Armstrong and Repatriation Commission
[2003] AATA 702
•25 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 702
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/359
VETERANS' APPEALS DIVISION )
Re DAVID TERRENCE ARMSTRONG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date25 July 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – post traumatic stress disorder and alcohol abuse – whether conditions caused by applicant’s war service - diagnosis - whether applicant suffering from PTSD and alcohol abuse
Veterans’ Entitlements Act 1986
Repatriation Commission v Cooke (1998) 160 ALR 17
Benjamin v Repatriation Commission [2001] FCA 1879
Stoddart v Repatriation Commission [2003] FCA 334REASONS FOR DECISION
25 July 2003 Mr IR Way, Member 1. This is an application by David Armstrong (“the applicant”) for review of a decision of the Repatriation Commission made on 21 June 2001 and affirmed by the Veterans’ Review Board on 4 April 2002, which rejected that part of the applicant’s claim for pension in respect of post traumatic stress disorder (“PTSD”) and alcohol dependence or abuse.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and further documentary evidence as follows:
§Exhibit A1 Statement – David Terrence Armstrong dated 31 July 2002
§Exhibit A2 Statutory Declaration – Terry Loftus dated 29 August 2002
§Exhibit A3 Statutory Declaration – Douglas Fyfe dated 29 August 2002
§Exhibit A4 Statement – David Terrence Armstrong taken 11 July 2002
§Exhibit R1 Report – Dr John Wainwright dated 11 November 2002
§Exhibit R2 Report – Colonel CH Ducker dated 31 August 2002
§Exhibit R3 Supplementary Report – Colonel Ducker dated 20 May 2003
3. The applicant and Dr R Troup gave oral evidence. Dr J Wainwright and Colonel CH Ducker gave evidence by telephone.
4. The applicant was represented by Ms M Brennan of Counsel, instructed by Gilshenan and Luton, and the respondent was represented by Mr R Morison, External Review Section, Department of Veterans’ Affairs.
5. The applicant was born on 29 October 1946 and served in the Australian Army from 19 April 1967 to 18 April 1972, including operational service in Vietnam from 27 March 1968 to 28 February 1969, serving as a cook with B Coy 1 RAR.
6. The applicant’s accepted service-related disabilities are bilateral sensori-neural hearing loss with tinnitus.
7. His non-service related disabilities are PTSD and alcohol dependence or abuse, the subject of this appeal.
Issues and Legislative Framework
8. The principal issues in this matter are:
§ whether the applicant suffers from PTSD and/or alcohol dependence or alcohol abuse; and
§ if so, is any such condition war-caused.
9. The applicant’s contention is that he was exposed to traumatic events during his service in Vietnam such that he now suffers from PTSD and alcohol dependence or abuse.
10. This matter is to be determined within the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).
11. Whether the applicant suffers from PTSD and/or alcohol dependence or alcohol abuse requires the Tribunal to determine whether it is reasonably satisfied that the diagnoses of these conditions in the applicant are established: see Repatriation Commission v Cooke (1998) 160 ALR 17 at 20 and Benjamin v Repatriation Commission [2001] FCA 1879 at paragraph 55.
12. If the applicant suffers from either or both PTSD and alcohol dependence or alcohol abuse, the disease is war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
13. The relevant provisions of the Act are as follows:
“5D Injury/disease definitions
(1) In this Act, unless the contrary intention appears: …
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
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;
…
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.
…
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;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
…
196A Establishment of Authority
(1) A Repatriation Medical Authority is established.
…
196B Functions of Authority
(1) This section sets out the functions of the Repatriation Medical Authority.
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
14. The Repatriation Medical Authority (RMA) has, pursuant to section 196B(2), determined a Statement of Principles (SoP) in respect of psycho-active substance abuse or dependence (Instrument No 76 of 1998). It is common ground between the parties and the Tribunal accepts that this SoP is relevant in the consideration of this matter.
15. The RMA has, pursuant to section 196B(2) of the Act, determined an SoP in respect of PTSD, namely Instrument No 3 of 1999 (as amended by No 54 of 1999). It is common ground between the parties, and the Tribunal accepts that this SoP is relevant in the consideration of this matter.
16. With respect to alcohol dependence or alcohol abuse Instrument No 76 of 1998 relevantly provides as follows:
“2. (b) For the purposes of this Statement of Principles:
‘alcohol dependence’ means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
‘alcohol abuse’ means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol-related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
…
Other definitions
8. For the purposes of this Statement of Principles: …
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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; …”
17. With respect to PTSD Instrument 3 of 1999 as amended by Instrument 54 of 1999 relevantly provides as follows:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b)For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
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 or death from 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;
…
Other definitions
8. For the purposes of this Statement of Principles:
‘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.”
Evidence in Respect of the Applicant’s Case
18. The applicant provided two written statements, one taken on 11 July 2002 and one signed 31 July 2002.
19. In these two statements the applicant recalls a number of events during his service in Vietnam which he claims were stressors, namely:
(a)the Long Binh bodies event;
(b)the Long Binh Indian event;
(c)the Nui Dat perimeter event;
(d)the Nui Dat patrol events;
(e)the Nui Date cookhouse event;
(f)the Hughes event;
(g)the Horseshoe event;
(h)the Vung Tau R in C event.
20. Each of these events is now dealt with in turn.
The Long Binh Bodies Event
21. In his statement (Exhibit A4) the applicant said:
“4.The first stressor that I suffered was when I went to the US Army base at Long Binh. We flew into Long Binh in a helicopter. There were 20 to 30 of us. I honestly could not tell you when this happened. The records indicate that it was near the start of my tour around May of 1968, but in my mind I can’t say if it was near the start or towards the end.
5.We were sent there to cook, but you don’t always do what you are meant to do. I remember that we seemed to have more time off there than on the Australian bases. I am not sure how long we were there for. It could have been 2 or 3 weeks.
6.I think that the force at Long Binh were the 101st Airborne. The American’s were strange. They would drive around in jeeps with bodies piled up in the back. I remember seeking a jeep type vehicle with a trailer on the back. There were quite a few bodies stacked up in the back of it, maybe 5 or 6. I could not tell how they had died or what they were wearing because I just looked at their heads lolling back and forth as the jeep slowly went past. It was a sickening sight and not something that you wanted to look at too closely. I remember thinking that they were just stacked there like trash.”
