Donnelly and Repatriation Commission
[2006] AATA 534
•21 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 534
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/569
VETERANS’ APPEAL DIVISION
Re: PATRICK BERNARD DONNELLY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date:21 June 2006
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and in its stead decides that the applicant suffers from war-caused post traumatic stress disorder and alcohol dependence or alcohol abuse. The matter is remitted to the respondent to determine the degree of incapacity from such condition.
(sgd) B.H. Pascoe
Senior Member
VETERANS’ AFFAIRS – claim for post traumatic stress disorder and alcohol dependence or alcohol abuse – diagnosis of PTSD prior to operational service – severe stressor during operational service - whether diagnosis of PTSD made out – date of clinical onset of alcohol dependence.
Veterans’ Entitlement Act 1986
REASONS FOR DECISION
21 June 2006 Mr B.H. Pascoe, Senior Member
1. This is an application to review a decision of the respondent of 8 April 2003 which rejected a claim for post traumatic stress disorder (PTSD) and alcohol dependence. Claims for hearing loss, tinnitus and non melanotic neoplasm of the skin were accepted giving the applicant entitlement to a disability pension at 20 per cent of the general rate. On 8 November 2004, the Veterans’ Review Board (VRB) affirmed the decision of the respondent.
2. At the hearing the applicant, Mr P Donnelly, was represented by Mr G Moore of counsel and the respondent by Mr G Purcell of counsel. Evidence was given by Mr Donnelly, Dr C J Percival, a consultant psychiatrist and Dr J A Roberts, a consultant forensic psychiatrist. Reports from Commodore Philip Mulcare of Writeway Research Service were tendered by the respondent although Commodore Mulcare was not required for cross examination.
3. Mr Donnelly was born on 24 October 1945 and joined the Royal Australian Navy (the navy) on 6 July 1961 as a junior recruit at age 15½ years. He served in the navy for 21 years and attained the rank of Chief Petty Officer in the Gunnery Branch. He retired from the navy on 5 July 1982. Mr Donnelly rendered operational service on HMAS Perth in Vietnamese waters from 2 September 1967 to 10 April 1968 and from 14 September 1970 to 8 April 1971. He rendered eligible service as defined in Part IV of the Veterans’ Entitlements Act 1986 (the Act) from 7 December 1972 to 5 July 1982.
4. Mr Donnelly is currently unemployed and lives in a shack on a property at Tarwon Park, Bylong, NSW although spends most of his time travelling alone around Australia. After his discharge from the navy he worked as a delivery contractor from Australia Post, drove a school bus and worked as a thoroughbred horse trainer for some 14 years. He last worked in 2003. He has been married twice. The first lasted 10 years and the second 23 years although separated after 13 years. He has one adult son with whom he has no current contract although Mr Donnelly said that they were close in earlier times.
5. Mr Donnelly said that, in 1963, he was aboard HMAS Anzac which recovered a whaler containing the bodies of two midshipmen who had become lost at sea during an exercise by HMAS Sydney. He said that he was on watch at the time and involved in recovering the bodies by nets and canvas. He said that there was no refrigeration on Board and the bodies were dosed in phenol to minimise the odour of deterioration until they could be unloaded at Townsville. Mr Donnelly said that he started having regular nightmares of bodies melting through netting and any smell of phenol upsets him and reminds him of the incident.
6. Mr Donnelly gave evidence of three incidents during his operational service on HMAS Perth. The first was in October 1967 when, accompanied by USS Newport News, they were investigating water borne craft and his ship came under fire. He said that he was having breakfast below the water line and heard explosions in the water. He ran to his action station and, initially, could not understand the apparent lack of recognition by others of the apparent attacks. He discovered that the ship had been hit with sailors injured including an artificer who, Mr Donnelly believed, had his “jaw blown of”. He was part of the party responsible for the medivac of the injured sailor to the USS Newport News.
