Bentley and Repatriation Commission

[2011] AATA 749

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0262

VETERANS' APPEALS   DIVISION		)
Re		RONALD BENTLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop
Brigadier A G Warner, Member

Date25 October 2011

PlacePerth

Decision

The Tribunal:

·      varies the decision under review by amending the diagnosis of the applicant’s depressive condition from depressive disorder to Major Depressive Disorder;

·   in all other respects, affirms the decision under review.

............sgd S D Hotop......

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Australian Army – applicant’s Army service included operational service – applicant claimed Post Traumatic Stress Disorder (PTSD) and “Anxiety Depression”  war-caused – applicant has not suffered PTSD – applicant has suffered Alcohol Dependence and Major Depressive Disorder (diseases) – Statements of Principles (SoPs) – SoPs do not uphold contention that applicant’s diseases connected with operational service – material before Tribunal does not raise reasonable hypothesis connecting applicant’s diseases with operational service – applicant’s diseases not war-caused

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B

Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009

Statement of Principles concerning alcohol dependence or alcohol abuse, Instrument No 76 of 1998

Statement of Principles concerning depressive disorder No 27 of 2008

Statement of Principles concerning depressive disorder No 17 of 2007

Benjamin v Repatriation Commission (2001) 70 ALD 622

Bull v Repatriation Commission (2001) 188 ALR 756

Byrne v Repatriation Commission (2007) 97 ALD 359

Collins v Administrative Appeals Tribunal (2007) 96 ALD 536

Mines v Repatriation Commission (2004) 40 AAR 238

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2011) 110 FCR 2321

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

25 October 2011 Deputy President S D Hotop
Brigadier A G Warner, Member

Introduction

1.      Ronald Bentley (“the applicant”), who was born in May 1948, enlisted in the Australian Army, pursuant to the National Service Act 1951 (Cth), on 28 January 1970 and was discharged on 17 November 1971. He rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth)(“VE Act”), in Vietnam from 22 October 1970 to 19 November 1970.

2. On 8 March 2007 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for disability pension under the VE Act in respect of disabilities described as “PTSD” and “Anxiety Depression” which he claimed were caused by “exposure to traumas of war”.

3.      On 11 February 2008 a delegate of the Repatriation Commission (“the respondent”) decided, in respect of the applicant’s claim for disability pension, that “post traumatic stress disorder, alcohol dependence and depressive disorder are not related to service”.

4.      On 7 December 2010 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 11 February 2008.

5.      On 24 January 2011 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 7 December 2010.

The Evidence

6.      The evidence before the Tribunal comprised:

· the “T Documents” (T1–T16, pp I–XIV, 1–131) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     report of Dr James Fellows-Smith, dated 21 March 2011 (Exhibit A1);

·     report of Dr Malcolm Roberts, dated 5 July 2011 (Exhibit A2);

·     letter from Harry Bentley, dated 26 March 2011 (Exhibit A3);

·     transcript of applicant’s hearing before the VRB on 7 December 2010 (Exhibit R1);

·     extract (pp 467–468) from American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (2000) (“DSM-IV-TR”) (Exhibit R2); and

·     the oral evidence of the applicant.

The Applicant’s Evidence

7.      In his oral evidence-in-chief the applicant described the incident as a result of which he claimed that he suffered Post Traumatic Stress Disorder (“PTSD”).  His evidence may be summarised as follows:

·     when he was in Vietnam, based in Vung Tau, in late 1970, he was a “duty driver” and one of his jobs was to take troops from the base into town where there were bars, and later pick them up and take them back to the base;

·     he drove a “Landrover” on those trips;

·     on the occasion in question he picked up a sergeant and another soldier and two girls in town;

·     the sergeant “ordered” him to take the girls to a “designated spot”;

·     he “questioned” this but the sergeant said that it was an order;

·     he had driven about 5–10 kilometres to the outskirts of Vung Tau when he heard a “loud bang”;

·     he thought that it may have been a “trip-wire” to alert those who were on duty;

·     he then heard the sound of gunfire and bullets “cracking over [his] head”;

·     he heard “two or three shots” and then “a few more”;

·     the girls were pushed out of the vehicle and he headed back to the base;

·     the sergeant said “never to utter a word” about it;

·     a couple of weeks later he was told to “pack up” and he was sent back to Australia;

·     he does not know why he was sent back to Australia – it was never explained to him;

·     during the incident he “truly thought [he] was going to be killed”;

·     he had been told that people working with them could be “plotting” against them and so he was “on edge” all the time he was in Vietnam;

·     he did not tell anyone about the incident and kept it to himself for a long time because he had “signed the secrecy act” and had been “told never to speak about what happens in Vietnam”;

·     looking back, if he had stayed longer in Vietnam he could have “worked through it a bit”.

8.      In cross-examination the applicant gave evidence to the following effect:

·     when he was called up for national service in 1970 he was already a qualified mechanic;

·     after enlisting, he did recruit training, corps training, a battle efficiency course – he was trained in the use of SLRs and was used to the sound of firearms;

·     he was a conscientious objector – he did not want to go to Vietnam;

·     he wrote a letter of objection to the Minister for the Army and he received a letter in response informing him that he would not be sent to Vietnam, but he was sent there;

·     he arrived in Vietnam in the third week of October 1970 and the incident happened about two weeks later;

·     before the incident happened he had already driven around Vung Tau and the bar area - it was about 5-8 kilometres from the base and took about 5–10 minutes to drive there;

·     at the time of the incident, it was dark;

·     he had driven to the street where the bars were located – he cannot remember whether anyone was with him in the vehicle – usually, he had another person “riding shotgun” – he had an SLR with him;

·     he picked up the two men, namely, Sergeant Reardon and Paul Lethbridge, and two girls from the bar;

·     the Landrover had two bench seats – Sergeant Reardon was in the front seat with a girl on his lap and Lethbridge and the other girl were in the back seat;

·     they did not have weapons with them;

·     he did not see any barrier on the road or any Vietnamese people and there was no traffic around at the time of the incident;

·     he heard a “loud bang” – “it felt like it was all around [him]”;

·     he heard gunshots – a “volley of three from an automatic”, followed by “three single shots”;

·     the vehicle was not hit – it had a “soft top” and the top was up;

·     he stopped the vehicle “as a natural reaction”, turned the vehicle around and drove back to the base;

·     the girls had been pushed out of the vehicle and were left behind;

·     he was terrified and “wet” himself;

·     when he returned to the base he went back on duty but did not change clothes because they were “half wet anyway” because of the humidity;

·     he “hardly slept” that night, his heart was “pumping”, he was “sweating” and “thanking [his] lucky stars”;

·     the next day he was back on duty and continued with driving duties but he does not think that he drove into Vung Tau at night again;

·     he and Lethbridge were told by Sergeant Reardon not to say anything about the incident, and he kept it to himself – he was “afraid of repercussions” from Sergeant Reardon;

·     he was returned to Australia about four weeks after his arrival in Vietnam;

·     he continued to have problems sleeping after he returned to Australia;

·     he did not seek help at that time because “when you are younger you think that you are stronger than what you are” and because “you were regarded as a malingerer and a bludger if you went to the RAP”;

·     he first sought help in 1980 from a visiting psychiatrist in Geraldton;

·     in about 2004–2005 his GP gave him medication and he subsequently saw Dr Mullins and has been receiving treatment since then.

