Burling and Repatriation Commission - [2002] AATA 448

DECISION AND REASONS FOR DECISION [2002] AATA 448

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1166

VETERANS' APPEALS DIVISION       )
           Re      Russell David Burling
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member Dr P D Lynch, Member

Date13 June 2002
PlaceSydney

Decision The Decision under review is set aside and in substitution therefor, the Tribunal decides pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that:

a.The conditions of post traumatic stress disorder and cervical spondylosis are war-caused.
b.Disability Pension is payable at 80 per cent of the General Rate with effect from 10 December 1998.
..............................................
Ms SM Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – Disability Pension – Operational Service – Reasonable Hypothesis – Cervical Spondylosis – Post Traumatic Stress Disorder – Assessment – Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 70, 119, 120, 120A
AUTHORITIES
Deledio v Repatriation Commission (1997) 47 ALD 261
Arnott v Repatriation Commission (2001) 106 FCR 83
Cook v Repatriation Commission (2000) 106 FCR 448
Harris v Repatriation Commission (2000) 62 ALD 161
Connors v Repatriation Commission (2000) 59 ALD 61
Wedderspoon v Minister of Pensions [1947] KB 562
Holthouse v Repatriation Commission (1982)1 RPD 287
Re Penhall and Repatriation Commission (1992) 28 ALD 261
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Benjamin v Repatriation Commission (2001) 64 ALD 411
Forbes v Repatriation Commission (2000) 101 FCR 50
Dixon v Repatriation Commission (1999) 59 ALD 315
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Bey (1997) 79 FCR 364
Browne v Dunn (1893) 6 R 67

REASONS FOR DECISION

13 June 2002 Ms S M Bullock, Senior Member
Dr P D Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, Mr Russel David Burling, of a decision of the Veterans' Review Board ("the Board") made on 31 May 2000 (T23) which affirmed a decision of the Repatriation Commission made on 30 August 1999 (T2) which refused a claim for cervical spondylosis, irritable bowel syndrome and post traumatic stress disorder. Mr Burling withdrew his application for review to the Board in relation to the conditions of migraine and tension headaches. Mr Burling then withdrew his application for review to the Tribunal in relation to the condition of irritable bowel syndrome in a written request dated 23 October 2001.
A hearing was held in Sydney on 22 and 23 October 2001. Mr Burling provided oral evidence as did his wife, Mrs C Burling, Dr A Dinnen, Consultant Psychiatrist, and Dr W Shand, Consultant Psychiatrist. Mr Burling was represented by Mr N Dawson of Counsel and the Respondent, the Repatriation Commission, was represented by Ms S Breuer, Departmental Advocate. Documents were lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T31) and the following exhibits:

Exhibit No.   Description Date
A1      Applicant's Statement        Undated
A2      Report by Dr M Burns, Occupational Physician 1 February 2001
A3      Report by Dr A Dinnen, Consultant Psychiatrist 12 December 2000
A4      Letter from Mr K Weber, Chiropractor     27 July 2001
A5      Letter from Mr N S McLeod, General Manager, Gloucester Shire Council   9 August 2001
A6      Report by Dr P E Giblin, Orthopaedic Surgeon 16 November 2000
A7      Supplementary report by Dr P E Giblin, Orthopaedic Surgeon          5 December 2000
A8      Statement by Mrs C Burling         Undated
A9      Statement by Mrs E M Burling     Undated
R1      Referral letter to Dr J Bodel by Ms S Breuer, Departmental Advocate, and Report of Dr J G Bodel, Orthopaedic Surgeon        24 November 2000 8 January 2001
R2      Report by Dr J W Shand, Consultant Psychiatrist        6 January 2001
R3      Report by Dr J W Shand, Consultant Psychiatrist        9 February 2001
R4      Report by Dr J W Shand, Consultant Psychiatrist        15 October 2001
R5      Vocational Capacity Centre Report including reports of Ms J Wild, Physiotherapist, Dr B Zeman, Consultant in Rehabilitation Medicine and Mr P Defina, Clinical Psychologist     22 March 2001
R6      Report by Dr G Coffey, Consultant Neurologist 23 April 2001
R7      Report from Rtd. Lieutenant Colonel H T Conant, Write Way Research Service     18 July 2001
R8      Clinical notes from Dr J Ferris, General Practitioner     Various
R9      Medical Report, Permanent Incapacity, Dr J Ferris, General Practitioner     16 November 1999
R10     Invalidity Service Pension/ISS Determination Sheet     7 December 1999
R11     Gloucester Shire Council Records        Various
Marked For Identification
MFI 1 "Post Traumatic Stress Disorder and War-Related Stress", Information for Veterans and their Families, Department of Veterans' Affairs
MFI 2 Explanatory Notes for Tabling in relation to RMA Instrument Number 355 of 1995
MFI 3 Letter from Dr J Ferris        17 October 2001

Issues

The issues before the Tribunal are :
(i)Whether or not Mr Burling's conditions of cervical spondylosis and post traumatic stress disorder are war-caused; and if so,
(ii)What is the correct rate of assessment of these conditions including whether or not Mr Burling is entitled to an earnings–related pension at the Special Rate.

Service

Mr Burling served in the Australian Army from 16 July 1968 until 3 May 1973. (T3, p1-4). Mr Burling served in South Vietnam from 11 March 1969 until 4 March 1970 and this service constitutes operational service as defined in the Veterans' Entitlements Act 1986. Mr Burling also rendered defence service from 7 December 1972 until 3 May 1973.
Legislation
A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Mr Burling rendered both operational and defence service. Because the specific events which Mr Burling claims link his conditions of cervical spondylosis and post traumatic stress disorder to service occurred during his operational service, the Tribunal will confine its consideration to operational service.
Section 5D of the Act deals with the definition of injury and disease.
Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:
"9      War-caused injuries or diseases
(1)      Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)      the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…"
Section 13 of the Act deals with eligibility for pensions.
The standard of proof to be used in relation to Mr Burling's operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120 (1) and 120 (3) of the Act, which as relevant provide:
"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.
…
(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
..."
Section 119 of the Act reflects that decision-makers are not bound by the technicalities and that decision-making under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or deficiency in records.
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any other relevant determination or declaration under the Act. As relevant, Section 120A of the Act states:
"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.
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 and member of the Forces 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.
…"

Statements of Principles

The relevant Statements of Principles in this matter are:

Instrument Number 31 of 1999 concerning Cervical Spondylosis.
Instrument Number 3 of 1999, as amended by Instrument Number 54 of 1999, concerning Post Traumatic Stress Disorder.

Evidence of Mr Russel David Burling

Mr Burling told the Tribunal that he was born on 7 November 1946.
Before joining the Australian Army, Mr Burling was working for 12 months as an electrical wholesale agent. He then the joined New South Wales Government Railways as a fireman working on steam trains.
Mr Burling joined the Army, aged 23 years. On 11 March 1969, he commenced duty in South Vietnam and returned home to Australia on 4 March 1970. He had joined the Army for six years but did not complete this period. Towards the end of his Army career, Mr Burling tried to obtain a posting to Singapore but was unsuccessful. He completed his service at 23-24 Construction Squadron at Enoggera Barracks, Brisbane.
In Vietnam, Mr Burling served in the 1st Australian Logistics Support Group ("1ALSG") and was a Field Engineer working primarily on water purification. He was based at Vung Tau. Mr Burling's duties also included maintenance of roads and vehicles.
Mr Burling had been trained in standard army procedures and had been provided with preliminary training on M60 guns. He was not trained in the flying of helicopters or in medical evacuations.
On his base, there were two dam sites and the water was purified through a Patterson Water Purification Unit with motorised pumps. The water was circulated through the units to which chlorine was added and other purifying chemicals. Mr Burling told the Tribunal that this was a full-time job and he did this work for the entire time he was based in Vietnam.
Soon after arriving in Vietnam and within the first seven months, Mr Burling was involved in a motor vehicle accident. He was a passenger in a jeep returning from a field shoot where the Australian troops were using American weapons and the American soldiers were using Australian weaponry. Mr Burling thought that the Sergeants from the Transport Division had organised this exercise. The jeep was being driven by an American friend, "Woody". The jeep was a left-hand drive vehicle and went off the road, ending up in a barbed wire entanglement. Mr Burling described finding himself on the road, because he had been sitting on the right-hand side front passenger seat. Mr Burling stated that he woke up in what he thought was an American MASH Unit, 36EVAC. Mr Burling thought he was unconscious for 35 to 40 minutes, having been told this by others at the time. Mr Burling recalled that the American later drove him back to his Australian Unit in Vung Tau. Mr Burling described feeling sore all over. He thought he had landed on his tailbone and then he had rolled and hit his neck and head. Mr Burling had abrasions on the left-hand side of his face. He recalls pain was present down his lower back and in his neck.
After he was taken back to his Unit, he then attended the 1 Australian Field Hospital driven, he believed, by the Duty Guard. At this hospital, Mr Burling had x-rays taken. He was told that he would be all right and that he should go back to duties the next day. Mr Burling did not know the result of the x-rays. He just recalled being very sore and sorry for himself. Mr Burling believed that he told the Australian Field Hospital staff that he had hurt his neck and back but could not exactly remember what he had said. Mr Burling described having continued pain in the neck and lower back and headaches and stated that he has lived with these for the rest of his military service. Mr Burling stated that in Vietnam he relied on medication such as Panadol and Panadeine Forte for the pain. Mrs Burling sent Panadol in parcels or he would ask for pain-killers from the RAP. Two tablets in the morning would "keep him going".
After the motor vehicle accident, Mr Burling resumed duties the next morning. He remained very sore. His friend, Wally Rosanovich, whom Mr Burling believed had changed his surname to "Herron", had to help Mr Burling with any lifting which included lifting 25 kilogram bags. Wally helped Mr Burling for the next two or three weeks. Not only could Mr Burling not lift material, but he was unable to complete climate checks, reset the water levels and lines out in the dams, or "swing over" the motor in the water purification system. The motor was a 500-600 twin cylinder motor. Mr Burling did not seek any lighter duties because he was concerned he may have been sent back to Australia. Mr Burling stated that from that time, he has never been able to use his neck to freely move so that he could look hard left or right. Mr Burling stated that in fact all through his working life since the Army, he has had to rely on other people's assistance.
Before Mr Burling returned to Australia on "R and R leave", which occurred after he had been in Vietnam for seven months, and after the motor vehicle accident, Mr Burling had the opportunity of taking helicopter rides in an American helicopter. Mr Burling undertook this activity on his day off, mostly on Sundays, but was unauthorised to take these flights. Mr Burling explained that he had expressed an interest in travelling on helicopters and, through contacts with American colleagues, this was arranged. Mr Burling stated that this activity was an adventure for him but he also wanted to be helpful. He did not agree that these flights were "joy flights". His first trip was on a "big Chinook" (Transcript, p58, 22-10-01) on which he had two trips and he also travelled on an "Iroquois". The purpose of the trips for the Americans was to evacuate wounded and dead soldiers. One day there would be an evacuation of the wounded and on another day it would be an evacuation of dead soldiers. The flight party consisted usually of two helicopters as aerial scouts and two Cobras, following the flight of three Iroquois helicopters. Mr Burling told the Tribunal that he had no helicopter experience and also no medical evacuation training. Mr Burling would either join a motor convoy or fly to Saigon and join the helicopter there. On one occasion, he left from the Australian base just near No. 9 Squadron. He took flights over a two and a half month period. After Mr Burling returned from R and R leave, he did not participate in any flights because at that stage he had a family with one child.
The helicopters on which Mr Burling travelled had a pilot, four crew, two medics and himself. There were two guns one each side of the helicopter. He had no experience as a gunner and had only fired a M60 in training. Mr Burling stated that he was on the helicopters because his friends had invited him there. He did not think about nor was he questioned at any stage about taking up space or preventing a wounded soldier from travelling because of his presence. Mr Burling reiterated that he did not volunteer to go on Australian helicopters because the opportunity did not arise, it only arose with the Americans, following his introduction through a colleague, to an American pilot. The pilot told Mr Burling where to meet and he would come and pick him up at 1ALSG. Mr Burling agreed it was his choice and not part of his duties to join these helicopter trips.

