Cadusch and Repatriation Commission - [2002] AATA 935

DECISION AND REASONS FOR DECISION [2002] AATA 935

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nº V2000/1421

VETERANS'     AFFAIRS          DIVISION     )
           Re      BRIAN VICTOR PAUL CADUSCH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal: Mr J. Handley, Senior Member

Date:16 October 2002
Place:Melbourne
Decision:The decision under review in so far as it concerns Post Traumatic Stress Disorder is set aside, and in substitution IT IS DECIDED that Post Traumatic Stress Disorder is war-caused.
In all other respects the decision of the Veterans' Review Board is affirmed.
The application is remitted to the respondent for assessment of pension.

. . . . .Sgd Mr J Handley . . . . .
Senior Member
VETERANS' ENTITLEMENTS – applicant served in Vietnam - agreement by doctors of diagnosis of Post Traumatic Stress Disorder – whether applicant experienced a stressor – decision set aside.
Veterans' Entitlements Act 1986
Repatriation Commission v Hill [2002] FCAFC 192
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Gregson & Repatriation Commission V2001/1400

REASONS FOR DECISION

16 October 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("the VRB") made on 24 October 2000. The VRB then affirmed a decision made by the Repatriation Commission on 19 June 2000, where the applicant's claim for post traumatic stress disorder ("PTSD") and insomnia was refused.
The applicant presently receives pension at 10 per cent of the general rate for the accepted condition of bilateral sensorineural hearing loss. The conditions of hypertension, insomnia, PTSD, cervical spondylosis, conjunctivitis of both eyes, medial ligament tear of the left ankle and chondromalacia patellae of the right knee are all rejected disabilities.
The application was listed for hearing in Bendigo on 5 August 2002. Mr Liefman appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. Mr Liefman indicated that the applicant was proceeding only with respect to the conditions of PTSD and psychoactive substance abuse or dependence. In the event that those conditions were found to be war-caused, it was submitted that the application should be remitted to the respondent for assessment of rate of pension.
It became apparent during the evidence that there was considerable divergence in the history, either given to the doctors or understood by the doctors, with respect to the events upon service which were alleged to satisfy the relevant Statements of Principles ("SoPs"). The divergence between the applicant's evidence and the evidence of the doctors will be referred to later in these reasons. Only the applicant gave evidence in Bendigo.
Mr Cadusch is presently 54 years of age, having being born on 18 October 1948. He was a member of the Australian Army ("the Army") between 9 July 1969 and 8 July 1971, and served in Vietnam between 16 April 1970 and 14 April 1971.
The applicant said in evidence that he left school at the age of 17 years, and worked for the Postmaster General's Department ("PMG"), delivering letters and working nightshift in a telephone exchange in Kerang. He was conscripted at the age of 20 years and he trained at Puckapunyal, Ingleburn, Balcolmbe, and Canungra in Queensland. His training, principally, involved morse code and radio and switchboard operation.
When he was posted overseas in 1971, Mr Cadusch said that he was transferred to a unit at Nui Dat, where he was a switchboard operator. He was also engaged with some line repairs. He did piquet duty on one shift, every four to six weeks, where he remained stationary in a gun pit. He was positioned facing a helipad and he was armed with an SLR rifle and had access to a mounted M60 machinegun. Mr Cadusch said that he understood his responsibility, when on piquet duty, was to "keep an eye out for the enemy". He understood that there was a "risk" of Vietnamese raids. Nonetheless, he said he "never saw anyone" and there were "no reports of sightings". He said that he never patrolled outside the perimeter of his base except on three occasions, where he operated a switchboard inside an armoured personnel carrier ("APC"). On those occasions, he said there was "a lot of artillery and shooting". He recalled that it was "very noisy" and he saw gun flashes.
Mr Cadusch recalled that, when he operated switchboards at night, he was worried of being attacked. He said that he was intimately involved in communications between officers and would monitor and would hear reports of killings of other personnel and reports of persons being wounded. Indeed, on one occasion, Mr Cadusch said that when he heard that one member of his unit was "in trouble", he could do nothing other than to "pray and worry".
Additionally, Mr Cadusch said that he was located adjacent to another unit which despatched messages to Australian Headquarters in Saigon giving reports of casualties. Mr Cadusch said that those experiences were upsetting.
With respect to his work as a switchboard operator, Mr Cadusch said that he principally worked at night time and found the work "scary". The only means, he said, of coping with it was to "get on with the job". When he was operating a switchboard inside an APC, he was also scared because the vehicle was stationary and he frequently contemplated what would happen if "it got hit by a bomb". On the occasions that he worked inside an APC, it would be for a duration of three or four days. The risk of injury or casualty was highlighted when, from time to time, he observed damaged tanks and APCs.
