David Simpson and Repatriation Commission
[2012] AATA 845
•30 November 2012
[2012] AATA 845
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1070
Re
David Simpson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Dr S H Toh, MemberDate 30 November 2012 Place Sydney Decision Summary
The decision of the Repatriation Commission dated 8 April 2010 refusing Mr Simpson’s claim for a disability pension in respect of PTSD is set aside and a decision substituted that Mr Simpson’s PTSD is war-caused. The date of effect of this decision in terms of the payment of pension is 22 September 2010. The matter is remitted to the Commission to determine the rate of pension payable to Mr Simpson.
...........[sgd]..................................
Deputy President R P Handley
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Applicant suffering from Post-Traumatic Stress Disorder (PTSD) – Applicant served in Vietnam war – Whether Applicant’s PTSD is war-caused – Rate of disability pension – Decision under review set aside
LEGISLATION
Veteran’s Entitlements Act 1986 (Cth)
CASES
Delahunty v Repatriation Commission (2004) 38 AAR 511
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight (2012) 202 FCR 451
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 131 FCR 473
SECONDARY MATERIALS
Diagnostic and Statistical Manual of Mental Health Disorders, Fourth Edition, Text Revision
Repatriation Medical Authority Statements of Principles, Instrument No 5 of 2008
REASONS FOR DECISION
Deputy President R P Handley
Dr S H Toh, Member
David Simpson (the Applicant) has applied to the Tribunal for the review of a decision of the Veterans’ Review Board (VRB) made on 9 November 2010, to affirm a decision of the Repatriation Commission (the Respondent) that the Post Traumatic Stress Disorder (PTSD) diagnosed by his treating psychiatrist is not war-caused, and that he should continue to be paid a disability pension at 30% of the General Rate.
BACKGROUND
Mr Simpson, who is now aged 65, is married with three living children, a fourth child having died at birth. He served in the Royal Australian Navy from 30 July 1963 to 11 January 1974. This included eligible operational war service in Vietnam on HMAS Vampire, from 14 May 1969 to 25 May 1969 and on HMAS Yarra from 22 February 1971 to 1 March 1971. He also has eligible defence service from 7 December 1972 until his discharge on 11 January 1974, but his defence service is not relevant to these proceedings.
Mr Simpson is currently receiving a disability pension at 30% of the General Rate in respect of his sensorineural hearing loss and tinnitus.
On 10 December 2009, Mr Simpson lodged a claim with the Department of Veterans’ Affairs (the Department)) in respect of PTSD and for an increase in the rate of his disability pension. On 8 April 2010, the Respondent denied liability in respect of Mr Simpson’s PTSD on the ground that it was not related to his service, and decided to continue his pension at 30% of the General Rate. The delegate referred to the Repatriation Medical Authority’s Statements of Principles concerning PTSD, Instrument No 5 of 2008 (SoP No 5), and decided that this did not apply because Mr Simpson had not experienced either a category 1A or 1B stressor during his operational service. The delegate also found that Mr Simpson’s pension was correctly assessed at 30% of the General Rate.
On 9 November 2010, the VRB affirmed the decision and, on 22 March 2011, Mr Simpson applied to the Tribunal for a further review.
ISSUES
Under s 13 of the Veteran’s Entitlements Act 1986 (Cth) (the Act), a veteran will be eligible for a pension where the veteran is incapacitated from a war-caused injury or disease. An injury or disease will be war-caused if the injury occurred or the disease was contracted while the veteran was rendering operational service: s 9. Mr Simpson’s service in Vietnam is operational service as defined in the Act.
Pursuant to s 120(1), where a claim for a pension in respect of incapacity relates to operational service, the Commission shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Commission shall be so satisfied if, after consideration of the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person (s 120(3)). Section 120A requires the reasonableness of the hypothesis to be assessed by reference to applicable Statements of Principle (SoPs). In this case, the applicable SoP is SoP No 5, referred to above.
The questions that the Tribunal must address in its decision are those set out by the Full Federal Court in Kaluza v Repatriation Commission [2010] FCA 1244 (Kaluza), which follows the Full Federal Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio).
However, the first matter for the Tribunal is “to identify the collection of relevant symptoms” and decide whether it is satisfied that Mr Simpson suffers from the claimed disease (PTSD) or some other injury or disease: Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]. Pursuant to s 120(4) of the Act, the Tribunal must decide this question to its reasonable satisfaction.
If satisfied that the symptoms constitute an injury or disease as defined in s 5D of the Act, the question of whether that injury or disease is war-caused must be addressed in accordance with the following four steps identified by the Court in both the Deledio and Kaluza decisions:
(1) The Tribunal must consider all the material before it and determine:
(a) whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and
(b) whether that hypothesis can be regarded as reasonable if the raised facts are true.