On the first occasion, Mr Burling flew to near Lai Gai. He thought that flight consisted of a convoy of four or five helicopters flying together. It was on this occasion that he saw his first dead person. He saw a black American soldier who had the bottom part of his body missing, presumably blown off. Thus, Mr Burling only saw the top half of the dead soldier with no body from the waist down, just his backbone protruding. This was the most traumatic thing Mr Burling had ever seen. The deceased soldier was young and smiling. Mr Burling still remembers the stench of body waste from that one occasion. Mr Burling was physically sick while the other American soldiers just went about their duties. There was comment about his reaction by some American soldiers and there were some jokes made. Mr Burling told the Tribunal that he remembered thinking about this dead man belonging to a family back in America. He told the Tribunal he felt scared about what might happen to him and whether or not there were any of the enemy remaining out there ready to attack him and his colleagues. Mr Burling's reaction was to go back into the helicopter and stay there while the others did their work.
Mr Burling told the Tribunal that he was never prevented from undertaking these helicopter flights. On one occasion, he was overdue back to his base by four days. He was picked by an Australian Sergeant who told Mr Burling that he would be in "big trouble". Mr Burling was not charged for this unauthorised absence. He may have been confined to the base as a result of his unauthorised absence, but he does not really recall.
Mr Burling was questioned as to why he continued to undertake the helicopter flights when the experiences were so unpleasant. Mr Burling stated that he was not sure why he continued. It was partly adventure and he wanted to help. The evacuation group would attend to the wounded, collect bodies and whatever body parts they could. Mr Burling recalls helping some wounded soldiers on one particular occasion by holding ponchos over them or at other times, sitting with them in the helicopter. He would assist laying the dead or wounded on the floor of the helicopter. The group was never very long on the ground.
Mr Burling described another situation in Vietnam when he was taken by his American friend "Woody" to a spot where that friend described how he had shot an American "Negro" soldier. Mr Burling did not see this shooting take place, only where his friend alleged that he had performed this shooting.
Initially when Mr Burling returned to Australia, he thought he would be posted to Singapore. This never happened. He returned to 23 Construction Squadron at Holsworthy where he completed a plant-operating course. He was then transferred to Enoggera, Queensland, hoping to obtain his second stripe. When he was not posted to Singapore as he had hoped, he was discharged from the Army in Queensland as a Sapper. Mr Burling had come back from Vietnam as a Lance Corporal and told the Tribunal he was promised a better rank and posting. He then "lost his stripe for no apparent reason".
About six weeks after he came back from Vietnam, he started having flashbacks to events which had occurred in Vietnam. These flashbacks were not to the extent he had some 30 years later. He had three years left in the army and "depression set in" (Transcript, p77, 22-10-01). At that time he had a young family. He also informed the Tribunal that he found out he had lost two friends from his training days, who were killed in Vietnam, Mr V French and Mr Bob Hughes. His friend Bob was killed in about the seventh or eight month that Mr Burling was in Vietnam and his other friend was killed a year later.
Mr Burling described the death of another friend, Neville, who died in Australia in December 1988. Mr Burling stated that when his friend Neville died this seemed to trigger more dramatic recollections of Vietnam. Mr Burling stated that he was holding his friend's hand when he died and he remembered thinking at that time how lucky Neville was that he had not been to Vietnam.
At that time, Mr Burling told the Tribunal that he and his first wife were having marital difficulties. When his best friend, Neville, died in 1988, Mr Burling then consoled his friend's widow. This led to a relationship that commenced in February 1989 and he told his first wife about the relationship in about May 1989. Mrs Burling at the time asked her husband to cease this relationship. He did try to do this but continued to see his friend's widow. There were a number of separations from his wife and in the end she packed his bags and told him to leave the family home. In 1989, Mr Burling divorced his first wife and eventually remarried his friend's widow. Mr Burling has three children from his first marriage. He has one child 32 years old who he sees twice a year. His second child is aged 30 and the younger child is 26 years old. Mr Burling's first child was born three weeks before he travelled to Vietnam.
Mr Burling told the Tribunal that until Neville died, he was able to cope. Although coping, he described being upset every Anzac Day after he came home and if there was anything on television which depicted war, he could not watch it. Mr Burling stated "I was coping with it but I was hiding it all the time. That's why I think it all just busted out in the end." (Transcript, p79, 22-10-01). Mr Burling agreed that he was depressed following his friend Neville's death, but in relation to Vietnam, he had always had problems with that but he kept it inside and did not talk about it. He tried to control his feelings and in attempting to do this, he believed he became a heavy drinker after returning from Vietnam.
After the Army, Mr Burling tried to return to the New South Wales Railways. He was thirteen days away from being qualified as a trained driver when he had to leave to join the Army. Mr Burling worked for six or seven months at Cooma Railway Station as a porter. He was then offered a job as a plant operator with the New South Wales Department of Main Roads, where he worked for approximately 19 or 20 years. Mr Burling spent seven years at home as a plant operator and then worked for four years on bulldozers and worked on graders for the remainder of that employment.
After working for the Department of Main Roads, he went to Canberra and joined a security firm. This employment did not pay well, so Mr Burling obtained another position with Woden Contractors, a construction firm in Queanbeyan. He worked as a plant operator and grader driver building new estates in Canberra. Mr Burling undertook this work for eighteen months to two years. After that, Mr Burling worked with Pacific Waste Pty Ltd, a garbage disposal industry in Canberra. Mr Burling was a garbage collector on a truck. He then moved to live with his parents for four months and finally obtained employment at Gloucester Shire Council in 1998 as a plant operator. This was his last employment, from which he ceased in November 1999.
In 1998, Mr Burling first saw a psychiatrist, Dr Nichols. He had been having "turns" at work and was advised by the Vietnam Veterans' Association to see Dr Nichols. Mr Burling told the Tribunal that he felt frightened consulting Dr Nichols and did not like having to retell his experiences in Vietnam. Mr Burling also felt frightened because he had thought of killing himself. Mr Burling stated that at that time he could not see the point of going on and he had also felt like this in the 1970s. In fact, Mr Burling then recalled that he had attended counselling at his church in 1972 or 1973 which was at the time when he had left the Army and later joined the Department of Main Roads.
Mr Burling denied that all his problems had started as a result of his marital difficulties with his first wife and his subsequent infidelity. Mr Burling stated that everything had "come down on top of him". He was working seven days a week trying to keep the family together. That is why he went to the Snowy Mountains RSL Sub-Branch who referred him to the Vietnam Veterans Counselling Service in Canberra, to Jane. The counsellor at the Vietnam Veterans Counselling Service thought that he was in such a state that he should be admitted to Calvary Hospital Psychiatric Unit, Canberra, on 29 August 1989. When he was admitted to Calvary Hospital, Mr Burling believed that he was depressed, down on the world in terms of his marriage and all the memories of Vietnam were coming back. Mr Burling again denied that the reason for his depression and emotional turmoil related to the death of his best friend, the subsequent marital relationship difficulties and dealing with the conflict with the two women in his life. Mr Burling stated that these factors were present, but against the background of his memories and feelings about Vietnam with which he had been struggling to cope since his time in Vietnam. Mr Burling could not understand why he was so upset some thirty years after his Vietnam service. He is still unable to watch television when anything is screened about war.
Mr Burling told the Tribunal that he was advised to leave work by his psychiatrist, Dr Nichols. This recommendation came after Mr Burling told Dr Nichols of two incidents which occurred whilst he was working for Gloucester Shire Council. Mr Burling described the situation where he had walked off jobs and tried to alight from a moving vehicle. He also described an incident when he "handed himself in" to Gloucester police in December 1999 because he thought he had hurt his wife. Mr Burling told the Tribunal he had no recollection of what happened after the incident with his wife. Mrs Burling told him that after this incident he "strung himself out" on "Mersyndol" for a day and just laid in bed. Dr Nichols told Mr Burling that he was a danger to himself and others. Another incident described by Mr Burling occurred when he apparently drove a grader through Gloucester without having recollection that he had done this. Mr Burling stated that in the end he left work because he was having blackouts and doing unexplained things.
Mr Burling told the Tribunal that in 1999 before ceasing work, he had to change from driving a manual truck to driving an automatic vehicle because of a condition which he now believes to be Parkinson's Disease, but which at that time was diagnosed as corticobasal degeneration. This condition meant that Mr Burling had a tremor or the "shakes" in his left arm, which he thought was going to be a problem. The Council purchased the truck two or three weeks before he gave up work. Mr Burling told the Tribunal that at that time he also had trouble doing up and undoing buttons, tying his shoe laces and threading a belt through his trousers. There was also an operation in 1998 to remove two spurs on Mr Burling's shoulder. His mother and father helped pay for his shoulder operation. After the operation he was able to lift his arm up but it did not help his tremor. Following the operation, Mr Burling was off work for two weeks.
Mr Burling explained to the Tribunal that he consulted a neurologist in 2001 and was told that he did not have corticobasal degeneration, but Parkinson's Disease. Mr Burling was also told that he had been taking the wrong medication. At the time of the hearing, Mr Burling stated that the condition had not become any better or worse. He noted that the medication for his Parkinson-type condition makes him drowsy. He stated later in evidence that one of the reasons he gave up work was because of this medication making him drowsy. Mr Burling also told the Tribunal that the shaking worsened after the operation, which is somewhat contradictory to his earlier evidence.
Mr Burling told the Tribunal that he believed that it was not safe to drive his vehicle. He believes that he would have had another ten years in the work force if not for his Parkinson's condition. Mr Burling stated that he had good working relationships with his workmates although he was a loner. He does not like crowded rooms, buses or trains. The work he did towards the end of his career allowed him to be on his own most of the time but then he would meet with work colleagues for meal or tea breaks. Mr Burling further stated that he loved his job and had driven plant equipment for in excess of thirty years.
Mr Burling agreed with the reports of Dr Shand in that Dr Shand had reported on 6 January 2001 (Exhibit R2) that Mr Burling had told him that he went on the first helicopter trip as an adventure. He also wanted to help. Mr Burling stated that he went on the second and third trip because he was inquisitive. Mr Burling did not agree that he was bored and feeling adventurous only.
In relation to Dr Dinnen's report of 12 December 2000 (Exhibit A3) in which Dr Dinnen noted that Mr Burling stated that he could not recall if he was horrified when he saw the half body of the American soldier and that he had gone on that trip as an adventure, Mr Burling agreed with the report's content but stated that Dr Dinnen had not questioned him fully.
Currently, Mr Burling's medication is "Zoloft" (100 grams) which he takes each morning. He was prescribed this medication while still at work. His doctor, Dr D Ford, prescribes the medication because Mr Burling does not want to attend a psychiatrist again as it upsets him when he has to recall his memories. Mr Burling thought that he had seen Dr Nichols over six visits in a period of eight months. He has not seen him for a long time since about the year 2000.
Mr Burling told the Tribunal that he has also had chiropractic care for his back and neck for ten years from Mr Weber. When Mr Weber moved location, Mr Burling attended a different chiropractor.
In relation to his medication for his Parkinson's condition, Mr Burling was prescribed "Madopar" for two or three months before he left work and in fact in February 1999. In July 1999 this medication was replaced by "Ducene". Mr Burling reported going to work feeling tired and worn out from a restless night's sleep. Mr Burling spoke to his doctor about this and subsequently his medication was changed. Mr Burling did not say anything to anyone at work about his Parkinson's-type condition and he did not feel that it impacted on his work. By the time Mr Burling retired in November 1999 he stated that he had a significant tremor which he told the Tribunal was affecting his ability to work on the machinery. He was attending Dr Kategar regularly to try and work this problem out. Mr Burling stated that he is currently on medication which also makes him drowsy and he was feeling tired on the day of the hearing.
Day to day, Mr Burling potters around his home. He helps out some elderly neighbours with odd jobs, works in his garden and vegetable patch. Mr Burling tries to help his wife keep the house clean and tidy. He does not like going out. Every second day or so a neighbour will call by and bring two bottles of beer. Mr Burling stated that he does not drink much alcohol these days but he used to. He now cannot afford to drink and believes it is much better for him not to drink. Mr Burling stated he will have a beer to be sociable. Some of his former work colleagues from the Gloucester Shire Council will sometimes drop around to see him.
In terms of alcohol consumption before Vietnam, Mr Burling stated that he did not really drink that much. In Vietnam, he would drink heavily at night when not on duty. Cigarettes and beer were very inexpensive in Vietnam. Following his service in Vietnam, Mr Burling estimated that he was consuming between five to seven beers per day up until 1989 when he was divorced. After his divorce, Mr Burling would drink depending on his finances. His second wife Cheryl, encouraged him to reduce his alcohol consumption and this reduced when he moved to Canberra.
Evidence Of Mrs Cheryl Ann Burling
Mrs Burling provided a statement (Exhibit A8) which she told the Tribunal was true and correct. Mrs Burling has known her husband for 25 years, as her late first husband and Mr Burling used to work together and were very good friends. Her first husband told her that when he and Mr Burling worked in the Snowy Mountains and were in camp, if there were any war movies or references to Vietnam on the television, Mr Burling would walk out of the room.
Mrs Burling told the Tribunal that before her first husband died, she did not know Mr Burling well. Since Mr and Mrs Burling married, Mr Burling has been distant and at times behaves as if he is in another world. There are occasions when Mr Burling does not remember his wife talking to him and this has been the case from the time they started going out. Mrs Burling stated that she has never felt afraid of Mr Burling or threatened.
Mr and Mrs Burling married in 1989. She stated that during their marriage, she has put up with a lot from Mr Burling particularly noting his state of mind. In this regard, Mrs Burling described her husband's behaviour of flying off the handle one minute and then the next minute he behaves as if nothing has happened. Mr Burling does not remember everything and will often make out that Mrs Burling is at fault for not listening to him when he denies having discussed various issues. Mrs Burling stated that her husband is sometimes immature and says things in a joking way which other people may not understand as a joke. He likes doing things well and is naturally a friendly and outgoing person. While Mr Burling has friends, he does not get together with them very often, Mrs Burling stated. Some of his former work mates from Gloucester Shire Council may call around from time to time. Mrs Burling explained that she and Mr Burling do not go out much as her husband does not like crowds.
While Mrs Burling described her husband as getting along with people, he is a loner and does not visit people in their homes. He has one close friend. Mr and Mrs Burling do not go to clubs or hotels, mainly visiting her mother and father quite a great deal. They go on picnics together or attend church meetings.
Mrs Burling described her husband's alcohol consumption recalling that he used to drink a great deal and when working, she estimated that he would consume five to eight cans of beer per day. Now, Mr Burling has "social drinks" which entails him drinking a couple of cans of beer from time to time in social situations. The difficulty in terms of alcohol consumption is that on the pension, Mr Burling is not able to afford a great deal.
In terms of day to day life, Mrs Burling stated that her husband wakes up often and is a restless sleeper. He may wake up in a cold sweat and crying from his dreams. Mr Burling tells her that he sees the body of the black American soldier in his dreams. He also has a dream about a friend who is shot with a bullet through his hat. Mr Burling has not told Mrs Burling about dreams he has concerning children but has talked about children in Vietnam. Mr Burling might go for a few months with no dreams and then something inexplicably triggers him off and he will start dreaming again. On the night after giving evidence to the Tribunal, Mrs Burling stated that her husband had a very restless sleep, the same as usual. Since he has been taking the medication "Zoloft", Mrs Burling believes that her husband is much calmer, sometimes to the point that he does not care.
Before taking "Zoloft", Mr Burling had on a few occasions just walked off his job and had not remembered a thing. On another occasion he thought he had killed Mrs Burling and handed himself into the police. Mrs Burling thought this was in about July or August of 1999. Mr Burling resigned from work in late 1999 because, Mrs Burling believed, everything was building up and getting worse. He was having blackouts, driving a grader through town, stepping out in front of vehicles and trying to jump out of moving vehicles. He has also grabbed the steering wheel of the car when Mrs Burling was driving.

