EDWARD ALLEN WEST and REPATRIATION COMMISSION
[2009] AATA 935
•4 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 935
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6088
VETERANS' APPEALS DIVISION ) Re EDWARD ALLEN WEST Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date4 December 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Egon Fice
Member
VETERANS’ AFFAIRS ‑ disability pension – operational service in Vietnam – diagnoses ‑ post traumatic stress disorder – depressive disorder – alcohol abuse –- whether war-caused
Veterans’ Entitlements Act 1986
Mines v Repatriation Commission [2004] FCA 1331
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
4 December 2009 Mr Egon Fice, Member 1. Mr Edward West was conscripted into the Australian Army for national service in 1970. After basic training, he completed further training with the Royal Australian Army Service Corps (RAASC) and was then posted to 18 Transport Company as a driver. After completing the battle efficiency course at Canungra, Mr West was posted to Vietnam, arriving there on 2 June 1971. He served in Vietnam with 86 Transport Platoon until 7 December 1971, when he returned to Australia. His period of service in Vietnam was in an operational area, as that term is described in Schedule 2 of the Veterans’ Entitlements Act1986 (the VE Act) and therefore constitutes operational service as that term is defined in the VE Act.
2. Mr West lodged an application with the Department of Veterans Affairs on 7 April 2006 claiming a disability pension because he suffered post traumatic stress disorder (PTSD) as a result of his operational service. On 4 September 2006 a delegate of the Repatriation Commission (the Commission) determined that the appropriate medical diagnoses in respect of Mr West’s claim were:
(a)post traumatic stress disorder;
(b)Depressive Disorder (single episode); and
(c)alcohol dependence
3. The Commission rejected Mr West’s claim and he sought review of the decision by the Veterans’ Review Board (VRB). In a decision made on 27 November 2007, the VRB affirmed the Commission’s decision. It found that Mr West did not suffer from PTSD and that his alcohol dependence and depressive disorder (single episode) were not war-caused. Mr West now seeks review of the VRB decision by this Tribunal.
4. The issues which I must determine are:
(a)whether Mr West suffers from PTSD, depressive disorder and alcohol dependence or alcohol abuse; and
(b)if Mr West suffers from any of the conditions referred to in (a), whether those conditions were war-caused.
DIAGNOSIS
post traumatic stress disorder
5. When approaching the question of diagnosis where the claim involves PTSD, the process must be different to other veterans’ cases. This is because the presence of the claimed disease is dependent upon whether the person has experienced a traumatic event of the kind set out in Criterion A in the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manuel of Mental Disorders Text Revision (DSM-IV-TR). As Gray J pointed out in Mines v Repatriation Commission [2004] FCA 1331, at [39]:
… It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
6. After examining the many cases dealing with the process of reasoning when a diagnosis is dependent upon a traumatic event occurring, Gray J concluded, at [48]:
It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.
7. The authorities establish that where there is an issue as to whether a veteran is suffering from a claimed injury or disease, the Tribunal must decide that issue to its reasonable satisfaction, as required, by s 120(4) of the VE Act (Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) …decide the matter to its reasonable satisfaction, was comprehensively analysed by the Full Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation…
This means that I am required to decide the question of diagnosis on the balance of probability.
8. The diagnostic criteria for establishing the psychiatric condition of PTSD are set out in DSM-IV-TR. The criteria are also set out in the relevant Statement of Principles (SoP) regarding PTSD. The current SoP is No 5 of 2008. SoPs are made by the Repatriation Medical Authority under s 196B(2) and (8) of the VE Act.
9. As I have explained in paragraph 5 above, the starting point for a diagnosis of PTSD depends on an applicant meeting diagnostic Criterion A in DSM-IV-TR, which provides:
(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;
10. The traumatic event relied on by Mr West is set out in his written statement which was admitted into evidence. Mr West said at the time of the event, he had been in Vietnam for about four months. One evening, after the boozer (wet canteen) had closed, Mr West, with about four other soldiers, returned to their hut, which was situated in the 1 ALSG (Australian Logistic Support Group) base area in Vung Tau. Mr West said in his oral evidence that he recalled the names of two of his fellow soldiers with whom he was drinking at the wet canteen, they being Mr Fisher and Mr Kelly. He said that at about 9.30pm, when they returned to the hut and were lying on their beds talking, a New Zealand soldier, Corporal Brunt, ran past his bed outside the hut, swearing and shouting. He said Corporal Brunt was intoxicated and very angry because another soldier, Mr David Carne, was riding a bicycle on the roof of their hut, making much noise. Mr West also said that when Corporal Brunt ran outside the hut, he had a rifle in his hands.