22. In his oral evidence the applicant corrected “101st Airborne” to “181st Airborne” and said that on further reflection there was no trailer with bodies, the bodies he saw being piled in the back of a standard size US jeep. He said that a US serviceman he had befriended said that hundreds of bodies came through all the time and he though the bodies were Viet Cong.
23. In cross-examination the applicant said he was not clear how many bodies there were, that he was only taking a guess based on discussions with an RSL Welfare Officer and that the jeep passed by quickly some 10 metres away and that there was only one such incident. He said that at the time of this event he had been having a look around the base and the different bars and clubs in the base in time-off, and that after the event he continued looking around and apart from describing his reactions to the event as one of realisation that there was a war on, he was unable to say how he felt other than it “just seemed like it was unreal”.
24. The Tribunal notes that Colonel Ducker’s report (Exhibit R2), described Long Binh as a large well-developed US command and logistic support base approximately 20 kilometres north-east of Saigon and approximately 60 kilometres to the north-west of Nui Dat. Furthermore, Colonel Ducker was not able to find any definitive advice in support or otherwise of the applicant’s claim to have seen dead bodies. In his oral evidence, Colonel Ducker said that based on his research he was in no doubt that the applicant was in Long Binh. However, based on his own experience about the disposal of enemy dead and following discussion with Corporal Eaton, the B Coy storeman who had been in Long Binh in May 1968, he said the applicant’s alleged experience was “a bit bizarre”. The Tribunal notes that Colonel Ducker is a distinguished and experienced infantry officer.
25. The Tribunal is mindful that RSL Welfare Officers and Advocates are generally well experienced in respect of war service and veterans’ entitlements, and that they provide invaluable assistance to veterans in discussing, recalling and recording the circumstances of their war service. However, in this case the Tribunal is satisfied that the applicant’s oral evidence before the Tribunal (as opposed to his written statement) accurately reflects what he recalls, namely, a few bodies in the back of a standard jeep which passed by quickly some 10 metres or so away from him.
Long Binh Indian Event
26. In his statement (Exhibit A4) the applicant said:
“7.When I was at Long Binh a friend and I, Gerry Smith, met a Commanche Indian. We had no real idea of the racial problems in the US so we asked him out for a drink. We went by the pub and asked him to come in with us and he said that he wasn’t allowed because he was an Indian. We said rubbish and kicked the door in and demanded that they give him a drink. When we turned around he had fled so we backed out of there feeling stupid.
8. When we got outside the pub the Indian raced up with an M.60. He was screaming that he was going to kill everyone in there. We had to fight him to get the gun off him. Once we had he ran off again. We stood around and a few minutes later he came back with a 45. We had to fight him to get that off him as well. It was an extremely stressful situation. We really felt that he was going to kill everyone in the pub, especially after he came back with a second gun.
9.We were in fear of our lives so we just got out of there. We thought, ‘What next’.”
27. In his oral evidence the applicant said that the event at the time did not bother him. However, both Long Binh events do now and that he dreams about what might have happened and that he realises he was “lucky to come out okay”.. He said these feelings were heightened during the recent war in Iraq.
28. In cross-examination, the applicant said he was off duty at the time of the Indian event, that he had befriended the Indian and the Indian was not shooting or threatening to shoot him, although he thought he might get shot disarming him. After the event he said he got out of the area as soon as possible and went back to his billet.
29. In his oral evidence, Colonel Ducker was not able to add to what he had said in his written report about the existence of racial tension in some US units and the comment from Corporal Eaton that Australians at Long Binh were warned to keep away from areas at the base where there were indications of racial tension.
The Nui Dat Perimeter Event
30. In his written statement (Exhibit A4) the applicant said:
“10.Another stressful event happened when I was in Nui Dat. I have no idea when it happened. We were on watch and noticed that there were some torch lights on the wire around the perimeter. Sgt Loftus came down and rang up for permission to shoot. I don’t know if he got it or not, but we opened fire where we could see the lights. I don’t know if we hit anything, but they soon went out.”
31. He said the incident gave him an adrenalin rush, sweat pouring off him, not knowing if they were shooting someone or if his life were in danger.
32. The Tribunal notes that the Write Way reports support the applicant’s claim that a perimeter GPMG fired on suspected lights. However, there is no record of enemy ground assaults against the Nui Dat Base and that on the particular occasion referred to by the applicant, a clearing patrol the following morning found no signs of enemy in the area.
The Nui Dat Patrol Events
33. The Write Way report (T4/62-63) states:
“7.All soldiers in a battalion base have to perform other tasks besides their primary task (in this case, preparation of meals). OC Admin Coy coordinated the patrols provided by the rear details, (ie the soldiers not participating on operations more distant from the Nui Dat base). He estimated that the then Pte Armstrong, like those in a similar position, would have participated in perhaps ten or so patrols in the 1 ATF Tactical Area of Responsibility (TAOR). The B Coy CQMS also estimated that the claimant would have undertaken at least ten TAOR patrols and recalled that the then Pte Armstrong was content to have the break from cooking that this involved. The OC Admin Coy recalled that these 1 RAR patrols in the TAOR moved out no more than about 3,500 metres from the Nui Dat base (ie within range of our supporting mortar fire). They generally consisted of 10-15 men under the command of an NCO. These TAOR patrols enhanced the security of the 1 ATF base with overnight ambushes of, for example, a track or bridge that might be used by enemy. Very few of these TAOR patrols had a contact with the enemy during 1 RAR’s tour of duty. Indeed they tended to be uneventful and I note that Mr Armstrong does not claim to have been in contact with the enemy on one of these patrols.”
34. The applicant has responded to this statement as follows (Exhibit A4):
“24.The Writeway report was not correct when it said that I only had to do 10 or so patrols. That is absolutely incorrect. My CQMS has confirmed that I did up to 30 patrols. They were for three days each time and I always seemed to carry the machine-gun. There were 5 of us. I remember being awake at night listening to the noises in the bush and lying beside the radio as the VC propaganda came through, ‘We can see you, we are going to kill you’. You felt that every sound or movement in the bush could be the enemy coming to kill us. I don’t know if that is a severe stressor or not, but it certainly was stressful and plays on my mind.”
and in Exhibit A1 as follows:
“3.At paragraph 7 the Report says that went on patrols with 10 to 15 men. Most of the patrols I went on were for 3 days and the most people on them were only 5 or 6 men. You’d have a Forward Scout, you’d have the 2IC who usually had the radio, you had a machine gun and a rear guard and sometimes you had an extra one between the Forward Scout and the 2IC.”
