Bernard Hansell and Repatriation Commission
[2015] AATA 377
•29 May 2015
[2015] AATA 377
Division VETERANS' APPEALS DIVISION File Number
2014/1557
Re
Bernard Hansell
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr Roderick McRae, Member
Date 29 May 2015 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
MemberVETERANS’ AFFAIRS - veteran’s entitlements - amended Statement of Principles - posttraumatic stress disorder (PTSD) - new Statement of Principles - decision under review affirmed.
Legislation
Veterans’ Entitlement Act 1986 ss 20(1), 120, 120A, 157, 177.
Administrative Appeals Tribunal Act1975 s 37.
Cases
Harris v Repatriation Commission (2000) 62 ALD 174
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Gosewinkel (1999) 59 ALD 690
Repatriation Commission v Hancock (2003) FCA 711
Repatriation Commission v Milenz (2006) 93 ALD 107
Vietnam Veterans’ Association of Australia NSW Branch Inc v Cohen (1996) 34 ALD 205 Wallis and Repatriation Commission, Re (2000) 62 ALD 502
Woodward v Repatriation Commission 75 ALD 420
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed, 2000) Text Revision
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th Ed, 2013)
Jeffrey Grey, Up top: the Royal Australian Navy in Southeast Asian Conflicts, 1955–1972, The Official History of Australia's Involvement in Southeast Asian Conflicts 1948–1975, vol. 7 (1998), pp 117 - 124
REASONS FOR DECISION
Roderick McRae, Member
29 May 2015
Mr Bernard Hansell, the Applicant, is a 69 year old Vietnam veteran. He enlisted in the Royal Australian Navy (RAN) on 14 January 1966 at 20 years of age. He had two somewhat paired tours of operational service in and around South Vietnamese waters, including at and about Vung Tau and Vung Tau Bay, for a total of four episodes of operational service. The first paired tour was from 22 April 1966 to 16 May 1966 and from 25 May 1966 to 11 June 1966 on board HMAS Sydney, and the second was on board MV Jeparit from 14 March 1969 to 19 April 1969 and from 24 April 1969 to 29 May 1969. The merchant vessel, MV Jeparit, was commissioned as HMAS Jeparit for a period of time due to local Sydney political/industrial issues associated with a Sydney dockyard strike related to the Vietnam War.
The Applicant’s total national service was from 14 January 1966 until 18 May 1972. He requested his early discharge due to his wife’s pregnancy-related depression, at which time he was assessed as medically fit some six and a half years into his nine year commitment. He has subsequently been diagnosed with, and had minor surgical procedures to manage, Dercum’s disease. His accepted disabilities are bilateral sensorineural hearing loss and bilateral tinnitus both effective from 29 December 2004 and tinea of the skin effective from 20 December 2008. This results in a level of incapacity assessment of 40 per cent from 20 December 2008, entitling him to a disability pension of 40 per cent of the general rate. Disabilities that have not been accepted are hypertension (rejected 17 June 2005), diabetes mellitus and benign prostatic hyperplasia (rejected 5 November 2010), and post traumatic stress disorder (PTSD) (rejected 12 March 2014, and subject of this appeal).
On 25 July 2012 the Applicant submitted a claim to the Repatriation Commission (the Commission) related to PTSD and for an increase in disability pension. A delegate of the Commission refused the claim on 12 November 2012. The Veterans’ Review Board (VRB) affirmed this decision on 12 March 2014.
On 27 March 2015 the Tribunal received an application lodged by the Applicant for review of the VRB decision, claiming the Veterans’ Review Board erred in fact and/or law in failing to find that post traumatic stress disorder was war caused within the meaning of the Veterans’ Entitlements Act 1986.
The issues before the Tribunal are whether the Applicant has a psychiatric condition, in particular PTSD, and if so, whether the condition(s) is war-caused. The matter falls under s 120 and s 120A of the Veterans’ Entitlement Act 1986 (the Act) from the effective date of 25 April 2012 (the effective date). The Tribunal’s decision is that the Applicant does not have a psychiatric condition, in particular PTSD, which is war-caused.
The Applicant was represented by Ms F Spencer. The Respondent was represented by Mr G Purcell, a Repatriation Commission advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and received into evidence a number of other exhibits.
BACKGROUND
As a matter of happenstance, this appeal hearing commenced on the two days immediately prior to the national commemoration of the centenary of the Australian and New Zealand Army Corps’ first landing at Gallipoli, Turkey. That military campaign was significant for the consolidation of the concepts of Australian “mateship”, but also for concepts of personal, life-threatening danger, hardship and loss and exposure to actual or threatened death through directly experiencing the traumatic events. The lead up to the commemoration of the significant national anniversary included a wide public media expose of experiences of ordinary soldiers and officers involved in enemy combat to the worst kind of appalling workplace conditions and privations over many months, witnessing (perhaps new) friends or the equivalent of workplace acquaintances suffering immediate or slow deaths from profound, horrific and substantial injuries, being mown down by machine guns or mortars, or being maimed by traumatic injury. Any reasonable person could clearly comprehend what the infantrymen there could expect to see or have seen, or worse come to expect they might experience themselves, over a period of months, if they were there. Any reasonable person could appreciate what was euphemistically referred to as “traumatic neurosis”, “battle fatigue”, or “shell shock” and is now labelled PTSD.
The Applicant is a married man from Kinglake, Victoria. He lives with his invalided wife who has a depressive disorder and non-Alzheimer’s disease cognitive impairment, and for whom he is now a carer. They have been married since early 1969 and have two independent adult children, a son and a daughter. He was born in London, the third of three children. He was separated from his family from two to four years of age due to and for treatment of pulmonary tuberculosis in the late 1940s in a hospital and a convalescent home. He ceased secondary education at 15 years of age, having lived in the scholastic shadow of an older brother who was more academically gifted, and having not enjoyed his home time. He worked in non-skilled employment as a fitter of floor coverings, and then studied at an art school. He migrated to Australia when he was 18 years old.
