Deloryn and Repatriation Commission
[2003] AATA 895
•11 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 895
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1053
VETERANS' APPEALS DIVISION ) Re GERARD PETER DELORYN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date11 September 2003
PlaceBrisbane
Decision The Tribunal affirms the decision to reject a claim by Gerard Peter DeLoryn for disability pension for post traumatic stress disorder, alcohol abuse/dependence and an increase in the rate of pension.
..............Signed.................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – whether Post Traumatic Stress Disorder and alcohol abuse/dependence war-caused
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Gerard Peter DeLoryn for review of a decision to reject his claim for disability pension for post traumatic stress disorder (PTSD) and alcohol abuse/dependence (AAD) and to reject his claim for an increase in pension to the Special Rate pursuant to the provisions of the Veterans’ Entitlements Act 1986 (the VEA).
2. At the hearing the Applicant was represented by Mr. Honchin of counsel and the Respondent was represented by Mr. Stoner.
3. Mr. Stoner conceded on behalf of the Respondent that the Applicant suffers from PTSD and AAD.
4. The Applicant claims that he experienced three traumatic events whilst on service in Vietnam and that those traumatic events have caused his PTSD and AAD. Those events were:
(a)Whilst on day leave in Vung Tau he was attacked by a Vietnamese civilian (or Viet Cong) and stabbed in the leg. The Vietnamese was shot dead by a U.S. soldier;
(b)Whilst on patrol he came across a badly decomposed body of a Vietnamese person; and
(c)He believed that he was responsible for an altercation between two soldiers in which one soldier stabbed the other.
5. The following matters are not in dispute and the Tribunal finds as follows:
(a)The Applicant was born in Holland on 30 May 1941. His family came to Australia in 1954 when he was 13 years of age.
(b)He left home when he was 17 and worked in Brisbane for about 12 months before moving to New Zealand. He returned to Australia when he was 21 and worked as a pastry cook and baker for two years in the Whitsunday Islands area.
(c)He married for the first time in 1961, when he was 20 years of age. They separated in 1992 and divorced in 1994. He has two daughters from that marriage, one born in 1974 and one born in 1977.
(d)At the age of 23 he enlisted in the Royal Australian Army on 5 April 1964. He served in New Guinea for a time during his basic training. Otherwise he was stationed in Australia until he was sent to South Vietnam (SVN). He served in SVN as an Army Cook from 30 May 1967 to 25 June 1968. He was at Nui Dat for just under two months and then he was at Vung Tau for the remaining 11 months.
(e)He returned to Australia in June 1968 and then continued to serve as a Cook until he was discharged in September 1977, at the age of 36 years.
(f)In about 1971 he suffered a right lower leg fracture as a result of a motor cycle accident.
(g)A Medical Board examination report dated 27 February 1976 described the Applicant as being 188 cms tall and weighing 88 kgs. It also recorded that his emotional stability and mental capacity was normal.
(h)After leaving the Army he had the following occupations:
1977 – 1981: Control room operator Queensland Nickel
1981 – 1991:Youth worker with Department of Family Services, Townsville (mainly at the juvenile gaol).
1991 – 1995: Taxi driving (on and off)
1993 – 1994:Maintenance person with Magnetic Island Ferries for six months.
(i)In 1981 he fell off a roof and sustained fractures of both ankles, a “dislocation of his neck” and bone graft and fusion of his cervical spine.
(j)He met his second wife in about 1994. They started living together in 1997 and married on 17 May 1998. His wife has been receiving an invalid pension (later disability support pension) since August 1988.
(k)He ceased work at the end of December 1995. He then obtained a social security job search allowance from February 1996.
(l)He applied for, and was granted, a service pension, on 10 January 1997, on the grounds of permanent impairment.