35. In his oral evidence the applicant described his feelings on patrol as being pumped up, frightened (because of not knowing what was creeping around in the bushes) and “buggered” (never having been so tired in his life). He said he had no enemy contact during any of his patrols and Colonel Ducker, in his oral evidence, explained that battalions engaged in two types of patrols, namely, quick clearing patrols morning and night to approximately 300 metres out from the perimeter wire, and “tail” patrols (which could comprise 5 to 6 soldiers as claimed by the applicant), that were usually over one or two nights and were out to approximately 3.5 kilometres to ensure the enemy could not bring mortar fire to bear on the base and so that the patrols would be in range of their own supporting mortars.
36. Colonel Ducker told the Tribunal in answer to questions from Ms Brennan, that battalion cooks were usually well-trained in infantry patrol work, such training taking place during recruit training, during annual range practices, during pre-Vietnam training at Canungra (including physical efficiency tests) and during battalion work-up exercises prior to battalions deploying to Vietnam. In respect of the acceptance or otherwise of cooks within a battalion setting, Colonel Ducker said that cooks were very important to the morale of soldiers and if they did a good job in cooking were usually well-appreciated. He said that they were further appreciated if they did their share of “tail” patrols and sentry duties and that in this case the applicant had demonstrated that he was very willing to do more than his fair share.
The Nui Dat Cookhouse Event
37. In his written statement (Exhibit A1) the applicant stated:
“2.…In B company there was one Sergeant named Sergeant Beans. The Corporal was corporal Rawlings and the two Privates were Humphries and myself. I know that later on that Sergeant Beans got replaced by Corporal Campbell. Sergeant Beans used to walk around the kitchen with a loaded 45 strapped to his waste [sic]. One time the gun time [sic] accidentally discharged and blew a hole in the kitchen floor. It was a shock. If walking around with a loaded gun in a kitchen was not what one would call stressful, I don’t know what is. I think that was why Sergeant Beans was replaced.”
38. The Tribunal notes that the statements of Terry Loftus (Exhibit A2) and Douglas Fyfe (Exhibit A3) corroborate the fact that Sergeant Benes accidentally discharged his weapon in the B Company kitchen at Nui Dat. In his oral evidence the applicant said that the accidental discharge blew a hole in the concrete floor some 5 to 10 metres away from where he was and he remembers abusing Sergeant Benes and, although shocked and shaken, he continued with his usual cooking duties.
The Hughes Event
39. In his written statement (Exhibit A4) the applicant stated:
“21.As a cook with B Coy we did 3 day patrols, but were classed as LOBs (left out of battle) as we did not go on major operations.
22.Grub Hughes did not like the fact that I did not have to go on large ops when he did. He came up to me on day in the mess hall and told me that he’d had a dream where he was killed and I was able to go home. Suddenly he exploded and started to swing punches at me. It was a real fight. I knocked him down a few times, but he got back up screaming at me and swinging his fists.
23.For me the really horrible memory is that a very short time later he was killed on an operation.. This has really affected me, that he dreamed about it and then it happened. You just think about it, but what can you do. I dream about it sometimes.”
40. The Tribunal notes the Write Way report (Exhibit R2) records that:
“Pte Rodney Donald Hughes of B Coy 1 RAR, known as ‘Grub’, died of wounds received on operations away from Nui Dat on 17 Nov 68.”
41. In his oral evidence the applicant said that although he was not involved in the operation when Private Hughes was wounded, nor did he see Private Hughes after he was wounded, he had guilt feelings about coming back whereas Private Hughes did not and that these guilt feelings manifested themselves in his dreams and nightmares.
The Horseshoe Event
42. In his written statement (Exhibit A4) the applicant stated:
“11.I am positive that I went to the Horseshoe and that I came under mortar and machine-gun fire. I can’t understand why its not in the records. I am sure that it was Horseshoe, but maybe it wasn’t. I was not sent there with anyone that I knew. We were not all from the same unit. One possibility is the mortar attack happened when I was sent down to D Coy. It can’t have been for more than a month, but its hard to keep track of the places that you go to. I think I was at D Coy about the time of Coral.
12.I remember the tracers above our heads and a Sgt in the command pit with his pistol cocked shouting at us to get down. I felt that it was better to see the bullets as they came. It was terrifying.
13.The Writeway [sic] report is wrong in presuming that I was a cook at Horseshoe. I never said that I did any cooking there. I am not sure whey we were sent there. I can’t remember doing much. Maybe we were just building up base strength. I did not do any cooking at D Coy either.”
43. In his written statement (Exhibit A1) the applicant stated:
“5.As to my staying at the Horseshoe, the more I think of it the more I believe that it wouldn’t have been more than 2 weeks because if it was 2 weeks I would know the exact amount of time.
6.I did notice that the Report states a company was there for 2 days. It’s possible that I could have gone up with those people. That may be a more reasonable time that I would have spent at the horseshoe.
7.I know that I was at the Horseshoe because I remember seeing 2 bubble type helicopters. That was the only place, to my knowledge where they could possibly have been parked. I never see them at Nui Day anyway.
8.I know I was there, but I’m sorry that I just have no other details of how. I also remember being in a bunker and there was some Sergeant yelling at us to get down and there were quite a few of us putting our heads up to looking at the low fire coming overhead.
9.Regarding paragraph 11, I never stated that I cooked at Horseshoe. I was talking to Tom Lockrose a while back. He served with 1 RAR and he did tell me that ‘he’ went up to the Horseshoe to pick up a Lieutenant or something and then went up into an APC. Now I also know I went somewhere in an APC but I cannot recall where I went in that either.”
44. In his oral evidence the applicant stated that he now does not think he came under mortar fire while at the Horseshoe feature (but says he did come under mortar fire at some time while he was on operational service in Vietnam, possibly with D Coy right behind SAS Hill). However, he said that at the Horseshoe he could remember seeing a short burst of tracer bullets flying overhead some 10 metres or so above his head. He said that he (and others) were in holes in the ground and had their heads up to see the tracers when a sergeant told him to get down. He said that after this event he went about his normal business. However, the applicant was unable to explain why he was at the Horseshoe feature.