9.      In response to questions from the Tribunal the applicant gave evidence to the following effect:

·     the standard check-out procedure at the base was that a sentry would keep a record of vehicles exiting and entering the base and an armed soldier “riding shotgun” would accompany the driver of the vehicle;

·     he was “not 100% sure” whether someone was “riding shotgun” with him on the trip in question;

·     in order to get into and out of the back seat of the vehicle, Lethbridge and the girl had to climb over the back of the front seat;

·     when he heard the “loud bang” he thought that it might have been “a mortar”;

·     he heard the “crack crack of bullets” – a sound that he was “familiar with” – “automatic fire”, “very quick”;

·     he thought that the shots were coming from the direction of the “right front” of the vehicle because the vehicle did not have doors and he “felt exposed” and he presumed that, if it was an ambush, it would come from the right side of the road;

·     at the time he “had intense fear” and he thought his “number was up”;

·     his immediate reaction was to “go into survival mode” and “just get out of there”;

·     the girls were pushed out of the vehicle and left behind because he “had a feeling” that the girls “may have been leading [them] into something … an ambush” and he had been “on edge” since the day he arrived in Vietnam, he had been trained to be “careful”, and “in the back of [his] mind was kill or be killed”.

10.     It was put to the applicant that, in response to a request by the DVA for the provision of further information regarding the abovementioned incident, he had written a letter, dated 23 June 2007, to the DVA as follows:

“ Re request for information about my ordeal whilst I was on active service in Vietnam.  Writing about this incident does cause me a great deal of distress and guilt.

My CEO was Tony de-Bont & I was serving with the 55EWPS.  This distressing incident occurred some time before Christmas of 1970.  There were three other soldiers with me, Paul Lethridge (sic) who was sitting next to me, Mick Readon (sic) and Greg Carstairs.” (T6)

It was also put to the applicant that Greg Carstairs did not serve in Vietnam until 1971.  The applicant acknowledged that Greg Carstairs could not have been in the vehicle, and he added:

“ I can’t remember.  I met a lot of people.  For some reason Greg stuck in my mind.  It’s a bit hazy.”

The Medical Evidence

11.     Three psychiatric reports regarding the applicant are in evidence.

Dr Stephen Proud

12.     Dr Proud’s report of 28 May 2007, addressed to the DVA, states as follows:

“ …

HISTORY:

Presenting Complaints:

Mr Bentley is a 59 year old married man who was born in Collie, Western Australia.  His mother died when he was 13 years old and he subsequently became very close to his father.  He left school in Year 10 and trained as a mechanic but was called up for National Service between January 1970 and November 1971.  He was a conscientious objector but this did not prevent him from being sent to Vietnam on 22 October 1970 through to 19 November 1970.

While he was in Vietnam his father died from a stroke and he said that he was denied compassionate leave to return for his father’s funeral.  The last memory he had of his father was of his father seeing him off when he went to Vietnam.

In Vietnam he was based at Vung Tau and worked as a transport driver.  The only incident for which he is claiming post traumatic stress disorder occurred on a day when he was with other people in a truck (he was the driver of the truck) in a place he claimed that he was not meant to be and in fact this incident was never reported.  They were apparently attacked.  No one was killed but he said that he feared for his life with the rifle fire and the explosions all around him.

Mr Bentley returned to Australia in 1970 and resumed work as a mechanic.  He had not drunk alcohol to any significant extent prior to going to Vietnam or after his early days back in Australia, but by the late 1970s he was abusing alcohol and has continued to do so to this day.  There is no family history of alcohol abuse.

He has worked as a mechanic for a prolonged period however he and his wife now own a business in Geraldton, which is a franchise business selling garages and sheds.  Over the last two to three years he has been working less and his wife essentially now runs the company.

He stated that he had always suffered with nightmares of Vietnam and eidetic pictures in his head of Vietnam but over the last three to four years his condition has deteriorated and his ability to cope was poor.  This may be related to the fact that he only received his medal for Vietnam in 2000 at the urging of his wife but there is no obvious precipitant apart from his age.

Work History:

Mr Bentley is still working in the company but his wife now essentially runs the business.

Current Status:

Mr Bentley still has nightmares of Vietnam and occasionally he remembers them but at other times he wakes up sweating.  He uses large quantities of alcohol to drop off to sleep but he still wakes up early.  Anzac Day, Vietnam veterans talking about Vietnam Long Tan Day, Christmas Day, all trigger worsening of his nightmares and his eidetic images.

Over the past 10 years he has become increasingly more irritable and angry and his sex drive, energy, enjoyment of life, concentration and short term memory are low.  He has been suicidal but after treatment by a counsellor in Perth and later in Geraldton, this stopped.  He feels worthless and helpless and apart from his children there is no meaning in life.  He feels extremely guilty about the fact that he survived and friends died in Vietnam.  He also feels guilty and believes that his going to Vietnam caused his father (sic) stroke.

Lifestyle:

Mr Bentley does not smoke cigarettes and denies the use of illicit substances.  He said that on Friday night and over the weekend he will drink 180-240gms of alcohol per day and from Monday to Thursday, 80gms of alcohol at night after work.

He has withdrawn from social events and he avoids meeting people at work.  He is not a member of any group apart from the RSL but said that he never attends the RSL functions.  He has never marched on Anzac Day.  He drinks alone.

Current Treatment:

Mr Bentley consulted a psychologist in 2005 and 2006 but has not consulted anyone this year.  He has not been treated by a psychiatrist.

He thinks that he is taking Xanax at night as prescribed by his GP but is not sure of the name of the medication.  He is not sure of the names of medications that he has taken in the past.

Past Medical/Psychiatric History:

He consulted a psychiatrist in 1980 which he thought was related to his problems in Vietnam but he cannot recall.

He reports that he is physically well.

There is no family history of psychiatric problems or addiction problems.

Family/Personal History:

Mr Bentley has two brothers and two sisters.  His parents are both deceased.

He has been married three times.  He married for the first time 20 days before National Service but they separated in 1974.  They had no children.  He has two children aged 30 and 27 from his second marriage which only lasted two years.  He has been married to his current wife since 1990 and they have two children aged 16 and 15.  They live in their own mortgaged home in Geraldton.

MENTAL STATE EXAMINATION:

Mr Bentley was a casually dressed, polite and cooperative man who cried throughout most of the interview, raked (sic) with guilt as he related his history about National Service, the loss of his mother and his father, his friends dying in Vietnam and the guilt that he felt.

SUMMARY AND ASSESSMENT:

In response to the specific questions:

1.Please determine what, if any, psychiatric condition(s) Mr Bentley presently suffers or has previously suffered.  Please use DSM-IV as the basis for your diagnosis and note the primary condition and any related/associated conditions.

Mr Bentley complains of symptoms consistent with a DSM IV TR Diagnosis of Post Traumatic Stress Disorder, moderate severity, chronic.  He also attracts a diagnosis of Alcohol Dependence and a current diagnosis of Major Depressive Disorder, chronic of moderate severity

2.      Please provide comment on:

(a)       causal factors of the conditions (severe stressors etc).

(b)the date of onset of each condition – ie when the condition first manifested all of the symptoms necessary for it to be diagnosed by a suitably qualified medical practitioner.

(c)the effect of the condition on the veteran’s capacity for work.

Mr Bentley describes symptoms of Post Traumatic Stress Disorder.  According to him these have all risen (sic) from a single day in Vietnam when he was in a truck that was under fire and where no one was killed.  This could be correct but the facts of this would need to be checked, although this may be difficult given that he said that he did not report this incident as he and his friends were in an illegal place.  This raises the possibility that Criterion A in DSM IV for the diagnosis of Post Traumatic Stress Disorder may not be met ie he may not have been exposed to traumatic events where he perceived his life to be at risk.  On the face of it what Mr Bentley says appears true and his presentation in the interview seemed sincere.  However, I cannot be sure whether he actually was exposed to traumatic events in his time in Vietnam and that would need to be checked.

