Anderson and Repatriation Commission
[2003] AATA 383
•29 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 383
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1305
VETERANS DIVISION ) Re NORMAN ANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb Date29 April 2003
PlaceSydney
Decision The Tribunal determines to set aside the decision under review and, in substitution therefor, decides:
(a) to affirm the decision that bilateral sensorineural hearing loss and tinnitus are war-caused; and
(b) the Applicant’s post traumatic stress disorder (PTSD) is war-caused; and
(c) the Applicant is entitled to a disability pension at 80 per cent of the General Rate on and from 15 August 1999.
[Sgd] Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS - disability pension – bilateral sensorineural hearing loss and tinnitus - post traumatic stress disorder - generalised anxiety disorder - diagnosis – whether war caused - whether the veteran experienced a severe stressor or a severe psycho-social stressor – impairment rating
LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 13, 22, 119, 120, 120A
Repatriation Medical Authority Statement of Principles Instrument Number 3 of 1999 concerning Post Traumatic Stress Disorder (as amended by Instrument Number 54 of 1999)
Guide to the Assessment of Rates of Veterans' Pensions 5th Edition
AUTHORITIES
Repatriation Commission v Delidio (1998) 83 FCR 82
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307
Re Perkins and Repatriation Commission [1998] S97/187
Re Budworth and Repatriation Commission [2000] AATA 127
Re Chaplin and Repatriation Commission [2000] AATA 688
East v Repatriation Commission (1987) 16 FCR 517
Re Slattery and Repatriation Commission [1998] Q96/1011
Repatriation Commission v Hill [2002] FCAFC 192
Freeman v Repatriation Commission [2002] FCA 576
Repatriation Commission v O’Brien (1985) 155 CLR 422
REASONS FOR DECISION
29 April 2003 Mr S. Webb, Member 1. This is an application by Mr Norman Anderson (“the Applicant”) for review of a decision by the Repatriation Commission (“the Respondent”) dated 21 July 2000 to refuse his claim for post traumatic stress disorder (“PTSD”). The Respondent accepted his claim for bilateral sensorineural hearing loss with tinnitus and granted disability pension at 30 percent of the General Rate (Exhibit T2). The Veteran’s Review Board reviewed the Respondent’s decision on appeal, deciding on 28 June 2001, to affirm the decision in relation to PTSD and set aside the decision in relation to the assessment of the veteran’s pension, substituting therefor, that pension be assessed at 40 per cent of the General Rate (Exhibit T13).
2. A hearing in this matter was held before the Tribunal in Sydney on 4 February 2003 at which the Applicant and Mrs Jenelle Anderson gave evidence. The Applicant was represented by Mr Dawson of counsel. The Respondent was represented by Mr Modder, a Department of Veterans’ Affairs advocate. Mr P. Mulcare and Mr J. Tilbrook also gave oral evidence during the hearing.
3. The following documents were placed into evidence before the Tribunal:
Exhibit Description Date T1-T15 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Exhibit A1
Statement by the Applicant
29 October 2002
Exhibit A2
Statement by Mrs Jenelle Anderson
30 January 2002
Exhibit A3
Statement by Mr Phillip Kenny
23 May 2002
Exhibit A4
Statement by Mr Peter Maher
Undated
Exhibit A5
Statement by Robert Allan Smith
19 December 2002
Exhibit A6
Statement by Garry Cheney
14 August 2002
Exhibit A7
Medical report by Dr Anthony Dinnen
7 March 2002
Exhibit A8
The Applicant’s Statement of Facts and Contentions
6 August 2002
Exhibit A9
Post Traumatic Stress Disorder (PTSD) and War-Related Stress, Information for Veterans and their Families, Department of Veterans' Affairs
1999
Exhibit A10
Extract from American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, pp 424 to 427
Exhibit R1
Medical records of Dr Richard Kwong concerning the Applicant
Exhibit R2
Medical report by Dr Robert Haik
20 June 2002
Exhibit R3
Report by P. M. Mulcare, Writeway Research Service
15 May 2002
Exhibit R4
Report by P. M. Mulcare, Writeway Research Service
18 July 2002
Exhibit R5
Report by John Tilbrook, Writeway Research Service
31 January 2003
Exhibit R6
Medical report by Dr Anthony Durrell
1 June 2000
Exhibit R7
The Respondent’s Statement of Facts and Contentions
8 November 2002
issues
4. The parties are not pursuing claims concerning the Respondent’s decision concerning bilateral sensorineural hearing loss and are in agreement that the date of effect, should the Applicant be successful, is 15 August 1999. The issues to be determined in this matter are:
(a)whether the Applicant’s symptoms are correctly diagnosed as PTSD or Generalised Anxiety Disorder; and
(b)whether the disorder is war-caused; and if so
(c)the Applicant’s correct entitlement to disability pension.
legislation
5. The relevant legislation in this matter is the Veterans’ Entitlements Act 1986 (“the Act”) and in particular the following sections.
“9 War‑caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war‑caused; or
(b) a veteran has become incapacitated from a war‑caused injury or a war‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…
21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war‑caused injury or war‑caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions.
…
119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission:
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities..
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.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(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.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b) a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) …”
background
6. It is not in dispute that the 62-year old Applicant enlisted in the Royal Australian Navy on 26 May 1958 and was discharged on 4 October 1970. He was allocated for duty on HMAS Brisbane in the Vietnam theatre, a special area for the purposes of the Act, and as a consequence has operational service commencing on 19 March 1969 and concluding on 13 October 1969 (Exhibit T3).
7. The Applicant submitted a claim for disability pension on 15 November 1999 (Exhibit T4) for:
(a)hearing loss, caused by “Subjected to noise levels exceeding 90db per day. Suffered traumatic shock to hearing when ships [sic] gun firing”;
(b)tinnitus, caused by “Suffered traumatic shock to hearing when ships [sic] guns firing”; and
(c)generalised anxiety, caused by “Experienced traumatic events in Vietnam or Brisbane 1. Ships [sic] loss of power…boiler problem 2. Gun turret blowing up 3.. Planes dropping napalm in Vung Tau”.
8. The Respondent accepted the Applicant’s claim that his bilateral sensorineural hearing loss with tinnitus was war-caused. The date of effect being 15 August 1999.
