Boyd and Repatriation Commission - [2000] AATA 615

DECISION AND REASONS FOR DECISION [2000] AATA 615

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q1998/494

VETERANS' APPEALS DIVISION          )
           Re      GRAHAM IAN BOYD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr J M Lawrence AM (Member)

Date27 July 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

Decision No. (Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS : Disability Pension – Statement of Principles – Reasonable hypothesis – Post Traumatic Stress Disorder – Psychoactive Substance Abuse or Dependence – Whether PTSD or PSAD causally related to service

Veterans' Entitlements Act 1986 – s9, s13, s120(1), s120(3), s120A(3), s196B

Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)
Capt E T Keane OAM RAN Rtd (Member)
Dr J M Lawrence AM (Member)

The applicant seeks review of a decision made by the respondent on 27 May 1997 to refuse payment of a disability pension on the grounds that the veteran did not satisfy the Statement of Principles ("SoP") relevant to the claimed conditions of Post Traumatic Stress Disorder ("PTSD") and Psychoactive Substance Abuse or Dependence ("PSAD"). That decision was subsequently affirmed by the Veterans' Review Board on 16 April 1998 (T2). The applicant says that the claimed conditions arose out of operational service in Vietnam.
At the hearing Mr O'Gorman of counsel appeared for the applicant and Mr Dobbie appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were put before the Tribunal as the T documents and further documents were tendered and marked as exhibits. The Tribunal heard oral evidence from the applicant and 2 other witnesses with medical evidence from Dr Lawford.
The issue before the Tribunal in considering the applicant's entitlement to a disability pension is whether the applicant's accepted PTSD and PSAD are war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Section 13 of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension to the veteran.
For the purposes of this case a "war-caused disease" is defined in section 9 to mean:
"(1)…a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the…disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the…disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…"

It was not disputed that for the purposes of section 6C of the Act the applicant rendered operational service and as such eligible war service in accordance with section 7 of the Act.

Section 120 of the Act sets out the standard of proof required in establishing whether a disease resulted from an occurrence while rendering operational service or arose out of, or was attributable to the eligible war service rendered. Section 120(1) provides:
"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."

Section 120(3) of the Act requires the Tribunal to consider the whole of the material before it and decide whether that material points to an hypothesis connecting the veteran's disease with the circumstances of his eligible war service. It provides:
"In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury 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."

Section 120(3) is to be read in conjunction with section 120A of the Act. In so far as it is relevant, section 120A(3) provides that:
"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)…
(b)…;
that upholds the hypothesis.

If the hypothesis does not come within the terms of the SoP then it will not be a reasonable hypothesis and there will not be sufficient ground for finding that the veteran's disease was caused by eligible service.