In relation to the tremor in his left limb, Mrs Burling did not consider this was a problem before he gave up work. For the Parkinson's condition, she believed her husband initially took the medication "Sinemet". This medication was then changed to "Madopar" and now he takes "Artane". These medications make him drowsy and Mrs Burling believed that her husband had been on some form of medication for the left arm tremor since about 1998. Mrs Burling stated that the tremor does not affect her husband's driving. He purchased an automatic vehicle so he does not have to change gears. Mrs Burling stated that she is not worried about her husband having blackouts because he has a mobile phone and she can phone him if he is away for any length of time. The last time Mr Burling had a black out was a couple of months prior to the hearing. Mrs Burling has a bad hip so an automatic vehicle is also better for her. Mrs Burling stated that her husband has no difficulty with driving a car because of blackouts. She explained that if he is uptight then Mr Burling does not drive. Mrs Burling will either take over the driving then or Mr Burling will have a cup of tea and calm down and then recommence driving. He cannot drive in traffic and rarely drives alone. Mr Burling will drive to Gloucester but no further. The more stressed Mr Burling becomes the more likely he is to forget things and not remember where he is and why. With the "Zoloft", he has in fact become calmer.
Evidence Of Dr A Dinnen, Consultant Psychiatrist
Dr Dinnen provided a report dated 12 December 2000 (Exhibit A3) and also provided oral evidence to the Tribunal. Dr Dinnen noted Mr Burling's experiences in Vietnam and reported that Mr Burling could not recall being horrified at the time he saw the half body of an American soldier. Dr Dinnen further noted that Mr Burling was later affected by this experience in 1989 but told Dr Dinnen that he had no idea why. Mrs Burling told Dr Dinnen that her husband is cranky and bossy and has "downers". Mr Burling was reported by Dr Dinnen to drink whenever he can and one week before the interview with Dr Dinnen, Mr Burling had consumed eight or nine cans of full strength beer after which he went to sleep.
Dr Dinnen commented that there is a consistency in Mr Burling's report of service experiences and in documentary evidence. There is also consistency in his emotional reaction to discussion of his memories relating to Vietnam. His behaviour at interview with Dr Dinnen indicated that he was very anxious not to talk about matters which had been recorded by Dr Nichols. The amnesic episodes he talked about with Dr Nichols could well fit the description of a dissociative episode such as can occur in cases of severe chronic anxiety and particularly. Dr Dinnen opined, in the sub-variety of chronic anxiety condition known as post traumatic stress disorder. The "fugue" or dissociative memory loss is quite typical of anxiety conditions where the individual is disturbed by painful memories or emotional conflicts. Dr Dinnen opined that Mr Burling's account of his experiences indicated that objectively he saw some horrifying sights. Furthermore, Dr Dinnen opined that participation in traumatic events is well recognised as leading to psychiatric consequences at some time removed from the actual event/s.
Dr Dinnen concluded in his report that the combination of information provided by Mr Burling and from reports by psychiatrists Dr Nichols and Dr M Richardson and the Discharge Summary from Calvary Hospital is consistent and allowed Dr Dinnen to make the diagnosis of chronic post traumatic stress disorder consequent to the service in Vietnam. Dr Dinnen also concluded that Mr Burling's condition satisfies the relevant Statement of Principles concerning Post Traumatic Stress Disorder. Dr Dinnen thought it unlikely that there would be significant improvement in Mr Burling's condition and that he required ongoing psychiatric care. Dr Dinnen did not undertake an assessment under the "Guide to the Assessment of the Rates of Veterans' Pensions" ("the Guide") but is content to rely on Dr Nichols' assessment undertaken in October 1999 as representing a reasonable and accurate rating of Mr Burling's chronic psychiatric disability.
At hearing, Dr Dinnen stated to the Tribunal that unlike Dr Shand, he did not find Mr Burling to be indulging in hyperbole, dramatic exaggeration or fabrication. Dr Dinnen was of the view that Mr Burling had experienced a traumatic event in that he had reported to him and other psychiatrists that he had witnessed mutilated bodies, heard about mutilated bodies and that he had seen a number of disturbing sights. He told Dr Dinnen of seeing a "Negro" boy who had been killed. From his clinical assessment, Dr Dinnen was satisfied that Mr Burling met the criteria as referred to in paragraph 2(b)(A)(i) and (ii) of the relevant Statement of Principles in relation to being exposed to a traumatic event and the person's response involved intense fear, helplessness or horror. Dr Dinnen opined that Mr Burling's reaction to the sight of the half body of the American soldier involving Mr Burling being physically ill satisfied a response that showed intense horror. Dr Dinnen stated that a patient does not have to actually say that he or she experienced intense fear, helplessness or horror. The way people express these feelings can vary considerably. Witnessing an event or being confronted with an event experienced by others falls within the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") diagnostic criteria for post traumatic stress disorder, Dr Dinnen noted. Such events are not limited to violent personal assault, serious accident or injury of oneself, a family member or close friend. Dr Dinnen stated that a witnessed event does not actually have to be something that a person has seen as it occurs in order to satisfy the witnessing definition.
In relation to paragraph 2(b)(B) of the diagnostic criteria within the Statement of Principles, Dr Dinnen opined that from his interview with Mr Burling and from the documentation contained within the T Documents, he believes that Mr Burling satisfies the requirement of having recurrent and intrusive distressing recollections of the event including images, thoughts or perceptions [2(b)(B)(i)]. Dr Dinnen noted that Mr Burling complained of flashbacks to Vietnam and this was recorded in the Calvary Hospital notes in 1989. Dr Dinnen further opined that Mr Burling met criteria 2(b)(B)(iii) in that he acted or felt as if the traumatic event was occurring in terms of reliving his experiences or having dissociative flashbacks including when he was awakened or as a result of intoxication. Dr Dinnen further opined that in relation to the criteria contained within paragraph 2(b)(B)(iv) that Mr Burling experienced psychological distress and exposure to internal or external cues that symbolised the traumatic event. In this regard, Mr Burling could not watch any movies or television which dealt generally with war or specifically with the Vietnam War. Mr Burling became obviously emotionally distressed when he talked about the incident with the deceased American soldier and this was also noted by Dr Nichols.
In relation to diagnostic criteria contained in paragraph 2(b)(C) of the Statement of Principles, Dr Dinnen opined that Mr Burling avoids anything to do with the Vietnam War or his service. Dr Dinnen opined that specifically Mr Burling meets criteria 2(b)(C)(iii) in that he had inability to recall an important aspect of the trauma. There was a question of memory loss and while Dr Dinnen could not say for certain that the episodes of memory loss related directly to the events in Vietnam they certainly had a dissociative quality to them and there are gaps of memory. Mr Burling also satisfies paragraph 2(b)(C)(i) in that he avoided thoughts, feelings or conversations associated with the trauma. He also avoided activities such as Anzac Day marches because of their arousing recollections which he wished to avoid [2(b)(C)(ii)]. From Dr Dinnen's examination of Mr Burling, he also believed that Mr Burling has a markedly diminished interest or participation in significant activities [2(b)(C)(iv)]. Mr Burling also has a restricted range of affect, Dr Dinnen opined, thus satisfying criteria 2(b)(C)(vi). In relation to criteria in paragraph 2(b)(D), Dr Dinnen opined that Mr Burling suffers from irritability and outbursts of anger [2(b)(D)(ii)] and has difficulty concentrating [2(b)(D)(iii)].
Dr Dinnen stated that people with post traumatic stress disorder can have the symptoms appear more noticeable, brought on by another traumatic event. It is not uncommon that the death of a friend or a break-up of a marriage can cause psychiatric illness. In Mr Burling's case, Dr Dinnen opined that the signal and the important set of symptoms that alerted him to diagnosis of post traumatic stress disorder was Mr Burling's preoccupation with the events in Vietnam for example in his hospitalisation at Calvary Hospital twelve years ago. At that time there were marriage problems and yet the admitting doctor recorded in the notes that Mr Burling was complaining of mild flashbacks from the Vietnam War. Mr Burling's presentation to Dr Dinnen throughout his interview indicated a preoccupation with service experiences pervasive through all aspects of the interview. Dr Dinnen agreed with a passage from a Department of Veterans' Affairs publication from the National Centre for War Related Post Traumatic Stress Disorder which stated that symptoms of post traumatic stress disorder can vary in their intensity and this fluctuation can occur at any time, likely to be triggered by anniversaries or other reminders of the trauma and stressful life events such as family arguments, problems at work or the death of a friend or relative. Dr Dinnen opined that this is in all likelihood what happened to Mr Burling some twelve years previously.
Dr Dinnen was asked about Mr Burling's evidence to him that he could not recall if he was horrified when he saw the half body of the American soldier. Dr Dinnen noted that it is his view that Mr Burling's reaction to the sight of that first dead body involved fear and helplessness and perhaps not horror, though Dr Dinnen's view was that what Mr Burling did see was an objectively horrifying sight. It was not unusual Dr Dinnen reported, for a veteran to be unable to recall how they reacted, using the example of prisoners of war in Changi Prison and elsewhere, who, despite being interred in the most objectively horrifying situations and experiencing abhorrent events, could not recall how they felt about that.