EVIDENCE
the applicant
9. The Tribunal had before it the statement of the Applicant (Exhibit A1), who also gave oral evidence.
10. The Applicant told the Tribunal he was in the galley on the upper deck next to a scuttle on the port side of the ship when steaming into Vung Tau harbour for the first time. He gave evidence he saw aircraft dropping napalm “like hell…fire…aircraft…dropping bombs…blew hell out of people on the beach and in the jungle behind the beach”. He stated he was very frightened and “just wanted to get out of there”. He recalled the bombing was “2 or 3 miles away on the port side of the Vung Tau harbour entrance”.. He stated he could not recall seeing anyone dead or how much damage had been done, but recalled the event vividly despite it occurring over 30 years ago. They spent 12 to 15 hours in port, he recalled, but he was very agitated and frightened during this time and his heightened anxiety did not diminish until they left Vung Tau. He told the Tribunal this event made him realise they were at war.
11. The Applicant acknowledged he had read Mr Mulcare’s research report into the alleged incidents, but was “positive it happened”.. He stated that he had been alone in the galley at the time and subsequently asked others whether they had seen the bombing on the port side, but as he recalled, they had not.
12. The Applicant told the Tribunal of another incident which occurred when he was in the galley bakehouse next to the engine room hatch and the ship’s boiler “broke down”, leaving the ship “dead in the water…a sitting duck” about five kilometres off shore on the “gun line”. His evidence was that the ship’s power failed when the boiler ceased functioning, cutting power to the ship’s main weapon systems, radar system, ventilation system and the anchor windlass. He told the Tribunal that the ship became very hot, due to the lack of ventilation, as a consequence of which repair crews were moving through the engine room hatch next to the galley in rotation. He said there were difficulties starting the auxiliary diesel generator leaving the ship drifting and defenceless. He heard repair crew discussing their circumstances and became very frightened because, in similar circumstances the year before, the HMAS Hobart had been hit by allied bombardment, in error, killing two crew. He stated (Exhibit A1):
“We were broken down for quite a few hours and all that was running through my mind was that we may get shot by the enemy or by friendly fire. I was absolutely terrified that this may happen to this ship. I was working in the main gally [sic] at the time as a watch leader. I told the two cooks in my watch to keep working as everything was going to be alright, trying not to show that I was afraid of what might happen.”
13. He told the Tribunal a white star had been painted on the quarterdeck prior to departure, which was to be illuminated to avoid friendly fire in such circumstances. He recalled going to the quarterdeck to check whether the star had been illuminated, which it had. The Applicant gave evidence that he did not know whether the ship was under threat at the time and that he had experienced a similar situation in the HMAS Parramatta some years before and had not been unduly affected by it.
14. The Applicant stated (Exhibit A1):
“On or around 1969 while on board HMAS Brisbane the forward turret blew up and the physical training instructor, Benny Mitchell, was hit by shrapnel while he was serving as a lookout and lost three fingers in the incident. The explosion woke me and I raced up to the upper deck to see what had happened as I thought the ship had been hit. This incident really startled me.”
15. He told the Tribunal that his consumption of cigarettes and alcohol increased after these events and he had difficulty sleeping and concentrating on his work. The Applicant stated that he did not mention these events to anyone on his return to Australia and:
“I shut all thoughts of Vietnam out of my mind and did not attend any reunions or Anzac Day marches. I had no contact with ship-mates and I discarded my service medals.”
16. The Applicant gave evidence that he worked between 1980 and 1984 with underwater explosives after leaving the Navy, being employed by Mr K. Waldock. He acknowledged that this had been dangerous employment and that his experiences in Vietnam had not prevented him from undertaking that employment.
17. The Applicant told the Tribunal in July 1998 he experienced a sudden pain in his chest and thought he was having a heart attack. He said his heart beat rapidly and he went into a “sweat” and “bang…I was back there again”. He gave evidence that from that moment he has suffered panic attacks and cannot relax, “taking pills to survive”.. He told the Tribunal at about that time he started having nightmares about Vietnam and the ship breaking down, in consequence of which he “thrashes around in bed” and has difficulty sleeping. He stated that his wife no longer sleeps in his bed because of his disturbance. He told the Tribunal his anxiety has been getting worse, whereby he now has difficulty with concentration and short term memory and he “feels dreadful every day”. He stated that he has been seeing Dr Durrell about these problems since 1998 and currently takes medication (Avanza) for depression but this only works sometimes.
18. The Applicant told the Tribunal that since 1998 he has ceased many recreational, social and family activities he had previously enjoyed. He said he used to play football and would drink and socialise with his mates after training and games, at least twice each week, but does this no more. He gave evidence he suffered a panic attack at the club with his mates which “made me feel like a goose, so I didn’t go back”.. He informed the Tribunal he used to enjoy playing golf each Saturday and some Sundays, but no longer does this. He recalled going fishing with his sons and told the Tribunal he no longer goes fishing and does not see his children and grandchildren as much as he would like.
19. The Applicant told the Tribunal he is “on edge” at home and that he has been “aggressive” towards his wife. He gave evidence he avoids socialising and spends his time walking alone, sometimes with his dog. He stated that he walks to work each day at the Wingecaribe Shire Council, where he works in the wastewater management area. He informed the Tribunal he spends most of his time at work outside by himself, although he has two “off-siders” on whom he relies heavily as he is frightened he will make mistakes because of his concentration and short term memory difficulties.
jenelle anderson
20. The Tribunal had a statement (Exhibit A2) before it from Mrs Jenelle Anderson, wife of the Applicant, who gave oral evidence.
21. Mrs Anderson told the Tribunal she worked in the Navy and first met her husband in 1967. She said she knew him well prior to his service in Vietnam, being pregnant with their first child when he left for Vietnam. She described the Applicant as a fun-loving person who was out a lot. She stated that he had never talked about his experiences in Vietnam on returning “it was like he had never been anywhere…didn’t talk about it…never mentioned in the house”. She gave evidence that her husband was very protective and “great with the kids” after returning from Vietnam.
22. Mrs Anderson told the Tribunal her husband changed with the “attack” he suffered in July 1998. Thereafter, she recalled, he suffered nightmares and flashbacks to events in Vietnam, and became very “snappy”.. He stopped playing football and golf, and did not go out with his mates to the club on Friday evenings, as he had previously.. She gave evidence that the Applicant becomes very anxious and calls her at work for help when he has a panic attack, believing that he is “in trouble” and requires an ambulance. She stated that the Applicant drinks to calm his nerves and requires her company to the extent that she cannot go out or socialise with her friends, “the only thing I do alone is go to work”.. Mrs Anderson told the Tribunal her husband is very short tempered, “snapping over the slightest thing”, which leads to arguments. She gave evidence that the Applicant gets short with his grandchildren when he thinks they are not doing the right thing to the extent that it is necessary to intervene and remove them. She stated that he had not been like this before 1998.