11. Mr West said that Mr Fisher followed Corporal Brunt outside the hut and he followed. When he went outside, he saw Corporal Brunt pointing the rifle at Mr Fisher and he was threatening to shoot Mr Fisher and Mr Carne. Mr Fisher was down on his hands and knees with his hands over his head. Apparently, Mr Carne continued to ride the bicycle on the peak of the iron roof covering the hut. Mr West said Corporal Brunt was waiving the rifle around everywhere and that he was terrified that somebody would get shot, including himself. He stepped in between Mr Fisher and Corporal Brunt, describing that moment as a recurrent and frightening memory. The confrontation ended when a number of other persons who had gathered around were able to calm Corporal Brunt down and disarm him. When asked about his reaction to the event, Mr West said I thought I was going to die, I felt very ill, sick, after that.
12. In his written statement, Mr West said that he refrained from discussing the incident for many years. However that statement seems to contradict the evidence given by his wife, Mrs Joan West. In her evidence-in-chief, she was asked whether her husband talked about Vietnam when he returned to Australia. She said he did. When asked if her husband talked about anything in particular, she referred to the Corporal Brunt incident and her husband’s expressed fear of what could have happened. She was asked when her husband first spoke about the Corporal Brunt incident and she said it was fairly early on, in the first year of their marriage. According to Mr West’s evidence, they were married in 1973. Mrs West was also asked if her husband spoke about that experience to others as well, and she said yes. Under cross-examination, Mrs West was asked whether her husband spoke about Vietnam often, and she answered not every day but it was not uncommon.
13. In his written statement of evidence, Mr West also explained he experienced concern about a long wait at Saigon Airport before catching an internal flight to Vung Tau. He also referred to a friend of his, Mr Jimmy Duff, whom he said he met when he was a teenager. They were both called up for National Service at the same time and did their recruit training together. Mr Duff was killed in Vietnam. However, I did not understand Mr West to be relying on either of these incidents in support of his PSTD claim.
14. Mr West’s account of the Corporal Brunt incident was supported by Mr Wayne Fisher, Mr Allan Nolan and Mr W T Denny, the former officer commanding 86 Transport Platoon in Vietnam between 1971 and 1972.
15. In his undated statement, Mr Fisher said that he and Mr West were involved in stopping Corporal Brunt from shooting Mr Carne and himself. Although Mr Fisher gave very few details of the incident, he did refer to a statement made by Mr Carne, although that statement was not before me at this hearing.
16. In a further statement, simply dated 1 February, Mr Fisher generally described a commotion outside the hut which he shared with Mr West. He said both he and Mr West became involved. In his oral evidence, Mr Fisher provided more detail about the event. He said the incident occurred at about 4 - 4.30pm, which raised the question whether the incident took place in daylight hours or at night, as Mr West claimed. Mr Fisher’s recollection was that a group of soldiers had been at a barbeque or in the town of Vung Tau; although he thought that they may have just returned from a barbeque at the beach. Mr Fisher said that when they heard the commotion on the roof, Corporal Brunt ran out of the hut yelling and screaming at Mr Carne, telling him to get off the roof. He said that Corporal Brunt held him to the ground and said I’m going to blow your head off.
17. Mr Fisher said that when he first walked out of the hut with Mr West, they laughed about the prank Mr Carne was playing and thought it was funny at the time. When asked if Corporal Brunt was laughing, Mr Fisher said no and he went back inside the hut and got his rifle. He then threatened Mr Carne with the rifle. When asked where Mr West was at the time, Mr Fisher said he couldn’t say. Under cross examination, Mr Fisher said he believed the event took place in the afternoon, before the bar opened at about 5.00pm. He said they were lying on their beds waiting for it to open. Mr Fisher confirmed that the incident took place in daylight and that there was no external lighting around the huts in any event.
18. Mr Nolan provided a written statement dated 11 September 2007. Mr Nolan said that the incident took place at night, after the wet canteen had closed. He said Corporal Blunt came charging out of the hut with his weapon, an SLR (self-loading rifle) which was cocked, and his intention was to kill Mr Carne. Mr Fisher and Mr West walked up to Corporal Brunt to try and calm him down and he then threatened to shoot both of them. Mr West and Mr Fisher continued to talk to Corporal Brunt and eventually helped disarm him. He said Corporal Brunt had a very volatile temper after he had been drinking and he was hard to calm down and control when he got upset and angry.
19. In his oral evidence, Mr Nolan said the incident took place between 10.30 and 11.00pm. Mr Nolan said that he walked outside his hut after hearing a huge racket outside. He saw a man riding a bicycle on the ridge of the roof of a hut nearby. He said a number of soldiers had come out from nearby huts to see what the racket was about. He thought there were about four or five soldiers present. He saw Corporal Brunt walk out of his hut with a weapon in his hands. He thought he saw the weapon cocked and that it was pointed at a number of soldiers who had gathered around. When asked whether anybody attempted to remove the rifle from Corporal Brunt, Mr Nolan said he did, together with three other soldiers but he did not mention Mr Fisher.
