Boeder and Repatriation Commission - [2002] AATA 932

DECISION AND REASONS FOR DECISION [2002] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/459

VETERANS' APPEALS   DIVISION   )
           Re      WILLIAM BOEDER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J Handley (Senior Member)

Date16 October 2002
PlaceMelbourne

Decision      The decision of the Veterans' Review Board insofar as it found the applicant suffered from "avoidant personality disorder with associated depressive features" is set aside, and in substitution IT IS DECIDED- i) the applicant suffers from Post Traumatic Stress Disorder; and ii) a reasonable hypothesis exists connecting it with the applicant's service; and iii) in all other respects, the decision under review is affirmed and the application is remitted to the respondent for assessment of pension in accordance with these reasons.
  .........Sgd Mr J Handley....................
  Senior Member
VETERANS' AFFAIRS -
Service in Vietnam - applicant learnt of the death of another serviceman who was his friend - whether applicant suffers PTSD - whether he experienced a severe stressor - whether he 'experienced' or 'confronted' an event - discussion of DSM-IV criteria - decision set aside.
Veterans' Entitlement Act 1986

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Hill [2002] FCAFC 192
Benjamin v Repatriation Commission [2001] FCA 1879
Re Gregson & Repatriation Commission V2001/1400

REASONS FOR DECISION

16 October 2002 Mr J Handley (Senior Member)

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 29 March 2001. The VRB then reviewed a number of decisions made by the Repatriation Commission on 17 June 1999.
The Repatriation Commission refused the applicant's claim for acceptance of the conditions of personality disorder with alcohol abuse, cervical spondylosis, chronic bronchitis and impotence. The Repatriation Commission also assessed the applicant's disability pension at 10% of the general rate.
The VRB varied the decision with respect to personality disorder with alcohol abuse by amending the diagnosis. It found the applicant suffered the condition of "avoidant personality disorder with associated depressive features". With respect to the condition of chronic bronchitis, the VRB amended the diagnosis to that of chronic simple bronchitis. The VRB then proceeded to affirm the decisions with respect to avoidant personality disorder with depressive features and cervical spondylosis. It then decided to set aside the decision with respect to chronic simple bronchitis and found that it was war-caused, but remitted the issue of assessment of pension to the respondent.
Subsequently, there have been a number of variations concerning the applicant's entitlement to general rate pension, with respect to conditions which have been accepted as war-caused. At the present time, the applicant receives pension at 100% of the general rate, with respect to the accepted conditions of sensorineural hearing loss of the left ear, osteoarthrosis of the left ankle and foot, chronic simple bronchitis and impotence.
The issues before the Tribunal at the hearing were whether the applicant suffered a psychiatric injury or illness and if so what diagnosis should be made.
Mr Liefman who appeared on behalf of the applicant submitted that the appropriate diagnosis was either post traumatic stress disorder (PTSD) and/or psychoactive substance abuse or dependence. Mr Liefman foreshadowed that subject to the evidence of the applicant and the psychiatrists he intended to call, that an alternate diagnosis maybe submitted, namely depressive disorder or personality disorder. Mr Liefman also indicated that the decision of the VRB, in so far as it concerned the applicant's cervical spine, was withdrawn from these proceedings.
It was also foreshadowed that there would be significant challenge to the interpretations made to date in other Tribunal decisions concerning the "experiencing a severe stressor" definition in the PTSD Statement of Principles. Specifically, it was put that Part A of the definition of PTSD would be the subject of review in these proceedings in so far as it concerned whether the veteran "was confronted". It was submitted that the challenge to the interpretations to date of those words will extend to whether a veteran must necessarily have directly "confronted" or whether a veteran can be "confronted" with an event if he has heard about it and has learnt about it.
William boeder
Mr Boeder is presently 52 years of age, having been born on 24 November 1948. He was a member of the Australian Army between 9 July 1969 and 8 December 1972. He was engaged in service in Vietnam between 25 March 1971 and 14 October 1971.
Mr Boeder said that he travelled to Australia with his parents from Holland when he was a baby. He recalled that he and his parents moved frequently throughout Victoria, initially the applicant's father was a baker, but later purchased a delicatessen. Mr Boeder recalled frequently being exposed to new homes and new schools and friends. He described his father as a firm but fair disciplinarian who displayed little emotion, apparently having been exposed to trauma during the Second World War.
Mr Boeder said that he left school at the age of 14 and found employment with little difficulty. When he was called up as a conscript in July 1969 he was working as a barman at the Grand Hotel in Mildura.
Initially, he was trained at Puckapunyal where it was envisaged that he would be trained as a driver, but as a result of a truck accident he was transferred to the catering Corps at Watsonia. He eventually was posted to Nui Dat in South Vietnam. His duties involved preparing and serving meals to officers and bar work in the Officers' Mess. On occasions, he was also required to be engaged as "shotgun" for Officers and be engaged in patrols & security operations. On these occasions he said that he was always armed with a .62SLR rifle and carried live ammunition. The patrols were often conducted at night and on some occasions he was required to occupy trenches.