WITNESS STATEMENTS
The Applicant stated that after his arrival in Australia he held a bus conductor position in Sydney for approximately six months. He then worked as a grill chef in Surfers Paradise for approximately 18 months until his enlistment in the RAN in January 1966 when he was 20 years old. He had the pre-determined prime aim of becoming a naval Clearance Diver prior to enlisting, having earlier ascertained that his past pulmonary history would not preclude his ability to undertake his service as a Clearance Diver. He commenced with three months recruit training at HMAS Cerberus, which he successfully completed. In March 1966, he was assessed by a Clearance Diver Selection Board, as well as by a CW Board for consideration for promotion to higher ranking. This latter opportunity was cancelled following a period of being absent without authorisation from HMAS Sydney. After his original posting to HMAS Sydney up to July 1966, he was classified as Ordinary Seaman (Radar Plotter) (he denied being trained per se as a Radar Plotter), and undertook two voyages to South Vietnamese waters.
The Applicant served at the Sydney shore base HMAS Watson where he worked as a Radar Plotter. From 18 March 1967 to 10 August 1967, he was allocated to HMAS Parramatta; however, he stated that after setting foot on her on one occasion he was directed to HMAS Tallarook, which operated from Williamstown and was used to undertake a survey of Port Phillip Bay. Whilst there his category changed to Survey Recorder in August 1967. He joined HMAS Moresby on 3 January 1968 and undertook hydrographic survey work for RAN. He was promoted to Able Seaman on 24 January 1968.
The Applicant joined MV Jeparit on 10 March 1969, on which he had two voyages to South Vietnamese waters, the second of which concluded on 29 May 1969. It was with one or the other or both of these voyages that he stated he experienced three incidents that he claims have caused his PTSD. MV Jeparit was an unarmed, unescorted civilian merchant vessel with three holds used to transport supplies including fresh food and ammunition from Sydney, to sites in South Vietnam, including Cam Ranh Bay and Vung Tau, and would return tanks or other malfunctioning heavy equipment from Singapore to Sydney. It possessed a crew of 38 - 40 seamen, of whom 18 - 20 were RAN personnel. The Applicant had no recollection of any naval detachment commander. He agreed with the contents of the reports of proceedings of MV Jeparit of voyages 16 and 17 (exhibit R3). He stated the circumstances were different on Jeparit, in that he would take orders from the merchant navy, and there was an increased availability of alcohol.
The Applicant undertook administrative duties and operated as a recruit instructor at the Sydney shore base HMAS Penguin from 4 August 1969 to 14 September 1970. He returned to HMAS Cerberus from 14 September 1970 working as a recruit instructor until 24 January 1972. During this time he was promoted to Leading Seaman on 8 July 1971. From 24 January 1972 he rejoined HMAS Moresby, until he requested discharge from RAN, which was granted on compassionate grounds on 18 May 1972 due to his wife’s then second episode of ill health associated with pregnancy related depression.
After being discharged from RAN in 1972, he worked first with the Customs Service, then the Narcotics Bureau, which later became part of the Australian Federal Police (AFP) where over some 18 years he attained the rank of Senior Sergeant. He then operated his own hardware shop for eight years prior to becoming a dispatch manager for a hardware chain for three years. He subsequently worked as a carpenter with his son. He left work in 2010 when he was 65 years old. His last positions being as a tipstaff for four years and judge’s associate for approximately three years at the County Court of Victoria.
The Applicant detailed three episodes associated with experiences whilst serving on the Jeparit. He stated he thinks the first episode, the helicopter episode, occurred on his first Jeparit voyage, whilst anchored in Vung Tau harbour awaiting availability of a berth at De Long Pier. Under cross examination, it was determined that it most likely occurred on the morning of 31 March 1969. He believed he was on port side (presumed) lookout duty, when he heard a loud helicopter noise in the sun (agreed to be from the east about 0830) then in under a minute he saw about four narrow helicopters with rockets on the sides and a Gatling gun on the fuselage flew in the direction of the ship. The Tribunal notes that the Applicant has reported one or three to five helicopters at various times to different recorders. They were coming down in line with the sun at a 45 or 50 degree angle and flew over the ship.At the VRB he indicated three to five helicopters held off for another run: [t]here was more than one [run] and I’m pretty sure there was more than two, but I can’t be certain. He wasn’t really sure, as that may be in his dreams: [n]ow whether that happened, whether it didn’t happen, I can’t say, but that is very strong in my dreams or recollections. He stated to the VRB that doing this [PTSD] course that I’m doing at the moment has made me think of a lot of things in depth which I thought I had forgotten about and put behind me, … I don’t know whether that happened or not. He presumed they were attacking his ship and he thought I was going to die, despite the presence of other more likely ships for targeting, possibly including HMAS Brisbane. The episode lasted for less than one minute. He realised they were friendly when they passed overhead, and agreed at the VRB that it was only the first run that started him. It was some uncertain time later - minutes to days - he was advised by an unidentified person that they were US Cobra helicopters. Now, if he hears a helicopter, he must see it. If he doesn’t, he will panic or become very anxious, although he was very vague about, and very poorly described the symptoms of, the features of his panic attacks, with a bit sweaty eventually being volunteered.
The Applicant thinks the second episode, the aircraft episode, occurred on his second Jeparit voyage, within the 100 km war zone, although he cannot state precisely where the ship was located, nor how he came to know the ship was in the war zone. The ship was fully lit. He was in the sailors’ mess, when an alarm or klaxon sounded, calling them to action stations. There had never been a previous action stations drill on the unarmed ship in his experience, and this was the only occasion the klaxon had sounded on the Jeparit on all his time aboard the Jeparit. He thought it was so they could know where everyone is. He ran in less than 60 seconds from the brightly lit mess up at least two and possibly three deck levels to his lookout point on the port side of the bridge, where it was dark but moon- or star-lit outside. Above the background noise of the ship’s engines, he heard a large (similar to a DC-3 from VRB transcript), unlit, low-lumbering, two-engined (he thinks from VRB transcript) aircraft about the level of the Jeparit’s superstructure at sea top level. It approached from the front port side and travelled parallel to the ship. He didn’t know what it was for less than 60 seconds, and then either saw US insignia in the ambient light available or the officer of the watch that said it was [a US airplane] and was immediately relieved of fear. Before he saw the insignia, he feared being attacked, and killed instantly as they were loaded with ammunition.
