Byrne and Repatriation Commission
[2005] AATA 1169
•28 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1169
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/53
VETERANS' APPEALS DIVISION )
Re PETER BYRNE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date28 November 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ..........[Sgd].........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – assessment of general rate pension - operational service with Royal Australian Air Force – operational service rendered during period of leave - post traumatic stress disorder – dysthymic disorder - application of Statements of Principles – reasonable hypothesis of relevant relationship to service raised – conditions not war-caused - decisions affirmed
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 5B, 6C, 14, 19, 21A, 22, 69, 120, 120A, 177 Schedule 2
Re Winship and Repatriation Commission (1990) 20 ALD 101
Repatriation Commission v Law (1980) 31 ALR 140
Wedderspoon v Minister of Pensions [1947] 1 KB 562
Holthouse v Repatriation Commission (1982) 1 RPD 287
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Constable v Repatriation Commission [2005] FCA 928
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
28 November 2005 Mr RG Kenny, Member Background
1. Peter Byrne (the applicant) contends that he developed various conditions, including some of a psychiatric nature, as a result of his service in South Vietnam with the Royal Australian Air Force (RAAF). On 23 January 2001, he lodged a claim for “stress” and “anxiety” with the Repatriation Commission (the respondent) in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act). He also lodged a claim, on that date, for acceptance of gastro oesophageal reflux as being related to his service. Additionally, on 14 February 2001, he lodged a further claim for an increase in the rate of pension paid to him in respect of chronic solar skin damage. On 2 May 2001, the respondent rejected his entitlement claim and, on 4 May 2001, it rejected the application for increase in pension.
2. On 7 December 2001, the Veterans’ Review Board (the Board) affirmed the decisions in respect of the entitlement matters but set aside the decision in respect of assessment. The Board took into account the incapacity associated with the previously accepted disability of solar skin damage and also that associated with the more recently accepted condition of sensori-neural hearing loss with tinnitus. It assessed general rate pension under the Act at 10% with effect from 14 February 2001, at 20% with effect from 3 July 2001 and at 40% with effect from 15 September 2004.
3. On 27 January 2005, Mr Byrne sought review of those decisions by the Administrative Appeals Tribunal (the Tribunal).
Hearing
4. At the hearing, Mr Byrne was represented by Ms B Carter-Nicoll of counsel and the respondent was represented by Mr J Stoner, Departmental advocate. The following material was tendered and taken into evidence:
§exhibit 1 - the T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6 );
§exhibit 2 - a statement, dated 7 April 2005, by the applicant;
§exhibit 3 - a medical report, dated 13 May 2005, by psychiatrist Dr Jennifer Barry;
§exhibit 4 & 5 - statutory declarations, dated 26 October 2005 and 27 October 2005, by Derek Smith, with annexed extracts from a diary for November 28 1969;
§exhibit 6 - a medical report, dated 8 July 2005, by psychiatrist Dr Peter Mulholland;
§exhibit 7 - a transcript of proceedings of the Veterans’ Review Board of 7 December 2004; and
§exhibit 8 - a map of Phuoc Tuy province in South Vietnam.
Issues and Service
5. Ms Carter-Nicoll advised that no evidence would be offered in respect of the condition of gastro oesophageal reflux or in relation to the assessment of pension. She conceded that the decisions in respect of those matters should be affirmed. I am satisfied that those concessions have been properly made.
6. Details of Mr Byrne’s service in the RAAF are not in dispute. I am satisfied that his overall service was from 15 January 1963 until 30 January 1974 and that this included a period of defence service, as referred to in sections 69 and 70 of the Act, after 7 December 1972. However, it was agreed by the parties and I am satisfied that neither of Mr Byrne’s claimed psychiatric conditions is related to that period of defence service. I am also satisfied that the period in which he served in South Vietnam, from 4 June 1969 until 15 May 1970, constitutes operational service and eligible war service as those terms are defined in sections 7 and 6C, respectively, of the Act.
7. Ms Carter-Nicoll submitted that there was evidence sufficient to enter diagnoses of post traumatic stress disorder and dysthymic disorder in response to Mr Byrne’s initial claim. This was conceded by Mr Stoner and I am satisfied that there is evidence for the diagnosis of those conditions in the reports of psychiatrists, Dr Robert Athey and Dr Peter Mulholland. I have also noted the report of Dr Jennifer Barry. This leaves for determination the issues of whether Mr Byrne’s post traumatic stress disorder and/or dysthymic disorder are related to his operational service.
