Principles factor: experiencing a stressful event not more than two years before clinical onset. In plain English, the relevant timing was not simply whether Meehan had experienced stress during service. The material also needed to raise that his disorder began within the specified period after a stressful event.
At paragraph 28, the Tribunal accepts that the time in Vung Tau harbour could have caused apprehension. This is important because it separates the character of the experience from the medical timing requirement. The Tribunal did not reject the claim simply by finding the service experience could not be stressful.
At paragraph 29(i), the Tribunal states the causal hypothesis it was testing: that service aboard HMAS Sydney in Vung Tau harbour caused or contributed to the generalised anxiety state. At paragraphs 29(iii) and 30, it identifies the evidential gap: insufficient material to raise the required clinical-onset timing fact. Put plainly, the Tribunal considered the link but found that the evidence did not support a necessary part of it.
At paragraph 32, the Tribunal explains the result under the statute. Because it found no reasonable hypothesis connecting the disorder with operational service, it was satisfied that there was no sufficient ground to determine the disease was war-caused. The review decision was consequently affirmed.
The decision is most informative where a claim depends on a particular Statement of Principles factor that specifies a time relationship between an event and clinical onset or worsening. Here, the relevant factor required a stressful event within two years before clinical onset [27]. The case shows the Tribunal separately examined whether the claimed service event could be stressful and whether the evidence raised the required timing fact [28]-[30].
It may also be relevant to claims where the evidence includes later recollections, changing accounts, retrospective medical opinions, or a long period in which another condition may have affected the visibility or reporting of symptoms. Meehan’s earlier accounts of his service were found inaccurate, while Dr Dinnen considered that alcohol had masked anxiety symptoms [21]-[23]. The Tribunal assessed those matters alongside service medical records and other psychiatric opinions [14]-[16], [24]-[26].
The judgment should not be read as deciding that later-recognised symptoms can never be linked to earlier service, or that alcohol use necessarily defeats an anxiety claim. It decided the narrower question on this record: whether the material raised the fact required by the applicable Statement of Principles. Its reasoning turned on the evidence available about onset within two years, the applicant’s contemporaneous naval medical history, and the psychiatric evidence [29]-[31].
This judgment does not discuss any later treatment of its own decision. It was delivered in 2002, and the text supplied contains no later judicial citations to Meehan. Whether later courts or tribunals followed, distinguished, or limited this AAT decision cannot be determined from these reasons alone.
The decision itself does identify and apply the earlier Federal Court authority, Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82 [6]. The Tribunal reproduces the four steps it understood Deledio to require. It also expressed difficulty with the terminology in the second step, particularly the instruction to assume raised facts to be true [29(ii)]. That comment is part of this Tribunal’s reasons, but the Tribunal did not purport to displace Deledio. It proceeded to apply the stated method and resolved the claim by reference to the Statement of Principles and the evidence.
Accordingly, the source supports describing Deledio as the authority applied in Meehan, but does not support claims about how later courts treated Meehan or the subsequent development of Deledio.
A significant evidential issue noted by the Tribunal was the incomplete service record. At paragraph 13, the Senior Member criticised the respondent’s failure to obtain the applicant’s full naval service records. He considered that details about detention for striking a superior officer and any psychological examination during naval service would have been relevant. The reasons do not say what those records would have shown, or whether they would have changed the assessment of onset. The Tribunal decided the case on the material before it.
There was also a tension between retrospective evidence and contemporaneous records. Dr Dinnen considered that anxiety had developed during the Vietnam trips and that alcohol later masked the symptoms [21]. The Tribunal noted, however, that naval medical records documented treatment for alcoholism, did not record a history of anxiety beginning after the voyages, and recorded alcoholism/personality disorder rather than anxiety in 1973 [14]-[16], [29(vi)]. The decision does not resolve more broadly how such evidence should be weighed in other cases.
