Armstrong and Repatriation Commission
[2005] AATA 180
•4 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 180
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1062
VETERANS’ ADMINISTRATIVE DIVISION ) Re RODNEY JAMES ARMSTRONG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Member SC Fisher Date4 March 2005
PlaceBrisbane
Decision The Tribunal decides to affirm the decision under review.
....................[Sgd]......................
S C Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war caused injury during operational service – post-traumatic stress disorder – Whether post-traumatic stress disorder is war-caused – Event experienced not a severe stressor – Tribunal not satisfied that applicant suffers from post-traumatic stress disorder – decision under review affirmed.
Veterans’ Entitlements Act 1986 s174-176
Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98.
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Hillier v Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Repatriation Commission v Stoddart [2003] FCAFC 300
Repatriation Commission v Gorton (2001) 110 FCR 321,
Hillier v Repatriation Commission [2004] AATA 897
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Ahrens and Repatriation Commission [2004] AATA 943
Repatriation Commission v Deledio (1998) 83 FCR 82.
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Bey (1997) 79 FCR 364
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Woodward v Repatriation Commission [2003] FCAFC 160
Stoddart v Repatriation Commission (2003) 197 ALR 283
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356REASONS FOR DECISION
4 March 2005 Member SC Fisher Introduction and background
1. Mr Rodney James Armstrong (the Applicant) served in the Australian Regular Army from 19 July 1996 to 19 February 1995, during which period he served in South Vietnam from 24 March 1969 to 18 March 1970.
2. On 29 October 2002 the Applicant submitted a claim to the Department Veterans’ Affairs for “nerves” on the basis that this condition was related to his South Vietnam service. The Repatriation Commission (the Respondent) decided to treat his claim as a claim for post traumatic stress disorder (PTSD). On 22 May 2003, the Respondent decided that the PTSD of the Applicant was not related to service.
3. On 24 June 2003 the Applicant appealed to the Veterans’ Review Board for review of the Respondent’s decision of 22 May 2003. On 4 September 2003, the Veterans’ Review Board affirmed the 24 June 2003 decision of the Respondent.
4. On 19 December 2003, the Applicant appealed to the Administrative Appeals Tribunal for review of the 22 May 2003 decision of the Respondent, as affirmed by the Veterans’ Review Board that his PTSD was not related to his service.
Jurisdiction
5. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
6. The decision under review is the 22 May 2003 decision of the Respondent, as affirmed by the Veterans’ Review Board that the medical condition of PTSD suffered by the Applicant was not related to his service.
The Role of the Tribunal
7. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
The Material Before the Tribunal
8. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Statement of Rodney James Armstrong dated 17 February 2004.
Exhibit 3Statement of Rodney James Armstrong dated 14 October 2004.
Exhibit 4Statement of Russell Dudley Beynon dated 11 August 2004.
Exhibit 5Statement of James Michael Calnin of 19 April 2004.
Exhibit 6Report of Dr Ben Steinberg dated 14 March 2004.
Exhibit 7Report of Dr David Alcorn dated 10 May 2004.
Exhibit 8Bundle of photographs taken by the camera used by Rodney James Armstrong.
Exhibit 9Statement of Ann Elizabeth Armstrong dated 11 November 2004.
9. The Applicant was represented by Mr AC Harding of counsel. Mr Harding was instructed by Gilshenan & Luton. Exhibits 1 – 6 and 8 and 9 were lodged on behalf of the Applicant.
10. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. Exhibit 7 was lodged on behalf of the Respondent.
11. The Respondent was represented by Mr J Kelly, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
12. Neither party lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Issue
13. The issue before the Tribunal is whether the Applicant’s condition of PTSD is war-caused within the meaning and operation of section 9 of the Act. It is common ground that if the Applicant is successful in his claim, the date of effect would be 29 July 2002.
Evidence
14. The Applicant gave evidence in person. Other witnesses called on behalf of the Applicant were Russel Dudley Beynon, James Michael Calnin, Ann Elizabeth Armstrong and Dr Ben Steinberg.
15. The Respondent called evidence from Robert Douglas Arnold, Zorian Tarnawsky, Kevin James Fisher and Dr David Alcorn.
Evidence of the Applicant
16. The evidence of the Applicant (who was cross-examined but not re-examined) to the Tribunal can be summarised as follows:
A.During his South Vietnamese service, the Applicant was posted to 2 Advanced Ordnance Depot (2AOD) at Vung Tau where he was deployed with the vehicle platoon. One of his roles was to clean and decontaminate battle-damaged tanks, armoured personnel carriers and other vehicles before they were shipped back to Australia.
B.Base plates of tanks and armoured personnel carriers had to be removed in order to clean them properly. In the bilge area there was sometimes human flesh and bone fragments. The Applicant said that when he saw bloodstains and bits of human tissue and bone fragments inside vehicles that he either said aloud or thought “this is bad”, “what a waste”, “how hopeless is this” and “what can you do”. The Applicant said “it was horrible. I hated it”.
C.In cross-examination, the Applicant said that the bits of human tissue were about the size of a 50 cent piece. The Applicant said that he saw this in just about every battle-damaged armoured personnel carrier that he helped to clean.
D.On one occasion, the Applicants saw a boot that had been jammed inside the wreckage of a vehicle that had the remains of a foot inside it. The Applicant said that he did not report this find to a superior officer, but that the boot was taken to the field hospital for someone there to dispose of it.