With respect to his service generally, Mr Boeder said that he believed that he handled his service in Vietnam "well". He said he never complained and was impressed by his own conduct. He said there were a number of occasions on patrol when he carried live ammunition and grenades. Whilst he could not recall whether he volunteered or was asked, he said that he regarded those operations as part of his service responsibilities and was aware of the risks.
Mr Boeder was provided with copies of reports prepared by Mr Tilbrook and Mr Church, who were engaged as consultants for the respondent. They provided reports with respect to events the applicant alleged occurred during his service.
With respect to a report prepared by Mr Tilbrook, found within the T documents and summarised at page 134, Mr Boeder confirmed that during patrols he carried "extra" ammunition and he treated the duties seriously. On occasions where he was required to participate in patrols for up to 72 hours, he was not aware whether he was engaged in a "sweep" or in a particular mission. He said that on those occasions he and others "marched carefully" and they were on high alert. They did not verbally communicate and hand signals were used. Frequently, ambush positions were adopted. During the first occasion that he was engaged in a patrol of this type there was no contact with the enemy, but he recalled that there were occasions where he considered what he would do should a confrontation occur. He said he spent many hours learning to distinguish noise and said that he was able to distinguish the noise that would be expected from enemy activity as opposed to the activity of wild animals in the jungles. He did recall an occasion where a number of Vietnamese villagers passed through an area that was under patrol and he adopted a position of being on "pistol alert" whilst the identification of those persons was inspected.
The applicant recalled that a small explosion occurred in his camp during one of these patrols. He was not aware whether the explosion was an accident or whether it was an alert exercise. He made no enquiry and to his knowledge enquiries where not made by others. He also recalled that there was an episode where an unauthorised Vietnamese person entered an area occupied by his patrol during one of these exercises, but that person was dealt with by his officer in charge. He said these two incidents caused him to be fearful.
Mr Boeder also recalled that there was an episode where he was engaged as a "shotgun" for a Captain Smith who he understood was engaged in unauthorised leave. Mr Boeder said that he was required to be an armed escort whilst Captain Smith travelled to a local village. He said that it was not uncommon for Officers to be escorted by armed persons when they travelled to villages or to orphanages. However, on the occasion that he escorted Captain Smith he understood that the Officer was travelling to buy souvenirs or to tour a local provenance. He said during this journey shots were heard and Captain Smith decided to immediately return to base. Mr Boeder said that he was annoyed by this and felt insulted because it was as if Captain Smith did not trust him to be his shotgun. On another occasion, Mr Boeder was engaged as an escort from a helicopter and recalled that he was at risk of falling during the journey as he realised that he was not strapped.
Of considerable significance, however, in these proceedings was an event where Lance Corporal John McCarthy was killed. Mr Boeder said that he met Mr McCarthy "in the boozer", he got on well with him and thereafter they developed a close friendship. This close friendship included a third person, Mr Rodney Meeke. He said the three of them frequently drank together and played pool. He recalled that Mr McCarthy had said to them on one occasion that he had to "go up country" and that he "did not want to go on patrol" as was about to return to Australia. Mr Boeder recalled that he spoke to Mr McCarthy and assured him that there would be "no problem", that he should regard the assignment as being "routine". Prior to this, he said that he met with both Mr McCarthy and Mr Meeke on dozens of occasions and they discussed personal issues – "mates talk". Mr Boeder later learnt that Mr McCarthy was killed by a satchel bomb which was discharged on top of the APC in which he was travelling. Mr Boeder could not recall how he learnt of that event, but he did learn that the driver of the vehicle had been decapitated. At that stage, Mr Boeder spoke to Mr Meeke and said that he understood for the first time in his life that he had no control over his own destiny and he learnt then that life was expendable. This he said had a profound effect on him. He later observed the vehicle in which Mr McCarthy was killed and noticed that the side of it was caved in and its top had been blown open.
In cross-examination, Mr Boeder said that other members of the platoons in which he was engaged were trained in infantry, however he had been engaged to fill a temporary vacancy. He recalled that he was pleased to be considered and thought that Officers in charge had regarded him as being of an equal standard.
With respect to the episode where Mr Boeder described an explosion in his unit whilst on patrol, he said that he understood that it was caused either by a detonator or a "mini explosive". He said he was present at the time of the explosion. He recalled that a Corporal had dropped an object. He said no one in the vicinity commented or responded. He then assumed that it was an exercise to determine whether persons showed fear and because no one else reacted, he decided that he would not react.
With respect to the event where a number of villagers were approached and detained whilst their identification was checked, Mr Boeder said that this was a relatively common occurrence and he did not regard it as being serious.