The Tribunal’s observation about Deledio’s “raised facts” terminology at paragraph 29(ii) is another question left open in these reasons. The Senior Member questioned what it meant to assume raised facts to be true, but did not offer an alternative formulation or determine that Deledio was incorrectly stated. The decision instead proceeded to a conclusion on the evidence and the Statement of Principles.
Finally, the judgment is confined to Instrument No 48/1994 and the particular version of the statutory framework it quotes. It does not address later instruments, later legislation, or subsequent cases. Those matters cannot be inferred from this decision alone.
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DECISION AND REASONS FOR DECISION [2002] AATA 273
Decision The decision under review is affirmed.
VETERANS' AFFAIRS - Veterans' entitlements - generalised anxiety disorder - whether material adduced by applicant sufficient to conform with SoP - lack of evidence as to when clinical onset of condition occurred
Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82
1. This matter came on for hearing before me at Sydney on 22 March 2002. The matter was returned to the tribunal following an Order by the Full Court of the Federal Court on 12 November 2001. That Order, inter alia, varied a previous Order of Wilcox J. so that it read:
(i) the decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal dated 18 November 2000 be set aside.
(ii) the matter being the question whether the appellant's generalised anxiety disorder is war-caused be remitted to the Veterans' Appeals Division of the Administrative Appeals Division for further hearing (with or without additional evidence, as the Tribunal may direct) and determination according to law.
2A. The Tribunal is directed to determine whether the disease of general (sic) anxiety disorder which has been found to exist by the Tribunal is war-caused.
3. At the hearing before me, the following documents were taken in and marked as exhibits:
A1 The appeal book in appeal number 935/2000 before the Federal Court.
A2 Copy of the transcript by K M Meehan on 11 October 2000.
A3 Copy letter Department of Defence, dated 30 June 2000.
R1 Report of Commodore Mulcare, dated 2 August 2000.
R2 Copy report of Professor Grey, dated 7 January 2000.
4. Exhibit A1, the Appeal Book prepared for the Full Court, contained a transcript of evidence given by the applicant when he first appeared before the Tribunal on 11 October 2000. In addition, the applicant gave further oral evidence before me as did psychiatrist Dr Dinnen.
5. The matter before me therefore, is in a relatively short compass, namely, to decide whether or not the applicant's generalised anxiety disorder is war-caused.
6. As the applicant had operational service as that term is defined in s 6C of the Veterans' Entitlements Act 1986, sub-section 120(1) and (3) together with section 120A, VEA apply. Those sections provide that the Commission and on appeal, this Tribunal shall determine that a disease is a war-caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that the said material does not raise a reasonably hypothesis connecting the disease with the circumstances of the particular service rendered by the person. Section 120A then provides that an hypothesis will not be reasonable unless it conforms to a so called Statement of Principles issued by the Repatriation Medical Authority. Sub-section 120(6) provides that there is no onus of proof upon any party to this review. In making my decision and applying the above mentioned provisions of the VEA, I must follow the steps as outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82, at 91, namely:
(1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
(2) The second step subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable, assuming the raised facts to be true.
(3) Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4) If the decision-maker concludes that the material raises a reasonable hypothesis, the first step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
7. The applicant's evidence to the previous Tribunal and to me, together with the history he gave various psychiatrists, showed that he had a troubled upbringing. His father was killed in action in Korea and his mother frequently hospitalised because of illness. He, together with his siblings, was effectively brought up by his maternal grandparents on the NSW North Coast. He was not a good scholar and frequently truanted from school. At age eight he had his first drink of beer at a surf carnival and although severely chastised by his grandfather at that time, he continued to drink alcohol. At age 12 he was committed to Mt Penang Juvenile Facility. The circumstances leading to that event are significant in that the applicant having drunk one bottle of beer smashed another bottle of beer in his possession over the head of a 19 year old youth who had attempted to take the beer from him. He spent some three years at Mt Penang then joined the navy when aged 15 years and ten months.