6. The Applicant made a claim for disability pension for PTSD, anxiety and stress on 21 July 2000.
7. The Applicant was sent to Dr. Likely, psychiatrist, for assessment. Dr. Likely examined the Applicant on 21 August 2000 and his report of that examination contained the following (among other things):
“Mr Deloryn describes long standing problems with his mental health, dating to his service in Vietnam. He was an Australian regular Army soldier who served for fourteen years in all. His period of service involved a tour of duty in Vietnam with 2RAR in 1966-67. Whilst in Vietnam he witnessed several traumatic incidents which caused him distress at the time and which continue to preoccupy him. Mr Deloryn stated that he was employed in the kitchens in Vietnam and had procured on one occasion some fresh flour to make bread rolls. He had made a quota of ‘one roll per digger’.. When the section concerned returned from their search and destroy operation, he noticed that they had lost one of their members. He later said that a Sergeant who he named as being Sergeant Taylor attempted to take the roll which had been meant for the deceased digger. Mr Deloryn became agitated and remonstrated with the Sergeant. Mr Deloryn stated that one of his own soldiers who was named as being Private Albert Knight, enquired of him what the altercation was about. Mr Deloryn stated that he said words to the effect of ‘its nothing but he deserved a bullet in his head’. To Mr Deloryn’s horror, Private Knight then preceded (sic) to shot (sic) and fatally wound the Sergeant concerned. Mr Deloryn’s response at the time was one of intense horror.
Mr Deloryn recalled participating in a search and destroy operation with a section when they came across the badly decomposed bodies of two Vietnamese. These had been ‘hacked apart’ and ‘destroyed by rats’. Again Mr Deloryn’s response at the time was one of intense horror. He still has dissociative flashback episodes regarding the smell of the bodies which were disguising the entry to bunker systems.
Mr Deloryn stated that he was stabbed by a Viet Cong fighter whilst on leave in Vung Tau one day, receiving a wound to his leg. Again his response was one of intense fear and helplessness.
Since returning from Vietnam Mr Deloryn has habitually re-experienced the above events by means of recurrent intrusive thoughts, images and dreams. His wife stated that he often thrashes around in his sleep and holds onto her tightly, ‘as if he is protecting me’. Mr Deloryn reports dissociative flashback episodes when he is exposed to cues that remind him of his service in Vietnam. He has habitually attempted to avoid any such cues. He has become progressively more withdrawn and introspective, now very rarely venturing out of the house, having sold his boat and abandoned his previously enjoyed leisure interest of fishing. He is emotionally detached from his biological children and from his adoptive children. He reports symptoms of persistently increased arousal, notably difficulty initiating and maintaining sleep, irritability, angry outbursts and hypervigilance. He has habitually attempted to self medicate his symptoms by taking large amounts of alcohol. At present he averages six stubbies of full strength beer and one bottle of wine each day. He has continued to drink despite the fact that alcohol worsens his dysphoria, has led to interpersonal conflict and has caused financial problems.
IMPRESSION
AXIS I Post traumatic stress disorder, alcohol abuse.
AXIS II No disorder.
AXIS IIIPeptic ulcer disease, gastro oesophageal reflux disease, diverticulosis, hearing difficulties.
AXIS IV Stressor of chronic mental illhealth.
AXIS V Current GAF 41-50”
8. The Department of Veterans’ Affairs commissioned a report from WriteWay Research Service, a body specialising in research of Defence war records. A report dated 26 February 2001, was prepared by John Tilbrook. The report made the following points:
(a)No soldier by the name of “Sgt Taylor” (or similar pronunciation) served with the Applicant’s unit during the time that he was in Vietnam.
(b)The only soldier by the name of “Taylor” who died in Vietnam while the Applicant was in Vietnam, suffered a head wound during enemy contact on operations at Long Dien in Phuoc Tuy.
(c)There was a Cook by the name of Private Albert Knight who served at 2 COMP ORD DEP. (location Vung Tau) from 28 July 1967 to 19 February 1968. Private Knight committed several military offences during his service in Vietnam but none of the offences involved fire arms. Private Knight’s last offence in Vietnam resulted in his being convicted by Court Martial of “Wounding with intent to do grievous bodily harm”. He was originally sentenced to imprisonment for seven years but this was reduced on appeal to 12 months from 5 February 1968. On 19 February 1968 he was flown back to Australia to serve his sentence.