45. The Tribunal notes that the Write Way report (Exhibit R2) records that there is no record of enemy mortar fire or small arms fire against the Horseshoe Fire Support Base during the applicant’s time in Vietnam (nor against any forces located at Nui Dat), nor is there any record of 1 RAR or any of its cooks being deployed or detached to the Horseshoe at the relevant time. In his oral evidence, Colonel Ducker referred to conversations he had had with relevant company commanders, operations officers and the CQMS of 1 RAR and reinforced his opinion that no units of 1 RAR were at the Horseshoe during the period the applicant served in Vietnam and that it “beggars belief” that 1 RAR would have reinforced another unit at the Horseshoe with one of their cooks.
The Vung Tau R in C Event
46. The applicant in his written statement (Exhibit A4) stated:
“14.I witnessed a terrible incident when I was on R & C at Vung Tau. It was the only R & C that I had and it was just after I had come back from leave in Australia.
15.I was with a bloke nick-named Chiffy. His name may have been Chifley. Anyway the bloke in the Writeway [sic] report is the same person as far as I know. We became good mates and he is one of the few people that I wanted to see when I got out of the services. We spent three days together drinking and getting into trouble with girls.
16.On the last night (day time) I remember that we were very drunk. We were at a back beach area. There were areas designated on maps where we were not supposed to go and we were in one of those. There were no other Western people around. We wanted to get into a taxi, but the driver would not take us anywhere. Being drunk we pulled him out of his taxi intending to steal it and drive it back. Maybe 20 or 30 locals surrounded us. A couple (most or never notice any without a weapon) of them had knives. We felt that we were done for. I remember that we only had our beer bottles so we smashed them and swung them at our attackers. I expected to die.
17.Suddenly there was a tweet from a whistle. Everyone knew that it was the white mice and scattered and so did we. We ran off for what seemed like an hour, but it could have been 15 minutes. When we started back we came around a corner and saw 2 white mice and 2 blokes on the ground with their heads bowed. They went bam! bam! and shot them both in the back of the head. It was a horrible incident. It still haunts me. The police just walked off like nothing had happened.
18.We got out of there as quickly as possible. The Writeway [sic] report was just ridiculous. Who would we report to? Why would we report something like that? We were somewhere we were not supposed to be. We had assaulted a taxi driver. Of course we were not going to report it. Anyone who had been in Vietnam would know that things like that were almost never reported when they happened. The shooting didn’t happen in view of any other servicemen to the best of my knowledge. It was out of the way and we came across it by chance. We didn’t even know if the white mice had seen us.
19.I can not believe that Chiffy does not remember what happened. It stuns me. It was not only that incident, but the whole 3 days that we spent together. At first we were having a great time and then we had an experience, a happening. He doesn’t remember any of it. I called him up and he told me that he has heart problems and he is on anti-depressants. Guy Pendergrast told me that he is in a pretty bad way and having a hard time.
20.It was a bad experience. First we thought we were going to be killed and then we saw someone else be killed. I don’t know if he can’t remember or if it is something that he does not want to remember. I feel sorry for him.”
47. In his oral evidence the applicant said he had not kept in contact with “Chiffy” post-Vietnam, but had seen him again at 1 RAR’s 50th reunion in Townsville about six years ago and subsequently he spoke to him. The applicant said there was no doubt in his mind the event occurred in the day time (between 3pm and 4pm) and that he had not changed his statement about it occurring at night time because of the Write Way report. He said the statement had been prepared by others from notes and there had been a misunderstanding when his statement was typed. It was the applicant’s evidence that he had got a few of the facts jumbled up in talking to Dr Troup about this event and that the taxi driver was not trying to kill him or “Chiffy” when they tried to steal his taxi.
48. It was the applicant’s oral evidence that after breaking away from the local group threatening them with knives at the time the taxi was overturned, he and “Chiffy” had taken off and then went into a bar for further drinks, laughing with relief and thinking how lucky they were to have escaped a life-threatening situation. Some fifteen minutes or so later he said they left the bar and the white mice event took place and they took off not knowing where they went but being thankful they got away. He said they eventually found their way back to base but never said anything to anybody about what had happened. He said the “white mice” event occurred about 20 metres from him and he did not see any blood, did not notice any details and that he “sobered up pretty quick” after the event. He said he had been drinking for three days prior to the event. It was the applicant’s evidence that the event had been bugging him for years and he could not help wondering if he had caused the death of the two people who had been shot.
49. The Write Way report (Exhibit R2) gives background information about Australian “Rest in Country” (R in C) facilities and activities in Vung Tau and furthermore records the outcome of discussions with Greg Chiffey about the alleged incident. The Write Way report concludes:
“…it was not possible for me to find support for the claimant’s fifth contention (where he allegedly saw the South Vietnamese Police shoot two people) because the soldier was not on duty at the time and he was, as stated by him, in an out of bounds area. Significantly the former member of B Coy, 1 RAR, who the claimant seems to be using as a witness to the shootings advised he never saw the ‘White Mice’ shoot at anybody…”
50. In his oral evidence, Colonel Ducker said that he discussed the question of Mr Chiffey’s possible interaction with White Mice in the Vung Tau area and his attendance in the back beach area with a friend. Colonel Ducker said that he had discussed the matter with Mr Chiffey by phone for about half a hour and that he (Colonel Ducker) had not mentioned the applicant’s name. He said he found Mr Chiffey very forthcoming and after all these years, in no way concerned that admission of any such events would implicate him in the commission of offences.
51. With respect to alcohol consumption, the veteran signed an alcohol questionnaire (T4/37-38) in which he stated that he began to consume alcohol on a regular basis in 1968 in Vietnam, and that after six months in the country, because of stress, drank to oblivion whenever he could and that he still consumed alcohol (at the time of signing the questionnaire). In his written statement the applicant said that it got to the point that he was drinking every day, both beer and spirits.
52. On return to Australia, the veteran said his drinking was terrible, he was drinking twice the amount he had drunk in Vietnam and was wiping himself out completely. He said his drinking caused problems with his first marriage and that he was not as bad now and since he gave up full-time work in mid-2001. At the hearing the veteran said that he had not had a beer during the last month. However, he had consumed a full bottle of rum three weeks ago. He said he can now go two weeks without having a drink at all and talking to Dr Troup had helped him reduce his alcohol consumption.
53. The Tribunal notes that the veteran was employed by the Government as a truck driver from 1979 to 1995 and during this time he had no charges laid for drink driving. When he ceased driving a truck the veteran went back to employment in the construction industry and eventually gave away such work, then occasionally doing a few casual handyman-type jobs. He said he was happy working for himself as his own boss and that working less hours made a big difference, his life now being a lot better.