E.Superior officers occasionally inspected vehicles after cleaning but not before. Sometimes superior officers had a quick look inside a battle tank, armoured personnel carrier or other vehicle that had been particularly badly damaged, but this would not amount to a detailed inspection.
F.Even though ammunition found in vehicles was supposed to be taken away to an ammunitions stores area (armoury), often it was just thrown into the dam next to the vehicle washing area.
G.The Applicant said that the washpoint for the vehicles was about 50 – 60 metres away from the helipad where helicopters would bring in wounded and dead soldiers to the field hospital. The Applicant said that he could see the dead and wounded soldiers being carried in on stretchers to the field hospital, and sometimes walking wounded, from the washpoint. In the Applicant said that he disagreed with statements in reports that he had seen that indicated the walkway from the helipad to the field hospital was covered or screened so that was not possible to see casualties. The Applicant said he could see soldiers with wounds and bandages quite clearly.
H.The Applicant said that during his Army service, he never felt that he was accepted by his Army peers even though he got good annual reports from his superior officers. His attitude was that he would do the job irrespective of whose toes he trod on.
I.The Applicant said that he never really felt accepted by society once he left the Army and became a part of ordinary civilian life. The Applicant said that he felt “alienated” from everyone else, especially when he came into contact with anti-war demonstrators on R & R in Australia and after he returned from Vietnam.
J.The Applicant said that his PTSD went back to his time in Vietnam.
K.The Applicant said that one of the reasons why he left the Army was because he couldn’t keep up with the physical demands of the job and that he did not like the way that the services were heading and the demands that this put on him.
L.It was in 1995 when the Applicant was a junior football coach for an Australian Rules football team that he was invited to a residence in Brisbane to attend a barbecue. A woman confronted him about his military service and accused him of being a child rapist and murderer. The Applicant said that he was so upset at this that he upended a table on which was situated food and drink and walked out of the function with his wife.
M.Following the 1995 barbecue episode, the Applicant said that he retreated inside himself, that he went “into my shell” and that he avoided talking about how he felt with his wife for quite a while.
N.The Applicant said that when he goes to Brisbane Lions games he arrives early before the crowd arrives in numbers and stays until the most of the people have gone so that he doesn’t have to have a lot of contact with people.
Evidence of Dr Ben Steinberg
17. Dr Ben Steinberg, Psychiatrist, gave evidence on behalf of the Applicant by telephone and was cross-examined. A summary of the Dr Steinberg’s evidence is as follows:
A.Dr Steinberg’s evidence-in-chief consisted of his report of 4 March 2004. Included in the Tribunal documents (Exhibit 1) was an earlier report of February 2003 (the date of this report could not be gleaned from the Tribunal papers, but in the oral evidence of Dr Steinberg disclosed that the report was made on 27 February 2003).
B.Dr Steinberg identified four stressors in his 27 February 2003 report as recounted to him by the Applicant: (1) the helicopter transport of dead and wounded soldiers to the field hospital near to the place where he worked washing vehicles; (2) seeing blood inside vehicles he was cleaning and decontaminating; (3) being acquainted with a soldier in Vietnam who died in an accident from exploding phosphorus; and (4) changes taking place to Army life made it difficult for him to keep up with changes and also the lack of closeness between Applicant and his military colleagues.
C.Dr Steinberg said in his 27 February 2003 report: (1) that the Applicant has “309.81 PTSD” in that he witnessed and was exposed to death in Vietnam and the traumatic events are re-experienced in the form of recurring distressing dreams; and (2) the Applicant is avoidant, avoiding places and activities that arouse recollections of the trauma, and that he tries to avoid conversations associated within the trauma; and (3) the Applicant experiences detachment and estrangement to his children from his first marriage. The Applicant sees a sense of foreshortened future in that he feels no longer able to work; and (4) the Applicant has persistent symptoms of increased arousal with difficulty with sleep, irritability, difficulty with concentration and an exaggerated startle response.
D.Dr Steinberg said in his 27 February 2003 report that the Applicant has a “guarded” prognosis.
E.Dr Steinberg said in his 4 March 2004 report that the Applicant still exhibits residual symptoms of PTSD, and that these are chronic and that there is little likelihood of further improvement and that the Applicant is left with permanent disability as result. Dr Steinberg also said that the Applicant’s orthopaedic conditions may well aggravate the increased arousal symptoms of his PTSD.
F.Dr Steinberg said that the Applicant had told him he had seen human remains in vehicles that he was washing and that he “hated” this.
G.Dr Steinberg said that the Applicant had told him that he was distressed when he saw dead and wounded soldiers and he re-experienced this letter in the form of dreams about dead bodies as well as body parts.
H.Dr Steinberg said the history of the Applicant’s symptoms concerning social interactions from 1983 onwards as reported to him by Applicant and also by the Applicant’s wife was consistent with PTSD from his time in Vietnam.
I.Dr Steinberg said in cross-examination that the PTSD had delayed onset, allowing for the fact that the Applicant had a successful Army career after his service in Vietnam. The onset of PTSD was dated back to 1993 after the barbecue experience.
J.Dr Steinberg said that the Applicant’s Army experience after Vietnam would not cause PTSD, even if he was having difficulty coping with the changes in Army life.