7. The second incident occurred during his second tour in Vietnam on HMAS Perth. He was the gunnery officer responsible for setting targets, determining the type of fire and the firing of the guns at nominated targets on the mainland of South Vietnam. Targets were described as, for example, “troops in the open” or, “enemy repairing bridge” and the coordinates were given. Often the description was “harassing and interdiction”. After approval of the captain, he was involved in managing the firing of the guns. Mr Donnelly said that, during leave at Subic Bay in the Philippines he was drinking with another crew member at a Bar at the U.S. Naval Air Station. He was involved in a conversation with some American airmen who said that they had done spotting for HMAS Perth some three weeks prior. He said that he was told that some targets described as troops in open were civilians picking rice in a paddy field and that “enemy repairing bridge” were, at times, forced civilian labour. Mr Donnelly said that, after initial disbelief, he started to worry about the targets at which he was firing. He said that he had to keep doing his job with that worry. Prior to leaving Vietnam, he commenced having nightmares with a vision of a woman in a white dress and white hat flying into the air after a shell burst. He said that he could not see the woman’s face. He has regular dreams of a ship travelling over land and firing its guns. He was unable to provide a clear answer as to why he did not report the conversation with the American pilots to anyone else but said that, while it made his job difficult, he did not believe that reporting the statement would have any positive effect.
8. The third incident involved the surrender of several Vietnamese who approached HMAS Perth in a small craft. Mr Donnelly said that they were taken aboard, handcuffed and seated. He said that he coxswain placed cigarettes in their mouths then after lighting the cigarettes, knocked them from their mouths. The prisoners were later transferred to a South Vietnamese petrol boat against the protest of the prisoners. Subsequently he said that he heard three gun shots from the patrol boat and believed that some prisoners had been shot. Mr Donnelly said that he was distressed at the apparent unfairness.
9. Mr Donnelly said that he still has nightmares on a regular basis and has difficulty sleeping. The nightmares are of the Vietnamese woman and of the bodies in the whaler with the former being more frequent. He believed that these had cost him two marriages. He said that he does not get on with people and has always chosen occupations in which he worked alone. He has not seen one sailor since leaving the navy and is not interested in attending any reunions. He “goes bush” alone and is unable to see any future other than growing a few vegetables, drinking to excess and reading. Mr Donnelly said that, after the commencement of nightmares in 1963 and subsequent different nightmares in 1970, he did not seek counselling and did not consider it as other than a normal reaction and out of the ordinary. He did not seek any treatment until 2002.
10. Mr Donnelly said that he started drinking a few years after joining the navy. Prior to his tours to Vietnam he drank approximately six “middies” of beer on a Saturday afternoon and, generally, one ‘stubbie” of beer at night. He said that, after the first tour, his drinking became heavier and more frequent with six “pots” on the way home most nights and a “big session” on Saturdays with 12-14 pots. He said that, after the second tour, he would drink six pots each day when he could plus up to six whiskies and a bottle of wine. At times he would drink for a straight 12 hours consuming beer, spirits and wine. Currently he does not drink spirits but consumes some six stubbies of beer and a bottle of wine each night. He acknowledged that a drinking questionnaire which he signed on 28 May 2002 stated that he began to consume alcohol on a regular basis in 1966 and he then consumed “6-8 stubbies and 13 oz scotch whisky”. He stated, also, that his alcohol consumption changed significantly “after discharge”. Mr Donnelly said that the questionnaire had been completed for him by an RSL delegate although signed by him. He denied that the level of consumption shown as 1966 was correct as he was not drinking the amount stated at that time. He accepted that he did not drink at all when at sea on HMAS Adelaide from 1980 to 1982 and there were extended periods in that time when, with little opportunity to drink he could control his habit. He said that alcohol was not the cause of a motor vehicle accident at HMAS Albatross in 1971 although he was then regularly drinking to excess.
11. Dr Percival first saw Mr Donnelly in July 2002 on referral from his then general practitioner. Since then he has seen Mr Donnelly on six further occasions. He diagnosed PTSD and alcohol dependence. He believed that the PTSD arose initially after the whaler incident in 1963 but became significantly worse after his Vietnam operational service. Dr Percival maintained that it was normal for service personnel not to recognize an abnormal behaviour and, frequently, only became aware of their problem after leaving the service. While it was suggested by the respondent that Dr Percival appeared to be acting as a advocate for Mr Donnelly in his critical comments on the respondent’s decision and the opinion of Dr Roberts, Dr Percival maintained strongly that he was simply being an advocate of his professional opinion being very familiar with the Statements of Principle and experienced in treating veterans. He accepted that his diagnosis was based on the history given by the patient but said that Mr Donnelly had repeatedly assured him that the history, particularly of his drinking, was correct. On that history and his examination, Dr Percival was firmly of the view that the clinical worsening of PTSD and the alcohol dependence were attributable to Mr Donnelly’s operational service. He did not agree that abstinence from alcohol while at sea excluded the diagnosis where binge drinking in between trips took place.