8. No doubt the applicant having spent time at Mt Penang coped much better with the rigours of recruit training than some others of his own age. Suffice it to say that he was accepted into the navy and completed recruit training notwithstanding his unfortunate start in life. After recruit training, he was posted to HMAS Sydney as a junior sailor.
9. I have no doubt that the applicant found some events whilst in Vung Tau harbour stressful. He was very young and did not know what to expect. Part of his duties involved acting as a bowman on landing craft travelling between HMAS Sydney and the shore.
10. At the time of his first visit to South Vietnam, the applicant was, because of his age, not entitled to an alcohol ration in the navy. He stated however, that he was able to purchase from teetotallers their ration. He also stated that on the return voyage from South Vietnam he began to drink more.
11. Prior to the applicant's second trip to South Vietnam as a crew member with HMAS Sydney, the applicant went absent without leave. He stated that this action was taken by him to avoid the second voyage to South Vietnam, however he did undertake that voyage. I would have thought that if it was the applicant's intention to desert, that is to say, to intentionally avoid a voyage to an active zone having been warned for such service, he would have delayed his departure until shortly before the vessel sailed and thus ensured that he missed that trip.
12. The applicant continued to serve in the navy until he had completed the 12 years service for which he had engaged. He left the navy as his divisional officer informed him that because of his problems with alcohol, disciplinary record and consequent lack of promotion it was highly unlikely he would be re-engaged.
13. It is unfortunate that in these proceedings that the respondent has made no effort to obtain the full records pertaining to the applicant's naval service. There is material which states that he was awarded detention by a service tribunal or commanding officer for striking a superior officer on two occasions. The facts and circumstances of those events would have been relevant in these proceedings. Similarly, any psychological examination of the applicant during his naval service would have been very relevant. If he had been sentenced to detention at a military corrective institution, then a psychological examination of the applicant would have been undertaken.
14. At documents T3, page 12.1 of the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, there appears the notes of a naval medical officer dated 16 October 1973 pertaining to the applicant's admission to a naval hospital for treatment of alcoholism. The applicant's evidence was that although prescribed Antabuse whilst an in-patient he abandoned this medication immediately upon discharge from hospital and continued drinking.
15. The said notes contained the entry "O/E (on examination) nervous". Without more I place no particular relevance upon this entry. It does not, to my mind, justify an inference that at that time the applicant had an anxiety state or any symptoms of an anxiety state.
16. A case summary on discharge from hospital at that time reads, inter alia, "SUMMARY: This patient was admitted for investigation of eneuresis and alcohol abuse. History basically as recorded. Bed wetter to 11 years then suddenly stopped. Considered to be "nerves". Never seen by specialist...about 15/12 ago he and wife decided to separate because of "incompatibility" - for example always arguing...has been drinking heavily for 12/12. Five schooners at lunch and drinks beer from 4 pm to 10 pm. Spends $4.00 per night almost every night. Tried to stop but got the shakes after three days so started again. Wants to stop now. He was seen by Dr Gill on 24.10.73 who said: "well established alcoholic. Unwanted as child. Bed wetting, nail biting - raised by grand-parents. Fighting, truancy "drunk and disorderly at 12". Always enjoyed drink. Joined at 15. Forced marriage at 18 since broken up. Prone to impulsive feelings, depression. Now drunk every night, with bed-wetting 1-2 times month". Diagnosis alcoholism/personality disorder".
17. An earlier entry in the applicant's service documents refers to an incident when he was found asleep on duty as a result of alcohol. Unfortunately no follow up documents are included in the applicant's records.
18. Following his discharge from the navy, the applicant held a series of jobs, including jobs in hotels, and frequently lost those jobs because of alcohol related incidents. As a result of alcohol he also spent some five years in jail for armed robbery. In 1987 after a term of imprisonment he entered an alcohol rehabilitation unit. The applicant also began to attend Alcoholics Anonymous meetings.