(2) If the raised facts point to a hypothesis of a connection, is there a SoP in force in respect of the kind of disease from which the veteran suffers?
(3) If a SoP is in force, the Tribunal must determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the ‘template’ found in the SoP? In particular, does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service?
In Repatriation Commission v Knight (2012) 202 FCR 451, (at [8]), (Knight), the Full Federal Court said there are two discrete issues at play in considering whether there is a reasonable hypothesis:
(i)does the material before the Tribunal point to the factor relied upon; and
(ii)does the material also point to that factor being related to the veteran’s operational service (s 196B(14))?
Section 196B(14) sets out the circumstances in which “[a] factor causing, or contributing to, an injury, disease or death is related to service rendered by a person” which relevantly includes (b) where “it [the injury, disease or death] arose out of, or was attributable to, that service”, and (d) where “it was contributed to in a material degree by, or was aggravated by, that service”.
The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 held that paragraph (d) is not a broader test that necessarily subsumes the paragraph (b) question of whether a factor arose out of, or was attributable to, that service. The meaning of “arose out of, or was attributable to” in s 9(1)(b) and s 196B(14)(b) is the same and requires a contributory cause that need not be the sole or dominant cause: see the Full Court decision, Perram J at [6-7] and [13], and Nicholas and Robertson JJ at [37]-[38].
(4) If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. (Any fact finding must only be made at this final stage in the process.)
THE EVIDENCE
Mr Simpson’s Evidence
Mr Simpson said he left school at the age of 16 to join the Navy hoping to become a shipwright. He was channelled into an apprenticeship to become an electrical fitter/mechanic for which he was ill-suited, taking four and a half years to compete his training as result of failing exams. Mr Simpson was posted to Vampire in 1968 where he served until 1970, and then to Yarra where he served from 1970 to 1971. In 1971, he married and was posted to HMAS Cerberus. He was able to secure an early discharge and left the Navy in 1974 with the rank of Petty Officer. Mr Simpson said, in retrospect, he wished he had never joined the Navy. While there were some good times, “it was the wrong place for me” and “I was a very bad electrician”. He cannot believe that one sixth of his life – “10 years, six months, one week and two days” - has had such a profound effect on the rest of his life: “it’s there all the time and colours everything – it’s a reference point – a constant reminder that I was no good at something and couldn’t get promoted and couldn’t pass exams”.
Mr Simpson said his first sea posting was on Vampire. His ‘action stations’ position was initially in ‘A’ boiler room and later in the ‘X’ gun bay or gyro room. All these were below deck. When the ship was at action stations, being in ‘X’ gun bay was frightening, but ‘A’ boiler room was particularly frightening because of the stored ammunition. When at action stations, all compartments of the ship are locked down. He was frightened of being locked in a closed space, felt inadequate and pictured what might happen if the ship was hit or if a mine exploded: he feared that he might be killed or drown. He had a horror of trying to escape from a locked compartment. He preferred to be on deck: for example, when they were accompanying an aircraft carrier, watching every take-off and landing, believing he was safer up on deck.
When Vampire visited Vung Tau Harbour in 1969, escorting HMAS Sydney, they entered the Harbour early in the morning. There was an increased risk of Vietcong activity because it was Ho Chi Minh’s birthday and ‘scare charges’ were dropped to scare off enemy divers. While this was happening and they were at action stations, he was either in ‘X’ gun bay or the gyro room – he cannot remember which, but he remembers being very frightened and waiting in case of any action. The use of scare charges continued until Sydney had finished unloading and loading, when they left.
Mr Simpson also recalled Vampire arriving on the scene of the collision between HMAS Melbourne and USS Evans when about 80 sailors lost their lives. Vampire arrived about three hours after the collision to escort Melbourne back to Singapore. Mr Simpson said he remembers Vampire conducted a search of the sea in the vicinity of the collision but does not remember Vampire picking up any survivors. He saw the aft section of the Evans still afloat and the damage to the bows of the Melbourne. For him, the incident highlighted the danger of such situations – being close by other vessels at sea and reliant on the judgement of others. Mr Simpson was asked about the claim he lodged in respect of PTSD which states that he was involved in the recovery of dead bodies. He said this is wrong: the form was filled in by the Veterans’ advocate – it is not in his handwriting, although he signed the form.
Mr Simpson said he went back to Vung Tau Harbour on Yarra in February 1971 when he was in the ship’s weapons electrical engineering department. When they were leaving Vung Tau Harbour, the ship was at ‘defence stations’ but when the alarm went off on the approach of an unidentified warship, they went to action stations. His action stations position was at the other end of the ship from the gun turret for whose maintenance he was responsible. Earlier that morning, there had been a problem with the gun as a result of a circuit not working properly. With the approval of the responsible officer, he used a match to cut the circuit temporarily. When initially the fix did not work, it took him 20 minutes to get from his position to the gun turret, which was below deck at the rear of the ship, to put in place the temporary fix once again. So when later the ship went to real action stations, he was “pretty scared” because if his temporary fix did not work, the ship’s main armament would be out of action and, if something started firing at Yarra, it would have no means of firing back and there was a danger of the ship exploding.