20. When Mr Nolan was asked if Mr Fisher was there, he simply said yes. When asked if Mr West was present, he said that he was in amongst the group of blokes. He could not remember where Mr Fisher was. He considered that all those present were in danger of being shot. Under cross-examination, Mr Nolan was asked whether he could see clearly, given that he said the incident took place at 10.30 ‑ 11.00pm. He said he could see Mr Carne riding up and down on the roof because it was fairly light due to the moonlight.
21. Mr Denny provided a written statement dated 18 January 2007. He said that Mr West was a soldier under his command in 86 Transport Platoon in South Vietnam in 1971. Mr Denny said that he had been asked to clarify his recollections of an incident involving Corporal Brunt and other soldiers of No 86 Transport Platoon that occurred around October 1971. He said that his recollections of the incident were previously provided to Writeway Research Services and that he stood by those recollections.
22. The Writeway report referred to by Mr Denny appears to be a report prepared by Mr John Tilbrook dated 25 August 2001. In that report, Mr Tilbrook said he consulted Lieutenant Colonel Denny (Retd). Mr Tilbrook said that Mr Denny recalled Mr West as one of his unit drivers and was able to provide informed comments on each of the veteran’s generally stated contentions. Mr Tilbrook then said that Mr Denny was able to confirm the event described by Mr West. The account then recorded by Mr Tilbrook accords closely with what Mr West and Mr Fisher said, save for the time of the incident.
23. According to Mr Denny, the incident occurred late one night in the 86 Transport Platoon accommodation lines, after the wet canteen had closed. However, Mr Denny is said to have told Mr Tilbrook that Corporal Brunt produced his rifle and climbed onto the roof where he was observed to have cocked the weapon and aimed it at Private Carne on the roof, threatening to kill him. The report then states that Mr Fisher intervened and managed to talk Corporal Brunt into handing over his weapon, thereby defusing the situation.
24. In his written statement of 18 January 2007 Mr Denny stated that he had been asked to:
… clarify my recollections of an incident involving a Cpl Theo Brunt and other soldiers of 86 Transport Platoon that occurred around October 1971.
Mr Denny then referred to my recollections of the incident …, which he said had previously been provided to Writeway Research Services. He said that after reflection, he wished to add he was confident that Mr West was present and witnessed the entire incident, and, moreover, was involved in it. Mr Denny then recounted the incident, referring to his previous statement given to Mr Tilbrook. However, he added:
As I recollect in an ensuing melee he [Corporal Brunt] also aimed it consciously and unconsciously and threatened others in the immediately area, including Pte Fisher, Pte West, Pte Hignett and Pte Rose. Furthermore the loaded weapon was pointed indiscriminately at close range at these members while they subsequently negotiated with Cpl Brunt to disarm him.
25. Mr Denny reiterated that he was confident Mr West was present during the incident and, in the circumstances, he was directly threatened with death by Corporal Brunt. However, it is only until one reads the final sentence of his statement that it becomes apparent Mr Denny had been told of the incident a day or so later and the recollections, to which he referred in that statement and presumably in his account given to Mr Tilbrook, are based on what he said he had been told. Mr Denny did not witness the event.
26. In his account of the incident given to Mr Tilbrook, it appears Mr Denny told Mr Tilbrook that although no shots were fired, disciplinary action was taken against Corporal Brunt. However, in his oral evidence to the Tribunal, he said there was no investigation into the incident and he was not aware of any other action being taken in respect of it.
27. Mr Barry John Clayton, another member of No 86 Transport Platoon in Vietnam in 1971, also gave evidence. He recalled the incident occurring at about 10.30pm. Mr Clayton’s recollection was that the event took place some huts away from where he was accommodated. He heard the commotion and went to see what was happening. He said that there were about 12 people present when he arrived there. Some five or six minutes after he arrived on the scene, Corporal Brunt came out of a hut with an SLR. In his words, he then bolted. He did not see anything else that happened.
28. Mr Clayton said that he did see Mr West amongst the group of persons who had gathered around the hut where Mr Carne was riding the bicycle. He said Mr Carne was riding on the ridge of the sloping roof, having taken the tyres and tubes off the bicycle. He was asked whether, after the incident, there was an investigation and he said there was not. Mr Clayton also said that he heard nothing more about it and that the persons present had a laugh, except for the fact that Corporal Brunt had a rifle with him. He said that although the incident was discussed later, nothing was mentioned about the rifle.
29. Quite clearly, the evidence of the incident regarding the threatened shooting of Mr Carne and Mr West’s involvement is, on the whole, unsatisfactory. I accept that it would be reasonable to expect the details and recollections of the various persons who have given evidence to vary, particularly given the passage of time. However, in my opinion, it is not unreasonable to expect substantial agreement about the more significant aspects of the event.