(d)The circumstances of Private Knight’s offence were:
“On 6 Dec 67 a ‘Games night’ involving gambling was held in the ‘Kevin Arnold Club’ soldiers ‘wet’ canteen at 2 COMP ORD DEP. PTE Albert Knight attended and had become intoxicated and had lost money at the gambling tables resulting in him being involved in an altercation with CPL Vincent Joseph Holt who was the President of the OR’s Club. After a scuffle PTE ‘Alby’ Knight left the OR’s Club and returned to his tent, returning to the Club shortly afterwards with his bayonet and stabbed CPL Holt inflicting serious wounds. CPL Holt was medivaced to Australia from 1 AUST FD HOSP on 14 Feb 68.”
(e)The Applicant “….was posted and employed in Vietnam for some 7 weeks as a non-combatant Cook with 2 RAR and would largely have been confined to the 2 RAR unit lines at the Nui Dat base performing his prime function as a Cook working in the company kitchens. When the infantry soldiers were deployed away from the 1 ATF base on operations against the enemy it would be expected that the non-combatant administrative and logistic soldiers in the unit (such as PTE DeLoryn) would have been called upon to perform routine rostered security duties, weapon pit duties, sentry duty, listening posts and undertaking TAOR patrolling or ambush activities out to the designated ‘A’ line situated some 3,000 to 4,000 metres from the 1 ATF perimeter (in order to maintain tight control of the surrounding area out to the maximum range of enemy rocket and mortar fire to curtail the possible threat from the Viet Cong ‘shoot and scoot’ squads).
(f)It is accepted that “The veteran did participate in a rostered 1 ATF TAOR Base AO patrol (numbering around 7 to 10 men) during his service with NUI DAT. Given the regular daily patrols it is unlikely that badly decomposing bodies of Vietnamese (obviously some days old) would have been located in such close proximity to the 1 ATF base as it would be expected that they would have been discovered much earlier.”
(g)“ ‘Search and destroy’ operations were not conducted at infantry section level, as a minimum platoon or infantry rifle company strength was employed in such operations in areas contested by the enemy. There is no evidence that 2 RAR deployed any of their unit Cooks on combat related ‘search and destroy’ operations against the enemy.”
(h)“During the period that the veteran was posted to the Ordinance depot at VUNG TAU (between 18 Jul 67 to 25 Jun 68) he would have been rostered for the full range of 1 ALSG security duties…….. There is no record of any 1 ALSG patrols having encountered the enemy, or having had any enemy contacts …(from before June 1966 to 1972).”
(i)“The officers and SNCO from 2 COMP ORD DEP and 2 AOD in 1967/68 that have been interviewed have all confirmed that they have no knowledge of any 1 ALSG clearing patrols or standing patrols having located two decomposed Vietnamese bodies as cited by Mr Gerard De Loryn. It is expected that had such an event occurred outside of the 1 ALSG base by one of their own unit patrols it would have been reported, recorded and widely debated by soldiers within their unit. As previously stated there is no knowledge of such an incident.”
(j)“It is assumed that the veteran was posted to 2 COMP ORD DEP or 2 AOD when the alleged stabbing incident occurred in the VUNG TAU bar district, no record was found in unit records of the stabbing of PTE/CPL G.P. De Loryn, and the officers and SNCO of the unit who were consulted on the contention submitted by the veteran have no knowledge of any of their unit soldiers having been stabbed and wounded in VUNG TAU Townsvhip.”
(k)“Although carrying knives was prohibited, the carrying of such weapons by both the American servicemen and Vietnamese ‘Cowboys’ in the bar and red light district of VUNG TAU was quite commonplace, and these knives were often produced in fracas over ‘ownership’ of bar girls or the amount of exorbitant monies owed for drinks or ‘services’ provided by prostitutes. Attacks did sometimes take place, usually at night as opposed to daytime, and the unruly behavior of intoxicated allied servicemen often contributed to or caused the altercations with the Vietnamese civilian population connected with the ‘entertainment industry’.”
(l)“It was not a remarkable event for Australian soldiers on local leave in VUNG TAU at night (between 1730 hrs and 2200hrs before curfew) to become involved in some of the frequent disturbances or fracas.”
(m)“It was generally known and publicized as a warning and deterrent to all other Australian servicemen proceeding on local leave in the latter half of 1967, that on 18 Jun 67 a RAAF airman ….. was stabbed after curfew around midnight by a Vietnamese assailant in an alley following a heavy bout of drinking whilst on leave in VUNG TAU. …… He was discovered unconscious behind the RAAF Airmen’s Villa suffering blood loss from multiple wounds and was admitted to Hospital (US 36 EVAC HOSP) where he died hours later on 19 Jun 67.”
