Cove and Repatriation Commission (Veterans' entitlements)

[2020] AATA 1999

Cove and Repatriation Commission (Veterans' entitlements) [2020] AATA 1999 (29 June 2020)

Division:VETERANS’ APPEALS DIVISION

File Numbers:2016/2145 and 2017/3890         

Re:Alan Cove

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:29 June 2020

Place:Brisbane

I vary the decision under review in application 2145 of 2016 to decide that the irritable bowel syndrome condition of the applicant was war-caused and that he is entitled to a pension, the decision is otherwise affirmed.  The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 29 July 2014 which is the date when he lodged his claim.

The Tribunal does not have jurisdiction to determine the claim in application 3890 of 2017 as the applicant was not empowered to lodge the claim on 25 November 2016 by virtue of the operation of subsection 15(5) of the Act.

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for disability pension – claim for PTSD, irritable bowel syndrome and alcohol use disorder – whether conditions related to operational service – category 1A stressor – hostile or life-threatening environment – jurisdictional issue – whether PTSD can be determined if not claimed for under original application – decision under review varied – no jurisdiction found to review decision in respect of claim filed while earlier claim not finally determined

LEGISLATION

Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (Cth)

Statement of Principles concerning alcohol use disorder (Reasonable Hypothesis) (No. 48 of 2017) (Cth)

Statement of Principles concerning irritable bowel syndrome No. 27 of 2011 (Cth)

Statement of Principles concerning irritable bowel syndrome (Reasonable Hypothesis) (No. 65 of 2019) (Cth)

Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (Cth)

Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

CASES

Applicant 5611 of 2013 and Military Rehabilitation and Compensation Commission, Re (2014) 63 AAR 123; [2014] AATA 121.

Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Bushell v Repatriation Commission (1992) 175 CLR 408
Cameron v Repatriation Commission (2003) 77 ALD 81; [2003] FCA 1323
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111
Dawson and Repatriation Commission, Re [2004] AATA 107
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Gilkinson v Repatriation Commission (2011) 197 FCR 102; [2011] FCAFC 133
Hatherall and Repatriation Commission, Re (2002) 70 ALD 194; [2002] AATA 77
Kaluza v Repatriation Commission (2011) 122 ALD 448; [2011] FCAFC 97
Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134
Meehan and Repatriation Commission, Re [2003] AATA 429
Mills and Repatriation Commission, Re [1989] AATA 4
Owen v Repatriation Commission (1995) 59 FCR 93
Parotte and Repatriation Commission, Re [2004] AATA 536
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Codd [2005] FCA 888
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690; [1999] FCA 1273
Repatriation Commission v Knight (2012) 202 FCR 451; [2012] FCAFC 83
Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11
Repatriation Commission v Stafford (1995) 56 FCR 132
Repatriation Commission v Warren (2007) 95 ALD 606; [2007] FCA 866
Riley v Repatriation Commission [2008] FCA 531
Robertson and Repatriation Commission, Re (1998) 50 ALD 668
Secretary, Department of Social Security v Riley (1987) 17 FCR 99
Tunks v Repatriation Commission (2008) 102 ALD 274; [2008] FCA 521
Voelker and Repatriation Commission [2016] AATA 427
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

29 June 2020

INTRODUCTION

1. The applicant in this matter, Mr Alan Cove (“the applicant”), has made two applications for disability pension with the Repatriation Commission (“the respondent”). He is now seeking review of the two decisions which relate to his claims for irritable bowel syndrome (“IBS”), post-traumatic stress disorder (“PTSD”) and alcohol use disorder.

2. The applicant served in the Royal Australian Navy (“the Navy”) from 26 August 1963 to 26 August 1972. His time in the Navy included several stints of operational service, specifically: 17 February 1966 to 26 April 1966 (Malaysia and Singapore), 27 April 1966 to 9 May 1966 (Vietnam), 9 June 1966 to 16 July 1966 and 24 July 1966 to 3 August 1966 (Malaysia and Singapore). The applicant was born in 1946 and joined the Navy when he was just 17 years of age.

3. The applicant has the following conditions previously accepted by the respondent as being related to his service under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”):

   ·Sensorineural hearing loss;

   ·Tinnitus;

   ·Lumbar spondylosis; and

   ·Osteoarthritis PIP joint left toe.

   CLAIM HISTORY

4. The applicant’s original claim for disability pension was lodged on 29 July 2014.[1] This claim was for the conditions of IBS, osteoarthritis and a lower back condition. The applicant claimed that his IBS was connected to his service due to “stress of service life, especially operational service in Vietnam”, and stated that he first became aware of the symptoms in the mid 1970’s but he did not seek medical attention until 2005.

   [1] Exhibit A, T-Documents for 2016/2145, T4, pp. 25 -34.

5. The claim was refused by the respondent on 29 May 2015.[2] It was determined that the applicant’s IBS condition was not related to service. Two of the applicant’s other claimed conditions, osteoarthritis of the left toe and lumbar spondylosis, were accepted.

   [2] Exhibit A, T-Documents for 2016/2145, T15, pp. 90 -98.

6. On 16 February 2016 the Veterans’ Review Board (“VRB”) varied the decision under review to include the diagnoses of PTSD and alcohol use disorder.[3] The VRB remarked in its determination: “The contention for irritable bowel syndrome contains mental health factors so the Board decided to consider the chain of causation using the SoP concerning PTSD”.[4] The VRB, however, ultimately affirmed the decision under review by determining that all relevant conditions were not related to the applicant’s defence service.

   [3] Exhibit A, T-Documents for 2016/2145, T2.

   [4] Exhibit A, T-Documents for 2016/2145, T2, p. B6, para 12 of the VRB determination.

7. The applicant applied to the AAT for a review of the decision of the VRB on 27 April 2016.[5]

   [5] Exhibit A, T-Documents for 2016/2145, T1.

8. On 2 November 2016 the Tribunal directed that the applicant lodge a fresh claim with the respondent for PTSD, in order to ensure that a claim for that condition was properly before the Tribunal.

9. On 25 November 2016 the applicant lodged a claim for PTSD and alcohol use disorder with the respondent.[6] The respondent subsequently refused this claim on 17 January 2017, determining that the applicant’s PTSD and alcohol use disorder were not related to his service.[7]

   [6] Exhibit B, T-Documents for 2017/3890, T4, pp. 56-65.

   [7] Exhibit B, T-Documents for 2017/3890, T9, pp. 75-80.

10. On 23 June 2017 the VRB affirmed the decision dated 17 January 2017 with regard to the claimed PTSD condition, and set aside the decision with regard to the claimed alcohol use disorder condition, determining that there was no condition present.[8]

    [8] Exhibit B, T-Documents for 2017/3890, T2, pp. 5-13.

11. The applicant then applied to the AAT on 30 June 2017 for review of this decision.[9]

    [9] Exhibit B, T-Documents for 2017/3890, T1, pp. 3-4.

12. The applicant has clarified that he is now only pursuing claims for the conditions of IBS, PTSD and alcohol use disorder.

    JURISDICTION ISSUE

13. Submissions were made as to whether the conditions of PTSD and alcohol use disorder are properly before the Tribunal, but it must be determined whether they formed part of the original or subsequent claim. This will determine the date of effect of the pension, if any, if it is determined that the applicant was entitled to be paid a pension in respect of those conditions.

14. The applicant and respondent have provided submissions in respect of this issue.

    Applicant’s jurisdiction submissions

15. The applicant submits that a claim for PTSD is properly before the Tribunal as part of the original (2016/2145) application; however, the applicant acknowledges that PTSD was not explicitly claimed for in the original claim form.

16. The applicant referred to the judgment of Finn J in Owen v Repatriation Commission,[10] which outlined that generally, in the absence of a claim for a condition, there is no legal obligation on, nor jurisdiction of, the primary decision-maker, and ultimately the Tribunal, to make a finding on whether that condition relates to service.

    [10] (1995) 59 FCR 93.

17. The applicant submits that, as part of the initial claim investigation, the respondent obtained a report from Dr Chris Martin, who opined that the veteran was suffering from PTSD and that his psychological symptoms contributed to his IBS, and further, that this was entirely occasioned by his naval service. Therefore, even before the primary delegate of the respondent had decided the claim in the first instance, they had before them evidence, obtained by themselves, that the applicant suffered from PTSD.

18. The applicant submits that in the respondent’s original decision, the delegate also referred to PTSD, stating that they were satisfied that the applicant’s PTSD was due to events which occurred outside of the applicant’s eligibility under the Act. The delegate specifically made a finding that the applicant’s PTSD was not war-caused.

19. The applicant submits that the VRB took the same approach in addressing PTSD, accepting the applicant’s argument that PTSD was part of the causal chain and therefore accepting that the applicant’s PTSD would have to be accepted as war-caused before the applicant’s IBS could be accepted as war-caused. The VRB varied the decision under review to include PTSD and alcohol use disorder as claimed conditions.

    Respondent’s jurisdiction submissions

20. The respondent submits that the issue of PTSD was not before the decision-maker, and therefore the Tribunal, in the original claim. The respondent agrees with the applicant’s statement of the relevant legal position stated by Finn J in Owen v Repatriation Commission.[11] The respondent also referred to the following additional comment by Finn J:[12]

    While the Act does not in terms require an application provide an accurate particularisation of the disability claimed to be war-caused, it clearly contemplates that claims for pensions will be made referable to particular injuries or diseases (see, e.g. the Act s 14(5)) and the claim form itself is constructed so as to lead towards particularisation.

    [11] (1995) 59 FCR 93.

    [12] Owen v Repatriation Commission (1995) 59 FCR 93 at [248].