Evidence of Russell Dudley Beynon
18. Russell Dudley Beynon gave evidence in person on behalf of the Applicant. Mr Beynon provided a witness statement dated 11 August 2004, which became Exhibit 4 in these proceedings. The essence of the evidence provided by this witness is as follows:
A.Mr Beynon said that he served in the Australian Regular Army from April 1967 to July 1987, and in South Vietnam from 8 March 1970 to November 1970, and was part of the vehicle platoon 1 AOD at Vung Tau.
B.In his 11 August 2004 statement, Mr Beynon deposed that he was called over to an armoured personnel carriers members being washed out in order to view a piece of flesh as big as a fillet steak from which emanated a “stenchy smell”. In his evidence-in-chief, Mr Beynon said that it was definitely “some sort of meat – flesh”. This piece of flesh was “frothy around the outside” and was “pretty decayed”.
C.In cross-examination, Mr Beynon said in response to a question about the nature of the object found “could have been anything because I am not an expert, but it definitely looked like flesh to me”.
Evidence of James Michael Calnin
19. James Michael Calnin gave evidence on behalf of the Applicant by telephone. Mr Calnin provided a witness statement dated 19 April 2004, which became Exhibit 6 in these proceedings. A summary of the evidence of this witness is set out next:
A.Mr Calnin said that he worked under the supervision of the Applicant, who was a corporal while he was a private.
B.Mr Calnin said in his statement that they were “numerous occasions” where soldiers discovered blood and human remains in damaged vehicles.
C.Mr Calnin said that superior officers did not conduct a “full-on inspection” of vehicles that were of interest to them. On the few occasions when superior officers did come down to check vehicles, all they did was to have a “look”.
D.Mr Calnin said in cross-examination that he found chips of human bone about the size of a 50 cent piece and some dark stains that he took to be blood on the interior of vehicles. He reported finds of human remains to the Applicant who dealt with them by taking them away.
Evidence of Ann Elizabeth Armstrong
20. The evidence of the Applicant’s wife, Ann Elizabeth Armstrong, who provided a witness statement dated 11 November 2004 which was taken into evidence as Exhibit 9, is summarised as follows:
A.Mrs Armstrong said that she met the Applicant in November 1983, entered into relationship with him and moved in together as a de facto couple in February 1984 and later married in July 1985.
B.Mrs Armstrong said that when she first met the Applicant, he was always getting into fights, that he was very tense, and that he could not be approached from behind without being warned beforehand and that he had very difficult relationships with people.
C.Mrs Armstrong said that the Applicant had bad dreams at night during sleep that would wake him up.
D.Mrs Armstrong described the difficulties associated with family life, with the Applicant’s irritability, sudden and abrupt mood changes and the estrangement of the Applicant from three of his four children.
E.Mrs Armstrong said that her husband’s irritability impacted on her social life, causing it to be curtailed significantly.
F.Mrs Armstrong said that her husband became very withdrawn after the barbecue incident in 1993.
G.Mrs Armstrong described how her husband was very tense in crowd and public situations, and recounted the measures that he took to avoid interacting closely with people in restaurants and at the football.
H.Mrs Armstrong recounted the difficulties that her husband had in operating his lawn-mowing business after he left the Army and in dealing with customers, to whom he was often rude and abrupt.
Respondent’s Evidence
21. The Respondent called evidence from Dr David Alcorn, Zorian Tarnawsky, Robert Douglas Arnold and Kevin James Fisher.
Evidence of Dr David Alcorn
22. Dr David Alcorn, Psychiatrist provided a medical report dated 10 May 2004 (which became Exhibit 7 in these proceedings) based upon an examination of the Applicant on 2 April 2004. Dr Alcorn also holds the degrees of LLB(Hons), LLM and SJD. Dr Alcorn gave evidence in person. A summary of Dr Alcorn’s evidence is as follows:
23. Dr Alcorn’s report stated 10 May 2004 concluded that the Applicant does not manifest features of PTSD, with the following features being of significance:
24. Dr Alcorn opined that the subject does NOT manifest features of Post Traumatic Stress Disorder. In particular I note the following:
§ absence of avoidance of contact with other veterans;
§ ability to relate to Asian nationals over a prolonged period following Vietnam service (serving as the sole Australian Defence Force member in a Malaysia Army unit as recently as 1990-1992);
§ absence of contemporaneously experiences of horror, apart from reported “body parts” viewing (i.e. in the military vehicles and at a distance, seeing casualties being transported from the helipad to the hospital);
§ absence of functional impairment in relation to Vietnam service command of subordinates;
§ ability to achieve;
- significant, enduring and repeated post-Vietnam promotions after limiting alcohol use;
- sensitive and sought after military postings (e.g. 2 year Malaysian Army posting);
§ absence of neurovegetative disturbance (except sleep);
§ reported intrusive symptoms (e.g. “flashbacks” and other upsetting reported memories);
- completely centred on factually-disputed “body parts” viewing; and
- repeatedly expressed in imprecise terms despite direct questioning (and details recollection of other aspects of Vietnam service);
§ ability to voluntarily and permanently curtail alcohol use in order to benefit his relationship/marriage to his current wife; and
§ ongoing maintenance of emotionally warm and affectionate relationships with his wife and children.