12. Dr Roberts examined Mr Donnelly on 21 February 2005 at the request of the respondent. He rejected a diagnosis of PTSD but agreed with a diagnosis of alcohol dependence. His rejection of PTSD was, to a significant extent, influenced by the history given by Mr Donnelly of coping well with his duties whilst in the navy and developing problems some time after retirement from the navy. Dr Roberts considered that the dream involving a Vietnamese woman did not involve an actual experience but a fantasy. He was of the opinion that PTSD does not arise from speculation or possibility but has to involve an actual event experienced by the individual. However, he did acknowledge that the recognition of something previously not known such as the deliberate causation of civilian death and the possibility that the individual could have been responsible could produce PTSD. Dr Roberts was of the opinion that Mr Donnelly’s alcohol dependence was not the result of operational service on the history taken by him of abstinence “for a number of years prior to discharge”. He said that his notes recorded “didn’t drink at sea in later years”. Dr Roberts acknowledged that his opinion would be correct if there was no evidence of heavy drinking during that time.
13. As Mr Donnelly had operational service, s 120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal shall be so satisfied if it 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. As the claim was made after 1 June 1994, s 120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:
·Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse;
·Instrument Nº 3 of 1999 as amended by Instrument Nº 54 of 1999 concerning post traumatic stress disorder.
Each of the relevant SoPs set out the factors, one of which relate to the veteran’s service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.
14.In relation to PTSD the factor relied upon in this case was 5(b) “experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder:”
“experience 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 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;.
In the definition of PTSD the SoP refers to the person having been exposed to a traumatic event in the same words as the definition of “experiencing a severe stressor” and requires that “the person’s response involved intense fear, helplessness, or horror”.
15. In relation to alcohol dependence or alcohol abuse, the factors required under the relevant SoP are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Experiencing a severe stressor in this SoP is in exactly the same language as that for PTSD with the addition of the words “which event or events might evoke intense fear, helplessness or horror”.
16. The first issue to be considered is whether Mr Donnelly suffers from the condition claimed. In relation to PTSD, Dr Percival was adamant that Mr Donnelly suffered from the condition and had from 1963 with a clinical worsening after operational service. While Dr Roberts did not agree with the diagnosis he did concede in his oral evidence that it was possible. In addition he appeared to base his opinion on the words of the SoP which is not a diagnostic reference. Notwithstanding the element of advocacy in Dr Percival’s evidence, his view is preferable as a psychiatrist with more directly relevant experience than Dr Roberts and one who has examined and treated Mr Donnelly on several occasions compared with the one examination on Dr Roberts. I find, therefore, that Mr Donnelly does suffer from the condition of PTSD on the balance of probabilities.
17. The next issue is whether the material before me raises a reasonable hypothesis connecting the condition with the circumstances of operational service. For Mr Donnelly, three incidents were proposed as providing that connection. The first was the shelling of HMAS Perth. I am satisfied from the evidence that such an incident occurred, sailors were injured and Mr Connelly witnessed the aftermath. However, I am satisfied also that the injury to the sailor did not involve a “jaw blown off” but was less serious. I am satisfied also that Mr Donnelly’s response was concern but not fear, helplessness or horror. It is significant in this conclusion that Mr Donnelly had not raised this incident as relevant with either psychiatrist or the VRB and raised it in 2005 only after being reminded of the incident by another person. Consequently I find that this incident does not satisfy the required factor under the SoP.
18. The second incident of being told of fire from HMAS Perth likely being targeted at civilians relies on accepting the evidence of Mr Donnelly with no possible independent verification. Here I do accept his evidence. He, in effect, was the person who “pulled the trigger” and after the conversation with the U.S. navy pilots believed that it was likely that he had been the cause of civilian deaths and each time thereafter my well be responsible for further such deaths each time he obeyed the order to fire. Whilst his subsequent and ongoing nightmares did not involve an actual event witnessed and was, to a degree, fantasy, it was the result of his feelings of helplessness and horror and a belief that the blowing up of a Vietnamese woman may have been from his action. In the circumstances, I am of the opinion that this incident satisfies the requirements of the SoP so as to establish a reasonable hypothesis connecting the clinical worsening of his PTSD with his operational service. The commencement and greater frequency of these nightmares clearly indicates such a clinical worsening.