Mr Cadusch recalled an occasion when he became disorientated one night during a "stand-to". He recalled that he was woken from his sleep and was running carrying his gun in the presence of other personnel, also running, yelling and screaming out. He said that he fell into a gun pit about 20 to 30 metres away and observed a helicopter, positioned at a helipad, about 200 metres away. He thought then that his unit was under attack and that the helicopter was transferring wounded persons to a nearby field ambulance. However, it became apparent that the exercise was a practice stand-to and persons were not being transferred from the helicopter.
On another occasion, when he was on one day's leave, Mr Cadusch said that he was a passenger in a jeep which was approaching Vung Tau. He said that the roadway was blocked by military police and when he looked towards a ditch on the side of the road, he observed three or four dead Vietnamese persons. He said that his vehicle was located about 20 metres from those persons and he recalled the experience as being "shocking".
With respect to his service generally, Mr Cadusch recalled that it was "very noisy" with helicopters landing and taking off at considerable frequency. He also heard weapons being discharged from gun ships in the distance. He said the effect upon him of his service was to interfere with his sleep for a "long time" after he was discharged. He also said that he consumes excessive quantities of alcohol.
In Vietnam, Mr Cadusch said that there was virtually no limit to the amount of alcohol that could be obtained, despite rations. After he returned to Australia from service, he resumed employment with the PMG for about six months, but was unable to continue employment operating a switchboard. He then worked for many years with the Department of Conservation and Forests and Lands, planting trees, eradicating vermin and cutting wood. He said that he preferred to work in the open and the fresh air, as opposed to working in confined spaces as he did in Vietnam. When he was working, he was drinking on a regular basis, but, since he was retrenched, he now drinks daily and said that he would drink between 10 and 12 pots of full-strength beer per day and up to 20 pots of beer on the weekend.
In cross-examination and in reference to pages 54 and 55 of the T documents, Mr Cadusch said that he was never a radio operator and operated a switchboard only. He said that he did not ever overhear conversations on radios, but did overhear conversations when operating a switchboard. He said there were occasions when there was little to do at night, other than to listen to the conversations of others. With respect to hearing communications of casualties and other stressful events, Mr Cadusch agreed that, had he heard of such events operating a radio, it would be in "real time". However, communications he heard via a telephone switchboard were secondary and were more in the nature of a report from one officer to another.
With respect to references made by doctors and/or historians as to the applicant having observed casualties, Mr Cadusch agreed that he did not ever see casualties being unloaded from helicopters at a helipad, located near to his work area.
With respect to alcohol consumption, Mr Cadusch agreed that, after he was made redundant by the Department of Conservation and Forests and Lands, he increased his alcohol intake considerably. When working he said that he would consume about six/seven ounce glasses of beer on two or three nights per week and on Saturdays, after football. However, he said that alcohol did not ever interfere with his service in Vietnam and he was never disciplined because of alcohol-related offences.
With respect to the history taken by Dr D'Ortenzio, a psychiatrist in Bendigo, Mr Cadusch agreed that the information reported was probably incorrect or incomplete. He thought the doctor was "strange" and he was the first psychiatrist that he had ever consulted. He felt uncomfortable speaking with him and he elected to "shut up and stop talking" during the consultation.
Mr Cadusch agreed that observing dead Vietnamese bodies, when he was travelling to Vung Tau, was the most "significant event" that happened to him during service.
The hearing resumed in Melbourne on 10 September 2002. The applicant called Mr Minife, a former service colleague and Dr Percival, a consultant psychiatrist, to give evidence. The applicant himself was also recalled.
Alan Robert Minife
Mr Minife completed a statutory declaration on 6 September 2001. It was received into evidence as Exhibit E.
The declaration reads as follows:
'TO WHOM IT MAY CONCERN
AS Mr BRIAN CADUSCH HAS STATED I WAS IN THAT DAY TRIP TO VUNG TAU. I DON'T REMEMBER THE JEEP DRIVERS NAME "SO LONG AGO". THE INCIDENT WE WITNESSED STILL IS IN MY MIND VERY PLAIN.
AS STATED THE V.C. BODIES WELL MUTILATED WERE JUST OFF THE ROAD, ONE COULD NOT MISS SEEING THEM. HOPE THIS STATEMENT HELPS Mr B. CADUSCH".
In evidence, Mr Minife said that he was a member of the Army in Vietnam in the 104 Signal Squadron between 14 January 1970 and 14 January 1971. When it was learnt that Mr Cadusch served in Vietnam between 16 April 1970 and 14 April 1971, he agreed that there was an overlap of nine months when they both served together.