19. With the active help of his current wife, the applicant has been alcohol free since 1988. He has also joined the Salvation Army and it was at his wife's insistence that he attended psychiatrist Dr Altman. The measure of the success the applicant has had in turning his life around is that he was able to enter hotels as part of the active ministry of the Salvation Army yet has still remained alcohol free to this date.
20. Dr Dinnen in a report dated 26 May 2000 had opined that the applicant's psychiatric state was that of a generalised anxiety state and psychoactive substance dependence, the second condition being in remission. Both conditions were aggravated by service. Importantly, Dr Dinnen stated "Both conditions apparently were present prior to service but it seems clear that the generalised anxiety disorder has only become demonstrated in recent years since the patient stopped drinking on a chronically basis". Cross examined in the previous proceedings Dr Dinnen had said:
"Q. Do you think that by 1971, two years after Mr Meehan's last period of operational service, that he satisfied that diagnostic criteria in the Statement of Principles for Generalised Anxiety Disorder?
A. I am hypothesising that he does, but as I say, if I'd had examined him then one would need him to have been without alcohol for a considerable time in order to establish those features, I believe they were present, but I believe they were swamped by the alcohol".
Later, the following passage of cross examination occurs:
A. Well my argument is that personality disorder and the anxiety condition were there - and the alcoholism were (sic) there before service and service while it gave him any benefits, I think aggravated all those problems".
21. Exhibit A4 is a report by Dr Dinnen dated 15 March 2002. In that report, Dr Dinnen refers to anxiety engendered in the applicant by his trips to South Vietnam and his drinking alcohol in order to cope. He then added:
"secondly, with regard to the view that I formed that he may have had an anxiety disorder prior to enlistment, the evidence there is also inconclusive. Bet wetting can be a pointer to such a condition, which is my assumption, but from the documentation and from this interview with the patient there is no good evidence that he did suffer an anxiety disorder of any sort prior to enlistment. Again, the patient's account at this interview is quite specific. He had no symptoms of anxiety prior to joining the navy, and first became anxious during his first trip to Vietnam, and particularly while in harbour there and again on the second trip, by which stage his feelings of anxiety had been well established. However, his use of alcohol I believe masked these symptoms for many years until he became abstinent twelve or so years ago".
"it seems therefore that my original statement that "both conditions apparently were present prior to service" cannot be substantiated by any further relevant information.
It seems the patient's account of anxiety developing during those two trips to Vietnam is now established. The patient said he took drinking up with a vengeance "that's how I controlled my fear". I note that in my initial evaluation I stated "during the interview the patient mentioned that he would go to the Mess Deck after being on watch and it was while there he would hear them drop the charges. He said this causes him even now to get anxious at times. When he was drinking however he never thought about anything - "all I worried about was where the next drink was coming from".
It would seem therefore that the patient's generalised anxiety disorder developed as a consequence of the "stressful events" which he experienced during operational service, those being his two trips to Vietnam and what happened while he was in harbour there. This satisfies factor 1(b) of the Statement of Principles. His anxiety was dealt with at the time by alcohol abuse which became established through the years but which has now been in remission for the past 12 years or so".
22. A difficulty with the applicant's claim has been that in the past he has embellished his accounts of events whilst on operational service. In a statement which became Exhibit A in the first proceedings the applicant had said:
"on sentry duty on the ship in Vung Tau harbour the ship was completely blacked out. I was terrified the whole time. I couldn't see further than a couple of feet. We were told to be on the lookout for enemy divers and I couldn't see if they were there or not. This happened each of the five times that I was there.
5. Scare charges were dropped alongside the ship at random, day and night, whether you were awake or asleep. You could not relax at any time. I always thought that the next one would blow up the ship. The noise from the explosions would leave you totally deaf each time. I felt there was no way of defending myself and was mentally and physically exhausted all of the time.