23. Mrs Anderson gave evidence that her husband is starting to discuss his experiences in Vietnam and “he was terrified”.. She told the Tribunal he has a recurring nightmare in which he is stuck on a ship in the dark, believing he will never see his family again. She stated that her husband walks everyday and “walks out his aggro”. She said her husband has become withdrawn and not talkative, where “I have to build him up all the time…reassuring him all the time”.. She stated that he has very little contact with his previous mates and takes little pride in his work, which previously was important to him.
24. Mrs Anderson agreed that her husband has symptoms of excessive worry that he cannot control, that he is easily fatigued, is irritable and has difficulty concentrating.
john tilbrook
25. The Tribunal had a report (Exhibit R5) before it by Mr John Tilbrook who gave oral evidence.
26. Mr Tilbrook told the Tribunal he is a military researcher with the History Unit of the Army, having no formal research qualifications but over 40 years experience serving in the Army, including service in Vietnam in 1967 to 1968 and, more particularly, in machinery workshops in Vung Tau. He stated he attained the rank of sergeant.
27. Mr Tilbrook rejected the proposition that his work with the Army in any way compromised the independence of his research report in this matter. He stated he had been asked to report on air strikes in the Phuoc Tuy province and Vung Tau on 15 April 1969, which he had done. Mr Tilbrook gave evidence that he interrogated a private “Vietnam Incidents Database” held by Writeway Reasearch Service, which was based on public Army records held by the Australian War Memorial. The database, he informed the Tribunal, was based on the “original tapes from “green” IATF copy of triplicate incident reports”, acknowledging that all the database records had not been checked against the original hard copy reports and that the records only relate to reported incidents.
28. His evidence was that two air strikes were recorded on 15 April 1969 in the forested mountain ranges 29 to 38 kilometres to the North and North-West of Vung Tau and that there was no reference to either attack involving the use of napalm. Mr Tilbrook opined that these attacks would have been obscured by intervening mountain ranges and would not have been visible from Vung Tau. He reported that “there were no allied air strikes carried out near Vung Tau harbour when HMAS Brisbane was in port between 0700 hours and 1200 hours on 15 April 1969”, the reported strikes occurring “at least one and a half hours after HMAS Brisbane departed from Vung Tau at 1330 hours and 1521 hours” (Exhibit R5).
29. Mr Tilbrook told the Tribunal Vung Tau is heavily populated and the west side of the harbour is covered by mangroves and jungle. Napalm, he agreed, was commonly used when bombing dense jungle and may have been used illogically or inappropriately from time to time, but opined that a napalm attack in Vung Tau would not have gone unnoticed and would have been a notifiable incident. He agreed, however, that not all such incidents in the Vietnam war were notified or reported and accepted that the war records were not infallible.
peter mulcare
30. The Tribunal had before it two reports (Exhibits R3 and R4) by Mr Peter Mulcare who gave oral evidence.
31. Mr Mulcare told the Tribunal he was a researcher for Writeway Research Service with a Navy background. He informed the Tribunal his research was based on historical records and communications with people in a position of authority who were present at the time. He gave evidence he visited Vung Tau harbour in HMAS Yarra in 1966 and in HMAS Parramatta in 1971. He stated that his reports were based on the relevant Reports of Proceedings for HMAS Brisbane and communications with Admiral Beaumont and Vice-Admiral Taylor, both of whom served on the HMAS Brisbane in the positions of Executive Officer and Navigating Officer, respectively, in 1969.
32. Mr Mulcare stated he had no knowledge of napalm being used in Vung Tau, where its use would have been very serious and reported in Navy records. He referred to naval chart 1016 of Vung Tau harbour, noting the approach channel to the harbour. He stated there was no record of any napalm attack on the starboard side, noting Vung Tau was a busy port for vessels in transit to or from Saigon. He stated that he had no knowledge of any napalm bombing on the western peninsula of the harbour, being the left hand side on 15 April 1969. He told the Tribunal there were no sea-based napalm attacks on Vung Tau, even though the airfield above the harbour had been the subject of rocket attacks from time to time. Mr Mulcare told the Tribunal that the western side of Vung Tau harbour is populated close to shoreline.
33. Mr Mulcare told the Tribunal he had no knowledge or experience in the use of napalm, having only witnessed demonstrations in Canada and Germany. He described these demonstrations, which he told the Tribunal he watched from a distance of “a couple of miles”, involving lots of flame and black smoke, and being “scary, like a bush fire and, therefore, effective”. He opined that the Applicant was a cook who would have no opportunity to see napalm.
34. Mr Mulcare stated (Exhibit R3 pp1 and 2):
“On 17 June 1968, HMAS HOBART was operating off the coast of North Vietnam when three missiles, fired by a US fighter aircraft, hit the ship. A Chief Petty Officer and an Ordinary Seaman were killed and three other sailors wounded. After that incident all ships painted a star on the quarterdeck for identification purposes, to reduce the chance of any further “friendly” attacks. By the time of BRISBANE’s deployment ships operated only off the cost of South Vietnam.
At 2117 on 18 April 1969, BRISBANE, which was steaming on one boiler, lost all power after a boiler tube burst and the boiler underwent an emergency shut down. The steam-driven turbo generators stopped, and in consequence, all equipment and lighting failed, apart from battery powered emergency lighting. The ship anchored as soon as a diesel could be started to supply emergency power to the anchor windlass. Admiral Beaumont recalls the ship was about five miles or more off the coast and was not in any danger. However, without ventilation, conditions in the ship were very unpleasant while conditions in the boiler room, where attempts were being made to light up another boiler, were extremely hot, and personnel had to be rotated every few minutes. However, another boiler was flashed up after about half an hour, power was gradually restored, and BRISBANE weighed anchor at 2217 and proceeded to carry out a scheduled harassment firing. Admiral Beaumont said that the star on the quarter deck was not illuminated during the period the ship was without power. Vice Admiral Taylor does not recall anything about illuminating the star that night.”
35. Mr Mulcare provided a copy of an e-mail from Admiral Beaumont concerning the boiler incident as described (Exhibit R4 Attachment 1), in which Admiral Beaumont opines:
“The boiler incident was as you have described it. I would categorise it as very stressful for those sailors directly involved in restoring power to the ship. For those not directly involved it was no worse than the Damage Control exercises in which we had engaged as part of out work-up before deploying to Vietnam. Indeed, I suspect the majority of the ship’s company remained unaware of the extent of the difficulties we were in until after the event was over.
In my opinion a cook baking bread at the time would not have been stressed in the sense of the definition you have provided.”