21. The respondent submits that to have a condition formally considered, and accepted as war-caused or otherwise, a claim must be lodged. Section 14 of the Act specifically sets out requirements for how a claim is to be lodged, and specifies, inter alia, that it must be in writing and lodged with the department. In Owen v Repatriation Commission[13] the Court held that the Act, and in particular section 119, did not permit the Tribunal to determine whether a right shoulder injury was war-caused because the applicant had not identified a shoulder condition in the claim form and it had not previously been the subject of a decision by either the respondent or the VRB. The Court did not accept that a reference to a shoulder injury in the personal details form was sufficient to trigger the respondent’s duty to investigate, and concluded that the solution in that context was for the veteran to make a new claim with the respondent.

    [13] (1995) 59 FCR 93.

22. The respondent submits that, in Repatriation Commission v Stafford,[14] it was held that new or related conditions cannot be considered on review if they have not already been considered by the original decision-maker. Even where the VRB decides that a medical condition is service-related, where it has not been considered at the primary level the Tribunal will not have jurisdiction to determine whether that condition is related to service.[15]

    [14] (1995) 56 FCR 132.

    [15] Secretary, Department of Social Security v Riley (1987) 17 FCR 99; Re Mills and Repatriation Commission [1989] AATA 4; Re Applicant 5611 of 2013 and Military Rehabilitation and Compensation Commission [2014] AATA 121.

23. The respondent submits that the Tribunal does not have jurisdiction to consider the applicant’s conditions of PTSD and alcohol use disorder under application 2016/2145, because:

    ·The applicant’s original application did not include a claim for any psychiatric condition, which is consistent with the fact that the applicant had not been diagnosed with or been made aware that he was suffering from any such condition at that time;

    ·As the scope of the claim did not include a claim for pension for a psychiatric injury, there was no obligation at the primary level to investigate a psychiatric condition under section 17 of the Act, other than to the extent that this was required in order to consider the claim for IBS, or to make a determination about the applicant’s entitlement to a pension for a psychiatric condition under section 19 of the Act;

    ·A careful examination of the decisions of the primary delegate and the VRB in application 2016/2145, as opposed to the reasons for the decisions, reveals that no decisions about entitlement to a pension for PTSD and alcohol use disorder were ever made at either level. Findings about whether PTSD was war-caused were only contemplated in the context of the applicant’s claim for IBS.

24. In the alternative, the respondent submits that, even if the Tribunal determines that the VRB considered the applicant’s entitlement to a pension for PTSD and/or alcohol use disorder in the context of the original claim, the Tribunal is limited to reconsidering matters that have been determined by the primary decision-maker, meaning that they still do not have jurisdiction to consider these conditions in the context of the original application.

25. The respondent submits that, therefore, if the Tribunal finds that the applicant’s PTSD and/or any alcohol use disorder are war-caused, the earliest date of effect for the granting of a pension in accordance with section 20 of the Act for these conditions will be 25 August 2016, being 3 months before the section 14 claims for these conditions were received on 25 November 2016.

    LEGISLATIVE FRAMEWORK

26. Subsection 13(1) of the Act provides that where a veteran is incapacitated from a war-caused injury or a war-caused disease the respondent is liable to pay a pension by way of compensation to the veteran.

27. The applicant has performed operational service for the purposes of section 9 of the Act, which provides, inter alia,[16] that an injury or disease suffered by the veteran will be taken to be war-caused if it arose out of or was attributable to, eligible war service rendered by the veteran.

    [16] Paragraphs 9(1)(a)-(b).

28. Paragraph 7(1)(a) provides that a person who has rendered operation service shall be taken to have been rendering eligible war service while the person was rendering operational service.

29. The determination of whether an injury or disease is war-caused is to be made by applying the standard of proof outlined in subsections 120(1) and 120(3) of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:

    (1) …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.

30. Subsection 120(3) of the Act also provides:

    (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.

31. Section 120A of the Act provides that the reasonableness of a hypothesis is to be assessed by reference to any relevant Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (“RMA”).

32. Section 196A of the Act provides for the establishment of the RMA, which is an independent medical body that issues SoPs based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death. SoPs are legislative instruments and are binding on the respondent and various review bodies, including this Tribunal.

33. The relevant SoPs in this matter are:

    ·Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (Cth);

    ·Statement of Principles concerning irritable bowel syndrome No. 27 of 2011 (Cth);

    ·Statement of Principles concerning irritable bowel syndrome (Reasonable Hypothesis) (No. 65 of 2019) (Cth); and

    ·Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (Cth).

    EVIDENCE

    Applicant’s evidence

34. The applicant provided a statement dated 16 June 2016.[17] In this statement the applicant stated that he joined the Royal Australian Navy when he was 17 ½ years old, and entered as an “adult entrant”. He stated that after three months of land-based training he joined HMAS Melbourne. He was allocated to the laundry group on-board HMAS Melbourne. HMAS Melbourne departed in January 1964.

    [17] Exhibit C, Applicant’s Statement dated 16 June 2016.

35. The applicant stated that while he was on HMAS Melbourne it came into collision with HMAS Voyager. He had only just come off his shift, when the impact knocked him off his feet. He initially thought the ship had run aground. He wanted to go up to the upper deck, but when incidents like that occurred the hatches were immediately closed. He was in a small bathroom near the laundry, and there were about 10 to 12 people in that small room. The applicant was the youngest of the crew members present, all of whom were very junior in rank.

36. The applicant stated that they all had no idea what was occurring, and there was a sense of panic among them which was understandable because of their inexperience and young age. No information was transmitted through the ship’s PA system.

37. The applicant explained that the closed hatches had a manhole in them which could only fit one person at a time, so if an evacuation was required it would be a very slow process. They were below the waterline on the ship. There were three more hatches and three sets of gangways above them which had to be climbed to get to the upper deck. The applicant stated that they waited for what seemed like a long time until a Leading Seaman opened the manhole. He stated, “A lot of things go on in your mind during such stressful times”.

1. When the applicant made his way up to the upper desk he stated that he had a clear view of the remaining half of the Voyager. He could see men in the water and other men on fire jumping off the Voyager.

2. After this incident, the applicant stated that HMAS Melbourne docked for repairs. He remained living on the ship, and stated, “We were very isolated. We were never given any assistance to come to terms with what we had witnessed and experienced.”

3. The applicant later joined the HMAS Vampire on 17 February 1966. He stated that the HMAS Vampire was a sister ship to the HMAS Voyager. Its main task was to escort HMAS Sydney to South Vietnam. HMAS Sydney was similar to HMAS Melbourne. The applicant stated that the fact that he was on a warship identical to HMAS Voyager, which was escorting a warship almost identical to HMAS Melbourne “was not lost on me and was a constant reminder of the earlier trauma that I had suffered as a consequence of the HMAS Melbourne/HMAS Voyager collision”.

4. The applicant stated that HMAS Vampire did not go ashore as part of that trip to Vung Tau. While they were cruising along the coast the applicant observed explosions occurring somewhere north of Saigon, and these bombardments were carried out using the 6 inch guns of HMAS Vampire. The applicant stated that he was aware that the accuracy of these guns was poor, and it occurred to him at the time that the likelihood of collateral damage (i.e. women, children and other civilians being killed or injured) was quite high. He stated: “This knowledge causes me many sleepless nights during and since this period”.

5. The applicant explained that while HMAS Sydney was in Vung Tau their task was to intercept and board sampans and other suspicious vessels that may have been trying to ram or attach explosive devices to naval vessels. The applicant stated that while he was not part of these boarding parties, he was aware of the risk from sampans carrying explosives. He recalled one particular occasion when a boarding party captured some “Vietcong” and brought them on board the ship; he was standing very close to one of the Vietcong captives. He stated that these incidents made him realise that they were at war and his life was at risk. He was only 20 years old at the time.

6. The applicant detailed how he worked rotating shifts of 8 hours on, 8 hours off when he was in South Vietnamese waters.

7. The applicant stated that he has never received any ongoing treatment for PTSD.

8. The applicant also referred to the fact that between September and November 2005 he received correspondence from the Australian Government Solicitor (“AGS”), which at the time was acting for the Commonwealth with respect to a number of naval veterans who had instituted legal proceedings against the Commonwealth arising out of the Voyager incident. The AGS asked the applicant whether he could remember the particular plaintiffs, and to advise them of the extent of his recollections. The applicant stated that this correspondence actually served to aggravate the PTSD symptoms he was suffering from at the time.

9. The applicant gave evidence at the hearing of this matter. He stated at the outset that he wanted to make some changes to the content of his statement. He conceded that his original recollection of the events was not correct in some respects, particularly regarding the location of certain events. He clarified that his comment about HMAS Vampire conducting bombardments in Vietnam was not correct; he has since learned that the ship was not firing and instead scare charges were detonated in Vung Tau Harbour. He also clarified that the boarding of sampans took place in the FESR Indonesian confrontation, and did not involve the Viet Cong.

10. The applicant was referred to the VRB decision, where a summary of what he reportedly said was outlined. The applicant took issue with several of these comments. The applicant denied saying that he didn’t think his life was at risk at the time. The VRB transcript records the applicant making the following statement:

    Well, seeing bombardments happen brought it home that we were actually at war. Prior to that, probably as a 20 year old, it hadn’t occurred to me that our life was at risk.[18]

    [18] Exhibit G, Veterans’ Review Board transcript of proceedings dated 16 February 2016.

11. The applicant denied that he had researched and obtained any “historical naval information” for the use of the VRB, and he was not aware of whether or not his advocate had done so. The applicant also took issue with the VRB remarking that he avoided going to the sick bay on the ship.