30. To compound the problem, the officer then commanding No 86 Transport Platoon did not conduct an investigation into the incident because, he said, he was concerned for the reputation of Corporal Brunt and the effect it would have on his military career. This is despite the fact that witnesses said it involved threats to kill. Although Mr Denny told Mr Tilbrook that disciplinary action was taken against Corporal Brunt, at the hearing of this matter he had apparently changed his mind about that. It also appears that Mr Tilbrook, on the basis of the evidence given to him by Mr Denny, formed the opinion that an incident took place and other soldiers were present and witnessed the event.
31. In the course of the hearing, I expressed my concern to Mr Denny in the way that his written statement was framed. He made reference to my recollections of the incident and one could be forgiven for assuming that he witnessed the event. He did not say his recollections were of what was told to him some time after the event and not of the event itself. However, in the very last sentence of his statement, he made it clear that he was told of the incident a day or so later. I doubt that Mr Tilbrook arrived at his conclusion based on Mr Denny’s evidence set out in his written statement of 18 January 2007, as he does not mention it but rather refers to discussions with Mr Denny.
32. As for the other witnesses who gave evidence indicating they were present and observed the incident, although Mr Clayton agreed the incident occurred at about 10.30pm, he did not see anything else after he said Corporal Brunt came out of the hut brandishing a rifle. Mr Fisher’s evidence was that the incident took place in daylight, around 4.00–4.30pm. Mr Nolan’s evidence was that it occurred at night between 10.30 and 11.00pm. He nevertheless said in evidence that due to the moonlight, he was able to observe what happened. It is difficult for me to reconcile the fact that two witnesses to an incident of this kind could not recall clearly whether the event occurred in daylight or at night.
33. Mr West of course also claimed the incident took place at 10.00pm. In fact, in his evidence to the VRB, Mr West said that he, along with some colleagues, were walking back from the boozer (the wet canteen) when the incident occurred. He said it was night time. He was asked whether it was dark at the time and he said Pretty dark, yes; just a few lights around that’s all. Pretty dark. When he was asked how he managed to see Mr Carne on the roof he said Oh, there were sort of lights when we’re walking back sort of thing, and then we noticed …. He insisted that it was not pitch dark but that there were a few lights around the camp.
34. In his account to the VRB Mr West said that one of the Sergeants came across and quietened Corporal Brunt down. When asked what happened after that, Mr West said not much, really, he just – quietened down and settled down sort of. He was then asked whether he came down off the roof and he said yes. The question which followed that question was, what about the other soldier, the one who was involved with the Maori, by which it would appear that Corporal Brunt was the person who was referred to as coming down off the roof. It just so happens that Mr Denny’s evidence given to Mr Tilbrook is recorded by Mr Tilbrook in the following way:
A New Zealander (Maori) named CPL Theodore Brunt, who Theo Brunt produced his 7.62 mm SLR rifle and climbed onto the roof where he was observed to have cocked the weapon (ie loaded a live round into the breach) and aimed the rifle at PTE David Carne on the roof, threatening to shoot and kill him.
35. The transcript of the VRB hearing indicates that the hearing took place on 26 March 2001. Mr Tilbrook’s report is dated 25 August 2001. Mr Tilbrook referred to having the VRB decision in his possession at the time he wrote his report. The problem is that the reference in the VRB transcript to the person coming down off the roof, when read in context, is a reference to Mr Carne coming down off the roof, not Corporal Brunt. In fact, Mr West’s evidence before me does not even suggest that Corporal Brunt climbed onto the roof. The same can be said of the evidence of Mr Fisher, Mr Nolan and Mr Clayton.
36. Therefore, the only conclusion I can draw from the evidence in Mr Tilbrook’s report regarding the incident is that either he misread the transcript of the VRB hearing and wrote his report based on that transcript, or Mr Denny read the VRB report incorrectly and gave Mr Tilbrook that evidence as if it was his recollection of the incident. There is nothing in Mr Tilbrook’s report to suggest that the information he obtained from Mr Denny was based on Mr Denny having been told about the incident some time after it occurred.
37. There are other significant discrepancies in the evidence given regarding this incident. In his evidence before me, Mr West gave a graphic account of Corporal Brunt pointing the rifle at Mr Fisher’s head, while Mr Fisher was down on his hands and knees with his hands over his head. That evidence does not even resemble the evidence he gave to the VRB. In the hearing before me, Mr West also said that when he intervened telling Corporal Brunt to stop what he was doing, the rifle was pointed at him and he feared that he would be shot. Again, that evidence is nothing like the evidence he gave to the VRB.