The Applicant believes the third episode, the hospital episode, occurred on his second voyage on Jeparit after the ship tied up at its berth. He had got to know an unnamed, unidentified Australian army medic, possibly a sergeant according to some reports, who worked at the Australian Army Hospital at Vung Tau, and brought parcels with unknown contents from Sydney for him, as he believed he met him on an earlier trip. This medic invited only the Applicant alone to come with him to the hospital and have a few drinks in the early evening I think. He cannot explain how it is that there is no record of his leave from the ship, nor how he travelled to the hospital or even the distance or route to the hospital. He was taken to a nurses’ station behind a glass partition in a corner of a rectangular ward, possibly a triage ward; there was no view of an adjacent helicopter landing area. He stated he was aware of the function of a hospital. After about 30 minutes, he heard what he thought was loud shelling, as opposed to small arms fire which he had heard before, close to the hospital. He believed the hospital was under attack, but was unable to explain why he thought so, particularly in the context of the Geneva Convention. He recalled casualties came to the hospital. There was a flurry of activity as people came into the ward. He recalled after some five minutes he was told he had better leave, as it was getting busy. He saw a lot of blood on bandages, and some people were apparently hurt and some badly injured with bandages on. He could recall nothing specific in terms of potential injuries to any person, and has no memory of how he returned to the Jeparit.
The Applicant could not recall any discussion about air activity or control or the strategic position in South Vietnamese waters on either HMAS Sydney or Jeparit, in particular the absence of enemy aircraft in the vicinity and no enemy air force. He had a generally poor memory of any activity on the ships, and specifically of aircraft activity at Vung Tau airfield.
The Applicant stated that after the three incidents, he noticed he drank more alcohol as it was freely available to him. He agreed with what he had written in an alcohol questionnaire completed on 26 April 2005 (exhibit R4) indicating his drinking commenced after joining the navy at recruit training. He also agreed with statements about his drinking in Dr Kaplan’s and Dr Seabridge’s reports mentioned in more detail below. There is no reference in the alcohol questionnaire to any significant potentially stressor episode, but reference to loneliness or a complete lack of direction in life. This being brought on by by [sic] being told I could do certain things by one person the [sic] being told later that I couldn’t by another thus over a period of time robbing me of my long term goals. He denied the Clearance Diver opportunity withdrawal rankled him all his life, despite what was recorded in Dr Seabridge’s 2005 report. He did not know why he was seeing Dr Seabridge, a psychiatrist, for an assessment related to investigation of a potential diagnosis of hypertension, and did not know why he did not discuss psychiatric symptoms with a psychiatrist when he consulted Dr Seabridge.
The Applicant stated he became very angry, detached from people, chose to not mix socially, became short tempered particularly in several of his different workplaces. He was depressed, easily startled, and had sleep problems whereby he starts thinking and has difficulty returning to sleep. He considered these experiences commenced in the mid 1970s, and were more noticeable in the 1980s and 1990s. He stated he was thinking of the [Jeparit] incidents. When he almost took the leg off a person in a motor vehicle accident, he was upset for a matter of hours. After consulting Dr Collier, he commenced antidepressant medications after 2013, and he attended a three-month weekday PTSD course as an outpatient from January 2014.
The Applicant stated he had not discussed the three events and related emotions with doctors, but had done so extensively with his wife and best friend, the late Mr J van Zetten, with whom he shared many naval appointments. Mr van Zetten was on the Jeparit when the helicopter incident occurred, but he was below deck. The Applicant could not recall if they discussed it, but he thought he would have mentioned how upset [he] was. With the airplane incident, the Applicant recalled Mr van Zetten was in the mess, and he could not recall if he saw the airplane or if they discussed it. Mr van Zetten was not with him during the hospital incident, and the Applicant could not recall if he discussed it with him. The Applicant could not recall the nature or topics of any of the many discussions he had with Mr van Zetten.
Whilst not obtained under oath, in seeking instructions about the Applicant’s wife’s availability as a witness, Ms Spencer relayed to the Tribunal that the Applicant’s instructions were that the Applicant’s wife was in a poor state of health. There are several T documents referencing her depressive disorder, and she has destroyed tendons in her shoulders. Additionally, Mrs Hansell has a non-Alzheimer’s disease form of cognitive impairment such that her memory is affected in such a way that if she cannot remember that something occurred, she denies that it ever occurred. It was thus not open to test any relevant evidence. The Applicant presumed he told her about the helicopter and airplane incident.
The Applicant experienced the trauma of his house being completely destroyed; los[ing] everything in the worst fire disaster in Victoria’s history in the Kinglake fires of 7 February 2009. The fire front passed whilst he and his wife were in the house. The bathroom ceiling caught fire whilst his wife was sheltering in the bath, and he had to physically remove her, injuring her shoulders in the process. They accessed their Jeep and drove to the Kinglake township, where they remained overnight. The next day they returned to the embers of the house and contents. He could not explain why the first reference to [l]ast 3 months early morning waking in his general practitioner’s notes was 3 November 2011, along with feels more down last three months (after the Kinglake Bushfires). When asked why he did not attend grief counselling with a psychologist after the fires, he presumed the fires didn’t affect [him], and he didn’t need it. He agreed he was stressed at work after the fires and had three weeks off work. When he wakes early in the morning, he thinks of Jeparit, not of the fire. He was aware he might die in the fire, but if he had a chance to get away, he could try. On the Jeparit, he felt helpless. He stated his perception of the intensity of the threat of death was far more extreme on the Jeparit than in the fire.
Whilst the Applicant was working as a judge’s associate about September 2012, another tipstaff employee who was a former Royal Australian Air Force security guard, had the same symptoms and had been diagnosed with PTSD. He did not believe that he told the tipstaff employee about the Jeparit incidents.