(n)“There is no known record of Viet Cong forces having operated or having attacked any Allied servicemen in the leave ‘haven’ of VUNG TAU for political gain. It is understood that the huge volume of Allied forces spending in VUNG TAU bars and brothels served as an important tax revenue source for the Viet Cong tax collectors.”
9. On 4 June 2001, the Applicant signed a Statutory Declaration in which he said (among other things):
“Dec 1967, I had an altercation with Cpl Holt re catering arrangements. Private Knight overheard the altercation and asked me what is was about, I said to him that Holt needed a good flogging in order to wake up to himself. As a consequence of this discussion, Private Knight proceeded to act on my suggestion and to my absolute horror Cpl Holt was severely stabbed by Private Knight……
I did go on ‘Search and Destroy’ missions with 2 R.A.R. as a machine gunner namely an M60. We did find what was most certainly human remains with Khaki and Black uniforms. ….
Whilst posted with 2 A.O.D. in Vung Tau on leave one evening in the vacinity of the fish markets or wharves, I was attacked by a person unknown to us. After a short struggle I was stabbed in the upper right thigh, a small wound but nontheless bloody. I was in the company of two American GI’s posted in Vung Tau with an American PX unit. The two Americans took me into their unit to dress the wound prior to me going back to my own unit. I did not want to report this incident to the Australian R.A..P. in fear of being sent back to Australia. The Americans who dressed the wound agreed to no paperwork at all and forgot about the matter.”
10. On the same day, 4 June 2001, the Applicant saw Dr. Likely who then reported:
“I continue to treat Mr. Deloryn for symptoms of post traumatic stress disorder. You are already in receipt of a copy of a report by myself to the Department of Veterans’ Affairs dated 21st August 2000. In this report I make reference to a traumatic incident which occurred in Vietnam. This involved Mr. Deloryn telling me that a fellow soldier had been shot after an altercation with a comrade. Mr. Deloryn has now recalled that this incident in fact did not occur according to his initial memories of it. He now has a memory of a Private Knight stabbing a fellow soldier named ‘Holt’ after Mr. Deloryn had said words to the effect that Holt needed to be ‘sorted out’.. He recalled his response at the time as being one of intense horror, since he had not expected Private Knight to act on his apparently off-the-cuff comment. In my opinion this event was instrumental in the evolution of Mr. Deloryn’s post traumatic stress disorder symptoms. His recalling it as having occurred differently, in my view, is indicative of the dissociative amnesia seen in post traumatic stress disorder and therefore does not preclude this diagnosis.”
11. Dr. Likely provided a further report dated 17 May 2002. It contains the following (among other things):
“When I first saw Mr Deloryn he described long standing problems with his mental health which he attributed to his service in Vietnam. Initially he told me he attributed his difficulties to two events. Mr Deloryn recalled as a Private Soldier, shooting and fatally wounding a Sargent after an angry demonstration over ration supplies. Mr Deloryn told me that his response at the time was one of intense horror since he held himself to be partially responsible. In addition to this he recalled participating in a search and destroy operation which came across the bodies of several badly decomposed Viet Cong. These were in an advanced stage of decomposition and again Mr Deloryn recalled his response as being one of intense horror.
Since that time Mr Deloryn realised that his recollections regarding the altercation and his recollections of the fatal shooting were not historically accurate, rather he had had a distorted memory of a stabbing incident. Mr Deloryn elaborated that a Private Knight had stabbed a fellow soldier named ‘Holt’ after Mr Deloryn had said words to the effect that the soldier Holt ‘needed to be sorted out’.. Mr Deloryn recalled his response at the time as being one of intense horror since he had not expected Private Knight to act on his apparently off the cuff comment. As I have elaborated in previous reports that Mr Deloryn’s recollection of the incident as initially having involved a shooting and subsequently having involved a stabbing, were indicative of the dissociative amnesia seen in post traumatic stress disorder.