38. Mr Fisher’s evidence was that Corporal Brunt held him to the ground and said he was going to blow his head off. Other than saying that Mr West walked out with him and that they were cheering and laughing at the sight of Mr Carne riding on the roof because they thought it was funny at the time, he was unable to say what Mr West’s involvement was in disarming Corporal Brunt other than to say that he walked back to the hut with Mr West. Mr Nolan’s evidence was that Mr Fisher and Mr West walked up to Corporal Brunt to try and calm him down. He referred to Corporal Brunt pointing the rifle at a couple of soldiers, whom he named, although Mr West was not one of them. When asked if anyone removed the weapon from Corporal Brunt, he mentioned himself and three other persons; again, not including Mr West. When asked if Mr West was present, he simply said he was in amongst the group of blokes. When asked where Mr Fisher was he said he could not remember.
medical evidence
39. Mr West was first examined by Dr C J Percival, psychiatrist, on 15 September 1998 following Mr West’s claims for nervous disorder and alcohol/substance abuse. According to Dr Percival, he was asked to examine Mr West to establish whether he had any specific psychiatric disability and, in the event that psychological stress was implicated as a factor in his claim, he was asked to comment on various specifics of his symptomology, including how those symptoms could be related to his war service.
40. According to Dr Percival, Mr West, who he described as a relatively imprecise and poor historian, nevertheless gave a clear history of two years of what he described as panic attacks where he became jumpy, nervous and tremulous, had palpitations and sweats and developed an intense desire to leave provoking situations. Dr Percival described this as a panic disorder with agoraphobia.
41. Although Dr Percival said Mr West was an imprecise and poor historian, his report indicates that a reasonably detailed history was given by Mr West at interview. Dr Percival recorded the nature of Mr West’s work in Vietnam and the fact that he was never in the direct line of fire. Dr Percival said Mr West had, for much of his time in Vietnam, a reasonable apprehension that he might well come under fire and possibly be killed or wounded. He said that his closest contact with the consequences of combat was to drive past a location where other vehicles had been ambushed, with the loss of Australian lives, on a previous day. According to Dr Percival’s notes, Mr West did not mention the incident involving Corporal Brunt in that first interview. I should also mention the fact that according to Mr Tilbrook’s research, there is no record of any enemy ambush of vehicles in the area during Mr West’s stay in Vietnam. There were burnt out vehicles abandoned near contact sites but these would have been there for some considerable period of time.
42. Dr S Wild, psychiatrist, examined Mr West in October and November 2000 on referral from Mr West’s general practitioner, Dr S Sneyd. On the second occasion, Mrs West attended the appointment with her husband. Dr Wild noted in his report that Mr West told him he had felt unable to speak comfortably with Dr Percival and that Dr Percival had understated, misinterpreted or simply had not related many of his service experiences and subsequent symptoms. Dr Wild’s view, however, was that Dr Percival’s report was detailed, thoughtful and quite sympathetic to Mr West despite his conclusion that Mr West’s psychiatric problems did not arise out of his war service.
43. Mr West did describe to Dr Wild the incident involving Corporal Brunt. In his notes of the interview with Mr West, Dr Wild said that there was a Maori bloke who was drunk and he was going to shoot one of our blokes. He mentioned there were half a dozen of us trying to talk to him. He mentioned that the Maori (Corporal Brunt) was pointing the gun at the bloke. He said it went on for an hour. Dr Wild noted he was under no direct threat. In his report, Dr Wild said that Mr West was only peripherally involved in that situation but he said it shook me up at the time.
44. Dr Wild also recounted what Mr West said generally about his time in Vietnam. This included a description of his truck driving activities and the fact that it involved travelling on roads which were subject to mining and periodic attack. He mentioned craters and burnt out vehicles on the sides of the road and aircraft overhead. He said at times he heard the firing of guns and he felt tense and on edge constantly because of Vietnamese people around him and the uncertainty of who was the enemy. According to Dr Wild’s notes, Mr West also mentioned the death of Mr Duff.
45. Given that history, Dr Wild concluded that Mr West had experienced significant stress during his period of service, but he did not suggest that any one particular incident or event was significant. He was nevertheless of the view that Mr West’s overall presentation and psychiatric symptoms were typical and diagnostic of PTSD. Dr Wild made no reference to Criterion A in DSM-IV-TR. Dr Wild also reported that in the few years prior to his examination, it appeared Mr West had suffered major depression as described by Dr Percival. He was also of the view that Mr West suffered alcohol dependence, secondary to his PTSD.
46. It is also significant, in my view, that Dr Wild recorded in his notes that Mrs West said when they were first married, her husband talked a lot about Vietnam.
