Drew and Repatriation Commission
[2007] AATA 2040
•11 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2040
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600431
VETERANS' APPEALS DIVISION ) Re BERNARD DREW Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr R G Kenny, Member
Date 11 December 2007
Place Brisbane
Decision
The Tribunal affirms the decision under review.
..................[Sgd]............................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – criterion A for post traumatic stress disorder not met – effects of being confined below deck –post traumatic stress disorder not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 15 FCR 327
Budworth and Repatriation Commission [2000] AATA 127
Mines v Repatriation Commission (2004) 86 ALD 62REASONS FOR DECISION
11 December 2007
Mr RG Kenny, Member
Background
1. Bernard Drew (the applicant) served in the Royal Australian Navy (RAN) between 1968 and 1988. On 18 July 2005, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “PTSD” which he contended was related to his RAN service. On 8 September 2005, the respondent accepted that Mr Drew suffered from post traumatic stress disorder but determined that it was not related to his service. On 2 March 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr Drew now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Service and Standard of Proof
2. Mr Drew’s RAN service after 7 December 1972 comprised defence service as provided for in s 69 of the Act. However, no contentions have been raised in relation to that service and I am reasonably satisfied that it is not relevant to Mr Drew’s claim. From 14 May 1969 until 25 May 1969, he served on HMAS Vampire on voyages to and from South Vietnam and for some hours in Vung Tau Harbour. This constitutes eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act respectively.
3. The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. That imports the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. The standard of proof applicable to issues of causation for operational service is set out in s 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
4. The application of that provision is affected by the terms of s 120(3) and by s 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Contentions
5. It is not in dispute that the only condition for consideration in this matter is post traumatic stress disorder. Mr Honchin submitted that the condition is present in Mr Drew and that it developed in response to events which occurred whilst HMAS Vampire was in Vung Tau Harbour. Mr Stoner submitted that the diagnostic criteria for post traumatic stress disorder were not satisfied in Mr Drew’s case.
The Applicant
6. Mr Drew gave the following evidence. He was 19 years of age when he joined the RAN and celebrated his 21st birthday en route to Vietnam on HMAS Vampire. During that voyage, he and other young sailors were subjected to story-telling by various experienced sailors about what to expect when they arrived in Vung Tau Harbour. In these stories, the North Vietnamese were credited with controlling vessels (junks) modified to enable them to achieve high speeds and deliver torpedo strikes against Australian vessels. Additionally, they were credited with the capacity to manoeuvre close to Australian vessels and to drop divers armed with mines designed to damage them. Mr Drew and the others were also told that their time in Vung Tau coincided with the birthday of Ho Chi Minh and that the North Vietnamese were intending to capture Vung Tau township as part of his birthday celebrations. On hearing these stories, Mr Drew was not greatly concerned but, as the Vampire approached Vietnamese waters, he became apprehensive and the information provided to him “started to get under his skin”.
7. Mr Drew completed a two hour sentry duty on the deck of the Vampire when it first arrived in Vung Tau Harbour. He had performed similar sentry duties whilst the ship had been in Australia but, in that situation, he had been armed with a baton whereas, in Vung Tau, he was armed with a rifle. He was well aware that he was in a war zone and, in the distance, he observed aircraft which he was not able to identify but which he thought were involved in “swooping” manoeuvres. His sentry duties involved observing the waters around the ship for the presence of enemy divers, for potentially dangerous floating objects and for approaching vessels. His duty was incident free and he then returned his rifle to the magazine and went below deck. Shortly thereafter, he decided to return to the deck in order to have a more extensive view of his surroundings than he had been able to do whilst he was on sentry duty.
8. As Mr Drew was coming up through the hatch onto the upper deck, he was advised by the chief bosun that a junk had been seen approaching the ship, that it had disregarded a warning from the bridge and that only essential crew were permitted on the upper deck. He was told to stay below deck until the Vampire left the harbour. For the next two to three hours, Mr Drew remained below deck. He was anxious and fearful because he was unsure of what might happen and was concerned that some form of missile may be directed at the hull of the Vampire. After some time had passed, his concern changed from the prospect of a missile strike to the prospect of divers being released and mines being attached to the ship’s hull. These feelings were enhanced because of the sounds which echoed through the vessel. He thought that some of these were probably caused by RAN divers but, at the time, he was not aware of the source of all of these noises. For some of the time, he remained in his bunk space and then he went to the cafeteria where he spoke to other sailors but did not divulge to them his concerns. Throughout this time, no announcements were made over the public address system to advise the crew of what was happening above deck. Eventually, the ship weighed anchor and, as it progressed through the harbour, shots were fired from the deck and an announcement was made that these were directed at suspicious looking floating objects.