Dr Kaplan, specialist psychiatrist, examined the Applicant’s mental state on 20 August 2014 for 75 - 90 minutes. It was the first and only time he saw the Applicant. He provided a report dated 22 August 2014. He had perused the VRB decision of 21 March 2014 and medical records in the context of a review of the VRB decision related to a claim for disability pension. He did not think the three incidents technically satisfied the requirements in the three SoPs as there was not an actual threat of death, just a perceived threat of death. If the criteria means the Applicant must experience an actual life-threatening event, he does not. If it is a subjective experience, it would be fulfilled. He agreed that all episodes were entirely uncorroborated, but he had to start with the perception of the patient and the symptoms they perceive. He looked for internal consistency, when a person was applying for compensation. It is not inconsistent with a diagnosis of PTSD that the Applicant’s PTSD symptoms developed over many years; there is no temporal limit between exposure and onset of PTSD, so that recognition of PTSD can develop any time, such as the [holocaust] concentration camp survivors. He did not intend that the circumstances of the historical holocaust concentration camp exposures were comparable with the Applicant’s exposure to his episodes. His report included that prior to the traumatic incidents, the Applicant would become inebriated.
Dr Kaplan was unaware of any history related to the Applicant’s early removal from his home for tuberculosis treatment but stated this was a very important developmental time for every person. He was not aware of the family circumstances, such as that of the Applicant living in his brother’s academic shadow. He was unaware of the circumstances of the Applicant’s thwarted ambition to become a Clearance Diver, and reactions to that development. He was also unaware of Dr Seabridge’s 2005 report, the Applicant’s wife’s ill health of almost the same duration as his marriage, the vision of US insignia on the low-flying aircraft, or of medical reports of symptoms reported around the time of the Kinglake fire and loss of his house and contents.
He stated he formed his own opinion and made his diagnosis of PTSD on the basis of the information the Applicant had provided him, as I had to go by what he described. He could not date when PTSD developed precisely. He agreed PTSD is a very poorly understood condition. He considered the Applicant had no other psychiatric conditions.
Dr P Collier, the Applicant’s treating specialist psychiatrist, has about 20 years experience diagnosing patients with PTSD. He considered there was no difference in PTSD diagnostic criteria between DSM-IV-TR and DSM-5. He first saw the Applicant following referral from the Applicant’s specialist general practitioner Dr J Johnston, on 7 May 2012, and sees him about every six weeks. He saw the Applicant on 11 September 2012 for which he provided a report dated 12 September 2012. He continued to stand by this report and did not need to alter his opinion. In writing it, he had tried to be neutral relating to an objective opinion as he would for a person for whom he was not the treating psychiatrist, despite having his primary responsibility to his patient when he is the treating psychiatrist.
Dr Collier’s report states [w]hen [he] asked about the time of onset of [the Applicant’s] posttraumatic symptoms. [sic] Mr Hansell said, “I think in the mid-1970s”. Following the Black Saturday bushfires, I think that my nerves might have returned to how they were in the mid-1970s. The report states that Dr Collier is not in a position objectively to judge whether the incidents involving American aircraft were life-threatening, but if Mr Hansell’s reported subjective experience is to be given weight… can be considered life threatening. He relied on the emphasis the Applicant placed on the history given to him, particularly the helicopter incident. He has prescribed him antidepressant medication which benefitted the Applicant.
Dr Collier had not seen Dr Johnston’s clinical notes. In oral evidence he stated he had not recorded any reference to the Applicant’s anxiety related to potential exposure to radiation on 22 January 2000. He stated [t]his could be a point of concern. He would have taken into account work-related pressures if he knew of them for a diagnosis of PTSD, but he was unaware of any. He stated that problems at work can be secondary to PTSD. He stated he knew of the inability to become a Clearance Diver when he wrote his report, and he agreed he had not mentioned it in his report. He agreed he had not focussed on the Applicant’s history about the limpet mines and the Applicant’s concern that his ship contained ammunition as it had not been emphasised as a significant experience by the Applicant, and that the Applicant had not been traumatised [by that event], although he agreed that it might be a very traumatic event.
Dr Collier was unaware of the Applicant’s past history of intermittent depression as indicated in his general practitioner’s clinical notes. He was unaware of the Applicant’s history of working in the hardware industry, and agreed work can be stressful, and a complete work history is helpful. He agreed that based on the clinical notes he had now seen, a diagnosis of depression was very possible. He was unaware the Applicant had been assessed by a psychiatrist Dr Seabridge in 2005, and it is always helpful to have a previous psychiatrist’s report. He had enquired about a previous assessment, and didn’t get that history. He had not seen Dr Seabridge’s report before he wrote his own report. When he was shown Dr Seabridge’s report, he stated he would not alter his assessment related to PTSD, even with knowledge of the extent of the Applicant’s distress from his career blockage related to becoming a Clearance Diver. He was unaware of Dr Johnston’s clinical notes related to the Kinglake bushfire when he wrote his report. He thought he had given sufficient weight to his consideration of the Applicant’s experiences in the 2009 Kinglake bushfires, despite not having seen the relevant clinical notes. He agreed that symptoms of sleep problems and irritability were not unique to PTSD. Much depends on a person’s previous life experiences.
Dr Collier was not aware of any medical evidence related to duration of exposure to a perceived-as-life-threatening traumatic event and its intensity as a perceived-as-life-threatening stimulus, in particular a lower time limit of exposure. An example presented to him was a not uncommon “near miss” life experience, such as almost being struck by a motor vehicle whilst crossing a road, but not actually being struck because the vehicle veers away at the last possible moment. He was unaware of any medical evidence about duration of exposure to a perceived-as-life-threatening stimulus related to the time until it becomes apparent to the person that there is in fact no threat at all. A duration of 40 - 60 seconds would make no difference to his diagnostic opinion as I think [the Applicant] felt his life was under threat; if truly as he reports it, it can develop PTSD even though it was pretty brief.
Dr Collier could not pinpoint a time of onset of PTSD to 1969, but thought it was likely to be not long after if it was after [1969]. He agreed it was inherently the case that he could not say objectively that the incidents upon which the Applicant relied were life-threatening. He agreed it was always dangerous to assume all Veterans are the same, but noted it is common for a long time to pass before Veterans mention it. He agreed that in making any psychiatric diagnosis, the more known facts, the better. He agreed that it is expected to see patients in bandages in a hospital in a war zone.
