Bailey and Repatriation Commission
[2003] AATA 871
•5 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 871
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/383
VETERANS' APPEALS DIVISION ) Re DONALD GEORGE BAILEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date5 September 2003
PlaceBrisbane
Decision The Tribunal affirms the decision that the Depressive Disorder and Post Traumatic Stress Disorder suffered by Donald George Bailey are not war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.
.............SIGNED..................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – whether Post Traumatic Stress Disorder and Depressive Disorder war-caused – whether the hypothesis reasonable
Veterans’ Entitlements Act 1986: ss120(1), 120(3), 120A(3), 196B(2)
Repatriation Commission v Deledio 83 FCR 82
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Donald George Bailey, the Applicant, for review of a decision to refuse to pay medical expenses and pension for a claim that he suffers from war-caused Depressive Disorder (DD) and Post Traumatic Stress Disorder (PTSD).
2. At the hearing, the Applicant was represented by Mr. Honchin of Counsel and the Respondent by its advocate Mr. Stoner.
3. For the purposes of this review Mr. Stoner conceded on behalf of the Respondent that the Applicant suffers from DD and PTSD, but submitted that those disabilities were not war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986 (the VEA).
4. Mr. Bailey claims that during a period of operational service with the Australian Army in Vietnam he experienced certain traumatic events that caused his DD and PTSD.
5. The following matters are not in dispute and the Tribunal finds that:
(a)The Applicant was born on 1 December 1946.
(b)He gained qualifications as an electrical fitter/mechanic.
(c)He served in the Australian Army for two years pursuant to the National Service Act 1951 from 15 April 1967 until 17 April 1969.
(d)His service included 12 months of operational service in Vietnam from 20 November 1967 to 3 December 1968.
(e)During his Army service, he served as an electrical mechanic. His duties included maintenance of field generators and refrigerators and installing electrical wiring in wooden huts.
(f)After leaving the Army, he served in the Army Reserve for three years until 1972.
(g)After his Army service, he obtained a job with the PMG where he remained for a few months.
(h)In July 1969, he obtained a maintenance job at a sugar mill.
(i)Thereafter he worked in sugar mills for over 17 years.
(j)He married his first wife in 1971.
(k)He had been doing regular shift work for about 10 years until 1978, when his first wife died suddenly. He was badly affected by her death. He was left to raise two young children. He developed “nerves”. Thereafter he was able to do day work only. He suffered from depressed mood, sleep disturbance, poor appetite and a pre-occupation with morbid themes for about 18 months.
(l)In 1985, he tried his hand at selling insurance for about eight months.
(m)In late 1985, he set up his own business as a house-wirer and electrical appliance repairer. He did that for about nine years.
(n)He married his second wife in 1982. Their relationship has been significantly troubled from time to time but has improved in recent years.
(o)He separated for a time from his second wife in 1993. As a result of the separation he again experienced the symptoms that he had first suffered when his first wife died (set out in paragraph (k) above), but in a more severe form, including formal suicidal ideas.
(p)In 1993/94, he was treated by his General Practitioner. He was diagnosed as having a major depressive disorder and was prescribed antidepressant pharmacotherapy. His symptoms eventually responded well to the medication and after about 18 months he ceased taking the medication.
(q)Between about 1994 and 1998, he was feeling well but he occasionally experienced sleep disturbance and some friction with his wife.
(r)After he ceased working as an electrical contractor in about 1994, he worked for an electrical hardware firm as a sales clerk. His employer sold electrical cable, switch boards and other electrical equipment used in the construction of houses. He worked there for about 4½ years.
(s)In early 1998, he began to have difficulties at work. He believed that the place where he worked had become short-staffed and that he was being overworked. He became bad-tempered, argued with the manager and began to be forgetful. He believed that he could not continue to cope.
(t)He applied for a pension from the Department of Veterans’ Affairs (DVA) in or about May 1998. He claimed he suffered from PTSD and major depressive disorder and that they were war-caused disabilities.