The claim, being a claim made after 1 July 1994 and in accordance with Keely v Repatriation Commission [1999] FCA 1103 and Repatriation Commission v Keely [2000] FCA 532, is one to be assessed according to SoP's Instrument No. 15 of 1994, as amended by Instrument No. 225 of 1995 for PTSD and Instrument No. 5 of 1994 for PSAD.
In so far as is relevant the SoP for PTSD provides:
"1.…that 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…with the circumstances of that service, are:
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder;…"
"Experiencing a stressor" is defined within the relevant SoP to mean:
"(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror."
In this instance and in regard to the SoP for PSAD the relevant factors that apply to the applicant and must as a minimum exist means that the applicant must have experienced a stressful event prior to his substance abuse or dependence, maintaining this post-service or have had a psychiatric condition (e.g. PTSD) prior to such substance abuse or dependence. A "stressful event" is defined within this SoP to mean an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
Taking into account all of the material before the Tribunal we make the following findings of fact relevant to the applicant:
(a)The applicant was born on 15 September 1946 and joined the Royal Australian Navy ("RAN") at the age of 17, serving with the RAN from 27 June 1964 to 6 April 1967 (T4/1).
(b)The applicant had operational service from 8 June 1965 to 11 June 1965 on HMAS Parramatta while in Vietnamese waters (T4/2). The applicant was allotted service in a special area, namely North Borneo and Malay Peninsular/Singapore on HMAS Parramatta for the periods of 7 July 1965 to 9 July 1965 and 17 July 1965 to 3 August 1965 (T4/1).
(c)After attending training in basic seamanship and procedures for a period of three months at the Flinders Naval Base in Victoria the applicant was assigned to HMAS Parramatta (Exhibit A).
(d)The applicant stated in his evidence that before sailing to Singapore he returned home to marry his wife in February 1965 (Exhibit A). Exhibit 2 is a letter from the RAN which states that the applicant was a crew member of HMAS Parramatta that left Australian waters on 25 January 1965 and returned on 1 September 1965. Document T4 at folio 7 states that the applicant "joined the Navy…to get away from his wife after a quarrel." We are unable to determine the correct sequence of events regarding this matter and therefore no finding of fact is made.
(e)The applicant in his statement (Exhibit A) maintains that while sailing to South Vietnam the ship's crew was subjected to continual training and emergency drills with the applicant being assigned to duty within the ship's magazine.
(f)HMAS Parramatta entered Vung Tau Harbour, Vietnam as an escort to HMAS Sydney on 8 June 1965 (T4/41).
(g)The ship remained at anchor until 11 June 1965 when the ship departed with HMAS Sydney and another escort HMAS Duchess (T4/41).
(h)The applicant's claimed perception of the hostile environment in Vung Tau Harbour led he says, to experiencing intense fear and helplessness because of his fear of danger to the ship and his personal safety arising from that environment.
(i)During diver alerts, the applicant was required in the ship's magazine, namely the "X-Ray" compartment, a fully enclosed unlocked room below the waterline, which would be clipped shut during Action Stations (T4/50). The applicant was fearful of this as he believed he would not be able to get out of this compartment if necessary.
(j)The applicant states that HMAS Parramatta was on constant mine alert with the ship being at Action Stations for prolonged periods and under constant threat of enemy fire (T4/40).
(k)Scare charges were released by the Parramatta and others at irregular intervals into the harbour which created apprehension in the applicant as to whether the explosions were friendly or hostile.
(l)Experienced sailors told the applicant that if a fire started in the magazine it would be flooded with seawater to prevent the ship from blowing up. This again created a sense of fear and dread within the applicant.
(m)On his return the applicant was posted to HMAS Watson and subsequently HMAS Penguin where he served as a Cook.
(n)The applicant's attitudinal and behavioural problems led to his eventual discharge (6 April 1967) from the RAN with a diagnosis of Hysterical Personality Disorder (T4/16) rendering the applicant permanently unfit for Naval Service (T4/1). This occurred even though the applicant had been receiving psychiatric treatment for the period November 1966 to February 1967 (T4/39).
(o)After being discharged from the RAN in 1967 the applicant initially undertook a variety of jobs around Australia. He then worked as a carpenter from 1972 to 1976 and then as an owner/driver of a concrete truck business. In 1986 he worked as a trades assistant at the Reserve Bank of Australia but was advised to leave in 1987. In 1987 the applicant purchased another truck but was advised to cease working by his general practitioner in 1996 because of his health problems. The applicant has not been gainfully employed since because of his health problems.
(p)After the applicant's discharge from the RAN the applicant has resorted to excessive consumption of alcohol which is a problem that continues to exist.
(q)The applicant is being treated for PTSD at Greenslopes Private Hospital both as a day patient and an in-patient.
Exhibit D is a handwritten letter by Mr Walter Dixon who gave evidence at the hearing before the Tribunal. Whilst the Tribunal accepts Mr Dixon's evidence concerning his experiences when serving in HMAS Vampire we are not satisfied that these experiences can be objectively related to the applicant's circumstances.
Evidence was given to the Tribunal by Mr Rodney Nott, a Gunnery Officer in HMAS Parramatta, at a time subsequent to the applicant's service in the ship. In a letter to the applicant's solicitors dated 10 June 1999 (Exhibit C) Mr Nott has corrected details that appear in the applicant's statement. In his oral evidence Mr Nott said that detonations from scare charges would not be a surprise as sailors would be aware when divers could be expected to be in the water. He also said that Action Stations involved all crew members and should have been recorded in the Ship's Log (Exhibit 1), but may have been omitted. Further Mr Nott said procedure was to inform the crew about drills. This is in contrast to the applicant's evidence that he was never informed as to the ship's status or whether the action taken was a drill or whether enemy divers were sighted (Exhibit A).
The Medical Evidence
Document T4, folios 5 to 7 are clinical notes which show the applicant was first admitted to the RANH Penguin as an in-patient on 14 November 1966 for a period of 25 days for anxiety. Reference is made to the "considerable domestic trouble" and agitated state of the applicant which resulted in both the applicant and his wife being interviewed by a Consultant Psychiatrist who recommended a prolonged course of Librium.
Further clinical notes (T4, folios 8-11) for the period 3 January 1967 to 21 February 1967 indicate that the applicant was subsequently referred to the Concord RGH for a psychiatric assessment with a psychologist where he was diagnosed as suffering from Hysterical Personality Disorder as well as functional manifestations. His treating Psychiatrist, Dr McGeorge recommended that the applicant be discharged from the RAN.
Report of a Final Medical Board dated 9 March 1967 (T4/13-16) shows that the applicant was diagnosed as having an Acute Anxiety State which originated in November 1966 whilst he was serving at HMAS Penguin (outside the period of operational service). He received treatment at the Balmoral Naval Hospital from November to December 1966 and the Concord Repatriation Hospital from January to February 1967.
The Medical Board found that this condition was constitutional from within the applicant and that he was permanently unfit for duty and should be discharged on the grounds of Hysterical Personality Disorder. The Board makes the comment that the source of his blackouts has been fully investigated and no abnormality can be detected.
The report also shows that the applicant contracted venereal disease in 1965 whilst on service with HMAS Parramatta. We do not know if this condition may have been a contributing factor to the domestic difficulties encountered upon the applicant's return to domestic life.
Document T4, folios 25 to 27 is a report by Dr Bruce Lawford, Consultant Psychiatrist dated 19 July 1996. In this report, Dr Lawford sets out the applicant's history and says that the applicant meets the criteria for PTSD and that his condition is chronic and permanent. He says the applicant suffers from irritability, is hypervigilant, has difficulty concentrating and suffers from exaggerated startle response. Dr Lawford said the duration of these conditions has been for many years and causes clinically significant distress and impairment in social and occupational functioning. The doctor considered the applicant's prognosis to be guarded and unlikely that the applicant would be able to return to work.
Dr Lawford confirmed his diagnosis in a further report dated 23 August 1996 having this time the benefit of the diagnostic criteria for PTSD and the applicant's service documents (T4/30). Dr Lawford expresses his opinion as being that the applicant experienced threatened death or serious injury by being placed in a situation from which he could not escape which is the source of the applicant's PTSD. Dr Lawford disputes that the applicant fulfils the criteria of Hysterical Personality Disorder which is now known as Histrionic Personality Disorder.
In his oral evidence Dr Lawford acknowledged that the applicant's history depended on the truth of what the applicant told him. The applicant's operational service was from 8 June 1965 to 11 June 1965, a period of three days, not the seven days as stated in Dr Lawford's report (T4/25). Dr Lawford said under cross-examination that the applicant has an hysterical personality with constitutional predispositions to developing anxiety based on a perception that something might happen. He also said that in his opinion the fact that the HMAS Parramatta was in the harbour itself was enough for the applicant to perceive a threat of death or serious injury.
Document T4/32 is a medico-legal report by Dr George Freed, Consultant Psychiatrist, dated 27 November 1996 commissioned by the respondent. Dr Freed sets out a history which is generally consistent with the evidence before us albeit that there is an error with the applicant's period of operational service. Dr Freed stated in his report:
"Diagnostically, if one accepts his history of significant phobic and fearful conditions whilst a member of HMAS Parramatta, with duties in the armament magazine of the vessel, under conditions described, there was the likelihood of him experiencing significant fear of an explosion and/or drowning with flooding of the magazine stated to have been the routine procedure had there been danger of an explosion of fire in the magazine wherein he would have drowned, if not burnt or blown up first."