54. The veteran described the effects of his conditions as follows (Exhibit A4):
“34.I can’t even watch a g-rated movie with my grandchildren because any sudden movement on the screen makes me jump.
35.I do not like to see Doctors. You can see that from my service medicals. I suffered in silence for many years, but then you meet some Veteran’s who have the same problems and it starts to make sense. I still don’t like to go and see Doctors.
36.My last full-time work was as an electrician working on the bus-way. I worked 6 day weeks as hard as I could. It was not easy though. There are time pressures and I felt the stress. Every time someone comes up behind me without warning or drops a spanner I jump 6 feet.
37.Dr Troup advised me to stop working so much. I don’t know why I was working so hard. It was probably so that I didn’t have any time to think so I tried to keep myself busy. I realised that I could not keep it up.
38.All my working life people came up behind me and I’d jump. I was known for it. At one place I grabbed the foreman because he startled me. At another place they dropped a rubbish can lid just to scare me for a joke.
39.I work for myself now. I do a variety of different things for whoever wants me. I worked for just 2 days last week and sometimes I work more and sometimes I work less. I still consider myself as employed and it has never been my intention to stop working. I just want to have my conditions recognised.”
55. In answer to questions in cross-examination, the applicant described his nightmares/dreams as not being the same every night, some being about his mother and father “saying it doesn’t matter”, some about his schooling, some about fighting Grub Hughes, the guilt coming back, and some about being on patrol and on guard duties.
Medical Evidence
56. Dr R Troup, psychiatrist, saw the veteran on many occasions, the first consultation being on 23 August 2000. Dr Troup said that she subsequently saw the veteran on two further occasions in 2000, these three consultations being the basis for her report dated 3 March 2001 (T4/16-24). Dr Troup also obtained collateral information from the veteran’s wife during the last consultation of the veteran in September 2000.
57. Dr Troup told the Tribunal that she relied solely on the veteran’s account of stressful events; and his own account and his wife’s account of the veteran’s drinking habit. Dr Troup said she had not seen the reports from Write Way Research Service nor had she seen the two written statements given by the veteran. She described the structured process she follows in arriving at the diagnosis of a patient’s condition.
58. In this case, Dr Troup recorded a history of the veteran’s Vietnam experiences as follows:
“Mr Armstrong served in Vietnam from 1968 to 1969 with 1 RAR B Company with 120 men. He was meant to be a cook but he did not do much cooking. If they were on patrol he used to go out in the bush, in a certain spot because markers were dropped down constantly, with a machine gun and would keep visual contact with the other men who would be carrying other weapons. At night he did 1 hour on and 4 hours off. He did 20 to 30 patrols whilst over there. He was frequently in mud up to his knees and he would be very tense because of noises in the bush. One time a man called Hughes started beating him up in camp. He said Hughes had a dream that he was going to be killed and that David Armstrong was going home and in actual fact Hughes died on the next patrol.
Mr Armstrong went to Long Bin and the Horseshoe area. He said a man came up to him at a reunion and this man had been number one on the gun. This mad has been helicoptered out with malaria. At the Horseshoe VC fired in and mortared in. He had to open fire with the machine gun from a fox hole. He would see people in the bush and would hold the machine gun to see what the response from the person was as they did not know who were enemy and who were not enemy if they were Vietnamese. He saw bodies at the Horseshoe area. He used to see Vietnamese bodies stacked up in the back of a truck. He said one man he used to know he saw cut up from a land mine. He said this man’s name was David Cornwell and Mr Armstrong felt horrified and sick. He said he feels guilty about Hughes a lot. He said he was one of a couple of replacements out on patrol and he did not have his safety catch on and shot another man from B Company. His company would not have anything to do with this man after that and he was sent home after 2 weeks. He said the whole thing was very upsetting.
He said people would touch you on the foot whilst on patrol and he would jump and he still does jump when anything is unexpected.
Mr Armstrong saw a couple of White Mice in Vung Tau pull up a couple of people and made them bend over and shot them in the back of the head and left them there.
…
A mate, Greg Chifley, and he were on R & R and a taxi driver would not take them anywhere. A confrontation occurred and Mr Armstrong thought they were going to be killed by the taxi driver. Suddenly the White Mice blew a whistle and everybody disappeared and so did they.
He said Long Bin was enormous and he became friendly with a Comanche Indian and he was not allowed to go into a bar with him. He did take him in and someone was going to sheet him up with a machine gun. They took him out but he came back with a 45. Mr Armstrong knew nothing about the reason for this. He did not know about the racial tension going on in the United States at the time which extended into Vietnam. Another night we went into a black bar with a bottle of rum and was told by a huge black man ‘no whites in here’.”
59. When asked to summarise which alleged stressful events suffered by the veteran were the most traumatic, Dr Troup said it was difficult to say as they all tended to edge into each other and because the veteran had some difficulty in correctly representing the circumstances of events because of psychogenic amnesia. She said she thought that the Long Binh incidents would be the most traumatic.
60. The Tribunal notes that Dr Troup, when questioned by the Tribunal, was not aware that the Long Binh Base was a major US Logistic Base and she had assumed that it was an Australian Fire Support Base.
61. Dr Troup sets out in her report her detailed assessment of the veteran in respect of meeting the relevant criteria for a diagnosis of PTSD, and concludes that Mr Armstrong suffers from chronic PTSD. Dr Troup also sets out her assessment of the veteran’s drinking habits and concludes that the applicant suffers from alcohol dependency.
62. In her oral evidence, Dr Troup said she continues to see the veteran although she had not seen him between November 2001 and April 2003. She said that it was not unusual for PTSD sufferers to avoid seeking treatment because they often did not like to think anything was wrong with them and similarly the veteran’s move to Queensland and isolation from others after returning from Vietnam was a common avoidance mechanism in such cases. In this respect Dr Troup did not agree with Dr Wainwright’s opinion that not seeking treatment was not consistent with PTSD. Dr Troup also expressed the view (contrary to the observations of Dr Wainwright) that the veteran did display signs of hyper-vigilance.
63. When asked how firm her diagnosis of PTSD was, Dr Troup said she was very firmly of the opinion that the veteran suffered from PTSD and that he had all of the symptoms of PTSD.