12. The applicant confirmed that at the time he gave evidence to the VRB the events in question had occurred around 50 years ago prior.

13. The applicant gave evidence about the HMAS Melbourne/HMAS Voyager collision. The applicant stated that he knew some of the people serving on HMAS Voyager, with whom he had bonded during his initial training. He stated that everyone who was on HMAS Voyager ended up in the water, “…the ones that survived with horrific stories of burning and expecting to drown.” He confirmed that he had heard these stories from survivors before he went on the Vampire.

14. The applicant explained that, in the collision, HMAS Voyager was split in two and the forward section sank immediately. On HMAS Vampire, his sleeping quarters was also in the forward section. The applicant was asked whether, during the time spent in his sleeping quarters, he had an appreciation as to, if something similar were to happen to HMAS Vampire as had happened to HMAS Voyager, whether the applicant would have an issue getting out of his sleeping quarters. The applicant remarked: “It was a great concern”, as there would have been three watertight hatches between where he slept and the first point of exit from the ship. He agreed that it was on his mind at the time.  Later he also stated that it was hard to recall his exact feelings about where his bunk was located on the ship, but he knows he “felt at risk” throughout the entire journey. He stated that when he was sailing to Vung Tau the Melbourne joined the flotilla for a brief time and that was frightening, because they were at actions stations. He stated, “I felt at risk”.

15. The applicant also gave evidence about his job repairing corroded communication cables on the bridge. He stated that he was not trained for the job; a communication cable snapped and the Captain ordered him to go up and splice it, and as he did a good job it became his job. He stated that he completed the task at least five times. He explained that he had to climb up approximately 10 metres, negotiating angle lines. He had a safety harness, but he had to detach it while attempting to retrieve the cable. He stated, “I felt exposed, I felt scared…” The ship was moving and if he had slipped he would have landed on the deck or in the ocean.

    Alcohol questionnaire

16. The applicant completed an alcohol questionnaire on 13 August 2015.[19] He noted that he regularly started to drink alcohol in July 1964 in a social capacity on weekends after he reached the legal age. He stated that he also drank 3 beers a day. He noted that he continues to drink. He stated that he believes his alcohol consumption was due to or affected by his service, “in view of being allocated for duty in Vietnam in 1964 not long after the Voyager incident”. He stated that his alcohol consumption increased in April 1966 to 6 beers per day after his second tour of Vietnam.

    [19] Exhibit A, T-Documents for 2016/2145, T19, pp. 122-123.

    Dr Albert Palazzo, Military Historian

17. Dr Palazzo has provided three reports dated 21 August 2016, 16 October 2017 and 19 May 2018.[20]

    [20] Exhibit D, Reports of Dr Albert Palazzo dated 21 August 2016, 16 October 2017 and 19 May 2018.

18. In his report of 21 August 2016, Dr Palazzo outlined that his focus was on the applicant’s operational service in Malaysian and South Vietnamese waters during “Confrontation” and the Vietnam War. He noted that his report was based on the Report of Proceedings of the HMAS Vampire.

    Confrontation

19. Dr Palazzo explained that Confrontation was an undeclared war fought from 1962 to 1966 between Britain (and Commonwealth allies) and Indonesia. Australia had committed itself to defending Malaysian territory, and part of this was their contribution to the British Commonwealth Far East Strategic Reserve (“FESR”). Under this arrangement Australian forces participated in two conflicts: the struggle against communist insurgents in the Malayan Emergency, and the Confrontation with Indonesia. Dr Palazzo stated that the applicant would have participated in the Confrontation aboard HMAS Vampire.

20. Dr Palazzo stated that HMAS Vampire sailed from Sydney on 17 February 1966, and docked in Singapore in early March. The Vampire’s task was to conduct counter-interdiction patrols of sea vessels journeying to Malaysia and Singapore from nearby Indonesian territory. The Vampire’s Report of Proceedings for these months documents numerous counter-interdiction patrols carried out by the ship. Invariably these searches revealed fishermen carrying out illegal fishing, curfew violators, or smugglers running contraband. On some occasions, when smugglers refused to stop, the Vampire set off flares and opened fire.

21. Dr Palazzo explained that the Report of Proceedings also mentions the undertaking of two gunfire support missions in Darvel Bay in the Tawau District near the border with Indonesian Borneo. The report did not provide any context to the bombardments so their purpose could not be ascertained.

22. Dr Palazzo stated:[21]

    Although the Vampire never encountered Indonesian infiltrators, the seriousness of these activities should not be discounted. The Vampire’s crew were at action stations and had boarding parties standing by. It was only after the completion of a search of a stopped boat that the lack of threat would be perceived… the possibility of danger is always there.

    [21] Exhibit D, Report of Dr Albert Palazzo dated 21 August 2016, p. 4.

    The Vietnam War

23. The applicant was aboard the Vampire when it served as an escort for HMAS Sydney during its passage to Vung Tau, Vietnam. HMAS Vampire was at Vung Tau on 4-6 May 1966. The Navy considered that there was a very real risk of Viet Cong attack to HMAS Sydney, so it remained in port only for a short period. A series of defence protocols were implemented, which would have been in place during the applicant’s visit to Vietnam.

24. The threat to Navy ships at Vung Tau took four forms, namely attack by:

    1)‘Frogmen’ from ashore;

    2)Swimmers from sampans or driftwood;

    3)Small river mines being floated down on the ship; and

    4)Gun or mortar firing from ashore.

25. The waters of Vung Tau harbour were extremely murky, so there was always a potential threat from Viet Cong underwater swimmers. Therefore, it was normal practice to conduct defensive boat patrols around the anchorage with towed drag-lines, and regular searches of the anchor cable, propellers and hull were carried out.

26. The Report of Proceedings for HMAS Sydney describes the precautions the ship and its escorts were to implement once they arrived at Vung Tau. While anchored, the ships implemented Operation AWKWARD, which consisted of:[22]

    Armed upper deck sentries, additional lookouts, waterborne patrols and sweeps of the hull and anchor cables by ship’s diving teams. Underwater scare charges were also employed as a deterrent against swimmers.

    [22] Exhibit D, Report of Dr Albert Palazzo dated 21 August 2016, p. 5.

27. Dr Palazzo’s supplementary report of 16 October 2017[23] was provided in response to a request to investigate naval gunfire support missions that were conducted by HMAS Vampire in July 1966. Dr Palazzo confirmed that, while the applicant was serving on HMAS Vampire, the ship conducted two naval gunfire support firings. As noted in his original report, the ship’s Report of Proceedings did not provide any additional information or context to these firings. Dr Palazzo noted that he was unable to find additional information from other sources.

    [23] Exhibit D, Report of Dr Albert Palazzo dated 16 October 2017.

28. In order to provide some context, Dr Palazzo searched the Reports of Proceedings of other Navy ships which had sailed in the same waters as close to the same time period as possible. He located one additional instance of a Navy ship conducting naval gunfire support missions. In June 1965 HMAS Yarra was serving as the guardship in Wallace Bay. According to its Report of Proceedings, HMAS Yarra carried out gun firing missions and expended 70 rounds. The targets were possible concentrations of Indonesian infiltrators. Subsequent reports were that the bombardments were of a deterrent nature, and therefore not specifically aimed at a known location of infiltrators. It has also been described as “harassment firing”.

29. Dr Palazzo determined that HMAS Hawk also served in these waters in April 1966, and its Report of Proceedings notes that one of its patrol tasks was to deter Indonesian infiltrators from breaching the maritime border. Its anti-infiltration patrols were a routine procedure aimed at discouraging any attempts.

30. Dr Palazzo also referred to a book entitled Tiger Territory, by Mr Ian Pfennigwerth, who served on two tours with the Navy during Confrontation.[24] This book mentions one incident which may relate to the actions of HMAS Vampire, but this cannot be verified. In June 1966 an Indonesian infiltration party set out for Tawau, but was forced to turn back. It was not mentioned which ships were involved, but the time period in which it took place coincides with HMAS Vampire’s service in those waters.

    [24] Pfennigwerth, Tiger Territory: The Untold Story of the Royal Australian Navy in Southeast Asia from 1948 to 1971, Rosenberg Publishing, 2008.

31. On the basis of this contextual information, Dr Palazzo concluded that it is clear that these gun firing missions were undertaken in order to deter Indonesian infiltrators from entering Malaysian territory, or to harass any who did. 

32. When he gave evidence at the hearing of this matter, Dr Palazzo confirmed that he could not draw a firm conclusion on the intention of the gun fire support missions in Darvel Bay. Dr Palazzo explained that HMAS Yarra served in Wallace Bay, which is the next bay along the coast from Darvel Bay.

33. Dr Palazzo gave evidence that the anti-interdiction patrols carried out by HMAS Vampire did not reveal any hostile military personnel; however, there were other interceptions which took place in those waters by other ships which did. In these instances the military personnel were in innocent or routine-looking boats which were en-route to conduct offensive operations against Malaysia. Dr Palazzo stated that Australian servicemen had no way of knowing whether the occupants of a vessel would be Indonesian troops or otherwise until they actually stopped the boat, so when they stopped the boat they had to take all precautions.

34. Dr Palazzo explained that there was a high risk of attack to HMAS Sydney at Vung Tau because it was the largest ship in the Australian Navy’s fleet at the time, and also because it mainly carried troops. The Viet Cong had already conducted offensive operations against United States ships, so there was a great fear that the Viet Cong would carry out an attack on the Sydney in any of the four ways outlined in Dr Palazzo’s report. Dr Palazzo stated that at some point during the Vietnam War all of these four tactics were carried out, just not against HMAS Sydney. Dr Palazzo stated that all servicemen on the ships would have had an appreciation of the risk of enemy attack in Vung Tau Harbour; a risk that was both to the ship and to their lives.