Mr Minife was a trained switchboard operator and his duties extended to installation and repair of telephone cables and operating a telephone switchboard. On occasions he completed radio duties, but he said these were "rare". As a member of the 104 Signal Squadron he also participated in patrols outside the perimeter fencing.
Mr Minife said that the switchboard operated for 24 hours per day and was staffed by three operators, each completing eight-hour shifts. He said the switchboard was located near the main communications centre and he was able to hear – through the switchboard – details concerning troop movements, tank communications and other communications between officers and base. He said the communications were heard via a headset and telephone communications from "the field" were made because they were more secure than radio communications.
With respect to the applicant's evidence of his ability to observe casualties being unloaded from incoming helicopters, Mr Minife said that the helicopter base was visible from the signal squadron. He estimated that it was between 25 to 30 metres away, however the view of it was partially obscured by rubber trees. He said it was possible to observe "walking wounded" or other injured personnel being lifted on stretchers. He assumed that these persons were causalities from battle. He agreed that some persons were taken by helicopter directly to Vung Tau, but others were brought to Nui Dat.
With respect to his statutory declaration, Mr Minife that he "travelled to Vung Tau on a rostered day off". He remembered that he was travelling in an open MacIII International truck. Despite the reference by him in the statement to the "jeep driver", he said that he did travel in a truck. He said that Mr Cadusch was present during the journey. He recalled that shortly after leaving the Nui Dat base on the road to Beria, he observed Viet Cong bodies, apparently dead, lying on the side of the road. He said that his truck which was travelling in convoy did not stop, but slowed to about 10 to 15 kilometres. He recalled the scene as "not pleasant". He remembered that he and Mr Cadusch later "got on the grog". He also recalled that he and Mr Cadusch had spoken about the episode and they both agreed that it was a "terrible sight". He said that he has spoken to Mr Cadusch subsequently – indeed on the night before the hearing – and learnt that the applicant was unable to tolerate the sound of helicopters or of sirens.
Mr Minife spoke of another episode which was not referred to at all by the applicant in his evidence or in his proof of evidence. He said there was an occasion where during a rostered day off he was travelling in a convoy to Vung Tau. He said that at a short distance from Vung Tau, Vietnamese civilian police (referred to by him as "white mice", apparently because they wore white uniforms) opened fire on another Vietnamese person riding a motorbike. He said that the Vietnamese person was "hit" and "ended up in the river beside the road". Mr Minife said he did not know whether the person had been killed or injured. He said that the vehicle in which he was a passenger slowed to between 10-15 kilometres, but did not stop. Mr Minife said that when he and Mr Cadusch arrived in Vung Tau they "had a few ales and a few more and we said that we were glad that it was not us".
In cross-examination, Mr Minife said that his statement was completed about six months after a reunion that he and Mr Cadusch attended in Queensland. He recalled that Mr Cadusch told him at the reunion that he had made a claim upon the Repatriation Commission. He recalled that Mr Cadusch was "crook" and that he was "shot to pieces". When asked what he meant by the expression in his statement "as Mr Brian Cadusch has stated . . .". Mr Minife said, "I can't honestly say we did talk about it". He said he was aware that Mr Cadusch had made a claim on the basis of Viet Cong bodies that he had observed and that he sent the declaration of 6 September 2001 to him in support of his application.
With respect to that episode, Mr Minife said that he observed three or possibly more bodies which were "just off the road". When pressed on this he said the bodies were four metres from the side of the road. When he learnt that Mr Cadusch had reported the bodies had been 20 metres from the side of the road Mr Minife said, "I'm not sure about that". He said that he observed "half a dozen of our blokes" guarding the bodies and inspecting. He understood that some of the Australian personnel were "intelligence blokes". He recalled the episode occurred about nine o'clock in the morning about five or ten minutes after he left the base. Mr Minife could not recall any other buildings or equipment in the vicinity and said that the area was flat, but with the presence of rubber trees. He said a regional Vietnamese forces base was located a short distance further along the road. He believed that the bodies had been mutilated either because of exposure to hand grenades or machine gun fire.
As to his evidence concerning the ability to observe the helipad from the Signal Squadron base, Mr Minife said that it was possible to see the dust created by helicopters and to also observe personnel being taken off the helicopters. He said there was not a constant stream of incoming bodies, but there were regular deliveries of supplies. He said that there were two helicopter landing points. One was known as "Kanga" and the other was located next to the 8th Field Ambulance. He said the helipad closest to the 8th Field Ambulance was closest to the Signal Squadron base. He described it as a "mash unit" where temporary medical care was provided to persons before they were discharged for further treatment in Vung Tau. He was unable to say why some persons were brought to Nui Dat as opposed to being taken directly to Vung Tau. He said he was familiar with the unit because there was an occasion where he collapsed through heat stress and was hospitalised at the 8th Field ambulance. On another occasion, he was admitted because of food poisoning. He said the unit was staffed by medical personnel and doctors.
