Bell and Repatriation Commission

[2011] AATA 770

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 770

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1353

VETERANS' APPEALS  DIVISION		)
Re		RONALD BELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member

Date1 November 2011  

PlaceBrisbane  

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Claim for posttraumatic stress disorder – Application of Statements of Principles – Appropriate diagnosis of psychiatric conditions – No factual basis for diagnosis of posttraumatic stress disorder – Posttraumatic stress disorder not war-caused – Decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120A, 196B

Drew v Repatriation Commission [2008] FCA 537
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Mines v Repatriation Commission (2004) 86 ALD 62

REASONS FOR DECISION

1 November 2011 Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member          

1. On 16 September 2010 the applicant, Ronald Bell, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “PTSD”. He contended that this was related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.

2.      On 17 December 2010, the respondent determined that the appropriate medical diagnosis for the claimed condition was posttraumatic stress disorder. It also determined that the condition was not related to Mr Bell’s service. On 25 March 2011, the Veterans’ Review Board (“the Board”) affirmed the decision on the basis that relevant diagnostic criteria for that condition were not met. 

ISSUES AND SERVICE

3. Mr Noel Payne, on behalf of the applicant, conceded that the scope of Mr Bell’s claim was answered by posttraumatic stress disorder. Mr Jeff Kelly, for the respondent, agreed with that concession and also conceded that, if we were satisfied that posttraumatic stress disorder was diagnosable on the basis of an event described by Mr Bell, the causation provisions of the Act would also be met.

4. Mr Bell served in the Army from 1962 until 1985. He completed a period of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 24 May 1966 until 5 May 1967. He also served a period of defence service which is not relevant to this claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.

5. The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined to the decision maker’s ‘reasonable satisfaction’, which equates to a determination on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:

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.

[1] Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363 at 373.

6. The application of that provision is affected by the terms of s 120(3) and s 120A of the Act, which require that consideration be given to any relevant Statement of Principles (“SoP”) that has been published by the Repatriation Medical Authority (“RMA”).

SUBMISSIONS

7.      Initially, Mr Payne submitted that Mr Bell’s posttraumatic stress disorder had its genesis in any of three matters which occurred while Mr Bell was in South Vietnam. The first of these was being in a vessel in transit on the Mekong River from Vung Tau to Saigon, shortly after he arrived in South Vietnam. The second was observing wounded soldiers when Mr Bell was hospitalised for an infected toe. The third matter was Mr Bell witnessing the death by shooting of a civilian male by South Vietnamese police. The first two of those were abandoned by Mr Payne during the hearing and he confirmed that the only stressor relied upon was the third matter. We are satisfied that Mr Payne’s approach in that regard was appropriate to Mr Bell’s claim.

EVIDENCE

8.      Mr Bell’s evidence was that, in May, June or July 1966, he was proceeding along a roadway in Saigon on his way to lunch. He was dressed in civilian clothing. He heard a gunshot and, on looking in the direction of the sound, noted some South Vietnamese police, described by him as “White Mice”, standing over the body of a man in civilian clothes. Mr Bell noted that the man was bleeding from the side of his head. He assumed that the man had been killed. Mr Bell could not recall what he did following the incident in that he could not recall if he continued to his luncheon arrangement or returned to the Bachelor Enlistment Quarters at his camp. Of one thing Mr Bell was certain: he told no one of the incident. He did not advise any of the soldiers with whom he served in South Vietnam of the incident, nor did he relate the incident to any of those with whom he served after returning to Australia. He also did not tell any of his family members, which included two brothers who had war service in South Vietnam and Malaya, respectively. He did not advise any medical practitioner of the incident until 2010.  

9.      Mr Bell was discharged from the Army as a Warrant Officer Class 1 and then worked in a management position with Telstra until 2003, when he requested and was given a redundancy package. Shortly thereafter Mr Bell was diagnosed with prostate cancer, for which he underwent a prostatectomy in 2004. He described the consequences of this surgery as having a profound effect on his life. He developed depression and the symptoms of posttraumatic stress disorder. An earlier event which also impacted heavily on him was the death of his son in a motor vehicle accident in 1986. Mr Bell went to the Vietnam Veterans’ Counselling Service in 2006 and was referred to a psychologist, with whom he had several sessions. His treating doctor, Dr Phillip Burrell, diagnosed anhedonia and, in 2007, Mr Bell was referred to psychiatrist Dr Joanne Barkla, who has treated him on a regular basis since that time. 