If his assertions are correct, his nightmares commenced in Vietnam and have continued ever since.  He said that his drinking became a problem in the late 1970s.  The drinking may be self medication for the post traumatic stress disorder but there may have been other factors in the late 1970s that have contributed to this but I am unsure of this.  It certainly has face validity that it is related to post traumatic stress disorder.

The major depression appears to have developed sometime over the last two to four years and is related to his post traumatic stress disorder, alcohol dependence and advancing years.

The combination of post traumatic stress disorder, alcohol dependence and major depression is substantially affecting his capacity to run his business and it appears that he can only run it effectively because of his wife’s involvement.

…”  (T5, pp 35–37)

Dr James Fellows-Smith

13.     Dr Fellows-Smith’s report of 21 March 2011, addressed to the DVA, states as follows:

“ I saw the abovenamed on the 21^st March 2011 for the purpose of this report.  He is a sixty three year old married part time salesman working for Highline Sheds fifteen to twenty hours per week.  He has been married on two previous occasions and has two children from his second marriage and two from his present marriage who are all grown up.

Mr Bentley present (sic) with Post Traumatic Stress Disorder directly related to his wartime service serving as a private in the transport EWPS Vietnam 1970.

With regard to the diagnosis of Post Traumatic Stress Disorder as described in DSMIV 309.81:

Category A:Mr Bentley experienced and was confronted with an event that involved threatened death or serious injury to himself and others.  His response to this event involved intense fear, helplessness and horror.

Mr Bentley stated that at approximately 9 pm one evening he picked up Sergeant Mick Reardon and Private Paul Lethbridge from a bar in downtown Vung Tau accompanied by two bar girls.  He was ordered by the sergeant to drive the party to the outskirts of Vung Tau despite this being a no go zone.  Mr Bentley was aware of the danger of this issue as it was expressly prohibited for them to go into this area and he was aware of incidents that had caused death or injury to other personnel.

Mr Bentley stated that having driven approximately 10 km out of the centre of town he was startled by a loud explosion.  In hindsight he attributes this to possibly driving over a booby trap such as a trip wire that could alert the ARVN to attack.  Mr Bentley stated that his response to hearing the loud explosion was intense fear.  In his own words ‘I shit myself and slammed on the brakes.’  He stated that the sergeant said ‘Let’s get out of here’ as the bar girls were pushed out of the vehicle.  As soon as the vehicle stopped Mr Bentley stated that he could hear the crack of bullets going overhead numbering approximately six rounds.  He stated that he did a U-turn and drove off at speed.  As a measure of the severity of his reaction he stated that although he did not realise at the time he had indeed wet himself with fear.  Significantly he describes an alteration to the familiarity of his experience describing the passage of time as being in slow motion.  He describes the events occurring with an unreal quality ‘As if I was dreaming about it.  This wasn’t happening to me.’  From this I concluded that he had an acute stress reaction.

Category B:The traumatic events are persistently re-experienced in the form of recurrent and intrusive distressing recollections of the event, recurrent distressing dreams of the event, flashback episodes and intense psychological and physiological distress on exposure to cues that symbolise or resemble aspects of the trauma.  He stated that reminders of the incident in particular social occasions when he meets up with his army mates trigger vivid recollections of the event.  These have particularly occurred on Anzac Day, Christmas and Long Tan Day. He stated that he can be triggered by medical legal (sic) appointments or talking about the incident with the advocate.

Category C:There is evidence of persistent avoidance of situations that arouse recollections of trauma and the trauma and numbing of general responsiveness as indicated by efforts to avoid thoughts, feelings and conversations associated with the trauma, efforts to avoid activities, places or people that arouse recollections of the trauma, markedly diminished interest and participation in significant activities, feelings of detachment or estrangement from others and a restricted range of affect.

Mr Bentley stated that he avoids television and movies about the war.  He describes a change to his emotional repertoire with a loss of loving feelings affecting intimacy within his marriage.  He is concerned for his current relationship for this reason.  He stated that he is estranged from his first two children.

Category D:Persistent symptoms of increased arousal are present as indicated by difficulty falling or staying asleep, irritability and outbursts of anger, difficulty concentrating, hyper-vigilance and an exaggerated startle response.

Mr Bentley is currently attending consultant psychiatrist Dr Malcolm Roberts who has prescribed mirtazapine 15mg nocte and citalopram 10mg mane for his condition.  This has improved his sleep however he averages six hours sleep per night.  He describes a short fuse and a tendency to angry outbursts.  He is particularly prone to road rage when he hears a loud noise.

Category E:   The duration of the disturbance has been since the war.

Category F:The disturbance causes clinically significant distress and impairment in social, occupational and interpersonal areas of functioning.

In addition to difficulties within the marriage he has also had employment difficulties and now works as a franchisee self employed due to the problems with interpersonal relating.  He is avoidant of meeting customers affecting his business.  He describes social withdrawal and he avoids shopping centres and crowds.

Mr Bentley was born in Collie with normal birth and development.  His mother passed away when he was thirteen years old.  He describes a close relationship with  father (sic).  Despite these difficulties he mixed well at school and participated in sports.  There is no family history or past history of psychiatric disorder.  On his return from the war he commenced heavy drinking and describes a tumultuous time arguing with his wife leading to their divorce.  These problems continued into the second marriage.

Associated medical conditions include injury to his left hand playing football in the army.  I note that he is right handed.  He also describes chronic lumbar back pain.  Mr Bentley stated that his sleep disturbance is made worse by back pain causing exacerbation of his re-experiencing.  He describes problems with sensory neural hearing loss and tinnitus.

On mental state examination Mr Bentley was casually dressed and appeared quite agitated throughout the interview.  He sat forward on the edge of his seat.  He cooperated at interview but at times he became circumstantial in his answers and obviously flustered.  I was able to support him.  His mood was mildly depressed.  He wore sombre colours and his gaze was downcast.  He stated that he has frequent suicidal ideation.  He stated that at times he has thought about driving into a tree.  He became tearful describing these difficulties.  There was no evidence of any psychotic phenomena.  Cognitively he was grossly unimpaired.  His insight was that he had had a difficult time trying to get his claim accepted by the Department and this had tended to play on his mind.  Haematological investigation was unremarkable.

Mr Bentley was an occasional drinker prior to his traumatisation in Vung Tau.  He was also a non-smoker.  Following his traumatisation however he became a heavy drinker and he commenced smoking cigarettes when on a binge.  He stated that he reached the proportions of over a hundred units per week however he has now restricted his alcohol.  He continues to consume on binges up to twelve stubbies and spirits in addition most weekends.  He stated that the pharmacotherapy from a consultant psychiatrist Dr Roberts had improved his condition and he had been able to cut down.  From this I concluded that his alcohol abuse was symptomatic of underlying Post Traumatic Stress Disorder.

OPINION

Mr Bentley presents with chronic Post Traumatic Stress Disorder, alcohol dependence and major depressive disorder of chronic moderate severity.  The aetiology of his condition is directly related to traumatisation in Vung Tau in particular the onset of an acute stress response that has generalised to a more chronic Post Traumatic Stress Disorder.  Significantly at interview he fulfilled the criteria for Category 1A of PTSD 309.81 based on there being intense fear, helplessness and horror.  He stated that he feared for his life and the lives of the others in the vehicle and that he was aware of incidents where people had been killed in the no go zone.  He felt that he wouldn’t get any help as he wasn’t supposed to be in that place and indeed he did not report the incident because of this problem.  It is also likely that at interview due to the triggering of re-experiencing he may have appeared circumstantial and inconsistent.  On being supported however he came across as being a credible historian.

