Ballantyne and Repatriation Commission

[2003] AATA 1186

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1186

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/970

VETERANS' APPEALS  DIVISION		)
Re		ROSS ARTHUR BALLANTYNE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe
Dr KP Kennedy OBE, Member

Date24 November 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd)     KL Beddoe

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – whether post traumatic stress disorder and alcohol dependence or alcohol abuse war-caused – whether incidents suffered by applicant constitute ‘severe stressors’

Veterans’ Entitlements Act 1986 ss 24

Repatriation Commission v Budworth (2001) FCA 1421

REASONS FOR DECISION

24 November 2003  Senior Member KL Beddoe
Dr KP Kennedy OBE, Member    

1.      The applicant’s claim for acceptance of post traumatic stress disorder (“PTSD”) and alcohol dependence or alcohol abuse (“alcohol abuse”) was refused by the respondent.  The Veterans’ Review Board subsequently affirmed that decision.  The applicant subsequently sought review in this Tribunal.

2. The respondent conceded prior to the hearing (Statement of Facts and Contentions) that if the applicant is entitled to have his claimed conditions accepted, then pension is to be assessed on the basis that section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) is satisfied.

3.      There is no dispute that the applicant had operational service in South Vietnam from 25 June 1970 to 23 June 1971.

4.      At the hearing Mr O’Gorman appeared for the applicant and Mr Williams represented the respondent.

5. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits.

6.      Oral evidence was given by the applicant, Bevan Ronald Perkins, Peter Gurney, Donald Charles Kalis, John Sherwood Tracey, Kevin Edward Gallasch, Ian Athel Henry Laurie and Brian William Cloughly.

7.      We make the following findings of fact.

8.      The applicant was born on 20 July 1950, enlisted in the Australian Army on 18 March 1969 and was discharged on 17 March 1975 on the expiration of his service obligation.  As already noted he had operational service in South Vietnam from 25 June 1970 to 23 June 1971 where he served as a convoy driver with 86 Transport Platoon at Vung Tau.

9.      The applicant said (Exhibit A) that he commenced drinking alcohol prior to joining the Army but this was confined to sharing a “6 pack” with friends on Saturday night.

10.     He related eight incidents while serving in South Vietnam.

Incident No. 1

11.     The applicant asserts that this incident occurred on 19 July 1970 late at night while he was in the lines.  He says that a soldier in the next hut discharged a gun into the roof of that hut.  It seems a magazine of ammunition was fired off into the roof.  The applicant then says “I knew him because he was a big guy and picked on me in the Boozer.  He was arrested and taken away”. 

12.     The applicant asserts that he was fearful of his life during the incident but he could not pinpoint where the fire was coming from but he seems to have realised it came from within the lines.  The applicant’s assertion does not include an assertion that he knew that it was the “big guy” firing the gun during the time of the incident (Exhibit A).

13.     In his oral evidence the applicant said he felt threatened because when he was in his hut he did not expect automatic gun fire to go off around him and he thought he might be shot.  He said in cross-examination that so far as he is aware no bullets entered his hut.

14.     Also, in cross-examination he admitted he had not seen the soldier in question after the shooting and has not seen him since.  He said that he laid on the floor in his own hut initially and did not go out of his own hut until about 15 minutes after the shooting.

Incident No. 2

15.     The applicant asserts that in 1971 he was driving the ice-truck alone from Vung Tau to Nui Dat.  Approaching Nui Dat he was confronted by two armed Vietnamese who had appeared out of the road side brush and signalled him to stop.  He thought they were “militia or local cowboys”.  The Vietnamese jumped on the running board on each side of the applicant’s truck and directed him to go down the road (in the direction he was going) for five or six kilometres (Exhibit A).