Respondent’s case
8. Despite his concession that Mr Byrne had operational service in South Vietnam, Mr Stoner contended that, on 9 November 1969 when particular events involving Mr Byrne occurred, he was not rendering operational service at that time. He submitted that it was not sufficient that a relevant event occurred during a nominal period of operational service and that the matter for determination was whether the relevant activity out of which a condition arose was a requirement of service or was sufficiently proximate to such a requirement. In a written submission provided after the hearing, he referred to Re Winship and Repatriation Commission (1990) 20 ALD 101 to support the proposition that simply being on war service was not sufficient to establish a requisite connection to service. He submitted that one could not ignore the distinction between the cause of events and the setting in which they occurred. He also referred to Repatriation Commission v Law (1980) 31 ALR 140, Wedderspoon v Minister of Pensions [1947] 1 KB 562 at 564 and Holthouse v Repatriation Commission (1982) 1 RPD 287 at 289.
9. Mr Stoner submitted that, in the events of 9 November 1969, Mr Byrne was on leave and on some private purpose and that his excursion on that day had no relationship to his RAAF service. Additionally, he submitted that the events involving Mr Byrne on 9 November 1969 were not of sufficient effect to meet the requirements of the Act as being causative of Mr Byrne’s psychiatric conditions.
Applicant’s case
10. Ms Carter-Nicoll submitted that the circumstances which arose in relation to Mr Byrne on 9 November 1969 in South Vietnam were encompassed by the principles concerning operational service under the Act and that the events of that day met the causal criteria under the Act to show that Mr Byrne’s post traumatic stress disorder and dysthymic disorder are war-caused.
Evidence
11. In Vietnam, Mr Byrne served with No 9 Squadron RAAF and was based at Vung Tau. Doug Ellis was an airman who served with him. Derek Smith was a long-time friend of Mr Byrne who, whilst Mr Byrne was in Vietnam, was a sergeant with 1 Field Squadron RAE at Nui Dat. From time to time, Mr Smith visited Mr Byrne in Vung Tau and, between them, they arranged for Mr Byrne and Mr Ellis to spend a day with Mr Smith at Nui Dat. They planned to meet for lunch on 9 November 1969 and Mr Byrne and Mr Ellis arranged for a helicopter flight to Nui Dat on that day. There, they met Mr Smith but, instead of staying on the Nui Dat base for the day, they became involved in an excursion which saw them travel by Land Rover about half an hour’s drive from the base to a place where mine-clearing operations were taking place. There was a distinct lack of clarity in the evidence of Mr Byrne relating to the circumstances which led to the excursion and, indeed, about the excursion itself. However, Mr Ellis kept a log of the flights that he undertook in Vietnam. This was in evidence and it demonstrated that he and Mr Byrne were on a helicopter flight to and from Nui Dat on 9 November 1969. Mr Smith kept a more detailed daily diary. Again, this was in evidence and it referred to the excursion in the Land Rover to the mine field.
12. Shortly before the Land Rover arrived at the planned destination of the minefield, one of the men involved in the mine-clearing operation activated a “booby trap” which resulted in several men being injured. By the time Mr Byrne arrived, the injured men had been the subject of preliminary first-aid treatment with the application of field dressings. Mr Byrne noted that, in particular, one of the soldiers had an injury to the side of his face which was covered with a field dressing. Mr Byrne was not able to say whether the other injured men had received medical attention. He said that he remained with the Land Rover about 15 to 20 metres from the injured men. He was unsure of how long they remained at the scene but recalled waiting until a helicopter came in to take away the injured men. Mr Smith considered that it would not have taken long for the helicopter to arrive because it would have come from the nearby Nui Dat base. Thereafter, Mr Byrne, Mr Ellis and Mr Smith continued their trip for about 40 minutes and returned to the Nui Dat base. During that time, they passed through several villages where Mr Smith pointed out certain infrastructure that had been financed with Australian aid monies.