6. When we loaded the troops aboard to bring them home, we brought the body bags too. I felt so guilty when we left the troops on shore. I felt like we were abandoning them. Death was constantly on my mind and on the mind of others, but there was nothing we could do about it. Coming back from Vietnam on the first trip I began drinking to excess because I found it blocked out everything. I bought the non drinkers' alcohol issue from them. It was the only way I could sleep. We worked six hours on duty and four hours off. I often couldn't sleep and walked around like a zombie".
The statements as to body bags and blacked-out conditions in Vung Tau harbour are totally false and the applicant has now resiled from those statements. Likewise the report of Commodore Mulcare (Exhibit R1) makes it clear that whilst distressing crew members of HMAS Sydney would have been familiar with the scare charges used while in Vung Tau harbour. As for the charges being dropped day and night the charges were only dropped whilst at anchor in Vung Tau harbour which was for a period of five hours in daylight. The applicant also now acknowledges that he only had two trips to Vietnam and not five.
23. Dr Altman is the applicant's treating psychiatrist. In a report dated 10 December 1996, Dr Altman refers to a history of service in Vietnam in 1968 to 1969 "for approximately five months...he saw people getting killed and wounded and saw corpses". Again this history is now know to be false.
24. Dr Richardson, psychiatrist, examined the applicant at the request of the respondent on or about 5 March 1996. The history taken by Dr Richardson reads inter alia:
"Jim joined the Australian Navy at the age 16 and remained there until aged 28. He enjoyed his work. He saw two short tours to Vietnam in 1969. In total, he was there for three months. He did not come under fire. He was not involved in any fighting. He did not have to attend shore duties. Jim left the navy, simply to make a change in his life after 12 years and then became a barman, cellarman or labourer.
Jim started drinking at the age of 8. His father died when Jim was 2 years old his dad was killed in the Korean War in 1954. His mother never remarried. Jim started drinking when he was in the care of his grandparents. He then drank episodically but certainly sufficient to get him into serious trouble with the law.
Jim felt that his alcoholism escalated on joining the navy. He was rationed at the level of two bottles of beer a day, but was able to get access to very cheap alcohol throughout his time with the service. It resulted in numerous legal problems. He had numerous charges for drunk and disorderly, one charge of driving under the influence, he has charges against him of robbery and a serious assault. He was jailed on several occasions, on one occasion for five years...".
Dr Richardson concluded his report by stating "in summary there is no evidence that Mr Meehan suffers from a post traumatic stress disorder. His alcohol abuse anti-dates his service career".
There is no mention whatsoever in Dr Richardson's report of any anxiety state.
25. Dr Akkerman, psychiatrist also examined the applicant at the request of the respondent. In his report dated 21 September 1998, he took a history of the applicant commencing to drink alcohol "fairly young" but "fairly little before he went into the navy, this was when he started drinking properly". After asking the applicant to fill out a Symptom Checklist, Dr Akkerman opined that the applicant suffered from a post traumatic stress disorder.
26. Dr Walden, psychiatrist, examined the applicant on 9 September 2000 and provided a report dated 14 September 2000 with a further report dated 9 October 2000. After reciting a history taken from the applicant and noting some discrepancies between that history and the history given to other psychiatrists, Dr Walden concluded that the applicant fulfilled the DSM-IV criteria for anti social personality disorder having had a pervasive pattern of disregard for and violation of the rights of others occurring since age 15. She did not regard the applicant as fulfilling the
DSM-IV criteria for post traumatic stress disorder. In addition, Dr Walden disagreed with Dr Dinnen's diagnosis of an anxiety disorder and considered that what Mr Meehan described as anxiety was more accurately described as aggressiveness. She was unable to relate any of the applicant's symptoms to war service and said that any aversion to war was more against the futility of war rather than having nightmares about or reliving his experience during the war service. In evidence to the first tribunal while Dr Walden accepted that the applicant may have some anxiety she was firm in her view that his history and symptoms were more consistent with an anti social personality disorder from an early age. She accepted that there may have been some aggravation of that disorder during naval service.