64. In respect of alcohol dependence, Dr Troup said that the veteran’s alcohol intake had decreased since he had started seeing her because of her encouraging him to cut down his drinking and to go to more reunions. She said she was aware that the veteran hardly drank at all during 2002. She said that the blood and urine screening tests for alcohol conducted by Dr Wainwright were objective and she was not surprised to see the results of these tests because the veteran had cut down on his drinking.
65. She said that as a treating psychiatrist she did not, as a matter of course, conduct such tests on her patients. She said that in her opinion the veteran still suffers from alcohol dependence although she was unsure of the quantities of alcohol the veteran was and is consuming.
66. In respect of the veteran’s work history, Dr Troup said that she had not encouraged the veteran to give up work (as inferred by Dr Wainwright in his report) and that the veteran gave up work because he was making mistakes at work and not remembering what he should do. She also said that the veteran was working excessive hours (60-70 hours per week) and that this was not healthy. She opined that the veteran followed a pattern of a workaholic, one who cannot sleep and may as well be working and that this was consistent with the condition of PTSD.
67. Dr J Wainwright, psychiatrist, saw the applicant on 6 November 2002 and provided a written report dated 11 November 2002 (Exhibit R1). Dr Wainwright told the Tribunal that, in addition to a 2¾ hour consultation with the applicant, he had had the opportunity the read the reports of Colonel Ducker, the report of Dr Troup and the two statements prepared by the applicant.
68. In answer to questions from Mr Morison, Dr Wainwright said that for criterion (A) for PTSD to be satisfied he would expect the causal traumatic event to be exceptionally clear in the mind of the person who experienced or witnessed the event and that he would expect the person to be able to describe the event in “intimate detail” even 30 years after the event.
69. In respect of the events described by the applicant as traumatic, Dr Wainwright said that in his opinion none of the events fitted the required (A) criterion for PTSD. He said that there was no actual threat to the applicant at any of the events and nothing happened to him. He said that while events may be distressing they do not necessarily cause PTSD.
70. When asked to comment on the possibility of the applicant suffering psychogenic amnesia, Dr Wainwright said that this condition was now referred to as dissociative amnesia and occurred when the mind was unable to deal with an event, the mind therefore shutting down as a protective mechanism. In this case he said that he found no evidence of this at all and that the applicant showed no real distress in the long interview he had with him.
71. Dr Wainwright said that he found the applicant an expert and coherent historian by the time he saw him and that, apart from one occasion, the applicant’s recounting of particulars did not change and he found no gaps in the applicant’s story or memory. In any event, Dr Wainwright said that taking a history is not enough in forming an opinion about a patient’s mental state, clinical observations being extremely important. In this case he found no signs of anxiety, hyperarousal or agitation as he would expect in a person with PTSD.
72. Furthermore, when taken to the (B) and (D) criteria for PTSD, Dr Wainwright said there was no evidence of the applicant persistently re-experiencing events; the applicant described his dreams in very non-specific terms; and during the long interview the applicant showed no startle reaction at all when doors slammed or phones rang.
73. In cross-examination, Dr Wainwright accepted that the applicant’s recollection of what it was like to be on patrol was true and that the applicant was in Vietnam at a time of active combat. As such, he accepted that the applicant perceived there was a threat and it was not irrational for him to explain his feelings on patrol as he did. However, Dr Wainwright pointed out that while he accepted that the applicant suffered anxiety symptoms, there was no actual enemy action on any of the patrols undertaken by the applicant; and the applicant’s recording of his dreams was not very clear or specific, the whole tenet of what he said being unrelated to Vietnam.
74. Further in cross-examination, Dr Wainwright said that he did not speak to the applicant’s spouse or his sons as he found speaking to family not useful in medico-legal matters. He also said that in his experience in dealing with patients with PTSD, he did not find that it often took a long time for patients to seek medical attention, to avoid medication, or to avoid further consultations following initial consultation. In any anxiety disorder he would expect to see early symptoms of hyperarousal, avoidance and re-experiencing of traumatic events. He did not agree that the veteran’s move to Queensland soon after his return to Vietnam was a sign of avoidance, rather it was because he did not want family responsibilities. Dr Wainwright said that the fact that he had another three children was against the diagnosis of PTSD.
75. In respect of the Long Binh incidents, Dr Wainwright said that the applicant had laughed about the Comanche Indian and that while the applicant found the dead bodies incident unpleasant, he had not shown great distress about this incident sufficient to cause PTSD.
76. Dr Wainwright emphatically denied yelling at the applicant during his interview with him on 6 November 2002 or that the applicant got upset with him.
Submissions and Considerations
77. At the outset this matter was contested on whether the Tribunal can be reasonably satisfied that the applicant suffers from PTSD and/or alcohol dependence or alcohol abuse.
78. Ms Brennan, for the applicant, submitted that the material before the Tribunal was such that the Tribunal would be reasonably satisfied that the applicant suffers from either or both of those conditions. In so submitting, Ms Brennan referred the Tribunal to the specific traumatic events/severe stressors that the applicant experienced during his service in Vietnam and the collection of symptoms which he now suffers and which have been ascertained from his evidence and that of the psychiatrists who have examined him. In particular, the applicant relies on the opinion of Dr Troup, the applicant’s treating psychiatrist, who is firmly of the opinion that the applicant suffered from PTSD and alcohol dependence.
79. Mr Morison, for the respondent, submitted that the veteran does not suffer from any psychiatric condition, PTSD or alcohol abuse. In respect of PTSD, Mr Morison contended that the stressors claimed by the applicant do not meet criterion (A) set out in the relevant SoP (and derived from DSM-IV), in respect of a diagnosis of PTSD. In so submitting, Mr Morison contended that while service in a war zone has the potential to constitute traumatic events, in this case the events relied upon by the applicant do not meet the description given in criterion (A) in respect of PTSD, and in particular, criterion (A)(ii), namely, “the person’s response involved intense fear, helplessness, or horror”.
80. It was submitted that all of the criteria (A) to (F) as set out in the SoP must be met and in respect of criterion (A), both parts must be met for a diagnosis of PTSD to be valid.
81. In the first instance then, the question before the Tribunal is whether any or all of the events which the applicant claims to be traumatic events meet the description in criterion (A) in respect of PTSD. It was accepted by both Dr Troup and Dr Wainwright that criterion (A) must be satisfied for there to be a diagnosis of PTSD and the Tribunal so finds.
82. Dr Troup is of the opinion that criterion (A) is met but she had difficulty in separating the events and recognising which events were most traumatic; she freely acknowledged that her report is inaccurate in respect of various aspects of the applicant’s history taken by her; and in compiling her report she did not have the benefit of reading either of the applicant’s written statements or the Write Way Research Reports.
