Eckermann and Repatriation Commission - [2002] AATA 1042

DECISION AND REASONS FOR DECISION [2002] AATA 1042

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/418

VETERANS' APPEALS DIVISION       )
           Re      EDMUND JOHN ECKERMANN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member Dr P A Staer, Member

Date25 October 2002
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides: (i) to vary the decision of the Veterans' Review Board of 25 October 2000, amending the diagnosis of the applicant's condition to that of Post Traumatic Stress Disorder; and (ii) to affirm the decision under review as so varied.
  …........(sgd R D F Lloyd)..................
  Member
CATCHWORDS
VETERANS' ENTITLEMENTS - claim for pension for disability - alcohol abuse - post traumatic stress disorder - correct diagnosis - whether applicant meets template of Statements of Principles - whether applicant experienced a severe stressor during operational service or during eligible defence service - operational serviced on "gun line" aboard HMAS Perth off Vietnam and in relation thereto - defence service incidents of trauma whilst HMAS Perth off east coast of Australia.

Veterans' Entitlements Act 1988 - s120(1), (3)

Repatriation Commission v Deledio (1998) 83 FCR 82

Statements of Principles - Instrument 3 of 1999 as amended by Instrument 54 of 1999; Instrument 4 of 1999 as amended by Instrument 55 of 1999.

REASONS FOR DECISION

October 2002 Brigadier R D F Lloyd, Member Dr P A Staer, Member

On 25 October 2000, the Veterans' Review Board ("VRB") decided, in relation to a claim for disability pension by Edmund Eckermann ("the applicant"), that the relevant diagnosis of his claimed condition was "alcohol abuse" but it affirmed the decision of the Repatriation Commission ("the respondent") that the condition as varied, was not war caused or defence caused. This Tribunal received an application by the applicant to review the VRB decision.
The applicant was represented at the hearing by Mr China Hammal of the Australian Navy in Vietnam Veterans' Association of WA. The respondent was represented by Mr Carl Ponnuthurai, a departmental advocate with the respondent. The Tribunal had before it documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the following exhibits:
Exhibit R1Report of Dr A J Mander dated 3 March 2001;
Exhibit R2Writeway report of Commodore Mulcare dated 16 July 2001;
Exhibit A1Statutory declaration of Edmund John Eckermann, declared 24 June 2002; and
Exhibit A2Statement by Commander Mike Wright,, dated 29 June 2002

In addition, the Tribunal heard evidence from Mr China Hammal, the applicant, Dr A J Mander, Dr Oleh Kay, Commodore Mulcare and Dr B Jansen.
Background & Applicant's evidence