    Second supplementary report

35. This report was provided after the first day of hearing in this matter, on 19 May 2018.[25] Dr Palazzo was requested to examine the log books of HMAS Vampire, and to specifically investigate whether HMAS Vampire undertook guardship duty at Wallace Bay, the dates of any naval gun ship fire (“NGSF”) in June or July 1966, where the HMAS Vampire was during any firings, and whether the HMAS Vampire intercepted or fired on enemy troops while in Malaysian waters.

    [25] Exhibit D, Report of Dr Albert Palazzo dated 19 May 2018.

36. Dr Palazzo explained that the focus of his inquiry into the log books was on any remarks made, which are typically very brief. He provided a list of relevant remarks, which included:[26]

    ·“28 June, 1050, Commenced NGSF Exercise with “X” turret. Competed (sic) 1300”;

    ·“30 June, 1000, commenced NGSFX, completed 1150”;

    ·“8 July, 1125, commenced NGFS firings – completed 1235”; and

    ·“12 July, 1016 Commenced NGSFX; 1135 near Adal Island, completed NGSFX”.

    [26] Exhibit D, Report of Dr Albert Palazzo dated 19 May 2018, p. 3.

37. Dr Palazzo noted that one of the firings (28 June 1966) was clearly identified as an exercise, while two of the firings (30 June and 12 July 1966) contain the suffix “X”, which usually indicates an exercise. The fourth firing did not specify whether it was an exercise, but Dr Palazzo noted that it was conducted in the same area as the other three firings.

38. Dr Palazzo noted that all firing locations were near Adal Island, which is in Darvel Bay.

39. The log books also made numerous references to boarding, searching and investigating vessels.

40. Dr Palazzo stated that the term “guardship” does not appear in the ship’s log, however from the activities highlighted it is clear that one of the duties of HMAS Vampire was to intercept, stop and inspect local boats. He could not ascertain whether those tasks were performed by a “guardship” specifically.

41. Dr Palazzo stated that the log books did not identify any enemy troop positions or targets for any of the firing missions. He noted that the log books did not give coordinates for targets. He stated that as three of the firing missions were identified as exercises it is unlikely that enemy troops were targeted.

42. Dr Palazzo gave further evidence to the Tribunal after he had submitted this supplementary report. During cross-examination he advised that he no longer held the opinion outlined in his report of 16 October 2017: i.e. that the firing missions would have been undertaken to deter Indonesian infiltrators. He stated that the information from the logs indicates that the firings were simply exercises. He also confirmed that his research did not identify any firings that included ship to shore bombardments of enemy targets.

43. Dr Palazzo was asked about the anti-interdiction steps taken by HMAS Vampire in June and July 1966. He confirmed that boats were regularly stopped and inspected, but that there was no reference in the ship’s log to the searches revealing any infiltrators. 

    Dr Chris Martin, Psychiatrist

44. Dr Martin provided a report dated 8 January 2015 at the request of the respondent.[27] In this report Dr Martin noted that the applicant suffers from IBS and that the applicant “is in no doubt that his bowel symptoms fluctuate in accordance with his overall level of stress and anxiety”.

    [27] Exhibit A, T-Documents for 2016/2145, T12, pp. 59-61.

45. Dr Martin noted the applicant’s reports of having several experiences during his naval service which caused him to feel fear, horror and helplessness. He outlined that many of the applicant’s mates were killed in the HMAS Melbourne/HMAS Voyager collision, and he saw crew members jumping from the ship, some of whom had burning fuel on their bodies. He then watched the rest of the ship sink with all remaining crew members.

46. The applicant was noted to have reported a “terrifying experience when repairing communication wires on a mast on the HMAS Vampire when he was spooked by a low flying RAF fighter jet, almost causing him to fall”. He also reported “feelings of horror” knowing that the bombardments off the coast of Vietnam may be falling on innocent women and children, and feelings of “great fear” when he came in contact with local sampans off the coast of Vietnam, as they were used as booby traps by the Viet Cong.

1. The applicant reported experiencing psychiatric symptoms since the late 1970’s, including:

   ·Re-experiencing phenomena, particularly dreams of the HMAS Voyager incident, and waking during the night drenched in sweat after these dreams;

   ·Recollections of the various traumatic events during his waking hours on a frequent basis;

   ·Symptoms of over-arousal including irritability, anxiety and broken sleep;

   ·Significant avoidance of shopping centres and other crowded places;

   ·Intermittent depressive symptoms largely characterised by a lack of motivation and social avoidance.

2. The applicant reported no history of alcohol abuse or dependence.

3. Dr Martin diagnosed the applicant with PTSD. He stated: “I believe the PTSD is entirely occasioned by his naval service” and “I further believe that his psychological symptoms contribute in part to the severity of his irritable bowel symptoms”.[28]

   [28] Exhibit A, T-Documents for 2016/2145, T12, pp. 60-61.

4. Dr Martin provided a supplementary report dated 11 August 2016 at the request of the applicant.[29] Dr Martin stated that the applicant found it very difficult to particularise his psychiatric symptoms, despite intensive questioning. The applicant indicated that he had suffered a range of psychiatric symptoms since the late 1970’s, but noted that he had suffered problems with sleep since the late 1960’s. Dr Martin opined that it was therefore likely that the onset of psychiatric symptoms were present since the late 1960’s. He noted that the applicant’s symptoms were of a “late onset” nature.

   [29] Exhibit B, T-Documents for 2017/3890, T3, pp. 15-16.

5. Dr Martin stated that the applicant was clear that all the traumatic incidents he reported contributed to his distress.

6. Dr Martin confirmed that the applicant’s symptoms “leave it in no doubt” that his PTSD was caused by the HMAS Melbourne/HMAS Voyager collision. He speculated that because the applicant’s early sleep issue symptom began within a few years of the Vietnam incidents this might suggest that the incidents in Vietnam caused a worsening of his symptoms, but this could not be verified. He stated, “It is certainly possible that the Vietnam experiences were the “straw that broke the camel’s back” and led to the eventual clinical manifestations of the disorder”.[30]

   [30]

7. Dr Martin noted that during the “quite rigorous” interview, the applicant did not mention the issue of HMAS Vampire being a sister ship to HMAS Voyager.

8. Dr Martin also provided a report dated 15 September 2016, in response to a letter from the applicant’s representative.[31] In this report he agreed that it was “more likely than not that [the applicant’s] experiences in Vietnam either contributed to the development of his post-traumatic stress disorder, or aggravated a pre-existing post-traumatic stress disorder”.

   [31] Exhibit B, T-Documents for 2017/3890, T3, p. 14.

9. Dr Martin gave evidence at the hearing. He noted that he was aware of the changes to the applicant’s evidence, and advised that these changes did not materially change his opinions as to the cause of the applicant’s PTSD.

10. Dr Martin was asked to provide his opinion on whether the applicant’s PTSD was caused by the HMAS Voyager collision or his experiences in Asian waters. Dr Martin confirmed that the applicant’s PTSD is of late onset, and this onset can occur many years after the original trauma. He explained that the applicant did not report any symptoms of PTSD prior to his service in Vietnam and Malaysia, but the content of his symptoms (e.g. dreams of the HMAS Voyager collision) made it very clear that the cause of his PTSD was the HMAS Voyager incident. He stated that “risk factors for the development of late onset PTSD include the superimposition of other traumas along the way”, so he believes that the most likely scenario is that the applicant’s PTSD was caused by the HMAS Voyager incident, however, was precipitated by the additional stressors he faced in Asia, and that is why it was after that time that his symptoms emerged. He explained that the applicant’s experiences in Asian waters were factors in the onset of the applicant’s PTSD but were not necessarily causative. Dr Martin agreed that the applicant was vulnerable to the stressful events which occurred during his service in Vietnam and Malaysia.

11. During cross-examination, Dr Martin was asked whether the applicant’s changes to his evidence affected Dr Martin’s view of the reliability of the applicant’s evidence. Dr Martin stated: “Well, the evidence that he gave me was clearly incorrect… so, to that extent, he was not a reliable historian when he saw me but I can’t comment on the reliability of his statements after that time”. However, when asked about whether he considered that there was any effect on the general reliability of the information the applicant provided to him, he stated:

    In my experience, it’s not uncommon for PTSD sufferers where the traumas have been very - very much in the distant past to have inaccurate recollections of the trauma or, indeed, to have fabricated some aspects of the trauma and later to have been shocked by the realisation that they have fabricated some elements of the trauma. Notwithstanding that, I don’t think that has taken away from the sincerity of their self-report in terms of their symptoms and other issues… That does not, in any way, impinge on the reliability of the rest of their history.

12. Dr Martin noted that he accepted the information given to him by the applicant, stating: “Unless there are glaringly obvious reasons not to do so, I accept that patients are telling me the truth”.

13. Dr Martin commented that he did not explore the applicant’s experiences in Asia in very great detail, as his original focus was on assessing any psychological contribution to the applicant’s IBS; it later became clear that the applicant had PTSD and it was clearly related to the HMAS Voyager incident.

14. Dr Martin was also asked about the applicant’s experience with bombardments and coming into contact with prisoners. Dr Martin stated that, with respect to the prisoners, the applicant had a fear that the boats might be used as booby traps, and “the fact that they were not actually booby trapped is somewhat peripheral. It’s the fact that his perception was that they might be”.