13. Part of the confused memory of Mr Byrne relates to the circumstances leading up to the excursion. On arrival in Nui Dat, he and Mr Ellis were dressed in civilian clothing. Whilst on the excursion, they were dressed in military uniform and were armed with rifles. Mr Smith’s evidence was that this was done because no one was permitted to leave the Nui Dat base unless they were kitted out in that manner and because it was always necessary for the vehicle to carry an armed guard.
14. Mr Byrne said that, whilst in Vietnam, he carried out the duties of an air-frame fitter and this was done mainly at Vung Tau. He said that he had not witnessed injured service-men previously and described his living quarters and work station at Vung Tau as being located remotely from the hospital where such observations might occur.
15. Despite his vague overall recollection of the day’s events, Mr Byrne described the incident at the mine field as being frightening and distressing to him. He said that he was “shocked”, “sickened” and upset by the sight of the injured men. He said that he felt “useless” at the time and had feelings of his own vulnerability. He said that he believed that the incident continued to affect him during the remainder of his service and after his return to Australia. He did not seek any treatment for any psychiatric symptoms for many years but believes that he was showing symptoms of depression upon his return to Australia and that this was evidenced by a breakdown in personal relationships, loss of ambition and increased levels of alcohol consumption for the first few years after his return from Vietnam.
16. Mr Byrne has been the subject of examination by three psychiatrists. Dr Athey, in a report dated 31 March 2001, diagnosed him as having dysthymic disorder which he described as a type of chronic depression that persists over a long period of time. Dr Athey recorded Mr Byrne as describing his time in Vietnam as not being particularly onerous and one where he was “not subjected to any stressful events other than the normal discipline of military life”. Dr Athey did not diagnose post traumatic stress disorder but considered that Mr Byrne had suffered a depressive episode shortly after his return from Vietnam in the context of a relationship breakdown at that time. Dr Athey expressed the opinion that this episode could be related to the subsequent development of dysthymic disorder.
17. Dr Barry saw Mr Byrne on two occasions in 2003 and prepared reports dated 25 July 2003 and 13 May 2005. She also gave evidence. In her opinion, Mr Byrne met all of the requirements for a diagnosis of post traumatic stress disorder and she considered that this was related to experiences he had in Vietnam. However, she specifically stated that there was no particular incident in Vietnam that was responsible for this. Rather, she referred to a “series of experiences” which rendered him susceptible to the subsequent development of post traumatic stress disorder. She noted the diagnosis of dysthymic disorder by Dr Athey but preferred not to diagnose a dysthymic disorder because of the overlay of symptoms with post traumatic stress disorder.
18. Dr Mulholland saw Mr Byrne in June 2005 and completed a report, dated 8 July 2005. He also gave evidence. Dr Mulholland diagnosed post traumatic stress disorder and chronic dysthymic (depressive) disorder. In relation to the former, Dr Mulholland relied upon the following account which he set out in his report:
“He told me that the most alarming situation when he was in Vietnam was when he ended up being at a fire support base or a base at the edge of a minefield. At that time, he was acting as an escort for the evacuation of wounded soldiers. This occurred when he was on a social visit to Nui Dat and by the sounds of it was dragooned to be on this operation. This operation lasted a few hours during which time he felt “pretty much exposed” and described the experience as “bloody terrifying”. He had not had any training of any consequences to fit him for the task"
19. In his evidence, Dr Mulholland said that he considered this incident for the purposes of determining whether or not there was a “traumatic event” as required in part A of the definition of post traumatic stress disorder in the Statement of Principles. He believed that it was only marginally sufficient but gave Mr Byrne the benefit of the doubt in that regard. Dr Mulholland expressed the opinion that Mr Byrne’s depressive disorder had first become clinically obvious within a year or so of his returning to Australia.
Was Mr Byrne rendering operational service during his excursion
20. Under section 14 of the Act, a veteran may claim for pension and the term veteran is defined in subsection 5C(1) of the Act as a person who is, because of section 7 of the Act, taken to have rendered eligible war service. Sub-section 7(1) of the Act provides that a person who has rendered operational service is taken to have been rendering eligible war service whilst so rendering operational service. The term operational service, insofar as it relates to post World War II service in operational areas, is provided for in section 6C of the Act. Sub-section 6C(1) thereof reads:
“Sect 6C - Operational service—post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a)a member who was allotted for duty in that area; or
(b)a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.”