9. Mr Drew noted that, in the reports of his treating psychiatrist Dr Michael Likely, reference was made to his sighting of the junk, to the national identity of the aircraft which he observed and to flames and bombs associated with the aircraft activities. Mr Drew confirmed that he had not seen the junk, had not identified the aircraft or seen any flames or bombs. He said that this had been wrongly reported by Dr Likely whom he had subsequently so advised. Mr Drew agreed that, about a month or so after leaving Vung Tau Harbour, he had been on board the Vampire during joint exercises with the US Navy when the HMAS Melbourne collided with the USS Evans. His observation of the damaged Evans reminded him of his experiences in Vung Tau Harbour in the sense that it reminded him of what may have happened to the Vampire if it had been struck by a missile.
10. Prior to this voyage, Mr Drew did not consume alcohol. However, from the time in Vung Tau Harbour, he became a heavy consumer. This commenced in Singapore which was the first port of call after leaving Vung Tau Harbour.
11. Mr Drew said that he began to experience difficulty sleeping in the 1970s and first saw a medical practitioner in 2000 when his psychiatric symptoms had become more significant. Prior to this, he experienced the symptoms which he now knows to be associated with post traumatic stress disorder but which, at the time, he considered were simply “part of life”.
Medical Evidence
12. Evidence was given in this matter by psychiatrists Dr Michael Likely and Dr Peter Mulholland. Dr Likely has treated Mr Drew since 2000 and diagnosed him as suffering from post traumatic stress disorder with all the relevant diagnostic criteria being met. In particular, he was of the opinion that Mr Drew’s experience of being directed to remain below deck in Vung Tau Harbour was an event which involved a threat of death and which evoked intense fear in him at the time. He understood from Mr Drew that he had actually witnessed flames and bombs exploding in association with the aircraft that Mr Drew saw while he was on sentry duty and that he had identified the aircraft as American and Australian. He described, in his first report dated 3 August 2000, Mr Drew as experiencing intense fear at that time. In his evidence, he said that he understood that Mr Drew had actually seen the junk which had been the subject of the chief bosun’s direction to stay below deck. In his second report dated 15 February 2001, no reference is made to the aircraft but he notes that Mr Drew witnessed the junk approaching the Vampire before being instructed to stay below deck. In a third report, dated 9 August 2005, he again described events as he had done in his first report. In his evidence, he said that witnessing the planes in combat mode and the approaching junk were matters not directly relevant to his opinion about the stressful event or Mr Drew’s reaction to it because it was Mr Drew’s belief in the presence of the junk and the prospect of damage to the Vampire which was significant.
13. Dr Mulholland was referred to the diagnostic criteria for post traumatic stress disorder. In both DSM-IV (the 4th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) and in the Statement of Principles, these are labelled A to F. Criterion A comprises components (i) and (ii). Dr Mulholland was of the opinion that Mr Drew’s experience of being confined below the deck on the Vampire met all of the diagnostic criteria except for A(i). This was because he considered that a diagnosis of post traumatic stress disorder was not appropriate as Mr Drew was merely reacting to unfounded rumour and there was no actual or threatened death or serious injury at the time. In his report, dated 20 December 2006, Dr Mulholland considered that post traumatic stress disorder could only be diagnosed on a superficial basis. Nevertheless, he considered that the sense of danger was a real one for Mr Drew at that time because of the rumours he had heard and he accepted that Mr Drew had reacted to them with panic and fear. Dr Mulholland was of the opinion that Mr Drew’s belief system was that he was in danger at the time. Dr Mulholland said that, if he were considering the matter from a treatment perspective rather than from one of forensic analysis, he would undertake the treatment regimen adopted by Dr Likely for post traumatic stress disorder. He considered that the strictness of applying the diagnostic criteria was less significant for the psychiatrist who was involved in treating the patient.
Other Evidence
14. In evidence were Reports of Proceedings of HMAS Vampire for the relevant period. These record the ship arriving off Vung Tau on 19 May 1969 at 0530 hours, anchoring at 0645 hours and weighing anchor at 1100 hours. They note that no incidents occurred whilst in the Vung Tau area except for the dropping of scare charges and firing on suspicious-looking floating items.
Diagnosis
15. For the purposes of the Statement of Principles, post traumatic stress disorder is a psychiatric condition which meets a series of criteria set out in paragraph 2(b) thereof and derived from DSM-IV. Criterion A reads:
(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
16. Mr Honchin submitted that Mr Drew met criterion A(i) because he had a perception and belief that the ship may be attacked, that this amounted to his being confronted by that prospect and that he had the requisite response required by criterion A(ii). Mr Stoner submitted that this description did not reach the high threshold set by the DSM-IV and referred to the Tribunal decision in Budworth and Repatriation Commission [2000] AATA 127.