The Tribunal observed to Dr Dinnen that Mr Burling became upset at the hearing when talking about a number of matters but not the objectively horrifying events he experienced. Dr Dinnen stated this is quite common and an example of Mr Burling dissociating-"switching off". That is how he copes, Dr Dinnen stated. The price he pays for this may be seen later-in a day, that night, tomorrow or a week later.
Dr Dinnen was also asked how it could be that Mr Burling continued to take the helicopter flights despite the fact that they distressed him. Dr Dinnen understood that Mr Burling did not have to take the flights and that he had stated that part of his going on them related to him having an adventure. Dr Dinnen stated that it is common clinically that people will place themselves in traumatic situations when commonsense would dictate that it would be better not to be there.
Dr Dinnen stated that there was a great deal of difference between witnessing horrific or stressful events on the television or at the movies and being in an actual situation of war and seeing or experiencing horrific sights. One has to consider the specific case and the specific reaction of the individual, in this case, Mr Burling.
Dr Dinnen acknowledged that his opinion was based on not just Mr Burling's information but other documentary evidence which may not have been accurate. There was enough information in the other documents to indicate to Dr Dinnen that Mr Burling witnessed a traumatic event(s). Mr Burling was clearly upset. What Dr Dinnen does in reaching an opinion is to consider the totality of the information including the individuals' responses. While Dr Dinnen did not take Mr Burling through an exhaustive account of matters described in the documents, he satisfied himself that Mr Burling had been disturbed for some time and his psychiatric disturbance was consistent with the diagnosis of post traumatic stress disorder.
In reaching a diagnosis of post traumatic stress disorder, Dr Dinnen considered a whole range of psychiatric diagnoses including whether or not there was any organic brain dysfunction or he had a personality disorder as could have been concluded from the Calvary Hospital's Discharge Summary and Mrs Burling's description of her husband. Dr Dinnen concluded that Mr Burling did not have a personality disorder, because on the totality of the evidence, Mr Burling has had a stable relationship for 11 years and a relatively stable work record up to a certain time. His family background was unremarkable. Mr Burling does not meet the DSM-IV diagnostic criteria for personality disorder.
Dr Dinnen noted that people with a variety of personality characteristics suffer from post traumatic stress disorder. The fact that an adult behaved in an immature fashion or like a teenager, as has been ascribed to Mr Burling, was irrelevant in this case to the diagnosis of post traumatic stress disorder.
Under cross-examination, Dr Dinnen stated that in relation to Mr Burling's blackout or dissociative states, he would defer to the opinion of Neurologist, Dr P Coffey, that these symptoms could be related to migraine. Dr Dinnen noted that in psychiatry, the most common cause of amnesic episodes is alcohol abuse or dissociative phenomena. Dr Dinnen did not believe that the events which led to Mr Burling's admission to Calvary Hospital could, however, be related to migraine headaches. Dr Dinnen maintained his opinion that the event of Mr Burling attacking his wife was a dissociative episode, particularly having had the opportunity of considering the Calvary Hospital notes. Dr Dinnen believes that prior to his admission to Calvary Hospital, Mr Burling had acted in a manner which was irrational, not actually violent but in a way which could have caused his wife some fear.
Dr Dinnen stated that he has a different view of the history of Mr Burling's emotional disturbances and the relevance of his Vietnam service than that opined by Dr Shand. Dr Dinnen stated that the events in Vietnam are highly relevant. While Dr Dinnen could not obviously deny the possibility that the presentation to him, other psychiatrists and to Calvary Hospital staff were the results of an hysterical type personality, Dr Dinnen opined this was possible only at a very low probability.
Evidence Of Dr J W Shand, Psychiatrist
Dr Shand provided three reports dated 6 January 2001 (Exhibit R2); 9 February 2001 (Exhibit R3); and 15 October 2001 (Exhibit R4). In his first report, Dr Shand had considered a number of reports from Dr J Nichols, Psychiatrist, Dr M Richardson, Psychiatrist, Dr G K Herkes, Neurologist and Dr D Cordato, Neurologist. Dr Shand commented that the information contained within these reports particularly from the Calvary Hospital clinical notes, raises serious doubts about Mr Burling's history, particularly the events leading up to his admission to Calvary Hospital. That history did not support a diagnosis of post traumatic stress disorder nor did it implicate operational service in Vietnam. The documentary evidence supports a combination of their current personal events and personality disorder. The information contained in the reports also did not in Dr Shand's opinion satisfy minimum factors necessary for diagnosis of post traumatic stress disorder. Because Dr Shand considered Mr Burling was an unreliable historian, he thought that he was no longer able to diagnose post traumatic stress disorder.
In his second report, Dr Shand stated that he had no reason to change his mind having read Dr Dinnen's report. Dr Shand stated that Mr Burling had a tendency to "indulge in hyperbole / dramatic exaggeration or fabrication" (Exhibit R3).
In his final report, Dr Shand noted that the information and material in the Calvary Hospital clinical notes led him to diagnose a condition of personality disorder of the histrionic type.
At the hearing, Dr Shand noted that he does not treat veterans but has provided a number of medical-legal reports for veterans. Dr Shand interviewed Mr Burling for approximately two hours. Dr Shand explained that when making a psychiatric diagnosis he considers any documents provided and then takes a brief history from the patient about various issues including employment. Dr Shand then asks when the patient was last in normal health and what he or she first complained of when becoming sick. Mr Burling provided a history of nervous disorder then explained about a subsequent relationship with another woman following which his first marriage failed. Dr Shand noted that Mr Burling referred to an incident with his first wife out of which contact with the police resulted. Mr Burling discussed problems at work and symptoms about things he witnessed in Vietnam. In this regard, Mr Burling told Dr Shand of his being involved in recovery of dead and wounded men. Dr Shand was told that Mr Burling had seen American and South Vietnamese soldiers' bodies "blown to bits". Mr Burling particularly referred to a young black American soldier of whom there was only the top half left of his body. Mr Burling also spoke to Dr Shand of having lost two or three good friends in Vietnam.
In relation to a diagnosis of post traumatic stress disorder, Dr Shand stated that he had eliminated the diagnosis of that condition. While Mr Burling had described his major stressor as exposure to bodies both dead and wounded, he did not describe to Dr Shand that he reacted with the emotions of severe or intense fear, helplessness or horror. Mr Burling told Dr Shand that the reasons he took the helicopter trip to assist in the retrieval of the wounded or dead related to, in the first instance, that trip being an adventure. On the next two occasions, Mr Burling went on the helicopter trips because he was inquisitive. Mr Burling described himself to Dr Shand as an adventurous person. In terms of the stressor required by the relevant Statement of Principles, Dr Shand noted that while the Statement of Principles does not require that Mr Burling be in active battle to experience a stressor, Dr Shand said it would be more potent stressor if Mr Burling had been in battle. Dr Shand did agree that Mr Burling saw atrocities, and that seeing the American soldier's half body post combat could satisfy the definition of experiencing a severe stressor. In Dr Shand's opinion, Mr Burling did not react in the manner one would expect if exposed to a severe stressor. Furthermore, Mr Burling continued to travel on the helicopters, despite experiencing horrific sights.
Dr Shand was asked to comment on Dr Dinnen's opinion that a veteran may have experienced an horrific situation yet then repeats the actions which placed the person in that horrific situation. Dr Shand noted that the history obtained included references to Mr Burling visiting local Vietnamese hospitals. This caused Dr Shand to consider the possibility that Mr Burling may have been taking the helicopter flights not just for adventure but because he wanted to help wounded soldiers or with the retrieval of the dead. Dr Shand was informed of evidence that Mr Burling had joined the Army to go to Vietnam because he wanted to follow in the traditions of his family. Dr Shand opined that this showed a dutiful, conscientious attitude. In such circumstances, Dr Shand opined that taking additional helicopter flights may well be explained on the basis of Mr Burling's motivation to help and to follow family tradition. Despite all the new evidence to Dr Shand, he said that it was still difficult for him to discard the spontaneous description Mr Burling gave him of the way he reacted to his experiences with the American dead and wounded. If the stressor had been severe for Mr Burling, Dr Shand would have expected reactions which were far more negative. Nevertheless, Dr Shand stated that he could not discount other possible conclusions noting that there may have been more going on in Mr Burling's mind than could be confidently observed. There could have been avoidance reactions operating, yet remaining unexpressed by Mr Burling.