With respect to the episode concerning Captain Smith where he was engaged as his escort, Mr Boeder said that the sound of gunshots came from a distance of 40 or 50 metres. He was sure that they were gunshots because he believed that he could distinguish noises. He did say that he was annoyed when Captain Smith decided to return to base because it was as if he did not trust Mr Boeder to be his escort. Mr Boeder said that he did not refer to Captain Smith as being a "coward" as that expression is found within the report of Dr Bomford and he did not use that expression when he was interviewed. Additionally, Mr Boeder suggested that Captain Smith would have no recollection of that event because it was unauthorised leave and the risk of being shot or ambushed would have exposed the leave as being unauthorised.
With respect to the applicant's reaction to the death of Mr McCarthy, Mr Boeder said that the personal conversations that he had held extended to events during service, their experiences during leave in Vung Tau and circumstances concerning their families in Australia. He regarded Mr McCarthy as being a good friend and they each sought each others company.
In re-examination, Mr Boeder said that he did drink a few beers after work prior to enlistment and drank conservatively during service. He recalled on the day of his 21st birthday at Puckapunyal he had 2 pots of beer only. Subsequent to service however he has drunk excessive quantities. He said that he has become a "piss tank" and consumes alcohol to "stun (his) mind". His psychiatrist, amongst others, has advised him to cease drinking. He gave it away for four days, but said he enjoys drinking because it is a mild form of anaesthesia. He said during evidence in Bendigo that he had brought enough money with him only to purchase 2 stubbies of beer which he intended to consume before he returned home. He said that when he does return home at the conclusion of the hearing in Bendigo that he would have a "blow out". Until recently, he would consume alcohol and sleeping tablets at night. His doctor has now refused to prescribe sleeping tablets or painkillers because he recently attempted suicide. Mr Boeder now uses alcohol to compensate for the absence of the medication. Mr Boeder stated that he frequently dreams of shooting, grenades and death.
Mr Boeder said, at the conclusion of his evidence, that the death of Mr McCarthy was the "turning point in his life".
The hearing of the application resumed in Melbourne on 12 September 2002. Mr Moore of counsel then appeared on behalf of Mr Boeder and Mr Purcell appeared on behalf of the respondent.
Christopher Percival
Dr Percival is a consultant psychiatrist who has been in practice for approximately 30 years in Shepparton. He examined the applicant on 13 and 19 March 2002 on each occasion for one and quarter hours. He provided a report dated 27 March 2002 which was received into evidence.
Dr Percival was referred to a report completed by Dr Strauss on behalf of the respondent dated 9 November 2001. Dr Percival thought that the report was written in a "negative tone" and that there had been a "lack of material derived from his observations of the client". He thought that Dr Strauss should have been influenced by the "applicant's demeanour". Additionally he said that the language used in the report was "demeaning of the man" that when asked to expand on this opinion Dr Percival said "I can't put my finger on it but it disturbs me – I would not have used that language".
Dr Percival was also asked to comment on the opinions expressed by Dr Bomford in two reports both found within the T documents. Noting that Dr Bomford had consulted the applicant on two occasions, he thought the first report of Dr Bomford was "brief" but thought the second report was indicative of the applicant "responding with more comfort" and that Dr Bomford had seen him in a better light.
Dr Percival thought that the most significant event to which Mr Boeder was exposed in Vietnam was the death of his friend Mr McCarthy. He said that bereavement is a "significant psychological phenomena" and thought that Dr Strauss had "glossed over it" and had "referred to it in passing".
Dr Percival was impressed by a letter written by Mr Rodney Meeke (refer T documents) who observed the applicant to be a changed person at or about the point in time that he learnt of Mr McCarthy's death. It was significant to Dr Percival that Mr Meeke did not notice any change in the applicant's demeanour after he learnt of his wife's alleged infidelity in Australia. Dr Percival said that he rang Mr Meeke and had a conversation with him and was satisfied that there had been a marked change in the applicant's demeanour upon learning of the death of Mr McCarthy. Dr Percival was also impressed by a letter written by the applicant's former wife who recorded that she observed her former husband to be remarkably changed upon return from Vietnam. He thought that despite Mr Boeder and his wife being separated that she had had "sufficient charity to write the letter and she knows him better than anyone else".
As to the interpretation of the SoPs concerning PTSD, Dr Percival was of the opinion that paragraph A(ii) should be considered before paragraph A(i). He thought that a person's subjective experience could determine whether there was any objective indication of exposure to a traumatic event. He thought that subjectivity is an important feature of satisfaction of paragraph A because it is indicative of "how a person reacts, how did they experience it inside their head".