16.     In his statement the applicant says:-

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

17.     In his oral evidence the applicant said one of the Vietnamese was pointing his gun at him.

Incident No. 3

18.     The applicant describes the incident in these words:-

“We were on an inland convoy heading to Long Bin/Saigon.  We saw a Cobra helicopter do a rocket attack in some scrub a few miles away off the road.  I saw the rockets hit.  I was reminded of how close I was to people being killed.”  (Exhibit A)

19.     In his oral evidence the applicant asserted a different scenario.  He said that to see a helicopter attack is interesting because it was very close and people would have been getting killed just beside the road.  He also said to see a helicopter attack is interesting but not very nice when you are at the other end of it.  The distance from the attack was said to be a kilometre or two.

Incident No. 4

20.     This incident was said to have occurred during the Tet.  The applicant and another soldier (Mr Gurney) were manning a waterfront bunker and after obtaining permission the applicant fired their machine gun across the bow of an approaching fishing boat.  In doing so the applicant said he fired off a whole box of ammunition which he estimated to be 1,000 rounds.  The applicant subsequently had thoughts of whether he might have killed an innocent person – the fishing boat had drifted (turned) away from the shore (Exhibit A).  However, Mr Gurney said they had no concerns about injury of people on the boat.

21.     In his oral evidence the applicant said his immediate reaction to firing off the rounds was “a bit of adrenalin”.  In cross-examination the applicant became very vague in his answers about the bunker.  Somewhat surprisingly he said that he did not reload the gun because it was dark and he could not see the boat any more.  That might be explained by Mr Gurney’s evidence that the boat did not fire on them or point a gun at them.

Incident No. 5

22.     This incident revolves around a drunken New Zealand soldier who is said to have been threatening to shoot people.  He said the soldier went “crazy” but then calmed down and nothing more was said of it.  Apparently the soldier was armed with an M.16 rifle (Exhibit A).

23.     In his oral evidence the applicant said he felt threatened for himself and a lot of other people.  However, he was unable to explain to the Tribunal why he took no action to report the alleged threat to himself and others except to say that the soldier would have been sent home – and he did not want to dob him in!

Incident No. 6

24.     This incident is said to have occurred one night in Saigon.  The applicant said, in his statement:-

“I was detached there for 3 months doing dog bodies [sic]..  I hardly remember what I did except hang out in bars and drink.  A girl was having sex in a van outside our hotel.  We were watching from the balcony.  Different guys went down and when she would ask for money they would say the next guy would bring it.  One of them had gone down, we thought to give her some money.  When she asked for it he bashed the shit out of her.  I’m not sure how long it lasted, but she left the van and staggered off down the street.”

25.     The applicant did not think what happened was very good and feels some shame about what the other soldier did to the woman or, in his oral evidence, that he was not very proud of it.

26.     In cross-examination the applicant said he was staying in the Hotel Canberra at the time and the van was parked outside the hotel on the median strip.

Incident No. 7

27.     This incident is also said to have happened in Saigon and involves the South Vietnam Police shooting a cyclist, the applicant witnessing the cyclist coming off his bike and hitting the ground.  He does not say if the cyclist was injured because “he didn’t stick around” (Exhibit A).

28.     In his oral evidence the applicant said that at the time he was surprised the incident had happened and felt a bit threatened if he stayed around that spot.

Incident No. 8

29.     This incident involved a black serviceman beaten to the ground by two U.S. Military Police but the applicant did not get involved.  He says the incident has stayed in his mind (Exhibit A).  In his oral evidence he said that the incident “worried me a bit” which he changed to “it did disturb me”.

30.     The applicant says that stress built up in him while in South Vietnam.  He says that he was drinking 6 – 12 cans of beer per day, there being no limit, it seems, to the amount of beer available.

31.     He says he now consumes 6 to 8 (or 9 to 10) stubbies per day and a carton and a half of stubbies over the weekend.  The applicant has been inconsistent in reporting his consumption of beer.  This pattern of daily consumption (except it seems when he is flying aircraft) is said to have increased from about 1980 (T4/12) or some time between 1985 and 1990 (T4/26).