The doctor expressed the opinion that the applicant has intrusive recollections of his Navy Service including sleep disturbance with distressing apprehension and phobic fears of being in locked premises, coming to the conclusion that the applicant tends to fulfil the criteria of PTSD and PSAD in accordance with the relevant SoP's.
Consideration
After considering the material before us we have come to the view that the applicant does indeed suffer from the condition of PTSD. However the difficulty before the Tribunal is whether the PTSD is, as a matter of hypothesis war-caused pursuant to section 9 of the Act being materially contributed to by the applicant's eligible war service.
Because of the operation of section 120A of the Act the hypothesis can only be accepted as a reasonable hypothesis if the applicant's circumstances fall within the criteria of the SoP relating to PTSD. The hypothesis will not be reasonable if it is obviously fanciful or untenable so that the claim must fail. The hypothesis will also not be reasonable if it fails the test of section 120A of the Act.
The steps to be followed were set out by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. There the Court discussed the authorities and following dicta of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1, and Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1, but taking into account the enactment of section 120A and related provisions, the Full Court set out the course which must be taken in cases where section 120A (on the facts of this case) operates to require that the reasonableness of the hypothesis is to be assessed by reference to a Statement of Principles made under section 196B of the Act.
The Full Court said at 49 ALD 206:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person 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 s196B(2) or (11)……
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 ss196B(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 s120(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 this case there are relevant statements of principle in force so that this is not a case where there is no "SoP".