Mr Simpson said he was also worried about the gun malfunctioning and exploding, in which case it could have blown the bow off the ship, although the gun’s safety circuits should have been prevented it exploding. He felt frustrated, scared and responsible. The action stations subsequently proved to be a false alarm – the unidentified warship proved to be a US minesweeper that had turned its radar off. Mr Simpson said he repaired the gun the next day, which took between eight and ten hours.
In cross-examination, Mr Simpson agreed that, while at sea, the crew was constantly doing exercises, including being at action stations. However, he said there is a qualitative difference between rehearsals and the real thing.
After Mr Simpson left the Navy in 1974, he worked as an electrician for a year before being made redundant. After some work as a youth worker, he went to university and completed a Diploma in Education and then a Bachelor of Education. He became an English and History teacher and held various teaching positions before moving to a position at the Central Coast Grammar School in 1987 where he remained until his medical retirement in 2010. At the Grammar School, he taught English and ran an outdoor education program. Mr Simpson said he was never promoted as a teacher – something in his personality probably stopped this. But he was also the union representative. The outdoor education program he ran included involvement in humanitarian work, taking groups of about 30 students overseas to countries such as Cambodia, Thailand and Indonesia working with a foundation to help build houses.
Mr Simpson said he went to see Dr W D Wade, Psychiatrist, on a referral from his general practitioner, Dr Mark Hollands, who is also a long time personal friend. He and Dr Hollands were both members of the Gosford Orchestra. Mr Simpson, who plays the trumpet, was a member from 1988 and was also President of the Orchestra for a while. He left about 10 years ago. Before seeing Dr Wade, he did not think he had any problems, but on talking with Dr Wade, he realised his behaviour – his short temper and inability to maintain friendships very well - was not usual. He has not retained any contact with his naval “acquaintances”. He went to the 40th reunion nine years ago but will not go again – he has nothing in common with his peers and his attitudes are very different from theirs. Mr Simpson said, “I can’t go on an ANZAC Day march”, and he has never worn his medals or attended the ANZAC Day service at his school.
Mr Simpson said that when he was younger, he was “hopeless” with crowds and when he first went to a supermarket with his wife after they were married, it “freaked me out” and he had to come straight out again. Although he is better with crowds now, he always goes shopping with his wife –“it’s become a habit”. He has also had bad dreams since being in the Navy, triggered by stressful situations of any sort. He dreams of being trapped in closed spaces, and going on to a new ship and not knowing where to go.
Mr Simpson said that on 23 February 2010, he had a confrontation with the new headmaster of his school and left after losing his temper. This had been brewing for a while, over the headmaster’s failure to support the outdoor education program Mr Simpson ran (from which he consequently resigned), over other issues such as office allocation, and the headmaster refusing to allow him to reduce his working week to four days as part of a retirement plan. Mr Simpson said the new headmaster was business oriented and probably wanted to get rid of “grumpy old teachers like me”. Mr Simpson walked out of the school – “I was stuffed” – and went to see Dr Hollands the same day. He was lucky to get a cancellation appointment with Dr Wade two days later.
Mr Simpson said, emotionally, things had gone downhill around that time. He had long had suicidal thoughts – probably since the 1970s – and had until recently thought this was fairly normal. At school and elsewhere, he put on a mantle of self-assurance and self-confidence as a way of surviving and most people did not see past that. At the time of the dispute with his headmaster, he thought suicide “looked like a good option”. Then his and his wife’s second daughter, who was then living with them, developed late onset epilepsy after the birth of her child in December 2011. He said it was very difficult, and he was also drinking too much.
Mr Simpson said he is not having suicidal thoughts at the moment but sometimes has them every day for couple of weeks. For example, if he wakes at 2.00 am and cannot get back to sleep, he thinks, “[w]hat’s the point? Why hang about?” Mr Simpson was asked about the effect of his condition on his home life. He said: “Yes, of course it’s had an effect”. He was prone to losing his temper, insisting on table manners, and generally controlling what his children did. (Nevertheless, the evidence indicates that he has a good relationship with his wife and children.)
Mr Simpson said he is no longer taking any medication. He hates taking drugs and what they do to him. He still often feels suicidal, but has been practising a form of meditation to help deal with this. He sees Dr Hollands occasionally but otherwise tries to deal with his condition himself rather than seeing a psychiatrist regularly. He found the examinations by Dr Morris and Dr Dinnen confronting as it involved him having to bare his soul to strangers. With Dr Morris he was nervous but fine: he just asked Mr Simpson a series of questions that were not particularly challenging. Mr Simpson was able to maintain a façade of being equal to him and did not really let him know “what was going on”. Dr Dinnen he found more empathic but he asked more questions, forcing Mr Simpson to be more forthcoming.