The applicant was born in June 1952. On 3 January 1968, at the age of 16, he enlisted with the Royal Australian Navy ("RAN") for 12 years, initially as a recruit trained at HMAS Leeuwin, a shore based training centre near Fremantle in Western Australia. After a year's training he was posted to HMAS Diamantina from 7 January 1969 until July 1969. On Diamantina he received common sea training prior to undertaking an engineering course, from July to December 1969, at shore base HMAS Cerberus. There he did basic training as a stoker, responsible for ship's steam boilers, a common power source. That training was both academic and practical, but general rather than relating to the configuration of any particular RAN ship. It was not until the applicant joined HMAS Perth ("the Perth") on 11 January 1970, then aged 17, that he commenced trained in the practical aspects of managing and maintaining that vessel's boilers. The Perth was then one of three similarly configured RAN vessels, the other two being HMAS Brisbane and HMAS Hobart. The applicant served onboard the Perth until 25 October 1976. After the Perth, he served at the shore base HMAS Albatross from October 1976 until returning to Leeuwin on 9 May 1977, before rejoining the Diamantina in July 1978 where he remained until discharged in January 1980, having served his 12 years with the RAN.
The Tribunal notes that the applicant was medically examined periodically throughout his service, noting, in December 1979, that he suffered tinea. The applicant completed a discharge medical questionnaire in December 1979 and did not report suffering any disabilities, or having suffered any disabilities during service nor having aggravated any disabilities by service. (T5)
The applicant was credited with operational service (Vietnam) whilst serving on the Perth, from 14 September 1970 to 8 April 1971. The evidence is that of those 207 days, 107 were spent out of Vietnamese waters. (R2) He was also credited with eligible defence service from 7 December 1972 until discharge on 2 January 1980.
It is not disputed that prior to enlistment in the RAN the applicant did not suffer any anxiety or stress related illness.
The Tribunal observed the applicant during the giving of his evidence, cross-examination as well as during questions from the Tribunal members. The taking of his evidence took up a significant part of the first day of hearing. In the Tribunal's opinion, the applicant's responses to questions put to him were frank and accord with his best recollection of events canvassed in evidence albeit at issue with documented evidence, as will be discussed later. The Tribunal notes at this juncture that in its opinion, the applicant demonstrated his anxiety during the course of giving evidence.
Alcohol dependence
The Tribunal accepts that the applicant did not drink significant amounts of alcohol regularly until he commenced his Vietnam service on the HMAS Perth during operational service. Whilst generally alcohol was not available on board, except for relatively small issues, the applicant went on binge drinking when on shore leave. He admits to excessive drinking on these occasions but not such that he could never find his way back to his ship. He admits to being hung-over afterwards and not feeling well for up to 24 hours after these binges.
The applicant admits of continuing the habit of binge drinking during service and whilst based in Long Beach, California (when the ship was undergoing a refit), regularly drinking what would be regarded as four times the average daily maximum limit, consuming both spirits and beer.
The applicant's drinking was probably a major factor in his post-service marriage break-up because his spouse continually tried to have him cut down on his intake, both during and after his service years.
Although the applicant maintained his high level of alcohol consumption after leaving the service in 1980 he has held down a responsible job with the same employer during that time (and continues to do so). The evidence is that his drinking has never been an issue with his employer. Nor, it seems has it ever been an issue in relation to his driving. The applicant said that he did not drink when he was going to drive as that may cause him to loose his licence and he needed his car to get to work.
The applicant told the Tribunal that he currently drinks considerably less and does not keep alcohol in the house because if it was there he would drink it – not stopping until it was all gone. So his current drinking is relatively moderate, although he experiences an urge to binge drink which he now seems to control. The applicant's younger daughter, a university student, lives with him and, he said, is a very strong influence in his decision not to binge drink. He told the Tribunal that he does not drink or socialise with his work colleagues and that he does not stop for a drink after work. The only occasion he would drink with work colleagues is at a Christmas function or the like but he said that because he does not enjoy these occasions he avoids them.
In the opinion of the Tribunal, the applicant now shows none of the signs of alcohol dependence despite his admission to being tempted to binge drink and experiencing occasional lapses.
The applicant's evidence is that he began his binge drinking to overcome the anxiety and fears that he developed as a result of serving on the Perth on the "gun line" off the coast of Vietnam. Dr Mander opines that the applicant's drinking pattern reflects what he called a "sub-culture" of the ranks in the RAN. In the opinion of the Tribunal, the evidence supports the proposition that the applicant was influenced initially by that culture of drinking to excess when on shore leave. However, it seems that in the applicant's case he was more inclined to be a loner rather than a part of a regular social group from amongst his peers.
The Tribunal accepts that the applicant's drinking pattern and excessive use of alcohol from time to time before and after his discharge, was developed as a consequence of his anxiety condition rather than the other way around. The question therefore remains to determine the diagnosis of what is clearly a mental disability from which the applicant is suffering.
The applicant's evidence relating to service
In his affidavit (A1), the applicant reports the following incidents as relevant to his claim under review:
(i)the boiler room incident aboard the Perth, when off the coast of Vietnam;
(ii)the hearing of loud explosions in the water when the Perth was partly disabled due to a boiler black-out (Vietnam);
(iii)the distressed patrol boat incident (Vietnam);
(iv)the American spotter incident (Vietnam);
(v)the fishing boat crew surrender incident (Vietnam);
(vi)the boiler room cleaning incident (Hong Kong);
(vii)the Navy Skyhawk jet incident (Jervis Bay, NSW); and
(viii)the steam reducing station incident (enroute Sydney to Hobart).
In relation to the above the Tribunal notes that the applicant's claim for disability pension made in April 1999 does not detail any of the above events but rather relies on a report (then to be filed) from Dr Fellows-Smith, a psychiatrist. (T6) That report is dated 15 June 1999. (T8) Dr Fellows-Smith relies in turn, on a submission made by Mr Hammal, on 16 May 1999, to the respondent. He makes no reference to any of the above incidents. However, Dr Fellows-Smith does state:
"The onset of Mr Eckermann's anxiety disorder occurred while under stress in Vietnam. It became generalised when he returned from the war and was noticeable to his family. … there is no evidence on his service record to support the clinical onset of his condition. …" (T8)

The Tribunal does not have a copy of a submission to the respondent by Mr Hammal dated 16 May 1999. However, the Tribunal does have two documents about that time that clearly relate to the applicant's claim for disability pension. The first, dated 11 July 1999 is a memorandum sent by Mr Hammal to Ms Judy Marsland, an officer with the respondent. There is no particularisation in that memorandum of any incident that might have traumatised or stressed the applicant during either operational or defence service. The other relevant contemporaneous document is a statutory declaration by the applicant of 14 August 1999. This, the first statutory declaration about the very same claim, is similar in some respects but not the same as exhibit A1, a statutory declaration by the applicant declared on 24 June 2002 for the purposes of this hearing. The later statutory declaration (A1) differs in a number of minor ways from the earlier one of 14 August 1999 (T15). However, it also differs materially in three respects. In the earlier declaration the applicant reports a purported stressful event when Perth was on the gun line, relating to what the applicant claimed was a call to action stations to allow the Perth to pick up survivors. In that affidavit the applicant said "I went into a panic as I knew they were not far off the coast of North Vietnam and therefore Perth would be a sitting duck while trying to pick up survivors." This "incident" was not again mentioned nor relied upon by the applicant at the hearing, presumably because subsequent research indicated that there was no independent corroborative evidence that the incident occurred.