25. It is my opinion that the subject did develop an Adjustment Disorder in the late 1990s or early 2000s following some irritability about lifestyle and other changes attendant on:
§ choosing to retire from the Australian Defence Force (apparently contemporaneous with the retirement of ten other members);
§ becoming a small business proprietor; and
§ later having to leave that business due to pain
26. It is my opinion that there is NO reasonable hypothesis to connect the Adjustment Disorder condition with the circumstances of the subject’s Vietnam service.
27. His changed life status occurred after he had commanded considerable respect, attention and praise from those he served with in the military over many years, including more than two decades service after his Vietnam posting.
28. The Adjustment Disorder appears to have been subsequently stabilised with antidepressant treatment by his treating psychiatrist, Dr Steinberg. It is of note that the subject has not required cognitive-behaviour therapy or any other non-supportive psychotherapy (based solely on the subject’s history).
29. His claim-related conflict with the Department of Veterans Affairs has produced some exacerbation of the Adjustment Disorder symptoms.
30. There is no current evidence of substance abuse. There was no evidence of personality disorder.
31. Using the Diagnostic and Statistical Manual – Fourth Edition, Text Revision, Multiaxial Classifacatory System of the American Psychiatric Association, I would accord the following diagnoses:
Axis I Adjustment Disorder (in part remission)
Axis II No personality disorder diagnosis
Axis III Back and knee problems
Axis IV Pain from back and knee problems
Axis VThe subject described his functioning in terms suggesting a mild impairment of function (Global Assessment of Functioning Scale Score = 71-80).
32. It is my opinion that there is NO consistent and persuasive evidence that, on the balance of probabilities, as opposed to possibilities, the subject developed a psychiatric disorder as a result of his service in Vietnam.
33. The subject’s Adjustment Disorder is likely to remain in stable semi-remission with ongoing antidepressant treatment. Additionally, involvement in alternate activities that provide self-esteem might also benefit him (e.g. involvement in his family’s activities).
34. The subject manifests the following impairments:
Psychiatric Impairments
Class of Impairment (Example Only)
Self-care and personal hygiene
Class 1: No deficit, or minor deficit attributable to the normal variation in the general population
Social and recreational activities
Class2: Mild impairment: Occasionally goes out to social events without needing a support person, but does not become actively involved:
Travel
Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Concentration, persistence and pace
Class 2 Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to thirty minutes, eg then feels fatigued or develops headache.
Adaption
Class 1: No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the person’s education and training. The person is able to cope with the normal demands of the job.
Whole person impairment
It is my opinion that the subject has a slight 2% whole person impairment arising from his post-retirement Adjustment Disorder
Evidence of Zorian Tarnawsky
35. Mr Zorian Tarnawsky gave evidence on behalf the Respondent by telephone. Mr Tarnawsky did not supply a witness statement. A summary of the evidence given by this witness so far as it concerned with the issues of this appeal is set out next:
A.Mr Tarnawsky was a lieutenant at 2 AOD with responsibility for the vehicle platoon and the vehicle spares platoon while he served in Vietnam at Vung Tau between August 1969 to August 1970.
B.Mr Tarnawsky said that during his time at 2 AOD none of the soldiers who worked under his command reported finding human remains during the cleaning of any of the vehicles.
C.Mr Tarnawsky said that when helicopters came in having medivacced soldiers from combat zones, all he could see were stretchers and triage teams proceeding down a covered walkway into an off-field hospital from a distance of about 50 to 60 m near the cleaning pond for a period of 10 - 15 seconds.
D.In cross-examination, Mr Tarnawsky said that he "generally inspected" the vehicles both before and after they were cleaned, but that he did not necessarily inspect every vehicle that came in.
E.In cross-examination, Mr Tarnawsky said that if soldiers had blood-soaked bandages, it may have been possible that this could have been seen from a distance of 50 - 60 m away, but that he never really observed this closely.
Evidence of Robert Douglas Arnold
36. Mr Robert Arnold served in the Army and was in South Vietnam from January 1969 to November 1969. Mr Arnold was the officer commanding of the 2 Advanced Ordnance Depot (2 AOD). The substance of the evidence given by Mr Arnold in these proceedings is as follows.
37. Mr Arnold said he did not hear of any instances where soldiers had found body parts in battle-damaged armoured personnel carriers or Centurion battle tanks that were being cleaned prior to dispatch back to Australia. Mr Arnold said that he would have expected to have heard about such incidents from soldiers within his command.
Evidence of Kevin James Fisher
38. The Respondent called evidence from Mr Kevin James Fisher who was the depot Sergeant-Major (with the rank of Warrant Officer Class 2) at 2 AOD in Vung Tau. The substance of the evidence given by this witness in these proceedings is as follows.
A.Mr Fisher served in South Vietnam between September 1969 and September 1970.
B.One of the tasks Mr Fisher had was to maintain morale for the troops.
C.Mr Fisher had not heard of any of the vehicle cleaners finding body parts in battle-damaged armoured personnel carriers or tanks.
D.During dust-offs, Mr Fisher's job was to remove ammunition from soldiers who had been medivacced in and store that ammunition inside locked receptacles about 20 m away from the helipad.
E.Mr Fisher said that wounded and deceased soldiers were moved into the field hospital very quickly as the medical teams worked very fast.
Discussion of the Evidence
39. For convenience, the Tribunal divided its discussion of the evidence into non-medical evidence and medical evidence.
Non-medical Evidence
40. The evidence before the Tribunal establishes clearly, on the balance of probabilities, the Applicant did see human remains. This evidence is corroborated by the evidence of Mr Beynon. There is evidence before the Tribunal of the response of the Applicant to that event, namely that it caused in him feelings of helplessness and hopelessness. The Tribunal is not satisfied that the Applicant saw human body parts. In the end, not much turns upon this matter.
