Drew and Repatriation Commission - [2002] AATA 388

DECISION AND REASONS FOR DECISION [2002] AATA 388

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/66

VETERANS' APPEALS DIVISION          )
           Re      James Drew
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member, Dr P Staer, Member and Brigadier RDF Lloyd, Member

Date24 May 2002
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Veteran's Review Board of 24 January 2001, insofar as it relates to the applicant's post traumatic stress disorder, is affirmed.
  ...........(sgd R D Fayle)...........
  Senior Member
CATCHWORDS
VETERANS' APPEALS – whether applicant suffers from post traumatic stress disorder which was war caused; whether applicant fits the template of the relevant Statement of Principles; whether the applicant experienced a severe stressor whilst on eligible service in Vietnam; psychiatric diagnosis of PTSD.
Veterans' Entitlements Act 1986, ss120, 120A
Statements of Principles, Instrument No 3 of 1999 as amended by 54 of 1999 – Post traumatic stress disorder.
Freeman v Repatriation Commission [2002] FCA 576
Repatriation Commission v Deledio (1998) 83 FCR 82
Creyke & Sutherland, Veterans' Entitlements Law, The Federation Press, 2000 pp.434, 435.

REASONS FOR DECISION

24 May 2002 Mr R D Fayle, Senior Member, Dr P Staer, Member and Brigadier RDF Lloyd, Member

On 3 March 1999, the veteran, Mr James Drew ("the applicant") lodged a claim for Disability Pension and Medical Treatment under the Veterans' Entitlements Act 1986 ("the Act"), on the basis that several disabilities including those of depression/sleep disorder (sleep apnoea) and post traumatic stress disorder ("PTSD") were service related. On 24 January 2001, the Veterans' Review Board (VRB) decided that the depression/sleep disorder should be diagnosed as sleep apnoea. Neither conditions of sleep apnoea nor PTSD was accepted as service related. The applicant appealed to this Tribunal for a review of the VRB decision in relation only to the condition of PTSD.
At the hearing the applicant was represented by Mr Simon Macdonald, barrister. Mr Carl Ponnuthurai represented the respondent. The applicant gave evidence. Also Lieutenant Colonel (Retired) Hugh Conant gave evidence by telephone in relation to historical records pertinent to the claims. The Tribunal had before it the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The following exhibits were taken into evidence:
A1      Statement by James Paul Drew filed with the Tribunal on 1 June 2001 but subject to an amendment such that the words "Vung Tau or" be added to paragraph 11 preceding the word "Saigon".
A2      Signed statement of William Lewis Howarth, received by the Tribunal on 1 June 2001.
A3      Signed statement of George Grahme Chevalley, dated 24 May 2001.
A4      Letter of 15 March signed by Mr BB (Bill) Killalea.
A5      Email of 15 March 2002 showing sender Pat Hill, Launceston and signed statement of Patrick Hill, dated 25 March 2002.
A6      Signed hand written statement of Ex. WO DK Ward, dated 16 March 2002.
A7      Signed hand written statement of David Newsome, dated 26 March 2002 and attaching a photograph (numbered 6 for identification).
A8      5 coloured photocopies of photographs numbered 1 to 5 inclusively (purporting to be of scenes at the Nui Dat base).
A9      Report of Dr Peter McCarthy of 3 April 2002.
R1      Write Way report of 12 September 2001.
R2      Report of Hugh Conant of 9 January 2002.
The applicant served with the Australian Army from 26 June 1961 to 25 June 1967 and rendered eligible service in Vietnam from 31 May 1966 to 21 May 1967 – which was operational service in terms of the Act.
Summary of Applicant's evidence
As mentioned, the applicant gave evidence in person. The applicant had previously provided a written statement taken in as exhibit A1 subject to an amendment to paragraph 11 to insert "Vung Tau or" before "Saigon" where it appears in the second line. The explanation given to the Tribunal by the applicant is that he cannot recall where the incident therein referred to took place, whether it was in Saigon or in Vung Tau, both in South Vietnam.
As mentioned, the applicant served in the Australian Army in the Infantry Corps between 1961 and 1967. He was 18 when he joined. After training in Australia he was eventually posted, in May 1966, with 6RAR to Vietnam. He was despatched as part of the advanced party, travelling by air via Singapore to Ben-Hoa and was initially stationed at that US Army base. Apparently the remainder of his Battalion travelled by sea arriving some time later at Vung Tau and then moved to the 1st Australian Task Force (1ATF) base at Nui Dat.
The applicant went from Ben-Hoa to Nui Dat, the Australian base. The Tribunal understands from the evidence of Lt Col Conant that Nui Dat was about 45 to 50 klms inland from Vung Tau and about 60 klms from Saigon.
The applicant was attached to the Transport element of 6RAR at Nui Dat as a driver. He was initially a private. Besides driving responsibilities he was assigned various other tasks including clearing trees within the Nui Dat base.
The Tribunal has some difficulty with the applicant's evidence. Those difficulties stem from apparent inconsistencies in his evidence at the Tribunal, concerning four incidents that he said either involved him or that he witnessed. Those will be discussed in some detail shortly. However, it is relevant, in the Tribunal's opinion to observe that these incidents to which the applicant refers, happened about 35 years ago, that the applicant has a history of heavy alcohol use and psychiatric evidence indicates that the applicant has memory difficulties. None the less the Tribunal was able to draw conclusions from the evidence before it of the four incidents.
The four incidents, each of which is purported to have occurred whilst the applicant was on Operational Service in Vietnam are referred to as:
The mortar incident.
The deceased comrade incident.
The shooting incident.
The burial incident.
The evidence relating to each of these is now discussed.
The mortar incident.
The applicant's oral evidence and his written statement are fairly consistent in relation to his recall of the circumstances of this incident. He said that soon after arriving in Nui Dat he was driving a vehicle in a convoy at night. This he said, was his first experience in Vietnam of driving in a convoy. His role was a vehicle coordinator. He states "my unit [6RAR] was mortared" and he recalls mortar explosions going off "all around him". He said that he cannot recall just where this incident happened but he recalls that it was pitch black that night and he couldn't see anything. He said that the convoy stopped (presumably on his order) and that he got out of the vehicle he was driving. He said he heard mortars thumping all around but did not see any explosions. He thinks he may have taken cover underneath the vehicle. He cannot recall for how long this went on. He said that he recalls feeling "shit scared" because it was pitch black.