OTHER EVIDENCE
Dr C Seabridge, consultant psychiatrist, provided a report dated 23 May 2005 following an assessment undertaken on 18 May 2005 related to a claim for hypertension. He reported the Applicant stated that [joining the Navy] was the start of all my troubles. He noted the Applicant’s reference to having joined the Navy expressly to become a Clearance Diver. This was completely removed as an option for the Applicant only 1 week before he completed recruit training, following which had no other interest in pursuing a Naval career, and insisted that he be discharged. He could not do so, as [h]e had signed on for 9 years… He was given the job of Radar Plotter, which he hated, and said he was so angry and so unhappy that he was unable to do the study for his VCE exam. He was so discontented that he decided to force his own discharge from the Navy, with acts of criminal or unacceptable behaviour, and he commenced by going AWOL. The Applicant chose to be a Survey Recorder, which permitted him to spend long periods of time in relative isolation on island outposts, and he spent some 6 months on an island near the Montebello’s [sic].
Dr Seabridge noted the Applicant’s drinking pattern as opportunistic binge drinking which continued through most of his naval career. His drinking pattern … nor did it arise as a consequence of a service-related severe stressor, and in fact he acknowledges that the origins of his heavy drinking began during his recruit training, before the frustration of his failed career choice. He concluded that at the time of his examination there was no evidence of an anxiety or a depressive disorder. There was no mention of any potentially life-threatening stresses or reactions to them at around 2005.
Dr L Walton, consultant psychiatrist, provided a report dated 23 September 2014 (exhibit R11) following an examination on 4 September 2014, in the context of obtaining a psychiatric assessment related to this appeal. He noted that the Applicant had difficulty in precisely identifying the timing of incidents related to which of the two MV Jeparit voyages. He noted a history of apprehension associated with the darkened ship as they approached Vietnam on HMAS Sydney. The Applicant had reported that limpet mines were found attached to the ship which rendered him anxious. Around two days later while on deck in harbour a Cobra gunship performed a simulated attack on the vessel. [The Applicant] stated ‘It came out of the sun with no warning. It was very frightening. I thought I was going to die’.
Dr Walton reported that the Applicant stated that there was an incident where the ship alarm sounded and when he looked up he saw a large low flying aircraft without lights. His main fear was that the aeroplane may crash into the ship but ‘I felt we were under attack’. He reported the Applicant stated that he made the acquaintanceship of a sergeant based in Vung Tau and he was taken to a local hospital where he observed a number of wounded brought in. He noted that the Applicant stated the incident was distressing.
Dr Walton reported that the Applicant stated [n]ow he is afflicted by ongoing anxiety and depression. … particularly the sounds of helicopters which generate anxiety but there is a background of more generalised non-specific anxiety which is present most of the time. The Applicant has ongoing insomnia intermittently … difficulty getting off to sleep but on other occasions he wakes after a few hours sleep and has great difficulty resuming sleep but there are no nightmares. He notes that in mid-2013 [the Applicant] participated in the posttraumatic stress disorder course at the Repatriation Hospital. He notes that [a]t no stage objectively was [the Applicant] actually at risk of harm or death, rather he asserts that it was his perception … .
Dr Walton assessed that the Applicant provides a history of events which he certainly perceived to be intensely anxiety-provoking (emphasis added). He noted that the Applicant was vague about the chronology of stressful events.
The reports of proceedings of MV Jeparit of voyages 16 and 17 (exhibit R3) do not note any out of the ordinary event involving the sounding of an alarm to bring all to action stations on an unarmed ship, or a simulated helicopter attack whilst at anchor in Vung Tau Bay, or a bombing of the Vung Tau hospital or the finding of limpet mines on the ship. Both concluded with [t]he health, morale and conduct of the R.A.N. Detachment has been good/satisfactory (respectively).
The Tyner Road Medical Centre notes (exhibit R10) are unremarkable with respect to symptoms related to anxiety or treatments. Stress at work - prepared to resign is noted on 17 August 2001. The note on 12 April 2003 referenced 25 years of intermittent low mood commencing whilst with AFP and not enjoying current job; commenced on Cipramil. Around the February 2009 Victorian bushfires, there is reference to breathing difficulties more [consistent with] stress response as usually very cool man and this time quite emotional and reliving it [in] his head all the time. On 14 April 2009 there is reference to nocturia x2 which is perhaps the commonest cause of awaking overnight in elderly men. On 3 February 2011 there is reference to [e]arly morning wakening on and off 40 years, short temper with wife x2 per day, worse since Kinglake fires. On 1 March 2011 there is reference to [d]uring war did believe he may die … then same in Kinglake Bushfires … may then access DVA counselling. On 29 March 2012 there is reference to [f]eels has PTSD, angry outbursts x1 daily, poor sleep wakes 3 to 4 am; ongoing and waishes [sic] to see a psychiatrist re chronic frustration and poor sleep.
In “Up Top” - a History of the Vietnam War reference is made to the circumstances of the commissioning of the MV Jeparit, and at p 123, it states The Jeparit made 17 trips as a ship of the RAN. For the most part these remained routine and uneventful. … there were no incidents arising from enemy activity aimed at the ship or its immediate locale.
APPLICANT’S SUBMISSIONS
The Applicant submitted that he met the diagnostic criteria for PTSD and it was war-caused, and is thus eligible for a pension per s 13 of the Act. The Tribunal should be reasonably satisfied on the balance of probabilities per s 120 of the Act. Psychiatrists Collier, Kaplan and Walton all consider that the Applicant has PTSD according to either the current DSM-5 or the earlier DSM-IV-TR. The Applicant submits that he was exposed to three war-caused stressors (experiencing a life threatening event, or viewing … critically injured casualties as an eye-witness) each of which alone or jointly is sufficient to have caused his PTSD response, particularly anger and irritability, anxiety and depression. The Applicant submits that whist there was in fact no time at which he was actually at risk of harm or death, he perceived he was in life-threatening danger.