36. Mr Mulcare agreed that his footnote reference (Exhibit R3, p2) attributing the statement in his report that “[t]he ship anchored as soon as a diesel could be started to supply emergency power to the anchor windlass” to paragraph 24 of the HMAS Brisbane Report of Proceedings April 1968, was not accurate. He told the Tribunal the statement is attributable to a communication with Admiral Beaumont that is not in evidence and agreed that he may not have fully reported Admiral Beaumont’s remarks, for example relating to any difficulties starting the diesel generator.
medical evidence
37. The Tribunal had before it the clinical notes of Dr Richard Kwong, the Applicant’s treating doctor (Exhibit R1). Dr Kwong diagnosed the Applicant suffering “Anxiety state – depression” in the Medical Impairment Assessment (Exhibit T6) he completed on 1 March 2000 (Exhibit T6 folio 28). Dr Kwong described the Applicant’s subjective distress as “panic attack, flashback, depression and “unable to sit still”” (Exhibit T6 folio 30) and manifest features including “preoccupation, inappropriate actions, restlessness, sweating and excessive drinking” (Exhibit T6 folio 31).
38. The Tribunal had before it two reports of Dr Anthony Durrell, the Applicant’s treating Psychiatrist (Exhibit R6 and Exhibit T11 folios 55 and 56). Dr Durrell reported on 1 June 2000 (Exhibit R6, p2):
“He described disabling panic attacks associated with intrusive memories and flashbacks of his experiences in the Vietnam War. These panic attacks and associated symptoms followed a provisional diagnosis of heart disease in May 1998 after he had several bouts of chest pain…
The panic attacks and symptoms of post-traumatic stress disorder were severe from May 1998 until September 1998 when Dr Kwong reassured him that a cardiac stress test had indicated his heart disease was not an immediate life threatening issue. Mr Anderson’s symptoms of mental illness improved following these reassurances but remain partially disabling.
…
In summary Mr Anderson presents with features of delayed onset chronic Post traumatic stress disorder.”
On 2 February 2001, Dr Durrell reported (Exhibit T11, folio 55):
“The diagnosis of PTSD and the overlap between this condition and other DSM-IV anxiety disorders is problematic for clinicians at times. I suspect the DVA psychiatrist who reviewed this case, may not feel comfortable with the “broader” view of PTSD.
By reviewing Mr Anderson’s condition in a more narrow sense I would accept his symptom cluster to be consistent with a severe Generalised Anxiety disorder associated with panic attacks which is presently in partial remission.. The predisposition he accumulated through war experiences, some of which were listed in my report of 1st June 2000, is in my opinion sufficient to precipitate his mental illness following his “heart scare” in May 1998.”
39. The Tribunal had before it a report of Dr Anthony Dinnen, Consultant Psychiatrist (Exhibit A7). On 7 March 2002 Dr Dinnen reported (Exhibit A7, p4):
“The patient said it was very frightening to be in an operational area, particularly when the ship broke down, and in general the whole period of service on the gunline constituted a real threat to the lives of everyone on the ship.
…
The general feeling was of fear and helplessness. As part of the ship’s crew he said, when I asked him if the whole time in the operational area was frightening: “My oath. We were at war. Up there trying to kill them”.”
Dr Dinnen concluded on page 6 of his report:
“There is no argument in my opinion with the clinical presentation. It is a classical one of delayed onset post traumatic stress disorder and the initial treating psychiatrist is quite correct in this assessment and in his management of the patient.
…
The understanding of “experiencing a severe stressor”, which is given a rigorous and legal definition in many cases such as this one should not, in my opinion, overtake the clinical diagnosis of this syndrome, on which the Statement of Principles are based, and which can be found in any text book.”
40. The Tribunal had before it a report by Dr Robert Haik, Consultant Psychiatrist (Exhibit R2). On 20 June 2002, Dr Haik reported (Exhibit R2, p7):
“As a diagnosis, Posttraumatic Stress Disorder is growing in popularity. Not uncommonly, it is used without reference to the traumatic criteria defined by DSM IV. For a diagnosis, the individual must be exposed to a stressor that caused actual or threatened death or serious injury.
DSM IV reports that the severity, duration, and proximity of an individual’s exposure to the traumatic event are the most important factors affecting the likelihood of developing this disorder.
Some examples are given of the intention of DSM IV when defining PTSD – such as domestic battering, being taken hostage, incarceration in a POW camp, military combat, car wrecks, plane crashes, natural disasters. The theme is that the threat of death or serious injury provokes intense fear, helplessness or horror.
Mr Anderson was NOT exposed to any such stressor during his period on board HMAS Brisbane. The stress wasn’t severe, the duration was short (one hour), and the proximity of the theoretical attack (5 miles from shore) was limited.”
Dr Haik provided commentary on the delayed variant of PTSD in his report, opining at paragraph 4.4 of his report:
“Given the nature of the ‘stress’ on board in 1969, it is implausible that Mr Anderson’s adverse reaction to the trauma would have been emotionally dissociated or split off because it was too frightening to contemplate. Therefore, the notion of a delayed onset of PTSD in Mr Anderson’s case is quite improbable.”
Dr Haik concluded at point 2 of paragraph 4.6 of his report:
“No, one cannot justify a diagnosis of PTSD.
One considers that Dr Durrell was correct to diagnose Generalised Anxiety Disorder associated with panic attacks. The SoP for this condition, ANXIETY DISORDER, defines it as ‘excessive anxiety and worry (apprehensive expectation), occurring more days than not, for at least 6 months, about a number of events or activities and that the person finds it difficult to control the worry’.. He does not have any of the factors listed in item 5 and there is no known or reported psychosocial stressor.”
submissions and findings
41. In order to make the correct and preferable decision in this matter the Tribunal considered all the evidence, the submissions of the parties, relevant case law and the relevant legislation.
42. The Tribunal finds and the parties do not dispute:
(a)the Applicant served his country in the service of the Royal Australian Navy and has eligible war service, which is also operational service, from 19 March 1969 to 13 October 1969 inclusive;
(b)the Applicant served as a cook on HMAS Brisbane in Vietnam during the period of his operational service;
(c)the Applicant was in Vung Tau harbour on 15 April 1969;
(d)the Applicant did not exhibit any clinically significant symptoms of anxiety until July 1998; and
(e)the date of effect, should the Applicant be successful, is 15 August 1999.
43. As the Applicant has operational service, it is appropriate when considering whether his claimed condition is war-caused for the Tribunal to apply the principles approved by the Full Federal Court in Repatriation Commission v Delidio (1998) 83 FCR 82.
