Ballantyne and Repatriation Commission

[2005] AATA 1280

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1280

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/834

VETERANS’ APPEALS DIVISION		)
Re		ROSS ARTHUR BALLANTYNE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date22 December 2005

PlaceBrisbane

Decision The decision under review is affirmed.

....................[Sgd].............................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – applicant experienced a series of events during service in Vietnam – applicant suffers from alcohol dependence – whether the events during service caused post traumatic stress disorder and/or alcohol abuse or dependence – hypothesis exists connecting the condition with the circumstances of the applicant’s service – applicant’s story unable to satisfy the relevant Statement of Principle – no evidence to support the fact the applicant experienced a severe stressor within the two years immediately before the onset of alcohol dependence – decision under review affirmed.

Veterans’ Entitlements Act 1986 s 120

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144

REASONS FOR DECISION

22 December 2005               Senior Member B J McCabe

Introduction

1.      Mr Ross Ballantyne served in the Army during the Vietnam conflict. He says he suffers from post traumatic stress disorder (PTSD) and/or alcohol abuse or dependence that can be linked to events occurring during his service. He says he is entitled to benefits paid by the respondent under the Veterans Entitlements Act 1986 (the VEA). The Repatriation Commission rejected the claim. The applicant has asked the Tribunal to reconsider the matter.

2.       I have decided the decision under review should be affirmed. I explain my reasons below.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Two bundles of documents containing all the evidence received in the matter up until the time of hearing were also tendered in evidence (exhibits 1 & 2).

4.      Mr Ballantyne gave evidence at the hearing, as did Drs Anderson and Chalk.

5.      Mr Ballantyne was represented by Mr O’Gorman of counsel. The respondent was represented by Mr Derrington, SC.

the applicant’s story

6.      Mr Ballantyne was born on 20 July 1950. He enlisted in the regular Army on 18 March 1969. He was discharged on 17 March 1975. He served in Vietnam between 25 June 1970 and 23 June 1971. His service in Vietnam qualifies as operational service for the purposes of the VEA.

7.      The applicant is being treated for PTSD and alcohol dependence. He says he developed these conditions as a consequence of his service in Vietnam. Specifically, he says he witnessed or was confronted with eight different events that qualify as severe stressors for the purposes of the relevant statements of principles (SoPs). He says he developed his present conditions in the wake of experiencing those severe stressors.

8.      I will summarise the stressors the applicant describes before briefly describing his experiences following his return from Vietnam and after his discharge from the Army. I will then consider the question of diagnosis.

(a) the discharge

9.      The applicant says he was asleep one night in his hut within the Vung Tao base when he became aware of gunfire close by. He said everyone in the hut “hit the floor” as no one knew where the fire was coming from. The applicant said in his statement:

I was fearful of my life during this incident. You could not pinpoint where the fire was coming from. It was more of a shock because it was in camp and you didn’t expect it to happen here.

10.     As it happened, a soldier in a nearby hut had discharged his weapon into the roof of his quarters. It is unclear why. He was subsequently arrested. The applicant says he knew the man from previous encounters in the wet canteen. Two other witnesses confirmed the applicant’s account.

(b) encounter with the armed hitchhikers

11.     The applicant worked in transport. One of his responsibilities was driving the ice truck. On the occasion in question, he was detailed to drive the ice truck from Vung Tau to Nui Dat to distribute ice amongst the units stationed there. The applicant says he travelled alone in the truck.

12.     Two armed Vietnamese men emerged from the bush at the side of the road just short of Nui Dat. They gestured him to stop. They climbed onto the running boards of the vehicle as he approached and directed him to continue driving down the road. They alighted from the vehicle without incident after five or six kilometres. The applicant says the men were not South Vietnamese soldiers. It seems they were not Viet Cong either. He surmised they were militia or local “cowboys”. He agreed he carried a gun of his own but he could not reach where it was stowed in the vehicle. He explained in his statement:

During this time I felt very nervous because I knew that they could have easily killed me. I had no chance as I couldn’t get to my weapon. I was alone and unsure what might happen.

13.     I note there are some inconsistencies between the applicant’s statement dated 2 April 2002 (at paragraphs 9 and 10) and the evidence given in earlier proceedings before the Tribunal: see transcript at pp30 and 50ff.

14.     Lt Colonel Tracy said it would have been most unusual for a convoy to be comprised of a single vehicle. He said it would be even more unusual for a driver to operate that single vehicle on his own. Other witnesses agreed that driving alone would be unusual and perhaps contrary to orders, but Mr Gurny and Mr Kallis agreed each of them had driven alone in a vehicle while serving in Vietnam.