47. Dr Wild again interviewed Mr West on 1 July 2002 and provided an updated report dated 8 July 2002. On this occasion, Dr Wild had Mr West complete the Minnesota Multiphasic Personality Inventory – 2 (MMPI-2) as a measure of reported psychopathology and as a test of test-taking attitude. Dr Wild conducted this test because Dr L A Walton, another psychiatrist, who examined Mr West on 25 October 2001, raised concerns about the inconsistency in Mr West’s account of himself particularly in relation to his alcohol consumption; concerns about comments made by Mr Tilbrook and his own concerns.
48. Dr Wild reported that on the PTSD checklist, Mr West endorsed 13 of the 17 items as extremely severe, three items as occurring quite a bit, and one item as being experienced moderately. This gave him a total score of 80 out of a maximum possible score of 85 with all items being endorsed at or above the threshold for symptoms significance. In his opinion, this represented an extreme endorsement of the items which, in his experience, was unusual amongst veterans completing the instrument. He said that the extremity of the endorsement raised serious questions as to the accuracy with which the instrument was completed.
49. Dr Wild had Mr West also complete Beck Depression Inventory. Mr West’s response to the Beck Depression Inventory was similar to his response to the MMPI‑2. On the Hospital Anxiety and Depression scale, his score was 42. In his oral evidence, Dr Wild said that a score of 40 or more on the Beck Depression Inventory indicated that the respondent was either faking or exaggerating his or her symptoms.
50. Dr Wild referred to Dr Walton having detected an inconsistency in Mr West’s account of his alcohol consumption prior to service in Vietnam. According to Dr Walton, Mr West simply explained that he had accidently filled out the alcohol questionnaire incorrectly. Dr Walton also noted discrepancies in Mr West’s evidence given to the VRB. The VRB also referred to Mr West’s tendency to exaggerate the quantity of alcohol that he drank, while he was in military service. Without referring to those reports, Dr Wild questioned Mr West about his alcohol consumption and despite the inconsistencies , Mr West said to Dr Wild that he had drunk stuff all before I went in [to the army], but once we were over there [his alcohol consumption increased dramatically].
51. According to Dr Wild, Mr West produced a profile on the MMPI-2 that was most probably invalid. Dr Wild particularly referred to the F Scale of the MMPI-2. He said Mr West scored 98 on that part of the Inventory. He explained that marked elevations in the F Scale may reflect the presence of severe psychopathology, such as in hospitalised psychiatric inpatients or in recently admitted prison inmates, or they may be artificial as a result of confusion, reading difficulties, random responding or cross-cultural issues. However, in the absence of the abovementioned causes of elevations in the F Scale, marked elevations are associated with deliberate exaggeration of symptoms, sometimes as part of a cry for help, or malingering.
52. In Dr Wild’s opinion, the degree of elevation of the F Scale was disproportionate to the amount of psychopathology that was evident on a mental status examination. Dr Wild reported that Mr West displayed no evidence of a lack of understanding of what was required in completing the MMPI-2 or that he was simply responding randomly. He attended properly to Dr Wild’s instructions and appeared to apply himself to complete the test in a reasonable timeframe. His score on the true response inconsistency scale was normal, although with a slight tendency to endorse items on the test as true rather than respond to them as false. He said this tendency was well within the acceptable range and it did not invalidate the test or suggest that Mr West did not comprehend it or had responded carelessly to it.
53. Dr Wild concluded that his finding on the MMPI-2 tests was that, congruent with Mr West’s inconsistency in giving an account of his problems at interview, and with the markedly elevated scores on the hospital anxiety and depression scale and the PTSD checklist, the way in which Mr West completed the MMPI-2 suggested he wished to present himself as unwell as possible. His results on the test indicate that at least he was exaggerating his symptoms and that possibly he was malingering. This undermined Dr Wild’s confidence in his earlier assessment and although he said he would maintain the diagnosis of PTSD with secondary alcohol dependence based on Mr West’s account of his symptoms, he wished to indicate that he was no longer confident of that diagnosis.
54. Under cross-examination, Dr Wild said that his initial diagnosis, which was based on the history given to him by Mr West, was correct. But it was predicated on Mr West being truthful and he came away not being convinced that Mr West was in fact truthful. Nevertheless, Dr Wild said that although Mr West’s responses were extreme, they were not so great as to say he was in fact malingering, as the results were slightly short of that. Dr Wild was also of the view that Mr West was not suffering any cognitive impairment and therefore that did not affect his scores on the MMPI-2 tests. He said Mr West spent two to three hours completing the tests and he appeared to have concentrated whilst doing so. However, he added, Mr West’s alcohol problem could be the cause of all of his symptoms.