Considering the other diagnostic criteria contained within the Statement of Principles, Dr Shand opined that avoidance was not operating because Mr Burling continued to voluntarily repeat the expeditions. Furthermore, when Mr Burling first returned to Australia, he took part in reunions and meetings with Vietnam veterans. This behaviour suggested to Dr Shand that avoidance was not operating at that time. Later on, in 1989, Mr Burling ceased to attend Anzac Day marches and reunions and that indicated a change in his behaviour from non-avoidance to some avoidance after 1989. Prior to 1989, Dr Shand considered that the two main diagnostic criteria for post traumatic stress disorder were not satisfied. The main symptom that Dr Shand could identify and described by Mr Burling as starting in 1989, was depression. Dr Shand opined that Mr Burling did not have the symptoms of post traumatic stress disorder.
From Dr Shand's understanding of the history and other information given to him, the 1989 depressive illness arose from Mr Burling's personal and private life involving his first wife and a relationship with another woman who subsequently became his second wife. While there was information in various reports concerning Mr Burling's thoughts about Vietnam, Dr Shand did not consider these to be intrusive thoughts. Furthermore, Dr Shand did not believe that Mr Burling was suffering from reliving experiences. While Mr Burling mentioned flashbacks, he was not able to clarify what he meant by that. Dr Shand concluded that many years later after service, Mr Burling recalled traumatic experiences during his Vietnam service but these were more accurately described as thoughts of the experiences related to his depressed mood which was the major presenting symptom.
Dr Shand was asked about Dr Dinnen's opinion that the response of intense fear or helplessness or horror does not have to be an immediate response to a stressor, it could be a response a few years or even ten years later. Dr Shand opined that it was mildly inconsistent for there to be apparently no immediate reaction to the exposure to the events, but then twenty years later there was a reaction. Dr Shand stated that Mr Burling made no mention of intense fear or feelings of helplessness and horror related to the events he experienced in Vietnam.
Dr Shand reiterated his view of the Calvary Hospital clinical notes as indicating to him that there was not serious attention paid to Mr Burling's references to Vietnam service and the mention of potential stressors. In relation to Dr Dinnen's view that the dissociation referred to in the Calvary notes could in fact be connected to traumatic experiences in Vietnam, Dr Shand questioned whether in fact these were dissociative episodes. If they were dissociative, they would need to be connected with the particular traumatic stressful experience at the time. The reason for that is that dissociation is a defence against anxiety and it leads to amnesia of the experience. Unless the dissociative episodes could be shown to be related to specific traumatic experiences, Dr Shand did not think it would be accurate to accept references to dissociative episodes.
Dr Shand later opined that while Mr Burling may have had some symptoms of post traumatic stress disorder, he does not suffer from that condition. While Dr Shand had initially considered in his first report that Mr Burling did have post traumatic stress disorder, he had reassessed the case in light of his own and other information which subsequently came to light. Dr Shand stated that Mr Burling does have some of the symptoms of post traumatic stress disorder but not the stressors. By his third report, Dr Shand agreed that he had relied on the Board's decision. Dr Shand opined that Mr Burling did not meet all the DSM IV criteria nor the Statement of Principles requirements. In this regard, while Mr Burling may meet the objective test for a stressor, he did not meet the subjective requirements in terms of how he reacted. Dr Shand later conceded Mr Burling's reaction of vomiting after he saw the half body might in some way satisfy the subjective reaction of intense fear or horror as part of a shock reaction. Furthermore, Mr Burling returning to sit in the aircraft after experiencing this sight added a "modicum of avoidance", Dr Shand stated. Being concerned that there may be some of the enemy still lurking around who might attack also indicated to Dr Shand that Mr Burling may have been frightened.
Dr Shand stated that theoretically, other circumstances such as personal or family problems can destabilise a person who has previously been able to push away the memories of a trauma or stressor. Accordingly, referring to avoidance symptoms, Dr Shand agreed that avoiding Anzac Day marches qualifies as feelings of detachment or estrangement and having a sense of a foreshortened future, of which Mr Burling had provided evidence. Dr Shand stated that to his mind, there was no evidence that Mr Burling was detached or estranged or unable to have loving feelings. Had Mr Burling felt like that, then he would not have been able to attend Anzac Day marches and reunions when he first returned to Australia from Vietnam. Dr Shand acknowledged however that a veteran may attend reunions after the war and still be distressed.
Considering the issue of some violence between Mr Burling and his first wife, Dr Shand noted that to his knowledge, there was no act of anything more violent than Mr Burling dragging his first wife to the back door. Dr Shand did not necessarily think that there was any dissociation operating at that time related to Vietnam. So concluding, Dr Shand acknowledged that Mr Burling had been exposed to the results of a great deal of violence in Vietnam although he had not actually seen it taking place. Dr Shand opined that Mr Burling does have a problem with his aggressive drive and it is likely to be a long-standing issue. Dr Shand noted Mr Burling's obsessive compulsive behaviour of turning off electrical switches and burglar alarms. Such behaviour provided a link between the allegations of serious violence towards both wives and his fear of injuring people and becoming out of control elsewhere, including in his home. These fears and behaviours stemmed, in Dr Shand's view, from Mr Burling's childhood and illustrated the type of personality disorder from which Mr Burling suffers. Dr Shand later acknowledged that Mr Burling's fears that he might injure his second wife or that the children might be injured by turning electrical switches on could be part of the symptomatology of a post traumatic stress disorder. Dr Shand opined that Mr Burling's experiences in Vietnam could have increased his tendency to be an obsessive-compulsive with phobic anxiety about switches being left on.
The precise entries in the Calvary Hospital Discharge Summary of 13 September 1989 (T9) and clinical notes were pointed out to Dr Shand, which record that according to Mrs Burling, Mr Burling was going to "chop her in half with an axe" (Exhibit R8, p7). Dr Shand later stated that although this may have been stated by Mrs Burling and this appeared to be a verbally very violent act, it did not eventuate into an actual violent physical act. Dr Shand also acknowledged that it was a violent act to be dragged by the hair to the back door as was also recorded in the Calvary Hospital documents. Under cross examination, Dr Shand also agreed that Mr Burling was not discharged from Calvary Hospital with no treatment but was to be followed up by his local medical officer and also referred for further counselling to the Vietnam Veterans Counselling Service, at which he had been counselled for some time prior to his admission to Calvary Hospital. Dr Shand agreed that it would be reasonable to conclude from the clinical notes taken of the long interview between the clinician and Mrs Burling, that she had confirmed the threat to kill her. Dr Shand also conceded that in relation to the incident in 1999 with Mr Burling's second wife, if the police had decided that Mr Burling was suffering from a mental illness, they may have decided not to lay criminal charges against him.
Dr Shand agreed that, theoretically, the death of Mr Burling's closest friend coupled with the breakdown of his first marriage could well have brought on or triggered the symptoms of an already existing post traumatic stress disorder. This would be entirely possible if the death reminded Mr Burling of the deaths of his friends in Vietnam or the American soldier.
Dr Shand stated that it is possible that people with post traumatic stress disorder may use alcohol to self-medicate, but if this is a feature, the person would need to drink increasingly more alcohol because of an increased tolerance to alcohol which develops over time.
People with post traumatic stress disorder have difficulty functioning in normal relationships, Dr Shand stated. Dr Shand agreed with Mr Dawson's proposition that traumatised people sometimes become sexually demanding even though they have difficulties with emotional intimacy. Sometimes that sexual behaviour could go outside the marriage, especially in someone who was of an impulsive disposition and found it hard to tolerate frustration. That could simply be a personality trait that a person had before the impact of a post traumatic stress disorder rather than a personality disorder, Dr Shand opined.
Dr Shand was asked about the impact of Mr Burling taking one hundred milligrams per day of the medication "Zoloft". Dr Shand concluded that he would have to ascertain and compare how Mr Burling presented to others before he could give an opinion as to whether or not the "Zoloft" may have made Mr Burling so calm as to depress or suppress his feelings.
Dr Shand noted the history Dr Dinnen had taken of Mr Burling not being able to recall his reaction to seeing the dead half body of the American soldier. Dr Shand noted that this was consistent with the history Dr Shand had obtained. Dr Dinnen's evidence was that, although the veteran had said he was not affected by the exposure to the body of the American soldier, Dr Dinnen could see that Mr Burling was exhibiting clinical symptoms in relation to fear and helplessness. Dr Shand agreed that Dr Dinnen could have seen the veteran exhibiting such symptoms in a clinical setting and that this could be a normal observation for clinicians with the expertise such as that held by himself and Dr Dinnen. Dr Shand concluded, however, that Mr Burling continuing to go on helicopter flights was inconsistent with a response of intense fear, helplessness or horror, because that action was the opposite of what the descriptive words mean.
Other Medical Evidence
Dr P E Giblin, Orthopaedic Surgeon
Dr Giblin provided two medical reports dated 16 November 2000 (Exhibit A6) and a supplementary report dated 5 December 2000 (Exhibit A7). Dr Giblin opined that Mr Burling has the provisional diagnosis of a soft tissue injury to his neck as a result of a road accident in 1969 in Vietnam. He opined that it would be a reasonable supposition, on the balance of probabilities as distinct from possibilities, that the trauma sustained to Mr Burling's head caused him to lose consciousness and would have also been transmitted to his cervical spine, sufficient to cause material damage. In these circumstance, Dr Giblin opined that it would be reasonable to postulate that the material damage was the basis of Mr Burling's ongoing symptoms requiring chiropractic treatment and that this damage would have accelerated post traumatic degenerative changes, consistent with the symptoms and disabilities of which he now complains.
In terms of the Statement of Principles concerning Cervical Spondylosis, Dr Giblin opined that Mr Burling would satisfy Factor 5(h) which requires that a person suffer a trauma to the cervical spine before the clinical onset of cervical spondylosis and Mr Burling may also satisfy Factor 5(s) which refers to suffering a trauma to the cervical spine before the clinical worsening of that condition. Dr Giblin concluded that the long term prognosis for Mr Burling is guarded and whether or not he required surgical intervention would depend on a series of x-rays including CT scans.
In his supplementary report of 5 December 2000, Dr Giblin opined that the correct assessment utilising Table 3.3.1 of the Guide would be a ten per cent impairment (Exhibit A7).
Dr J G Bodel, Orthopaedic Surgeon
Dr Bodel provided a report dated 8 January 2001 (Exhibit R1). Dr Bodel noted that clinically Mr Burling has cervical spondylosis confirmed on a CT scan dated 1 September 1998.
On examination, Dr Bodel noted that Mr Burling is 54 years old and was uncomfortable throughout the interview with speech very slurred and dribbling from his mouth. He was found by Dr Bodel to have a reduced range of neck flexion, extension and rotation about 80 per cent of the expected range, and there was also crepitus on rotational movement. Mr Burling also had a reduced range of shoulder abduction and rotation mostly on the left side.
Dr Bodel noted that Mr Burling had a fall from a jeep in Vietnam in 1967 and suffered a soft tissue injury to the head and neck. Mr Burling was noted to have not been away from his normal work duties at the time. Dr Bodel reported that Mr Burling's neck condition slowly deteriorated and he also developed significant psychological disturbances which were outside Dr Bodel's field of expertise. From a physical point of view, Dr Bodel noted that Mr Burling has ongoing mechanical neck ache and left shoulder supraspinatus tendinitis.
Dr Bodel opined that while it was difficult to be absolutely certain of the severity of the neck injury, he believed it to be mild to moderate. Clinically, Mr Burling has cervical spondylosis. In relation to the Statement of Principles for Cervical Spondylosis, Dr Bodel opined that Mr Burling satisfies factor 5(g) as he suffered a trauma to the cervical spine within the twenty-five years immediate before the clinical onset of cervical spondylosis. [It would appear that Dr Bodel was referring to the trauma factor of the Statement of Principles which is factor 5(h) and he has incorrectly ascribed the trauma factor to factor 5(g)]. Referring to the definition of "trauma to the cervical spine", Dr Bodel opined that Mr Burling did suffer a discreet injury which led to acute symptoms and signs of pain and tenderness and altered mobility. While it was difficult for Dr Bodel to say accurately whether the symptoms and signs lasted for a period of at least ten days(sic) [the Statement of Principles refers to a period of seven days], Dr Bodel strongly suspected that it did, particularly from the point of view that Mr Burling had continued trouble with his neck when attempting to start the motor at the water purification plant.
In assessing Mr Burling's impairment rating under the Guide, Dr Bodel assigned a rating of five points from Table 3.3.1 and at the age of 54, this was not adjusted because of age. Dr Bodel further opined that from a purely orthopaedic point of view, Mr Burling is fit for light to moderate manual tasks but he should avoid prolonged head down posture and heavy lifting should be limited to 15 kilograms to waist level only. Mr Burling could stand or sit in an unrestricted manner, Dr Bodel opined.
Dr J J Nichols, Consultant Psychiatrist
Dr Nichols provided a report on 31 March 1999 to Mr Burling's General Practitioner, Dr J Ferris (T10). Additional reports, both dated 14 October 1999 were provided to the Department of Veterans' Affairs by Dr Bodel (T19, p58; T22, p72). In his first report, Dr Nichols noted that Mr Burling has developed a series of symptoms which caused him considerable distress and which interfered radically with his ability to maintain his occupation because of difficulty in concentration. Dr Nichols referred to Mr Burling's experiences in travelling on helicopters, the result of which brought him into contact with deceased or wounded soldiers. Dr Nichols noted that the traumatic events experienced by Mr Burling in Vietnam are persistently re-experienced by recurrent distressing recollections of the events including images, thoughts or perceptions and recurrent distressing dreams of the event which produced a disturbed sleep pattern. Mr Burling was also experiencing dissociative flashbacks which had interfered with his ability to concentrate. Such memories are triggered by helicopter noises and people of "Asiatic countenance", for example. Furthermore, Dr Nichols noted that Mr Burling avoids thoughts, feelings or conversations associated with the trauma particularly that of seeing his first dead body. Mr Burling takes efforts to avoid activities, places or people which arouse recollections of that trauma.
Dr Nichols noted that Mr Burling exhibited a markedly diminished interest for participation in significant activity. Mr Burling was observed to have a restricted range of effect and difficulty in expressing emotive feelings in depth. This has interfered with Mr Burling's interpersonal relationships which, Dr Nichols opined, has had a causal connection to the breakdown of his first marriage and his earlier admissions to hospital. Mr Burling also has a sense of a foreshortened future. Dr Nichols noted persistent symptoms of increased arousal as indicated by Mr Burling's difficulty falling or staying asleep, irritability or outbursts of anger, amnesic episodes, including a recent incident with his tractor, difficulty in concentrating, hyper-vigilance and an exaggerated startle response.
Dr Nichols opined that there was an increase in the consumption of alcohol as a result of Mr Burling's service. Mr Burling was considered to be a moderate drinker in the order of five to six ten ounce glasses of beer per night, increasing during his period of service to ten to fifteen ounce glasses of beer together with unlimited quantities of spirits. Dr Nichols noted that at that time, Mr Burling was intoxicated from four to seven nights per week. This consumption reduced after his return to Australia to five or six ten ounce glasses of beer per night. Dr Nichols opined that the criteria for a diagnosis of alcoholic addiction existed, though there had been improvements since his return to Australia.
Dr Nichols noted a tremor in Mr Burling's left hand which was in obvious evidence during their first interview in March 1999.
Dr Nichols concluded that the criteria existed for a diagnosis of post traumatic stress disorder as defined in DSM IV and that the condition is chronic and irreversible. A smoking addiction and alcohol addiction are secondary to post traumatic stress disorder. Dr Nichols noted that Mr Burling was given strong advice to consider cessation of work because of the dangers he now faced to himself and to others.
Dr Nichols provided a later assessment under Chapter 4 of the Guide arriving at an impairment rating of 46 points. On 14 October 1999, Dr Nichols informed the Department of Veterans' Affairs that Mr Burling had ceased work because of the intensification of his post traumatic stress disorder symptomatology and that he was at that time totally and permanently incapacitated for all forms of remuneration and was unfit for rehabilitation (T19, p58).
Dr M Richardson, Consultant Psychiatrist
Dr Richardson provided a report to the Department of Veterans' Affairs dated 20 April 1999 (T14). Dr Richardson noted that Mr Burling had served in Vietnam between 1969 and 1970 and that he was never in the front line nor came under attack. He saw no fighting and suffered no significant injuries or illnesses. Dr Richardson recorded that Mr Burling saw a variety of disturbing sights while in Vietnam including seeing a young American "Negro" soldier whose lower body had been completely blown off. He reported that Mr Burling had seen an American soldier shoot one of his own men, though in evidence to the Tribunal, it is noted that Mr Burling stated that he did not see the actual shooting of this soldier. Dr Richardson noted frequent memories of the friends Mr Burling lost in Vietnam, but he did not suffer undue sleeplessness, nightmares or intrusive recollections.