As to the episode where Mr Minife said that he observed a Vietnamese civilian policeman shoot another person, he said that he was a passenger in a convoy of about "half a dozen" vehicles. He said the episode occurred near the "Bear Cat" Navy base. He recalled that a Vietnamese national was shot whilst riding a motorcycle. He recalled "one burst of machine gun fire" from one of the military policeman and he also recalled that the person who was shot, fell into a river beside the Navy base.
The applicant was recalled at the conclusion of the evidence of Mr Minife. The applicant gave his evidence by telephone and because he was not present at the Tribunal premises, he did not hear the evidence of Mr Minife.
The applicant said that the switchboard he operated was located adjacent to the command centre and it was possible to hear other communications from the fire support base. He said he heard "real time" communication from infantry personnel in the field because he would receive and redirect their telephone calls but often he would stay on the line and overhear.
As to the ability to observe the helipads, the applicant said that one was located near the 8th Field Ambulance Base which he estimated to be 100 metres away. He said that there were rubber trees present and also a corrugated iron shed. Whilst he did not have an uninterrupted view, he could observe the lights from the helicopter at night and also personnel being lifted off the helicopter. He said there was an occasion when he became disorientated during a drill where he observed the helipad from a gun pit which was then located only 20 or 30 metres away. On that occasion he said he observed "walking wounded" and other persons on stretches.
Concerning the occasion where Viet Cong bodies were observed on the side of the road, Mr Cadusch said that the bodies "may be just off the road". When pressed on this issue he said they were 15 metres from the side of the road. He said that he was travelling in a jeep, but he then recalled that Mr Minife was travelling in another vehicle within the convoy. Mr Cadusch was confident therefore that he and Mr Minife were not in the same vehicle. He recalled that the convoy slowed to "walking pace" and the bodies were observed for between 10 and 20 seconds. He recalled that they were mutilated either by exposure to machine gun or armalite fire. He said the bodies were "ripped up". He recalled there were three or four bodies and "two or three or four" Australians guarding them.
When he was told that Mr Minife had given evidence concerning the shooting by a Vietnamese civilian policeman of another person, Mr Cadusch said he recalled the episode where a person was shot by the "white mice". He said the vehicle in which he was a passenger was stopped, he saw the policeman use a pistol and he heard "bang". He said he had no memory of the other person being shot by machine gun and said his memory of the episode was "vague". He did not recall discussing this episode with Mr Minife, but he did recall that they both drank alcohol together after the incident where they "got pretty drunk and went on a binge". He said that he "drank to get it out of our brain and we really made a mess of ourselves".

In cross-examination, Mr Cadusch said that the person riding the motorcycle was stopped by the police who also stopped the truck in which he (the applicant) was a passenger. He said when the person was shot the "locals skeltered". He could recall one shot only but conceded that there might have been more. When told that the Vietnamese police usually worked in pairs, Mr Cadusch then said that he could remember that there were two policemen. He said that he could not recall whether the incident occurred in a built up area or out in the open. He remembered that it was a short distance away from Vung Tau. He said the person who was shot fell to the ground but was not sure whether he fell into a river.
As to the other occasion where Mr Cadusch observed bodies on the side of the road, he said that he could not recall equipment or other personal items located with the bodies. When asked again whether any equipment was observed, Mr Cadusch said, "I think I saw guns and equipment belonging to the dead bodies".
Concerning the ability to observe helicopter pads Mr Cadusch agreed that the incoming helicopters observed by him were those that landed close to the 8th Field Ambulance. He said he could not see helicopters landing at the Kanga pad. He said that there were rubber trees located near the helipad at the Field Ambulance and some corrugated iron buildings. Nonetheless, there were occasions when he did see personnel being unloaded from the helicopter. When asked why he did not refer to these episodes when he gave his evidence in Bendigo, Mr Cadusch said it was because he was not asked.
Hugh Thomas Conant
Mr Conant is a retired Lieutenant Colonel who prepared a report at the request of the respondent dated 31 July 2002. His report was prepared from a number of historical sources and concerned enquiries he made into the episodes Mr Cadusch relied on which was said to give rise to the condition of PTSD.
The evidence of Mr Conant at the hearing was confined only to the events surrounding the alleged observing by Mr Cadusch of bodies on the side of the road and the other event which was first raised on the second day of hearing concerning the shooting by Vietnamese police of another person.