We understand that the hypothesis relied on by the applicant is that he experienced traumatic and stressful events while serving on HMAS Parramatta in Vung Tau Harbour because the ship was on constant mine alert at Action Stations and he perceived a threat of death or serious injury whilst fulfilling his duties within the "locked" magazine room.
A copy of the pages of HMAS Parramatta Ship's Log (Exhibit 1) was tendered for the periods 25 May 1965 to 20 June 1965 and 1 July 1965 to 10 August 1965. It is a mandatory requirement for every HMA Ship while in commission to maintain a Ship's Log. Entries are made each day and they constitute an accurate account of all events of significance which affect the ship. Entries would cover, for example, information relating to the ships whereabouts, its movements, the daily routine being observed and any events which impact on any of the above. A decision to vary the degree of action readiness of a ship would require a notation to that effect in accordance with the instructions relating to the completions of the daily entries to the log.
At Exhibit A, the applicant relates that his experiences as a member of the crew of the ship's magazine during diver alerts while in Vung Tau Harbour provided the basis for his subsequent condition which was diagnosed as PTSD. He states, inter alia:
"All I knew was that I was extremely frightened and alarmed when the diver scare charges went off and so was the other seaman on duty. On one occasion the other sailor became so distressed I had to pull him down through the hatch into the magazine….I took a towel down with me into the magazine because I was dry retching from extreme terror. I never reported to anyone about my condition because I strongly believed that if any one showed that they were extremely frightened on a warship they would be deemed to be a coward….."
"To make conditions worse, the magazine hatch was closed and clipped shut after we entered. There were no clips fitted on the inside of the hatch that we could use to open it from the inside. This literally meant that we were 'locked' in the magazine because we had to rely on someone outside the magazine to unlock the hatches so we could get out. We were often told by experienced sailors that should a fire start in a magazine, it would be flooded with seawater to prevent the ship from blowing up. We were all terrified that should the seaman whose job it was to let us out, be injured or killed, we would not get out and we (sic) would be trapped. The fear and dread of being trapped and not being able to escape was with me throughout the seven days that the ship was in Vung Tau and the fear of being confined has remained with me ever since."
"…Since that time, I have never been able to stand being in confined spaces. I hate travelling in lifts and I do not like being in a confined room where I cannot see out."