    Dr Josephine Sundin, Psychiatrist

15. Dr Josephine Sundin, Psychiatrist, provided a report dated 12 December 2017 at the request of the applicant.[32] In this report, Dr Sundin outlined a detailed summary of the facts as she understood them. She noted that there seemed to be some uncertainty surrounding the applicant’s evidence on the repairs done to communication wires. The applicant did not refer to this task in his statement; however, he explained to Dr Sundin that this took place on HMAS Vampire when it was off the Malaysian coast. The applicant explained that one of his jobs was to repair corroded communication cables. Repair of the cables required him to go up the mast, and the job took between 5-30 minutes. He recalled completing this job approximately five times in unsettled weather when the sea was choppy. The applicant reported feeling fearful when he was up the mast, stating: “I was concentrating mostly on not falling”. He said that he felt exposed and at risk, describing “hanging on for dear life trying to catch the cable”. While he did have a safety harness, he had to release the harness in order to catch the cable.

    [32] Exhibit E.

16. Dr Sundin reported that the applicant also spoke about his fear that the shore bombardments undertaken by HMAS Vampire may have injured or killed innocent civilians.

17. Dr Sundin reported that the applicant described symptoms consistent with an acute stress reaction in the immediate aftermath of the HMAS Voyager disaster; given the passage of time the applicant could not accurately describe how quickly those symptoms settled, but he believes they were not active for most of the 1960’s. However, the applicant recalled the symptoms came “flooding back” in the aftermath of the HMAS Melbourne collision with HMAS Evans in 1968; similarly, in subsequent decades whenever there was news of a naval collision the applicant was aware of intense psychological distress and memories of the HMAS Voyager disaster.

18. Dr Sundin reported that the applicant’s main psychological symptoms commenced in the mid to late 1970s, and presented in the following ways:

    ·Poor sleep, waking in a fright and sweating;

    ·Frequent bad dreams, often revisiting HMAS Voyager disaster but experienced as if HMAS Vampire was being split in two and the applicant was on HMAS Vampire;

    ·Feeling anxious and angry all the time;

    ·Ongoing increased startle reflex;

    ·Crowd avoidance; and

    ·While the applicant did not experience spontaneous flashbacks of any of the distressing incidents during the day time, he could be reminded of his naval service by news items and experience flooding memories.

19. Dr Sundin noted that the flooding of memories and the nightmares have been a recurrent experience for the applicant for many decades.

20. Dr Sundin referred to several subsequent stresses the applicant experienced. At the time of the 1974 floods the applicant was caught at the office he was working at and was separated from his wife and children for three to four days. He denied feeling fearful at that time. In 1976 the applicant separated from his first wife. He reported that the divorce was initially stressful but he and his ex-wife eventually worked out arrangements. The applicant remarried in 1979 and had another daughter. Dr Sundin noted that the applicant could not identify any other stressors from the early to mid-1970s which might explain the onset of his emotional distress from that time onwards.

21. Dr Sundin made the following notes:

    ·The applicant has always worked full time and recently retired at the age of 68;

    ·The applicant has never received psychiatric care;

    ·The applicant’s longstanding IBS is flared by extraneous psychosocial stressors;

    ·The applicant consumes a carton of 24 beers over the course of a week, and consumes 10 cans of beer each Tuesday while golfing with his friends. He has two to three alcohol-free days per week; and

    ·The applicant was a coherent and sincere historian.

22. Dr Sundin stated that she agrees with Dr Martin, concluding that the applicant has PTSD as a consequence of the HMAS Voyager disaster and that the condition was delayed in onset. Dr Sundin considers that there were a number of subsequent events which had a cumulative effect and adversely impacted the applicant’s psychological wellbeing, including his experiences in Vung Tau Harbour and Indonesia.

23. Dr Sundin stated that the applicant clearly described a sense of threat and apprehension during his time in Vung Tau Harbour, which substantially worsened during his service in Indonesia when, over a period of 28 days, he was at action stations, witnessed bombardment of the coastline, and had to repair communication cables on the mast.

24. Dr Sundin therefore opined that the applicant’s service in Indonesia and Vietnam aggravated the psychiatric disorder which had originally onset in the aftermath of the HMAS Voyager disaster.

25. Dr Sundin gave evidence at the hearing of this matter. During cross-examination she confirmed that she diagnosed the applicant with PTSD but no other psychiatric conditions. She stated that she believes the applicant may have met the diagnostic criteria for an alcohol use disorder in the past, but at the time of her review of the applicant he no longer suffered from this disorder. She agreed that she couldn’t say with certainty that he suffered from an alcohol use disorder.

26. Dr Sundin confirmed that she still believes the applicant’s PTSD was caused by the HMAS Voyager collision.

27. Dr Sundin was asked about the acute stress reaction the applicant suffered from following the HMAS Voyager collision, and what symptoms he experienced. She described intrusive recollections of events that occurred during the HMAS Voyager disaster, re-experiencing phenomena by way of flashbacks and nightmares, and anxiety symptoms consistent with a person who had been through a traumatic experience. However, she stated that by what the applicant described, those symptoms settled down a bit until later events reawoke them. She explained that the applicant recalled his symptoms being more prominent from the late 1970’s, and he had difficulty recalling whether those symptoms had continued through the 1960s.

28. Dr Sundin was asked whether the applicant was experiencing symptoms of PTSD as at 1966.  She stated:

    …Based on the clinical course of post-traumatic stress disorder, and given that he described clear symptoms of an acute stress disorder after the collision, clinically I think it is probable that he was sub-syndronal for PTSD in the 1960s in that had he been examined at that time he may have had a number of low grade symptoms of anxiety and some neurovegetative disturbance, but these were not fulsome until after 1968

29. Dr Sundin was asked whether delayed onset PTSD requires a precipitating event separate to the original trauma to cause symptoms. She stated:

    The clinical research tends to support the idea that the symptomatology never really goes away but that it will wax and wane in intensity over a course of time… But when you then get subsequent traumatic events what we find is that then the earlier PTSD symptoms will flare.

30. When asked for her opinion as to the date of onset of the applicant’s PTSD, Dr Sundin stated that she believes the onset was after the HMAS Melbourne/HMAS Voyager collision, in that the applicant suffered an acute stress disorder after the event. She stated that the applicant’s symptoms were dormant for a time, and then started to flood back from around 1968 onwards, which the applicant related to the collision between HMAS Melbourne and HMAS Evans, as it reminded him of the earlier HMAS Voyager collision. After that, the applicant’s symptoms increased in intensity. Dr Sundin stated that by the mid-1970s the applicant was having very active symptoms.

31. Dr Sundin was referred to her report where she stated that the applicant’s principal symptoms onset in the mid to late 1970s. She stated that she would change that comment now to reflect that his symptoms “recurred or flared in the mid-1970s”.

32. Dr Sundin noted that the applicant did describe to her symptoms of anxiety and emotional distress prior to 1968, she just didn’t have sufficient information to know whether he would have met the full diagnostic criteria for active PTSD at that time.

33. Dr Sundin confirmed that she believes the applicant’s service in Vietnam and Indonesia in 1966 aggravated his PTSD. She explained by way of a metaphor that she considered the original HMAS Voyager/HMAS Melbourne collision to be the “first fracture to the bone” but then the events of 1966 and 1968 were re-fractures of the original traumatic event which lead to the long-term damage.

34. When asked whether she thought the applicant’s condition was made permanently worse by the events during his operational service in 1966, Dr Sundin stated: “I think that the events of 1966 caused an aggravation and took his psychiatric condition from sub-syndromal to the point that it was gradually worsening”. When questioned further she stated that, on the balance of probabilities, it is likely that those events made the condition permanently worse. She explained that this was because, during that time, the applicant was in an operational role, in an operational environment, and he described a sense of being at risk during that time, and described undertaking some specific duties which he found very stressful and which he felt exposed him to risk. She stated that the applicant had difficulty recollecting events prior to 1968 but was able to talk about feelings of anxiety and apprehension during his operational service in 1966.

35. To summarise, Dr Sundin opined that the clinical onset was sometime in the aftermath of the HMAS Melbourne/HMAS Voyager disaster, then aggravated by events in 1966 and made worse in 1968.

36. Dr Sundin was asked about the personal issues that arose in the applicant’s life from 1974 to 1977 and whether she considers that these events impacted on the applicant’s condition. She stated that while those stressors “may have had the potential to aggravate his emotional distress”, the applicant denied that the floods or the marriage breakdown caused him distress. Beyond that she was unable to comment further.

37. Dr Sundin was also asked about her comment that the applicant “developed a fear that bombardments may have injured or killed innocent victims”, and she clarified that the applicant held this fear at the time of the events occurring.

    SUBMISSIONS

    Applicant submissions

38. The applicant submits that the correct and preferable decision is that the reviewable decision be set aside and substituted with a decision that PTSD is war-caused with effect from the date of lodgement of the first formal claim.

    PTSD diagnosis

39. The applicant submits medical opinion should be acted upon when considering the diagnosis of a condition.[33] The applicant submits that he has been diagnosed with PTSD based on the opinions of two psychiatrists, Dr Martin and Dr Sundin.

    [33] Repatriation Commission v Warren [2007] FCA 866 at [23], Repatriation Commission v Codd [2005] FCA 888 at [48] and Repatriation Commission v Gosewinckel [1999] FCA 1273 at [55].

    Relationship to operational service – Deledio Steps

40. The applicant referred to the four-step process outlined in Repatriation Commission v Deledio (“Deledio”).[34] The applicant noted that the relevant inquiry, as dictated by subsection 196B(14) of the Act, is not whether there was a connection between the applicant’s operational service and his PTSD condition, but rather whether there was a connection between that service and a factor in clause 6 of the SoP.[35]

    [34] (1998) 83 FCR 82 at [92]-[93] and [97]-[98].