41. The evidence given by Mr Fisher did not really throw any light on one of the crucial factual issues in this case, namely whether or not the Applicant could have seen the details of wounded and deceased soldiers from a distance of approximately 50 to 60 metres from where the vehicles were being washed.
42. Although the forensic debate centred on what the parties thought were the critical facts in issue, this debate did not have a significant bearing upon the ultimate fact in issue (factum probandum).
Medical Evidence
43. Dr Alcorn was a most impressive witness. Dr Alcorn’s academic legal training and eminent high-level legal qualifications (including a SJD) seemed to consciously or subconsciously attune him into the forensic exercise inherent in the nature of these adversarial Tribunal proceedings.
44. Dr Alcorn went carefully through the diagnostic criteria for PTSD and explained why the mental state findings he elicited from the Applicant did not correlate with the PTSD criteria. Dr Alcorn was particularly struck by the absence of detail and consistency in the flashbacks relayed to him by the Applicant.
45. Dr Alcorn discounted any connection between the Applicant’s Vietnam service and the adjustment disorder condition that he diagnosed.
46. The cross-examination of Dr Alcorn elicited a great deal of evidence about psychiatry and its norms and how PTSD would be diagnosed in a clinical setting and of the need to heed the differential diagnosis warning in DSM-IV TR. The cross-examination of Dr Alcorn, when his evidence is reviewed in its totality, did not really shake him from his professional opinion that the Applicant did not have PTSD but adjustment disorder.
47. The evidence of Dr Steinberg, the other expert psychiatrist, was of less assistance to the Tribunal as it was much less detailed. Dr Steinberg was taken through the diagnostic criteria for PTSD in his examination-in-chief and in cross-examination, and he did explain why he adhered to his diagnosis of PTSD instead of the competing diagnosis of adjustment disorder made by Dr Alcorn. Dr Steinberg said that the symptoms for adjustment disorder come on within three months of the relevant stressor, and based on what the Applicant relayed to him, the Applicant's symptoms have been around for a lot longer with a delayed onset after three months. Dr Steinberg said that the Applicant does not have the symptoms of avoidance and increased arousal associated with adjustment disorder.
48. The Tribunal is conscious that in formulating a diagnosis of any medical condition for it, it is not just a matter of weighing up competing expert accounts or being swayed by the credentials of the experts who give evidence before it.
49. Pared to its essence, Dr Alcorn’s evidence is that the Applicant does not satisfy the criteria for PTSD, but that he does have an adjustment disorder which Dr Alcorn attributed to the difficulties of the Applicant had adjusted to changes in military life and the transition from military life to civilian life. Dr Steinbeck's evidence, in essence, is that the Applicant does suffer from PTSD and the symptoms for this condition only became particularly manifest or apparent once the Applicant left the Army. Accordingly, one of the differences between the two bodies of expert medical evidence before the Tribunal is that each medical expert has a fundamentally different and diametrically opposed starting point for the temporal onset of the Applicant's psychiatric condition.
Applicant’s Submissions
50. The Tribunal was not assisted by any written submissions from the Applicant, although the oral submissions of counsel for the Applicant were helpful.
51. The substance of the Applicant' submissions were these:
A.The Tribunal is free to find, on the balance of probabilities according to the standard of reasonable satisfaction, that the Applicant suffers from a medical condition that is war-caused even if it is not possible to use the exact labels contended for by the parties, namely PTSD or adjustment disorder.
B.The Tribunal should prefer the evidence of Dr Steinberg as the treating specialist over the evidence of Dr Alcorn. The Applicant contended that Dr Steinberg methodically went through the criteria for PTSD and that the stressors experienced by the Applicant were the finding of human remains and viewing the dust-offs and the ensuing movement of wounded and dead soldiers.
C.The Applicant contended that he suffered or experienced the requisite response to the stressors that evoked in him fear, helplessness or horror.
D.The evidence of Mr Tarnawsky in cross-examination was consistent with the evidence of Mr Armstrong in his examination-in-chief on the issue whether it was possible to see bloody bandages on soldiers from a distance of about 50 -- 60 m away.
E.The evidence of Dr Steinberg demonstrated that criteria B – F were satisfied.
F.Dr Alcorn’s evidence should not allow the Tribunal to conclude that the Applicant did not see body parts or human remains or the dust-offs.
G.The Applicant experienced a degree of functional impairment across social occupational and other domains even though he apparently functioned reasonably well in the Army after his Vietnam service. The Applicant pointed to the evidence of Dr Alcorn when he conceded that a differential application of functional impairments across different domains can exist. The Applicant said that discrepancies between the nature of the relationship between the Applicant and his youngest child and his other children pointed to social impairments.
H.The Applicant’s counsel contended that the better view of the symptomatology reported by the Applicant to the medical experts is that it is supportive of PTSD and not adjustment disorder because Applicant reported nightmares which are relevant to PTSD but not to adjustment disorders.
I.The Tribunal should find to its reasonable satisfaction a diagnosis of PTSD and not adjustment disorder.