Mr Simpson said even before he saw Dr Wade, it had been suggested to him that he was suffering from PTSD: about five or six years ago, when he first went to see the Vietnam Veterans’ Association. But at that time, he was adamant that he was okay and not suffering from PTSD. Moreover, he did not want to tell Dr Hollands what was going on inside his head.
Mr Simpson is now retired. He and his wife live on a three acre property where he has an organic/permaculture garden. Mr Simpson has been a volunteer at the Australian Maritime Museum at Darling Harbour where Vampire is moored. He told Dr Dinnen that he can now walk through Vampire without feeling scared.
Mrs Simpson’s Evidence
Mrs Simpson provided a written statement dated 28 October 2012 and gave evidence at the hearing. She said she first met her husband at an open day on Vampire on 1969. She found “he was easy to talk to and appeared very out going, well read, intelligent and quite cultured”. They married in May 1971. After they were married, when they first went to a supermarket together:
… he became jumpy and was perspiring a lot. I thought this was very puzzling and he really couldn’t explain why he reacted this way. It took a long time to work this through and even then he would only go to a supermarket if I accompanied him. When he catches the train, he sits in the first carriage and listens to music because he finds crowded trains stressful.
Mrs Simpson described the Navy culture of heavy drinking and how her husband “has never tolerated fools and has an explosive temper but has never been violent”. Once he had left the Navy, he no longer wanted anything to do with it or with his Navy friends. Mrs Simpson described what appear to have been eventful and fairly stressful years, with her husband studying, having a number of teaching positions and their bringing up a young family. It appears that their life only settled down a bit when Mr Simpson started his job at the Central Coast Grammar School where he established the outdoor education program. However, there was an incident when Mr Simpson swore at a student whom he thought was sexually abusing another student which took some time to resolve and was very stressful for him. Mrs Simpson said her husband also worked part-time at a motel at the weekends to help pay for their children’s extracurricular activities and he was involved in the Gosford Orchestra. He continued to drink as a means of handling stress.
Mrs Simpson said her husband knows a great deal about politics and history. He was deeply upset about how returned servicemen were treated and about the ethics of war. The extension of the outdoor education program to undertaking overseas humanitarian work was a means for him of making amends: of helping privileged kids experience different situations and learn about the history and causes of poverty. Mrs Simpson (who, after graduating, worked at the Central Coast Grammar School as an art teacher and in learning support – she is now retired) said she also became involved in the program and would accompany her husband and the students on overseas trips. She said it was a wonderful program: they raised thousands of dollars and funded and built houses and wells for those who were the victims of the effects of war.
Mrs Simpson said her husband is a very complex person and living with him can be very challenging. She likened herself to an entertainer juggling a lot of plates all the time and trying to work out how each thing will affect the situation. Her role is to keep the peace. If her husband is threatened, he can become explosive, and in the family unit this can cause uproar. Occasionally, she sees the bouncy, optimistic man. The other person is depressed most of the time. In her statement, Mrs Simpson referred to her husband’s need to control things. She concluded that “[h]is behaviour has put an enormous strain on our marriage over the years and led to us separating on occasions”.
Mrs Simpson said the Navy was not the right place for her husband. His time in the Navy “was a terrible experience for him”. He wanted to be a shipwright or in the band, but he was placed in an electrical apprenticeship. There was constant bullying and he always seemed to be in the wrong situation, feeling inadequate and humiliated. He did not like talking about it.
Mrs Simpson said that early in their marriage, she read self-help books to try and help her husband. She had been interested in yoga before they married and tried to help him with relaxation when he was tense and vigilant. The nightmares he has had are an indication of something unconscious going on. When Mrs Simpson was in the final year of her Visual Arts degree about 20 years ago, she majored in ‘Dreams’. She worried about her husband’s dreams and would sometimes lie awake watching him while he was dreaming.
Mrs Simpson said her husband was very successful in what he did after his time in the Navy, but he had trouble with relationships, and particularly with authority. She said the new headmaster appointed for the Grammar School adopted a business oriented approach – he wanted a beautiful looking school but it was not one which was child-centred. He was hated by everyone who had ever dealt with him. The outdoor education program that her husband ran was the most expensive program in the school and was subject to cost cutting by the new headmaster. Her husband refused to cut costs by “dumbing down” the program and the headmaster started a campaign to force him out. He became depressed and started grinding his teeth at night. Mrs Simpson said she thought her husband was also targeted because he was the union representative. She encouraged him to drop this because his trying to protect people was “tearing him up”.