There is no corroborating evidence of this incident. The Tribunal received a research report from Lt Col Hugh Conant (ex. R1) and also received oral evidence by telephone from him. Lt Col Conant said, in relation to this incident that it would have been most unusual if it happened. He said convoys did not move around at night as it would be too difficult to protect them. He said that if men or materials had to be moved at night then the usual practice was to shift them by helicopter. He also said that there would be little chance of the applicant being part of an American convoy moving at night because the applicant, being an Australian soldier, would not be familiar with American procedures.
Lt Col Conant, in answer to questions put to him, said that whilst it was possible for a convoy to move at night within the Nui Dat base there would need to be a very good reason for doing so as such movements were strictly controlled and required a special permit. He said vehicles travelling at night within the base were required to have their headlights dimmed. He said that it would be most unusual for a convoy of 4 or 5 trucks to move around at night, but he did not rule out the possibility of it happening.
Lt Col Conant referred to the report by Write Way's John Tilbrook, (T26) which states at paragraph 24:
"24. It is worthy of mention that there was a significant prelude on the eve prior to the Battle of LONG TAN which could also be relevant to this Report regarding the sevice of [the applicant] with 6RAR in Vietnam in 1966/67. The enemy barrage of rockets, mortars and shells began at 0243 hr on 17 August 66 and ceased at 0410 hrs. After this attack some 67 x 82 mm mortar bomb craters were counted, even 5 x craters from what was later identified as WW2 Japanese 70 mm Howitzer gun, as well as a number of enemy RCI rounds.
…
26. It is accepted that the Veteran was present inside of the 1 ATF base during the mortar attack on 17 Aug 66, along with the rest of the garrison numbering some 2,000 men. Although there is no report of any enemy rounds landing within the 6RAR unit lines, the entire 1 ATF contingent was 'stood to' at the time of the mortar attack until first light, as it was thought that the enemy may have followed up this bombardment with a ground attack, but fortunately this did not eventuate."
Lt Col Conant said that the most likely movement of vehicles within the Nui Dat base at night would be that of ambulances during such an attack as described above or of vehicles used to replenish ammunition should that have been necessary. It is possible also that other vehicles may have been required to move casualties to a medical aid post. He said that when troops were "stood to" they were required to get into their bunkers so there would be no need to move personnel around. The Tribunal understands Lt Col Conant's evidence to be that the only time troops would move around is when "stand down" was called and that would have been after first light and after the enemy bombardment had ceased.
Lt Col Conant was asked by Mr Macdonald if he had any evidence of mortaring on the road between Nui Dat and Vung Tau in 1966. He recounted six instances, which apart from one, involved only small arms fire. The exception was an incident on 2 August 1966 in which an American convoy was attacked (in dayylight) at 1135 hrs but this was a long way from Nui Dat.
The Tribunal has considerable difficulty in accepting the applicant's uncorroborated evidence about this alleged incident having happened in the way described, if at all. The evidence does not support the conclusion that it was the 17 August 1966 bombardment described by Mr Tilbrook (T26) and referred to by Lt Col Conant – the applicant said the incident to which he referred took place soon after he arrived (in Vietnam or Nui Dat). He arrived in May 1966. The applicant did not see any explosions but said he heard "mortars thumping all around". The 17 August 1966 mortar attack was not on the 6RAR sector of Nui Dat. The Nui Dat base, according to Lt Col Conant, measures from its widest of about 3 kms to its narrowest of about 2 kms in width (that is, east to west) by about 3 kms in length, (that is, north to south). No doubt the 17 August 1966 enemy bombardment would have been heard by those then present at the base but not all were proximate to the explosions. Also, the incident as alleged by the applicant took place at night and the convoy was under his control as coordinator. In that event, it would have been a most unusual (to adopt Lt Col Conant's opinion) convoy. Despite the applicant's poor memory he does recall many details of the alleged incident. In the Tribunal's opinion it is beyond belief that as coordinator of an unusual convoy for which a special permit would have been required, that the applicant does not recall the purpose of the convoy or the place at which this alleged incident took place.
The Tribunal is satisfied beyond reasonable doubt that the mortar incident did not take place in the manner described, if at all.
The deceased comrade incident.
The evidence about this incident is quite equivocal. It seems that the applicant has changed his story from time to time or has simply forgotten the actual details of the incident. In his written statement (A1) the applicant said that he "witnessed the dead body of a comrade being brought back through our transport compound" and he states that the victim was a former driver and colleague. He concludes his written evidence by saying that "[i]t was some time later that I found out that Colin was a forward scout when he had been blown up by a claymore mine. I was devastated as he was a close friend."
His oral evidence was more explicit. He said that he was present in the Transport compound at Nui Dat when he saw a "poncho" being carried from a vehicle, which had come into the compound. He found out some time later that it was the remains of a former colleague from Transport who had transferred to a rifle company and had been blown up by a claymore mine. He did not see the body of the deceased. He said that when told that the body was that of his former colleague he was saddened because he had previously told him not to leave Transport, which was relatively safe.