44. In the first instance, however, before considering whether a hypothesis is raised or whether there is a relevant Statement of Principle (SOP) in force, it is necessary to determine the correct and preferable diagnosis of the Applicant’s symptoms of injury or disease. The Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 stated at par 55:
“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 that disease. The diagnosis of that disease, and the determination of whether or no 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).”
diagnosis
45. Mr Dawson, for the Applicant submitted the correct diagnosis is PTSD with delayed onset, pointing to the reports of Dr Dinnen and Dr Durrell. Dr Haik, Mr Dawson submitted, did not properly consider the spectrum of diagnostic criteria set out in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Health Disorders (“DSM-IV”) concerning PTSD. Mr Modder, for the Respondent, submitted that the correct and preferable diagnosis was not PTSD but Generalised Anxiety Disorder, relying on Dr Haik, Dr Durrell and the consistent evidence of Mrs Anderson concerning her husband’s symptoms.
46. The requisite standard of proof when determining questions of diagnosis is the “reasonable satisfaction” standard; Benjamin v Repatriation Commission (supra), Repatriation Commission v Budworth (2001) 116 FCR 200, Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307.
47. The Tribunal considered relevant sections of the DSM-IV, wherein the diagnostic criteria for PTSD that are set out at pages 439 to 440 and those for Generalised Anxiety Disorder that are set out at pages 447 to 448. The Tribunal notes the diagnostic criteria in the DSM-IV are standards set out to guide rather than bind and it is clear from the medical evidence that medical minds may differ on its interpretation, as in the case at hand.
48. With regard to PTSD, the Tribunal notes the following DSM-IV entry at p 435:
“The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct person experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person’s response to the event must involve intense fear, helplessness, or horror…(Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).”
The Tribunal notes the observation at p 438:
“Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before symptoms appear.”
With regard to Generalised Anxiety Disorder, the Tribunal notes the following DSM-IV entry at p 444:
“The essential feature of Generalized Anxiety Disorder is excessive anxiety and worry (apprehension expectation), occurring more days than not for a period of at least 6 months, about a number of events or activities (Criterion A). The individual finds it difficult to control worry (Criterion B). The anxiety and worry are accompanied by at least three additional symptoms from a list that includes restlessness, being easily fatigued, difficulty concentrating, irritability, muscle tension, and disturbed sleep … (Criterion C). The focus of the anxiety and worry is not confined to features of another Axis 1 disorder such as having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia),…and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder (Criterion D). Although individuals with Generalized Anxiety Disorder may not always identify the worries as “excessive”, they report subjective distress due to constant worry, have difficulty controlling the worry, or experience related impairment in social, occupational, or other important areas of functioning (Criterion E). The disturbance is not due to the direct physiological effects of a substance …(Criterion F).
The intensity, duration, or frequency of the anxiety and worry is far out of proportion to the actual likelihood or impact of the feared event. The person finds it difficult to keep worrisome thoughts from interfering with attention to tasks at hand and has difficulty stopping the worry. Adults with Generalized Anxiety Disorder often worry about everyday, routine life circumstances such as possible job responsibilities, finances, the health of family members, misfortune to their children, or minor matters (such as household chores, car repairs, or being late for appointments).”
49. The evidence reveals the Applicant experiences symptoms that may fall within the diagnostic criteria for Generalised Anxiety Disorder, such as fatigue, irritability and difficulty concentrating as submitted by Mr Modder. It is clear, however, that the Applicant also experiences symptoms that fall within the diagnostic criteria for PTSD, such as recurrent and intrusive recollections of traumatic events, recurrent distressing dreams of these events and dissociative flashback episodes that are outside the diagnostic criteria for Generalised Anxiety Disorder. The Tribunal recognises the difficulty diagnosing potentially overlapping mental conditions and notes Dr Haik’s comments at page 7 of his report:
“With some imagination, it might be argued that when Mr Anderson began experiencing panic attacks in 1998/9, he then associated these panic attacks to the panic he may have experienced in 1969 during the one hour that the ship was disabled. In other words, the (theoretical) panic he felt in 1969 at the thought of his ship being attacked might be argued to have been so frightening he dissociated it and it reappeared for the first time in 1998 at the thought of dying from a heart attack. However, once again it is regarded as implausible that this 1969 event was sufficiently awesome to have remained in an emotional container for what must be a record 29 years.”
What Dr Haik regards as implausible, Dr Dinnen and Dr Durrell accept. The delayed variant of PTSD is accepted within the scientific literature and is reported in the booklet entitled “Posttraumatic Stress Disorder (PTSD) and War-Related Stress - Information for Veterans and their Families” published by the Department of Veterans’ Affairs (Exhibit A9) at page 5:
“Some people go for long periods without any significant problems, only to relapse when they have to deal with other major life stresses. In rare cases, the symptoms may not appear for months, or even years, after the trauma.”
50. The Tribunal has, in previous cases, found delayed onset PTSD, for example the case of Re Perkins and Repatriation Commission [1998] S97/187. In the case of Re Perkins the Tribunal found the veteran experienced three traumatic stressors while serving on the HMAS Brisbane in Vietnam in 1969, namely an incident with a gun turret whereby a person was injured, an incident involving a boiler whereby the ship lost power and an incident in which the ship was fired on with tracer bullets at night. The veteran suffered the onset of symptoms in 1996, 27 years after the stressful events, and the diagnosis of delayed onset PTSD was accepted without challenge.
51. The central question of diagnosis that must be addressed, clearly distinguishing PTSD from Generalised Anxiety Disorder, is whether the Applicant experienced, witnessed or was confronted with an extreme stressor or traumatic events that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Applicant or others, which caused the Applicant to experience intense fear, helplessness or horror. It is not necessary at this stage to determine whether or not the disease relates to the Applicant’s operational service nor is it necessary to consider an SoP; Benjamin v Repatriation Commission (supra).
52. The Applicant claims he experienced three traumatic stressors, namely witnessing napalm bombing on arrival in Vung Tau harbour, an incident whereby a forward gun turret blew up and a crewman, Benny Mitchell, lost three fingers, and an incident whereby the ship lost power at night “on the gun line” in consequence of a boiler tube exploding and was “a sitting duck”.
53. The Tribunal is mindful that the diagnostic criteria in DSM-IV require the objective existence of traumatic stressors, there being no scope for subjective assessment except in consideration of whether or not the veteran experienced intense fear, helplessness or horror; Re Budworth and Repatriation Commission [2000] AATA 127. For the purpose of considering the diagnosis of the Applicant’s condition only, the Tribunal has made findings of fact in relation to the events on board HMAS Brisbane.