10.     Mr Bell also sought legal advice about a Board decision made in relation to a claim by him. After some discussion about Mr Bell’s psychiatric state his solicitor contacted a barrister, who then spoke to Mr Bell on the telephone. For the first time he revealed to the barrister the events that occurred in South Vietnam, including the shooting event. On the barrister’s recommendation Mr Bell consulted psychiatrist Dr Bruce Lawford, who diagnosed posttraumatic stress disorder. Dr Lawford completed a report on 22 November 2010. He recorded Mr Bell’s account of the shooting incident, noting that Mr Bell had been “absolutely devastated” by the incident and felt “helpless” and vulnerable” at the time. Dr Lawford referred to the diagnostic criteria for posttraumatic stress disorder and expressed the opinion that Mr Bell had experienced “intense fear” and “helplessness and horror”. He wrote that Mr Bell was “horrified” by the shooting incident and also by seeing injured soldiers in the hospital ward when he was receiving treatment for his toe. Dr Lawson noted that Mr Bell had been treated for some years by Dr Barkla, whom he described as an “excellent” psychiatrist.

11.     In his evidence, Dr Lawford said that it was not unusual for a person in Mr Bell’s position not to disclose a traumatic incident to someone else. He said that living a busy life might take away the need to refer to such incidents but that, as one ages and is less busily engaged in activity, the need to speak out may increase. Nevertheless, he conceded that it was unusual for Mr Bell not tell his treating psychiatrist, Dr Barkla, about it. Indeed, he wrote in his report that “incredibly”, Mr Bell had not divulged half of his symptoms of posttraumatic stress disorder to Dr Barkla. 

12.     Dr Barkla completed reports on 13 September 2007 and 22 May 2008.[2] In the first of those reports, Dr Barkla wrote that Mr Bell appeared to have no symptoms of posttraumatic stress disorder. She diagnosed “dysthymic mood pattern”, which commenced after Mr Bell’s prostatectomy. In her second report, she recorded Mr Bell as advising her that he did not believe he was exposed to any significant traumas while in South Vietnam and that he “denied ever witnessing death of others or deceased bodies”. In that report, Dr Barkla attributed Mr Bell’s dysthymic disorder to the diagnosis and treatment for his prostate cancer and the death of his son. 

[2] A further report was completed on 10 March 2010 in relation to Mr Bell’s work capacity.

13.     Dr Barkla said in her evidence that she had a particular interest in treating patients with posttraumatic stress disorder and was well aware of the symptoms associated with that condition. She said that she only learned in August 2010, subsequent to the preparation of her reports, of the incidents that Mr Bell experienced in South Vietnam. She had discussed the matter with Dr Lawford. She said that she had treated Mr Bell on a twice-monthly or monthly basis for over three years without being told of those events, or of the full range of his symptoms. She described an overlap of symptoms between depression and posttraumatic stress disorder, especially in relation to avoidance and irritability which Mr Bell had displayed. However, she had not noted or been advised of his experiences of reliving the events. She said that Mr Bell had told her he considered the events were not significant enough to raise with her. 

14.     Mr Bell then saw psychiatrist Dr Sally Matheson on 9 June 2011. She completed a report on 17 June 2011. Dr Matheson referred to the shooting incident and recorded Mr Bell’s response at the time as one of “feeling overwhelmed by feelings of distress and helplessness to assist the victim of the shooting” and being concerned for his own safety. She also noted his response to seeing injured soldiers in hospital as one of “embarrassment”. Dr Matheson concluded that, on Mr Bell’s description, the shooting incident would amount to a stressor for posttraumatic stress disorder. She concluded that he suffers from dysthymic disorder and posttraumatic stress disorder.