Mr Deloryn’s symptoms since Vietnam had caused him not only subjective distress but also significant functional impairment. He had been dismissed from jobs as a result of altercations with fellow workers. His first marriage had terminated after 14 years as a direct result of his irritability and dysphoria and his second marriage has also been characterised by marked interpersonal conflict with his wife. As a result of his irritability and dysphoria Mr Deloryn has contact with only one of his two children.”
12. The Applicant was interviewed by Dr. Mulholland, psychiatrist, on 12 August 2002. Dr. Mulholland also required the Applicant to undergo certain pathology tests because of his claim to be alcohol dependent. Dr. Mulholland’s report of 30 August 2002 runs to 15 pages, plus the pathology reports. The following passages are excerpts from that report.
“A brief summary of pathology investigations follows. Full results are attached to this report:
· Full Blood Examination – normal
· Serum Biochemistry – normal except for slightly raised Alk P and slightly lowered iron stores – chemical pathologist Dr. Appleton suggested that the slightly raised Alk P was suggestive of some bone disorder – has been advised to consult with local doctor
· Thyroid Function Tests (TSH) – normal
· Carbohydrate Deficient Transferrin (CDT) – normal – note that picture of normal CDT, GGT and MCV is not consistent with current or recent excessive alcohol intake and therefore inconsistent with history as given – further discussion with Dr. Charles Appleton indicated that further studies had been made in respect of this CDT result and that further studies again were not consistent with current or recent excessive intake of alcohol. Hence his history of excessive intake of alcohol is not confirmed and is in some doubt (see extensive explanation of Dr. Charles Appleton in pathology result of 28 August 2002)
….
He described the following present and recent psychological symptoms:
· loss of interest in customary activities and pleasures of life
· chronic insomnia
· chronic excessive intake of alcohol, e.g. reported drinking 8 stubbies of XXXX Gold (medium strength) and a bottle of wine per day, i.e. approximately 15 to 16 drinks per day – he reported not having any AFDs (alcohol free days).
· described himself as “can only see black and white… nothing in between”
· frequent dreams – “about Vietnam …. Patrols I used to go on … particular incidents …. Being attacked and so on … and other incidents happened to me over there”
· marriage problems
· increased appetite and weight gain
· ‘road rage’ – impatient with other drivers
· avoids any confrontation if possible as not able to handle same
· if in confined spaces prefer to be near door or window
· feels very uncomfortable and has sense of threat about people behind him
· has developed fear of heights over past few years
He has not been involved in any paid employment since 1994 or 1995. He told me that he stopped work at that time because ‘just couldn’t get on with people’ and ‘personality clashes’. He has indicated that anxiety about attack from passengers was a prominent reason why he stopped driving taxis.
Biological markers for excessive intake of alcohol such as MCV, GGT and CDT were all normal. Chemical pathologist Dr. Charles Appleton commented thus ‘the normal CDT, GGT and MCV do not support excessive alcohol intake’.. This raises a question as to whether the pathology tests are not producing a true picture or whether he is not giving a correct history. I have discussed the matter with chemical pathologist Dr. Charles Appleton and in view of the discrepancy between the history and the findings the lab performed further CDT type tests. The end result was a picture that Dr. Appleton assured me was not consistent with chronic excessive intake of alcohol. At the end of the day the picture has to be that his history of excessive intake of alcohol is not confirmed and some doubt has to be cast upon it.
He was in SVN from May 1967 until June 1968. I queried him about what aspects of his time in SVN that troubled him. He told me that there were 3 particular incidents which have troubled him from the time they occurred (1967-1968) up until the present time. He rated them in order of importance:
a)being out on patrol and finding a decomposing body clothed in a soldier’s uniform. He was ordered to move the body about 15cm to check out the body and area for booby traps and to replace the body. He described that at the time of that experience he felt a sense of horror. He described that thoughts and visual imagery regarding that event ‘keeps popping up in my dreams’.
b)once when he was off duty returning from fish markets he was attacked by a knife wielding Vietnamese which caused him to have lacerations to his right thigh. His attacker was shot by one of his companions. He described that at the time he felt intense fear. He described that that issue ‘keeps popping up all the time’ in terms of his thinking about it, having visual imagery of same and perhaps dreaming about same. He indicated that this issue leads to restless nights in which he lashes out at his wife.