54. The Applicant did not refer to the gun turret incident in his oral evidence before the Tribunal, placing primary reliance upon the napalm bombing incident and the boiler incident.
the napalm bombing incident
55. The Applicant gave evidence he witnessed napalm bombing on his first visit to Vung Tau and that this caused his to be “very frightened” and “just wanting to get out of there”.. It was his evidence that the ship was not endangered but the bombing “blew hell out of people on the beach and in the jungle behind the beach…couldn’t see how much damage was done”. The Applicant’s description of what he claimed as a vivid memory despite the passage of years appears consistent with a similar event described in the statement of Mr Garry Cheney dated 14 August 2002 (Exhibit A6), in which Mr Cheney states:
“I, whilst on duty in the war Zone from memory [sic- in] the Vung Tau area, aboard HMAS Brisbane [sic – in] 1969, did witness napalm drops by US Forces.
I was on duty as one of the lookouts on the flagdeck during daylight hours. We, the previous night had been involved in bombing assistance to US Forces. I feel it was approximately midday to afternoon, I was on duty as the Port Lookout when several (maybe 2 or 3) Crusader Aircraft came in from forward of out ship heading to aft over a beach, which was visible to me through the large binoculars (linked to the Mount 51 and 52 Turrets Systems) and dropped Napalm on the beach.
My memory has no doubts in relation to this as I remember vividly two points:
· How startling and damaging it was.
· That humans could be seen running along the beach and from the jungle fringe onto the beach and then there was nothing.”
56. Relying on the reports of Mr Tillbrook and Mr Mulcare, Mr Modder submitted that there had been no napalm bombing in the Vung Tau harbour on 15 April 1969, the day of the Applicant’s first visit to Vung Tau. Mr Mulcare reported that Admiral Beaumont (Rtd), who was Executive Officer on HMAS Brisbane in 1969, “says he was on the upper deck as the ship entered harbour and he does not recall any napalm bombing” and Vice Admiral Taylor (Rtd), who was the ship’s navigating officer in 1969 “does not recall any napalm bombing but believes he would recall this sort of activity”..
57. Mr Dawson attacked the records interrogated by Mr Tillbrook and Mr Mulcare, noting the likelihood of deficiencies in the records and the illogicality of events during the war. He argued that the inability of Admiral Beaumont (Rtd) and Vice-Admiral Taylor (Rtd) to recall witnessing napalm bombing on 15 April 1969 did not amount to evidence that such bombing did not occur. Mr Dawson submitted that Mr Cheney’s statement finds support in the statement by Mr Peter Maher, National Secretary of the HMAS Brisbane Association, that is in evidence before the Tribunal (Exhibit A4). Mr Maher opined:
“As the ship itself was not subject to attack by napalm bombing there would be no reason to make an entry in the Ship’s Log or Report of Proceedings, however I have been contacted by three former crew members, which responded to the general question “During your time on the ship, did you witness any Napalm bombing on shore?” Two of these refer to seeing a bombing attack on a beach, the other witnessed a bombing attack on hills adjacent to the shore…”
The Tribunal upheld objections by Mr Dawson to admission of hearsay evidence recounted by Mr Tillbrook and places no weight on the hearsay evidence here presented by Mr Maher in his statement. The Tribunal accepts Mr Cheney’s statement but notes that Mr Cheney does not record the date or other temporal information about the event he witnessed. There is no record of any such napalm attack in the HMAS Brisbane Report of Proceedings for April 1969, which is perhaps not surprising , for as Mr Allan Smith, who performed the duties of Captain’s Secretary on the HMAS Brisbane in 1969 and was responsible for typing the monthly Reports of Proceedings, reported in his statement in evidence before the Tribunal (Exhibit A5):
“It would be impossible to include all incidents associated with the ship’s operations in these reports and consequently there were incidents/observations etc that were omitted…Due to the passage of time I don’t recall specific incidents but I do recall clearly that not everything was reported.”
The evidence from the ship’s Report of Proceedings is that HMAS Brisbane anchored in Vung Tau harbour at 0700 hours on 15 April 1969, mail was taken on board, officers were briefed in the “forenoon” and the ship departed at 1200 hours on that day, thereafter commencing “harassment” bombardment at 1300 hours which concluded at 1559 hours.
58. The Tribunal accepts the fallibility of recording keeping in times of war and is reasonably satisfied the Applicant and Mr Cheney witnessed napalm bombing off the port side of HMAS Brisbane while entering Vung Tau harbour that involved actual or threatened death or serious injury of those under attack and that this experience caused the Applicant to experience intense horror and fear.
the boiler incident
59. There is no doubt concerning the occurrence of the boiler incident on the night of 18 April 1969, which is recorded in the ship’s Report of Proceedings (Exhibit R3, Attachment 2 p3). By his own admission Mr Mulcare may not have reported the comments of retired Admiral Beaumont comprehensively, whereby further light may have been shed upon the events of that night. The Tribunal notes Admiral Beaumont’s opinion that the incident would have been very stressful for those sailors directly involved and that the majority of the ship’s company remained unaware of the extent of the difficulties until after the event was over. The Applicant’s undisputed evidence was that he was working near a hatch to the engine room and, contrary to Admiral Beaumont’s opinion, was aware of the extent of the difficulties they were in having overheard and discussed this with repair crew being rotated through the engine room hatch.
60. Admiral Beaumont’s reported observation that the quarterdeck star was not illuminated during the period the ship was without power does not indicate that the star was not illuminated when emergency power was restored with the use of an auxiliary generator, and is not, therefore, inconsistent with the Applicant’s evidence that he observed the star was illuminated when he went in fear during the incident to the quarterdeck for that purpose.
61. The Tribunal is reasonably satisfied the boiler incident occurred as described by the Applicant and that it caused him to experience intense fear and helplessness in the face of a real threat to the physical integrity of the ship and all those on board. Noting Mr Mulcare’s report concerning the incident involving HMAS Hobart in 1968, the Tribunal does not accept that the ship was not in any danger of coming under either enemy or “friendly” fire while without power on the gun line off the coast of South Vietnam in 1969.
62. The Tribunal is reasonably satisfied that the Napalm Bombing incident and the Boiler incident constitute extremely stressful traumatic events for the purpose of diagnosis.
63. There is no disagreement between the parties that the Applicant’s psychiatric symptoms became clinically significant in consequence of his heart scare incident in July 1998. The probability that the Applicant’s heart scare in 1998 triggered the symptoms of psychiatric disorder is generally accepted by the medical experts in evidence. Dr Durrell and Dr Dinnen clearly draw a causal connection between the Applicant’s war experiences and his current symptoms despite the significant period of delay prior to the onset of clinically significant symptoms. Their conclusion is given weight by the Applicant’s evidence of intrusive flashbacks and nightmares concerning the napalm and boiler incidents, which are recorded by Doctors Haik, Dinnen and Durrell. The evidence reveals the Applicant avoids activities and people associated with his Vietnam experiences, has a marked diminution of interest and participation in previously significant activities such as football, fishing and golf and feels detached or estranged from others, especially from those with whom he previously socialised.