When he was told that Mr Cadusch had said in evidence that the bodies observed by him on the side of the road were located a short distance from the Nui Dat base, Mr Conant said that from the enquiries he made there were a number of Viet Cong casualties during the period that Mr Cadusch was at the Nui Dat base. He said the nearest casualty to the Nui Dat base occurred on 12 August 1970 where 19 Viet Cong were killed by Australian personnel in a "successful" counter ambush. He said it was an incident well known by persons at Nui Dat. As the ambush was conducted in darkness and a number of persons were killed, it would have been a topic of popular conversation at the base. He said the bodies were located some 70 to 100 metres to the west of the roadway. He said it would have been possible to see the bodies from the roadway, but it would not have been possible to see whether they had been mutilated. He said the persons who were shot and killed had been carrying personal possessions including back packs.
Mr Conant learnt prior to giving his evidence that Mr Minife had raised the episode of a Vietnamese person being shot by military police. By reference to notes and maps that he held he said the "Bear Cat" base was a base used by the Royal Thai Volunteer Forces and a US helicopter company. It was located some 40 to 50 kilometres to the north west of Nui Dat and it was not a Vietnamese Naval base. He said there was "not enough water" in the vicinity to base a naval unit.
Mr Conant said that when vehicles travel in a convoy the drivers are instructed to accelerate upon the sound of gun fire. This is to ensure that the vehicles and persons who are passengers are removed from the line of fire as quickly as possible. He said the procedure is not to slow down or to stop. He said this is well known military procedure also adopted by the United States, Vietnamese and South Korean forces.
Christopher Percival
Dr Percival is a psychiatrist in private practice in Shepparton. He provided a report dated 6 September 2000 to the RSL advocate of Mr Cadusch in preparation for his appearance before the Veterans' Review Board. That report is found at page 53 of the T documents. Subsequently, he provided two further reports to Mr Liefman dated 26 September 2001 and 27 August 2002. Dr Percival has been in private practice for 10 years and previously was in practice with the Victorian Public Service for 20 years. He has a special interest in patients with alcohol abuse and patients who suffer trauma. He has consulted the applicant on two occasions. He also observed reports of Dr Kenny and Dr D'Ortenzio who examined on behalf of the respondent.
Drs Percival, Kenny and D'Ortenzio diagnosed the applicant as suffering from PTSD, however the respondent submitted that the criteria under the applicable SoPs were not satisfied.
Dr Percival said that he was unhappy with the use of SoPs and regarded the finding of a medical diagnosis by legal interpretation to be unsatisfactory. He was also unhappy with previous Tribunal decisions that had found the Part A "cause" of PTSD to be satisfied on an objective basis. He said "people react to what they perceive to be the circumstances" and offered by way of example, the circumstance of a person having a gun held to their head being frightened and reacting despite later learning that the gun was unloaded and incapable of causing injury.
Dr Percival said it was difficult to obtain a history from the applicant because in his experience, persons with PTSD prefer "not to think about it". He said a diagnosis is often obtained having regard to observing the patient and having the patient express feelings. He also thought Mr Cadusch had been affected by alcohol abuse which would explain poor or incomplete memory. He also said that "human communication is imprecise". He heard the evidence of the applicant given by telephone on the second day of hearing in Melbourne and thought that the applicant continued to suffer from poor memory but also was confused.
As to the events in service, Dr Percival regarded observing mutilated bodies to be a shocking, horrifying event even if the observing was "fleeting". He was also struck by the applicant's expression of the "smell" of bodies.
Dr Percival said the applicant satisfied the definition of PTSD as found within paragraphs A-F of the applicable instrument. This was also detailed in his reports.
Dr Percival said that if the applicant could not as a matter of law satisfy the PTSD SoP, he would satisfy the SoP concerning generalised anxiety disorder. He said the diagnostic features were generally the same, that he was satisfied that generalised anxiety disorder occurred in Vietnam and therefore occurred prior to the clinical onset.
In cross-examination, Dr Percival said that the applicant did have a poor memory. He said that in his experience persons have either a "normal memory" or a "traumatic memory". He said a "normal memory" exists where an event is remembered if it has some significance. He said a "traumatic memory" exists where an event is fixed and remains permanent although detail may not be remembered clearly. It was during this discussion that Dr Percival was again critical of the PTSD instrument because one of the criteria for diagnosis was the "inability to recall detail". It was suggested to him that there may be "little to recall" about service which might be confused with a "inability to recall detail".
Dr Percival acknowledged in evidence – as he did in his second report – that he apparently misunderstood the history given to him by Mr Cadusch at the first consultation concerning the information heard whilst operating a switchboard and the frequency of helicopter traffic which was observed. Nonetheless, Dr Percival remained of the opinion that the occasion of the applicant having observed dead bodies amounted to a traumatic event where he experienced or witnessed actual death thereby giving rise to satisfaction of Part A(i) of the definition of PTSD within the SoP.