21. Sub-section 5B(1) of the Act defines operational area as meaning an area described in Column 1 of Schedule 2 of the Act during the periods specified in Column 2 of Schedule 2 opposite to the description of the area in Column 1. In that Schedule to the Act, the southern zone of Vietnam was an operational area in the period from and including 31 July 1962 until 11 January 1973. The term allotted for duty is given meaning under sub-section 5B(2) of the Act. Accordingly, a reference in the Act to a person or unit of the defence force that was allotted for duty in the operational area of southern zone Vietnam is a reference to a person or unit of the Defence Force that is:
“allotted for duty in that area by written Instrument issued by the Defence Force for use by the respondent in determining a person’s eligibility for entitlements under this Act.”
22. A statement, dated 3 October 1998, of Mr Byrne’s service advises that he served in Vietnam from 4 June 1969 until 15 May 1970 and that he was allotted for service in Vietnam during that period in accordance with the Act. I am satisfied that he was rendering operational service during his period in Vietnam. I have noted Mr Stoner’s submission that Mr Byrne was on leave and on some private purpose on 9 November 1969 and that his excursion on that day had no relationship to his RAAF service. I have also noted the authorities relied upon by him. They relate to circumstances of eligible war service or defence service in Australia rather than operational service. Of course, I accept that those authorities confirm the need for a causal nexus to be established with service but not that a veteran allotted for operational service is to be considered not to be on such service during that period of allotment. Mr Byrne was so allotted for the duration of the allotment and section 9 of the Act is applicable to him while he was so allotted. Paragraph 9(1)(a) of the Act relates specifically to operational service. The causal criteria in the other paragraphs in that section apply to all eligible war service including operational service. Section 9, in so far as relevant, reads:
Paragraph 9(1)(a) of the Act
“(1) Subject to this section and section 9A, 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.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.”
23. The application of subsections 9(1) and (2) of the Act does not necessarily lead to any or all diseases or injuries that a veteran contracts as a result of operational service or war service being war-caused. There are specific situations in the remaining components of section 9 in which causation is precluded such as where the injury resulted from a serious default or wilful act of the veteran or from a breach of discipline committed by the veteran: see subsections 9(3), 9(4) and 9(6) of the Act. Other limitations are also provided for in section 9. Accordingly, subsection 9(5) limits the application of paragraph 9(1)(c) of the Act in respect of certain journeys to or from a place of employment. The provisions relevant to causation in this matter are paragraphs 9(1)(a) and 9(1)(b) of the Act. These relate, respectively, to an occurrence on operational service or to where the condition arose out of or was attributable to any eligible war service and subsection 9(5) does not limit the operation of those components of section 9. There is no evidence of serious default, wilful act or breach of discipline by Mr Byrne in relation to his excursion out of Nui Dat and I am reasonably satisfied that, during that excursion, he was rendering operational service which triggers the operation of paragraphs 9(1)(a) and 9(1)(b) of the Act. The psychiatric conditions will be war-caused if they resulted from the occurrence at the minefield on 9 November 1969 or if they are attributable to the events of that day.
Principles of Causation: The Deledio Steps
24. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. The incident relied upon by Ms Carter-Nicoll involved Mr Byrne, during an excursion from Nui Dat, witnessing the aftermath of the detonation of a “booby trap” by Australian engineers who were engaged in mine-clearing operations. I accept her submission that this constitutes an hypothesis of a relationship with Mr Byrne’s service.
25. The second of the four Deledio steps requires identification of the relevant Statements of Principles as published by the Repatriation Medical Authority (RMA). For post traumatic stress disorder, this is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. For dysthymic disorder, the relevant Statement of Principles is that which pertains to depressive disorder. This is Instrument No. 58 of 1998.
26. The third Deledio step requires a consideration of whether the advanced hypothesis is a reasonable one and this requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. For post traumatic stress disorder, they read:
“(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 the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
27. For dysthymic disorder, they read:
“(b)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of depressive disorder; or
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), serious illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
28. If the hypothesis for either of the conditions under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
Reasonableness of Hypotheses
29. This third step of the Delidio process does not involve findings of fact and, for the purposes of considering the reasonableness of the hypothesis, I have accepted the summary of evidence, set out above, given by Mr Byrne, Mr Ellis and Mr Smith.