Nevertheless, the Tribunal is not satisfied beyond reasonable doubt that the applicant did not witness the remains of a soldier, covered by a poncho, whom he later learnt was the remains of a friend, being brought back to Nui Dat. There is no suggestion in the evidence preferred by the Tribunal, that is, the applicant's oral evidence, that he experienced horror or fear or was threatened in any way as a result of this incident at the time, or on finding out later that the deceased was his former colleague.
The shooting incident.
In the Tribunal's opinion there is considerable doubt about whether this incident happened or if it did, then whether the applicant actually witnessed it. The applicant's written statement said that:
"I saw a civilian get shot in the back of the head by local police known as "white mice". This happened when I was in Vung Tau or Saigon, in an American canteen. The man was on a push bike. The policeman without any warning pulled his pistol and shot his fellow Vietnamese in the head. The man fell off his bicycle and lay on the road. I recall him laying in the gutter, blood coming from the back of his head. The body was left in the gutter and I recall the police went about their business and the locals appeared to be indifferent. I was horrified and scared as the civilian appeared to be doing nothing wrong at the time. I was told later that he did not stop when a policeman blew his whistle."
The applicant was questioned extensively about this incident. In answer to questions put to him he said that at the time he was outside a US canteen/store (known as a PX) and he was interacting with a group of locals who were trying to negotiate to have someone entitled to enter the store (i.e. an American or Australian serviceman) to buy things for them. He said that he heard a whistle and he looked up to see the cyclist who did not stop but continued on (despite the policeman's signal). The applicant said the policeman then drew his gun and aimed at the cyclist shooting him in the back of the head. When asked how far away the cyclist was from the policeman, the applicant said 20 to 50 feet or so. He said that after he witnessed the incident he ran into the canteen. He does not know how long he was in there but when he came out he saw that things were apparently back to normal, except that the body was lying in the gutter and nobody was taking any notice of it. He could not recall whether the incident was in Vung Tau or in Saigon. However, he did say that he often had driving tasks to Vung Tau but not often to Saigon. The applicant was asked specific questions about his reaction to this incident. He cannot recall whether he drove back to base then or stayed overnight. When asked where he would stay he said, in effect, that he would make his own arrangements but it would not have been at any Military establishment. He implied that the supervision of Transport to which he was attached was not strict and that he was not accountable for his time away on tasks such as taking and collecting laundry to and from Vung Tau.
The Tribunal asked the applicant to describe the shot. He said that the policeman took aim and fired his pistol hitting the cyclist in the back of the head. The Tribunal is sceptical about this evidence – firstly, the cyclist was on his bike and proceeded past the policemen when the whistle blew. Then, so the evidence goes, the policeman drew his revolver from his holster. Then the policeman took aim and fired, hitting the target in the back of the head at a distance. In the opinion of the Tribunal, given even a slow moving cyclist that distance, most likely, would have been significantly more that 20 to 50 feet. That simply begs the question of why did the policeman fire his revolver when clearly there were many other people in the immediate vicinity. It also raises doubt about the applicant's evidence that the cyclist was shot in the back of the head. Further, the applicant implies that whilst he was not present to witness the reaction of those present in the immediate vicinity, it was not one of panic but orderly. The Tribunal asked the applicant if he had heard of any similar incidents and whether he considered them to be a regular event. The applicant replied in the negative on both counts.
Lt Col Conant gave evidence in relation to this alleged incident. In essence he said that it was not uncommon for enemy Viet Cong soldiers to shoot prisoners or civilians suspected of corroborating with us. He said that there are no reports of any shootings by the South Vietnamese police of civilians for having disobeyed a traffic command. He said that it was fairly well known that the South Vietnamese soldiers were "trigger happy" and might shoot indiscriminately if they felt threatened. He told the Tribunal that the South Vietnamese police carried one of two kinds of pistols – some were armed with point 45 calibre pistols and some with point 38 calibre pistols. He opined that a skilled shooter might be able to take aim and shoot accurately a moving cyclist some 20' to 50' away using a point 45 calibre pistol, but it was most unlikely that even a skilled shooter could do that with a point 38 calibre pistol. He said that the likely wound from being hit by a point 45 calibre bullet at that distance would be to almost blow away the person's head and would be very bloody. However, if the person was hit at that distance by a point 38 calibre pistol then the wound would probably be an entry wound and not a lot of blood would flow after the person's heart stopped. He also told the Tribunal that should the incident have occurred then it was most unlikely that the body would have been left to lie in the gutter because the religious culture of the Vietnamese is to treat the dead with respect. Also, the body would have been moved quickly because of the heat. He said it would have been the police's duty to do that as soon as possible.
The applicant could not recall what he did following the incident except to say that he may have driven back to base or he may have stayed in town (Vung Tau or Saigon) and, to use the Tribunal's words, had a good time. Also, when asked by the Tribunal whether he had talked to his fellow soldiers about the incident, he said that he had not. The Tribunal simply notes that in that event either the applicant thought nothing of the incident at the time or it was not considered by him to be so remarkable that he would mention it to colleagues.