c)the third issue concerned an altercation in the mess when a soldier called Holt was attacked by a soldier called Knight. He indicated that this soldier called Knight acted without his agreement or knowledge against this soldier called Holt with a bayonet. The preceding circumstances are that Gerard Deloryn had previously had a disagreement with Corporal Holt and he had communicated some of this disagreement to Private Knight who told Gerard Deloryn that he would ‘sort it out’. However Gerard Deloryn did not expect that Private Knight would attack Corporal Holt with a bayonet. He came back and told Gerard Deloryn ‘I’ve sorted him out for you’.. He did not see the attack nor did he witness the aftermath of same. He was definite he had not in his wildest dreams anticipated that Private Knight would do anything like he did. He was left with a feeling of guilt and responsibility regarding that event and as a consequence he was troubled with intrusive thoughts, bad dreams and flashbacks about same.
He described that the above 3 issues repeatedly troubled him in the form of intrusive thoughts, bad dreams and flashbacks. However he indicated that since treatment has started his ability to deal with these issues has improved and he described himself thus, ‘partially learnt to live with them’.
OPINION
In respect of Dr. Likely’s reports his opinions are consistent with the history that he was given. The difficult issue concerns whether the history is reliable or not and whether it could reasonably be accepted that the events:
a) occurred as he described them – or
b) occurred in some similar way – or
c) either did not occur at all or occurred in a substantially different fashion
Assuming that those events actually occurred in much the same fashion as he has described them then there is the difficult question as to whether that fulfils the criteria A1. From his history the criteria for A2 seems to have been satisfied.
It is difficult to conceptualise that even if those events did occur as he described them then that would result in a lifetime of claimed psychiatric disorder.
Another difficulty in respect of Mr. Gerard Deloryn is that the pathological changes that occur with excessive intake of alcohol have not occurred with this man. It is not possible to draw any absolute hard and fast conclusion from same. It can be said that the pathological findings are not consistent with his history of alcohol consumption. The question then has to be asked as to the tests are wrong or whether his history is wrong. I consider that it is unlikely that the tests are wrong and that the more likely conclusion, which again definitely cannot be proven one way or the other, is that his history is not entirely correct in respect of his alcohol consumption.
In the circumstances I consider it possible that he has psychiatric conditions namely PTSD and alcohol abuse/dependence but as far as I am concerned it is not possible to take the likelihood to be any greater than a possibility. It is perhaps more likely, even if one assumes his history to be correct, that he has some sort of anxiety-depression condition which is occurring because of other causes but which he has linked to his Vietnam experiences.”
13. The Army records show that the Applicant was hospitalised in Vietnam on 27/28 December 1967,for “acute anxiety state”. The medical note reads as follows:
“after rebreathing in bag – stopped shivering
he was collapsed saying ‘get rid of chocolate milk”
started vomiting several times after drinking chocolate milk.
Has intermittently suffered from PD Anxiety State
27 Dec up & about no pain cheerful
28 Dec Acute Anxiety State with hyperventilation settled with rebreathing – Discharged full-duty.”
14. The Applicant gave evidence at the Tribunal hearing, by way of a written statement plus oral evidence. The written statement, dated 12 April 2002, contains yet another version of events relating to the stabbing of Corporal Holt by Private Knight. The main features of this version were:
· The Applicant had an argument with Corporal Holt about persons who were not members of 2 RAR using the mess and canteen facilities.
· Corporal Holt walked away from the Applicant after the argument.
· The Applicant told Private Knight about the argument and said words to the effect “Corporal Holt needs a good smack in the mouth to wake up to himself”.
· Private Knight said he would sort it out.
· Unknown to the Applicant, Private Knight went to his tent, obtained a bayonet, returned to the canteen and stabbed Corporal Holt.
· At the time of the stabbing the Applicant was about 50 – 100 metres away. The Applicant saw a crowd gathering and went to see what was happening. When he arrived at the scene he saw service personnel holding Private Knight and he saw Corporal Holt lying on the ground nearby.
· The Applicant did not see the stabbing incident. He was told about the details later.
15. The Applicant’s written statement also contains the assertion that he did see a deceased person whilst on patrol. He made the following points:
· He understood that he was on a “search and destroy” mission.