THE STATEMENT OF PRINCIPLES
The applicable Instruments are Statements of Principles, Nº 3 of 1999 and Nº 54 of 1999. Both are entitled "Post Traumatic Stress Disorder". Both Instruments have been issued by the Repatriation Medical Authority and both Instruments were "in force" at the date of primary claim.
The condition of PTSD is defined in Instrument Nº 3 of 1999, at paragraph 2, which is reproduced as follows:
…
2.(a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b)For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
The applicable factor, relied on upon by the applicant, is 5(a), which provides as follows:
…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
The expression "expressing a severe stressor" is defined in paragraph 8 as follows:
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as severe stressors include:
(i)     threat of serious injury or death; or
(ii)     engagement with the enemy; or
(iii)     witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
Instrument Nº 54 of 1999 is only relevant to the extent that it amends Instrument Nº 3 of 1999 with respect to the definition of "experiencing a stressor". The amendment is confined only to the addition of the word "severe" before the word "stressors" as that word appears immediately before sub-paragraph (i).
I have not referred to any other Instruments concerning the alternative hypotheses advanced by Mr Liefman, because I am satisfied, for reasons which will follow, that the applicant does suffer the condition PTSD and that he satisfies the applicable Instrument.
In the week prior to the conclusion of the hearing in this application, I heard another application involving a Vietnam veteran claiming PTSD (Re Gregson & Repatriation Commission V2001/1400). In that application - and in the present - there was agreement between the medical witnesses that the veteran suffered PTSD. In that application – and in the present application – there is dispute, however, as to whether the Statement of Principles is satisfied. I intend to deliver the reasons for decision in Re Gregson and this application simultaneously. In order to be consistent I adopt the application and interpretation of the PTSD Statement of Principles, part of the decision in Re Gregson that concerns the assistance to be obtained by relevant provisions within DSM-IV and the interpretation and meaning of the words "experienced" and "witnessed" and "confronted". I also adopt, for the purposes of this application, the reasons of the Federal Court and Tribunal decisions that I then relied upon. Paragraphs 98-105 of Re Gregson are reproduced as follows-
"98.     In Benjamin, the Full Federal Court of Moore, Emmett and Allsop JJ decided (at paragraph 41) that Statements of Principles were not "relevant to the question of diagnosis". In the present case, Drs Cole and Walton, being practising psychiatrists who are eminent in their field and suitably qualified to make the diagnosis, both agreed that the applicant did suffer from PTSD. An analysis of the definition of PTSD, where the diagnosis is mutually agreed between the appropriately qualified witnesses and conceded by the respondent, appears to be irrelevant. Counsel for the respondent submitted that the objective standard of Part A(i) of the definition of PTSD could not be satisfied, yet when the diagnosis is conceded, this submission also appears irrelevant. The only valid submission where diagnosis is conceded, is, in my view, that the conceded injury did not arise out of the service.
99.      It seems to me in circumstances where the witnesses agree as to diagnosis and the respondent concedes the diagnosis and the Tribunal ultimately finds that the material points to that diagnosis (as I will at the conclusion of this decision) that subject to a finding of connection between service and PTSD the focus needs to be on whether the material raised pointed to the applicant "experiencing a severe stressor", as defined, during his operational service (refer Full Court of the Federal Court decision of Repatriation Commission v Hill [2002] FCAFC 192 ("Hill"), a decision of Black CJ, Drummond and Kenny JJ decided 18 June 2002).
100.     The words "experienced", "witnessed" and "confronted" as they appear within the definition "experiencing a severe stressor" were discussed by the Tribunal in Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 106. At paragraph 79 of that decision, the Tribunal found-
"The word 'witnessed' suggests that the person was present at the event involving real or present (ie. actual) or threatened death. The word 'experienced' suggests that the person observed or encountered such an event and the word 'confronted' that he or she was faced with such an event."
101.     I am now satisfied that, whilst the above definitions are valid, they are unfortunately narrow. The Macquarie Dictionary defines "experience" as:
(i) a particular instance of personally encountering or undergoing something;
(ii)the process or fact of personally observing encountering or undergoing something;
(iii)knowledge or practical wisdom gained from what one has observed, encountered or undergone;
(iv)to have experience of; meet with; undergo;.
The word "witness" is defined as:
(i)to see or know by personal presence and perception;
(ii)to be present at (an occurrence) as a formal witness or otherwise;
…
(v)to be at the scene of;
…
(vi)one who being present personally sees or perceives a thing; a beholder, spectator or eyewitness.