In the Tribunal's opinion this evidence is not credible. There is no corroborating evidence of such an event having happened during the applicant's eligible war service in Vietnam from May 1966 to May 1967. When the Tribunal indicated to the applicant that it was very sceptical that the incident happened as he described it, the applicant's reaction was to assert emphatically that he was there and he did see it. None the less, the Tribunal is satisfied beyond reasonable doubt that the applicant did not witness the actual incident, which he claims to have witnessed.
The burial incident.
In the Tribunal's opinion there are several inconsistencies in the evidence before it relating to this incident. The applicant, in his written statement said that on one occasion he was despatched with another soldier "to drive out with two stretchers to pick up two dead bodies." (Emphasis added) He stated that he received the instruction late one afternoon but he could not recall from where he collected the bodies although they were two Viet Cong. He stated that he assumed they were killed by American helicopters but he was uncertain. He stated that one "had been shot through the back of the head and the other had his left knee blown away." He further stated:
"The bodies were placed on stretchers in the back of the land rover so that the head of one of the dead soldiers banged against my head as I drove the land rover back to base along the road. (Emphasis added)
The bodies were buried back at the camp, in the administration company area, probably 300 to 400 yards from the canteen, in an area where there were trenches. When I pulled up there were several people milling around the area, one of whom was William Howarth from our transport section. There was some sort of machinery there I vividly recall a tip truck present.
I cannot be sure of the precise details of the burial other than that the bodies were buried in a trench. Whether the trench was already there or if not, how it was dug, how it was filled in and what material was used I can no longer recollect for sure. I cannot recall who told me to bury the bodies at the location and in the manner it happened, but the decision was not made by myself.
…"
During his cross-examination the applicant denied that he left the perimeter of the base (Nui Dat) to collect the bodies but that he thought it quite possible that he collected them from a helipad within the base – as he recalls a helicopter present, with its rotor blades still revolving. In the Tribunal's opinion this is contrary to the impression one gets from the other written evidence in relation to this incident. In the Tribunal's opinion the histories taken by the psychiatrists and the applicant's own statement imply that he left the Nui Dat base to collect the bodies (e.g. see the emphasised parts of his written statement above). The evidence recorded by the Veterans' Review Board (T30) is that the applicant's duties involved having to collect bodies and transport them back to the compound for burial. Whether the VRB considered "the compound" to be the Nui Dat base or the location within it of the transport element is not clear, so there is some doubt about just what the VRB understood in this respect.
In his oral evidence the applicant said that when he returned to the transport area with the bodies, he drove to a disused pit. There he and the other soldier took the two stretchers from the back of the land rover/ambulance and slid the bodies off into the pit, where they landed with a thud. They then drove off. He said that he does not recall that at the time he had any sense of horror or that he thought anything of it. He said that during his service he saw lots of horrible things, for instance, civilians feeding snails to their children and civilians fishing for frogs in rice paddies. The frogs were eaten. The applicant claims that he now looks back on this burial incident with some horror.
It is noted that at the VRB the applicant's evidence was materially different in one respect. And that is that at the VRB the applicant said that:
"he recounted … how he would drive a landrover out to pick up dead bodies accompanied by another soldier. He pointed out that he was in charge of this operation and often had to go out when nobody else was available because they had been given other tasks. When he picked up the bodies he brought them for burial which entailed digging a trough using a front end loader and sliding the bodies off the stretchers and 'you would hear them thump into the ground.'" (T23, p74)
At the hearing of this matter before this Tribunal the applicant said that he had just the one experience of collecting dead bodies for burial. He denied that it was a usual practice. In the Tribunal's opinion, the applicant may well have been influenced in changing his evidence, since the VRB decision having read the Write Way research report (T26) which does not support the applicant's evidence that it was customary to bring back bodies for burial within the base.
The Tribunal notes that evidence by way of signed statements of fellow soldiers serving at the time at Nui Dat, only one of whom is known to the applicant, was admitted. That evidence, in the Tribunal's opinion, cannot be disregarded and does at least lend some support to the applicant's contention that enemy dead may have been on this occasion, buried on the base.
Having regard to all the evidence in relation to this incident the Tribunal is not satisfied beyond reasonable doubt that the applicant was not involved personally in the burial of two enemy in a grave or pit dug at the base.
The medical evidence of PTSD
Three psychiatrists have provided reports which are in evidence. They are the reports of:

Dr. M Woodall, whose report is dated 23 August 1999 (T10);
Dr.P. McCarthy provided two reports – his first is dated 9 February 2000 (T13) and his second is dated 3 April 2002 ( A9).
Dr. A. Mander, whose report is dated 12 September 2000 (T25)

Each is discussed in context.
Dr. M Woodall's report

Dr Woodall saw the applicant (on 23 August 1999) in relation to "depression/sleep disorder and Post Traumatic Stress Disorder". His history details the applicant's broken home, being brought up by his grandmother and never meeting his American GI father until late in life. He also notes the applicant's excess drinking and his medical problems of peptic ulcer, solar keratosis and skin cancers and also his excess drinking.
The applicant's Vietnam history, as recorded by Dr Woodall, states:
"He was in South Vietnam from 31st May 1966 to 21st May 1967. He described being involved in building Nui Dat and recalls a mortar attack that occurred the first night that they were there. In his capacity as transport NCO he describes getting the dirty jobs.
This included having to go out and pick up bodies and gave him more exposure to more horrific sights than others working in the transport section. On one occasion he recalls picking up one of two Vietnamese who had been shot in the back of the head. He recalls driving the landrover back to Nui Dat with the dead man's head bouncing on his from time to time. On arrival the bodies were put straight into a hole and covered with blue metal."
Dr. Woodall states "He does not report any intrusive recollections of his Vietnam experience although at times memories do occur". He also states "There was no evidence of psychosis or suicidal ideation" and that "[he] gave account of unpleasant experiences that occurred in Vietnam but does not meet the Criteria for Post Traumatic Stress Disorder. In particular there is no evidence of prominent re-experiencing or intrusive recollections of events related to his service".
Dr.P.McCarthy
Dr McCarthy saw the applicant on two occasions - initially on 7 December 1999 and later of 6 January 2000. He also interviewed the applicant's spouse.
Dr McCarthy's initial report is dated 9 February 2000. There is little of the applicant's childhood experiences related in the history. Dr McCarthy does mention what he understood to be the applicant's other medical problems, that is, peptic ulcer disease, gastro oesophageal reflux and skin problems.
In relation to Vietnam experiences Dr. McCarthy notes that:
"…his unit was mortared the first night he arrived in Vietnam";
".. he was soon involved in conflict and combat with the enemy… a friend was killed in combat … Mr Drew recalls seeing him brought back to camp in three ponchos";
"Mr Drew was often tasked with duties to do with dead and wounded. He recalls once he was asked to drive a Land Rover out with two stretchers to pick up two bodies, … He took the bodies back to base and recalls the head of one banging on the stretcher as they drove along. They were buried back at camp in the blue metal".
"He recalls on one occasion in Saigon … when the local police known as "white mice' executed a civilian. … the policeman blew a whistle and all stopped except a man on a pushbike who kept going. He recalls the policeman without further warning pulling his pistol and shooting his fellow Vietnamese in the head. … He often used to drive from Nui Dat to Vung Tow, a journey of one hour by road, often in dangerous circumstances." (T13)
Dr McCarthy makes no comment about the emotional impact of these episodes at the time. He makes several mentions of anxiety in the applicant over the years. Without providing supporting reasons Dr McCarthy opines: ".. this man does have a history of anxious arousal, avoidance phenomena, re-experiencing which is compatible with the diagnosis of chronic Post Traumatic Stress Disorder (DSM IV 309.81)". Significantly, in the Tribunal's opinion, Dr McCarthy makes no reference to the relevant Statement of Principles concerning PTSD nor, in this context does he identify the "severe stressor(s)", a matter referred to later in these reasons.
In his further report of 3 April 2000 (A9), Dr. McCarthy states:
"With a distance of thirty years between recall and the actual events of the Vietnam war it is scarcely surprising that there are some difficulties with this gentleman's accurate recall of events even if he had no psychiatric condition. ... Irrespective of whether his description of particular events is accurate I suggest it would be scarcely possible (sic) to serve in that position in the war environment he describes without being subject to significant stress by virtue of serving in the military in a war zone."
The Tribunal observes that in making the last mentioned statement (and others of a similar nature), Dr. McCarthy takes a fairly general view of overall stress of military operations. He does not express an opinion on the subjective impact of specific stressors experienced by the applicant, as is required by the relevant Statement of Principles concerning a diagnosis of PTSD.
It is also noted that the history as relied upon by Dr McCarthy is in some respects significantly different to the evidence of the applicant at this hearing.
Dr. A. Mander
Dr. Mander said that he saw the applicant on three occasions but provides only two dates. He has provided a report dated 12 September 2000 (T25). In his report Dr Mander states that he had been provided with both Dr Woodall's report (T10) and that of Dr McCarthy of 9 February 2000 (T13). He also mentions having read the VRB reasons and decision. He also reports having copies of correspondence as well as interviewing the applicant and his spouse.
Dr. Mander details the difficulties of the applicant's childhood and states:
"I cannot account for his major memory problems regarding the early part of his life. His early upbringing was undoubtedly extremely traumatic and it may well be that he was significantly abused in one way or another".
Dr. Mander also speaks of the applicant's post war (Vietnam) drinking and work problems. The Tribunal notes that the applicant admitted being a heavy drinker whilst on service in Vietnam, no mention of which is made by Dr Mander.
The specific Vietnam "traumas" apparently relied upon by Dr Mander are detailed in his report as follows:

Having to take two bodies out of a Red Cross Landrover, one of which had been shot in the head and placing these in the ground and filling in the hole.
His first night in convoy when he was in charge of vehicle co-ordination and in the pitch dark he could hear mortars going off all around him.
He describes bringing back "a mate in three pieces".
In Saigon he saw a policeman shoot a cyclist in the back of the head for no apparent reason.

The Tribunal notes that the history above in some respects is at variance with the applicant's evidence before this Tribunal. For example, the applicant did not "fill in the [burial] hole" after dumping the bodies – he left the scene; and the significant difference in relation to the applicant's evidence concerning the deceased comrade incident. Also, there is no reference by Dr Mander as to the applicant's feelings at the time of the recounted events.

In Dr Mander's opinion, the applicant's symptoms include:
"… intrusive recollections, nightmares, obvious distress (present in the interview when asked to remember and recount incidents in Vietnam), widespread avoidance of thoughts, feelings and situations that might remind him of Vietnam .. and a general loss of interest in things around him, with some level of detachment, restricted range of affect, sleep disturbance, irritability, obvious memory problems and a constant feeling of being on edge. Overall, I would conclude he satisfies classically the criteria for Post Traumatic Stress Disorder and in this, I agree with Dr, McCarthy." (T25, p.82)

The statutory provisions

The relevant provisions of the Veterans' Entitlements Act 1986 are set out below.
120 Standard of proof
(1)       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.
(2)       (not relevant)
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4) …
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)…
(2)       …
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be.

Discussion

In Freeman v Repatriation Commission [2002] FCA 576, an appeal from a decision of this Tribunal ('the AAT") not to accept a diagnosis of PTSD in relation to a veteran's operational service in respect of a claim for disability pension under the Veterans' Entitlements Act 1986, North J said:
9 The AAT must find that a disease is war caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making the determination (s 120(1)). It may only be so satisfied if the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the service rendered by the applicant (s 120(3)). For the purposes of this case, an hypothesis is only reasonable if there is in force a Statement of Principles (SoP) that upholds the hypothesis (s 120A(3)).
10 The SoP is, thus, made by statute a crucial part of the determination of causation.
11 But before a decision maker reaches the question of causation, the decision maker must determine that the applicant suffers from the disease claimed.
…
13 The AAT described its approach to the diagnosis question as follows:
"... in determining whether Mr Freeman has a diagnosis of PTSD, the Tribunal must be reasonably satisfied that all the diagnostic criteria (a) through (f) inclusive in the definition of PTSD contained in the relevant SoP, are met."
14 The criteria in par 4(a)(i) and (ii) of the definition of PTSD in the Statement of Principles Instrument No. 15 of 1994 (Post Traumatic Stress Disorder) (the SoP (PTSD)) required that:
"(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;"
15 The AAT examined the evidence and found on the facts that the event upon which Mr Freeman based his claim did not involve actual or threatened death or serious injury or a threat to the physical integrity of Mr Freeman or others. The AAT also found that Mr Freeman did not react with intense fear, helplessness or horror. Consequently, Mr Freeman's case did not fall within the SoP (PTSD). The AAT concluded that, as a result, Mr Freeman did not suffer PTSD for the purposes of the application of the Act.
16 However, importantly for this appeal, the AAT went on to consider the application on the assumption that there was a diagnosis of PTSD independently of the elements presented by the SoP (PTSD). It said:
"While the Tribunal finds that, if there is a diagnosis of PTSD within the meaning of the SoP, the material before it points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Freeman, it is in the Tribunal's opinion that the hypothesis, however, is not a reasonable one. It is not reasonable because it is not consistent with the `template' to be found in the SoP. It is not consistent because the hypothesis raised does not contain the factor relied upon, namely `experiencing a stressor prior to the clinical onset of post traumatic stress disorder'. The reason the hypothesis does not contain the factor relied upon is precisely the same as the reason or reasons set out above, as to why the Tribunal has determined that a diagnosis of PTSD within the terms of the SoP, does not exist."
17 The result is that, even if the AAT erred in the way [the appellant] argued, the error was immaterial because the AAT separately found that the hypothesis alleged to connect the disease with Mr Freeman's war service was not reasonable. That finding alone meant that Mr Freeman could not succeed.
18 In dealing with this aspect, the AAT set out the proper approach as enunciated in Repatriation Commission v Deledio (1998) 83 FCR 82 and there is no reason to suppose that it did not follow the course which it recognised as governing the consideration of the causation issue.
…
THE MEDICAL EVIDENCE
23 Before the AAT were medical reports from Ron Thompson, a registered psychologist, Dr Whitaker, a consultant psychiatrist, and Dr Tanaghow, the Director of Psychiatry at Goulburn Valley Base Hospital. The reports all concluded that Mr Freeman suffered from PTSD.
24 [The appellant] contended that the AAT was bound to accept the medical evidence for the purposes of the first stage of the inquiry, namely, in determining whether Mr Freeman suffered from PTSD. The AAT was not entitled, he said, to come to an independent opinion on a matter of medical expertise where there was no disagreement among the doctors.
25 Again, the problem with this argument is that, even if it is correct, it only establishes the diagnosis which the AAT was prepared to assume for the purpose of the alternative reasoning concerning the PTSD condition. It does not answer the independent failure of Mr Freeman's case on the causation question. So, again, any such error made by the AAT would have been immaterial.
…
27 Mr Freeman chose, apparently on advice, in part, from his doctors, to make his claim on the basis that he suffered PTSD. The AAT found that such a claim was not made out. However, the medical reports disclose that Mr Freeman has suffered a psychiatric condition. It may be that the condition entitles him to a pension under the Act. But if that is so, he will need to rely on some other category of entitlement.