The more remarkable differences between the earlier and later statutory declarations are the reports of incidents (vii) and (viii) in the later declaration with no mention of them in the first.
It is not at all clear to the Tribunal what was the relevant history before Dr Fellows-Smith when he diagnosed the applicant as presenting with "Generalised Anxiety Disorder directly due to his wartime service in Vietnam".
The eight incidents above were each the subject of examination and cross-examination during the applicant's evidence.
Incident (i)
In summary, incident (i) relates to a time when the Perth was deployed in Vietnam waters carrying out shore bombardment duties. The applicant's affidavit states:
"I was in the boiler room when the ship's boiler lost steam. The ship was in darkness for a short period of time and was partly disabled drifting off the coast of Vietnam's DMZ. My immediate reaction was that we had been hit. … Throughout the ordeal I experienced feelings of panic and anxiety and shock as I could hear the ship's guns firing and other explosions as if Perth was being fired at." (A1)
This incident was not directly referred to by the applicant in his oral evidence-in-chief but in response to questions put by Mr Ponnuthurai for the respondent, the applicant indicated that the Perth would still have had one boiler in operation and that emergency lighting would have been activated in the boiler room in which the applicant was working at the time. It was unlikely that the Perth was ever without power whilst on the gun-line and in any event it would not have taken much time to reactivate the boiler in the room where the applicant was then on duty. The Tribunal is not satisfied with the applicant's evidence in his statutory declaration that incident (i) actually occurred in the manner he there describes. Neither is there corroboration of it in Commodore Mulcare's report, (R2) or in any of the other statements in evidence (A1 and A2).
Incident (ii) and incident (vi)
It is not clear to the Tribunal whether incident (ii) is indeed the same incident as incident (i) above, although it seems that if there are two separate incidents then they occurred at the same time. The applicant in his affidavit (A1) relates incident (ii) to an occasion when the Perth was "partly disabled from the boiler black-out … I was positioned in the boiler room, which was full of steam … I tried to get the boiler back on line and give the ship power again, when I heard loud explosions in the water. … I remember fearing for my life. … Later I discovered they were only scare charges discharged by Perth. However at the time the I (sic) experienced the events as very life threatening to me." (para 6 of A1)
The Hong Kong incident (incident (vi)) occurred when the Perth was in Hong Kong and the crew were being allowed R & R. The applicant relates an incident when he was required to climb into a boiler, which had been shut down and cooled, for cleaning duties. He states that while he was doing this "the ship's power had a short blackout". He states in A1 that he "had a sever (sic) panic attack" and in trying to get out of the boiler space in a hurry he "became stuck in the manhole". He recalls feeling panicky and feeling terror similar to that felt when the boiler blacked out whilst Perth was on the gun line off Vietnam. He added "I felt extremely helpless and hopeless having been trapped in a small space without any apparent way out. This made me feel extremely vulnerable and fearful of so many threats to my life". (A1, para 11)
Mr Hammal when examining in chief asked the applicant how he felt about the boiler room incidents. In reply to what appears to be a reference to incident (ii), the applicant said that he felt scared, and he "didn't want to go down watch any more but it is not the done thing in the Navy. You've got mates and you don't let your mates down."
After it became clear to Mr Hammal that the applicant was not going to describe his feelings at the time of the incidents entirely consistently with the descriptions accorded them in his affidavit, Mr Hammal put a series of leading questions to the applicant. An example follows:
MR HAMMAL: So before this ordeal, let us deal with the part in Vietnam first. So you believe you were confronted in situation threatened to serious injury to yourself and death before the stress factors you just mentioned?---In the black out, yes. I didn't know what was going on. I didn't know what happened to the ship.
There is two blackout?---One in Hong Kong. I was scared because I couldn't get out. I was stuck. I panicked. But that was different to the one actually in Vietnam because there was noise, yelling, everything else was carrying on. The one in Hong Kong and the boiler clean - the ship is quiet. When you do a boiler clean, the boilers - both boilers were shut down. One steaming would be - and one on number 2 boiler room, whichever one but the one when we black out, that is noise, that is shelling because you don't know, you haven't got time to think half the time. You are obeying orders, that is about as much as you could do.
The time that the ship is blacked out in Vietnam, you believed at that period you were engaging with the enemy?---I could hear noise. I could hear explosions in the water. I didn't know. I can't see. All I can hear is what I can hear. (Emphasis added by Tribunal, because there is no evidence that at the time, the ship itself was totally blacked out by power failure.)
But the ship was going for [shore] bombardment?---I could hear our guns and explosions from the water.
So the [shore] bombardment was to the enemy?---Mm.
So is it fair to say you were engaging with the enemy?---Yes. That was our job. (Transcript pp.73-74)

Incident (iii)

In his second affidavit (A1), the applicant describes the incident as the Perth going to assist a patrol boat that had run aground. The Tribunal notes what are in its opinion material differences in this evidence from that of the original affidavit (T15, para 8). Nevertheless, it concentrates on the more recent description in exhibit A1. The applicant claims that when the Perth was fired upon by machine gun fire it turned around and left the area. In his affidavit the applicant describes his feelings at the time as "feeling helpless and worried that we had not been able to assist the crew. I felt very hopeless about the situation as I felt we deserted fellow sailors. It also made me feel intensely fearful for my own fate at sea in Vietnam, that my own men could leave me fighting for my life" (A1, para 8). Commodore Mulcare's report about such a possible incident appears to be fairly comprehensive (R2, paras 10 – 15). It reports an incident on Friday 9 October 1971 involving a South Vietnamese MSC 116 (370 ton minesweeper), which had gone aground just south of the mouth of the Cua Viet River during a storm. Because the Perth was then operating some miles away and its draft was 20 feet there was no way it could go to the assistance of the minesweeper anyway. The report concedes that there was "friendly fire" from the shore toward the minesweeper which lasted for several minutes (due to failure to recognise the vessel as South Vietnamese). Commodore Mulcare concludes that the applicant is "unlikely to have been aware of the incident at the time as only personnel on the bridge and in the operations room were involved although personnel manning the gunnery system were probably told … there may have been a couple of casual observers (on the Perth), Commander Wright was one, but probably not many at 0130." (R2)