Ms Breuer noted the Explanatory Notes to the Smendment of the Statement of Principles concerning Cervical Spondylosis in that there must be evidence of severe injury or trauma. Considering the clinical records of the time, Mr Burling was x-rayed in his lower spine. It is possible, Ms Breuer submitted, that Mr Burling at that time only complained about back pain and that was because he fell on his tailbone. The fact that Mr Burling had problems lifting and working later on, could well have been due to his back pain and not his neck. Even if the Tribunal found that Mr Burling's circumstances raised a reasonable hypothesis as required in step 3 of the "Deledio" process, Ms Breuer further submitted that Mr Burling did not meet step 4 in that there was no facts to support the raised reasonable hypothesis.
In relation to the claim for post traumatic stress disorder, Ms Breuer accepted that Mr Burling probably did go on a number of helicopter flights with the Americans but the Respondent does not believe that he was involved with medical evacuations. Ms Breuer stated that it was illogical for Americans to take "a tourist" into a hot spot. Mr Burling had agreed that he had no training as a pilot, as a gunner and also no training in being able to provide medical aid assistance for the purpose of evacuations. If the Tribunal were to accept Mr Burling's history, then the Tribunal would be accepting that the Americans allowed an untrained tourist on board the helicopter to participate in medical evacuations in hot spots. Ms Breuer noted that Mr Burling would be in the way, for example, while he was being physically ill. He would not have known what was going on and anything could have happened. In those circumstances, the Americans would have found Mr Burling a liability and would have had to look after him. This simply did not seem logical to Ms Breuer. Ms Breuer referred to the research report (Exhibit R7) which noted that helicopters would have a limited load capacity to take on an extra person. If the Tribunal accepted that the Americans allowed Mr Burling to participate in medical evacuations, Ms Breuer submitted, this would also mean the acceptance of the Americans allowing Mr Burling to take the place of a wounded officer. Ms Breuer did not wish to comment on the evidence that Mr Burling gave that his first flight, when he saw the dead half body of the American soldier, was on a Chinook helicopter which is capable of taking a large numbers of troops. Ms Breuer noted that on Mr Burling's evidence, the Respondent did not have anything to submit to the contrary but noted that on subsequent occasions he travelled on an Iroquois.
An alternative submission put to the Tribunal is that if the Tribunal did accept that Mr Burling undertook such flights and was involved in medical evacuations, then these medical evacuations were not attributable to operational service. Ms Breuer submitted that these flights arose in the context of Mr Burling being in Vietnam, but they did not arise out of or were attributable to his operational service. In this regard, Ms Breuer submitted that Mr Burling made a personal choice, whether it was adventure or whether because he wanted to help, nevertheless, it was a personal choice and therefore his participation in the helicopter flights did not arise in the course of operational service. Ms Breuer pointed the Tribunal to a number of cases as authority for her proposition namely: Wedderspoon v Minister of Pensions (supra); Holthouse v Repatriation Commission (supra); Re Penhall and Repatriation Commission (supra). In Wedderspoon v Minister of Pensions (supra), Lord Denning noted that the case law showed that when the cause of death or disablement lies in a man's own personal situation, then it is not attributable to war service. In Holthouse v Repatriation Commission (supra), Davies J held that the appellant moved to HMAS Merimbula as a requirement of service. During the course of moving, he injured himself when relocating a pot plant. This injury was considered by Davies J to have occurred in Mr Holthouse's personal life and therefore not attributable to service. Ms Breuer submitted that in Mr Burling's circumstances, while Vietnam provided the context for the helicopter flight, it was Mr Burling's personal choice to go on those flights. In Re Penhall and Repatriation Commission (supra), that Tribunal noted the expressions "arising out of" and "attributable to service" require a greater degree of connection with service than simply in the course of service. Ms Breuer concluded the events relied upon by Mr Burling occurred during a period when Mr Burling was not on duty. As this was the case and there was no authorisation to undertake the trips, Mr Burling took the flights in his own personal capacity and any injury that might arise was not connected to service.
As a third alternative, Ms Breuer submitted that if the Tribunal accepted that Mr Burling took the helicopter flights and was involved in medical evacuation and that this arose out of and was attributable to his operational service, then the Respondent submitted that Mr Burling does not make the diagnostic criteria for post traumatic stress disorder on the balance of probabilities as is required arising out of the Full Federal Court decision in Repatriation Commission v Budworth (2001) 66 ALD 285. Ms Breuer submitted that if the events had occurred then the Applicant would meet the diagnostic criteria in the Statement of Principles at paragraph 2(b)(A)(i). There was difficulty however in relation to Mr Burling's subjective response as required by 2(b)(A)(ii) requiring him to have a response involving intense fear, helplessness or horror. Ms Breuer submitted that Mr Burling did not have to take part in these medical evacuations. He nevertheless continued to undertake such trips despite the fact that he was being confronted with objectively awful scenes. Ms Breuer submitted that there is no evidence of the type of reaction required and this was clear from the history taken by Dr Shand and also Dr Dinnen. Ms Breuer also submitted that this was clear from the Calvary Hospital clinical notes in 1989 which indicated no history of the reaction of intense fear, horror or hopelessness.
Ms Breuer also noted a difficulty in Mr Burling meeting the diagnostic criteria contained in paragraphs 2(b)(B) and 2(b)(C). Both those paragraphs require that the symptoms be connected with the event of seeing the mutilated body/ies. Dr Dinnen had noted that Mr Burling's dislike of Asian people is avoidance, but Ms Breuer pointed out that in the event relied upon as being stressful, these bodies were not just Asian bodies but American bodies. In relation to avoidance of movies about Vietnam, Ms Breuer submitted that Mr Burling did not have a combat role and thus the connection was remote. Ms Breuer submitted therefore that Mr Burling's symptoms are general and not specifically related to the alleged traumatic event. The other problem the Respondent had in accepting Mr Burling's claim is that none of the symptoms came out until Mr Burling was hospitalised at Calvary Hospital. There were only vague memories of Vietnam and some mention of bodies prior to that. Ms Breuer submitted that all the clinical notes deal with marital problems and his complaints about his first wife's lack of attention. There is also a history of a loss of memory in relation to what he might have done to his wife but not a loss of memory in relation to Vietnam, Ms Breuer contended.
Ms Breuer submitted that Mr Dawson has contended a hypothesis that post traumatic stress disorder was triggered by Mr Burling's friend's death. There is no mention in the clinical notes however, Ms Breuer submitted, of the friend having died. It is just hypothetical, Ms Breuer submitted, that his closest friend's death had brought on the onset of post traumatic stress disorder. Ms Breuer emphasised that there is nothing in the material of that time and that this is the best evidence the Tribunal has of Mr Burling's state of mind in 1989. When Mr Burling was examined in Calvary Hospital, there was no diagnosis made of post traumatic stress disorder. Rather, Mr Burling was diagnosed with an adjustment reaction, anxious mood and depressive features in the context of marital problems. Dr Richardson did not diagnose post traumatic stress disorder and he took the same history as Dr Dinnen and Dr Shand. Dr Richardson also noted that Mr Burling had a disturbing episode of global amnesia but did not connect that to post traumatic stress disorder. If the Tribunal does in fact accept that Mr Burling has post traumatic stress disorder, then that is also accepting stage 3 of the "Deledio" process because the definition of a severe stressor is part of the diagnostic criteria for post traumatic stress disorder.
Ms Breuer contended that if the Tribunal accepts that Mr Burling has post traumatic stress disorder and cervical spondylosis then clearly the issue of Special Rate has to be determined. Based on the Respondent's concession in terms of the assessment, Mr Burling meets subsection 24(1)(a) of the Act.
In relation to subsection 24(1)(b) of the Act, the issue for the Tribunal is whether the Applicant is prevented from working eight hours or more because of his accepted disabilities and in this case, his only accepted disabilities of cervical spondylosis and post traumatic stress disorder. Ms Breuer relied on the reports of the Vocational Capacity Centre and Dr Coffey in submitting that Mr Burling would not be prevented from working for eight hours because of those accepted conditions. A key issue in this matter is whether the Tribunal accepts whether the blackouts are flashbacks or not. The Respondent submitted that the blackouts are not flashbacks. In this regard, Ms Breuer noted that when she asked Mr Burling if he knew where he was when he was reporting these flashbacks, he said he did not. Mr Burling did not say that he thought he was in Vietnam, he also did not say that he thought he was medically evacuating wounded soldiers. He said he did not know where he was and that was his wife's evidence as well. Ms Breuer submitted that this is not a symptom of post traumatic stress disorder. It could well be a symptom of chronic migraine which Dr Coffey had opined but certainly is not a symptom, on the Respondent's submission, of post traumatic stress disorder. If that were the only basis the applicant was not able to work because of the episodes of amnesia, his unpredictable behaviour and Mr Burling not knowing where he was, then he would not satisfy the requirements of subsection 24(1)(b) of the Act.
In relation to subsection 24(1)(c) of the Act, Ms Breuer submitted that the issue is the alone test which the Respondent submitted Mr Burling does not meet. Ms Breuer contended that it is not simply a matter of Mr Burling's tremors but also a matter of drowsiness caused by the medication that he was taking. Initially in cross-examination Mr Burling had agreed that he found it difficult to concentrate when he was driving. He then changed his mind later in evidence, but Ms Breuer contended that the initial response was that medication made it difficult for Mr Burling to work and that was a significant issue related to his Parkinson's disease or corticobasal degeneration. The Tribunal should take note of the objective testing by the Vocational Capacity Centre which was more objective than Mr Burling's evidence or the evidence of the employer. Quite apart from the issue of drowsiness, is the issue of the tremor itself. Ms Breuer also noted that the employer talked only about flashbacks but did not mention depression. Ms Breuer submitted that the employer did not know what a flashback is and certainly the way Mr Burling and his wife described it as a blackout, then that is not a flashback.
Ms Breuer also relied upon the medical report completed by Dr Ferris in relation to Mr Burling's permanent incapacity for work. Dr Ferris refers to three conditions namely orthopaedic shoulder pain, corticobasal degeneration and headaches and anxiety symptoms of PTSD. Based on that report, Ms Breuer submitted that Mr Burling does not meet the alone test. It is clear from case law on this issue and certainly in Forbes v Repatriation Commission (2000) 101 FCR 50 provides a good summary of most of the section 24(1)(c) cases. Mr Burling would not satisfy the requirements of subsection 24(1)(c) of the Act based on Dr Ferris' report. Accordingly, Ms Breuer submitted that Mr Burling would not be eligible for payment of pension at the Special Rate.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal notes that Mr Burling's evidence was at times inconsistent or he could not recall details. The Tribunal does not consider that this indicates that Mr Burling was deliberately trying to mislead the Tribunal.
The Tribunal is required to determine whether or not Mr Burling is entitled to a Disability Pension for the conditions of cervical spondylosis and post traumatic stress disorder. Mr Burling withdrew his application for review in relation to irritable bowel syndrome. The incidents which Mr Burling relies upon for both conditions occurred during his operational service and accordingly the standard of proof is the reasonable hypothesis. Applying the principles laid down in Deledio v Repatriation Commission (supra), the Tribunal sees its tasks as considering all the material before it, to ascertain if there are hypotheses raised connecting Mr Burling's cervical spondylosis and post traumatic stress disorder with his service. The Tribunal is not required to make any findings of fact at this stage. If a hypothesis is raised in relation to either condition, then the Tribunal should turn to a consideration of any relevant Statements of Principles and whether the hypothesis raised is reasonable. A hypothesis will be found to be reasonable pursuant to the subsection 120(3) of the Act, if it is consistent with a template or factor. If subsection 120(3) of the Act is satisfied, then the Tribunal must turn to consider subsection 120(1) of the Act to ascertain whether or not the application of the facts disapprove the hypothesis beyond reasonable doubt.
In relation to the condition of cervical spondylosis, the relevant Statement of Principles is Instrument Number 31 of 1999 concerning Cervical Spondylosis. The Tribunal is reasonably satisfied that the diagnosis of Mr Burling's neck condition is cervical spondylosis as confirmed by both Dr Giblin and Dr Bodel. The relevant factor in the Statement of Principles is Factor 5(h) which states:
"(h) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
…
"trauma to the cervical spine" means a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine
…."
The general hypothesis put to the Tribunal is that Mr Burling was involved in a motor vehicle accident in 1969 which caused trauma to his cervical spine. The Tribunal finds that the hypothesis is not fanciful, contrary to scientific fact or speculative as was discussed in Repatriation Commission v Bey (1997) 79 FCR 364 in which the Full Federal Court concluded:
"…While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states , be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker..."