(c) The rocket attack near the road

15.     Mr Ballantyne says he was travelling in a convoy when he witnessed a helicopter launch a rocket attack on a target in scrub near the road. He says he saw the rockets hit but he could not see who or what was being targeted. The applicant said in his statement: “I was reminded of how close I was to people being killed.”

16.     Mr Gurney and Lt Colonel Tracey also saw the missile strike. Mr Tracey said he saw the helicopters firing from about 600 yards. Mr Ballantyne told the Tribunal in his evidence in the earlier proceedings (transcript at p 20) that he thought the target was “a mile or two – a kilometre or two” distant from his position.

(d) firing on the fishing boat

17.     The fourth incident occurred while the applicant was operating a machine gun in a bunker overlooking the water at Vung Tau. There were two men in the bunker that afternoon. As dusk approached, the applicant noticed an unidentified fishing boat approaching the beach. He obtained permission to fire a warning shot across the bow of the vessel. The boat did not respond and the applicant kept shooting for a couple of minutes as it got darker. He says in his statement that he must have fired in the order of 750 rounds towards the vessel. He says he was not supposed to aim for the vessel but it was very hard to see it and he wonders to this day whether he hit it or killed anyone.

18.     Messrs Gurney and Kalis confirmed the event occurred although Mr Gurney suggested he did not think there was any danger to the occupants of the vessel. Lt Colonel Tracey questioned whether there was more than a single burst of gunfire.

(e) a man with a gun

19.     The applicant said he recalled a New Zealand soldier becoming intoxicated and collecting a weapon – an M16 – with a view to shooting people in the wet canteen. The man was apparently intercepted and disarmed without incident. No report was filed. The extent of the applicant’s involvement in these anti-climactic events is unclear. The respondent says soldiers in the unit were not issued with M16 rifles, but the applicant says a soldier could easily obtain a wide range of weapons.

(f) the prostitute in saigon

20.     Mr Ballantyne said he witnessed a prostitute being bashed by an Australian soldier outside his hotel in Saigon. The applicant said the prostitute was working on her own in a van parked on the street outside the Australian quarters. He said a number of soldiers entered the van and had sex with the prostitute before departing with a promise that the next soldier would pay her. The applicant said he was standing with some of his comrades on a balcony watching the farce play itself out in the street below. He said the charade ended when the last soldier refused to pay the woman and beat her. He said she staggered out of the van and disappeared. The soldier later boasted about administering “a flogging”. The applicant said in his statement:

I didn’t think what happened was very good. Its shocking to see a woman get hit like that. Its not something that I would have seen in Bundaberg. It gets to me today, you feel shame I suppose about what did happen to her.

21.     The applicant did not attempt to stop what was going on. He did not report it either. It seems that he did not see the woman being hit – she was inside the van – although he claims to have witnessed the aftermath and heard the soldier’s account.

22.     Mr Perkins also referred to the incident in his statement. Even so, the respondent says aspects of the applicant’s story do not ring true. Mr Laurie says a van would never have remained parked in front of the building in circumstances described by Mr Ballantyne for security reasons. Mr Laurie also said it was unlikely that a woman would have sex or be beaten in such a public place without being detected by the authorities. He pointed out that local police frequented a café nearby. He also doubted whether a van like the one described by Mr Ballantyne would have been used for such a purpose (vans of that description were in short supply, it seems) and he said it was unheard of for a prostitute not to require payment “up front”. In most cases, a prostitute would be accompanied by a pimp.

(g) a policeman shoots at a speeding motorist

23.     Mr Ballantyne said the police took a robust approach to enforcing traffic rules in Saigon. He claimed it was common knowledge that the police would shoot at motorists who did not obey police directions. He says he was in a vehicle one day and a policeman blew his whistle directing a motorcycle rider to stop. The bike did not stop and the policeman fired a shot. The applicant says he saw the rider fall off the bike; the applicant’s own vehicle drove off, so he did not know what happened thereafter. Messrs Perkins, Tracey and Gurney confirmed the local police were occasionally given to this sort of behaviour. Mr Laurie doubted the story, although he conceded it was not impossible.

(h) the military police bash an american serviceman

24.     The applicant says he saw two American military policemen beating an American negro soldier with their batons. The applicant said he did not involve himself in the confrontation. In his evidence during the earlier proceedings before the Tribunal, he said witnessing the violence made him feel “a bit worried” and “disturbed” because he did not think it was right that allied personnel should be beating their own people.