RESPONDENT’S SUBMISSION
The Respondent submits that the Applicant does not meet the requirements for a diagnosis of PTSD as the claimed events do not meet the relevant current SoP definition, or of the SoP at the time of claim, and do not evoke the required symptoms stated in the SoP. The Respondent submits that none of the identified events are a necessary stressor for the diagnosis of PTSD. The Tribunal cannot be reasonably satisfied that the Applicant has PTSD, nor that it is war-caused. Consequently the decision under review should be affirmed, meaning that the Applicant is not entitled to a pension under s 13(1) of the Act.
The Respondent concedes that the Applicant may have been a member of the survey team on HMAS Tallarook undertaking survey work on Port Phillip Bay.
LEGISLATION
Section 120 of the Act provides:
120 Standard of proof
(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.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or
(c) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) 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 or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-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.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) In this section:
hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
Section 120A of the Act provides:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces; or
(iii) the British nuclear test defence service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(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.
The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 set out the four step process which the Tribunal is required to undertake in considering matters such as the present. Those four steps are as follows:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
In Repatriation Commission v Hancock [2003] FCA 711 Selway J observed at [9] that:
...there is necessarily at least two extra steps before step one of the Deledio methodology. The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that Mr Hancock was a veteran, that the respondent was his widow and that Mr Hancock had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the `kind of injury' or the `kind of death' suffered by the veteran: see s120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But in cases such as the present, the identification of the `kind of death' is the critical step in the analysis.
Selway J went on at [11] to state the correct approach as follows:
(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
(b) Next, the Tribunal was required to determine on balance of probabilities what `kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other `kinds of death' which were applicable to that death.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those `kinds of death'.
(d) If only a determination under s180A(2) is applicable, then the application must fail.
(e) If no SoP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.
FINDINGS
POST TRAUMATIC STRESS DISORDER
The Tribunal notes through the oral expert evidence that the diagnosis of PTSD relies upon experts in the field of psychiatry assessing that signs and symptoms are present associated with a psychological/psychiatric evaluation. Specifically, there is no objective test such as a blood plasma level of an analyte or an imaging technique to provide unequivocal objective evidence that a condition is present. This is awkward, as the expert must ask questions about signs and symptoms, and word of mouth or access to the internet or any general information at any type of course about PTSD can easily forewarn any claimant about the type of questions that are likely to ensue coupled with the type of answer that can support a diagnosis. It is easily available information to anybody, that today, in order to be diagnosed with PTSD, it is necessary to meet the criteria of American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed) or DSM-5. The various criteria are widely available and easily obtainable. This applies to many, perhaps all, medical conditions. The Tribunal observes it is clearly of assistance to any diagnostician if there is an unbiased, uninvolved, objective test available to them to confirm their clinical diagnosis, such that if the engaged expert were to become unavailable, another person could accumulate the information and reach the same, or at least a substantially similar, diagnostic conclusion. It is not uncommon to have disagreement amongst medical experts in the area of psychiatric conditions.
This issue of a lack of an objective test accelerates when a person relies on assistance from their treating medical practitioner and there is no objective laboratory test to confirm a diagnosis. The medical expert must accept in good faith the information that they obtain as a history from the person; there is no other possibility in a doctor-patient relationship. It is clear that the person providing information is in control of the history they present to any medical practitioner, whether an expert in any field or not, who is then obliged to act in good faith on the basis of the information they are told and thus receive and use in their assessment. It is even foreseeable that a person can hide behind a shield of “If I’m not asked, I won’t tell”, irrespective if this may have an impact on their overall health welfare. The Tribunal is aware that there is a long history of a trust relationship in any doctor-patient relationship based on full honesty from the patient, and full confidentiality from the medical practitioner.
However, in the setting of potential PTSD, an interesting phenomenon occurs. It appears that no matter what the psychiatric presentation, according to the oral evidence of experts in the field of PTSD, it is potentially consistent with the condition of PTSD. Thus virtually any and all psychiatric symptoms are consistent with a presentation of PTSD; alternatively, if a person has PTSD, they may have virtually any psychiatric symptom that has ever been described by any person with any psychiatric condition. This even relates to the time of presentation from a triggering event, as memory suppression is consistent with PTSD. Ultimately it distils to whatever the patient presents to the medical expert, can be consistent with a diagnosis of PTSD.
It is now understood that memories alter over time, and are modified each time an episode is recalled, considered in the person’s then current circumstances in which it is being considered, and then re-stored. Memories can be affected by other personal experiences, by others’ experiences, or conflated with stimuli like fictional war movies or war documentaries over time. Yet the memory remains that: a memory that the person truly believes as the fact of what occurred. This ultimately becomes extremely difficult, as PTSD clearly exists, particularly if there is a close temporal relationship between what any reasonable person would consider to be a terrifying experience and the clinical changes in personality, persona and social behaviour. It is increasingly difficult to locate a causal link if there is a longer time between a potential clinical trigger and the poorly documented onset of symptoms that might be associated with a clinical diagnosis of PTSD.
This is compounded when the experts consider this is consistent with the behaviour of persons with a clinical diagnosis of PTSD in the first place. The ultimate compounding point is that it is even more difficult to discern any issue surrounding a potential diagnosis of PTSD when it is apparent to the person (claimant or applicant) who controls what history they provide to any medical expert that they may receive a personal pecuniary benefit dependent upon what information they voluntarily provide to that medical expert. Thus, a diagnosis of PTSD can only be exceptionally difficult when symptoms are first presented to any medical practitioner long, including decades, after proposed trigger events. Under such circumstances, specific memories around the nature of the circumstances of the events are poor, other than that they occurred and were perceived as now reported. It is often the case that establishment of health intervention processes to assist a person have commenced, part of which is an enquiry along the lines of “I wonder if you might have PTSD?” and asking relevant questions or providing information which provides the opportunity of exploring resources like the internet. In effect, a person capable of achieving a personal reward can present limited information and adhere to that ad infinitum to any or all experts, and the expert can only analyse the findings they can obtain based on the information they receive during their examination in the absence of an objective biochemical test. The Tribunal anticipates that such selective memory retention and beneficial recollection will be consistent with a diagnosis of PTSD.