(u)On 19 June 1998, he was examined by Dr. Likely, psychiatrist, for the purpose of preparing a report for the DVA. The report of Dr. Likely contained the following (amongst other things):
“He is a 51 year old married man and father of two full children and two step-children, who currently works as an electrician. Mr. Bailey describes long-standing disturbance with his mental health, reporting onset of symptoms approximately 15-16 years ago, at the death of his first wife. She died quite suddenly at the age of 26, apparently as a result of complications a viral cardiomyopathy. At this time Mr Bailey began to notice a disturbance in his mental health in terms of a pervasive depressed mood, anergia, amotivation, anhedonia, sleep disturbance, appetite disturbance and a preoccupation with morbid themes. At times these thoughts coalesced into ideas that life was not worth living. Mr Bailey stated that the symptoms lasted approximately 18 months before resolving. He suffered a second episode of similar symptoms, approximately five years ago at the time of separation from his second wife. The symptoms he described were the same as those listed above, but if anything were more severe.
When questioned about his military service, Mr Bailey stated that he was a National Serviceman who served for two years in all. He was employed with the Engineers in Vietnam between the 24th of November 1967 and the 10th of December 1968. His trade was as an electrician and as such he did not participate in any contact with enemy forces. Indeed he was unable to recall any aspect of his service in Vietnam which he found to be traumatic, although he commented that ‘just being there was bad enough’.
He was unable to recall any disturbance in his mental health after returning from Vietnam and on specific questioning denied any symptoms which would have been suggestive of post traumatic stress disorder or of any other anxiety disorder.
Mr Bailey stated that he took only occasional alcohol but did not smoke. He does not use illicit drugs and there is no forensic history.
He was teary at times when discussing the loss of his first wife. There were no abnormal movements noted. He spoke spontaneously and appropriately. His mood was euthymic. His affect was reactive. Thought content was preoccupied with themes of loss. There were no depressive cognitions however and there were no abnormalities of thought form, stream or possession. He denied any perceptual disturbances. He denied any suicidal or homicidal ideation.
IMPRESSION:
Axis I Major depressive disorder (in partial remission)
Axis II No disorder
Axis III No disorder
Axis IV Stressor of ongoing conflict with wife
Axis V Current GAF 81-90.”
(v)His claim for pension and treatment for PTSD and major depressive disorder was refused on 27 August 1998.
6. After his claim for pension and treatment for PTSD and major depressive disorder was refused in August 1998, the Applicant did some reading about Vietnam. He looked at his collection of photos from Vietnam and he listened to some tapes he had sent back to Australia from Vietnam. The readings, photos and tapes jogged his memory and he began to recall certain incidents of his Vietnam service.
7. The Applicant saw Dr. Likely again on 12 January 1999. Dr. Likely’s report contained the following:
“I gather that his claims for post traumatic stress disorder and major depressive disorder were refused. Since that time however, Mr Bailey stated that he had begun to recall more events pertaining to his service in Vietnam. He stated that the catalyst for this was some reading he had done and also listening to some tapes which he had made and sent home during his time in Vietnam. After this he recalled several events, in particular seeing a helicopter land, the pilot of which had been wounded. Mr Bailey stated that his response at the time was one of intense horror. He also elaborated that he had been to Fire Support Base Coral, although had not been involved in any contact at that stage.
Mr Bailey continues to suffer from significant symptoms of depression and also reports heightened irritability and dysphoria.. However as per my first report, the diagnostic criteria for post traumatic stress disorder are not met, although he clearly suffers from major depressive disorder.”
8. The Applicant applied for and was granted the service pension due to permanent invalidity in early 1999. He ceased work on 12 March 1999 and has not worked since.
9. The Applicant appeared before the Veterans’ Review Board on 26 May 1999. His claim to the Board was that he had been exposed to chemicals while serving in Vietnam and that the exposure had affected his health. The Board explained to him the way in which the Statements of Principles were devised and the way in which each Statement applied to his specific claims. The Veterans’ Review Board acted on the report of Dr. Likely and found that the Applicant was not suffering from PTSD and that his DD was “happily in partial remission” and was related to experiences in his life other than his military service.