55. Dr Walton, a psychiatrist, examined Mr West on 25 October 2001 and provided a report dated 27 November 2001. Mr West gave Dr Walton an account of the incident involving Corporal Brunt. He reported that Mr West told him that he had emerged from the canteen when a New Zealand soldier had bailed up one of our blokes on the roof. He said it was Mr West’s belief that the New Zealand soldier was threatening to shoot the Australian soldier. He told Dr Walton he didn’t know what he was going to do. He was rotten [drunk] out of his mind. It could have been all of us.
56. Dr Walton reported that Mr West’s involvement in the incident did not seem to have put him under any direct threat but he did observe a fellow Australian soldier in a situation of threat of serious injury. He said that Mr West’s account to him, consistent with information he had provided elsewhere, indicated that his subjective response to the incident fell short of intense fear, helplessness or horror. Dr Walton expressed the view that Mr West did not experience the requisite extreme emotional reaction to the event.
57. Dr Percival examined Mr West again on 17 May 2006. On this occasion, Dr Percival asked Mr West why his wife did not accompany him and he said it is difficult for her when I am present. Again, he said Mr West presented as a poor historian. He attempted to discuss with Mr West some of the contradictions and difficulties in the history he had given to other medical practitioners. In doing so, Dr Percival said he increasingly began to suspect that Mr West not only suffered from the reported conditions but also from a certain degree of cognitive impairment, more probably related to his consumption of alcohol over the years.
58. Despite Dr Percival telling Mr West that in order to succeed in his present application, he would have to provide new information relevant to the nature of his experiences in Vietnam, Mr West was unable to offer any further enlightenment. He said that Mr West actually used a copy of the Writeway report as an aide memoir in his initial attempts to describe the situation to him because of his own poor memory. In fact, Dr Percival set out in full the paragraph from Mr Tilbrook’s report which, it seems, was based on Mr Denny’s account of the incident. As I have mentioned above, Mr Denny’s account of the Corporal Brunt incident, although couched in terms of a recollection of the event, was, in fact, based only on recollections of what he was told about the event.
59. Accepting Mr Tilbrook’s account of the Corporal Brunt incident, Dr Percival reported that although that incident was satisfactorily resolved, it could not be denied that Mr West was placed in a position where he apprehended the possibility of death or severe injury of another person, although not to himself. Dr Percival said that he had no doubt that at a subjective level, Mr West believed himself to be chronically in danger of wounding or death throughout a significant portion of his time in Vietnam. Also, there could be no doubt that the incident involving Corporal Brunt could have ended in the injury or death of one or more of the participants, giving rise to the subjective feelings of intense fear and or helplessness experienced by Mr West. On this occasion, Dr Percival reported he believed there was sufficient phenomenological evidence to justify a diagnosis of PTSD.
60. In his examination-in-chief, Dr Percival was asked whether he enquired of Mr West the reason for not telling him about the Corporal Brunt incident on the first occasion that he examined him. According to Dr Percival, Mr West said he did not really know, he said I wish I could have. Counsel also asked Dr Percival about Dr Wild’s tests performed on Mr West. He simply said he regarded those types of tests with some suspicion.
61. Dr Percival spoke to Mr West once again on 12 November 2008. His written report is dated 17 November 2008. On that occasion, Dr Percival was provided with numerous documents dealing with Mr West’s claims, including Mr Denny’s written statement of 18 January 2007 and the statements provided by Mr Fisher and Mr Nolan. Dr Percival referred specifically to Mr Denny’s explicit and unambiguous statement where he said:
I am confident that Pte West was present during the incident and in the circumstances was directly threatened with death by Cpl Brunt.
62. Dr Percival also said that Mr West described a clear pattern of intrusive thinking with respect to the Corporal Brunt incident. He said that Mr West had thoughts triggered frequently, potentially on a daily basis, by, amongst other things, the sight of any form of weapons or, as Dr Percival said, in Mr West’s own words, guns and rifles … anything like that.
63. This statement discloses another major inconsistency in Mr West’s evidence. In Dr Wild’s report of 4 February 2001, after he had reviewed Mr West in the presence of Mrs West in November 2000, he said that Mrs West indicated severe marital strain, verbal abuse and physical violence, which had been commonplace for decades. Dr Wild’s clinical notes of that consultation state that Mrs Wild was reluctant to specify the marital problems. However, his notes record that she said that due to alcohol, there was domestic violence, guns on the farm, threats to shoot her and the firing of guns outside. Yet, Mr West told Dr Percival that firearms trigger his intrusive thinking, which he said to Dr Percival, he sought to avoid.
64. On this occasion, Mr West described to Dr Percival a pattern of hypervigilance, an increased startle reflex and impairment to his concentration. This was the first occasion on which he had mentioned behaviour which would indicate hypervigilance and an increased startle reflex. When Dr Percival asked Mr West why he did not share this information with him on the first assessment or his second assessment, he said I don’t really know … I wish I could have. According to Dr Percival, Mr West agreed the reason he did not express this previously was because he found the whole issue too painful to discuss. Dr Percival accepted that explanation. Dr Percival reaffirmed his diagnosis of PTSD.