    [35] Repatriation Commission v Knight (2012) 202 FCR 451 at [13], referring with approval to Knight v Repatriation Commission (2010) 52 AAR 547 at [47], Katzman J.

    Deledio Step One

41. The applicant’s hypothesis is that his PTSD is related to his operational service by virtue of him having stressful experiences onboard HMAS Vampire, including:

    ·In and around Vung Tau harbour;

    ·In the FESR when his ship stopped and searched boats;

    ·In the FESR when it conducted bombardments; and

    ·In the FESR when he performed the task of repairing corroded communication cables.

    Deledio Step Two

42. The applicant submits that the relevant SoP for the PTSD condition is SoP No 82 of 2014, and the relevant factors within clause 6 are:

    (a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or…

    (c) living or working in a hostile or life−threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder; or

43. The applicant notes that a “category 1A stressor” is defined in clause 9 to include (a) experiencing a life-threatening event. A “hostile or life-threatening environment” is defined to mean:

    a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:

    (a) experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;

    (b) experiencing or being under threat of nuclear, biological or chemical agent attack; or

    (c) being involved in combat or going on combat patrols;

    Deledio Step Three

44. The applicant submits that this step requires consideration of:

    ·The date of clinical onset of PTSD;

    ·Whether the raised facts point to the applicant having experienced a relevant stressor before that date; and

    ·Whether the relevant stressor pointed to by the raised facts occurred during a period of operational service.

1. The applicant submits that, in accordance with Kaluza v Repatriation Commission,[36] there needs to be medical evidence to underpin a finding as to the timing of clinical onset. Both Dr Martin and Dr Sundin determined that the applicant’s PTSD was of delayed onset. Dr Sundin specified that onset was in the mid to late 1970s.

   [36] (2011) 280 ALR 621.

2. While Dr Martin also offered an opinion as to causation, the applicant submits that this is not the relevant task of a specialist medical practitioner.[37]

   [37] Repatriation Commission v Knight (2012) 202 FCR 451.

3. The applicant submits that the Tribunal should find that the date of clinical onset of PTSD was in the mid to late 1970s, or was at least after his experiences in Vietnam and Malaysia.

4. The next issue is whether the raised facts point to the applicant having experienced a relevant stressor before the date of clinical onset.

5. The applicant submits that when assessing whether the applicant experienced a category 1A stressor, his perception of events (of whether they posed a threat of death) is critical. His perception must be reasonably held, judged objectively from the point of view of a reasonable person in the position of and with the same knowledge as the veteran, and the threat must have been capable of and conveyed the threat of death.[38]

   [38] Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430 at [67].

6. The applicant submits that it is of particular significance that he served on HMAS Melbourne when it collided with HMAS Voyager; the applicant knew several of the sailors onboard HMAS Voyager, and he was profoundly affected by the collision both from directly experiencing it and from speaking with survivors. The applicant then served on HMAS Vampire, which was identical in most respects to HMAS Voyager. The applicant’s sleeping quarters on HMAS Vampire were in the forward section of the ship, which corresponded to the same part of HMAS Voyager which went down quickly after the collission. During his service on HMAS Vampire the applicant was greatly concerned that if something similar happened to that ship, he would have difficulty escaping from his sleeping quarters.

7. The applicant’s evidence was that from when HMAS Vampire departed Australia in February 1966 to when it returned in August 1966 he felt at risk, throughout the entirety of the journey. At certain times he felt at greater risk. The applicant felt particularly at risk when he was in and around Vung Tau harbour, especially when HMAS Melbourne joined the flotilla; the applicant found this frightening because the ship was at action stations, and also because of his previous experience with HMAS Melbourne. Dr Palazzo reported that Navy authorities considered that the risk of enemy attack to Australian ships in Vung Tau harbour was very real.

8. The applicant submits that this evidence establishes an objective threat, and that the applicant’s experiences in and around Vung Tau harbour constituted him experiencing a life-threatening event, considering:

   ·His youth (he was 20 years old at the relevant times);

   ·His inexperience (that was his first trip into a war zone); and

   ·His already damaged psychological make-up (having been traumatised by the Melbourne/Voyager collision).

9. The applicant submits that his experiences on HMAS Vampire in the FESR when his ship stopped and searched boats also constituted experiencing a life-threatening event, as he feared that those vessels may have been endeavouring to ram or attach explosive devices to naval vessels. Dr Palazzo’s research confirmed that HMAS Vampire stopped and searched numerous vessels during the applicant’s operational service, and that the HMAS Vampire’s crew were at action stations and had boarding parties standing by. He stated that it was only after a boat was searched that the lack of a threat would be perceived.

10. The applicant submits that his repeated trips up the mast to repair broken cables in the FESR also constituted experiencing a life-threatening event. The applicant described this experience as one which induced incredible fear in him because of the vulnerability that he felt.

11. The applicant submits that these stressors were founded on objective events and therefore the applicant’s perception that his life was threatened was reasonably held per Border and Repatriation Commission.[39]

    [39] (2010) 191 FCR 163.

12. The applicant also submits that in the course of his operational service he lived and worked in a hostile or life-threatening environment for a period of at least four weeks. The applicant’s 127 days of operational service included time spent in and around Vung Tau harbour, escorting HMAS Sydney to Vietnam, and in Malaysian waters whilst the Indonesian confrontation was going on; the evidence establishes this as a hostile or life-threatening environment.

13. The applicant has properly acknowledged that his evidence before the Tribunal differed slightly from his statement, but only in respect of dates and locations. The applicant readily concedes that he was mistaken as to precise dates and locations given the passage of time and the fact that he had not referenced any records. The applicant submits that this does not impact on the applicant’s credibility.

    Deledio Step Four

14. The applicant submits that his claim will succeed unless (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or (b) the truth of another fact which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving the hypothesis. In Bushell v Repatriation Commission[40] Brennan J (as His Honour then was) emphasised the need for the respondent to be satisfied beyond reasonable doubt of facts which “destroy” the hypothesis that an incapacity is war-caused. His Honour expressed this conclusion at 427 as follows:

    However, in a case where a causal connexion between the circumstances of operational service and a veteran’s morbid condition is a matter of hypothesis only, the raising of a reasonable hypothesis by the evidence not only precludes the operation of subs (3) but also will generally preclude a determination under subs (1) that there is no causal connexion. In such a case, where a decision-maker makes a determination under subs (1) on the same material as that which led to a conclusion under subs (3) that there is a “reasonable hypothesis” of connexion, it would be impossible to conclude beyond reasonable doubt that there is no causal connexion. Before a negative conclusion could be reached, the decision-maker would have to be satisfied beyond reasonable doubt of the existence of some further fact which destroys the applicability of the reasonable hypothesis of causal connexion.

    [40] (1992) 175 CLR 408.

15. The applicant submits that no fact supporting the hypothesis has been disproved beyond reasonable doubt, and further, no other fact inconsistent with the hypothesis has been proved beyond reasonable doubt

    Irritable bowel syndrome

16. The applicant submits that the relevant factor in the IBS SoP No 27 of 2011 is (b):

    (b) having a specified psychiatric condition within the six months before the clinical onset of irritable bowel syndrome

17. The applicant submits that the clinical onset of his IBS was well after the mid-1970s, and that therefore the specified factor of the SoP is met provided the applicant’s PTSD is found to be war-caused. 

    Respondent submissions

18. The respondent accepts that the applicant suffers from PTSD as diagnosed by Dr Martin and Dr Sundin. The respondent also accepts that the first and second steps in Deledio are satisfied for his PTSD condition.

    Deledio third step

19. The respondent submits that the main issue regarding the applicant’s PTSD is whether the hypothesis connecting his condition to the circumstances of his operational service is reasonable. The respondent submits that, per Collins v Administrative Appeals Tribunal,[41] the consideration of whether a reasonable hypothesis is raised involves the reaching of a factual conclusion, and an assessment of all material before the Tribunal, but it does not involve fact finding or rejecting material. In Bushell v Repatriation Commission,[42] Mason CJ, Deane and McHugh JJ observed that a hypothesis can be regarded as reasonable if the facts raised by the material are true.

    [41] (2007) 163 FCR 35.

    [42] (1992) 175 CLR 408 at 414-415.

20. In East v Repatriation Commission[43] the Full Court of the Federal Court referred to an explanation of “reasonable hypothesis” by the Veterans’ Review Board:

    In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact...

    [43] (1987) 16 FCR 517 at 532-533.

21. The Court agreed with this analysis, stating, “A reasonable hypothesis required more than a possibility, not fanciful or unreal, consistent with the known facts…”

22. In Repatriation Commission v Bey[44] the Full Court of the Federal Court rejected the proposition that a mere possibility of a connection between a disease and war service was sufficient to constitute a “reasonable hypothesis”, and affirmed the position established in East v Repatriation Commission. A reasonable hypothesis must also be more than an assertion.[45]

    [44] (1997) 79 FCR 364 at 372-373.

    [45] Cameron v Repatriation Commission [2003] FCA 1323.

23. The respondent submits that forming an opinion as to what the material points to is not impermissible fact-finding,[46] however a conclusion about the accuracy or credibility of a witness’ evidence during Deledio steps 1 to 3 is an error.[47]

    [46] Riley v Repatriation Commission [2008] FCA 531.

    [47] Tunks v Repatriation Commission (2008) 102 ALD 274; Re Meehan and Repatriation Commission [2003] AATA 429 at [37].