The Tribunal finds the Applicant had national service in the Royal Australian Navy from 14 January 1966 until 18 May 1972. He had operational service in and around South Vietnamese waters which included a war zone from 22 April 1966 to 16 May 1966 and from 25 May 1966 to 11 June 1966 on board HMAS Sydney, and on board MV (later HMAS) Jeparit, which he joined on 10 March 1969, from 14 March 1969 to 19 April 1969 and from 24 April 1969 to 29 May 1969.
The Applicant’s accepted disabilities are bilateral sensorineural hearing loss and bilateral tinnitus both effective from 29 December 2004 and tinea of the skin which was effective from 20 December 2008.
The Tribunal notes that the Respondent concedes that the Applicant may have been a member of the survey team on HMAS Tallarook, and finds that it is most likely that he indeed was, consistent with the Applicant’s oral evidence of where he met his future wife and his best friend and best man, Mr J van Zetten. The Tribunal observes that the Applicant had a somewhat non-traditional range of naval duties whilst enlisted, involving much shore based time, and atypical circumstances whilst at sea, including in the South Vietnamese Seas war zone, aboard the MV Jeparit.
The Tribunal finds on the material before it that there is sufficient material to support a hypothesis that the Applicant’s claimed diagnosis of PTSD is related to his operational service. Specifically, this is that the Applicant provides a history related to his war service, and at least one psychiatrist with experience in the field of PTSD considers he has PTSD in August 2014.
At the time of the Applicant’s claim on 25 July 2012 regarding his PTSD, the relevant Instrument was the Statement of Principles (SoP) concerning posttraumatic stress disorder No. 5 of 2008. The Repatriation Medical Authority amended this Instrument with effect from 19 December 2013 according to section 196B(10) of the Act, such that at the time of the VRB hearing, Amendment SoP concerning posttraumatic stress disorder No. 19 of 2014 was in operation. The major amendment was to add several similar subclauses relating to perception of whatever was in the immediately preceding subclause, as well as introduce a concept of what a reasonable person in the circumstances of that individual would have considered. At the time of this hearing, the relevant Instrument was SoP concerning posttraumatic stress disorder No. 82 of 2014, effective from 22 September 2014, or some 10 months later than the amended Instrument. The major alteration is reference to American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed.) or DSM-5 published in 2013, where the earlier two Instruments referred to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed.) Text Revision or DSM-IV-TR, published in 2000, as well as no reference to perception of and a moderate change of style of clause construction.
Consistent with Tamberlin J in Vietnam Veterans’ Association of Australia NSW Branch Inc v Cohen (1996), the Tribunal comprehends that the contents of SoPs intend to reflect best current medical and scientific knowledge related to various health conditions, and comprehends that such evidence may change over time, so it is not unreasonable to expect amendments to SoPs from time to time. The Tribunal holds that, once developed, there will always be a relevant SoP in force at any time. The Tribunal considers that it is in the shoes of the original decision maker, as opposed to reviewing any or all of the potentially multiple decisions immediately prior to appeal to this Tribunal. The Tribunal considers that it is correct to consider the relevant SoP in force at the time of this hearing, and if that appears to be not favourable to the Applicant, to then consider the relevant SoP at the time of the claim. The Tribunal notes that it may be informative, as in this appeal, to comprehend the decision of the VRB by reference to the then currently applicable relevant SoP in force when it undertook its deliberations, but strict reference to any such intermediate SoP is incorrect at the time of this appeal. For clarity, Instrument No. 82 of 2014 was in force at the time of this appeal, Instrument No. 5 of 2008 was in force at the time of the claim, and Instrument No. 19 of 2014 (which is the amended Instrument No. 5 of 2008) was in force at the time of the VRB review. Importantly, the Tribunal considers this is consistent with Allsop J in Repatriation Commission v Gorton (2001).
Thus a hypothesis connecting the injury with operational service will only be reasonable if the material that raises that hypothesis includes all of the essential elements that are detailed in the relevant SoP in force at the time of a particular hearing, but always with a weather eye to what was in force at the time of the claim, particularly if this can be construed to be more beneficial to the Applicant (emphasis added). This hypothesis must identify a connection that commences with the claimed injury, being PTSD, and concluding with the Applicant’s operational service. Consistent with Re Wallis and Repatriation Commission (2000), the relevant SoP, being the one in force at the time of the hearing or consideration of a claim, prescribes a minimum set of factors that must be established even before it can be stated that a reasonable hypothesis has been raised. The Tribunal considers that it has been clarified that a hypothesis that does not fit within the template of a SoP cannot be considered to be reasonable, so that the claim must fail consistent with Weinberg J in Repatriation Commission v Gosewinkel (1999). Consistent with Finn J in Repatriation Commission v Milenz (2006) the nature of a medical condition is a question of fact to be determined by relevantly informed and trained expert medical opinion; there appears to be no authority related to a circumstance when the Tribunal itself possesses relevantly informed medical experience, although that circumstance is often the basis of appointment to a Tribunal. Finn J also states that lay standards are insufficient in relation to medical conditions.
In Harris v Repatriation Commission (2000), it was held that the raised facts must raise precisely the factors specified in the relevant SoP (emphasis added).
The Tribunal finds that the raised hypothesis is consistent with the template within SoP No. 82 of 2014 concerning PTSD, and is thus a suitable hypothesis for the purposes of further consideration. The Tribunal notes it is also consistent with the template No. 5 of 2008, in force at the time of the claim.
The Tribunal finds that the Applicant was an experienced sailor at the time of the three stressor events aboard Jeparit. This includes having sailed South Vietnamese waters previously aboard HMAS Sydney. Any reasonable person, let alone sailor, in the circumstances would have at least basic knowledge of the circumstances of the area into which they were sailing, such as that allied forces controlled the airspace, and that a US Air Base existed in close proximity to the destination port of Vung Tau. The Applicant’s memory of details and circumstances of each of the three claimed stressor events is vague at best. The Tribunal notes that the account has varied at different times when presented to the VRB and this Tribunal, as well as reference to various histories provided to four separate psychiatrists in their reports (noting that not all were examined as to the contents of their reports). None of the events were corroborated by contemporaneous official written reports of the two relevant voyages on the Jeparit, or in a related book. The expert medical reports of the subjective perceptions are all based on what the Applicant has told them, and in many cases the Applicant has not advised a full history. There is no objective evidence that any of the stressor events occurred.