Dr Percival had been aware prior to the hearing of a report completed by Mr Tilbrook, a historian who reported that the degree of contact between Mr Boeder and Mr McCarthy was relatively brief. As to the friendship between Mr Boeder and Mr McCarthy, Dr Percival said that at a subjective level "no historian can concern themselves with this". Dr Percival said that a person's feelings are personal and that he was satisfied that there was a "bond" between Mr Boeder and Mr McCarthy. He noted that they drank socially together and that the applicant had reassured Mr McCarthy prior to the commencement of the fatal journey. Having learnt later that Mr McCarthy had been killed, Dr Percival thought that the applicant, having learnt of that event, having observed the vehicle in which Mr McCarthy was killed and having then "replayed how he died" would have been an extremely traumatising event. He said that insofar as paragraph A(i) is concerned, he had little doubt that the applicant was "confronted" with a traumatic event, being the loss of life of Mr McCarthy and his observations of the vehicle in which he was killed.
On 10 September 2002 – being two days before the hearing of this application, Dr Percival also gave evidence in another application (Cadusch and Repatriation Commission (V2000/1421). The hearing of that application involved a similar examination of the PTSD SoP. Dr Percival continued to refer to the evidence that he gave in that application (which will be referred to in that decision) but in summary, when asked to comment upon the DSM IV definition of PTSD, Dr Percival said "it stinks but we are stuck with it". Nonetheless he said that he had "no difficulty" with making a diagnosis of PTSD.
Dr Percival was satisfied that the applicant met all of the criteria under the PTSD definition as found within the SoP and said in his interpretation of it, he was satisfied that paragraph A is directed towards an event or events whereas paragraphs B-F are concerned with symptoms as a consequence of the events (referred to in paragraph A).
With respect to the definition of the words "experiencing a severe stressor" Dr Percival said that "no one will argue with this" if paragraph A is satisfied. By way of elaboration he said that if a veteran "experienced a severe stressor" they must necessarily have been exposed to a traumatic event within the meaning of paragraph A.

Whilst Dr Percival was "absolutely certain" that the diagnosis of PTSD existed in the present application, he said that if as a matter of law the applicant was found not to have suffered from PTSD, that the appropriate diagnosis would be "generalised anxiety disorder". He described that condition as being the "default diagnosis for PTSD". That is to say, he was of the opinion that satisfaction of all the diagnostic criteria for generalised anxiety disorder were well within the diagnostic criteria for PTSD. He was satisfied that the applicant had suffered a "severe psycho social stressor" as defined in the generalised anxiety disorder SoP.
In cross-examination, Dr Percival was taken to part of the report of Dr Strauss (page 8) where he records the circumstances of the applicant learning of his wife's alleged infidelity whilst he was in Vietnam. Dr Percival thought that this was not a "significant factor" in the applicant's subsequent behaviour nor would it explain his subsequent behaviour. He said that the way the applicant dealt with learning of that event and his subsequent reactions were consistent with him then suffering from PTSD.
When asked to comment on the four episodes the applicant initially relied on to explain the occurrence of PTSD, Dr Percival said that the major episode was the death of his friend Mr McCarthy. He said he would not dismiss the other events, (he thought they were not "particularly traumatising") but he did say that those events did cause a "predisposing role in the development of PTSD". Additionally, he thought that the alleged behaviour of his wife whilst he was in Vietnam was not "sufficiently severe to explain a lifelong change in his personality". He also dismissed the suggestion made that a family history of his brothers being alcoholics and his mother being depressed were any influence on the development of PTSD, because he did not find the applicant as having suffered any pre-existing personality disorder.
When Dr Percival was challenged as to the basis for reaching his diagnosis of PTSD, he said that he always notifies his students that there is no objective test for a psychiatric diagnosis. He thought that achieving a psychiatric diagnosis was "less precise" than in general medicine because the diagnosis cannot be "proved". He thought that a diagnosis is a form of "speculation" based on available evidence. He dismissed a suggestion Mr Purcell put to him that "every person in Vietnam who knew someone who was killed would suffer PTSD". In his opinion, PTSD was a diagnosis based on a series of events and criteria. In the present case, he said that whilst death is a fact of life, people react in differing ways. He said that bereavement might be "healthy" or it might be "distorted" or "significant" and it was important to identify and examine the "symptom complex".
Dr Percival said that his diagnosis of PTSD was based on a "high level of probability" and that it did arise from service. He said he had no uncertainty or reservation about the diagnosis he had made. Having read the reports of Dr Bomford and Dr Strauss he said "we all agree there is something wrong with him", but acknowledged that there was significant disagreement as to diagnosis. In reaching the diagnosis that he did, he said he was influenced by the evidence of the applicant, the letters of Mr Meeke and the applicant's former wife and having reflected on the presentation and history of the applicant obtained during two consultations. He said he approached the preparation of his report from the point of view of being a competent professional psychiatrist. He acknowledged that he was sympathetic to the applicant but said that his judgement was not impaired.