What ever the situation – whether the applicant was up on deck that night as he says, in the Tribunal's opinion he could not have closely monitored the incident because it was night and the Perth was at least 5,000 yards offshore. More likely his recollection of the incident is the result of rumour and gossip which may have been prevalent on the Perth at the time. Regardless, the applicant when asked to describe his feelings about the incident at the time said:
"… I remember a lot of - you can see a lot of traces being fired at it. And if I was just to do nothing - we could see the beach that close - and just to turn away and leave them that disgusted me, I feel ashamed that you would treat a fellow human being like that. And then in the morning when we come back there was nothing left of that boat, it was shot to pieces. But we never heard what happened to the crew or anything, but I just felt so ashamed that we couldn't even land a few shells or something in there - just shot them up." (Tr. p21, line43- p.22, line 3)

There is no corroborating evidence that the Perth returned to the scene the next day or that the minesweeper was "shot up". Indeed, Commodore Mulcare reports "the minesweeper was pulled off by a US Marine Corps Super Stallion helicopter the next day." (R2, para 13)

Incident (iv)
The applicant's affidavit (A1) states the circumstances of this incident as:

"Another incident that upset me was hearing an American spotter giving HMAS Perth direction for shore bombardment. The whole broadcast was played over the ship's PA system until on hearing firing there was no response heard from the spotter leaving the feeling that he was dead. This left me distraught for some time after. … It made me think of the very real possibility of my own death during my time in Vietnam and I worried for my own life. The incident intensified my feelings of fear, lack of safety and of hopelessness for protecting others and myself from the war. …" (A1, para 9)

The transcript of proceedings records the following exchange in relation to this incident, Mr Hammal asking the first question, the reference being to exhibit A1 –

Can we refer to paragraph 9, can you just tell the Tribunal what you meant by the American spotter?---I can still picture myself where exactly I was on the ship that day. A lot of people say it didn't happen, I don't think I imagined it. I was on starboard side, the quarterdeck underneath the loud hailer and I listened to it until it was - the broadcast was ended. I felt sorry for the poor bloke and we were firing guns and I just felt sorry for him. Never knew his name, never knew anything, he was just a spotter until they found him in - from what I can gather he was sitting in a tree. (Emphasis added)
BRIG LLOYD: Sorry what was the last point?---From what I can gather he was sitting in a tree spotting.
You gathered from where did you get?---From his commentary calling for air - for gunfire support. I just felt sorry for the poor bloke, he wouldn't be going home. (Emphasis added)

Commodore Mulcare, in his research report (R2) canvasses the possibility of an American spotter calling fire down upon himself and that being overheard by crew on the Perth because it was broadcast over the PA system. The historical record is not conclusive either way. In his conclusion Commodore Mulcare states "It is likely that the veteran heard some Naval Gun Fire Support dialogue on the Main Broadcast [on the Perth], but it is unlikely that he heard a spotter calling fire on himself. But he could have heard of an incident either in one of the regular sitreps given to ship's company by the Combat Information Centre evaluators (….), or in general conversation in the ship." (R2, para 7)
Incident (v)
This relates to an occasion when the applicant said that he witnessed a fishing boat approach the Perth and subsequently the crew taken on board the Perth. The applicant's evidence is that the crew were stripped, tied hand and foot and made to lie on the hot deck whilst waiting for an interpreter. He describes the incident in "that he felt powerless and unable to help another human being seeking aid. I felt ashamed of the treatment given to these men and wondered I would receive the same treatment if I were captured. Again I feared for my own life and safety in this terrible war where there seemed to be no rules." (A1, para 10)
Mr Hammal asked the applicant to elaborate on what he saw on that occasion. The applicant, in the course of describing what he believed he saw, stated only that he felt disgusted. (Tr. p.23, lines 1 – 21) Mr Hammal pressed the applicant to provide more detail – that exchange follows:
MR HAMMAL: Could you give us a bit more detail, what you actually saw or witnessed? Why it caused you, what you see, to be angry?---The way they were treated, just made to lie on a hot deck. The blokes didn't have any rifles and things, they weren't going - they didn't have anything, what were they fight back with if they were going to fight back. If they were going to fight back they wouldn't have come out on the boat to see us in the first place. I felt I couldn't do that to a fellow human being, I don't care if he is a vietnamese or what. (Tr. p23, lines 23-29)