J.The totality of the evidence before it Tribunal should support the finding of a reasonable hypothesis linking the Applicant’s PTSD to his Vietnamese service. Then when applying the well-known Delidio steps, the Tribunal should find that the PTSD is in fact war-caused and so this condition becomes a compensable condition within the scheme of the Act.
Respondent’s Submissions
52. The Tribunal was not assisted by any written submissions from the advocate for the Respondent.
53. In summary, the submissions of the Respondent were these:
A.The Tribunal could find on the balance of probabilities that the Applicant and his work crew had found small pieces of human tissue (but not body parts) in some of the vehicles as they were being cleaned.
B.The Army culture, including the liberal provision of cheap alcohol at messes, contributed to the social and life problems of the Applicant. The Respondent contended that the Applicant did not suffer a severe stressor in that there was no threat to himself and that there was no evidence of this in this case.
C.The Respondent contended that the evidence of Dr Steinberg pointed only to the Applicant experiencing sadness, but not intense fear or helplessness or horror in relation to the dust-offs. The Respondent contended that the actions of the Applicant in taking many photographs of battle-damaged vehicles did not point to fear, helplessness or horror.
D.The Respondent contended that the Applicant experienced difficulties towards the end of his time in the Army that were not caused by severe stressors, and that it was the post-Army life that caused his impairments in social and occupational functioning.
E.The Respondent said that the criteria did not satisfy or ground PTSD, in particular criterion C, so therefore it was not necessary to consider the remaining criteria as they are cumulative.
Legislative framework
54. Section 9 of the Act provides for when an injury or disease is taken to be war-caused. The expression “operational service” which appears in section 9(1)(a) of the Act is defined in sections 6 to 6F of the Act. It was common ground between the parties that the Applicant had rendered operational service. Further, section 7 of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
55. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
56. As the Applicant has performed operational service, as defined in section 6 of the Act, the determination of whether his conditions are war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.”
57. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
58. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] that the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
59. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under subsection 180A(2) that are relevant to this case, and the parties did not contend to that effect. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. An SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42].
60. There was no dispute between the parties that the Applicant had rendered operational service, and that sections 120(1) and 120(3) of the Act apply. As this Tribunal said in Ahrens and Repatriation Commission [2004] AATA 943:
“[25] The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the Applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.”
61. In relation to any part of the Applicant’s claim for any condition that is said to relate to defence service (as distinct from operational service), the Delidio “reasonable hypothesis” approach is not followed – instead the Tribunal must simply test the Applicant’s claim against the factors of the relevant SoP. For the Applicant to be successful, the Tribunal must accept his or her claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185.
62. In cases such as the present, the approach for decision makers such as this Tribunal to take is marked by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio four step approach the Tribunal must be satisfied (to a standard of reasonable satisfaction) the Applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
63. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act. On the basis of the medical opinions before the Tribunal, the Tribunal is satisfied that the Applicant suffers from PTSD. The Tribunal prefers a diagnosis of PTSD to adjustment disorder because of the chronicity of the symptoms reported by the Applicant.
Deledio Steps
64. In Deledio the Full Federal Court summarised (at 97) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“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 a 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.”
65. In Mines v Repatriation Commission [2004] FCA 1331, Gray J made these important observations about the Deledioreasoning process:
“[37] … The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
66. Gray J went on to say -
“[38] Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” … This concludes the preliminary or antecedent investigation before the first Deledio step is applied.”
67. Conditions related to defence service are governed by sections 120(4) and 120B(3) and (4) of the Act. While the Tribunal has reference to SoPs, the test is one of reasonable satisfaction, not reasonable hypothesis. In this case, it is operational service that is relevant.
The Mines preliminary step
68. Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission [2004] FCA 1331 at [37]. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the Applicant has a medical condition in the nature of a mental ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely PTSD. The Tribunal is satisfied also that the Applicant rendered operational service in an operational area as determined by applying sections 5B, 6D and Schedule 2, Item 4.
The first Deledio step
69. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
The first Deledio step: PTSD
70. The Tribunal is satisfied that there is a hypothesis linking the Applicant’s PTSD with his operational service. In particular, the hypothesis arises from the service-related onset of PTSD.
The Second Deledio Step: PTSD
71. The second Deledio step is to determine the relevant SoPs. In this case, the relevant SoP is:
¨ PTSD: Instrument No 3 of 1999, as amended by Instrument No 54 of 1999.
The Third Deledio Step
72. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 34. The Tribunal cannot make findings of fact at this point.
The Third Deledio step: PTSD
73. Instrument No 3 of 1999 relevantly provides:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder… with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.”
74. “Experiencing a severe stressor” is defined in the Instrument (taking into account the amendment made by Instrument No 54 of 1999):
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
75. The Tribunal considered whether the events met the definition of “experiencing a severe stressor”. The test is a composite objective and subjective test: Stoddart v Repatriation Commission [2003] FCA 334, Woodward v Repatriation Commission [2003] FCAFC 160 at [111], [112], and [114]. In other words the event is interpreted objectively, but the feelings of anxiety or stress is a matter to be interpreted from the Applicant’s perspective.
76. The Tribunal noted the implicit contention on behalf of the Applicant that the Applicant experienced, witnessed or was confronted with events in the sense intended in the SoP. This may be grounded with the cleaning of vehicles in which there were human remains. The Tribunal accepts that this is "an event or events" within the SoP, even though it does not correspond with (and does not need to correspond with) any of the nominated stressors stated in the SoP in the definition of "experiencing a severe stressor". The critical issue here is whether the relevant event or events involved “actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.” The Tribunal went on to consider this issue more closely.