Terry Walker
Mr Walker is a retired Brigadier who was the officer in charge of A Squadron 3 Calvary Regiment in Nui Dat between March 1971 and February 1972. He said that he recalled Lance Corporal McCarthy as he decided whether to send Mr McCarthy on the patrol that killed him. He said that he recalled the event where Lance Corporal McCarthy was killed. He said he was part of a convoy of vehicles and was approximately 300 metres away from the vehicle, which was being driven by Mr McCarthy at the time it was struck. He said a rocket propelled grenade ("RPG") struck a box of claymore mines located on the vehicle Mr McCarthy drove. He said all persons on and in that vehicle were killed. He said he attended the scene of the catastrophe and helped to remove the body of Mr McCarthy out of the vehicle and assisted the body being returned to the Nui Dat base.
Mr Walker said that he did not recall Mr Boeder but said that his unit would have been located "several hundred metres" away from the unit in which Mr McCarthy was a member. Whilst he said that he could not be "authoritative", he thought there was no restriction on movement between units on the Nui Dat base and whilst there would have been social interaction between members of units he thought the likelihood was "not high". He recalled that Mr McCarthy was a driver who would be away from the base for up to five days per week and then only returning for one or two days per week. He also learnt that Mr Boeder was a member of the catering corp and in those circumstances he thought the extent of interaction between Mr McCarthy and Mr Boeder would be small.
When he learnt of the letter from Mr Meeke who recorded that there was interaction between he, Mr Boeder and Mr McCarthy, Mr Walker said that he would not dispute the extent of interaction but he again reiterated that Mr McCarthy would not have been "readily available". He said that most of the time he would have been outside the base driving a vehicle.
Mr Walker acknowledged that Mr McCarthy probably was unhappy about having to travel on the patrol where he was eventually killed because he was approximately five - seven days away from being posted back to Australia. Mr Walker said that he would have also been unhappy if he was Mr McCarthy, yet the patrol was then thought to be "low risk".
Nigel Strauss
Dr Strauss is a consultant psychiatrist who examined the applicant at the request of the respondent on 26 October 2001 and provided a report dated 9 November 2001. He had available to him the reports Dr Bomford completed and a summary of the available evidence an advocate of the respondent prepared.
Having learnt of the observations made of his report by Dr Percival, Dr Strauss said that he had not adopted a negative attitude to the applicant, nor was his report written in a negative tone. He said he read the information the Repatriation Commission made available to him before he examined the applicant and in the preparation of his report he said that he took account of the history that was obtained. He thought that the applicant's family history was relevant and thought that it would make Mr Boeder "vulnerable" to psychiatric problems. Additionally, he thought that having learnt of his wife's alleged infidelity whilst he was in Vietnam it was a factor to which he would give "significant weight to his ongoing psychiatric problems".
Dr Strauss said that there have been many occasions when he has diagnosed PTSD in other persons and said that the criteria used by him to make that diagnosis is the recall of events, flashbacks, nightmares, avoidant behaviour, sleep disturbance, reliving the experiences, irritability, poor memory and concentration and affect on relationships. Dr Strauss did not diagnose PTSD because the applicant had not told him that he suffered nightmares or flashbacks. He acknowledged that the applicant was "jumpy", easily aroused and stressed and did avoid people but he thought the appropriate diagnosis was dysthmic disorder. Having read the reports of Dr Bomford he also thought that the applicant had a depressive disorder, but he did not understand the use by Dr Bomford of an expression "avoidant personality disorder".
In cross-examination, Dr Strauss said that it would be "precarious" to accept the applicant "at face value". He noted that the applicant did work in hotels prior to enlistment. Together with a history of alcoholism in the applicant's family and heavy consumption of alcohol since returning from Vietnam, these were indicators of the applicant having "personality problems" evidenced by his "excessive alcohol consumption" (refer report page 11).
During the consultation, Dr Strauss recalled that the applicant appeared to be relaxed. He was interested to learn that the applicant was more distressed on his second visit to Dr Percival because he (Dr Strauss) would have thought that the applicant would have become more familiar with Dr Percival and the process of consultation. Nonetheless, he conceded that the applicant may have been more distressed because he was familiar with the type of questions that would be asked of him and the recall to which he would be exposed.
Dr Strauss was comfortable with the diagnosis that he had made and that his diagnosis was "just as valid as Dr Percival's opinion".
The Statement of Principle
For reasons which will follow I am satisfied and find as a fact that the applicant does suffer from PTSD. The applicable Instruments are No. 3 & 54 of 1999.