Dr Collier, as treating psychiatrist, did not possess a full history of the psychological circumstances of the Applicant. He was unaware of the Applicant’s childhood separation from his family for the treatment of tuberculosis. He was unaware of the Applicant’s own family interactions before he left home. He had not read the treating general practitioner’s clinical notes, and did not know about other depressive episodes and workplace issues. He did not know of the increased temper response around the overwhelming cataclysm of the Black Saturday Kinglake fires and the destruction of the Applicant’s home and all contents in 2009, but appeared to dismissively brush aside this as a cause of or contribution to his patient’s psychological symptoms. He did not know about the Applicant striking and injuring a pedestrian whilst driving. He did not know about his wife’s depressive illness problems, and that was the basis for his exiting the RAN. He did not know about the chopping off of the tops of his fingers in 2006 as detailed in the clinical notes. The Tribunal finds that in light of the substantial deficiencies, which occurred for unknown reasons, in the important psychological history, Dr Collier’s assessment, despite being from the treating psychiatrist, is not usefully accurate, beyond speculation as to what, for example, the picture in a jigsaw puzzle might be when a substantial number of the pieces are missing. The same must apply to not only PTSD, but also to any other psychiatric disease.
Similarly, Dr Kaplan who had a time limited one-off consultation with the Applicant, obtained a different history which was also not complete. Whilst it may be that different pieces of the puzzle are missing, it still remains a substantially incomplete picture, thus speculative. The same must apply to not only PTSD, but also to any other psychiatric disease. Dr Seabridge did not identify any psychiatric diagnoses for the Applicant in 2005, after the claimed episodes but before the bushfire experience and attendance at the PTSD course. He did note the extreme frustration and reaction to being prevented from becoming a Clearance Diver, the sole reason for which the Applicant joined RAN after he had been assured that his previous pulmonary illness would not preclude it, and that alcohol consumption was high from naval recruit training, not following any particular event. The Applicant did not raise any of the stressor events with Dr Johnston, his treating general practitioner.
With respect to the helicopter event, the Tribunal notes there is no corroborating evidence that it occurred, its report varies from time to time, particularly related to the number of helicopters present and the Applicant is uncertain if it really happened. The Tribunal has difficulty understanding how the Applicant in all of his circumstances was unaware of aircraft activity, in particular helicopter activity, around a US Air Base. The Tribunal finds that the Applicant was not exposed to actual or threatened death or serious injury (DSM-5) and that he was not exposed to a traumatic event in which he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury (DSM-IV-TR). The Tribunal notes that the entire duration of exposure until full relief was less than sixty seconds, but specifically does not rely solely on the remarkably short duration of exposure to a potential stressor. The Tribunal finds that it is not a reasonable belief in all the circumstances to consider oneself to be in mortal danger from helicopters close to a known US Air Base when more likely shipping targets are nearby and being in an allied stronghold.
With respect to the aircraft event, the Tribunal notes there is no corroborating evidence that it occurred, and its report varies from time to time. It is unclear where the event specifically occurred. The Tribunal finds that the Applicant was not exposed to actual or threatened death or serious injury (DSM-5) and that he was not exposed to a traumatic event in which he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury (DSM-IV-TR). The Tribunal notes that the entire duration of exposure until full relief was less than sixty seconds, but specifically does not rely solely on the remarkably short duration of exposure to a potential stressor. The Tribunal finds that it is not a reasonable belief in all the circumstances to consider oneself to be in mortal danger from an aircraft in previously sailed waters well known to be controlled by allied forces.
The Applicant understood the functions of a hospital. It is not clear what part of the hospital he visited. The Tribunal finds it not satisfactory to observe patients with bandages in a hospital from a distance as being a severe traumatic event. This is all the more so when there is no corroborating evidence the event actually occurred. There is no evidence any casualties were critically injured. The Tribunal observes there is a great difference to observing casualties in a battlefield or witnessing their wounding, whether pre or post battle first aid dressings are applied, and observing a patient in a hospital ward after treatment. The Tribunal finds that the hospital incident does not meet the definition of severe traumatic event as a category 1B stressor in both of the SoPs.
The Tribunal finds the Applicant had an early separation from his parents, and a difficult childhood, both of which will have impacted his personality and psychological development. He had a massive disappointment when the only reason he joined the RAN after relevant enquiries to become a Clearance Diver was emphatically denied to him, and he was unable to leave RAN. This was so extreme, he contemplated behaviour such that he would be discharged from RAN. He has lived with his wife’s ill-health for many years. The Tribunal finds that there is no properly diagnosed psychiatric condition, as no psychiatrist has had the benefit of a full, accurate history to be able to undertake such a full diagnosis. The psychiatric symptoms became pronounced after the Applicant was exposed to the worst experiences of the worst bushfire in Victorian history yet he was remarkably unscathed according to his own evidence. Any reasonable person would regard the Applicant’s experiences including the personal experience of his escape from the fire in the process of destroying his home in 2009 to be traumatic. The Tribunal finds that it is the Applicant’s non-war-caused experiences on his background personality that have resulted in his anger and frustration.
The Tribunal finds that on all the material before it, the very diagnosis of PTSD is in doubt. Thus, the Tribunal is not reasonably satisfied the Applicant meets the requirements for diagnosis of PTSD according to the SoP in force at the time of the hearing, as well as the earlier SoP in force at the time of the claim.
CONCLUSION
The Tribunal is satisfied beyond reasonable doubt that any psychiatric condition the Applicant may have is not war-caused.
DECISION
Accordingly, the decision to reject the claim for PTSD being war-caused was the correct decision. The Tribunal affirms the decision of the VRB made on 24 February 2014.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Dr Roderick McRae, Member [sgd]........................................................................
Administrative Assistant
Dated 29 May 2015
Dates of hearing 23 &24 April and 22 May 2015 Date final submissions received 22 May 2015 Counsel for the Applicant Ms Fiona Spencer Advocate for the Applicant Michael Jorgensen Solicitors for the Applicant William Winter Advocate for the Respondent Mr Gerald Purcell Solicitors for the Respondent Department of Veterans' Affairs
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