…”  (Exhibit A1)

Dr Malcolm Roberts

14.     Dr Roberts’ report of 5 July 2011, addressed to the Tribunal, states as follows:

“ Mr Ronald Newton Bentley, …, has been a patient under my clinical care since 24 February 2009.  I have seen Mr Bentley on a regular basis with monthly outpatient psychiatric consultations in my consulting rooms …

I am a Consultant Psychiatrist registered in Australia with a special interest in the diagnosis and management of Post Traumatic Stress Disorder.  I have treated a large number of Vietnam Veterans with PTSD in my clinical practice over the past 25 years.

I made a confident diagnosis of war caused Post Traumatic Stress Disorder in Mr Bentley and I have been treating him for his PTSD since the diagnosis was made in February 2009.

Mr Bentley came under small arms fire when serving in Vietnam in 1970 and this has precipitated his PTSD.  His PTSD has been complicated by a secondary Major Depressive Disorder and by secondary Alcohol Dependence.  His Major Depressive Disorder and Alcohol Dependence has also been treated medically with the appropriate psychotropic drugs.

Mr Bentley has responded as well as can be expected to his treatment and he is currently taking Campral and Revia tablets to reduce the craving for alcohol as well as Mirtazepine antidepressant tablets and Epilim anti-epileptic tablets which are used within psychiatry as a mood stabiliser.  In addition to these psychotropic drugs, Mr Bentley is taking nutritional supplements which are good for his brain such as Omega 3 Fish Oil capsules, Vitamin B Complex liquid and Magnesium tablets.

Mr Bentley’s PTSD is chronic and severe and he is totally and permanently unfit for any form of paid employment as a direct result of his war caused PTSD.  Although he has responded to treatment, any treatment over time will not cure him of PTSD and enable him to return to work.  I have therefore recommended to Mr Bentley that he makes a claim for a Total and Permanent Incapacity Pension from the Department of Veterans’ Affairs.

I most recently reviewed Mr Bentley today (5 July 2011) and I have confirmed that he continues to experience all the cardinal symptoms of PTSD and he remains totally unfit for any form of employment on medical grounds as a result of his war caused PTSD.

Mr Bentley will need to remain on long term and probably lifelong psychiatric treatment for his chronic PTSD.”  (Exhibit A2)

Additional Material Relied Upon by the Applicant

15.     A letter, dated 26 March 2011, from Harry Bentley states as follows:

“ I was asked by Ron’s advocate if I noticed any difference is (sic) his personality and behaviour that differed from before he went to Vietnam and on his return.

Firstly before Ron went in the Army we were very close we both played football, went camping and Ron was the life of the party especially at football shows ie at gentlemen’s night.

But on his return from Vietnam he was never the same he became agro (sic) quickly, had mood swings at the drop of a hat and slowly over the years even though we stayed close, things between us has never been the same.

In the early days after his return from Vietnam I asked him if I could help him but he would say ‘there is nothing wrong I’m just having a bad day’ and virtually to mind my own business.  So after a while I just let it ride.  In hindsight I feel as his older brother a little guilty because if I had have (sic) done more at that time perhaps Ron would not have had the traumas he has suffered such as broken marriage, personality problem.  If I had only realized that he had problems and not put it down to him having a bad day and sort (sic) help somewhere for him things may have been different.

Hoping my statement may shed a bit of light on the way I see Ron today.”  (Exhibit A3)

16.     A letter (undated) from Sydney Cox states as follows:

“ My name is Sydney Victor Cox and I have been asked to highlight an incident that happened to me in December 1967.

Myself, a Lance Corporal, and Private Philip Welsh, now deceased, illegally used an American Jeep from the Task Force at Nui Dat at approximately 5.30 pm on a Sunday.  We drove the Jeep around the Task Force visiting other Units.

We then decided to head for Vung Tau.  When we reached the outskirts of Vung Tau it was just getting dark and the ARVN (South Vietnamese Army) had put up a barbed wire obstacle on the road to stop traffic entering or leaving Vung Tau.  Private Welsh was driving and accelerated and barged the Jeep through the road block thus causing the ARVN to fire a volley of rifle rounds at the vehicle.  A short time later we were arrested by the US Military Police and handed over to the Australian Military Police to be charged with numerous offences.

The thing that still sticks in my mind today is the Australian Military Police Sergeant saying that we were very lucky in that with breaching curfew the ARVN usually shoot to kill and it was fortunate that we were still alive.

The above paragraph still haunts me today that breaking curfew could have cost us our lives for being stupid.

This story is a true and accurate record and can be confirmed in my military documents.  For my part my rank was reduced and Private Welch was given 28 days detention in Vung Tau Military Prison”  (T16, p 130)

17.     A letter, dated 28 October 2010, from Kevin Bruce states as follows:

“ I, Kevin Bruce, would like to give an account of my acquaintance with Sergeant Mick Reardon who I served with for approximately 12 months in Vietnam.

I know Mick is deceased having been informed of his death through the DET55 EWPS Engineers Association and do not want to speak badly of the deceased but, in all honesty I found him arrogant, abusive and stand overish.

I was a Sapper in the Vehicle Issues Transport activities and Mick worked in an office type situation in the Orderly Room.  With Mick being a Sergeant and me a Sapper I tried to dodge him as much as possible because of his aggressive behaviour and attitude.  I recall being told he had language classes going in Vung Tau and he used to use the vehicles from the transport pool quite regularly that is how I came in contact with him because I had to make sure the vehicles were ready when Mick wanted them.

Trusting my account of Sgt Mick Reardon will help Mr Bentley’s case.”  (T16, p 131)

The Relevant Legislation

The VE Act

18. Section 9(1) relevantly provides:

“ … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…”

Section 7(1) relevantly provides:

“ … for the purposes of this Act:

(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…

…”

The words “disease” and “injury” are defined in s 5D(1) as follows:

“ disease means:

(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b)the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c)the aggravation of such an ailment, disorder, defect or morbid condition; or

…”

“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a) a disease; or

(b) the aggravation of a physical or mental injury.”

Section 120, which deals with standard of proof, relevantly provides

“(1)     Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note:    This subsection is affected by section 120A.

…

(3)In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war‑caused injury …;

(b)that the disease was a war‑caused disease …; or

(c)that the death was war‑caused …;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note:    This subsection is affected by section 120A.

…

(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

…”

Section 120A relevantly provides:

“ …

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note:See subsection (4) about the application of this subsection.

(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)the kind of injury suffered by the person; or

(b)the kind of disease contracted by the person; or

(c)the kind of death met by the person;

as the case may be.”

Section 196B relevantly provides:

“(1)     This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …

Determination of Statement of Principles

(2)If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)      operational service rendered by veterans; or

(b)peacekeeping service rendered by members of Peacekeeping Forces; or

(c)      hazardous service rendered by members of the Forces; or

(ca)     warlike or non‑warlike service rendered by members;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)      the factors that must as a minimum exist; and

(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

…

Note 3: For factor related to service see subsection (14).

…

(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

(b)       it arose out of, or was attributable to, that service; or

…

(d)it was contributed to in a material degree by, or was aggravated by, that service; or

…

(f)in the case of a factor causing, or contributing to, a disease — it would not have occurred:

(i)     but for the rendering of that service by the person; or

…”

The Statements of Principles

19. The relevant Statements of Principles, as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, are referred to below (see paragraphs 50–51, 67–68).