Paragraph 2 of that Instrument defines PTSD and the definition is described as being a derivation from DSM IV. It relevantly is reproduced as follows:
"(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning…"
The factor upon which the applicant relied was 5(a) which must as a minimum exist before a reasonable hypothesis can be said to be raised connecting PTSD with service. That factor is reproduced as follows:
"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder…"
The expression "experiencing a severe stressor" is defined at paragraph 8 of the Instrument and it reads as follows:
" "experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement 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…"

CONCLUSION AND REASONS FOR DECISION

In evidence, Dr Strauss was asked a number of questions concerning the observations made of his report by Dr Percival. A great deal of the responses by Dr Strauss to questions put to him concerning the evidence of Dr Percival are not recorded in these reasons, save that Dr Strauss was apparently upset by the observations made of his report by Dr Percival. I am satisfied that little turns on this part of the evidence save that I am satisfied that both Doctors Percival and Strauss are competent psychiatrists who exercised their expertise in reaching the opinions that they respectively made. It was obvious from the evidence of Dr Percival – in this and another application – that he does take a particular interest in the trauma to which veterans have been exposed. His attitude towards DSM IV as a basis for the PTSD diagnosis was also quite obvious. I could detect no bias on his part and I am satisfied that the conclusions that he has drawn are sound. Equally I am satisfied that Dr Strauss did take a history of the applicant where he did – as did Dr Percival – balanced the events on service against other events in the applicant's life as a civilian, namely events, within his family and his learning of and subsequent reaction to alleged circumstances concerning his wife whilst he was in Vietnam. That Dr Strauss achieved a different opinion as to diagnosis from Dr Percival does not in my view render one opinion more superior or the other inferior.
In reaching the conclusion that I have in these proceedings, I am grateful for the assistance of both Drs Percival and Strauss and for the benefit of having read their reports immediately prior to the preparation of these reasons.
In Benjamin v Repatriation Commission [2001] FCA 1879 the Full Court comprising Moore, Emmett & Allsop JJ decided that Statement of Principles were not "relevant to the question of diagnosis" (paragraph 41). Doctor Percival is a treating practicing clinical psychiatrist of many years experience who spoke well within the ambit of his qualifications. Having regard to his evidence, and the contents of his reports and the evidence and observations of the applicant, I am satisfied, on the balance of probabilities, that PTSD is the correct diagnosis.
I would find in any event that the criteria at sub-paragraphs A-F of the definition within paragraph 2 of the Statement of Principle have been met, especially sub-paragraph A. For reasons which will follow later, the applicant at an objective level has satisfied sub-paragraph A(i) because he was exposed to a traumatic event by experiencing and by confronting the death of Mr McCarthy. Subjectively, sub-paragraph A(ii) is satisfied because his response involved "helplessness" and "horror". As to the remaining criteria, I would find satisfaction by the applicant of (but not only) B(i), C (i)(ii) & (vii), D (iii) & (iv), E and F.
When the diagnosis of PTSD is found, the focus then needs to be on whether the material raised points to the applicant "experiencing a severe stressor" as defined during his operational service (refer Repatriation Commission v Hill [2002] FCAFC 192). For reasons which follow later, I am satisfied that the applicant did "experience a severe stressor".
In another application brought by a Vietnam veteran claiming PTSD, - Re Gregson & Repatriation Commission (V2001/1400) - I discussed the words and the phenomena "experiencing a severe stressor". In order to be consistent, I adopt for the purposes of this decision, my conclusions from the Gregson decision at paragraphs 100-105 inclusive, which are reproduced as follows-
"100.    The words "experienced", "witnessed" and "confronted" as they appear within the definition "experiencing a severe stressor" were discussed by the Tribunal in Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 106. At paragraph 79 of that decision, the Tribunal found-
"The word 'witnessed' suggests that the person was present at the event involving real or present (ie. actual) or threatened death. The word 'experienced' suggests that the person observed or encountered such an event and the word 'confronted' that he or she was faced with such an event."
101.     I am now satisfied that, whilst the above definitions are valid, they are unfortunately narrow. The Macquarie Dictionary defines "experience" as:
(i) a particular instance of personally encountering or undergoing something;
(ii)the process or fact of personally observing encountering or undergoing something;
(iii)knowledge or practical wisdom gained from what one has observed, encountered or undergone;
(iv)to have experience of; meet with; undergo;.
The word "witness" is defined as:
(i)to see or know by personal presence and perception;
(ii)to be present at (an occurrence) as a formal witness or otherwise;
…
(v)to be at the scene of;
…
(vi)one who being present personally sees or perceives a thing; a beholder, spectator or eyewitness.
The word "confront" is defined as
(i)to stand or come in front of; stand or meet facing; stand in the way of;
(ii)to face in hostility or defiance; oppose;
(iii)to set face to face.
102.     The Shorter Oxford Dictionary offers a more expansive definition of "experience" by referring to "(ii) to have experience of; to feel, suffer, undergo". The definitions of "witnessed" and "confronted" are similar in the Shorter Oxford Dictionary.