30. The analysis of experiencing a severe stressor for post traumatic stress disorder involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, it is not a requirement that there be an actual threat: see Stoddart at paragraphs 30 and Woodward at paragraphs 131-142. In Stoddart the Full Federal Court adopted the following statement from Woodward’s case (at paragraph 142):
“…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words “experiencing” should be construed as having at least this partially subjective connotation.”
31. The components of the definition of experiencing a severe stressor relate to an event that involved actual death or serious injury; threat of death or serious injury; or threat to the veteran’s or another person’s physical integrity. The same objective/subjective analysis as noted above must be equally applicable to each part of the definition. The material before me points to Mr Byrne being confronted with the aftermath of an explosion which occurred at some time while he was travelling to the minefield in the Land Rover. It also points to his observation of injured soldiers, at least one of whom had received first-aid treatment in the form of the application of a field dressing to a facial injury. Additionally, the material points to his observation of the clearance of these soldiers by medivac helicopter. While there was no threat to Mr Byrne, the material points to a situation which was capable of conveying a threat to the physical integrity of these injured soldiers. Further, Mr Byrne described a reaction which, in a broad sense, a reasonable person in those circumstances may experience. This account of the incident points to the satisfaction of the requirements of the template of experiencing a severe stressor for post traumatic stress disorder.
32. In an analysis of the experiencing of a severe psychosocial stressor for the purposes of dysthymic disorder, an objective and subjective component must also be pointed to by the evidence. There must also be an occurrence of a kind which, objectively, is capable of evoking feelings of substantial distress in a person exposed to that occurrence. Additionally, the occurrence must, subjectively, have evoked such feelings in the person: see White v Repatriation Commission [2004] FCA 633 per Spender J at (paragraphs 30-33). The material referred to above, concerning the observation of and reactions to the minefield incident, points to the satisfaction of those requirements and, therefore, to that part of the template for dysthymic disorder.
33. An additional component of experiencing a severe psychosocial stressor is that the material must point to the clinical onset of the disorder within two years of the stressful event: see Constable and Repatriation Commission [2005] FCA 928 at para 13. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. The psychiatric evidence noted above in relation to Mr Byrne points to a depressive episode after he returned to Australia and within the time-frame of the Statement of Principles.
34. The material before me raises a reasonable hypothesis of a relationship to service of both post traumatic stress disorder and dysthymic disorder. This does not mean that they are related to Mr Byrne’s service. Rather, the evidence relating to the hypothesis must be considered under the fourth of the Deledio steps. Post traumatic stress disorder and/or dysthymic disorder will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
Deledio Step 4: Are the conditions War-caused?
35. Mr Byrne has not always given consistent accounts of events leading up to the excursion on 9 November 1969. At the Board hearing, he said that he was required to undertake the Land Rover journey because of the need for an urgent response to events which were occurring on the mine field. There, he related that, because of an absence of available soldiers at Nui Dat, he and Mr Ellis were required to make up numbers and it was for this reason that they were kitted out with uniform and weaponry. Mr Byrne’s evidence that an excursion occurred on 9 November 1969 is supported by both Mr Ellis and Mr Smith who had a clearer recollection of the events of that date. Whilst they also had some uncertainty about some aspects of the excursion, I accept their evidence that the excursion took place and that it was undertaken by choice in order for Mr Smith to provide Mr Byrne and Mr Ellis with an opportunity to see the mine-clearing operation. I find that they were not ordered to take part in the excursion.
36. Mr Smith and Mr Ellis gave reasonably consistent accounts of what they encountered when they arrived at the mine field. I accept that this was after the “booby trap” had been detonated so that they did not witness the explosion but saw soldiers, probably four in all, who had been injured as a result. Again, Mr Byrne’s recollections were vague. On his evidence, he remained near the Land Rover and some 15 to 20 meters from the injured men. Mr Ellis spoke to the men and assisted in the process of loading the wounded onto the medivac helicopter but Mr Byrne did not speak with them or provide any such assistance. Although Mr Byrne described subjective reactions to the event, the evidence is that of no recall of any aspect of it until he spoke with Mr Ellis, many years later, at a reunion of personnel from his RAAF squadron. I am unable to accept the correctness of his recall of the nature of his reaction to the sight of the wounded soldiers. This is especially so in the light of his absence of recall of the events leading up to their arrival at the minefield. I am satisfied beyond reasonable doubt that the incident did not have a significant effect on him. Subsequent events support that finding. The evidence of what the three men did after leaving the minefield was of an uneventful tour of Vietnamese villages. Also, within a few days of the event, Mr Byrne wrote a letter to his parents. This was on 14 November 1969. It refers to the day he spent with Mr Ellis and Mr Smith. He described Nui Dat as being built on an old rubber plantation where it was “surprisingly cool under the trees”. There was no reference to the minefield incident despite there being a comment on certain incidents including the loss of two Australian aircraft.