10. Following upon the rejection of his claim by the Veterans’ Review Board in May 1999, the Applicant began to discuss his case with other Vietnam veterans. He gave evidence to the Tribunal that the conversations with other veterans further assisted his recall about events which he had forgotten but which he had experienced in Vietnam.. His contemporaries were able to assist him by telling him about events that he was involved in, although he still has no memory of them.
11. On 8 February 2000, the Applicant made a new claim for Disability Pension and Medical Treatment for PTSD/Depression and alcohol abuse.
12. On 21 February 2000, the Applicant again visited Dr. Likely, who reported thus:
“Since the time of my initial report to your office, Mr Bailey has developed a good therapeutic rapport with me and has told me of a number of aspects of his service which he had recalled of late. He stated that it has become apparent to him that he was involved his capacity as a Sapper in assisting retrieval and laying out of dead Viet Cong bodies, which were at various stages of decomposition and had often sustained massive traumatic injuries. These bodies were left in the streets for local villagers to collect and bury. Mr Bailey stated that he also participated in clearing patrols for booby traps and mines. He was also present during vehicle escorts which came under fire on occasion and assisted in providing supporting fire to assist other troops. Mr Bailey has also communicated with fellow veterans who served as his contemporaries. They have told him of a number of events in which he was involved but of which he had little recollection. One of these involved him participating in a team which conducted trials of a machine known as ‘the death machine’.. This piece of equipment was apparently designed to pump smoke into tunnel complexes used by the Viet Cong to flush them out of the tunnels. Apparently the smoke used to flush the Viet Cong out of tunnels would sometimes ignite and result in Viet Cong emerging from tunnels suffering severe and often fatal burns. Mr Bailey has been told by contemporaries that he witnessed events such as this, although he has no recollection personally.
However his recollection of other aspects of his service was becoming more intrusive. He stated that he has recurrent intrusive thoughts regarding aspects of his service outlined above.
In my opinion Mr Bailey continues to suffer from major depressive disorder and his alcohol intake has escalated to hazardous proportions. He has certain features of post traumatic stress disorder, with respect to recurrent intrusive memories regarding his service in Vietnam, symptoms of numbing of general responsiveness and symptoms of hyperarousal. These symptoms probably represent a sub-syndromal variant of post traumatic stress disorder, but nonetheless continue to cause him significant distress. Given their sub-syndromal nature, they are best diagnosed as constituting an anxiety disorder, not otherwise specified.”
13. The Applicant’s claim of 8 February 2000, was also rejected by the Repatriation Commission.
14. The Applicant appealed to the Veterans’ Review Board and his case was heard on 15 January 2002.
15. The transcript of the Veterans’ Review Board proceedings on 15 January 2002 show that the Applicant claimed that the stressful events he experienced in Vietnam and which caused his psychiatric problems were:
(a)Retrieving and laying out the bodies of slain Vietnamese;
(b)Observing a wounded helicopter pilot land his machine and then be removed by medical staff;
(c)Dealing with mines and booby traps;
(d)Assisting with workshop trials for a machine which was to be used to spray a diesel fuel mist into tunnels; the mist was to be ignited to drive Viet Cong personnel out of the tunnels.
16. The transcript of the Veterans’ Review Board proceedings records the following exchanges (among others):
(a)MR LANE: Yes, sure. So we’re talking about the business of retrieving dead bodies and laying out dead bodies.
MR BAILEY: Well, as I said in my statement that you got this morning, I was riding as shotgun. Mr Shearer’s statement also comments about the dead bodies and he was involved in Vietnam I think on -----
MEMBER: No, don’t worry too much about it.
MR BAILEY: ---- August. He was there a little bit before me.
MEMBER: Don’t worry about that.
MR BAILEY: He was involved in that sort of thing before I got there, but I did accompany – I can’t remember on how many occasions, but on occasions and I witnessed those dead bodies.
MR BAILEY: Well I wasn’t involved in the actual retrieval.