83. Dr Wainwright said that the only incident described by the applicant in which he is exposed to any personal threat or witnessed the death of others was the Vung Tau R in C event, which Dr Wainwright said cannot be substantiated. Dr Wainwright accepts that the other incidents may have led to the applicant being anxious and there might have been a threat but said nothing actually happened to the applicant or to anyone around him. In forming this opinion, Dr Wainwright had available to him the applicant’s written statements, the Write Way Research Service reports and Dr Troup’s written report. In taking a history from the applicant, Dr Wainwright recorded the cookhouse incident, the patrol incidents, the Long Binh incidents and the Vung Tau incident.
84. The medical opinions before the Tribunal are of little assistance to the Tribunal in forming a view as to whether the stressful events claimed by the applicant meet the description in criterion (A)(ii). The Tribunal also has trouble in assessing Dr Troup’s opinion about the nature and scope of the stressful events for the reasons given above.
85. The task before the Tribunal then is to assess each event on all of the material before it within the meaning of criterion (A) and to form a view whether, on balance, any or all of the events meet the description of criterion (A).
86. It was submitted for the applicant that the test as to whether a veteran experienced a severe stressor is both objective and subjective and, in respect of this test, the Tribunal was referred to Stoddart v Repatriation Commission [2003] FCA 334, where his Honour Justice Mansfield held, in relation to the definition of “experiencing a severe stressor” in the SoPs for PTSD and alcohol abuse, that:
(1)The word “experiencing” in the phrase “experiencing a severe stressor” imports a subjective element into the test of whether a person has experienced such a stressor.
(2)The language of the definition of “experiencing a severe stressor” caters for a person experiencing, or being confronted with, an event involving the treat – of death, serious injury, or harm to physical integrity – if the event said to constitute that threat – judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event – is capable of and did subjectively convey the threat.
(3)Accordingly, the Tribunal erred in requiring that the threat posed to the applicant be judged objectively as actually having a real prospect of resulting in death or injury to physical integrity.
87. Ms Brennan also referred the Tribunal to paragraph 50 of his Honour’s judgment where he 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.”
88. In respect of the applicant’s reference to Stoddart’s case, the Tribunal is mindful that his Honour Justice Manfield’s decision is on appeal to the Federal Court on the ground that the learned judge “misconceived the subjective and objective content of the test entailed” in the definition of “experiencing a severe stressor”. Furthermore, the Tribunal notes that in Stoddart’s case the issues being addressed were whether a reasonable hypothesis had been raised connecting the applicant’s alcohol abuse and PTSD with the circumstances of his relevant service.
89. In this case, at this stage, the question being addressed is simply whether the applicant suffers from PTSD because of claimed stressful events while he was serving in Vietnam. The test is one of reasonable satisfaction that the applicant meets the diagnostic criteria and, in particular, criterion A(ii) in the relevant SoP (as derived from DSM-IV), namely “the person’s response involved intense fear, helplessness, or horror”. This is not the question addressed by his Honour Justice Mansfield in Stoddart’s case. Clearly, the test in this case, at first instance, is a subjective one and falls to be considered on the applicant’s evidence of his response to each of the events.
90. Dealing then with each event.
The Long Binh Bodies Event
91. The applicant saw some bodies in the back of a jeep which passed by quickly some 10 metres away while he was off duty frequenting bars and clubs in a large US Supply Base. He described his reaction as one of realisation that a war was on, that he continued to look around the base and was unable to say any more about how he felt. In view of this the Tribunal is satisfied that the event did not result in a response from the applicant of intense fear, helplessness or horror.
The Long Binh Indian Event
92. At no time was the Indian threatening the applicant. It was the applicant’s evidence that he thought he might get shot disarming the Indian. However, he also said he had befriended the Indian and that the event at the time did not bother him (although he now dreams about what might have happened). Taking these matters into account the Tribunal is satisfied that the event did not result in a response from the applicant of intense fear, helplessness or horror.
The Nui Dat Perimeter Event
93. The Tribunal is satisfied that a Nui Dat perimeter GPMG fired on suspected lights at the perimeter of the task force area. However, there was no enemy fire and no signs of enemy were subsequently found. The Tribunal accepts the applicant’s evidence that he had an adrenalin rush and sweated, not knowing if his life was in danger. However, given the circumstances of the applicant being within a strongly defended safe base (Nui Dat, which was never attacked by the enemy), the Tribunal is satisfied that the event did not result in a response from the applicant of intense fear, helplessness or horror.
The Nui Dat Patrol Events
94. Colonel Ducker has very clearly set out the nature of the patrols in which the applicant was involved. It must be noted that Nui Dat was a very secure base which was never attacked by the enemy. The patrols the applicant was involved in were protective in nature, never extending beyond close range of mortars from the Nui Dat Base and at no time did any such patrols actively engage the enemy.
95. The Tribunal accepts that the applicant was involved in 20 to 30 of such patrols which generally lasted 2 or 3 days. The Tribunal also accepts that the applicant found these patrols to be physically arduous and at times, particularly at night, to cause strong feelings of anxiety about noises in the night. Indeed, it would be surprising if any soldier on night picket/patrol/sentry duty was not alarmed by unidentified sounds. However, the Tribunal is satisfied that while the applicant was apprehensive his reaction was not such that it did meet the requirements of criterion A(ii). In arriving at this conclusion, the Tribunal has taken into account the extensive training given to infantry soldiers, including the applicant, with respect to the conduct of patrols.
The Nui Dat Cookhouse Event
96. The Tribunal is satisfied that Sergeant Benes accidentally discharged his pistol into the floor of the cookhouse at which time the applicant was in the vicinity some 5 to 10 metres away. On the material before it, the Tribunal is satisfied that the applicant’s response to this event was more one of anger and concern about the outcome of the event rather than one of intense fear, helplessness or horror at the time of the event. As such, the Tribunal is satisfied that this event does not meet the description of criterion (A)(ii).
The Hughes and Caldwell Events
97. Both of these events involve death/injury to soldiers of 1 RAR who the applicant knew. However, the traumatic event of their death/injury occurred while they were out on operations and the applicant was at the Nui Dat Base. As such, the applicant did not see the events, nor did he say he was involved in any related casualty clearance. It is understandable that the applicant has feelings of concern about making it safely through his service in Vietnam while others did not. However, such feelings do not meet the criteria in (A)(ii).