24. The respondent submits that subsection 196B(14) sets out the circumstances where a factor causing or contributing to a disease is related to service. In Repatriation Commission v Money,[48] Dowsett J observed that:

    The logical starting point is identification of the connection. It is to be found in the material before the tribunal, not in the statement of principles…

    [48](2009) 173 FCR 410; [2009] FCAFC 11 at [87].

25. In Gilkinson v Repatriation Commission,[49] the Full Court of the Federal Court applied the approach in Money to a claim under Part II of the Act, stating that, consistent with the Explanatory Memorandum of the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) which related to the introduction of section 196B, only those connections which apply to the veteran can apply in relation to factors under the SoP.

    [49](2011) 197 FCR 102; [2011] FCAFC 133 at [40].

26. The respondent submits that, as above, the Tribunal must only apply the appropriate and relevant connections raised in the material that are consistent with one of the scenarios contemplated in section 9. Therefore, while the Tribunal needs to consider whether a factor in the SoP is connected with service in accordance with subsection 196B(14), it also needs to be satisfied that the material supports a connection between the circumstances said to satisfy a factor and the onset or worsening of the injury or disease in a way contemplated by section 9 of the Act.

    Clinical onset/worsening

27. The respondent submits that there is clinical onset of a disease “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present”.[50] Clinical onset is not necessarily when a person first sees a doctor, and can be when a doctor confirms that symptoms observed at some earlier time indicate the onset of the disease or injury.[51]

    [50] Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [23].

    [51] Kaluza v Repatriation Commission (2011) 122 ALD 448 at [66].

28. Clinical worsening involves an existing condition being made permanently worse,[52] and includes making a previously asymptomatic condition symptomatic, or the worsening of existing symptoms.[53] Symptoms must have been clinically present during service for them to be clinically worsened by service.[54]

    [52] Re Dawson and Repatriation Commission [2004] AATA 107.

    [53] Re Hatherall and Repatriation Commission (2002) 70 ALD 194; [2002] AATA 77.

    [54] Re Parotte and Repatriation Commission [2004] AATA 536.

29. The respondent submits that in this case the evidence regarding the clinical onset and/or worsening of the applicant’s PTSD is ambiguous. The applicant’s evidence is based on events from over 50 years ago, is not specific in certain relevant respects, and has varied since his initial reporting in 2014. The opinions of Dr Martin and Dr Sundin are based on the information reported by the applicant. The contemporaneous service medical records do not assist because there is no reference to any psychiatric symptoms or treatment, which is consistent with the applicant’s report that he has never sought treatment.

30. The applicant reported to Dr Martin that he had experienced psychiatric symptoms since the late 1970s. Dr Martin confirmed that the applicant’s PTSD was of late onset. Dr Martin considered that the applicant’s psychiatric symptoms, while not fulfilling the full criteria for PTSD, were likely present since the late 1960s. He concluded that the applicant’s PTSD was originally caused by the HMAS Voyager collision, and that his operational service in Vietnam may have caused a worsening of his symptoms.

31. Dr Sundin initially reported that the applicant’s principal psychological symptoms onset in the mid to late 1970s, however when she gave evidence Dr Sundin clarified that her opinion was that the original onset of the applicant’s PTSD was sometime in the aftermath of the HMAS Melbourne/HMAS Voyager collision and before 1966. She opined that the applicant’s operational service aggravated his PTSD.

32. The respondent highlighted that Dr Sundin appeared to have a more detailed history of the applicant’s psychiatric symptoms when contrasted to the evidence of Dr Martin.

33. The respondent submits that, overall, the evidence supports a finding that the onset of the applicant’s PTSD occurred sometime after the HMAS Melbourne/HMAS Voyager collision in 1964 and before the applicant’s operational service in 1966. The respondent further submits that the evidence supports that the applicant experienced a clinical worsening of his PTSD, but does not specify when this occurred.

    Application of SoP

34. The applicant has submitted that the relevant factors in the SoP are 6(a) and 6(c), but the respondent submits that in light of their submissions above about clinical onset and worsening, the relevant factors are 6(h) and 6(j). The respondent notes that the substance of the consideration will be the same regardless.

35. Regarding factor 6(a) and 6(h) and the definition of a “category 1A stressor”, the respondent submits that assessing whether something is a “life-threatening event” involves a mixed objective and subjective test.

36. When looking at the subjective element of the test, the Court, in Woodward v Repatriation Commission,[55] accepted that the subjective experience of the veteran had to be based on an event. It was also accepted that a “figment of the imagination” would not meet this requirement.

    [55] (2003) 131 FCR 473 at 487.

37. In Border v Repatriation Commissioner (No 2),[56] the Court considered the meaning of “life-threatening event”, and concluded that:

    It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death… this is a mixed objective and subjective test.

    [56] (2010) 191 FCR 163 at 180.

38. The respondent submits that, when considering whether the applicant experienced a category 1A stressor:

    ·There must have been an actual event that gave rise to a perceived threat; and

    ·The applicant must have perceived that his life was threatened by the event; and

    ·The perception is reasonable if, judged objectively, it was capable of and did convey the threat of death.

39. Therefore, while the applicant’s perception of the event is relevant, it is not the sole consideration.

40. The respondent referred to the specific stressors raised by the applicant.

    Vung Tau harbour experiences

41. The respondent submits that while the applicant has referred to general experiences in and around Vung Tau harbour, there is limited reference to any specific event during this period (which covers both operational and non-operational service). The one specific instance the applicant referred to was feeling increased apprehension when HMAS Melbourne joined the flotilla.

42. The respondent submits that while there is likely no doubt that the applicant was apprehensive during the entirety of his service in Vietnam, this is not sufficient to meet the definition of a “life-threatening event”. Even taking into consideration the applicant’s age and previous experience in the HMAS Voyager collision, there is no event or circumstance mentioned in the applicant’s evidence that is capable of satisfying that definition.

43. The respondent submits that the applicant’s experiences in Vietnam also do not meet the factor for living and working in a hostile or life-threatening environment. The applicant’s operational service in Vung Tau harbour was 13 days, so the respondent submits that he does not meet the minimum time required to satisfy either factor 6(c) or 6(j).

    Stopping and searching boats

44. The respondent submits that the applicant’s evidence regarding the stopping and searching of boats has varied considerably over time. The applicant’s statement referred to one occasion when a boarding party captured some members of the Viet Cong, brought them on board the ship, and the applicant came very close to them. The applicant stated that this made him realise that he was at war, and his life and his ship were at risk. When giving oral evidence the applicant clarified that this instead took place in the FESR, not Vietnam. He advised that the individuals brought on board were poorly dressed and he assumed they were the enemy; later he stated that they weren’t dressed as soldiers and were not armed from what he could see.

45. Dr Palazzo reported that, based on the Reports of Proceedings and the Ship Logs of HMAS Vampire, the stopping and searching of boats was an almost daily event. He reported that there was no specific threat or engagement with enemy forces on any occasion.

46. The respondent submits that the Tribunal cannot form the opinion that the event relating to the stopping and searching of a vessel involving any level of threat to the applicant occurred at all or in the way described by the applicant. Even if the Tribunal accepts that one of the recorded stop and searches could be the event described by the applicant, the material does not support that it was a “life-threatening event”.

    Bombardments

47. The respondent submits that the applicant’s evidence about the bombardments has also varied considerably over time. The applicant initially reported to Dr Martin, the VRB and in his statement that he observed ship to shore bombardments off the coast of Vietnam. He later reported to Dr Sundin that, whilst on HMAS Vampire in Vung Tau harbour, he was aware of explosions on the Vietnamese mainland. He also stated that during July 1966 the ship undertook two naval gun fire support firings which were designed to scare or kill enemy infiltrators.

1. At the hearing, the applicant amended his evidence to reflect that the ship to shore bombardments occurred while he was serving in the FESR. The applicant accepted that since the VRB hearing he had done a lot of internet search, and this had somewhat informed the change of his evidence.

2. Dr Palazzo’s second supplementary report revealed that at least three of the gun firings were only exercises, and the fourth firing was likely an exercise. Dr Palazzo was unable to identify any evidence to support reports of a ship to shore bombardment.

3. The respondent submits that the Tribunal cannot form the opinion that the bombardments occurred at all or in the way described by the applicant. Even if the Tribunal were to accept one of the gun firing exercises could be the event described by the applicant, the respondent submits that the material does not support that it was a “life-threatening event”, because it is not clear that the applicant perceived this event as posing a threat to his life, and any such perception would not have been reasonably held.

   Repairing communication cables

4. The respondent highlighted that the applicant’s statement makes no reference to the repair of communication cables. However, the applicant gave evidence regarding these events, and Dr Martin and Dr Sundin both reported an account provided by the applicant. The applicant has not provided any information on precisely when these activities were undertaken, except for his report to Dr Sundin that these repairs occurred during his interdiction service off the Malaysian coast.

5. The respondent submits that the material points only to the possibility that these events took place during operational service, which is not sufficient.

6. Further, the respondent submits that the applicant’s evidence does not support that any of these events amounted to a “life-threatening event”. Understandably, the applicant was fearful and apprehensive, per his evidence, but this alone is not sufficient to satisfy the mixed subjective and objective test. The respondent submits that there is nothing to support that the applicant perceived a threat of death on any specific occasion that he repaired a cable.

   Factors 6(c) and 6(j)

7. The respondent referred to the applicant’s contention that he lived and worked in a hostile or life-threatening environment for a period of at least 4 weeks, on the basis that the entire period of his operational service exceeded the required timeframe.

8. The respondent referred to Voelker v Repatriation Commission,[57] in which the Tribunal concluded that the intent of factor 6(c) was that each period of operational service must be considered separately.