· He was given an M6O machine gun to carry.
· He recognised the stench of something dead before he came upon the body. He had experienced the same stench when he had been pig shooting.
· The patrol took place during the two months he was stationed at Nui Dat.
16. The Applicant’s statement contains the following description of the claimed attack by a Vietnamese whilst he was on day leave in Vung Tau:
“One of these areas was near the wharfs. I wanted to learn how to use them and went there from time to time when I was not on duty. On one occasion I recall, I had been using the nets, I had gone to that area with another Australia, Peter Dean, and two other American soldiers whose names I can’t presently recall, however they were working at the American PX at the time. When we were returning to the base, I recall that I was walking along when suddenly I was grabbed around the head and around the throat area. My recollection is that it was a Vietnamese person who had grabbed me, we struggled and fell to the ground. I recall that I was stabbed in the leg, approximately in the upper right thigh region on the outer side of my thigh. At the time, I didn’t feel the injury, I felt that it was warm and wet and that there was blood there but I wasn’t experiencing any other pain. One of the US soldiers shouted out ‘Let’s go’ and we ran off towards the base. The other US soldier stayed behind and at some point I heard a pistol shot. It is my understanding that he shot the Vietnamese person although I had no confirmation of that. The US soldiers took me to their unit PX and one of the medical staff there treated my wound and I received three or four stitches and no other medication.”
17. The Applicant’s oral evidence to the Tribunal about the attack on his person was a more dramatic version than the previous versions. He said:
· He does not know if he was attacked by a Viet Cong fighter or not.
· He was the only one of his group who was attacked.
· He grabbed the arm with the knife, stayed on his feet, and got his attacker down onto the ground.
· He kicked his attacker – maybe more than once.
· The other Australian in the group came to his aid, then moved away.
· An American pulled out a gun and shot the attacker.
· The Applicant saw that his attacker was dead.
18. The Applicant also gave evidence that although his drinking increased in Vietnam after the Corporal Holt stabbing incident, it increased dramatically when he returned to Australia and discovered that Vietnam veterans were being rejected by society and even by the RSL.
19. The Applicant gave evidence that he stopped driving taxis in December 1995 because:
· He did not enjoy driving at night.
· He did not like having people sit in the back seat of the cab because he was afraid of being attacked from behind.
20. The Applicant gave evidence that he wanted to work and he applied for numerous jobs that he believed he could do. He never revealed to potential employers that he had a psychiatric and alcohol problem. However, he was not able to secure any of the positions that he applied for. He gave up looking for work after he was granted the service pension in 1997. He thought that his age was a problem for potential employers. He also believed that his emotional instability prevent him from working.
21. It was put to the Applicant in cross-examination that when he applied for the service pension in January 1997 his sole reason for claiming invalidity and an inability to work related to his ankle – no mention was made of any psychiatric problem. The claim form showed:
“Continuous discomfort right lower ankle due to incorrectly set ankle.
Unable to take weight on R ankle for unspecified periods of time.”
In reply the Applicant stuck by his assertion that it was his PTSD and alcohol abuse which prevented him from working.
22. Drs. Likely and Mulholland gave oral evidence to the Tribunal. They stood by the opinions which had been expressed in their written statements.
23. It has now been settled (Repatriation Commission v Deledio 83 FCR 82) that the interaction of sections 120(1), 120(3), 120A(3) and 196B(2) of the VEA requires the Tribunal to take the following course:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (*as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
24. Having considered all the material placed before the Tribunal, the hypothesis connecting the Applicant’s PTSD and AAD with the circumstances of his service in Vietnam is as follows:
· Whilst serving in SVN in 1967/68, the Applicant experienced three traumatic events, namely:
(i) He believed that he was responsible for an altercation between two soldiers during which one stabbed the other with a bayonet;
(ii) He saw a badly decomposed human body while on patrol; and
(iii) Whilst on day leave in Vung Tau he was attacked by an assailant who stabbed him in the leg.
· These experiences were so traumatic that they caused him to increase his intake of alcohol to the point where he began to abuse alcohol and to develop an alcohol dependence.