27. The relevant Statement of Principles for Generalised Anxiety Disorder is Instrument No 48/1994. That document reads, inter alia:
1. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder with the circumstances of that service, are:-
(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;
(c) experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder;
(d) inability to obtain appropriate clinical management for generalised anxiety disorder.
28. The term "stressful event" is defined as meaning "an occurrence which evokes feeling of anxiety or stress". Given the applicant's age and experience I accept that the brief periods he spent in Vung Tau harbour would have given rise to some apprehension on his part.
29. Applying the Deledio, supra, steps to this matter I find:
(i) The hypothesis is that the applicant's service aboard HMAS Sydney whilst that vessel was in Vung Tau harbour caused or contributed to the diagnosed condition of generalised anxiety state
(ii) The second Deledio step requires a finding as to whether the hypothesis is reasonable. As subsection 120A(3) VEA points out, a hypothesis cannot be reasonable unless it conforms to a so called Statement of Principles. In passing I must state that I have difficulty in understanding the terminology used by the Federal Court in the second Deledio step where the Court refers to "assuming the raised facts to be true". Evidence may be adduced and that evidence either accepted or rejected but just what is an "untrue fact"?
(iii) In this matter there is no evidence sufficient to satisfy me that the applicant's anxiety state developed within two years of the second of his voyages to South Vietnam?
(iv) What is clear from the various histories that the applicant has given psychiatrists and their subsequent reports is that he had a predilection towards alcohol stemming from his childhood. Access to alcohol was no doubt restricted whilst in juvenile detention at Mt Penang and whilst undergoing recruit training. Once posted to HMAS Sydney he was again able to have access to alcohol albeit that such access was in defiance of naval regulations as he was then under age. Having obtained access to alcohol he was unable to control his drinking and has now accepted the fact he is an alcoholic.
(v) Dr Dinnen has stated that his alcoholism masked his anxiety state. However, Dr Dinnen also said in re-examination that the applicant did not exhibit any symptoms of an anxiety state within two years of operational service. That the applicant can now identify symptoms of an anxiety state must take into account that he has a history not only of alcoholism but of a break up with his first wife ("they were always arguing"). He had been the subject of disciplinary proceedings whilst in the navy and had been told it was it was unlikely he would be re-engaged when his initial period of 12 years service had expired. He has also been guilty of acts of violence and dishonesty and served terms of imprisonment.
(vi) Added to the above is the fact that at no time during his naval service was the applicant recognised as having any anxiety state. He was investigated for alcoholism but no history was taken of commencing to drink after the voyages to South Vietnam, nor did the applicant volunteer any history of apprehension or anxiety during his visits to Vung Tau harbour to naval medical authorities. In 1973 he was diagnosed as having alcoholism and a personality disorder, not anxiety.
30. For the reasons set out above, I find that the applicant does not meet the tests set out in the relevant Statement of Principles for generalised anxiety disorder as there is no sufficient material to raise as a fact, whether true or not, that the said condition had a clinical onset not more than two years after his final voyage to South Vietnam.
31. Similarly, there is no evidence that he had an anxiety state before or during his operational service, so paragraphs 1(c) and 1(d) of the Statement of Principles do not apply.
32. There being no reasonable hypothesis connecting the applicant's generalised anxiety disorder with the circumstances of his operational service I am deemed to be satisfied beyond reasonable doubt that there is no sufficient ground to determine that the said disease is war-caused. The decision under review is therefore affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Solicitor for the Applicant Ms P Robertson, R L Whyburn & Associates
Solicitor for the Respondent Ms A Nanson, Australian Government Solicitor
Repatriation Commission
Deledio
The decision under review was affirmed. The Tribunal found no reasonable hypothesis connecting the applicant’s generalised anxiety disorder with the circumstances of his operational service.