MEMBER: No.
MR BAILEY: But I was involved in the escort.
MEMBER: Yes.
MR BAILEY: Mainly an escort duty riding a shotgun. So as far as where those bodies actually come from, I would imagine they’d be closer to the Dat returning back to the ….. Villages.
MEMBER: Okay, so ----
MR LANE: Now, just for my benefit, escort duty meaning taking of the area where they worked in the villages. Is that right?
MR BAILEY: As shown in the first photo, the escort vehicles usually, that was through the ….. If escort vehicles usually had the M60 mounted on the back, they usually had one in the front and one at the rear, so that was mostly on convoys or on the escort duties for those bodies.
MEMBER: Yes. And you were taking the bodies from where to where?
MR BAILEY: Well, wherever they were picked up and we escorted them to the village.
MEMBER: Okay.
MR RICHARDS: Did you have to handle those bodies?
MR BAILEY: No, I didn’t.
MR RICHARDS: Who handled the bodies?
MR BAILEY: The other – the other three but I wouldn’t have a clue actually who they were.
MR RICHARDS: So they were in the vehicle with you.
MR BAILEY: They were in the vehicle, yes, already with the bodies, yes.
MR LANE: And sorry, the vehicles that you were using to transport them were these Landrover vehicles?
MR BAILEY: Depending on the number at the time, yes. I only accompanied them on a couple of occasions. It was something that I wasn’t real keen on doing.
MR RICHARDS: How did you feel when that – how did you feel when you were taking these dead bodies? How did you feel?
MR BAILEY: Well it’s not a very pretty sight.
MEMBER: They weren’t covered?
MR BAILEY: Oh, not really, not when they were put out in the village, no. They were just laid out there and I think Mr Ealey’s statement there was his experience on that would have been a little bit worse than mine. There were parts of bodies.
MR LANE: So what was the routine? Again, they were driven into the village and handed over to them were they?
MR BAILEY: They were just laid out on the road for the local villagers to collect them surmising that most of them might be part of the families in that village.
MEMBER: Well, on the two – you said you thought it was roughly two occasions that you’d done this.
MR BAILEY: Yes, I can’t remember but it was only a couple.
MEMBER: A couple?
MR BAILEY: It was only a couple, yes.
MEMBER: A couple, yes. You said a couple…. Roughly how many vehicles were involved on each occasion?
MR BAILEY: Well from memory and my memory recall on this sort of event is not particularly explicit, but from memory I think the escort vehicle… and then if there was only a few bodies, there’d only be possibly one or two, yes.”
(b)“MEMBER: When you saw the helicopter going down, it shuddered a bit ----
MR BAILEY: Well, we immediately come to a closer situation so we could observe it a bit better and they got him out – undid the seat-belt and got him out into the hospital.
MEMBER: It was the pilot?
MR BAILEY: It was the pilot, yes. He had been shot and yes, right hand, then what do they have, the assistant pilot beside him?
MEMBER: Yes, co-pilot.
MR BAILEY: Co-pilot? Yes, apparently he was okay.
MEMBER: Okay. And they got him out and what did you see then? Did you see where he was shot?
MR BAILEY: Well it looked like – I think there was a hole through the perspex in the front ---
MEMBER: Yes
MR BAILEY: --- and I can’t recall one or two or whether there may have been another one underneath, but I was told later that he may have died. So I don’t know.
MR LANE: Did they bring a vehicle up beside it?
MR BAILEY: No, they carried him straight in on the stretcher. Yes, I think it was only a matter of 10 metres from into the A-field.
MEMBER: They would have called in probably and let then know they were coming.
MR BAILEY: Yes, yes.
MR LANE: How did you feel when you saw the ----
MR BAILEY: Horrified. This can, you know, happen at any time.
MR LANE: Did you feel – what about since, do you get any flashbacks at all or anything like that?
MR BAILEY: Well I think I get little flashbacks because I don’t seem to be able to watch anything on TV where they’re cutting anyone up or trying to repair then. I’ve got to turn my head away.