   [57] [2016] AATA 427.

9. The respondent submits that as the applicant’s operational service in Vietnam, and his final period of service in Malaysia in Singapore, were less than 4 weeks in total, these cannot satisfy factors 6(c) or 6(j). Further, the applicant’s other operational service periods don’t point to a pervasive threat to life or bodily integrity for at least 4 weeks. The Reports of Proceedings from HMAS Vampire during the relevant periods possibly point to short periods on patrol when there may have been a threat, but that is all.

   Deledio fourth step

10. The respondent submits that it is not necessary for the Tribunal to consider the fourth step.

    Alcohol use disorder

11. The respondent submits that the applicant has not made any submissions with respect to the alcohol use disorder claim. Further, there is no medical evidence before the Tribunal that diagnoses the applicant with this condition. Dr Martin reported that the applicant had no history of alcohol abuse or dependence, and Dr Sundin gave evidence that the applicant may have suffered from alcohol use disorder in the past but is not presently suffering from it.

    Irritable bowel syndrome

12. The respondent accepts that the applicant suffers from IBS, and that the clinical onset of the condition was in approximately 2009.

13. The respondent notes that the applicant has conceded that his IBS is related to his PTSD, and he has not raised any other factor from the SoP. Therefore, the Tribunal must be satisfied that the applicant’s PTSD is war-caused for there to be a reasonable hypothesis connecting the applicant’s IBS to his operational service. The respondent submits that, as the Tribunal cannot be satisfied that the applicant’s PTSD is war-caused, no factor in the SoP for IBS upholds the applicant’s hypothesis.

14. The respondent ultimately submits that the Tribunal should affirm the relevant decisions under review that the applicant’s PTSD and IBS are not war-caused, and there is no condition present to answer the claim for alcohol use disorder.

    Applicant submissions in reply

15. The applicant has also provided submissions in reply. The applicant referred to several instances in the respondent’s submissions where they highlighted several variations in the applicant’s evidence which the respondent submits raised a suggestion that less weight can be placed on his evidence. In response, the applicant submits that due recognition must be accorded to the effect of the passage of time (in this case more than 50 years) on the memory, where the events in question occurred in stressful circumstances and at a time when the applicant was young and had only recently experienced the trauma of the HMAS Voyager incident.

16. Further, the applicant submits that the Tribunal is not required to consider each period of operational service separately. The respondent contends that the requisite period of four weeks must be continuous. The applicant submits that where the RMA has intended a factor in a SoP to operate in such a way, they have made it explicit by using a limiting term such as “continuous”. The applicant referred to several examples of SoPs which included this term, including factors 13(a) and 13(d) in the SoP concerning osteoarthritis No 61 of 2017 and factor 6(h) in the SoP concerning hypertension No 63 of 2013.

17. The applicant submits that the proper approach to interpretation of SoPs is outlined in the judgment of the Full Court of the Federal Court in Woodward v Repatriation Commission.[58] In this judgment the Court noted that SoPs are developed by an expert medical panel, and they need to be interpreted against that background. The Court relevantly stated:

    …in the absence of an authoritative and detailed exposition of the correct interpretation, the Tribunal has no choice but to interpret the SoP as best it can on the material it has available. In this case it did so by looking to the ordinary meaning of the words.

    [58] (2003) 131 FCR 473.

18. The applicant therefore submits that the construction of factors 6(c) and 6(j) of SoP No 82 of 2014 which accords with the ordinary meaning of the words used is one whereby the veteran has lived or worked in a hostile or life-threatening environment for a cumulative period of at least four weeks before the clinical onset or worsening of PTSD.

    CONSIDERATION

19. The applicant was not empowered to lodge the claim for PTSD and alcohol abuse that was lodged on 25 November 2016 by virtue of the operation of subsection 15(5) of the Act until the earlier claim for an increase in pension, lodged on 29 July 2014, was determined. Even though, from an administrative point of view, both claims were to be heard together, this administrative arrangement did not preclude the respondent in making submissions about jurisdiction. Despite this, however, the applicant’s PTSD condition is relevant in considering the application of the relevant SoP concerning IBS.

20. In Owen v Repatriation Commission Finn J remarked:[59]

    While the Act does not in terms require an applicant to provide an accurate particularisation of the disability claimed to be war-caused, it clearly contemplates that claims for pensions will be made referable to particular injuries or diseases (see, for example the Act, s 14(5) and the claim form itself is constructed so as to lead towards particularisation.

    [59] (1995) 38 ALD 241 at 248.

21. The first claim form, now the subject of application 2016/2145, is referable to “irritable bowel syndrome, osteoarthritis and a lower back condition”. The first claim form does not refer to any mental health ailment and therefore I do not have jurisdiction to determine whether the PTSD condition of the applicant is linked with his operational service in reviewing the first claim.

22. In relation to his claim for IBS the only factor that is relied upon by the applicant is factor 6(b) of SoP No 27 of 2011. The corresponding factor that is now applicable is factor 9(2) of SoP No 65 of 2019. There is no submission by the applicant that there is any other factor in the SoP which is applicable. There also is no material before me to suggest that any other factor in the SoP is relevant. The PTSD condition is a “clinically significant disorder of mental health” as defined by section 6 of SoP No 65 of 2019: see Schedule 1 Dictionary.

23. While there is a suggestion that the applicant may have had an alcohol use disorder condition, Dr Sundin was not prepared to state that the applicant had the condition. Dr Martin remarked that the applicant reported no history of alcohol abuse or dependence. I cannot therefore be reasonably satisfied that the applicant had an alcohol related condition.

24. There is no issue that the date of clinical onset of the IBS condition is approximately 2009. The respondent has quite properly conceded that the IBS condition is related to the PTSD condition.

25. I must determine whether the applicant’s PTSD condition is related to the relevant service of the applicant, being the operational service of the applicant: see section 8 of SoP No 65 of 2019.

26. The Collision between HMAS Melbourne and HMAS Voyager in 1964 is of significance in this application. Dr Sundin, who was called by the applicant, considers that the applicant described symptoms of acute stress disorder after the HMAS Melbourne/HMAS Voyager collision. Dr Sundin considered that the original onset of the PTSD condition was some time in the aftermath of the HMAS Melbourne/HMAS Voyager disaster. This was not at a time of operational service. While the applicant stated that he had some experiences in during the 1974 floods when he was caught at the office that he was working at and was separated from his wife and children for three to four days  In 1976 the applicant was separated from his first wife and then divorced which was initially stressful. Vietnam there is some inconsistency as to his experiences. Dr Sundin considered that the principal psychological symptoms of the applicant started in the mid to late 70s.

27. It is important to determine the onset of the PTSD condition.

28. Dr Martin stated that the symptoms of the applicant “leave it in no doubt” that the applicant’s PTSD condition was caused by the HMAS Melbourne/HMAS Voyager collision. Dr Martin remarked that the content of the symptoms such as his dreams of the HMAS Melbourne/HMAS Voyager collision make it clear that the HMAS Melbourne/HMAS Voyager collision was the cause of the PTSD condition. What is important is whether the service of the applicant in Vietnam contributed to the psychiatric condition of the applicant. I have already referred to the report dated 15 September 2016 in which Dr Martin gave his opinion that it was “more likely than not that [the applicant’s] experiences in Vietnam either contributed to the development of his post-traumatic stress disorder, or aggravated a pre-existing post-traumatic stress disorder”. Dr Martin was not asked whether the opinion that he gave in his report was no longer of relevance. There is therefore material before me which raises a reasonable hypothesis that the operational service of the applicant aggravated his PTSD condition, this condition being related with his IBS condition.

29. I am now required to consider, under subsection 120(1) of the Act, whether, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's disease was not war-caused. In Forrester v Repatriation Commission,[60] Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”. There is no evidence which would enable me to be satisfied beyond a reasonable doubt that the disease of the veteran was not war-caused. While Dr Martin opined that the applicant was not a reliable historian, Dr Martin has recognised that it is not uncommon for PTSD sufferers to have inaccurate recollections where the traumas have been very much in the distant past. This is not a case where the applicant has been dishonest.

    [60] [2013] FCA 898 at [80].

    CONCLUSION

30. The decision in application 2145 of 2016 is varied to decide that the IBS condition is war-caused: the decision is otherwise affirmed in the absence of any evidence which would allow the Tribunal to allow the claims for the other claimed condition. The applicant only made submissions in respect of the conditions of PTSD and IBS and there is no evidence before the Tribunal to enable the acceptance of other conditions. The Tribunal does not have jurisdiction to determine the claim in application 3890 of 2017 as the applicant was not empowered to lodge the claim on 25 November 2016 by virtue of the operation of subsection 15(5) of the Act.

    DECISION

31. I vary the decision under review in application 2145 of 2016 to decide that the irritable bowel syndrome condition of the applicant was war-caused and that he is entitled to a pension, the decision is otherwise affirmed.  The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 29 July 2014 which is the date when he lodged his claim.

32. The Tribunal does not have jurisdiction to determine the claim in application 3890 of 2017 as the applicant was not empowered to lodge the claim on 25 November 2016 by virtue of the operation of subsection 15(5) of the Act.

207.    I certify that the preceding 206 (two hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..................................................................

Associate

Dated: 29 June 2020

Dates of hearing:	25 January 2018, 6 November 2018
Date final submissions received:	13 February 2019
Solicitor for the Applicant:	Mr Terence O’Connor, Terence O’Connor Solicitors
Counsel for the Applicant:	Mr Anthony Harding
Solicitor for the Respondent:	Ms Fiona Dempsey, Australian Government Solicitor