CONSIDERATION

15.     For posttraumatic stress disorder, the relevant SoP is Instrument No 5 of 2008. Section 3 thereof lists six diagnostic criteria, all of which must be met before posttraumatic stress disorder can be found to be present. The reports of all three psychiatrists identify the applicant as suffering from posttraumatic stress disorder. However, the issue is not whether Mr Bell suffers from posttraumatic stress disorder generally but, rather, whether he does so in relation to a service-related event which meets all six diagnostic criteria in the SoP. While the SoP is not, in itself, a diagnostic instrument, it was not in dispute that the six criteria reflect those that are found in the relevant diagnostic instrument DSM-IV-TR for posttraumatic stress disorder. The first of those, criterion 3(b)(A), reads:

(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;

16.     Mr Bell has given various accounts of his reactions to events in South Vietnam. The sighting of injured soldiers while Mr Bell was in hospital was not relied on as a stressor by Mr Payne. However, it is useful to note Mr Bell’s references to his response at that time. He referred to the injured men in his statement of 14 September 2010 and wrote that his feelings were those of embarrassment that prevented him from making contact with them, regret that he had to compare his predicament of an infected toe with them, and helplessness in not being able to do anything for them. In his evidence, he repeated that sentiment and described his condition as ‘innocuous’. No reference was made by him to a sense of intense fear or horror. His reference to helplessness was in relation to being unable to do anything for the men rather than a sense of helplessness for his own position. Dr Lawford recorded Mr Bell as advising that he was “horrified” at the time. That description is not in accordance with his evidence, which approximated what was recorded by Dr Matheson. She recorded that he had described “embarrassment” at the time.

17.     For the shooting incident, Dr Lawford recorded that Mr Bell told him that he felt “helpless” and “vulnerable” at the time. However, in assessing Mr Bell, Dr Lawford referred to the diagnostic criteria for posttraumatic stress disorder, expressing the opinion that Mr Bell had experienced “intense fear”, “helplessness and horror”. That does not accord with what Mr Bell told Dr Barkla. Initially, he advised her that he did not believe he was exposed to any significant traumas while in South Vietnam and he “denied ever witnessing death of others or deceased bodies”. After Dr Barkla was made aware of the shooting incident, Mr Bell told her that he considered the events in South Vietnam were not significant enough to raise with her. That is not consistent with what he wrote in his statement of 14 September 2010. In that statement, he described feeling “totally helpless, appalled and in fear” for his safety after the shooting incident. He described dreams about the event until he returned to Australia, when they ceased. In his evidence, Mr Bell described the shooting incident as ‘innocuous’ when compared with what others suffered. When asked to explain what he meant by ‘innocuous’, he said that it was trivial. He also described it as a “horrid incident” and explained that this was a term he and a cousin had adopted in childhood after seeing a movie.      

18.      The evidence given by Mr Bell differs from the descriptions he has given previously. The inconsistencies cast doubt on his credibility as a witness. Of course, his evidence before us was given on oath and that evidence falls well short of a response involving “intense fear, helplessness or horror” as required by criterion 3(b)(A) of the SoP. We also have concerns about Mr Bell’s evidence in relation to the shooting incident itself. We note Dr Lawford’s evidence that a person with posttraumatic stress disorder may not disclose a stressful event for their own reasons. It is difficult to accept that Mr Bell did so for more than 40 years, or that he would finally disclose the information to a stranger via telephone. That is especially the case when he not only failed to disclose it to the psychiatrist who treated him over several years, but also specifically denied to her that he was exposed to any significant traumas in South Vietnam or ever witnessed death or deceased bodies. We note that Dr Lawford considered that it was unusual for Mr Bell to fail to divulge the shooting incident to Dr Barkla and also that it was “incredible” that Mr Bell had not divulged all of his symptoms of posttraumatic stress disorder to her. 

19. Criterion 3(b)(A) is an essential threshold element of the criteria for service-related posttraumatic stress disorder. We are reasonably satisfied that the requirements of criterion 3(b)(A) in the SoP are not met. Despite the medical opinion of the presence of that condition, we are reasonably satisfied that the factual basis for making a diagnosis of posttraumatic stress disorder, in relation to an incident on operational service, is not present. This means that posttraumatic stress disorder cannot be a war-caused condition in accordance with s 9(1)(b) of the Act.[3] 

[3] See Mines v Repatriation Commission (2004) 86 ALD 62 at 71; and Drew v Repatriation Commission [2008] FCA 537 at [8] – [9].

DECISION

20.      The Tribunal affirms the decision under review.  

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Signed:  ..................[Sgd]..........................................................
               Research Associate

Date/s of Hearing  10 October 2011
Date of Decision  1 November 2011         
The Applicant was represented by            Noel Payne, advocate
The Respondent was represented by Jeff Kelly, departmental advocate