The Tribunal received, as attachments to exhibit A1, a number of statements from sailors who say they witnessed the same event, including some colour photographs reproduced via the net. One shows six naked persons tied by the hands only lying on the deck but in shade and another shows an apparently naked person with tied hands and feet lying on the deck shaded partly only by the shadow of a ladder. A statement by Mr N V Skene states that he was on board the Perth at the time and recalls that the seven captives were roughly treated, manhandled and verbally abused by the crew (of the Perth). Another series of photographs attached to exhibit A1 shows "Viet Cong prisoners after surrendering to the Perth" fully clothed and being assisted by crew. Mr Patrick Watt also provided a statement in relation to this incident. He was on board the Perth at the time. He describes the incident, the stripping naked of the captives and tying their hands behind their backs and being made to lie on their stomach on the quarterdeck for a personal search to ensure no secret items being brought on board. He states that the incident was witnessed by crew and gave rise to "much mirth from watching sailors". He describes that afterward "the captives were interrogated, untied and allowed to dress and were seated around a lower rim on the Tartar Missile Launcher". He does not describe any rough handling or mistreatment. Similarly Mr Steve McLeod who also attested serving on board the Perth at the time states "that seven (7) North Vietnamese males surrendered to the HMAS Perth. They were brought onboard, strip searched, clothed, fed and interrogated. As the Perth had no facilities to hold these people they were transferred to a South Vietnamese Patrol Boat." He provided copies of photographs take at the time, which are described above. Similarly, Kenneth Vandermolen, who was also on board the Perth at the time relates his recollection of the incident, makes no reference to rough handling or mistreatment of the prisoners but refers to "great joviality, laughing and cheering including clapping …" during the Medical Officers examinations.

Commodore Mulcare reports a record of a similar incident involving the Perth on 1 February 1971, which is consistent with the independent witness statements attached to exhibit A1 and referred to above. (R2, para 9)
The Tribunal accepts that the applicant witnessed part of the incident involving seven Viet Cong surrendering to the Perth and them being tied, searched, interrogated and then clothed, fed and allowed to sit in the shade awaiting their removal to another vessel. The Tribunal can accept that the applicant thought the prisoners may have been roughly handled or mistreated but the majority of the evidence points to the crew dealing with the seven in a manner consistent with care to ensure that the ship or its company were in no danger whatsoever from any hidden weapons, either on board the fishing boat or on the person of the seven captives. The evidence does not indicate that the captives were in any way mistreated having regard to the operational situation prevailing at the time.
Incident (vii)
This incident involved the applicant whilst serving on board the Perth during eligible defence service in 1974. A Navy Sky Hawk jet had crashed into Jervis Bay, NSW. The Perth was ordered to go to the location and help recover parts and the pilot's remains. At the time, the Perth was nowhere near enough to have witnessed the crash. The applicant said that he was ordered to crew a lifeboat launched from the Perth and required to spot debris or body parts to be collected either by them or by the Naval divers who were in the water searching when the Perth arrived. He said that he spotted a glove with a hand inside. When asked by Mr Hammal about the incident, the applicant said "I just felt sorry for the man" and "Sad that a bloke had been killed", a clear reference to the deceased pilot.
Incident (viii)
After returning from Vietnam (operational service) the applicant undertook a course in and qualified for, a Boiler Watch Keeping Ticket. The Tribunal understands this qualified him to be in charge of the boiler room. Incident (viii) occurred during the applicant's eligible defence service in 1976 whilst the Perth was steaming from Sydney to Hobart. The applicant was in charge of the number 2 boiler room, on his "watch" between 2000 and 2359, that is, at night. Apparently a steam reducer, which reduces the pressure of steam from 1275 psi to 600 psi, jammed sending steam into the bilge next to the steam console. He describes the roar as tremendous causing his two stokers to flee from the boiler room via the escape trunking. He states that he "instinctively changed over reducing stations." (A1, para 15) In answer to a question put to him in this regard, the applicant admitted that was what he was trained to do. Apparently that action was sufficient to circumvent what might have otherwise been quite nasty. He states that he was praised for his prompt action at the time by the Engineering Officer, the Senior Engineer, Chief Stoker and Chief Artificer, all of whom had come down when the emergency happened. He describes his state at the time as being "trembling visibly and chain smoking". When asked if he wanted to be relieved he declined and continued his watch until its end, two hours later.
The medical evidence
The report of Dr Fellows-Smith, psychiatrist, is discussed in context above. In March 1999 he diagnosed General Anxiety Disorder with evidence of related substance abuse disorder, being long dependence on alcohol. (T25) Dr Fellows-Smith was not called to give evidence.
Dr A J Mander, psychiatrist, provided two reports – 24 May 2000 (T27) and 3 March 2001 (R1). He also gave evidence by telephone. In his later report Dr Mander reviewed his earlier report in the light of a report provided by Dr Woodall, psychiatrist, in the interim. Dr Mander diagnosed the applicant as suffering an anxiety disorder stemming from alcohol abuse. He attributes the applicant's alcohol abuse as probably beginning in the Navy in 1970 and arising from a sub-culture in the Navy, whether at war or not, rather than attributing it to any specific event or incident. He said that he could not link the applicant's alcohol abuse to any of the events/incidents which he has described. Dr Mander said that he was unable to point to a definite time when the applicant began heavy drinking or when his anxiety symptoms began. When asked about the different diagnosis made by Dr Woodall (later), Dr Mander pointed to what he believed were histories relied upon which varied significantly and more so than one would expect in the circumstances. He accepted that the applicant's diagnosis comes down to his relevant history. In this regard Dr Mander said in response to a question from Mr Ponnuthurai:
MR PONNUTHURAI: Indeed, it looks like some of the incidents that are being talked about occurred during the period of September '70 to April '71, when he was up in Vietnamese waters. The other one that he has talked about was the incident with the body parts and the Skyhawk plane auguring in. And we know that that in fact occurred on a specific date. It was the 16 May 1974. Does that information help at all in that sense?---Only in as much as it - it would focus down on - on the point at which you are trying to establish where these symptoms have started. So, if I go back to my history, the - the closest I - I could get was his comment during the 1970s, where it covers both of those. Even reading Dr Woodall's report I'm not clear at what point those - the symptoms of [post traumatic stress disorder] PTSD are said, if that's what they are, to have started. Because you would expect them to start, although they can be delayed, but within a reasonable - with a reasonable time frame. (Tr. p. 32, lines 23-35)