Mrs Simpson said after this, her husband had two major meltdowns. The first involved his reaction to two fire engines which arrived at their property as he was (legally) burning a pile of branches. The fire engines were on a training exercise. Mr Simpson disappeared and their daughter found him later huddled in a corner of the walk-in wardrobe crying. The second occurred last Christmas when their daughter was unwell. The pressure was too much and Mr Simpson wandered away and was eventually found lying in a hammock in the rain at the back of the property. She said, “[h]e wanted everyone to go away and leave him to die”.
Dr Dinnen’s Evidence
Dr Anthony Dinnen, Psychiatrist, provided a report dated 26 March 2012 and gave evidence in person at the hearing. In his report (at p 8), Dr Dinnen stated his opinion:
I consider the patient does suffer from an ongoing anxiety disorder consequent to his experiences in the Navy, particularly the events he describes as being highly anxiety provoking, and that this is a long standing form of post traumatic stress disorder. That condition appears to have been reflected in irritability, disturbed dreams and intrusive memories of these events, and an attempt to avoid apparently quite successfully through the years any acknowledgement of the impact of those experiences. There are some associated depressive elements and habitual excessive use of alcohol which did not warrant separate diagnoses as they do not reach clinical significance.
Dr Dinnen noted that Mr Simpson’s ongoing anxiety disorder consequent to his service in Vietnam was “compounded by what is obviously a rather conscientious and strict personality style”.
Dr Dinnen said Mrs Simpson’s statement and comments strengthens his view of a psychiatric condition dating from Mr Simpson’s naval service. It “seems clear that its onset was during Mr Simpson’s time in the Navy”. Dr Dinnen said the pattern of symptoms - anxiety, strong depressive elements and, most strikingly, a focus on incidents in the Navy, along with dreams – is consistent with a diagnosis of PTSD. Dr Dinnen agreed that Mr Simpson was more intelligent than most naval ratings and noted that he came to hate the Navy. Mr Simpson is more self-critical than most and a worrier – he was fearful about what might have happened if the gun failed and experienced a profound feeling of powerlessness, helplessness and apprehension. Dr Dinnen was asked about Mr Simpson having acted as a guide on Vampire, which is now moored at the Australian Maritime Museum in Sydney and open to the public. He said Mr Simpson had told him he found this difficult at first but became accustomed to it. He is someone who does not want to admit to damage during his service and suppression is his way of dealing with it.
Dr Dinnen said if the Tribunal found the stressors not be sufficient to satisfy the criteria in the SoP, an alternative general diagnosis would be ‘anxiety not otherwise specified’ but, in his opinion, the correct diagnosis is PTSD given the specific features of Mr Simpson’s condition. Dr Dinnen was referred to Dr Morris’ diagnosis of an adjustment disorder (see below). Dr Dinnen said that while such a diagnosis might be reasonable, it ignores the context of Mr Simpson’s condition. Any adjustment disorder was probably secondary to PTSD.
Dr Morris’ Evidence
Dr Patrick Morris, Psychiatrist, examined Mr Simpson at the request of the Department and provided a report dated 28 February 2012. He gave evidence by conference telephone at the hearing. In his report, Dr Morris stated his opinion that “Mr Simpson currently does not have any current psychiatric diagnosis according to DSM-IV TR criteria”. Dr Morris said (p 4):
Since February 2010 Mr Simpson has suffered with two episodes of agitation, irritability, increased dreams and anger which have settled with treatment. These appear to have been in response to stressors in his environment such as difficulties with his principal in February 2010 and concerns about the health of his daughter in December 2011.
Dr Morris said these were episodes of “Adjustment Disorder With Anxiety”. He said, “it is not my opinion that Mr Simpson has any psychiatric condition that relates to his military service, particularly his operational service in Vietnam”.
In oral evidence, Dr Morris said he did not see sufficient features of PTSD or that there was a Category 1A stressor. Mr Simpson made no mention of traumatic nightmares, intrusive memories or social withdrawal, describing his dreams as “weird” rather than as nightmares, and they did not seem to relate to particular events. Dr Morris said, moreover, in terms of the SoP, the symptoms did not appear to be clinically significant. It could be personality issues that give Mr Simpson problems from time to time.
It was put to Dr Morris that Mr Simpson might have avoided revealing very much about his condition (see paragraph 24, above). Dr Morris said he cannot remember it being difficult to obtain a history from Mr Simpson, but it is now eight months since he examined him.