The relevant statements of principle

It is appropriate to now set out the relevant parts of Instrument number 3 of 1999, Statement of Principles ("SoP") concerning PTSD, as reproduced below, including the amendment number 54 of 1999 (supra). The following extract has been amended in accordance with the amendment number 54 of 1999.
Instrument No.3 of 1999
…
2. (a) This Statement of Principles is about post traumatic stress
disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, "post traumatic
stress disorder" means a psychiatric condition meeting the
following description (derived from DSM-IV):
(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 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; 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,
attracting ICD-9-CM code 309.81.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound
medical-scientific evidence that indicates that post traumatic stress
disorder and death from post traumatic stress disorder can be related
to relevant service rendered by veterans, members of Peacekeeping
Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
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
(b) experiencing a severe stressor prior to the clinical worsening of
post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post
traumatic stress disorder.
Factors that apply only to material contribution or aggravation
6. (not relevant)
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor
includes an injury or disease in respect of which there is a Statement of
Principles then the factors in that last mentioned Statement of Principles
apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purposes of this Statement of Principles:
…
"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' Entitlement 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;
…

The submissions

Mr Macdonald for the applicant submitted that the evidence before the Tribunal supports an hypothesis that the applicant's PTSD relates to his Vietnam service. He then turned to the relevant SoP for PTSD, Instrument number 3 of 1999 as amended by Instrument number 54 of 1999.
Mr Macdonald relies on Factor 5(a) of SoP 3 of 1999 – "experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder" pointing to the evidence that the applicant had such experience during the mortar incident (threat of serious injury or death); the shooting incident (observed an atrocity); the burial incident (participated in casualty clearance); and in the case of the deceased comrade incident, the applicant observed a casualty.
In his submissions Mr Macdonald said that the Tribunal had to be mindful of the 35-year lapse since the actual incidents and that in recounting them, the applicant was relying on images in his memory and in the circumstances he could only recall significant events. In support, he referred the Tribunal to the remarks of Dr McCarthy in this respect.
In regard to the shooting incident Mr Macdonald submitted that the applicant has an indelible image of a civilian being shot in his presence. He said by its nature it is not an event that is easy to corroborate and not an event that could be considered fanciful in terms of the conditions in Vietnam at the time.
In relation to the mortar incident, Mr Macdonald submitted that whilst the applicant's memory in this regard is not clear, he does describe a mortar attack not unlike that referred to in the Write Way report (T26) of such an attack on 17 August 1966. He submitted that it is more than likely that the applicant was in the area that night and that the Tribunal should be prepared to accept his evidence on the basis that it is not satisfied beyond reasonable doubt that such an incident did not happen.
Mr Macdonald made no submissions relevant the actual occurrence of events described as the deceased comrade incident or the burial incident since the Tribunal had foreshadowed that it was not satisfied beyond reasonable doubt that those events as describe by the applicant in his oral evidence did not happen.
Finally, Mr Macdonald made it clear that the applicant relies on the diagnosis of PTSD by both Dr McCarthy and Dr Mander and their respective opinions that the PTSD was related to the applicant's eligible service.
Mr Ponnuthurai made concise but relevant submissions on behalf of the respondent. In sum, he submitted that if the Tribunal is satisfied that the applicant experienced a severe stressor whilst on service in Vietnam then that, of itself, would be sufficient to establish a reasonable hypothesis connecting the applicant's diagnosed PTSD with his relevant service (c/f Factor 5 of SoP 3 of 1999). Mr Ponnuthurai then outlined his submissions as to why the Tribunal may be satisfied beyond reasonable doubt that none of the four incidents relied upon by the applicant caused him to experience a severe stressor, as that phrase is defined in the relevant SoP.
Discussion & Conclusions
It is well established that the Full Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (subject to the observation in Repatriation Commission v Gosewinckel (Weinberg J) 15 VeRBosity 73 ) sets out the logical process to be adopted in applying the provisions of s120A (or 120B) in the light of s120(1) & (3) of the Act That is, where there is in force an SoP to connect the incapacity of the veteran to service rendered by the veteran. The course to be followed is conveniently set out in Creyke et al at page 434.
In applying that course of reasoning, the Tribunal is satisfied that the material before the Tribunal points to an hypothesis connecting PTSD with the applicant's circumstances of service in Vietnam. There is in force an SoP as already mentioned, (instrument 3 of 1999 as amended by instrument 54 of 1999). Therefore, the Tribunal must form an opinion whether the hypothesis raised is a reasonable one, that is, whether the hypothesis fits the template of the SoP. That requires the Tribunal to consider one or more of the factors which the authority (i.e. the respondent) has determined as the minimum, which must exist and be related to the veteran's service. It is common ground that the relevant, and only factor, to fit the reasonable hypothesis in the present case is factor 5(a), that is:
"(a) experiencing a severe stressor prior to the clinical onset of PTSD".
Having arrived at that stage in the reasoning process, the Tribunal then, in terms of s120(1) of the Act, shall determine that the disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. If the Tribunal is not so satisfied, on the basis of the evidence before it, then the claim must fail.
In respect of the mortar incident, the Tribunal has concluded from the evidence that it is satisfied beyond reasonable doubt that it did not take place in the manner described, if at all. Also, the Tribunal has concluded from the evidence before it that it is satisfied beyond reasonable doubt that the applicant did not witness the actual shooting incident which he claims to have witnessed.
In relation to the other two incidents, the deceased comrade incident and the burial incident, the Tribunal has concluded from the evidence that it is not satisfied beyond reasonable doubt that these incidents, as described by the applicant in his oral evidence, did not take place. In those circumstances, it is necessary to examine the evidence to ascertain if it points to the applicant having experienced a severe stressor in relation to one or other or both of those incidents.
"Experiencing a severe stressor" is a phrase defined in paragraph 8 of the SoP and is set out above. The essential experiences or reactions to the severe stressor are contained in the first limb of the definition. The second limb provides examples of "severe stressors". In the case of the deceased comrade incident, it may fit loosely within the broad description of observing "casualty clearance". That is, the Tribunal accepts that even though the remains of the deceased soldier was encased in a poncho, the applicant would have realised at the time that the poncho being carried through the transport compound was either the body of or remains of a casualty of war. That, in the opinion of the Tribunal, is sufficient in terms of the SoP to qualify as a "severe stressor". However, whether the applicant actually experienced a severe stressor is a different question. In order for that to qualify, in terms of the SoP, as "experiencing a severe stressor", the applicant must have experienced, witnessed, or was confronted with an event or events that involved, at the time, actual or threat of death or serious injury, or a threat to his, or another person's, physical integrity. There is no evidence to support this. In the Tribunal's opinion, at best the applicant was saddened or perhaps horrified when he later heard that the casualty was a former colleague with whom he had served in the Transport sector of 6RAR. This was especially so because he had suggested to him not to transfer out voluntarily because of the relative safety of the Transport sector. Those feelings do not fit the template of the definition of "experiencing a severe stressor".
In the case of the burial incident, similar reasoning as that immediately above applies. The participation in or witnessing of casualty clearance is sufficient to qualify as a "severe stressor" under the paragraph 8 definition of "experiencing a severe stressor". However, in the Tribunals opinion, there is no evidence that the applicant at the time experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to his, or another person's, physical integrity. Indeed, the applicant's evidence is that he does not recall any particular feelings at the time and that after he and his colleague dumped the bodies in the pit, they left. In the Tribunal's opinion, his evidence at best is that he now looks back on this incident with horror.
For those reasons, the Tribunal is unable to find as fact that the applicant experienced a severe stressor, as that phrase is defined in the SoP, in relation to any of the four incidents referred to in his evidence.
Finally, the Tribunal adopts the reasoning of the Court in Freeman v Repatriation Commission [2002] (supra) that there is no evidence of sufficient causation that the applicant's diagnosed PTSD fits the definition of PTSD contained in Instrument No 3 of 1999. That is, there is no evidence before the Tribunal that during his eligible service in Vietnam, in terms of clause 2(b)(A)(i) & (ii) of the SoP, the applicant was exposed to a traumatic event in which he "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 the [applicant's] response involved intense fear, helplessness, or horror." The evidence does not support any finding of fact that that fairly describes the applicant's contemporary reaction to the traumas asserted by him. In the Tribunal's opinion the response there mentioned must be contemporaneous with the event or events. That obtains because of the juxtaposition of clause (A) of paragraph 2(b) of the SoP, in relation to clauses (B) and following. Clauses (B) and following relate to subsequent responses arising from having experienced the feelings referred to in clause (A).
That the applicant has a diagnosed condition of PTSD is not disputed. However, for the above reason, the applicant's diagnosed PTSD does not fit the diagnostic criteria of the SoP in question, for the purposes of the Act and therefore is not war-caused.
Decision
For the above reasons, and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Veteran's Review Board of 24 January 2001, insofar as it relates to the applicant's post traumatic stress disorder, is affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member, Dr P Staer, Member and Brigadier RDF Lloyd, Member
Signed:         ..........(sgd V Wong)........
  Associate
Date/s of Hearing  8 & 9 May 2002
Date of Decision  24 May 2002
Counsel for the Applicant        Mr Simon Macdonald
Advocate for the Respondent Mr Carl Ponnuthurai