And later:

MR PONNUTHURAI: Would you normally expect that if something was really very traumatic, of the sort of thing that is envisaged in Statements of Principles about Post Traumatic Stress Disorder, that he would be remembering those things and telling you about them at interview?---Yes, I would. There were more discrepancies here than - than I think it is fair to say I have seen in other histories where I and a colleague have - have taken separate histories. (Tr. p.33, lines 6-11)

It is noted that in the history related to Dr Mander in May 2000 (T27), no mention is made of the last two incidents referred to above as incidents (vii) and (viii). Indeed, Mr Hammal questioned Dr Mander vigorously about the relevant incidents recounted by the applicant at the time and it is quite clear to the Tribunal that those incidents do not necessarily correlate to the incidents now relied on by the applicant in his affidavit (A1) discussed above.

Dr Mander, in his later report of March 2001, concludes that [all] psychiatrists [who have examined the applicant] agree that the applicant has a psychiatric problem of significant severity, exhibiting "symptoms of hyperarousal and avoidance sufficient to not only satisfy criteria C and D of PTSD but also symptoms that are common in alcohol problems, anxiety disorders and depression." (R1) He further states that criteria A and B assume particular importance in a diagnosis of PTSD. He concedes that whilst there may have been events satisfying criteria A, he was unable to ascertain symptoms that satisfied criteria B. That is, "the re-experiencing phenomena require the recall of an event, either by memory or by dreams, that lead to significant distress." (R1)
Dr. Oleh Kay gave evidence in person. His report of 23 November 1999 is T24. He had seen the applicant on three occasions, 23 November 1999, 27 January 2000 and 4 July 2002 although he has made only the one written report. He said that he reviewed the applicant in the light of his first report in readiness to provide evidence to this Tribunal and therefore there was no need for any further reports. He diagnosed PTSD. Dr Kay felt there were multiple stressful events in the applicant's history and that being on the "Gun Line" in Vietnam was in itself stressful enough.
Dr Kay's summary of his evidence was that the applicant had an Adjustment Disorder while serving in Vietnam because of the stressful events and that this led to the alcohol abuse and later anxiety which progressed to his current PTSD. Dr Kay said that initially he was not given any history of the recovering of body parts after the Sky Hawk jet crash nor of the incident in the boiler room of the Perth on the way to Hobart.
Dr Michael Woodall, psychiatrist, provided a report dated 29 September 2000 (T28) but did not give oral evidence. Dr Woodall had the opportunity of seeing the previous reports of doctors Fellows-Smith, Kay and Mander. He diagnosed the applicant as suffering from PTSD. Dr Woodall was the psychiatrists first to mention the incidents of the Sky Hawk jet crash and recovery of body parts and the jammed reducing station incident although he does not associate that with a particular voyage from Sydney to Hobart in 1976 (T29).
Dr Brendan Jansen, psychiatrist, provided a report dated 11 July 2001 (attached to A1). He is the applicant's current treating psychiatrist. He gave evidence by telephone.
He was reluctant to enter into medico legal discussion as he said the history he took was to treat the patient not to gather information for a medico legal appeal. He felt the diagnosis was quite clearly PTSD, that this is one of the anxiety disorders and is at the top of the hierarchy of anxiety disorders.
In relation to the determination of a diagnosis, the Tribunal had the benefit of written reports from five psychiatrists and heard evidence from three of them. In the Tribunal's opinion the weight of evidence before it points to a diagnosis of the applicant's psychiatric condition as Post Traumatic Stress Disorder. In reaching that conclusion on the balance of probabilities, the Tribunal acknowledges that there may have been a time when the applicant's diagnosis was alcohol dependence. However, based on the evidence overall and for reasons already given, that is clearly not the case at present and has not been for some considerable time.
Legislation
The governing legislation is the Veterans' Entitlement Act 1986 ("the Act"). It is not in dispute that the applicant served periods of operational service since World War II (s. 6C), nor that the applicant has eligible defence service (s68(1) & s70(7)) as previously outlined. Section 7 provides that a person who has rendered operational service shall be taken to have been rendering eligible war service during that period. Section 9 of the Act provides that a disease or injury suffered by a veteran shall be taken to be war-caused if it resulted from an occurrence on operational service; arose out of or was attributable to eligible war service; resulted from an accident while travelling to or from duty; was due to an accident that would not have occurred or a disease that would not have been contacted but for eligible war service or was contributed to in a material degree or aggravated by war service.
In determining whether a condition suffered by a veteran is war-caused, where there is operational service, s120(1) and (3) of the Act set out the standard of proof to be applied. That is, the respondent (and therefore the Tribunal) is required to find that the condition suffered by the veteran is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for so finding. Subsections 120(1) and (3) of the Act 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)       ….
(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.