Analysis and Findings

The relevant mental diseases/injuries

20. The first matter which the Tribunal is required to determine is whether the applicant has suffered any mental diseases or mental injuries. That matter falls to be determined, in accordance with s 120(4) of the VE Act, to the Tribunal’s reasonable satisfaction – that is, on the balance of probabilities: Repatriation Commission v Cooke (1998) 90 FCR 307 at 312; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-635.

21.     There are three psychiatric disorders about which there is evidence before the Tribunal, namely, PTSD, Alcohol Dependence, and Major Depressive Disorder.

Has the applicant suffered PTSD?

22.     Dr Fellows-Smith and Dr Roberts each opined that the applicant suffers PTSD.  Dr Proud, on the other hand, expressed his opinion more cautiously.  He noted that the applicant “complains of symptoms consistent with a DSM IV TR Diagnosis of Post Traumatic Stress Disorder, moderate severity, chronic”, but he did not go so far as to make a diagnosis of PTSD because he “[could not] be sure”, in the absence of confirmation of the history provided to him by the applicant, that the applicant was actually “exposed to traumatic events where he perceived his life to be at risk”, for the purposes of Criterion A of the diagnostic criteria set out in DSM-IV-TR for a diagnosis of PTSD.

23.     Criterion A of the diagnostic criteria for PTSD set out in DSM-IV-TR (p 467) is as follows:

“A.    The person has been exposed to a traumatic event in which both of the following were present:

(1)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

(2)the person’s response involved intense fear, helplessness, or horror.  Note: In children, this may be expressed instead by disorganized or agitated behaviour”.  (Exhibit R2)

24.     There are varying descriptions of the relevant alleged traumatic event in the psychiatric reports which are in evidence before the Tribunal.

25.     Dr Proud’s description (report of 27 May 2007) is as follows:

“ …  The only incident for which he is claiming post traumatic stress disorder occurred on a day when he was with other people in a truck (he was the driver of the truck) in a place he claimed that he was not meant to be and in fact this incident was never reported.  They were apparently attacked.  No one was killed but he said that he feared for his life with the rifle fire and the explosions all around him.”

26.     Dr Fellows-Smith’s description (report of 21 March 2011) is as follows:

“ Mr Bentley stated that at approximately 9 pm one evening he picked up Sergeant Mick Reardon and Private Paul Lethbridge from a bar in downtown Vung Tau accompanied by two bar girls.  He was ordered by the sergeant to drive the party to the outskirts of Vung Tau despite this being a no go zone.  Mr Bentley was aware of the danger of this issue as it was expressly prohibited for them to go into this area and he was aware of incidents that had caused death or injury to other personnel.

Mr Bentley stated that having driven approximately 10 km out of the centre of town he was startled by a loud explosion.  In hindsight he attributes this to possibly driving over a booby trap such as a trip wire that could alert the ARVN to attack.  Mr Bentley stated that his response to hearing the loud explosion was intense fear.  In his own words ‘I shit myself and slammed on the brakes.’  He stated that the sergeant said ‘Let’s get out of here’ as the bar girls were pushed out of the vehicle.  As soon as the vehicle stopped Mr Bentley stated that he could hear the crack of bullets going overhead numbering approximately six rounds.  He stated that he did a U-turn and drove off at speed.  As a measure of the severity of his reaction he stated that although he did not realise at the time he had indeed wet himself with fear.  Significantly he describes an alteration to the familiarty of his experience describing the passage of time as being in slow motion.  He describes the events occurring with an unreal quality ‘As if I was dreaming about it.  This wasn’t happening to me.’  From this I concluded that he had an acute stress reaction.”

27.     Dr Roberts’ description (report of 5 July 2011) is as follows:

“ Mr Bentley came under small arms fire when serving in Vietnam in 1970 and this has precipitated his PTSD.”

[The Tribunal notes that Dr Roberts (according to his report) has been treating the applicant since 24 February 2009, but his clinical notes are not in evidence.]

28.     The applicant’s, and his advocate’s, descriptions of the relevant alleged traumatic event have also varied since he lodged his claim for disability pension on 8 March 2007.

29.     In the claim form, in answer to the question as to how be believed his service caused PTSD, the applicant merely referred generally to:

“ Exposure to traumas of war”.  (T4, p 23)

30.     In response to a request by the DVA for additional information, the applicant, by letter dated 23 June 2007, relevantly stated:

“ This distressing incident occurred some time before Christmas of 1970.  There were three other soldiers with me, Paul Lethridge (sic) who was sitting next to me, Mick Readon (sic) and Greg Carstairs.”  (T6)

31.     Following a request by the DVA to provide further information in response to certain questions, the applicant, by letter dated 27 August 2007, relevantly responded as follows:

“ I am writing to answer the question that you have requested;

Q1.What specific activity occurred?  He claims that there was rifle fire but what caused the explosions?

A1.There was only one large bang.  I did use the word Rifle Fire; in fact, it was the crack of bullets passing overhead.  These could have come from any type of rifle.  As I am not overly familiar with the different sounds that rifles make

Q2.In relation to the Nui Dat or Vung Tan (sic) Bases, where did this event occur?

A2.Just on the outskirts of Vung Tan (sic) Base

Q3.What type of truck was Mr Bentley driving?

A3.I was driving a Landrover.  I was the duty driver at the time

…

Q6.Why was Mr Bentley in a place ‘… he was not meant to be …’

A6.I was instructed to drop off two personnel passengers just out of Vung Tau by a Sergent (sic) that I had picked up at Vung Tau Base, who was the most senior person in the vehicle at the time.  I was only following orders”.  (T10)

32.     The applicant’s advocate, in his submission to the VRB dated 28 October 2010, relevantly referred to the alleged incident as follows:

“ Mr Bentley states that he was a duty driver and was requested to pick up two personnel in a bar in Vung Tau.  Whilst only been in the country for 2 weeks he was very naïve and when fulfilling this duty he found a Sergeant and another rating with two girls requiring a lift home before they returned to their place of duty.  Mr Bentley not knowing any rules or protocol in this type of situation and as a Private he had rank pulled on him and he was required to run these two girls home before returning to camp.  Upon dropping the two girls off at the village on the outskirts of Vung Tau the vehicle was fired upon.  …”  (T16, p 128)

33.     The applicant’s evidence at the hearing before the VRB on 7 December 2010 regarding the alleged incident was as follows:

“ MR CAHILL: All right.  So, Mr Bentley, we want you to tell us what happened.  Now, I take it you’ve got a clear memory of the events?

Mr BENTLEY:  Yep.

MR CAHILL: All right.  So what happened?