Dr Wade
Dr Wade is Mr Simpson’s treating psychiatrist. He produced two reports which are included in the Tribunal documents: dated 25 February 2010, addressed to Dr Hollands, and dated 8 March 2010, addressed to the Department. In the first report, Dr Wade refers to Mr Simpson’s recurring nightmares, his claustrophobia, “hypervigilance and exaggerated startle”, irritability, his avoidance of any “navy stuff – avoiding reunions and conversations”, his alienation from all except his immediate family group, and his need to be in control. Dr Wade said Mr Simpson has suffered PTSD since Vietnam and that his diagnosis satisfies the DSM IV criteria. In his second report, Dr Wade said, speaking of Mr Simpson (p 4):
In his mental state examination there was a consistency with what would appear to be a chronic Post Traumatic Stress Disorder. That he satisfies the natural history of same but also satisfies DSM IV criteria for a chronic PTSD, in terms of experiencing in his navy career events that have caused him great fearfulness and helplessness with elements of horror. That whenever he re-experiences anything vaguely similar, such as feeling confined in a supermarket, he then responds with psychological distress and this can also exacerbate living flashbacks, as well as nightmare phenomena, meaning that he has to be highly avoidant of anything of a navy nature and also to things that can cause confinement and claustrophobic feelings. That his interests are very narrow and highly controlled, his emotions are highly controlled and there is difficulty with tender and soft emotions. His delivery to his family sounds like it is fairly scripted and guilt driven. He has a marked sense of alienation and estrangement. …
Does Mr Simpson suffer from PTSD or some other injury or disease?
As stated above, the first issue for the Tribunal is whether Mr Simpson suffers from PTSD or some injury or disease. This is an issue that it must decide to its reasonable satisfaction in accordance with SoP No 5 in which PTSD is defined as a psychiatric condition meeting diagnostic criteria derived from the Diagnostic and Statistical Manual of Mental Health Disorders, Fourth Edition, Text Revision (DSM IV). Paragraph 3(b) states:
(b) For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
First, with regard to the requirement that the person has been exposed to a traumatic event, the Tribunal notes the decision in Woodward v Repatriation Commission (2003) 131 FCR 473, where the Full Federal Court approved the explanation given by Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366. The Full Federal Court said, at [142]:
Mansfield J concluded that the AAT erred in law in its understanding of the expression "experiencing a severe stressor" in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc., if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.
As Tamberlin J pointed out in Delahunty v Repatriation Commission (2004) 38 AAR 511, at [26], once it has been established as an objective fact that the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others,
The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran’s position and knowledge was.
The Tribunal is satisfied from Mr Simpson’s evidence, which is also recorded in the histories taken by Drs Wade, Dinnen and Morris, that he experienced such events in Vung Tau Harbour and that he experienced intense fear and helplessness (paragraph (A)). On the first occasion, when Vampire entered the Harbour on Ho Chi Minh’s birthday in 1969 while accompanying Sydney, and scare charges were detonated while the ship was on high alert and he was locked down in a confined space below deck fearing a Vietcong attack, Mr Simpson experienced intense fear and helplessness. On the second occasion, in 1971, while leaving the Harbour on Yarra, the electrical circuitry on the ship’s main armament, for which Mr Simpson was responsible, had failed. He feared the temporary mend he had made on the circuitry might also fail with the result that the ship would be left defenceless or the gun might malfunction and explode, in either case leading to death or serious injury. Once again, he was in lock down below deck in a different part of the ship and felt intense helplessness.
In our view, given Mr Simpson’s position on the Vampire and Yarra at those times, when the ships were in Vung Tau Harbour on a war footing and he was locked down below deck without direct knowledge of what was happening and having no control of events, it was reasonable for a person with his knowledge and experience to fear the threat of death or serious injury. The fact that, as Mr Rudge pointed out, what happened on the two occasions was ultimately uneventful, is not conclusive.
With regard to paragraph (B), the Tribunal is satisfied from the histories taken by the three psychiatrists that Mr Simpson persistently re-experiences associated traumatic events in nightmares. Dr Wade stated in his report dated 25 February 2012:
David related to [sic] nightmares that cause him to wake up in a distressed state. He talked about several recurring nightmares. The main one is getting trapped in a cave or a house or a ship and he can never get out and he wakes up panting and he is shouting for help before he wakes up. His wife said he jumps around in his sleep. Another one is where he is on a ship and he is trying to find out where he belongs but no one will answer him – it is like no one is aware of him – and the sense of being helpless. He said that is a less distressing dream than being trapped. He said his dreams and his nightmares are highly detailed.
Further, Dr Morris refers to Mr Simpson’s description of his “weird navy dreams”, and Dr Dinnen to Mr Simpson telling him that the two major Vung Tau incidents “keep recurring in my dreamlife” so that at times he did not want to sleep because of these dreams and, if he did, he would scare his wife by waking her up.
With regard to paragraph (C), which the Tribunal also finds is satisfied, we note Mr Simpson’s evidence (which is also recorded in the history taken by Dr Wade) of his seeking to avoid any association with the Navy or his peers in the Navy, of his avoiding confined spaces such as supermarkets in which he feels claustrophobic, of his detachment or estrangement from others, such as the teachers at his school, and his having very few friendships.