R D Nicholson J in that decision noted that for a reasonable hypothesis to arise:
"…what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required…"

Specifically considering Factor 5(h), it is not impossible nor implausible that the motor vehicle accident caused Mr Burling's trauma to his cervical spine. Although not testing the veracity of Mr Burling's evidence at this stage, Mr Burling clearly gave evidence that as well as landing on his tailbone he hurt his head, had abrasions to his face, was, he thought, unconscious and had a sore neck for some considerable time after the accident which caused him difficulty in moving his head from side to side and caused him to have to ask assistance in undertaking some tasks. There was clear evidence therefore provided by Mr Burling which addresses the various aspects of the definition of the trauma to the cervical spine. Thus, the Tribunal finds that in terms of subsection 120(3) of the Act, a reasonable hypothesis is raised in line with Mr Burling's circumstances satisfying Factor 5(h) of the relevant Statement of Principles.
The Tribunal then turns to consider subsection 120(1) of the Act, to ascertain whether or not it can accept sufficient of the facts as to disprove the hypothesis beyond reasonable doubt. The Tribunal finds that there is nothing in the material that could disprove the hypothesis to the requisite standard. The Tribunal has accepted the applicant as a witness of truth. It furthermore accepts that Mr Burling had acute symptoms and signs of pain and tenderness which he described for the Tribunal and that he had altered mobility or range of movement of the cervical spine. This was also accepted by both Dr Coffey and Dr Bodel. The Tribunal considers, in line with the case law on this issue, that the evidence provided by Mr Burling and the expert opinions provided by Dr Bodel and Dr Coffey take this matter beyond the hypothetical or speculation. While Ms Breuer submits that there is no evidence of the particular elements of the trauma, this often is the case in Veteran's matters. The evidence provided to the Tribunal and to the orthopaedic specialists is consistent and while Dr Bodel has some doubts, he is not able to be dissuaded from the opinion beyond reasonable doubt, that Mr Burling's cervical spondylosis was as a result of the motor vehicle accident on service in Vietnam. Each case must be considered on its merits and in this particular matter, the Tribunal finds that there is nothing in the material that disproves beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that the trauma to Mr Burling's cervical spine on service caused cervical spondylosis. Therefore the Tribunal determines that Mr Burling's cervical spondylosis is war-caused with effect from 10 December 1998.
In relation to the condition of post traumatic stress disorder, there are a number of threshold issues for the Tribunal to determine, which impact upon each other. Firstly, the Tribunal must determine whether Mr Burling was on operational service when he took the ride in the helicopters. In coming to a determination about this matter, the Tribunal must of necessity make some findings as to whether or not Mr Burling actually did undertake the helicopter flights. The Tribunal notes that if it reaches the stage of considering subsection 120(3) and subsection 120(1) of the Act, it would then under that latter section consider matters of fact. Before the Tribunal can reach that point, however it would be illogical, in determining whether or not Mr Burling was on operational service when he undertook such flights, for the Tribunal actually not to reach a finding about whether indeed Mr Burling was on such flights. The Tribunal was referred by Ms Breuer to Wedderspoon v Minister for Pensions (supra); Holthouse v Repatriation Commission (supra); and, Re Penhall v Repatriation Commission (supra) for the proposition that because Mr Burling chose to go on helicopter flights on his day off, then he was not rendering operational service. In Holthouse v Repatriation Commission (supra), the Court noted that Mr Holthouse's moving of a pot plant in his home lay within the sphere of his personal life. The Court pointed out the distinction between a person's personal life and employment is a distinction inherent in many areas of legislation. The Tribunal finds that Mr Burling was serving in Vietnam during a period of operational service. He was off duty when he took the helicopter flights. He could equally have been off duty in a bar in Saigon or Vung Tau where he could have been attacked. Mr Burling could equally have been off duty having chosen to have a sleep when attacked by the enemy. Mr Burling was not able to return home to Australia when he was off duty. He was after all on operational service in a theatre of war. The Tribunal considers that there is a material causal connection between Mr Burling's service in Vietnam and his psychiatric condition beyond that of being only a temporal connection. Mr Burling would not have been exposed to dead or wounded soldiers whether on duty or not, if he had not been rendering operational service in Vietnam. Furthermore, these matters must be approached in a commonsense way. The Tribunal does not consider that the circumstances of Mr Burling's case should disentitle him to benefits of the Veterans' Entitlements Act 1986 and accordingly distinguishes his circumstances from those of the cases referred to by the Respondent. His operational service in Vietnam is to be taken as a whole and not compartmentalised.