The Horseshoe Event
98. Considerable doubt has been placed on whether the applicant was detached/attached to the unit deployed to the Horseshoe feature and the applicant was unable to recall why he was sent to the Horseshoe. However, assuming that the applicant was at the Horseshoe and witnessed tracers flying overhead, his description of his part in the event and his response at the time do not meet the description of involving intense fear, helplessness or horror.
The Vung Tau R in C Event
99. The applicant has given various accounts of his recollections of this event and there is some inconsistency in these accounts. The applicant initially stated the event occurred at night and subsequently changed this, in his oral evidence, to during the day, explaining that his statement was prepared by others from notes and he did not know how “night” got written down.
100. In his original statement the applicant said that of the 20 or 30 locals who surrounded him in the taxi incident, a couple of them had knives whereas he subsequently said all the people surrounding him had knives. In his original statement the applicant did not mention that following the intervention of the “White Mice” he went to a bar and burst out laughing before coming back out and seeing the “White Mice” shoot two people.
101. It was the applicant’s evidence that at all times during this event he was accompanied by one Greg Chiffey, a fellow soldier from 1 RAR and that they were both drunk and had been drinking for three days prior to the event.
102. The applicant described his reaction to the shooting as one of being thankful he got away and said he could not remember how he got back to base. Furthermore, he said he still did not know to this day whether his action caused the death of the two people “and that bugs me now”. The applicant said he was about 20 metres away from the “White Mice” when they shot the two people but he could not recall any details of the shooting.
103. Of considerable concern is the evidence in the Write Way Research Report where Colonel Ducker reports speaking to Greg Chiffey who could not recall any incident in which he was involved with a friend in the back beach area or where he had seen “White Mice”.. Colonel Ducker was able to tell the Tribunal that he had spoken to Mr Chiffey by phone for a period of one-half hour or so, that he (Colonel Ducker) had not mentioned the applicant’s name or the taking of the taxi or any event that could be seen as possibly involving the commission of an offence, and that he found Mr Chiffey to be forthcoming in answering his questions.
104. The Tribunal is mindful that Dr Troup believes the applicant suffers from psychogenic amnesia, and that Dr Wainwright believes that any such dissociation involves a process of the mind shutting down because it cannot deal with an event. In this case, the Tribunal is satisfied that the applicant’s responses to questions asked of him in respect to the Vung Tau R in C event, cannot be categorised as dissociation and that the applicant’s evidence about being drunk at the time provides a more likely explanation of any difficulties he may have about recall of events.
105. After careful consideration of all of the material before it, the Tribunal is reasonably satisfied, assuming that the Vung Tau R in C event did take place, that the applicant’s response to this event, as evidenced by him before the Tribunal, does not meet the description in criterion (A)(ii).
106. The Tribunal is therefore reasonably satisfied that the applicant is unable to satisfy the principal requirement of being exposed to a war-caused traumatic event as described in paragraph 2(b)(A) of the relevant SoP for PTSD and therefore the Tribunal is satisfied that the applicant cannot be diagnosed as suffering from PTSD as a result of his service in Vietnam.
107. That being so, there is no requirement for the Tribunal to consider further the other criteria for PTSD set out in paragraph 2(b) and the Tribunal affirms that part of the decision of the Repatriation Commission rejecting the applicant’s claim for pension in respect of PTSD.
108. Turning then to alcohol dependence or abuse.
109. Dr Troup has opined that the applicant suffers from alcohol dependence. Dr Wainwright is of the view that, while the applicant may have abused alcohol in the past, there is no suggestion that he currently does so. The Tribunal notes that Dr Troup recorded that the applicant’s alcohol consumption fluctuated, that there were periods when the applicant hardly drank at all, such as for most of 2002.
110. The Tribunal also notes that the objective blood and urine screening done by Dr Wainwright showed that at the time of testing in November 2002 the veteran did not demonstrate any abnormalities of any clinical significance; and that Dr Troup put this down to the applicant reducing his alcohol intake since he had been seeing her. Dr Troup expressed the opinion that the veteran still suffers from alcohol dependence in that “one drink of alcohol…would lead to 10 or 15 or whatever”.. When questioned, Dr Troup was unable to be precise about the quantity of alcohol that the applicant was consuming.
111. Ms Brennan submitted that there was no question that the veteran came back to Australia drinking heavily and it was the applicant’s evidence that he continued to drink even though from about November 2001 the applicant started to reduce his alcohol consumption. It was submitted that the applicant continues to suffer from alcohol dependence.
112. Mr Morison for the respondent has submitted that the applicant does not suffer from alcohol dependence or alcohol abuse, in that he does not meet the diagnostic criteria set out in the relevant SoP (as specified in DSM-IV) and as set out in paragraph 16 above.
113. In essence, Mr Morison submitted that there is no evidence to support the view that the applicant’s recurrent use of alcohol results in failure to fulfil major obligations at work or home (rather the reverse); there is no evidence where the applicant used alcohol in situations which are physically hazardous; there is no evidence that the applicant has or had recurrent renal problems; and that there is no evidence of the applicant currently having continued alcohol use despite having recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol (rather the reverse).
114. After careful consideration of all the material before it, and the submissions of both parties, the Tribunal, on balance, accepts the respondent’s submission that the applicant does not suffer from alcohol abuse. In so doing, the Tribunal has taken into account the inconsistencies in the applicant’s evidence about his alcohol consumption, being satisfied that the applicant was not a non-drinker prior to serving in Vietnam, and while the applicant drank to excess on his return from Vietnam, from at least the beginning of 2002 the applicant can only be described as an occasional drinker who had his drinking under control.
115. Furthermore, the Tribunal has considered whether the applicant meets the criteria for alcohol dependence as set out in paragraph 16 above. The Tribunal, on all of the material before it, it reasonably satisfied that the applicant does not have the necessary constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol related problems, and that the applicant does not suffer from alcohol dependence.
116. The Tribunal therefore affirms that part of the decision under review which rejected the applicant’s claim for pension for war-caused alcohol dependence or alcohol abuse.
Decision
117. The Tribunal affirms the decision under review.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDates of Hearing 15 May 2003 and 3 June 2003
Date of Decision 25 July 2003
Counsel for the Applicant Ms M Brennan
Solicitor for the Applicant Gilshenan and Luton
Solicitor for the Respondent Mr R Morison, Departmental Advocate
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