MEMBER: You said you think – did you say you thought he later – did you say you thought he later died?
MR BAILEY: I was told, yes, that he died, so I don’t know whether that is gospel or not. I’m not sure, but apparently one in the chest or chest area and one in the neck I think.”
(c)“MR LANE: Well then we – the third matter that you wanted to focus on was ….
MR RICHARDS: Well yes, the major – the other one was the participating in checking the mines and booby traps away from Nui Dat. I think that’s another one which was fairly heavy.
MR BAILEY: Yes, that’s on the early morning patrols. Again, my job was shotgun and I never had the – well every Sapper got the training that I wasn’t particularly trained for searching for mines and booby traps and I was the shotgun ride.
MEMBER: This is when the helicopters flew up the road to check it and then engineers went up to the ----
MR BAILEY: Up by vehicle, yes.
MEMBER: Yes, okay.
MR BAILEY: And I think that checkpoint was at …
MEMBER: Yes. Did you actually strike any – you know, were there any ----
MR BAILEY: No, not to my knowledge, no.
MEMBER: Okay.
MR BAILEY: I believe that at times, yes, there was some problems, but not while I was there.
MR LANE: So just to complete on that then, so your task was to ride shotgun on the vehicles that went out after the ….
MR BAILEY: Yes, well, they grabbed anyone they possibly could at that time, so if you were there and you’re not involved in anything, they ….
MR LANE: So just to complete the picture on that one then, anything happen that you observed or ---
MR BAILEY: Not that I can recall but just ----
MR LANE: Just the apprehension of riding shotgun in a vehicle?
MR BAILEY: Yes.
MR LANE: All right, okay.”
(d)“MR LANE: Did you work on the machine itself in the ---
MR BAILEY: I was there for some reason, I don’t know, and from memory the mechanic was the one who went on the field patrols for the purpose of repairing the motor, yes, or to make sure that didn’t fail.
MR LANE: Is that it?
MR RICHARDS: That’s it.
MR LANE: And what did they use to generate the smoke?
MR BAILEY: There was a turbine ----
MR LANE: A diesel or something?
MR BAILEY: Turbine driven by a petrol motor from memory and the diesel was injected into that turbine to create that smoke.
MR. LANE: The mist?
MR BAILEY: Yes, that was directed down the tunnel and the idea was to explode that diesel fumes. Now, how they did that I don’t know. I wasn’t involved in that. But I would imagine it would be from some explosion or it’s probably plastic explosives or something.
MR LANE: So just to summarise again, what was your connection with it?
MR BAILEY: I was involved somehow or another with that workshop trial to get it up and running, yes, before it was choppered out and I think the mechanic working on it went out with it, and I suppose it would be --- into there from, what would it, be 1, 2 or 3 Troop, whoever was there at the time.”
17. The Applicant gave evidence to the Tribunal to the following effect:
(a)He was attached to the 21 Engineers support group. His duties were electrical maintenance.
(b)He flew on a helicopter on two occasions to travel to a U.S. base. He cannot recall why he made the trips, nor how long he was there.
(c)On one occasion he went with a road convoy to another U.S. base. He went with a refrigeration mechanic to fix a generator. He was flown back to his home base in a helicopter. He was never fired on.
(d)After reading articles in books and talking to other Vietnam veterans, he learned that sometimes the local Vietnamese villagers would get shot during guerilla activity. Their bodies would then be taken to their village and laid out for their relatives to retrieve.
(e)He remembers riding “shotgun” in the passenger seat of a land-rover whilst they passed through a village. His memory is not good but he saw at least one dead body – maybe more. His vehicle definitely did not ever stop to examine bodies. He cannot recall what his reaction was to seeing the body (or bodies). Whatever it was, he was able to continue with his duties.
(f)During his training at Liverpool and Canungra he had seen photos of mines and booby traps and he had undertaken a course about booby trap removal. In Vietnam he did not participate in the removal of mines or booby traps. He had no recollection of ever having been on a clearing patrol but believes that he would have had the role of “shotgun” if he could remember it.