MR BENTLEY:  Well, I can’t give you exact dates or anything, but it was while I was on tour in Vietnam in round about October 1970.  One of my jobs was as a duty driver and I would drive from our – our camp 55 Engineering Works and Parks Squadron, drive into town; then the place was a street of bars.  I’d take soldiers in their civvies and I’d go and pick them up at certain times – prearranged time.  On this particular night I went in to pick up Sergeant Reardon and Paul Lethbridge and when I got to the bar to pick them – at prearranged time, there was two girls.  Now, I knew it was against army orders not (sic) to carry any civilian and Sergeant Reardon ordered me to give these two girls a lift and I said, ‘Look, I’m not very happy about all this.’  And he said, ‘Look, I’m your senior sergeant, so I’m giving you an order,’ which I obeyed.  And I said, ‘I don’t know where we’re going,’ and he says, ‘I’ll instruct you.’  Now, I think we – look, I’m not sure where we were heading.  I thought it might have been Ba Ria, but I – I can remember seeing a road sign, but we hadn’t gone all that far and I knew we were on the outskirts of Vungers.  And the next thing I heard a – heard a bang and I’m not sure – I think it might have been I’ve hit a trip wire or something to alert whoever was in the area, and the next thing I heard this – the sound of rifle bullets round my ears, and then we just – Sergeant Reardon said, ‘Get rid of the girls’, or he sort of said, ‘Pull up.’  We got rid of the girls and we just swung around as quick as we could and headed out of there.  And after the incident, on the way back, he said, now – not to say a word to anybody about this, which I hadn’t said anything at all till about four and a half years ago and, you know, I’ve been carrying this guilt around for all these years.  Not long after the incident I had to front the OC and I thought it might have been about – about the incident and it wasn’t; it was my father had passed away in Australia.  Then, I think, couple of weeks later he came and seen me and said, ‘You’re on your way back home again.’  So – and I – I believe, you know, maybe if I stayed on I might have got over it, but I know I just – I absolutely feared for my life and it still – it’s just a memory I’ve got; I just cannot get rid of them.  I still have dreams to this day about it.  So that’s virtually it in a nutshell.

MR CAHILL:  Right, Now what time of day was this?

MR BENTLEY:  That was in the evening.  I couldn’t be exact, but I would say somewhere between maybe 8 o’clock and 9 at night.

MR CAHILL:  Right.  Now, you said that you went from the Vung Tau base ---

MR BENTLEY:  That’s correct.

MR CAHILL:  --- the bar area and you picked up Sergeant Reardon and Paul Letheridge (sic) ---

MR BENTLEY:  Yes.

MR CAHILL:  --- and two girls?

MR BENTLEY:  Yes.

MR CAHILL:  Anybody else?

MR BENTLEY:  No.

MR CAHILL:  All right.  Now, you left the bar area with those people.  Now, who was sitting where?

MR BENTLEY:  Sergeant Reardon was sitting next to me with a girl on his lap and Paul was in the back with the girl next to him.

MR CAHILL:  Right.  Now, you headed off and you’re not quite sure where you headed off to, and then the incident occurred?

MR BENTLEY:  That’s correct.”  (Exhibit R1, pp 4–5)

34.     In his oral evidence-in-chief at the hearing before the Tribunal (see paragraphs 7–9 above) the applicant said, in relation to the alleged incident, that:

·     when he picked up Sergeant Reardon, Lethbridge and the two girls in Vung Tau, Sergeant Reardon ordered him to take the girls to a “designated spot”;

·     he had driven about 5–10 kilometres to the outskirts of Vung Tau when he heard a “loud bang”;

·     he thought that it may have been a “trip wire”;

·     he then heard the sound of gunfire and bullets going over his head;

·     he heard “two or three” shots and then “a few more”;

·     the girls were pushed out of the vehicle and he headed back to the base;

·     during the incident he “truly thought he was going to be killed”.

35.     In cross-examination the applicant relevantly said that:

·     he usually had another person “riding shotgun” with him when he drove the vehicle but he could not remember whether anyone was with him in the vehicle on this occasion;

·     after he picked up Sergeant Reardon, Lethbridge and the two girls, Sergeant Reardon sat next to him in the front seat with a girl on his lap and Lethbridge and the other girl were in the back seat;

·     he heard a “loud bang”;

·     he heard gunshots – a “volley of three from an automatic”, followed by “three single shots”;

·     the vehicle (which had a “soft top” in the up position) was not hit;

·     he stopped the vehicle “as a natural reaction”, turned the vehicle around and drove back to base;

·     the girls had been pushed out of the vehicle;

·     he was terrified and “wet” himself.

36.     In response to questions from the Tribunal regarding the alleged incident, the applicant said that:

·     he heard a “loud bang” and at the time he thought that it might have been “a mortar”;

·     he heard the “crack crack of bullets” – a sound that he was “familiar with” – “automatic fire”, “very quick”;

·     he thought that the shots were coming from the direction of the “right front” of the vehicle because the vehicle did not have doors and he “felt exposed” and he presumed that, if it was an ambush, it would come from the right side of the road;

·     at the time he “had intense fear” and he thought his “number was up”;

·     his immediate reaction was to “go into survival mode” and “just get out of there”.

37.     As regards the various abovementioned descriptions of, and references to, the relevant alleged incident, the Tribunal makes the following observations:

·     there are inconsistencies in respect of the passengers who were in the vehicle at the time, namely:

-in the applicant’s letter of 23 June 2007 to the DVA, he stated:

“  There were three other soldiers with me, Paul Lethridge (sic) who was sitting next to me, Mick Readon (sic) and Greg Carstairs.”;

-in his subsequent letter of 27 August 2007 to the DVA, he stated:

“  I was instructed to drop off two personnel passengers just out of Vung Tau by a Sergent (sic) that I had picked up at Vung Tau Base, …”;

-in his evidence to the VRB and to the Tribunal, he said that the other occupants of the vehicle were persons whom he had picked up from a bar in Vung Tau, namely, Sergeant Reardon, who was sitting next to him in the front seat with a girl on his lap, and Paul Lethbridge who was sitting in the back seat with a girl, and he acknowledged that Greg Carstairs was not in Vietnam at that time;

·the applicant’s evidence that it was standard procedure that another soldier would “ride shotgun” with him when he drove the vehicle outside the base, but that he could not remember whether anyone was “riding shotgun” with him on the relevant journey, is, in the Tribunal’s opinion, unsatisfactory;

·there is an inconsistency in respect of the timing and the circumstances of the two girls’ exiting from the vehicle, namely:

-    in the written submission made by the applicant’s advocate (presumably in accordance with the applicant’s instructions) to the VRB, dated 28 October 2010, it is stated:

“Upon dropping the two girls off at the village on the outskirts of Vung Tau the vehicle was fired upon.”;

-in the applicant’s evidence to the VRB and to the Tribunal, he said that, after he heard a loud bang and the sound of gunshots, the girls were then pushed out of the vehicle, and he drove back to the base;

·there is an inconsistency in respect of the noise and nature of the gunfire which the applicant claimed that he heard, namely:

-    in his letter of 27 August 2007 to the DVA, the applicant, in response to the question:

“  What specific activity occurred?  He claims that there was rifle fire but what caused the explosions?”

stated:

“There was only one large bang.  I did use the word Rifle Fire; in fact, it was the crack of bullets passing overhead.  These could have come from any type of rifle.  As I am not overly familiar with the different sounds that rifles make”;

-    in his evidence to the Tribunal, the applicant referred to hearing a “loud bang” which he variously attributed to a “trip wire” or a “mortar”, and, in addition, the “familiar” sound of gunshots, first a “volley of three from an automatic” followed by “three single shots”;

·there is an apparent inconsistency between the applicant’s evidence to the VRB that he “heard … the sound of rifle bullets round [his] ears” and his evidence to the Tribunal that he heard the sound of bullets “cracking over [his] head”, on the one hand, and his evidence to the VRB and to the Tribunal that the vehicle which he was driving (with the soft top in the up position) was not hit by any bullets or otherwise damaged in the incident;

·the applicant’s evidence regarding his thoughts at the time that the bullets were coming from the direction of the “right front” of the vehicle does not, in the Tribunal’s opinion, sit well with his evidence that at the time he had “intense fear” that he was going to die and that his immediate reaction was to “go into survival mode” and “just get out of there”.