64. The Tribunal considered the reports of Dr Haik and Dr Dinnen in detail, noting Dr Haik adopts and advocates a narrow interpretation and Dr Dinnen adopts a broader interpretation of “traumatic event” and the diagnostic criteria for PTSD that are set out in the DSM-IV. Dr Durrell, the Applicant’s treating Psychiatrist, originally diagnosed delayed onset PTSD and subsequently observed that “the DVA psychiatrist who reviewed this case, may not feel comfortable with the “broader” view of PTSD” whereupon he proceeded to review the Applicant’s condition in a “narrow sense” and accepted “his symptom cluster to be consistent with a severe Generalised Anxiety disorder with panic attacks”. The divergence of medico-legal opinions concerning the interpretation of diagnostic criteria in DSM-IV is nothing new in cases concerning pension claims under the Act on the basis of PTSD. As Senior Member Allen observed in Re Chaplin and Repatriation Commission [2000] AATA 688, the DSM-IV is an epidemiological tool that should not be used for forensic purposes as a “cookbook”.
65. The Tribunal has the benefit of observing the Applicant during the hearing and finds the significant distress he experienced while giving evidence about his experiences in Vietnam was genuine, warranting an adjournment of proceedings. His honesty as a witness was not challenged.
66. Considering all of the evidence and preferring the opinions of Dr Dinnen and Dr Durrell the Tribunal is reasonably satisfied that the Applicant is suffering from PTSD with a delayed onset.
67. This being the case, the approach to be adopted is that set out by the Full Federal Court in the case of Delidio (supra):
“1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
68. Mr Dawson submitted the material points to a hypothesis of causation whereby the incidents the Applicant experienced while on operational service in Vietnam in 1969 caused a PTSD which did not become apparent until the Applicant experienced a heart scare in 1998. The facts are not in question at this stage. While there are differences of medical opinion, between Dr haik and Dr Dinnen for example, the hypothesis is not contrary to proven or known scientific facts. It is not obviously fanciful, impossible, incredible or absurd, nor is it untenable, too remote or too tenuous; East v Repatriation Commission (1987) 16 FCR 517 at 532. The material placed before the Tribunal points to the hypothesis contended for the Applicant. The first stage of the Delidio formulation is satisfied.
69. The Tribunal finds an SoP determined by the Repatriation Medical Authority pursuant to section 196B of the Act is in force for the condition of PTSD, being Instrument No. 3 of 1999 as amended by Instrument No.54 of 1999. The definition of PTSD set out at sub clause 2(b) of the SoP is derived from DSM-IV and is consistent with the disorder the Tribunal has found the Applicant to be suffering.
70. This being the case, step two of the Delidio formulation is satisfied.
71. It is thus necessary to determine whether or not the hypothesis raised is consistent with the SoP template and therefore reasonable. The Tribunal is mindful of the Full Federal Court judgement in Repatriation Commission v Hill [2002] FCAFC 192 at par 57:
“…the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.”
72. The SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the person’s relevant service. The factor relied upon by the Applicant in this case is factor 5(a) of the SoP No.3 of 1999:
“experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;”
The phrase “experiencing a severe stressor” is defined in clause 1(A) of the SoP No.54 of 1999 in the following terms:
“’experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
73. In consideration of matters of diagnosis the Tribunal has found the Applicant experienced, witnessed or was confronted by traumatic events sufficient to cause PTSD. The question that must be addressed under the SoP is whether these traumatic events are consistent with “experiencing a severe stressor”, as defined, prior to the clinical onset of PTSD. The SoP provides guidance to decision makers considering this question, setting out three indicative events that qualify as severe stressors. It is to these the Tribunal now turns.
74. Mr Modder submitted that the indicative events are intended to convey the severity of the event comprehended by the definition, relying in this purpose on Freeman v Repatriation Commission [2002] FCA 576. The Tribunal agrees that the role of the exemplars within the context of the “experiencing a severe stressor” definition is one of conveying the severity of the event comprehended by the definition.
75. It is necessary to determine whether or not the traumatic events claimed by the Applicant fall within the terms of the definition of “experiencing a severe stressor” set out in the SoP. The Tribunal considered the meaning of the words “death”, “witnessed”, “experienced” and “confronted” in Re Slattery and Repatriation Commission [1998] Q96/1011 at paras 78 and 79. Adopting the ordinary meanings of those words, the material before the Tribunal points to the Applicant experiencing, witnessing or being confronted by events (the Napalm Bombing incident and the Boiler incident) that involved the actual or threatened death or serious injury or a threat to the physical integrity of self or others, whereupon he experienced intense fear, helplessness or horror.
76. The material points to the Applicant witnessing napalm bombing from a vantagepoint on HMAS Brisbane. The sworn evidence of the Applicant and Mr Cheney indicates that the bombing constituted a hostile engagement with the enemy and involved the threat of serious injury or death to persons in the target area, even though there was no direct threat to either the Applicant or to the HMAS Brisbane.
77. The second traumatic event that is raised by the material before the Tribunal is that of the boiler incident. The evidence of Admiral Beaumont imparts something of the threat the HMAS Brisbane faced when she lost power on the gun line at night off the coast of South Vietnam even though he considered that most of the crew were not fully aware of this at the time. Mr Mulcare gave evidence that HMAS Hobart had been struck by “friendly” missiles in similar circumstances off the coast of North Vietnam in 1968. The material before the Tribunal points to the disabled vessel facing the threat of “friendly” or enemy fire in a theatre of war. The threat thus faced by the ship’s company during the period of the disablement is the threat of serious injury or death without any foreknowledge of what would occur. It is in this context that the experience of the Applicant, being aware of the extent of the difficulties the ship was in and the casualties that resulted from the attack on the HMAS Hobart in similar circumstances, must be considered. It is only with the benefit of hindsight, the threat having not materialised into an attack on the disabled vessel and in the absence of serious injury or death, that the severity of the threat may be diminished or dismissed.
78. The Tribunal is satisfied that the Applicant did experience a severe stressor as defined in SoP No.54 of 1999. The medical evidence indicates the clinical onset of the Applicant’s PTSD occurred in July 1998 or soon thereafter. This being the case the Tribunal finds the Applicant experienced a severe stressor prior to the clinical onset of PTSD, satisfying factor 5(a) of SoP No3 of 1999.