37. Throughout, when giving explanations, it was clear that Mr Byrne had a very hazy recollection of the events of 9 November 1969. Indeed, he had no recollection of the incident for some 30 years. Dr Barry expressed the opinion that this inability to recollect details of a stressful event is a characteristic of the post traumatic stress disorder which the event causes. However, Dr Barry concluded that the minefield incident was, in itself, not sufficient to result in post traumatic stress disorder. Her diagnosis of the condition was based upon the impact of a range of experiences; but that is not the manner in which the Statement of Principles operates for the purposes of determining a relationship to service. There needs to be an experience of a severe stressor, as that term is defined. That raises concern about Dr Barry’s evidence. If the event did not constitute a severe stressor sufficient to trigger post traumatic stress disorder, it would not result in the suppression of memory about the event as a characteristic of that condition.
38. Dr Athey was not made aware of the minefield incident at all by Mr Byrne. The version of events given by Mr Byrne to the Board, as outlined above, was also that which he described to Dr Mulholland. He referred to Mr Byrne being “dragooned” into an “operation” in which he was “acting as an escort for the evacuation of wounded soldiers”, which “lasted a few hours” and which left him “pretty much exposed”. Dr Mulholland then relied upon that version to decide, but only in a marginal sense, that Mr Byrne experienced a severe stressor. I am satisfied beyond reasonable doubt that what occurred on 9 November 1969 is not consistent with the version relied upon by Dr Mullholland. The minefield incident was not one which Mr Byrne was required to take part in and it was not an operation designed to evacuate wounded soldiers. I am also satisfied to that standard that it did not have the duration described to Dr Mulholland or that it left Mr Byrne exposed to danger. He remained with the Land Rover at a distance of some 15 to 20 metres and did not assist with casualty clearance. The extent of his involvement was in seeing some injured soldiers and I am satisfied beyond reasonable doubt that this was not an event that meets the requirements of experiencing a severe stressor as provided for in the Statement of Principles for post traumatic stress disorder. As noted above, that was also Dr Barry’s opinion. This means that the condition is not war-caused under section 9 of the Act.
39. In relation to dysthymic disorder, the analysis above is equally applicable to whether the minefield incident was a severe psycho-social stressor. I am also satisfied beyond reasonable doubt that the evidence does not disclose a reaction by Mr Byrne which equates to substantial distress. Again, subsequent events, as outlined above, and an absence of reference to Dr Athey are significant to that finding.
40. Reference has been made to the clinical onset of dysthymic disorder and to Mr Byrne’s experiencing of an episode of depression not long after returning to Australia. However, I am satisfied beyond reasonable doubt that this is explained by causes unassociated with his service in Vietnam. It was linked to contemporaneous events that occurred to him. In Dr Athey’s report, it was noted that Mr Byrne blamed his depressive episode on the severance of a relationship with a girlfriend that he had known before going to Vietnam. Dr Barry also made reference to depression after being in Vietnam but described the precipitating event as being the discovery, by Mr Byrne, that one of the crewmen with whom he had worked in Vietnam had been killed there. Dr Barry also described the impact of the loss of his girlfriend. Dr Mulholland referred to the depressive episode that Mr Byrne experienced shortly after his return from Vietnam and, although he expressed the view that this may be related to his service in Vietnam, he also recognised particular triggers such as the breakdown in a personal relationship as being relevant.
41. I am satisfied beyond reasonable doubt that Mr Byrne’s dysthymic disorder is not war-caused under section 9 of the Act.
Decision
42. The Tribunal affirms the decisions under review in relation to post traumatic stress disorder and dysthymic disorder as well as gastro-oesophageal reflux and the matter of assessment.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed:
Legal Research Officer
Date/s of Hearing 3 November 2005
Date of Decision 28 November 2005
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr J Stoner Departmental Advocate
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