While perusal of the Ship's Log reveals no entry concerning Action Station or manning of the main armament and hence its magazine during the period the ship spent in Vung Tau Harbour (AM 8 June – AM 11 June), the following two entries, on the day prior to entering the harbour on 7 June appear to be relevant:
"1115 Exercised Action Stations and Action Drills
1305Reverted to 3rd Degree Readiness. AA/AS Defence Stations, ABCD cond 2 Y."
The latter entry, jargon notwithstanding, placed the Anti-Aircraft (AA) and Anti-Submarine (AS) weapons at a state of readiness with a level of crewing so that the state could be maintained for a protracted period without bringing the whole ship to "Action Stations", whereby every member of the crew would be closed up. There is no subsequent entry during or after the period in Vung Tau which relaxes this state which appears to be a serious omission. In the absence of such an entry there is a possibility, that gun and magazine crews were closed up in watches (shifts) throughout the relevant time in Vung Tau Harbour. It could not be put higher than that as the other entries generally reflect a ship going about its day to day duties in a fairly routine manner, anti-swimmer activities apart.
However, while the Tribunal is prepared to accept this possibility, it does not accept that the constant anti-swimmer activities being conducted could provide sufficient basis for the degree of terror that the applicant claimed to have experienced. We understood that anti-swimmer operations involved the provision of upper deck sentries to look for swimmers, boat patrols around the ship, ship bottom searches by Navy divers at slack water and the dropping of scare charges to deter hostile swimmers. The charges each consist of a 1¼ lb block of TNT which explodes in the water 4-7 seconds after release and they are released at random intervals outside the periods when the divers are in the water. The explosive effect of these charges becomes a matter of background routine and it would be obvious that they did not affect the integrity of the ship.
The Tribunal is not satisfied that the applicant experienced a relevant stressor prior to the clinical onset of PTSD. In a letter to the respondent dated 28 April 1997, (T4/41) the Department of Defence states that for the period of the applicant's operational service in Vietnamese waters there was no indication of any unusual incidents or occurrences or that there is any evidence that suggested the ship was subjected to enemy fire. Further in a Defence Personnel Executive Minute (T4/50) it was noted that policy was to leave 'X-Ray' designated compartments and magazines unlocked but fully clipped down at Action Stations. Maritime Headquarters considered it highly unlikely that the command team in HMAS Parramatta would have deviated from the widely accepted and routine drill as locking of the hatches would have defeated damage control requirements.
We are satisfied and so find on the medical evidence that the applicant does suffer from PTSD but this originated at a subsequent period of time after the applicant's Naval Service had ended and does not meet the criteria set out in the relevant SoP. We find that the applicant was constitutionally anxious and that the evidence reveals that Action Stations was routine procedure with the crew warned of what was to occur.
We are not satisfied that because the applicant entered the Vung Tau Harbour, that this in itself can be considered to be an objective stressful event which involved a threat of death or serious injury. Nothing unusual is reported in the Ship's Log (Exhibit 1) to indicate such a threat existed. We are unable to find any basis for a relevant stressor. It therefore follows that we do not consider that the material points to a reasonable hypothesis connecting the applicant's condition of PTSD with the circumstances of his service. We are also satisfied beyond reasonable doubt that there is no basis in fact for finding any relevant stressor in the material before us.
As to the claim for PSAD the evidence satisfies us that the continuing substance abuse is an effect of the PTSD rather than a separate disability. The applicant by his own evidence said that his drinking started after his discharge from the RAN as a result of his anxiety problems (Exhibit A). The medical evidence is unclear as to the extent of substance abuse but confirms that it occurred some time after Naval Service and we are satisfied that the PSAD condition is an effect of PTSD and not a separate medical condition.
For these reasons the Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Capt E T Keane OAM RAN Rtd, Dr J M Lawrence AM
Signed:
  T G Lowther
  Associate
Date of Hearing  5 April 2000
Date of Decision  27 July 2000
Counsel for the Applicant        Mr O'Gorman
Solicitor for the Applicant         Gilshenan & Luton
Advocate for the Respondent Mr Dobbie