17. In evidence were extracts from the 4th edition of DSM-IV (Text Revision). Save for a reference to a child who may suffer from the condition, its definition of post traumatic stress disorder is in terms identical to that noted above (at 467). It also provides commentary. It states that “the stressor must be of an extreme (ie life-threatening) nature” (at 467) and nominates, in a non-exhaustive manner, a range of traumatic events that constitute examples thereof (463-4). These include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or man-made disasters, severe automobile accidents or being diagnosed with a life-threatening illness. Those examples are not provided in the description of post traumatic stress disorder in the Statement of Principles although some examples are referred to in the definition of experiencing a severe stressor in clause 8 of the Statement of Principles. In Budworth and Repatriation Commission (supra), the Tribunal described the nature of the traumatic stressor envisaged by the DSM-IV authors as a high level one, a grave or serious experience and one which must have an objective existence. This description was not disturbed when the case was dealt with in subsequent appeals.
18. I have concerns with aspects of the psychiatric evidence of both Dr Likely and Dr Mulholland in this matter in relation to criterion A(i).
19. Dr Likely has not been consistent in his analysis of the stressors which impacted on Mr Drew. In his first and third reports he relates the satisfaction of DSM-IV criteria to Mr Drew’s witnessing the traumatic sight of flames and bombs exploding in connection with aircraft movements. In his second report, he relates the satisfaction of DSM-IV criteria to Mr Drew’s witnessing the junk and being ordered below deck. Dr Likely’s evidence was that he understood that Mr Drew had actually seen the junk. Mr Drew conceded that he did not witness the aircraft action described by Dr Likely or see an approaching junk. Nevertheless, Dr Likely said in his oral evidence that it was Mr Drew’s being required to stay below deck with the perception that there was an approaching junk which was the relevant stressful event. Dr Likely also describes the impact from that process of being below deck as one which precipitated intense fear.
20. Although he considered that criterion A(i) was not met, Dr Mulholland described a superficial diagnosis of post traumatic stress disorder, conceded that the appropriate treatment regimen for Mr Drew was in respect of post traumatic stress disorder, described Mr Drew’s belief that he was in danger when he was below deck and accepted that this had resulted in associated feelings of panic and fear.
21. While there are some inconsistencies in the medical evidence about it, I am reasonably satisfied that criterion A(i) is met. However, I am not so satisfied in relation to Mr Drew’s response at the time for the purposes of considering criterion A(ii). The Tribunal in Budworth and Repatriation Commission (supra) described the need for a response so intense as to cause the symptoms appearing in criteria B, C and D (at para 62-64). These read:
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were
recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response;
22. The Tribunal in Budworth described this as an extremely high level of reaction to extremely traumatic stressors: at para 62. I agree with that description. Dr Likely referred to intense fear and Dr Mulholland referred to panic and fear and this enabled them to conclude that criterion A(ii) was met. Clearly, these descriptions of his feelings are what Dr Likely and Dr Mulholland were told by Mr Drew. Yet, that was not the evidence of Mr Drew given on oath at the hearing. He gave that evidence in a calm manner and described himself, at the relevant time on Vampire, as being “agitated”, “concerned about safety”, “feeling afraid”, and being “relieved” when the ship eventually weighed anchor. Even when he described his feelings on seeing the stricken USS Evans, he said that this had no effect on him except to make him think about what might have befallen the Vampire. While Mr Drew’s feelings of being afraid, of agitation and of concern are understandable, I am reasonably satisfied that they lack the intensity of response required in the diagnostic criterion A(ii) in DSM-IV and the Statement of Principles. On the evidence that he gave, I am satisfied that his reactions do not constitute a response which involved intense fear, helplessness, or horror.
23. As an essential element of the diagnosis of post traumatic stress disorder is not met, I am also reasonably satisfied that a diagnosis of post traumatic stress disorder, based upon the events in Vung Tau Harbour, can not be made. In that situation, it is not necessary to consider the matter of causation under s 9 of the Act: see Mines v Repatriation Commission (2004) 86 ALD 62.
Decision
24. The decision under review is affirmed.
I certify that the preceding 24 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ............................................................
Legal Research Officer
Date/s of Hearing 14 November 2007
Date of Decision 11 December 2007
Counsel for the Applicant Mr D Honchin of Counsel
Solicitor for the Applicant Purcell Taylor Lawyers
Representative for the Respondent Mr J Stoner
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