77. In Woodward, the Federal Court cited with approval the decision of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 where his Honour said:
“[50] In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the Respondent and accepted by the Tribunal. The adjectival clause “that involved actual or threat of death or serious injury …” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word “threat” a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of “sound medical-scientific evidence” in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted.”
78. The Full Court in Woodward (at [137] ff) adopted the definition of “threat” used by Mansfield J in Stoddart. The Tribunal understands there does not need to be an actual threat judged objectively and with full knowledge of all the circumstances. As the Full Court observed (at [139]):
“…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the Applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
79. Does the military vehicle clearance event amount to experiencing a severe stressor? Objectively, the Applicant, as a non-combatant, was performing a military task that caused him and at least one of his fellow soldiers, Mr James Michael Calnin, obvious distress. The Tribunal accepts that the evidence of the Applicant that he did experience feelings of “intense fear, helplessness or horror” (factor 2(A)(i) of the PTSD SoP).
80. The objective–subjective approach must be used to understand the event. First the Tribunal examined the event objectively. The Applicant did not witness casualties or take part in or observe casualty clearance. The Applicant was involved in cleaning battle-damaged vehicles in which there were human remains not amounting to body parts. This event does not objectively amount to a “threat”. The precise meaning of that term was clarified in Repatriation Commission v Stoddart [2003] FCAFC 300 at [36] where the Full Federal Court accepted the definition of the trial judge as “an indication of probable evil to come: something that gives indication of causing evil or harm”. Participating in cleaning military vehicles that have been battle-damaged is not an indication of probable evil to come. Rather it is an indication of evil already done, and that is not done to or near the Applicant or in the temporal, physical or geographical proximity of the Applicant. This event cannot be a severe stressor on the basis it is not a “threat of death or serious injury…to…the person’s physical integrity”.
81. What about the idea the event represents actual death or serious injury? The Tribunal does not think that the objective element of the test is satisfied. A reasonable person with the Applicant’s knowledge and experience would not have experienced the necessary feelings of stress and anxiety upon cleaning battle-damaged military vehicles. This event does not qualify as a severe stressor.
82. Dr Steinberg identified three other stressors in his 27 February 2003 report: (1) the helicopter transport of dead and wounded soldiers to the field hospital near to the place where the Applicant worked washing vehicles; (2) the Applicant's acquaintance with a soldier in Vietnam who died in an accident from exploding phosphorus; and (3) changes taking place to Army life made it difficult for him to keep up with changes and also the lack of closeness between Applicant and his military colleagues.
83. The Tribunal considered next the helicopter transport of dead and wounded soldiers to the field hospital near to the place where the Applicant worked washing vehicles. This obviously bears a similarity to one of the nominated severe stressors contained within the definition of "experiencing a severe stressor" that forms part of clause 8 of Instrument No 3 of 1999 (as amended by Instrument no 54 of 1999), namely witnessing casualty clearance. Does this amount to a “threat of death or serious injury…to…the person’s physical integrity”? In the opinion of the Tribunal, this event does not amount to a threat to the Applicant’s physical integrity because he was not involved in the sense of experiencing, witnessing or was confronted with an event or incident that involved actual death or serious injury to the Applicant or constituted a threat to his physical integrity. Viewed objectively, witnessing the movement of casualties in the circumstances involving the Applicant as recounted in his evidence as accepted by the Tribunal is too far removed from any credible suggestion that this event affected the Applicant's physical integrity in the sense intended by the SoP.
84. The Tribunal considered next the Applicant's acquaintance with a soldier in Vietnam who died in an accident from exploding phosphorus. This particular incident (if it can be even characterised as an "event" within the SoP) was not the subject of much forensic debate in this case. Putting this feature to one side, the Tribunal is not satisfied that there is any actual or threat of death or serious injury, or a threat to the physical integrity of the Applicant, presented by this particular event or incident. There is no rational or credible suggestion of a link between the unfortunate death of a soldier with whom the Applicant is acquainted, particularly when the evidence is not that the Applicant actually saw the death occur. Put in other terms, the link between this event (more accurately, a state of affairs) and the Applicant does not objectively or subjectively qualify as an actual or threat of death or serious injury or a threat to the physical integrity of the Applicant, and so it does not qualify as a severe stressor.
85. The Tribunal considered next the final stressor identified by Dr Steinberg, namely changes taking place to Army life which made it difficult for the Applicant to keep up with change and also the lack of closeness between Applicant and his military colleagues. The Tribunal accepted that this could amount to an event or events with the meaning of the SoP. That said, it is still necessary to evaluate whether this event produces the requisite effect on the Applicant in the sense contemplated by the SoP. The Tribunal considered that viewed both objectively and subjectively, military cultural change does not qualify as an actual or threat of death or serious injury or a threat to the physical integrity of the Applicant, and so it does not qualify as a severe stressor.
86. The Tribunal is not satisfied that the Applicant experienced a severe stressor, even accepting his version of events. Factor 5(a) of the SoP has not been satisfied. It is not suggested any other factors can be met. The raised facts are not consistent with the SoP, therefore the hypothesis is not reasonable. The claim in relation to PTSD must fail at this point. (As noted above the experiencing of a severe stressor is necessary to the diagnosis of PTSD. Because the Tribunal is not satisfied the Applicant experienced a severe stressor, the Tribunal is not satisfied to the requisite standard that he suffers PTSD).