Having determined that Mr Burling was rendering operational service during his off duty hours, the Tribunal further finds that Mr Burling undertook helicopter flights.
The Tribunal must next determine, before reaching the stage of finding whether or not there is a reasonable hypothesis, whether indeed Mr Burling suffers from post traumatic stress disorder in line with the diagnostic criteria contained within paragraph 2 of Instrument Number 3 of 1999 as amended by 54 of 1999 concerning Post Traumatic Stress Disorder. Mr Burling must show that he has been 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 or a threat to his or others' physical integrity. In addition to this, Mr Burling must show that his response involved intense fear, helplessness or horror.
The Tribunal finds that Mr Burling was exposed to such an event in that he was confronted with the presence of a dead American soldier whose lower half of the body had been blown away.
In relation to Mr Burling's response to that, Mr Burling's evidence was that he vomited at the site of this body and retreated to the helicopter. He told the Tribunal that he was horrified by the sight and the smell of this body and others. He was also fearful and worried that there may be remaining elements of the enemy who might cause him injury. This reaction was accepted by Dr Dinnen and Dr Richards as indicating intense fear or horror. Dr Shand conceded that the physical expression of vomiting and retreating to the helicopter could also satisfy this definition. The Tribunal notes that the diagnostic criteria does not require the necessity of being in active combat to experience a traumatic event. Dr Dinnen noted that it was not unusual for veterans who had experienced traumatic events to not recall their reactions, referring the Tribunal to his treatment of prisoners of war. What has to be considered is not only the evidence provided by the veteran but the objective observation in a clinical setting in addition to any physical manifestations indicating a reaction of fear, helplessness or horror such as in Mr Burling's case, his vomiting and his retreating to the helicopter. The Tribunal is reasonably satisfied that the requirements of paragraph 2(b)(A) are met.
Turning to the other diagnostic criteria, in relation to paragraph 2(b)(B), the Tribunal is reasonably satisfied that Mr Burling experienced recurrent depressing dreams of the event, had intense psychological distress at exposure to internal or external cues that symbolised for him or resembled an aspect of the traumatic event. In this regard the Tribunal notes Mr Burling's evidence and that of his wife that he would wake up having had dreams about the dead soldier and other soldiers and also psychological distress at exposure to anything that resembled the death of the soldier and associated war memories. In relation to paragraph 2(b)(C), the Tribunal is reasonably satisfied that Mr Burling avoided activities which aroused recollections for him of the traumatic event of seeing wounded and dead bodies in Vietnam. This included Anzac Day marches. When exposed to discussions of such matters, he also had a feeling of detachment and estrangement from others as was attested to in evidence by Mrs Burling. Mr Burling had a markedly diminished interest or participation in significant activities. In relation to criteria 2(b)(D), the Tribunal considers that Mr Burling suffered from irritability and outbursts and had difficulty concentrating. The Tribunal reaches its findings concerning the diagnostic criteria based on the evidence not only of Mr Burling and his wife, but also reports by Dr Dinnen, Dr Shand and Dr Nichols.
In relation to criteria 2(b)(E), the duration of the disturbance was more than one month and in relation to criteria 2(b)(F), on all the evidence, the disturbance causes clinical significant distress or impairment in social and occupational areas of functioning.
Thus the Tribunal is reasonably satisfied and so finds that on all of the evidence, Mr Burling meets the criteria for a diagnosis of post traumatic stress disorder which it sees as becoming full blown in 1989.
The hypothesis being put to the Tribunal is that Mr Burling was exposed to a severe stressor in the form of exposure to a dead and mutilated American soldier when he was in Vietnam. The hypothesis is not fanciful and accordingly, the Tribunal turns specifically to Factor 5(a) which states:
"(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder ; or
…
"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 Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as 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;
…."
The hypothesis will be reasonable pursuant to subsection 120(3) of the Act if it is consistent with the template or factor.
The Tribunal is not to engage in an exercise at this stage nor to make any judgement about the truth as discussed in Dixon v Repatriation Commission (1999) 59 ALD 315. In reality, in addressing the diagnostic criteria to establish the diagnosis of post traumatic stress disorder, the Tribunal has, of necessity, for diagnostic purposes, addressed some issues of veracity and fact. The stage which the Tribunal is currently addressing relates however to the causative link of post traumatic stress disorder to service.
The Tribunal considers that it is not beyond the bounds of reality to accept that Mr Burling's claimed exposure to a dead half body of an American soldier is a severe stressor, as defined. Mr Burling was directly confronted with a casualty of war and observed casualty clearance and hence meets the definitional requirements of the Statement of Principles. Thus, the Tribunal finds that a reasonable hypothesis is raised pursuant to subsection 120(3) of the Act. In relation to whether or not the Tribunal can accept sufficient of the facts to support the raised reasonable hypothesis, the Tribunal has already accepted that Mr Burling was present on a number of helicopter flights during the first seven months of his service in Vietnam. It is accepted by the Tribunal that it was on Mr Burling's first flight, when he travelling in a Chinook helicopter which was large, that he was confronted on landing with the sight of the dead half body of an American soldier. Mr Burling vomited, and was confronted with a smell and appearance of death and casualties and retreated to the Chinook helicopter. Mr Burling told the Tribunal that he was shocked and afraid. His evidence to Dr Dinnen that he did not recall how he felt at that time, is explained to the Tribunal's satisfaction by Dr Dinnen, particularly when referring to similar examples of lack of recall by prisoners of war. Dr Shand, when presented with the evidence available to the Tribunal, conceded that Mr Burling may have felt afraid and horrified. The Tribunal is also satisfied with the explanation as to why Mr Burling continued these helicopter flights after his traumatic experience. In this regard, and again as noted by Dr Shand, in the context of Mr Burling's circumstances, notably his family's previous history of military service and his wanting to be of assistance and not wanting to be afraid, as noted by Dr Dinnen, Mr Burling continued. Furthermore, in relation to the Respondent's concern, that Mr Burling would have been taking up valuable space in the helicopter and that it would be illogical to conclude that the American servicemen would allow this, this concern is set aside because Mr Burling's first trip, on the evidence accepted by the Tribunal, was in a Chinook helicopter which had greater capacity.
While the Tribunal notes Rtd Lt Conant's opinion that it was highly unlikely that Mr Burling went on these helicopter flights, he certainly did not conclude that such unauthorised flights did not happen. He also did not have any evidence as to whether Mr Burling's flights would have been on Iroquois or Chinooks.
On all the evidence available to the Tribunal and taking into account the many medical opinions, the Tribunal can find no fact to disprove beyond reasonable doubt that Mr Burling has a war-caused post traumatic stress disorder. Thus, the Tribunal is not satisfied beyond reasonable doubt pursuant to subsection 120(1) of the Act that there is no sufficient ground for determining that Mr Burling's post traumatic stress disorder is war-caused.
The Tribunal turns to consider the correct assessment of Mr Burling's war-caused conditions pursuant to subsection 120(4) of the Act and by applying the requirements of the Guide.
Dr Burns undertook an assessment of Mr Burling in January 2001. At hearing, the Applicant relied on this assessment and the Respondent accepted that if post traumatic stress disorder and cervical spondylosis were accepted as war-caused by the Tribunal, then the assessment made by Dr Burns at 80 per cent of the General Rate would be consistent with the level of disability.
The Tribunal considers that on all the evidence, Dr Burns's assessment is appropriate and accordingly finds that the assessments as detailed above indicate a combined impairment rating from Scale 18.1 of 47 points rounded to 45 points. The appropriate lifestyle rating from Chapter 22 of the Guide, as assessed by Dr Burns and considered appropriate by the Tribunal, is four points. From Scale 23.1 of the Guide, a pension at 80 per cent of the General Rate is considered appropriate for Mr Burling's war-caused disabilities with the date of effect from 10 December 1998.
The Tribunal considers next whether or not Mr Burling is entitled to an earnings-related pension at Special Rate.
Subsection 24(1)(a) requires that a veteran's incapacity assessed under the Guide should be at least 70 per cent of the General Rate. Mr Burling satisfies this criteria. In relation of subsection 24(1)(b) of the Act, this requires that the veteran's incapacity alone must be responsible for his or her inability to work for periods aggregating greater than eight hours per week. The only matters for the Tribunal to be concerned about here are the veteran's vocational, trade and professional skills and qualifications: the kinds of work that Mr Burling with those skills, qualifications and experience might reasonably undertake and the degree to which the veteran's condition has impaired his capacity to undertake those kinds of work. Subsection 24(1)(b) states that it must be the injury or disease of itself alone which prevents the veteran from working. By contrast, subsection 24(1)(c) focuses its inquiry on whether there are other matters which have also contributed to the veteran's inability to work.
Mr Burling's evidence to the Tribunal, supported by his wife and the General Manager of Gloucester Shire Council, is that it was Mr Burling's post traumatic stress disorder and its consequences including flashbacks and amnesia which caused him to cease work. Mr Burling stated on one occasion to the Tribunal that his tremor had no impact on his decision to cease work as did Mrs Burling and the General Manager of the Gloucestershire Council.
Mr Burling did however state that his left hand tremor caused him difficulty in driving and operating the grader and that medication for this condition made him drowsy.
The Tribunal also notes the evidence of Dr Ferris, Mr Burling's General Practitioner, that Mr Burling is unable to work because of anxiety symptoms from his post traumatic stress disorder and his tremor. Furthermore, the Tribunal notes the evidence by Dr R Pickles who first saw Mr Burling in 1998 with the left arm tremor, that in fact it was a combination of a psychiatric condition and the corticobasal degeneration which caused Mr Burling to be unable to work.
Dr Cordato refers to the condition of corticobasal degeneration made worse by stress. It now appears that there is a possibility of a diagnosis of Parkinson's Disease. In any event, the Tribunal cannot disregard the medical evidence that the left arm tremor and the treatment for this contributed to Mr Burling's inability to continue working. While the Tribunal also notes that there could be a possibility of Mr Burling's post traumatic stress disorder impacting on the corticobasal degeneration or Parkinson's disease condition, this has by no means been tested and on all of the information available to the Tribunal, does not allow the Tribunal to discount the impact of a non-accepted condition of corticobasal degeneration or Parkinson's Disease. As R D Nicholson J stated in Forbes v Repatriation Commission (supra), approving the decision in Cavell v Repatriation Commission (1988) 9 AAR 534, any factor having employment consequences which played a part in the veteran's inability to work or to obtain work is sufficient to displace a veteran's claim for Special Rate.
While the Tribunal notes the opinions of Mr and Mrs Burling and the General Manager of Gloucester Shire Council that the left arm tremor and its consequences did not impact on Mr Burling's ability to work, the majority of evidence, particularly the medical evidence, which the Tribunal accepts, indicates there was a significant impact on Mr Burling's ability to work by this condition. Even though the Tribunal accepts that the Parkinsonian condition or corticobasal degeneration may not be the predominant cause leading to Mr Burling's cessation of work, the Tribunal finds it was very significant at the time of cessation of work and is now very disabling.
The provisions of section 24 are cumulative. Failure to meet one legislative criteria means the section as a whole is not satisfied. Accordingly, the Tribunal finds that as Mr Burling does not satisfy subsection 24(1)(c) of the Act, then no Special Rate is payable to him.
In all of the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal decides that:
(i)The decisions under review in relation to cervical spondylosis and post traumatic stress disorder are set aside and in substitution therefor, the Tribunal determines that the conditions of cervical spondylosis and post traumatic stress disorder are war-caused.
(ii)Disability Pension is payable at 80 per cent of the General Rate with effect from 10 December 1998.
I certify that the 211 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member.
Signed:         .....................................................................................
  Jessica Purches, Associate
Dates of Hearing  22 and 23 October 2001
Date of Decision  13 June 2002
Representative for the Applicant              Mr N Dawson of Counsel
Representative for the Respondent        Ms S Breuer, Departmental Advocate