38.     The Tribunal also has reservations about the applicant’s evidence that, when he heard the “loud bang” and the sound of gunfire, he had “intense fear” and “truly thought [he] was going to be killed”.  In the Tribunal’s opinion, the applicant’s evidence regarding the alleged incident, considered as a whole, is more consistent with his having been startled and alarmed by those sounds, and, as an immediate reaction, having stopped the vehicle, turned it around and driven away as quickly as possible.  It seems to the Tribunal that, consistently with that scenario, it is unlikely that the applicant would have been in a position emotionally to experience “intense fear” or to have thoughts about his impending death.

39.     The Tribunal also has reservations about the applicant’s evidence regarding the two bar girls, and in particular, his evidence that they were pushed out of the vehicle before he drove away from the scene of the incident.  In the Tribunal’s opinion, it seems implausible that, if the applicant was truly afraid that he was about to be killed at that scene, he would have remained there, even for the short time it would take for the girls (one of whom was in the back seat, whereas the only means of exit was from the front seat) to be pushed out of the vehicle.  It seems much more likely that, if he genuinely feared imminent death, he would have driven away from that scene immediately and that the girls would have been removed from the vehicle when the vehicle was out of immediate danger.  Furthermore, the applicant’s evidence that he was truly afraid that he – and presumably the other occupants of the vehicle – were about to be killed does not sit well with his evidence that the girls were pushed out of the vehicle and left at the scene.  The applicant’s explanation that the girls were pushed out and left behind because he “had a feeling” that they may have been leading them into an ambush is, in the Tribunal’s opinion, unconvincing.

40.     Having regard to the considerations referred to in paragraphs 37–39 above, the Tribunal is not reasonably satisfied that an incident, as described by the applicant in his evidence, occurred.  In particular, the Tribunal is not reasonably satisfied that an incident occurred in which the applicant:

·     believed that the vehicle he was driving was under military fire and that he and the other occupants were threatened with death or serious injury; and

·     experienced intense fear, helplessness, or horror.

41.     As regards the psychiatric reports which are in evidence, the Tribunal attaches little weight to the diagnosis of PTSD made by Dr Roberts and by Dr Fellows-Smith because:

·     Dr Roberts’ report merely refers to the applicant’s “[coming] under small arms fire when serving in Vietnam in 1970” and does not address Criterion A of the diagnostic criteria for PTSD set out in DSM-IV-TR;

·     although Dr Fellows Smith’s report does address Criterion A of the abovementioned diagnostic criteria, his opinion that Criterion A has been met is based on his acceptance of a history of a traumatic event provided to him by the applicant which the Tribunal does not accept.

In the Tribunal’s opinion, Dr Proud’s reluctance to make a diagnosis of PTSD on the basis of a history provided by the applicant, the truth and correctness of which had not been confirmed or corroborated, was appropriate.

42.     Accordingly, the Tribunal, having regard to the whole of the evidence before it, is not reasonably satisfied that the applicant was, in the course of his operational service in Vietnam in October/November 1970, exposed to a traumatic event which meets Criterion A of the diagnostic criteria for PTSD set out in DSM-IV-TR.

43.     It follows that the Tribunal is not reasonably satisfied that the applicant has suffered PTSD.

Has the applicant suffered Alcohol Dependence?

44. On the basis of the abovementioned reports of Dr Proud, Dr Fellows-Smith and Dr Roberts, the Tribunal is reasonably satisfied, and finds, that the applicant has suffered Alcohol Dependence. The Tribunal also finds that the applicant’s Alcohol Dependence is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.

Has the applicant suffered Major Depressive Disorder?

45. On the basis of the abovementioned reports of Dr Proud, Dr Fellows-Smith and Dr Roberts, the Tribunal is reasonably satisfied, and finds, that the applicant has suffered Major Depressive Disorder. The Tribunal also finds that the applicant’s Major Depressive Disorder is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.

Has the applicant suffered any war-caused diseases?

PTSD

46.     The Tribunal has stated (in paragraph 43 above) that it is not reasonably satisfied that the applicant has suffered PTSD.  Accordingly, the question whether PTSD is a war-caused disease does not arise in this case: Mines v Repatriation Commission (2004) 40 AAR 238 at 248, 250.

Alcohol Dependence

47. The question whether the applicant’s Alcohol Dependence is a war-caused disease is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that the material before it “does not raise a reasonable hypothesis connecting the ... disease … with the circumstances of ” the applicant’s operational service. If a relevant Statement of Principles (“SoP”), determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.

48. For the purpose of determining whether the applicant’s Alcohol Dependence is a war-caused disease, within the meaning of s 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALD 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.

Does the material before the Tribunal raise a hypothesis connecting the applicant’s Alcohol Dependence with the circumstances of his operational service?

49.     The Tribunal, having considered the whole of the material before it, is of the opinion that the material before it does raise a hypothesis connecting the applicant’s Alcohol Dependence with the circumstances of his operational service.  That hypothesis, in general terms, is that the applicant’s Alcohol Dependence has resulted from his experiencing the incident referred to in his evidence (see paragraphs 7–9 above) in the course of his operational service in Vietnam in October/November 1970 (“the AD hypothesis”).

The relevant SoPs

50. The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a relevant SoP. The SoP which is currently in force is Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009 (“the current SoP”). That SoP relevantly states:

“…

Basis for determining the factors

4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, …

Factors that must be related to service

5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service is:

(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

…

Other definitions

9.         For the purposes of this Statement of Principles:

‘a clinically significant psychiatric condition’ means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

‘a category 1A stressor’ means one or more of the following severe traumatic events:

(a)       experiencing a life-threatening event;

(b)being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;

…

‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.  Washington, DC, American Psychiatric Association, 2000;

‘relevant service’ means:

(a)       operational service under the VEA;

…”

51.     The SoP which was in force when the respondent made its decision in this matter on 11 February 2008 was Statement of Principles concerning alcohol dependence or alcohol abuse (Instrument No 76 of 1998) (“the 1998 SoP”).  That SoP relevantly stated:

“ …

Basis for determining the factors

3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, …

Factors that must be related to service

4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

…

Other definitions

8.      For the purposes of this Statement of Principles:

…

‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;

‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:

(i)        threat of serious injury or death; or

(ii)       engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;

…

‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;

‘relevant service’ means:

(a)       operational service; or

…”

52.     The proper approach for the Tribunal to take in this matter is, first, to apply the current SoP, and, if the application of that SoP does not result in a determination that the applicant’s Alcohol Dependence is a war-caused disease, then to apply the SoP which was in force when the respondent made its decision in this matter on 11 February 2008, namely, the 1998 SoP: Repatriation Commission v Gorton (2001) 110 FCR 321.

Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s Alcohol Dependence with the circumstances of his operational service?

53. Pursuant to s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s Alcohol Dependence with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP.

The current SoP

54.     The only factors which might arguably exist in this case, having regard to the material before the Tribunal, are the factor set out in cl 6(a), and the factor set out in cl 6(b), of the current SoP.

55.     As regards the factor set out in cl 6(a), in the Tribunal’s opinion the material before it points to “the time of the clinical onset” of the applicant’s Alcohol Dependence as being in the “late 1970s” (see Dr Proud’s report of 28 May 2007) but, in the Tribunal’s opinion, that material does not point to the applicant’s “having a clinically significant psychiatric condition”, which was related to his operational service in Vietnam in October/November 1970, at that time.  Accordingly, in the Tribunal’s opinion, the AD hypothesis does not accord with cl 6(a), together with cl 5, of the current SoP.