The word "confront" is defined as
(i)to stand or come in front of; stand or meet facing; stand in the way of;
(ii)to face in hostility or defiance; oppose;
(iii)to set face to face.
102.     The Shorter Oxford Dictionary offers a more expansive definition of "experience" by referring to "(ii) to have experience of; to feel, suffer, undergo". The definitions of "witnessed" and "confronted" are similar in the Shorter Oxford Dictionary.
103.     The PTSD Instrument is said to be a derivation of DSM-IV. In a chapter of DSM-IV describing the diagnostic features of PTSD (page 424), the following is reproduced as an aid to what was understood by the authors of the Manual as events that are "experienced" and "witnessed". Whilst the following quotation refers to "traumatic events", as I have said earlier, the phenomena of "experiencing a severe stressor" as defined is almost word perfect to Part (A)(i) in the definition of PTSD at paragraph 2.
"Traumatic events that are experienced directly include but are not limited to military combat, violent personal assault (sexual assault, physical attack, robbery mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or man made disasters ….. Witnessed events include but are not limited to observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body part. Events experienced by others that are learned about include but are not limited to violent personal assault, serious accident or serious injury, experienced by family member or a close friend."
104.     The words - and the event - of "experiencing a severe stressor" mean that the event or events involving-
i)actual death; or
ii)threatened death or serious injury; or
iii)a threat to a person's physical integrity; or
iv)a threat to a physical integrity of another person
must be experienced or witnessed or confronted. Necessarily, the experience must be personal and, except for (i) above - which must necessarily be the death of someone other than an applicant - the events in (ii), (iii) and (iv) involve events that may be endured either by the applicant or another person, yet, precipitating a "severe stressor" which is personal and is "experienced". The phenomenon of 'experiencing a severe stressor' is not found within DSM-IV. It is a creature of the Statement of Principles and its relevance is its location within the paragraph 5 factors, one of which must exist as a minimum.
105.     Additionally, and in order to comprehend what is intended to be the ambit of "experiencing a severe stressor", the above chapter from DSM-IV also records the following (at p.424)-
"The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to extreme traumatic stressor involving direct personnel experience of an event that involves actual or threatened death or serious injury, or other threat to ones physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of anther person; or learning about unexpected or violent death, serious harm or threat of injury or injury experienced by family member or other close associate".

CONCLUSIONS AND REASONS FOR DECISION

In Repatriation Commission v Deledio (1998) 49 ALD 193, the Full Federal Court concluded that there were four stages which were to be followed by a decision-maker – therefore the Tribunal - in order to determine whether a reasonable hypothesis was raised connecting injury with the circumstances of service. The stages are at page 206 and are reproduced as follows-
"1.   The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.    If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s.196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.    If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.    The Tribunal must then proceed to consider under s.120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
Stage 1 is satisfied because an hypothesis is raised between the event in service of the applicant witnessing Vietnamese bodies, apparently deceased, whilst travelling to Vung Tau. For reasons which will be discussed later, I am satisfied that this is the only event within service which can point to a hypothesis connecting service with PTSD.
Stage 2 is obviously satisfied because there is an applicable Statement of Principles.
As to Stage 3 of the Deledio analysis, there was material raised pointing to the applicant observing deceased Vietnamese persons on the side of the road whilst travelling to Vung Tau. There were three different estimates given by the applicant, Mr Minife and Mr Conant as to the distance from the roadway the bodies were located. Mr Cadusch said that the bodies were apparently mutilated. He estimated them to be 15 metres from the roadway. Mr Minife estimated the location to the roadway to be a lesser distance, whereas Mr Conant estimated the bodies to be between 70 and 100 metres from the roadway. Whilst I cannot be confident that the location of the bodies, as described by Mr Conant, was a consequence of the same event which gave rise to the location of the bodies as observed by Mr Minife and Mr Cadusch, the common thread between the evidence of all three persons was that an incident occurred and the bodies were capable of being observed. On the evidence of Mr Conant bodies between 70 and 100 metres from the roadway could not have been observed as being mutilated but, nonetheless, he conceded that they could have been observed.
The applicant and Mr Minife said that they both proceeded to Vung Tau and then consumed considerable qualities of alcohol as a means of dealing with their observations of the bodies.
Dr Percival, in his report of 26 September 2001, recorded, at page 7:
"Mr Cadusch is absolutely specific that he did see dead and mutilated bodies in a state of decomposition, perceiving this situation through both his sense of sight and smell, and the fact that experience was not over a long period of time, but over a matter of perhaps thirty seconds to a minute, is in my view quite irrelevant, it does not take long to horrify a decent human being".