The Tribunal finds that paragraph (D) is satisfied. There is evidence from Mr and Mrs Simpson of his irritability, and from Dr Wade of his hypervigilance, exaggerated startle response and sleep disturbed by nightmares, to which Dr Dinnen also refers. Dr Wade also noted that when Mr Simpson is not having nightmares, he wakes early in the morning and “escapes into reading” (T p 28).
With regard to paragraphs (E) and (F), the Tribunal is satisfied from Mr Simpson’s evidence of the ongoing nature of his symptoms, which he has experienced for many years, and that the symptoms have caused him significant impairment in his social and occupational functioning, notably in his career as a school teacher in which, after many years, he remained estranged from his colleagues.
Thus, the Tribunal is reasonably satisfied that Mr Simpson suffers from PTSD. Mr Rudge, for the Respondent, and relying on Dr Morris’ opinion, submitted that Mr Simpson suffered an Adjustment Disorder in 2010 related to the build-up of tension in his workplace following the appointment of a new headmaster, and again in late 2011, as a result of the illness suffered by his daughter. In our view, the evidence of symptoms dating back to Mr Simpson’s time in the Navy is compelling: for example, Mrs Simpson’s evidence of his ongoing symptoms from early in their marriage and the difficulties his symptoms have caused in their relationship and in his relationship with their children. We note Mr Simpson’s evidence that he was less forthcoming with the history he gave to Dr Morris who asked him questions that he did not find particularly challenging with the result that Mr Simpson did not really let Dr Morris know “what was going on”. By contrast, Mr Simpson said he was more forthcoming with Dr Dinnen.
Being satisfied that Mr Simpson suffers from PTSD, the Tribunal turns to the steps identified by the Federal Court in Deledio and Kaluza, referred to in paragraph 10 above.
Step 1: does the material before the Tribunal point to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and can that hypothesis be regarded as reasonable if the raised facts are true?
Mr Simpson served on Vampire and Yarra which, during his service, visited Vung Tau Harbour while escorting Sydney. The Tribunal is satisfied that Mr Simpson’s evidence, the Reports of Proceedings for Vampire and Yarra, and Yarra’s log for 25 February 1971, together with the medical evidence before the Tribunal concerning his PTSD (especially that of Drs Dinnen and Wade), supports a hypothesis connecting Mr Simpson’s PTSD with the circumstances of his operational service – in particular the dropping of scare charges around Vampire in Vung Tau Harbour on 19 May 1969 (Ho Chi Minh’s birthday), and the reported incident on 25 February 1971 when Yarra was confronted with an unidentified warship which ultimately turned out to be the minesweeper, USS Energy (with its radar turned off). If the raised facts are true, the Tribunal is satisfied that the hypothesis can be regarded as reasonable.
Step 2: is there a Statement of Principles (SoP) in force in respect of the kind of disease from which the veteran suffers?
The relevant SoP is Instrument No. 5 of 2008. The definition of PTSD in paragraph 3(b) has already been discussed above. Paragraph 6 states:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
(c) having a significant other who experiences a category 1A stressor within the one year before the clinical onset of posttraumatic stress disorder; or
(d) experiencing the traumatic death of a significant other within the two years before the clinical onset of posttraumatic stress disorder; or
(e) experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or
(f) experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; or
(g) having a significant other who experiences a category 1A stressor within the one year before the clinical worsening of posttraumatic stress disorder; or
(h) experiencing the traumatic death of a significant other within the two years before the clinical worsening of posttraumatic stress disorder; or
(i) inability to obtain appropriate clinical management for posttraumatic stress disorder.
Relevantly, the following definitions appear in paragraph 9:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
Step 3: the Tribunal must determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the “template” found in the SoP? Thus, (i) does the material before the Tribunal point to the factor(s) relied upon in clause 6; and (ii) does the material also point to the factor(s) being related to the veteran’s operational service (s 196B(14))?
The Applicant relies on factor 6(a) “experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder”. The first question, in terms of the definition of a category 1A stressor, is whether there is any material pointing to Mr Simpson experiencing a life-threatening event, judged objectively, from the point of view of a reasonable person in the position of and with the knowledge of Mr Simpson. The second question is whether there is also material pointing to the factor being related to Mr Simpson’s operational service.
Mr Simpson gave evidence about being locked down in what he recalled to be action stations on Vampire in Vung Tau Harbour on 19 May 1969 at a time when there was a perceived threat of attack by the Vietcong while Sydney was unloading and loading, and of scare charges being dropped and exploding. He also spoke of the occasion on the Yarra when the ship went to action stations and he feared the ship’s main armament, a gun on which he had made a temporary fix, might explode. In both cases, he spoke of his fear and of his being helpless and having no control in a situation where he perceived a threat to his life and those around him. Mr Simpson also gave evidence about his nightmares, involving him being trapped, which are referred to in the history taken by his General Practitioner, Dr Hollands (letter dated 22 December 2009), by Dr Wade (report of 8 March 2010) and by Dr Dinnen. All three doctors referred to Mr Simpson’s claustrophobia.