(g)He was at the workshop where the smoke machine was being tested. He provided manual labour.
(h)On one occasion he was fixing a generator situated about 50 metres from the field ambulance, when a U.S. helicopter landed with a thud about 30 metres from where he was working. He saw ambulance staff run to the helicopter with a stretcher, grab the pilot out of his seat and take him inside on the stretcher. He saw blood on the chest of the pilot. He “felt a little horrified” because he had been in a helicopter himself. He went back to fixing the generator. He was told later that the pilot died.
(i)He heard about the death of a Staff Sergeant whom he had known for about six months. He felt the loss personally.
(j)He had been a moderate user of alcohol until about six to eight years ago. Since then he has had a serious drinking problem.
18. The Applicant again saw Dr. Likely for a medico-legal report on 3 September 2002. Dr. Likely set out the following matters as having been told to him by the Applicant as constituting significant stressors during his time in Vietnam:
“Mr Bailey had told me that he had participated in patrols through villages on the main vehicle route from Nui Dat and at times he had checked for mines and booby traps. He was required to ride shot gun on one of the vehicles and at times he would see the bodies of deceased Viet Cong laid out in villages. These were often in a state of advanced decomposition and had been laid out for relatives to retrieve. His response at the time was one of intense horror since the bodies had often sustained significant traumatic incidents. He also found that when participating in escorts from Nui Dat to Vung Tau he felt constantly keyed up, vigilant and on edge for any potential threat. On one occasion Mr Bailey witnessed a helicopter gunship make an emergency landing at the hospital helipad adjacent to 1ATF generator station. His response at the time was one of intense fear since he considered the crew of the gunship to be in imminent danger. I first diagnosed post traumatic stress disorder definitely in March of 2001 after Mr Bailey had provided me with a further statement as follows:
‘on one occasion I was involved in escorting plant equipment to a land clearing team to the north of Nui Dat, where the team had protection of a centurion tank, one of which was hit by enemy fire before we arrived. This enemy fire caused the fuel tank of the centurion to explode, I was absolutely devastated.’
‘I took part in patrols to the nearby village of Hoa Long, on a number of occasions, this involved laying out of VC dead for collection and burial by the village people. After escorting VC prisoners from Nui Dat to 10 MID (an ARVN outpost east of Baria) for interrogation by the SVN Armed Forces Intelligence. On occasions I saw very inhumane methods used by this unit, that I was in person fear of my integrity. This happened whilst my group was still on their base.’
‘on one occasion during a routine maintenance on a generator set for HQ which was situated adjacent to the medical centre, I observed a gunship helicopter making an emergency land, on closer examination it was apparent that the helicopter was hit by fire. From my observation the pilot was badly shot up, he died later of his wounds. Having been transported by chopper on many occasions previously I became from that point terrified of any involvement by me on helicopters, as I believed that I would end up like him.’
‘I also to my horror saw the results of an Armoured Personnel Carrier hit by an RPG fired by the VC.’
19. The incident involving the centurion tank was not pursued at the Tribunal. The Applicant told the Veterans’ Review Board that he thought he had been told about a centurion tank being hit near an area where he had been but on reflection he was mistaken.
20. The incidents involving “very inhumane methods” during interrogation were also not pursued at the Tribunal. The Applicant told the Veterans’ Review Board that he did not actually observe any interrogation but he had heard about it.
21. After Dr. Likely received the additional statement from the Applicant about other claimed stressful events in Vietnam, he diagnosed PTSD. Dr. Likely accepted the Applicant’s statements. He attributed the Applicant’s initial failure to recall any traumatic events in Vietnam and his subsequent lack of ability to describe some events in consistent detail, as being due to “dissociative amnesia”. Dr. Likely gave evidence that “dissociative amnesia” was thought to be a defence mechanism to cope with very traumatic events and it was one of the diagnostic criteria for PTSD. He also diagnosed depression and alcohol abuse as co-morbid with PTSD.