Dr Kenny did not report in the same level of detail as did Dr Percival – and although he was equally critical of the Statement of Principles – he did obtain a history from the applicant of his "stressors", including "… there were bodies that he saw". I can find no specific reference of this event in the report of Dr D'Ortenzio, who reported on behalf of the respondent (T7), save that Dr D'Ortenzio, reported the applicant "… hears all the noises and sees the bodies". I do not know whether that reference is to the bodies the applicant observed on the side of the roadway or the bodies he said that he observed being loaded into and from helicopters.
The observing of bodies amounts, in my view, to "witnessing casualties" within the meaning of the examples given in the definition "experiencing a severe stressor". It follows that the hypothesis raised connecting service with PTSD by the applicant observing dead bodies has been raised, it is related to the applicant's service, it is consistent with the "template" of factor 5(a) and it is a hypothesis which is therefore "reasonable".
Only at Stage 4 of the Deledio analysis are findings of facts required.
I found the evidence of the applicant and Mr Minife as to whether they did or actually could observe bodies being loaded onto and from helicopters at the Nui Dat Base to be wholly unsatisfactory. Additionally, I am not satisfied that the applicant actually did see bodies being loaded onto and from helicopters, being persons who were actually wounded or who were persons engaged in the standto exercise that he referred to in his evidence in Bendigo. In some respects, the applicant either contradicted his earlier evidence when he was recalled in Melbourne or he was influenced (innocently) by his conversations with Mr Minife, which both admitted occurred prior to the resumption of the hearing. I do not believe the applicant was dishonest, but I do believe he was very confused. This may be explained by his heavy consumption of alcohol over many years or because of anxiety associated with these proceedings. It follows that I am not satisfied that the applicant "experienced a severe stressor" by reason of observations of bodies being loaded onto or from helicopters.
The event which emerged during the resumed hearing in Melbourne concerning the alleged shooting of a Vietnamese national by a civilian policeman is not credible. It was raised for the first time by Mr Minife. The applicant did not raise it at all in his proof of evidence or in his evidence in Bendigo. The circumstances surrounding the alleged shooting, as described by Mr Minife and the applicant, is wholly inconsistent. The location of the alleged shooting was a considerable distance from Vung Tau and was not at a place where the applicant and Mr Minife had travelled in convoy. The alleged slowing down of their respective vehicles by reason of the occurrence of shooting is, on the evidence of Mr Conant, inconsistent with military protocol. I cannot be satisfied on the balance of probabilities that that event occurred. I cannot, therefore, be satisfied that the applicant "experienced a severe stressor" by reason of that event.
I am satisfied, on the balance of probabilities, that the applicant did observe bodies on the side of the roadway. The distance of the bodies from the roadway is, in my view, immaterial. The inconsistencies between the evidence of Mr Minife and the applicant on that issue may be explained by them both being in differing vehicles – and therefore differing distances from the location of the bodies. It may be explained by the inability of both of them to describe with any degree of accuracy the distance involved. It may also be explained by the passage of more than 30 years since that event occurred. But I am satisfied that the applicant did observe the bodies and that they were dead. I am satisfied that the applicant obviously "witnessed" and certainly "experienced" and was "confronted with" an event which involved actual death. The applicant, therefore, "experienced a severe stressor". His response certainly involved horror. He found comfort soon after in alcohol which he then consumed to excess and frequently did so on many occasions thereafter during service. Unfortunately, that has become habitual and he now drinks enormous quantities of alcohol on a daily basis. The experience by the applicant of the severe stressor occurred prior to the clinical onset of PTSD. I am satisfied that the onset occurred in Vietnam. It occurred after the occasion where the bodies were observed.
Mr Conant said that the bodies were located some 70 to 100 metres from the roadway and the extent of the injuries would not have been visible at that distance. That may be so if the event, described by Mr Conant, was the same event the applicant observed. I cannot be satisfied, on the probabilities, that that is so. That the applicant was able to recall the smell or stench of the bodies indicates that they were located at a point much closer than 70 or 100 metres.
On the balance of probabilities and for the reasons given above, I am not satisfied beyond reasonable doubt that PTSD was not war-caused. Because I am satisfied that PTSD was war-caused, the application must succeed.
It follows that that part of the decision under review, in so far as it concerned PTSD, must be set aside and in substitution for it, it is decided that PTSD is war-caused. The remaining part of the decision under review is otherwise affirmed. The application should be remitted to the respondent for assessment of pension entitlement.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley
Signed:         Katherine Navarro...............................
  Associate
Date/s of Hearing  5 August and 10 September 2002
Date of Decision  16 October 2002
Counsel for the Applicant        Mr Liefman
Solicitor for the Applicant         Mr Liefman
Counsel for the Respondent    Mr Douglass
Solicitor for the Respondent    Department of Veterans' Affairs