25.     Mr Laurie doubted whether the event occurred, but he could not rule it out either.

the applicant’s experince following the incidents in question

26.     The applicant began to drink heavily during his time in Vietnam. While he was in Saigon at the time of the prostitute incident, for example, his statement said “I hardly remember what I did except hang out in bars and drink.” The alcohol questionnaire included in the T documents suggests his consumption fell once he returned to Australia. He gave similar evidence to Dr Steinberg although he told Dr Chalk that he continued to drink a great deal upon his return and got into fights.  There are no reports in his military service record suggesting he was punished for alcohol-related misbehaviour, and his medical records at the time of his discharge in 1975 do not suggest there are any health problems.

27.     The alcohol questionnaire suggests the applicant started drinking heavily in 1980.

28.     The applicant was employed as a truck driver between 1975 and 2004. He was accustomed to working long hours. He operated his own truck as well as working for other companies during this period. He said he suffered from irritability and outbursts of anger. He said he felt anxious and depressed.  He also said he had “attacks” and nightmares that made it difficult for him to sleep.

the medical evidence

29.     Drs Steinberg, Anderson and Chalk accept the applicant has a drinking problem. I am satisfied on the basis of their evidence that the applicant suffers from alcohol dependence.

30.     Dr Chalk says the alcohol problem actually explains all of Mr Ballantyne’s symptoms. He says it not appropriate to diagnose PTSD in those circumstances. Dr Chalk agrees the applicant has developed a mixed anxiety and depressive illness as a result of the drinking, but says those conditions must be seen and treated as part of the alcohol dependence rather than being subject to a separate diagnosis.

31.     Drs Steinberg and Anderson agree the applicant suffers from PTSD. Dr Anderson agreed in his report that it was better to settle on a single diagnosis if that would suffice. He suggested in those circumstances he thought the applicant’s alcohol dependence and his depression and anxiety was secondary to the PTSD.

32.     After reading the reports of the three psychiatrists, I preferred the evidence of Dr Chalk. Dr Chalk has more extensive experience in dealing with soldiers and veterans who suffer from symptoms like those experienced by Mr Ballantyne. He is an independent expert who offered a compelling and principled explanation for his diagnosis. He has had access to more material than was available to Dr Steinberg in particular.

33.     It follows I do not accept the applicant suffers from PTSD.

the legislative framework

34. Veterans seeking benefits under the VEA in respect of war-caused conditions must comply with ss 120(1) and (3) of the VEA. The courts in cases like Repatriation Commission v Deledio (1998) 83 FCR 82 have held that s 120 requires the decision-maker to take four steps.

35.     In the first step, the decision-maker must consider all of the material before him and determine whether that material points to an hypothesis connecting the condition with the circumstances of service. The applicant in this case says he started drinking more heavily and developed an alcohol abuse condition because he witnessed or was confronted with a series of distressing incidents. Without making any findings of fact, I am satisfied there is material pointing to such an hypothesis.

36.     Deledio says the next step is to identify the relevant SoP. In this case, given my conclusion as to diagnosis, the relevant SoP is No 76 of 1998 relating to alcohol dependence or abuse.

37.     The third step is to determine whether the applicant’s story “fits” the template provided by the SoP. If it does not fit, there can be no casual connection established between the conditions of his service and the condition. The claim must therefore fail.

38.     The applicant strikes a problem at this point. Even if I accepted one or more of the events he described met the definition of severe stressor in the SoP, clause 5(b) requires that the applicant experience the severe stressor within the two years immediately before the clinical onset of alcohol dependence or abuse. That is not the case here. While the applicant did appear to drink heavily while he was in Vietnam, the evidence suggests he reduced his alcohol consumption upon his return to Australia. He did not fall into a sustained pattern of heavy drinking until about 1980. Evidence that the applicant was drinking heavily during his service in Vietnam (or even after his return) does not dispose of the question in any event. There is more to a diagnosis of alcohol abuse or dependence than heavy drinking. Given the absence of any evidence in the applicant’s military service and medical records of alcohol-related problems throughout the two years that followed his service in Vietnam, it seems unlikely that a doctor could make a diagnosis of the condition as it is unclear whether all of the relevant symptoms would have been present: see Youngnickel v Repatriation Commission [2004] FCA 1691 at paragraph 31 per Bennett J.

39.     The applicant’s claim fails at step three of the Deledio process. It is therefore unnecessary for me to proceed to consider step four.

conclusion

40.     The decision under review is affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Date of Hearing  28 July 2005
Date of Decision  22 December 2005
The applicant was represented by Mr O’Gorman of counsel.
The respondent was represented by Mr Derrington, SC.