In answer to the first question, the Tribunal is satisfied that there is material pointing to a reasonable person, with the knowledge of and in the position of Mr Simpson, experiencing these events as life-threatening. Mr Simpson’s evidence indicates that the ships were at action stations at the relevant times, which in the case of the incident involving the Yarra, is confirmed by the Captain’s log. In the earlier incident involving the Vampire, the Captain’s ‘Report of Proceedings’ (at p 49) records that the ship “remained in Defence Watches and at Awkward State 2” while berthed in Vung Tau Harbour. The Report states:
No incidents occurred whilst in the VUNG TAU area, however, the opportunity was taken to drop scare charges and fire was opened with small arms on some “suspicious” looking floating boxes.
A crew member locked down below deck at action stations in a war zone, having no direct control of events and no knowledge of what was actually happening, hearing exploding scare charges or small arms fire, or fearing the possibility, in the case of the Yarra, of its principal armament – its gun – being out of action, or even of the gun exploding at a time when an unidentified warship was approaching, might reasonably experience this as a life threatening event. The Tribunal is therefore satisfied that the material points to Mr Simpson experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.
Secondly, in relation to whether there is also material pointing to the factor being related to Mr Simpson’s operational service, the two events described above occurred while Mr Simpson was on operational service. Further, Mr Simpson’s evidence and the evidence of Dr Hollands, Dr Wade and Dr Dinnen points to the clinical onset of Mr Simpson’s PTSD being linked with this service. For example, Dr Dinnen’s report of 26 March 2012 states that while Mr Simpson’s PTSD was only clinically recognised two years ago, its clinical onset was during naval service; Dr Wade’s report of 8 March 2010 states “it is quite clear that Mr Simpson suffers a navy related PTSD”. Mrs Simpson’s evidence also indicates that Mr Simpson was experiencing symptoms of PTSD from early in their marriage. We are therefore satisfied that there is material pointing to Mr Simpson experiencing a category 1A stressor before the clinical onset of PTSD and that this was related to his service in the Navy, in the sense that the PTSD arose out of or was attributable to Mr Simpson’s operational service (see s 196B(14) and Knight, discussed above at paragraph 10). Thus, the Tribunal concludes that the hypothesis raised is reasonable, being consistent with the template found in SoP No 5.
Step 4: If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. (Any fact finding must only be made at this final stage in the process.)
As stated above, the Tribunal is satisfied that Mr Simpson suffers from PTSD. There is no dispute that he rendered operational service from 14 to 25 May 1969 and from 22 February to 1 March 1971. The Tribunal is also satisfied that there is material pointing to Mr Simpson experiencing a category 1A stressor before the clinical onset of PTSD and that this was related to his service in the Navy. The question therefore is whether there is evidence from which we are satisfied beyond all reasonable doubt that his incapacity did not arise from his PTSD. The answer to that question is ‘No’.
While in his report Dr Morris expressed the view that Mr Simpson had suffered episodes of Adjustment Disorder, first, in February 2010, when there was tension between him and the new Principal of his school, and, second, in December 2011, when he had concerns over the health of his daughter, Mr Simpson’s evidence was that he was less forthcoming with the history he gave to Dr Morris. Our view, stated above, is that the evidence of symptoms of PTSD dating back to Mr Simpson’s time in the Navy is compelling. The evidence of Dr Dinnen and Dr Wade is that Mr Simpson’s incapacity for work is due to his PTSD, and his PTSD is causally related to his operational service. Both Dr Dinnen and Dr Wade expressed the opinion that Mr Simpson is not capable of working eight or more hours a week as a result of his PTSD. In summary, the Tribunal is not satisfied that there is any convincing evidence to the contrary which would satisfy us of this beyond all reasonable doubt.
DECISION
The decision of the Repatriation Commission dated 8 April 2010 refusing Mr Simpson’s claim for a disability pension in respect of PTSD is set aside and a decision substituted that Mr Simpson’s PTSD is war-caused. Pursuant to s 177(2)(b)(i) of the Act, the date of effect of this decision in terms of the payment of pension is 22 September 2010, being a date not more than six months before the date on which Mr Simpson’s application to the Tribunal was made on 22 March 2011. The matter is remitted to the Commission to determine the rate of pension payable to Mr Simpson.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President, and Dr S H Toh, Member ........[sgd]................................................................
Associate
Dated 30 November 2012
Date of hearing 29 October 2012 Counsel for the Applicant C Colborne Solicitor for the Applicant Legal Aid Commission of NSW Solicitor for the Respondent K Rudge, Department of Veterans’ Affairs
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