103.     The PTSD Instrument is said to be a derivation of DSM-IV. In a chapter of DSM-IV describing the diagnostic features of PTSD (page 424), the following is reproduced as an aid to what was understood by the authors of the Manual as events that are "experienced" and "witnessed". Whilst the following quotation refers to "traumatic events", as I have said earlier, the phenomena of "experiencing a severe stressor" as defined is almost word perfect to Part (A)(i) in the definition of PTSD at paragraph 2.
"Traumatic events that are experienced directly include but are not limited to military combat, violent personal assault (sexual assault, physical attack, robbery mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or man made disasters ….. Witnessed events include but are not limited to observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body part. Events experienced by others that are learned about include but are not limited to violent personal assault, serious accident or serious injury, experienced by family member or a close friend."
104.     The words - and the event - of "experiencing a severe stressor" mean that the event or events involving-
i)actual death; or
ii)threatened death or serious injury; or
iii)a threat to a person's physical integrity; or
iv)a threat to a physical integrity of another person
must be experienced or witnessed or confronted. Necessarily, the experience must be personal and, except for (i) above - which must necessarily be the death of someone other than an applicant - the events in (ii), (iii) and (iv) involve events that may be endured either by the applicant or another person, yet, precipitating a "severe stressor" which is personal and is "experienced". The phenomenon of 'experiencing a severe stressor' is not found within DSM-IV. It is a creature of the Statement of Principles and its relevance is its location within the paragraph 5 factors, one of which must exist as a minimum.
105.     Additionally, and in order to comprehend what is intended to be the ambit of "experiencing a severe stressor", the above chapter from DSM-IV also records the following (at p.424)-
"The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to extreme traumatic stressor involving direct personnel experience of an event that involves actual or threatened death or serious injury, or other threat to ones physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of anther person; or learning about unexpected or violent death, serious harm or threat of injury or injury experienced by family member or other close associate".

In Repatriation Commission v Deledio (1998) 49 ALD 193 ("Deledio"), the Full Federal Court summarised four stages which must be satisfied by a veteran before it can be determined that an injury is related to the service rendered by the veteran. Those four stages are reproduced 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 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."
The material from these proceedings does point to an hypothesis connecting the injury of PTSD to the circumstances of the applicant's service. The second stage of Deledio is also satisfied because there are Statements of Principles which apply.
With respect to the third stage, I am satisfied that the hypothesis raised is reasonable as it is consistent with the template of the Statement of Principle. The hypothesis raised does contain one of the factors that the Repatriation Medical Authority determined to be the minimum that must exist and be related to service, namely the applicant having "experienced a severe stressor" prior to the clinical onset of PTSD. The severe stressors the applicant advanced that gives rise to his PTSD were the events in service (refer earlier), especially learning of the death of Mr McCarthy.
The fourth stage of the Deledio analysis requires findings of fact.
I am satisfied that the applicant is a witness of truth who did not exaggerate or embellish his evidence. I recall from his presentation when giving evidence in Bendigo that he was initially relaxed, forthcoming, and verbose. As the events within service moved towards the circumstances surrounding the death of Mr McCarthy, the applicant's demeanour changed considerably. It varied between profuse crying, being seated with both hands clenched with his knuckles white, extreme gestures of waving his arms and leaning back in his chair with his hands behind his head and burying his head within his arms on the witness bench.
In his evidence in Bendigo, Mr Boeder said the driver of the APC was decapitated (refer paragraph 17 earlier). Mr Walker said Mr McCarthy, who he removed from the APC, was not decapitated. Mr Tilbrook, in a report to the respondent of 4 September 2002, recorded that Mr Walker "personally pulled the remains of the body of LCPL McCarthy from the driver's compartment".
It is not clear whether Mr Boeder understood Mr McCarthy to have been the driver, or whether his reference to a decapitated driver was an indication – to him- of the severity of the explosion. Nonetheless, Mr Boeder said, "I realised that I have no control over my destiny" when he learnt of Mr McCarthy's death. He also said that the death of Mr McCarthy was the most significant event he faced in Vietnam, "so much so that today, I don't care whether I am alive or dead".
I am satisfied that the circumstances surrounding the death of Mr McCarthy, as previously stated, had a profound affect upon Mr Boeder.
I am satisfied that the applicant did "experience" and "confront" "actual death" being the death of Mr McCarthy.
The applicant obviously did not witness the death of Mr McCarthy, but he "experienced it" because that event was "encountered" and he obtained "knowledge" of it (refer definitions earlier). Additionally, the event of Mr McCarthy's death was "confronted" by the applicant because he was "faced with such an event". At the commencement of the hearing in Bendigo, Mr Liefman submitted that he would contend that the word "confront" as it appears within the definition of "experiencing a stressor" extends to "learning" of a traumatic event. I agree with that interpretation and support for it is found within DSM-IV itself (refer Re Gregson - paragraphs 103 & 105 earlier). Those parts that contain reference to events that are "experienced" include events that are "learned about". Additionally, and by way of reinforcing this proposition, the extract at paragraph 105 records that "the essential feature of Post Traumatic Stress Disorder," whilst including the "experience of an event", and "witnessing an event" also includes "learning about unexpected or violent deaths ……".