The First Deledio step: Adjustment Disorder
87. The Tribunal is not satisfied that there is a hypothesis linking the Applicant’s adjustment disorder with his operational service because the evidence that might ground this hypothesis suggests that the onset of adjustment disorder coincided with the Applicant's decision to retire from the Army, which he did on 19 February 1995, and this event is not connected with operational service. If the Tribunal is wrong on this point, however, the Tribunal decided to proceed on the assumption that the hypothesis is satisfied.
The Second and Third Deledio Steps: Adjustment Disorder
88. The Tribunal has concluded that the Applicant does not suffer PTSD in the military compensation sense. An alternative diagnosis of adjustment disorder was made by the medical expert called by the Respondent, Dr David Alcorn. The medical evidence called by the Applicant did not suggest adjustment disorder as an alternative diagnosis PTSD, and in his examination-in-chief Dr Steinberg discounted adjustment disorder. Given this alternative diagnosis, the Tribunal went on to consider whether the Applicant has an adjustment disorder that is service-related.
89. The relevant SoP for adjustment disorder is Instrument No 57 of 1996 (the second Delidio step). In connection with the third Delidio step, the Tribunal proceeded in these terms.
90. Relevant excerpts from Instrument No 57 of 1996 (adjustment disorder) provide as follows:
“Kind of injury, disease or death
2(b) For the purposes of this Statement of Principles, “adjustment disorder” means the development of clinically significant emotional or behavioural symptoms in response to an identifiable psychosocial stressor or stressors, which occur within the three months after the onset of the stressor(s), which do not persist for more than six months after cessation of the stressor(s) and which do not meet the diagnostic criteria for another specific clinical psychiatric disorder, attracting ICD code 309.0, 309.1, 309.24, 309.28, 309.3, 309.4 or 309.9. The specific diagnostic criteria for making a diagnosis of adjustment disorder as set out in the DSM-IV are as follows (APA 1994, p.626-627):
A. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
B. These symptoms or behaviours are clinically significant as evidenced by either of the following:
(1)marked distress that is in excess of what would be expected from exposure to the stressor
(2)significant impairment in social or occupational (academic) functioning
C.The stress related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a preexisting Axis I or Axis II disorder.
D.The symptoms do not represent Bereavement.
E. Once the Stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting adjustment disorder or death from adjustment disorder with the circumstances of a person’s relevant service are:
(a)experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder;
(b)experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical worsening of adjustment disorder; or
(c)inability to obtain appropriate clinical management for adjustment disorder.
Other Definitions
7. “psychosocial stressor(s)” means an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder);”
91. The evidence of Dr Alcorn in both his report of 10 May 2004 and in his evidence-in-chief has been recounted above. As regards the source or cause of the adjustment disorder diagnosed in relation to the Applicant, Dr Alcorn opined that are the causes were multi-factorial, comprising retirement from the Army, becoming a small-business proprietor and later having to leave that business due to pain.
92. Clause 4 of the SoP requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the meaning of clause 7 of the SoP. What is disputed (as was argued in effect by the Respondent) is whether the Applicant developed adjustment disorder during operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of Instrument No 57 of 1996 does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.
93. The only evidence before the Tribunal concerning adjustment disorder came from the Respondent’s medical evidence. In that regard, Dr Alcorn’s evidence is clearly to the effect that the only connection between the Applicant's service and his adjustment disorder stems from his decision to retire from the Army, which he did on 19 February 1995. For the purposes of the SoP, the adjustment disorder has to be related to "relevant service", which means one of operational service, peacekeeping service or hazardous service (clause 7 refers). Neither peacekeeping service or hazardous service are relevant in this case so the issue is whether the adjustment disorder of the Applicant is related to operational service. The retirement of the Applicant from the Army in February 1995 is not related to or connected with operational service (given the absence of the temporal proximity), so for the purposes of the SoP, the adjustment disorder of the Applicant is not related to relevant service. Accordingly, the Tribunal concludes that the adjustment disorder of the Applicant is not a compensable condition within the meaning of the Act.
The Fourth Deledio Step: Findings of Fact
94. The Tribunal has determined that neither of the conditions of PTSD or adjustment disorder “fit” or are consistent with the relevant SoP. Where the Tribunal is not satisfied beyond reasonable doubt that the incapacity or injury of the veteran was not war-caused, then the fourth Deledio step requires the Tribunal 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. In this case, the Tribunal is satisfied beyond reasonable doubt that the incapacity or injury of the Applicant is not war-caused; accordingly, the Tribunal does not proceed to make findings of fact in application of the fourth Deledio step.
Tribunal’s Conclusion
95. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision is that Applicant’s condition of PTSD (and in the alternative, adjustment disorder) is not war-caused within section 9 of the Veterans’ Entitlements Act 1986.
Tribunal’s Order
96. The Tribunal decides to affirm the decision under review.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher
Signed: Camille Banks
AssociateDates of Hearing 28 October 2004 and 15 November 2004
Date of Decision 4 March 2005
For the Applicant Mr A Harding of Counsel
For the Applicant Gilshenan & Luton, Solicitors
For the Respondent Mr J Kelly, Departmental Advocate
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