22. The Applicant was also seen by Dr. Mulholland, psychiatrist, on 26 November 2002. Dr. Mulholland interviewed the Applicant and his wife and also required the Applicant to undergo a series of pathology investigations. Dr. Mulholland provided a written report and he also gave oral evidence at the Tribunal hearing. Dr. Mulholland’s evidence was to the following effect:
(a)Although the Applicant reported that for the past five or six years he had been drinking two to six stubbies of medium strength beer per day, with binge drinking to becoming drunk once per fortnight, the pathology tests indicated that he was “normal”. There was nothing from the pathological point of view that was consistent with current or excessive intake of alcohol.
(b)Dr. Mulholland was sceptical of a finding that the Applicant had been suffering from “dissociative amnesia”.
(c)Dr. Mulholland agreed that if in fact the Applicant experienced extremely traumatic events, which he then could not remember, it would be reasonable to assume that the Applicant had a bad reaction to the events.
(d)Dr. Mulholland did not think that the death of the Applicant’s first wife would have caused a permanent depression.
(e)Dr. Mulholland said that depression typically waxes and wanes – it can be in remission and then relapse – it can be brought back by a significant psycho-social stressor.
(f)Dr. Mulholland recorded that the Applicant’s “reported recall about events of Vietnam is very patchy and as a consequence he is not able to give any satisfactory clear history about any specific events or give a really satisfactory history about his reaction to same. It is impossible for me to reach a conclusion as to whether his history is correct or substantially correct or basically incorrect.”
(g)Dr. Mulholland said that the Applicant talked about his recall of events as having occurred in dribs and drabs and he still has only partial and incomplete recall of much of his time in Vietnam and of his activities.
(h)The interview process was made difficult by the Applicant’s complaints of poor memory.
(i)Dr. Mulholland said that it was not possible to obtain an entirely satisfactory history of stressors in SVN – he wondered whether the Applicant was being guarded and not entirely ingenuous.
(j)Dr. Mulholland recorded that the Applicant’s speech was reasonably normal but communication was rendered somewhat difficult by his poor memory and also by his morbid preoccupations of attribution and entitlement.
(k)Dr. Mulholland concluded that there appeared to him to be little doubt that the Applicant has a reasonably significant psychiatric condition which is characterised by features of depression-anxiety-excessive intake of alcohol-post traumatic preoccupations-anger.
(l)Dr. Mulholland said: “From the history that I obtained it is not possible for me to conclude whether or not those experiences were significiant psychosocial stressors to qualify under the relevant SOPs or not. The best I can say is that perhaps they were and perhaps they were not. Ultimately at the end of the day it is the role of the Administrative Appeals Tribunal to determine these very difficult questions.”
“The difficulty is trying to determine as to whether his service in SVN could be regarded as being causal or contributory or whether these conditions arose independently of his military service and the content of his psychiatric disorder being influenced by his service in Vietnam but the basic process of the psychatric disorder not being causally connected with his SVN service. Frankly I find it impossible to offer a concluded opinion. I think the best way to determine this issue is a rigorous determination of the facts inasmuch as these matters can be determined in respect of what the actual stressors were during his service in Vietnam.”
“It is a common sense matter and not a matter requiring any great psychiatric expertise to determine whether issues are severe psychosocial stressors or not.”
23. It has now been settled (Repatriation Commission v Deledio 83 FCR 82) that the interaction of sections 120(1), 120(3), 120A(3) and 196B(2) of the VEA requires the Tribunal to take the following course:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).
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 ss196B(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.”
24. Having considered all the material placed before the Tribunal, the hypothesis connecting the Applicant’s PTSD and DD with the circumstances of his service in Vietnam is as follows:
· Whilst serving in Vietnam, he experienced three traumatic events, namely:
(i) Whilst riding “shotgun” in a landrover he passed through a village on at least one occasion (maybe two) and saw at least one (possibly more) body of a dead Vietnamese.