The definition of "experiencing a stressor" and the Part A(i) objective standard within the definition of PTSD, does not specify events that are "learned about", but for the earlier reasons, to "learn about" is to "experience" and "confront". A diagnostic feature of PTSD is the "learning about unexpected or violent death". This is precisely what occurred to Mr Boeder. Mr McCarthy was his friend. He reassured Mr McCarthy to undertake the "routine" patrol. He later learnt that Mr McCarthy died by an act of extreme violence, which killed him and many other Australians. That event was traumatic and it was unexpected. The applicant gave a broad account of his reaction to it and the change in his personality was observed by Mr Meeke, who served with him, and by the applicant's former wife who observed changes when he returned to Australia.
The respondent, in written submissions lodged after the hearing concluded, relied on the decision in Re Thompson & Repatriation Commission [2000] AATA 635 to support a contention that the applicant did not "confront" an event. It was submitted by the authority of Thompson that "confronted" means to come face to face with an event. For reasons given above (para 68), I agree with that interpretation. The Tribunal in Thompson specifically found (paragraph 47)-
"We conclude that both the example in the Shorter Oxford English Dictionary and the definition and the definition in the Australian Oxford Dictionary indicate that a person may be confronted with a fact or a difficulty by being made aware of the fact or difficulty and having to face up to or deal with it".
At paragraph 49 of Thompson, the Tribunal concluded that it accepted a submission made by the respondent that the applicant was not "confronted" with an event "as she did not come face to face with any such events". Later in the same paragraph the Tribunal concluded-
"However when the word 'confront' is used in the sense of being confronted with an event, we consider it does indicate that the person saw the event or the physical aftermath or consequences of that event".
Whilst each case will turn on its facts as found, the Tribunal then was reviewing a decision of an applicant who learnt of a plane crash where persons she had known were killed. The Tribunal found (paragraph 50)-
"we have found that Mrs Thompson's service at Sale airbase was a severely stressful event. But we find it falls short of her being confronted with the events when planes crashed. We find that she neither experienced, witnessed nor was confronted with those events".
For reasons given earlier, "experiencing a severe stressor" is not confined to confronting an event only, but rather confronting an event involving - as is the present case - actual death. In my view, the "event" is not only the actual traumatic incident causing death but obtaining knowledge about the event and then learning about the actual death. Consequently, Mr Boeder came face to face with the event, when he was confronted because he was made aware of the death. This is an expansion of what was contemplated in Re Thompson, however the words in context permit this conclusion. If a person had to come face to face with an event to "confront" it and the "event" was the traumatic incident only, there would be no need to use the word "witness" in the definition of "experiencing a severe stressor". The experience of a severe stressor is necessarily a subjective personal reaction to be encountered or endured by a person which may (as is the case here) amount to "learning about …. violent death" (refer DSM IV - page 424).
On the balance of probabilities, I am left with no doubt that the applicant did "experience a severe stressor" being the event of the death of Mr McCarthy and that event arose out of his service. It was the experience by the applicant of a severe stressor and it has given rise to PTSD.
The respondent sought to discount the extent of the applicant's friendship with Mr McCarthy by relying on the report of a historian, who reported on the respective periods of overlapping service, and upon the evidence of a retired officer who spoke about the likelihood and frequency of the probable social contact between Mr Boeder and Mr McCarthy. This evidence denies - indeed - ignores - the subjectivity of the friendship experienced by Mr Boeder and the consequent grief that he personally suffered. The written submissions of the respondent disputing the friendship between the applicant and Mr McCarthy, by reason of the evidence of Mr Boeder that Mrs McCarthy lived in Sydney and had one child (when the documented evidence tendered by the respondent suggested she lived in Victoria and had two children) are unduly and unnecessarily harsh. That the applicant reached the "turning point in his life" (paragraph 24) following the death of Mr McCarthy is testament to the profound reaction that he suffered, as a consequence of experiencing the severe stressor.
In all of the circumstances, I am satisfied beyond reasonable doubt that PTSD is war-caused. It follows that the decision under review must be set aside. The diagnosis made by the Veterans' Review Board will be varied and in substitution for its finding of the applicant suffering from "avoidant personality disorder with associated depressive features" a diagnosis will be substituted of "Post Traumatic Stress Disorder". The application is otherwise remitted to the respondent for assessment of pension in accordance with these reasons.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley (Senior Member)
Signed:         Katherine Navarro.................................
  Associate
Date/s of Hearing  5 August and 12 September 2002
Date of Decision  16 October 2002
Counsel for the Applicant        Mr Moore
Solicitor for the Applicant         Mr Liefman
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent    Department of Veterans' Affairs