The Tribunal must consider, pursuant to s120(3) of the Act whether on the material before it, there is raised a reasonable hypothesis to connect the condition suffered by the veteran with his operational service (c/f Repatriation Commission v Deledio (1998) 83 FCR 82).

In the opinion of the Tribunal, there is raised an hypothesis that the applicant's diagnosed condition of PTSD is connected to the applicant's war service or to the applicant's eligible defence service or both. The question therefore, in relation to the applicant's operational service, is whether on the material before it the Tribunal can conclude that that is a reasonable hypothesis? That is, on the material before the Tribunal, did the applicant's PTSD arise out of or is attributable to or was contributed to in a material degree or aggravated by the particular circumstances of the applicant's operational service. In the case of the applicant's eligible defence service, the test as provided by s120B, is whether, on the material before the Tribunal, it may be reasonably satisfied that the claimed condition arose out of or is attributable to or was contributed to in a material degree or aggravated by the particular circumstances of the applicant's eligible defence service.
In cases such as this where the Repatriation Medical Authority has, pursuant to s120A (operational service) or s120B (eligible defence service) issued a Statement of Principles ("SoP") concerning the condition suffered, then the Tribunal must have regard only to the causal factors referred to in the relevant SoP, when considering whether a reasonable hypothesis (for operational service) has been raised, or in being reasonably satisfied on the balance of probabilites that the injury is connected with the applicant's defence service.
The two relevant SoPs are Instrument number 3 of 1999 (operational service) and Instrument number 4 of 1999 (eligible defence service), which each deal with PTSD. Those instruments were current at the time the respondent made its primary determination, on 23 September 1999 (T19). These were each amended by instruments 54 & 55 of 1999 respectively, prior to this matter coming before the Tribunal for review. Those amendments inserted the word "severe" before "stressors" in the definition of "experiencing a severe stressor" in paragraph 8.
For the purpose of this decision, as will become apparent, it is sufficient to refer to the criteria of SoP 3 of 1999 as amended. The essential elements of SoPs 3 and 4 of 1999, as respectively amended, are the same except for the standard of proof set out in the respective Factor 5. Set out below are the relevant provisions of the Statements of Principles (as amended):
Instrument No 3 of 1999 – Statement of Principles concerning Post Traumatic Stress Disorder
Kind of injury, disease or death
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
…
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.
…

[Factor 5 of Instrument No 4 of 1999 relevantly states:]

5. The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected 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.

Instrument No 3 of 1999 as amended by Instrument 54 of 1999, and Instrument No 4 of 1999 as amended by Instrument 55 of 1999, each respectively in Paragraph 8, define "experiencing a severe stressor" as:

"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, personal 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

engagement with the enemy; or
witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.