(ii) On an occasion when he was repairing a generator near a field ambulance he saw a helicopter land and he saw at least two ambulance staff run to the helicopter and remove the pilot on a stretcher. He thought that the pilot may have been shot because he saw a bullet hole in the perspex at the front and he heard that there may have been a bullet hole underneath the helicopter. He thinks he may have heard about the pilot being shot in the chest and possibly in the neck. He may have seen blood on the pilot’s vest. He thinks that someone told him that the pilot died – but he is not sure of that.
(iii) He heard about the death of a Staff Sergeant whom he had known for about six months.
· The events described above were so devastatingly traumatic that his body completely blocked out all memory of them until about the year 1999.
· He had no psychiatric problems after he completed his full-time service. Indeed, he spent three years in the Army Reserve. He stayed in the same occupation for 17 years.
· The block-out of the memories of his Vietnam service was so complete that even when he had some psychiatric problems after his first wife died, he did not recall the traumatic events he experienced in Vietnam.
· By 1998, when he was being treated for psychiatric problems by Dr. Likely, he still had not remembered anything about his traumatic experiences in Vietnam.
· However, in 1999 and 2000, his memory of the traumatic experiences in Vietnam was triggered by his reading of books about Vietnam, talking to Vietnam veterans, looking at his photos, listening to his tapes.
· His memory was triggered to such an extent that he “remembered” traumatic events that he did not in fact experience.
· As a result of his “recall” of further traumatic events and disclosure of them to Dr. Likely in early 2001, Dr. Likely diagnosed PTSD in March 2001 and attributed the Applicant’s PTSD to his Vietnam service.
25. One serious problem with this hypothesis is that the diagnosis of PTSD by Dr. Likely, and his opinion that the PTSD was linked to the Applicant’s service in Vietnam, was based on the acceptance of at least three claimed stressful events which never happened, namely:
· The Applicant was never involved in checking mines and booby traps.
· The Applicant was never near a centurion tank that exploded after having been hit by enemy fire.
· The Applicant never observed the interrogation of prisoners.
26. Another serious problem with the hypothesis is that it relies on the acceptance of the Applicant having had “dissociative amnesia” for 30 years. The Tribunal does not accept that the events claimed to have been stressful were of such magnitude as to cause the Applicant to not be able to recall them for 30 years, nor to cause him to invent traumatic events.
27. The relevant SoP for PTSD is No. 3 of 1999 as amended by No. 54 of 1999, and in particular factor 5(a); which 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 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; or
“experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
28. The relevant SoP for Depressive Disorder is No. 58 of 1998 and in particular factor 5(b).
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
(a)…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
29. The Tribunal accepts that when the Applicant was in a landrover that drove past a dead body (or two or three) he had an unpleasant experience, but the Tribunal does not accept that it amounted to “experiencing a severe stressor” or to “experiencing a severe psychosocial stressor”. He apparently carried on with his duties and then forgot about it. As at 1998 he had not regarded the experience as traumatic.
30. The Tribunal also accepts that the helicopter incident and the learning of the death of a former colleague would have been unpleasant or even distressing but those incidents were not severe enough to prevent the Applicant from continuing to go about his work, nor were they sufficiently severe for him to remember them as traumatic over the following years.
31. The Tribunal finds that the Applicant did not experience either a severe stressor or a severe psychosocial stressor during his service in Vietnam.
32. The Tribunal notes that the Applicant did not exhibit any symptoms of depressive disorder until his first wife died in 1978. This was within two years of the severe psychosocial stressor of the loss of his wife, but well beyond two years of his Vietnam service.
33. The hypothesis linking PTSD and DD with service in Vietnam is not reasonable because it relies on facts which have been demonstrated beyond reasonable doubt to be false and because it does not fit the SoP template for either PTSD or DD. There is no reasonable hypothesis which connects either the Applicant’s PTSD or his DD with the circumstances of his service in Vietnam.
34. The Tribunal is therefore satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the Applicant’s PTSD or DD are war-caused.
35. The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 25 February 2003
Date of Decision 5 September 2003
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Respondent Mr. J. Stoner, departmental advocate
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