56.     As regards the factor set out in cl 6(b), in the Tribunal’s opinion the material before it does not point to the applicant’s having experienced “a category 1A stressor” (as defined in cl 9) in the course of his operational service in Vietnam in October/November 1970.  Furthermore, even if the applicant did experience “a category 1A stressor” at that time, the material before the Tribunal does not, in its opinion, point to his having experienced “a category 1A stressor” within the period of “five years before the clinical onset” of his Alcohol Dependence in the “late 1970s”.  Accordingly, in the Tribunal’s opinion, the AD hypothesis does not accord with cl 6(b), together with cl 5, of the current SoP.

57.     In the Tribunal’s opinion the material before it does not point to the existence of any other factor set out in cl 6 of the current SoP.

58. The Tribunal concludes, therefore, that the AD hypothesis is not upheld by the current SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.

Applying the current SoP, the applicant’s Alcohol Dependence is not a war-caused disease

59. The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s Alcohol Dependence with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the current SoP, determines that the applicant’s Alcohol Dependence is not a war-caused disease, within the meaning of s 9 of the VE Act.

The 1998 SoP

60.     The only factors which might arguably exist in this case, having regard to the material before the Tribunal, are the factor set out in cl 5(a), and the factor set out in cl 5(b), of the 1998 SoP.

61.     As regards the factor set out in cl 5(a), in the Tribunal’s opinion the material before it does not point to the applicant’s “suffering from a psychiatric disorder”, which was related to his operational service in Vietnam in October/November 1970, at the time of the “clinical onset” of his Alcohol Dependence in the “late 1970s”.  Accordingly, in the Tribunal’s opinion the AD hypothesis does not accord with cl 5(a), together with cl 4, of the 1998 SoP.

62.     As regards the factor set out in cl 5(b), in the Tribunal’s opinion the material before it does not point to the applicant’s “experiencing a severe stressor” (as defined in cl 8) in the course of his operational service in Vietnam in October/November 1970.  Furthermore, even if the applicant did experience a “severe stressor” at that time, the material before the Tribunal does not, in its opinion, point to his having experienced a “severe stressor” within the period of “two years immediately before the clinical onset” of his Alcohol Dependence in the “late 1970s”.  Accordingly, in the Tribunal’s opinion the AD hypothesis does not accord with cl 5(b), together with cl 4, of the 1998 SoP.

63.     In the Tribunal’s opinion the material before it does not point to the existence of any other factor set out in cl 5 of the 1998 SoP.

64. The Tribunal concludes, therefore, that the AD hypothesis is not upheld by the 1998 SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.

Applying the 1998 SoP, the applicant’s Alcohol Dependence is not a war-caused disease

65. The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s Alcohol Dependence with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the 1998 SoP, determines that the applicant’s Alcohol Dependence is not a war-caused disease, within the meaning of s 9 of the VE Act.

Major Depressive Disorder

Does the material before the Tribunal raise a hypothesis connecting the applicant’s Major Depressive Disorder with the circumstances of his operational service?

66.     In the Tribunal’s opinion the material before it raises a hypothesis that the applicant’s Major Depressive Disorder has resulted from his experiencing the incident referred to in his evidence (see paragraphs 7–9 above) in the course of his operational service in Vietnam in October/November 1970 (“the MDD hypothesis”).

The relevant SoPs

67. The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a relevant SoP. The SoP which is currently in force is Statement of Principles concerning depressive disorder No 27 of 2008, as amended by Statement of Principles concerning depressive disorder No 40 of 2010 (“the current SoP”). That SoP relevantly states:

“ …

Basis for determining the factors

4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that depressive disorder and death from depressive disorder can be related to relevant service rendered by veterans, …

Factors that must be related to service

5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.The factor 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 is:

(a)for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,

…

(ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or

…

(vii)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or

…

Other definitions

9.For the purposes of this Statement of Principles:

‘a category 1A stressor’ means one or more of the following severe traumatic events:

(a)        experiencing a life-threatening event;

(b)being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;

…

‘a clinically significant psychiatric condition’ means any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.  Washington, DC, American Psychiatric Association, 2000.

‘relevant service’ means:

(a)       operational service under the VEA;

…”

68.     The SoP which was in force when the respondent made its decision in this matter on 11 February 2008 was Statement of Principles concerning depressive disorder No 17 of 2007 (“the 2007 SoP”).  The relevant provisions of that SoP are in the same terms as the corresponding relevant provisions of the current SoP set out in paragraph 67 above.

The current SoP

69.     As regards the factors set out in subparas (ii) and (vii) of cl 6(a), in the Tribunal’s opinion the material before it points to the “clinical onset” of the applicant’s Major Depressive Disorder as occurring in the period 2003–2005 (see Dr Proud’s report of 28 May 2007).

70.     As regards the factor set out in cl 6(a)(ii), in the Tribunal’s opinion the material before it does not point to the applicant’s having experienced “a category 1A stressor” (as defined in cl 9) within the period of five years before the clinical onset of his Major Depressive Disorder in the period 2003–2005.  Accordingly, in the Tribunal’s opinion the MDD hypothesis does not accord with cl 6(a)(ii) of the current SoP.

71.     As regards the factor set out in cl 6(a)(vii), in the Tribunal’s opinion the material before it does not point to the applicant’s “having a clinically significant psychiatric condition”, which was related to his operational service in Vietnam in October/November 1970, within the period of two years before the clinical onset of his Major Depressive Disorder.  Accordingly, in the Tribunal’s opinion the MDD hypothesis does not accord with cl 6(a)(vii), together with cl 5, of the current SoP.

72.     In the Tribunal’s opinion the material before it does not point to the existence of any other factor set out in cl 6 of the current SoP.

73. The Tribunal concludes, therefore, that the MDD hypothesis is not upheld by the current SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.

Applying the current SoP, the applicant’s Major Depressive Disorder is not a war-caused disease

74. The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s Major Depressive Disorder with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the current SoP, determines that the applicant’s Major Depressive Disorder is not a war-caused disease, within the meaning of s 9 of the VE Act.

The 2007 SoP

75.     For reasons similar to those expressed in paragraphs 69–71 above, in the Tribunal’s opinion the MDD hypothesis does not accord with either clause 6(b) (corresponding with cl 6(a)(ii) of the current SoP) or cl 6(g) (corresponding with cl 6(a)(vii) of the current SoP), together with cl 5, of the 2007 SoP.

76.     In the Tribunal’s opinion the material before it does not point to the existence of any other factor set out in cl 6 of the 2007 SoP.

77. The Tribunal concludes, therefore, that the MDD hypothesis is not upheld by the 2007 SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.

Applying the 2007 SoP, the applicant’s Major Depressive Disorder is not a war-caused disease

78. The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s Major Depressive Disorder with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the 2007 SoP, determines that the applicant’s Major Depressive Disorder is not a war-caused disease, within the meaning of s 9 of the VE Act.

Conclusion

79.     The Tribunal has determined as follows:

·     the applicant has not suffered PTSD;

· the applicant has suffered Alcohol Dependence and Major Depressive Disorder but neither of those diseases is a war-caused disease, within the meaning of s 9 of the VE Act.

Decision

80.     For the above reasons, the Tribunal

·varies the decision under review by amending the diagnosis of the applicant’s depressive condition from depressive disorder to Major Depressive Disorder;

·     in all other respects, affirms the decision under review.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Brigadier A G Warner, Member

Signed:   E Jordan           .....................................................................................

Associate

Date of Hearing  19 August 2011
Date of Decision  25 October 2011
Representative of the Applicant          Mr A West

Representative of the Respondent     Mr C Ponnuthurai

Compensation and Review Branch Department of Veterans' Affairs