19. The third incident involving the treatment of prisoners who surrendered to HMAS Perth is in a somewhat similar category to the first. Here, I am satisfied that the response to what he believed happened was pity and a feeling of unfair treatment and was not a response required by the SoP. It is also relevant that independent evidence does not support Mr Donnelly’s belief that some of the prisoners were ill treated and shot.
20. In relation to the claimed condition of alcohol dependence or alcohol abuse both psychiatrists are satisfied that Mr Donnelly suffers from that condition, where they differ is on the questions of date of clinical onset and causation. The area of difference centres on his admitted abstinence while at sea on HMAS Adelaide during his service on that ship from 15 November 1980 to 4 July 1982. Dr Roberts had originally understood that this abstinence was for the whole of his period of service on HMAS Adelaide. In his evidence, Mr Donnelly, said that he abstained from alcohol while at sea but would drink to excess when not at sea. Research by Commodore Mulcare indicated that the ship spent 100 nights at sea during the period in which Mr Donnelly was aboard. Beer issues were made only when the ship was at sea overnight unless the ship was exercising in company. HMAS Adelaide first went to sea on 5 January 1981 after being commissioned in America on 15 November 1980. After tests and trials and repairs after running aground, the ship sailed for Australia on 21 November 1981 arriving in Sydney on 17 December 1981. It visited Adelaide in February 1982 and conducted further trials and workup out of Sydney until Mr Donnelly left the ship on 4 July 1982. While recognizing some concern at his clear ability to control his drinking while at sea and the doubts that this could indicate of suffering alcohol dependence or alcohol abuse, I am prepared to accept his evidence of significant binge drinking between those periods of abstinence. Consequently, I am prepared to find that he suffered the condition during that period adopting the opinion of Dr Percival and the concession by Dr Roberts.
21. To satisfy the relevant SoP it is necessary to find that either Mr Donnelly experienced a severe stressor within two years immediately before the clinical onset or clinical worsening of alcohol dependence or alcohol abuse or was suffering from an operational service related psychiatric disorder at such time. One of the difficulties is the alcohol questionnaire signed by Mr Donnelly which stated that the only significant change in drinking from 1966 was after discharge. In his evidence to the VRB he said that drinking was never a problem in the navy and the significant increase occurred after he left the service as he found it difficult to relate to others and to cope with the adjustment from service life to civilian life. His evidence before this Tribunal differed from that history. Consequently, I cannot be satisfied that he did suffer from alcohol dependence or alcohol abuse within two years of experiencing the severe stressor accepted in relation to his PTSD.
22. Nevertheless, it is clear from the opinion of both psychiatrists and the evidence of Mr Donnelly that he does suffer from the condition dating, at least, from the time of discharge. Having made a finding that he suffered from PTSD related to operational service well prior to that time, he satisfies the factor in the SoP in that he suffered from a psychiatric disorder at the time of either the clinical onset or clinical worsening of alcohol dependence of alcohol abuse. Consequently I am of the opinion that there is a reasonable hypothesis connecting that condition with Mr Donnelly’s operational service.
23. Whilst there was an implication in the submission of Mr Moore and some reference to Mr Donnelly’s evidence that he was seeking a special rate pension under s 24 of the Act with a suggested inability to work because of his claimed conditions, no specific evidence or argument was provided. In addition no specific claim or decision of the respondent in relation to special rate entitlement has been made. It is appropriate, therefore, that, if Mr Donnelly wishes to pursue such a claim, he provides the respondent with such a claim together with any appropriate evidence in support. It is not appropriate for this Tribunal to deal with such an issue at this time.
24. It follows from the foregoing that the decision under review should be set aside and, in lieu thereof, a decision that the applicant suffers from war-caused PTSD and alcohol dependence or alcohol abuse. It is appropriate that the matter be remitted to the respondent to determine the degree of incapacity from such conditions in order to assess the appropriate entitlement to pension.
I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 9 May 2006
Date of Decision: 21 June 2006
Counsel for the applicant: Mr G. Moore
Solicitor for the applicant: Peter J. LiefmanCounsel for the respondent: Mr G. Purcell
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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