79. The Tribunal is satisfied, therefore, that the hypothesis raised is consistent with the template of the SoP and in consequence is a reasonable hypothesis for the purposes of subsection 120A(3) of the Act. The third step of the Delidio formulation is satisfied.
80. Turning to the fourth Delidio step, the Tribunal notes the application will succeed unless one or more of the essential facts of the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material that is inconsistent with the hypothesis is proved beyond reasonable doubt, thereby disproving the hypothesis.
81. The hypothesis relies upon the Applicant experiencing severe stressors as claimed. Mr Modder submitted that the napalm bombing in Vung Tau harbour did not occur on 15 April 1969, pointing to the absence of records and the inability of two senior officers to recall such an event in proof of fact. Having accepted that record keeping in time of war is fallible, to the extent that all events and incidents are not recorded, the Tribunal finds the absence of records alone is not sufficient, in this case, to dislodge the Applicant’s sworn testimony. It is perhaps significant that neither Admiral Beaumont (Rtd) nor Vice Admiral Taylor (Rtd) were reported by Mr Mulcare to rule out the occurrence of an attack they could not recall. The inability of two senior officers to recall an event more than 30 years ago must be weighed against the statement of Mr Cheney, who reports a vivid and painful memory of witnessing napalm bombing in circumstances that are consistent with those reported by the Applicant. Weighing up the evidence, it follows that the absence of records coupled with the absence of two senior officers’ recollection is not sufficient to disprove the Applicant’s sworn testimony that is corroborated by the statement of Mr Cheney. The Tribunal finds, therefore, there is no evidence to prove beyond reasonable doubt that the napalm bombing witnessed by the Applicant and Mr Cheney did not occur.
82. If the Tribunal is wrong in this finding, there is no question the second incident relied upon by the Applicant occurred on the night of 18 April 1969. The essential question here is not one of occurrence, however, it goes to the level of the threat experienced by the HMAS Brisbane and her crew having lost power and way five miles or so off the South Coast of Vietnam on the gun line during operations. The Tribunal finds no evidence to prove the HMAS Brisbane and those aboard did not face the threat of serious injury or death in those circumstances. It is not sufficient to measure threat, which by ordinary definition is prospective, being the approach of something unwelcome or the indication of possible harm to come, by the absence of harm in hindsight. Admiral Beaumont’s cryptic comment concerning his suspicion the “ship’s company remained unaware of the extent of the difficulties we were in” (Exhibit R4 Attachment 1) appears to indicate the level of threat was greater than that attributed to him by Mr Mulcare, who reported “Admiral Beaumont recalls the ship was about five miles or more off the coast and was not in any danger.” (Exhibit R2, p2). The Tribunal finds there is no evidence to disprove, beyond reasonable doubt, that the crew of the HMAS Brisbane faced the threat of serious injury or death on the night of 18 April 1969.
83. The 29 year delay in the onset of symptoms of PTSD was placed in issue by Mr Modder in reliance upon Dr Haik’s report. The Tribunal accepts that 29 years is a long period of delay between the experience of severe stressors and the onset of PTSD symptoms. There is no evidence before the Tribunal, however, to prove beyond reasonable doubt, that such a delay is without scientific basis or falls outside accepted medical understanding of this condition. On the contrary, the evidence before the Tribunal suggests that in some rare cases the delay in onset of PTSD symptoms may be measured in years, as occurred in the case of Re Perkins (supra).
84. There is no onus of proof on either party pursuant to section 120(6) of the Act. The Tribunal finds it is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant’s PTSD is war caused pursuant to subsection 120(1) of the Act.
85. Brennan J said in Repatriation Commission v O’Brien (1985) 155 CLR 422 at p 438:
“If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt.”
The Tribunal finds that the reasonable hypothesis in the present case, connecting the Applicant’s PTSD with his operational service, is not dispelled beyond reasonable doubt.
86. This being the case, the Tribunal, turns to consider the Applicant’s impairment ratings pursuant to the “Guide to Assessment of Rates of Veterans’ Pensions” (“GARP”).
87. The Applicant has an impairment rating of 20 points in respect of the accepted condition of bilateral sensorineural hearing loss and tinnitus, which the Tribunal has no reason to disturb.
88. Dr Dinnen and Dr Haik assessed the Applicant’s psychiatric disability pursuant to Table 4 of GARP. Considering these assessments and the material before it, the Tribunal prefers and accepts Dr Dinnen’s assessment of the Applicant’s impairments. Dr Haik’s assessment and the stated reasons for it are not consistent with the evidence before the Tribunal and are not accepted therefore.
89. The Tribunal finds the Applicant has the following impairment ratings:
(a)Table 4.1 – Subjective Distress: 10
(b)Table 4.2 – Manifest distress: 10
(c)Table 4.3 – Functional effects: 1
(d)Table 4.4 – Occupation: 1
(e)Table 4.5 – Domestic situation: 2
(f)Table 4.6 – Social interaction: 3
(g)Table 4.7 – Leisure activities: 2
(h)Table 4.8 – Current therapy: 5
90. This being the case, the Tribunal finds the Applicant has a final rating for psychiatric impairment of 30. Applying the combined values chart at Chapter 18 of GARP, a combined impairment rating of 44 is thus derived. With regard to lifestyle ratings, the Tribunal finds the evidence supports the following assessments:
(a)Table 22.1 – Personal relationships: 4
(b)Table 22.2 – Mobility: 1
(c)Table 22.3 – Recreational and community activities: 3
(d)Table 22.4 – Domestic activities: 1
(e)Table 22.5 – Employment activities: 2
These ratings combine to provide a lifestyle rating of 3.
91. The degree of incapacity is to be calculated in accordance with Table 23.1 at Chapter 23 of GARP. The Applicant’s impairment and lifestyle ratings convert to a pension at 80 percent of the General Rate.
92. Having considered all of the material before it, the Tribunal is satisfied that the Applicant is entitled to be paid a pension at 80 percent of the General Rate from 15 August 1999.
decision
93. The Tribunal determines to set aside the decision under review and, in substitution therefor, decides:
(a)to affirm the decision in respect of bilateral sensorineural hearing loss and tinnitus
(b)the Applicant’s PTSD is war caused; and
(c)the Applicant is entitled to a disability pension at 80 percent of the General Rate on and from 15 August 1999.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: L Bonouvrie
AssociateDate of Hearing 4 February 2003
Date of Decision 29 April 2003
Counsel for the Applicant Mr DawsonRepresentative for the Respondent Mr Modder
0
11
0