32.     While we are satisfied that the applicant probably consumes more beer than is good for him, we are unable to come to any conclusion as to how much beer, if any, is consumed on a daily basis.  The inconsistencies make us uncertain as to the fact.

The Medical Evidence

33.     Document T4/25-31 is a copy of a report by Dr Steinberg, Psychiatrist, dated 31 August 2000 and addressed to the Department of Veterans’ Affairs.  Dr Steinberg saw the applicant on two occasions in 2000.

34.     Dr Steinberg took a history which included the following:-

“Over the last ten or fifteen years he said his alcohol intake has increased.  He drinks six to eight stubbies every night and on weekends drinks fourteen to fifteen.  He said that he doesn’t want to reduce it and wouldn’t know what to do if he didn’t drink.  He said he doesn’t get drunk and he drinks at home.  He said that if he goes out he gets into fights.

…..

Four years ago he started flying a small plane and goes out every couple of months by himself or with a mate.  He doesn’t drink when he is flying.”

35.     Dr Steinberg briefly describes Incidents 1, 2, 4 and 5 and also referred to bombings and his bed shaking and seeing bombed convoys on the side of the road.

36.     In diagnosing PTSD, Dr Steinberg noted the applicant experienced and witnessed events in South Vietnam which involved actual threatened death.

37.     Dr Steinberg also diagnosed Alcohol Dependence.

38.     In a further report dated 11 December 2000 and addressed to an RSL Advocate, Dr Steinberg re-affirmed the period of the increase in alcohol intake as being over the last ten to fifteen years.  He noted that he had not been able to get “collaborative evidence from a spouse” so that he had to rely on what the applicant told him.

39.     Dr Steinberg was not called to give evidence so there is no explanation as to why the “ten or fifteen years” in the first report referred to increased alcohol intake and the second report refers to intensified symptoms of PTSD and alcohol dependence.

40.     Nor is there any explanation of the effect of working fifteen hours per day five days per week, as was the reported situation at the time of the first report, why he assessed the applicant at “2” under Table 4.4 when he described occasional days off work because of the symptoms and whether working fifteen hours per day five days per week had been considered.

41.     We note that medical examination records relating to the applicant as a pilot are not before the Tribunal.

Consideration

42.     On the material before us we are satisfied, on the balance of probabilities, that the applicant suffers from PTSD and Alcohol Dependence in terms of DSM-IV.

43.     Dr Steinberg puts forward (albeit obliquely) an hypothesis connecting the applicant’s PTSD with events he experienced and witnessed in South Vietnam.  The applicant asserts that the alcohol dependence also is connected with those events.

44.     The applicant says that each hypothesis is consistent with the relevant Statement of Principles being Instrument No. 3 of 1999 (PTSD) and Instrument No. 76 of 1998 (Alcohol Dependence).

45.     While Dr Steinberg has diagnosed PTSD he did so in terms of DSM-IV published by the American Psychiatric Association.  That is apparent from the use of the DSM-IV codes by Dr Steinberg in his report.

46.     While we accept that the applicant suffers from PTSD using the DSM-IV criteria we also have to be satisfied, on the balance of probabilities, that the applicant suffers PTSD as defined in Instrument No. 3 of 1999.

47.     We think that test is satisfied in this case and the respondent did not contend to the contrary.  We accept, on the balance of probabilities, that the applicant suffers PTSD as defined in Instrument No. 3 of 1999 (Repatriation Commission v Budworth (2001) FCA 1421).

48.     Counsel for the applicant identified the central issue in this case as whether the applicant experienced a “severe stressor” as defined in Instrument No. 3 of 1999.

49.     Factor 5(a) of Instrument No. 3 of 1999 relevantly provides that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a person’s relevant service (here the service in South Vietnam) are:-

“(a)     experiencing a severe stressor prior to the clinical onset of PTSD; or

(b)       …..; or

(c)       …..”