· The traumatic experiences also caused him to develop PTSD which caused him to have marital difficulties, culminating in a separation from his first wife after only a short period of marriage, and also caused him to have a troubled work history after his period in Vietnam. Although he suffered from PTSD as a result of his SVN experiences it was not diagnosed until 2000.
· He has given different versions of the events because his PTSD has caused him to have dissociative amnesia.
25. The Applicant has given various and widely different versions of the incident where he claimed he was responsible for one soldier stabbing another. If there was no other evidence about the incident before the Tribunal, there could be a possible choice between determining whether the Applicant had a complete lack of credibility, or whether he was suffering from dissociative amnesia due to the extremely traumatic nature of the event. However, there is other evidence and it comes from the official Army records. Those records show that the Applicant had nothing to do with the stabbing and that none of his versions are correct. The Tribunal accepts the official version where it conflicts with any of the Applicant’s versions of the events. The Tribunal rejects the theory of dissociative amnesia in this case, and finds that the Applicant lacks credibility.
26. Turning to the incident where the Applicant claims to have been on a “search and destroy” mission, the Tribunal has serious doubts about the proposition that a Cook went as the group machine gunner on such a mission. However, the Tribunal is prepared to accept that the Applicant saw at least one dead Vietnamese while he was in SVN.
27. In the incident where the Applicant claims to have been attacked by a lone Vietnamese while in the company of three other servicemen, the Tribunal has some doubts about the details when it is considered that the various versions vary so widely. One version has a U.S. servicemen shooting the attacker, whereas another version is not at all clear on that point. One version has the Applicant feeling intense helplessness, whereas another has the Applicant putting the assailant on the ground and kicking him. The Tribunal is also left wondering why the innocent victim of an unprovoked attack would be sufficiently worried to not seek medical attention from the Australian Army staff.
28. The relevant SoP for PTSD is No. 3 of 1999 as amended by No. 54 of 1999, and in particular factor 5(a), which provides:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
“experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
29. The relevant SoP for Alcohol Dependence or Alcohol Abuse is No. 76 of 1998, and in particular factor 5(b); which provides:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
(a)…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
“experiencing a severe stressor’ means the person experienced,witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
30. The Tribunal finds that:
(a)The Applicant had nothing to do with the incident in which Private Knight stabbed Corporal Holt. There was nothing in this incident which caused him to experience a severe stressor.
(b)Seeing a dead Vietnamese in an advanced state of decay would have been extremely unpleasant but does not amount to experiencing a severe stressor within the meaning of that term in the relevant SoPs.
(c)Being set upon by an assailant with a knife would have been a frightening experience but the Applicant did not experience intense fear, helplessness or horror. He responded by putting the assailant on the ground and kicking him. The leg wound was so minor that it did not require attention other than a few stitches. He did not experience a severe stressor within the meaning of that term in the SoPs.
(d)That part of the hypothesis which links the Applicant’s service in SVN in 1967/68 with his eventual diagnoses of PTSD and AAD in 2000 is rejected. It relies on the proposition put forward by Dr. Likely that the Applicant’s first marriage ended after 14 years, that the Applicant had a troubled work history after he was in Vietnam and that he began drinking heavily in SVN. The Applicant’s first marriage lasted from 1961 until he separated from his wife in 1992. The Applicant did not have a troubled work history after he served in Vietnam. He served for a further ten years in the Army, worked for three or four years for Queensland Nickel, ten years as a youth worker, and five years as a cab driver. The Applicant did not drink heavily until he got back to Australia and discovered the Vietnam veterans were rejected by Australian society and by the RSL.
31. The hypothesis is not reasonable because it is not consistent with the template to be found in the relevant SoPs and there is no link between his service in SVN and his eventual diagnosis of PTSD and AAD over 30 years later.
32. The Applicant’s PTSD and AAD are not war-caused.
33. As to the question of Special Rate pension, the reasons for the Applicant’s failure to obtain remunerative employment are:
(a)Bad ankles
(b)Psychiatric problems
(c)Age
(d)Failure to attract an employer
None of the reasons are related to his war-service and consequently the application for an increase in pension to the Special Rate is rejected.
34. The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 26 February 2003
Date of Decision 11 September 2003
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Respondent Mr. J. Stoner, departmental advocate
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