In the case of a reasonable hypothesis (i.e. operational service) at least one of the three factors set out in paragraphs 5(a), (b) or (c) must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the applicant's operational service. Whereas, in the case of the applicant's eligible defence service, at least one of the three factors 5(a), (b) or (c) in SoP 4 of 1999, must exist before it can be said that, on the balance of probabilities the applicant's PTSD is connected with the circumstances of his eligible defence service. The other relevant matter in this instance is the definition, in paragaraph 8 of SoP 3 of 1999 (and similarly, S o P 4 of 1999) of "experiencing a severe stressor" which is set out above.
Does the applicant's diagnosed PTSD meet the template of the SoPs?
Paragraph 2 (b) of each of the SoPs sets out, for the purpose of the SoP, a definition of "PTSD" meaning a psychiatric condition meeting the description provided in sub-paragraphs (A) to (F) inclusive, attracting ICD-9-CM code 309.81. Sub-paragraph 2(b)(A) requires the person to have been exposed to a traumatic event in which "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 the person's response involved intense fear, helplessness, or horror".
At this point the Tribunal digresses to express an opinion on the quality of the applicant's evidence. The Tribunal has already acknowledged that during the giving of his evidence his responses to questions put to him were frank and appear to accord with his best recollection of events canvassed in evidence. However, it is clear that those responses vary in a significant way from the applicant's statutory declaration (A1), which adopts adjectival clauses and words consistent with the SoP, to describe how the applicant felt at the time of each incident. The Tribunal is satisfied, despite Mr Hammal's protestations in this regard, that he assisted in and influenced the applicant's affidavits. In relation to what the applicant felt and thought he experienced at the time of each of the incidents (above), the Tribunal prefers the applicant's oral evidence to that contained in exhibit A1 and T15 where those aspects differ.
In terms of the evidence therefore, in the Tribunal's opinion, in relation to incidents (i), (iii) and (iv), the applicant was not exposed to a traumatic event which meets the criteria of paragraph 2(b)(A) of SoP number 3 of 1999 (operational service). Nor, in the Tribunal's opinion, does the preferred evidence of the applicant support a conclusion, in terms of SoP 3 of 1999, Factor 5 (a), that in relation to incidents (i), (iii) and (iv), he experienced a severe stressor (as defined) prior to the clinical onset of his diagnosed condition. To elaborate, incident (i) as described by the applicant in A1, is not consistent with his preferred oral evidence; nor does the Tribunal accept, for reasons already expressed, that the applicant actually witnessed what is described as incident (ii), at least in the way he describes it. Further, even if the applicant heard the broadcast referred to in incident (iv), the evidence is that, at best, the applicant's response did not involve him experiencing intense fear, helplessness, or horror but rather that he "felt sorry for the poor bloke".
In regard to incidents (ii) and (vi) [boiler room incidents], the best that can be said about the applicant's evidence is that, for incident (ii) he was scared. Even if it could be concluded that being scared is synonymous with a response involving intense fear, helplessness or horror (which the Tribunal doubts), there is simply no objective evidence that those "traumatic events" were and have continued to be re-experienced in one or more ways as set out in paragraph 2(b)(B) of the SoP. Nor, in the Tribunal's opinion, does the preferred evidence of the applicant support a conclusion, in terms of SoP 3 of 1999, Factor 5 (a), that in relation to incidents (ii), and (vi), he experienced a severe stressor (as defined) prior to the clinical onset of his diagnosed condition. Indeed, the Tribunal notes that even after the applicant experienced incidents (i), (ii) and (vi), all purported boiler room incidents during operational service, he was able to undertake further study and practical tests during his eligible defence service period post-Vietnam, and qualify for a Boiler Watch Keeping Certificate that enabled him to be in charge of a ship's boiler room – that is, a more onerous and responsible position than that which he had at the time of the relevant incidents.
In regard to incident (viii), the Tribunal accepts that this was an event experienced by the applicant as he described, despite it not having been spoken of before his first appointment with Dr Woodall in September 2000. This boiler room incident, during eligible defence service, was no doubt traumatic and the Tribunal accepts the applicant's oral evidence in this regard. The applicant obviously handled the crisis in keeping with his training and averted a serious incident or accident. The applicant was praised for his handling of the incident at the time. He was given the option of going off duty but chose not too despite the experience, which left him shaking. He was able to return to his post soon after taking some time out to have a smoke, and he continued his watch a further two hours, until its scheduled conclusion and there was no disruption to his attending watch for the remainder of the journey. In the opinion of the Tribunal, of all the incidents referred to by the applicant (including incidents (v) and (vii) yet to be considered) this incident alone accords with the SoP definition of "experiencing a severe stressor" (paragraph 8). However, there is no evidence before the Tribunal of the applicant persistently re-experiencing this event in any of the ways as described in paragraph 2(b)(B) of SoP 4 of 1999 (eligible defence service). As the evidence does not establish on the balance of probabilities, that the requirements of paragraph 2(b)(B) of the SoP are met, the Tribunal is not reasonably satisfied that the applicant's PTSD is relevantly connected to his eligible defence service.
The medical evidence before the Tribunal attributes the clinical onset of the applicant's PTSD as occurring after his relevant service although opining that the condition arose out of that service with the RAN. Therefore, the factors of paragraphs 5(b) and (c) of SoP 4 of 1999 cannot apply. That is, the stress of incident (viii) cannot be considered as having made any material contribution to or aggravation of the applicant's PTSD.
Regarding incident (v), the Vietnamese fishing boat crew surrender incident, the preferred evidence is that at best the applicant "felt he couldn't do that to a fellow human being", which the Tribunal understands to be a reference to the seven Vietnamese being stripped, tied and made to lie on the deck whilst being body searched. In the Tribunal's opinion, this incident did not expose the applicant to the kind of traumatic event envisaged by paragraph 2(b)(A) of SoP 3 of 1999 or "experiencing a severe stressor" as defined in paragraph 8 of SoP 3 of 1999 (as amended ). Nor could the experience be reasonably described as "engagement with the enemy or witnessing atrocities or abusive violence". The weight of evidence is that the seven Vietnamese were not abused but rather stripped and restrained to enable the necessary and appropriately detailed examination for hidden weapons to be undertaken with a minimum of risk to the ship and its company. After the search the seven Vietnamese's restraints were removed, they were dressed and fed, given cigarettes and allowed to sit comfortably on deck in shade.
Finally, the Tribunal considers incident (vii), the search for body parts and debris relating to the previous crashed Navy Sky Hawk jet. In this regard, it is reasonable to describe the applicant as having witnessed and participated in the clearance of a casualty (the remains of the dead pilot). However, at best, according to his own evidence, the applicant's feelings at the time were of sorrow and sadness for the pilot who had been killed. In the opinion of the Tribunal, the preferred evidence in relation to this incident does not point to the applicant having "experienced a severe stressor" as defined in paragraph 8 of SoP 4 of 1999, nor was he exposed to a traumatic event which objectively, meets the criteria of paragraph 2(b)(A) of that SoP.
Conclusion
For the above reasons pursuant to s120 of the Act, the Tribunal is satisfied that no reasonable hypothesis has been raised to connect the applicant's PTSD with his operational service. The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for concluding that the applicant's diagnosed PTSD is war-caused. Similarly, in relation to incidents (vii) and (viii) which occurred during the applicant's eligible defence service, the Tribunal is not satisfied on the balance of probabilities that the applicant's diagnosed PTSD is relevantly connected with circumstances of the applicant's eligible defence service.
Decision
For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(i)to vary the decision of the Veterans' Review Board of 25 October 2000, amending the diagnosis of the applicant's condition to that of Post Traumatic Stress Disorder; and
(ii)to affirm the decision under review as so varied.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member and Dr P A Staer, Member
Signed:         .........(sgd V Wong).............................................
  Associate
Date/s of Hearing  25,26 July 2002
Date of Decision  25 October 2002
Counsel for the Applicant        Mr C Hammal
Counsel for the Respondent    Mr C Ponnuthurai