The term “experiencing a severe stressor” is defined as follows:-

“‘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 abusing violence;’”

50.     Accepting as we do, for present purposes, the evidence of the applicant in relation to the eight incidents and accepting Dr Steinberg’s evidence about the applicant’s diagnosed conditions and the likely cause of the PTSD, we are satisfied there is an hypothesis connecting the condition with the circumstances of the applicant’s service in South Vietnam.

51.     The applicant’s submission is that PTSD and alcohol abuse can be caused by “severe stressors” and the applicant experienced “severe stressors” during operational service.  The hypothesis is upheld by Instrument No. 3 of 1999 (PTSD) and No. 76 of 1998 (Alcohol Abuse) and is not contrary to proved or known scientific facts and is not fanciful, impossible, incredible etc.

52.     It is apparent therefore that we must be satisfied that the applicant experienced a severe stressor.  This is because a factor in clause 5 of Instrument No. 3 of 1999 and clause 5 in Instrument No. 76 of 1998 must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD and alcohol abuse with the circumstances of the operational service.

53.     In this case the question is whether the applicant experienced a severe stressor prior to the clinical onset of PTSD and within two years immediately before the clinical onset of alcohol abuse.

54.     We have considered each of the incidents as they were told to us by the applicant.  We have accepted that the incidents occurred, that the applicant suffered some emotional disturbance at the time and that he recalls those incidents unwillingly from time to time.

55.     We are not satisfied, on the balance of probabilities, that any of those events, as related by the applicant, were so serious that they may have evoked intense fear, helplessness or horror in the applicant or in a reasonable person in the circumstances of the applicant.

56.     Relying on the applicant’s own evidence, none of the incidents was anything more than incidents which might reasonably be expected to occur in the circumstances confronting the applicant and others in South Vietnam.

57.     Dealing with the incidents seriatim and relying on the applicant’s evidence, we are satisfied on the balance of probabilities that the applicant did not experience a severe stressor because:-

Incident (1)momentary apprehension and fear was almost immediately replaced by the reality that there was no danger to the applicant – the fact that he knew the soldier is irrelevant;

Incident (2)while the applicant was entitled to be apprehensive for his welfare the incident amounted to no more than being required (at the point of a gun) to give two Vietnamese a ride on his truck.  The applicant did not know they were enemy although he may well have been suspicious;

Incident (3)witnessing a friendly helicopter attack on a jungle area some miles away may have been adrenalin raising but was not of such a nature to justify a finding that it was a severe stressor;

Incident (4)indiscriminate firing of a gun by the applicant without any suggestion that he was doing anything other than warning a Vietnamese fishing boat to turn away is not a severe stressor;

Incident (5)a brawl in or about the “boozer” does not satisfy us that the brawl was a severe stressor – while we take into account that the New Zealander had an illegal weapon we do not regard this of special significance given that the applicant himself had two illegal weapons;

Incident (6)it is clear, on the applicant’s evidence, that he spent his time in Saigon abusing alcohol and does not have a sound memory of events there but we accept that he recalls an incident involving a prostitute but of which he was not a part and in our view was not such as to be a severe stressor;

Incident (7)on the applicant’s own evidence all that happened at its highest was that an unknown cyclist was shot off his bike – there is no suggestion of death or injury and the applicant did not stay to witness the consequences of the policeman shooting at or about the cyclist – no severe stressor is apparent on the applicant’s own evidence;

Incident (8)the fact of U.S. Military Police dealing with a U.S. soldier with violence does not constitute a severe stressor.

58.     While we accept that the applicant experienced the related incidents, we are not satisfied that the applicant suffered a severe stressor during his service in South Vietnam.

59.     It follows that one or more of the factors in the respective Statements of Principles are not satisfied so that the hypothesis does not fit within either template.  The hypothesis is not a reasonable hypothesis.

60.     The decision under review will be affirmed.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe and Dr KP Kennedy OBE, Member

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  6 and 7 February 2003
Date of Decision  24 November 2003       
Counsel for the Applicant         Mr O'Gorman
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Mr Williams, Departmental Advocate