65. Dr W F Glaser, a psychiatrist, interviewed Mr West on 29 July 2008 and provided a written report dated 13 August 2008.
66. In the history given to Dr Glaser, Mr West told him about Mr Duff. He told Dr Glaser that he did not know Mr Duff personally prior to his army service but that he knew of him … he lived in the next valley … he was in the infantry … I got a report on it all … he was badly damaged.
67. As far as the incident with Corporal Brunt was concerned, Mr West apparently told Dr Glaser that Corporal Brunt came back boring through the hut to get a rifle … he was waving his rifle … we thought we were going to get out heads blown off … we were trying to talk him out of (shooting the man on the roof). According to Dr Glaser’s report, Mr West became quite distressed when recounting that incident and he said he felt sick after the incident, for days and days.
68. Mr West also gave Dr Glaser an account of his truck driving activities in Vietnam. In recounting that history, Mr West told Dr Glaser that a soldier at one of the fire support bases told him how their sergeant sustained shrapnel injuries although they were relatively minor.
69. Dr Glaser asked Mr West about his marriage and whether any physical altercations had affected it. He said that he had just given his wife a push a few times, but no punches. He didn’t think it was serious. Mr West also told Dr Glaser that two years after the sale of his second dairy farm in 1996, the purchaser, claiming misrepresentation, sued him. He told Dr Glaser that cost him $100,000. He also told Dr Glaser that in 1998 he consulted Dr Percival but for assessment of his DVA claim. He specifically denied that this consultation was for treatment or about his marital problems.
70. Mr West told Dr Glaser about his heavy daily drinking habit - five or six to 10 cans of mid-strength beer per day - and he acknowledged that he suffered from some memory problems. He described his sleep as not real good and that he might sleep for up to two hours and then wake up thinking about Corporal Brunt and what could have happened. When Dr Glaser asked him whether those thoughts troubled him during the day, Mr West said that not a day went by when he did not think about it. He said he had nightmares and woke up in a sweat.
71. Dr Glaser also interviewed Mr West’s wife, in his absence. She explained that in 1990 they had separated for a few months. She was reluctant to talk about the factors which led to his separation but, on specific questioning, Mrs West acknowledged that her husband was physically abusing her and that sometimes he actually struck her a few times. She also said sometimes he would get the gun out and fire shots into the air.
72. According to Dr Glaser’s report, on specific questioning Mrs West stated that he used to talk about his days in Vietnam. She said that specifically he would mention to her that during his road trips to Saigon, he and his fellow soldiers did not know who was who. When asked whether she noticed any reminders or triggers for his distress, she said he comes across as being racist … he labels all Asians as gooks … he thinks it is all right to say that. It appears that Mrs West did not mention the Corporal Brunt incident in the course of that interview.
73. In his mental state assessment, Dr Glaser said that Mr West spoke in a quiet, self-deprecating fashion and referred on a few occasions to his memory difficulties, although he nevertheless was able to provide a detailed and coherent account of some of the issues which he claimed were affecting him. According to Dr Glaser, Mr West seemed to be orientated and alert and his responses to the questions put by Dr Glaser were generally quite appropriate, if somewhat laconic.
74. In his opinion, Dr Glaser said that the major reason for Mr West ceasing work at the Shepparton fruit cannery in 2001 was the peripheral vascular problems causing pain in both legs. He nevertheless indicated that he was having difficulty in relating to fellow workers. Dr Glaser referred to the litigation in which Mr West was involved in 1998 as a major stressor. He said that Mr West’s mental state assessment disclosed a man who had physical characteristics quite consistent with long term, heavy alcohol use.
75. Dr Glaser was of the view that Mr West was suffering from chronic PTSD of mild severity, with alcohol dependence of moderate severity. Dr Glaser was also of the view that Mr West’s description of feeling sick (apparently sick in the stomach) for a few days after the Corporal Brunt incident was the equivalent of intense fear, helplessness or horror. That was because of Mr West’s inability to express himself in a more appropriate fashion.
evaluation of the evidence
76. Mr West’s diagnosis of PTSD depends largely on his account of the incident involving Corporal Brunt threatening to shoot Mr Carne when he was on the roof of one of the huts at Vung Tau. It depends on an accurate statement of the events that occurred and in particular Mr West’s involvement in those events and his subsequent reactions. Although, as I have already stated, I accept that because of the passage of time since the incident, memories of the event are likely to be different, I would have expected a much closer correlation of the evidence between persons who claimed they witnessed the event. If the incident involving Corporal Brunt did indeed involve threats to kill, I would have expected memories to be consistent on the major aspects of that event. In addition, given the seriousness of the event as the witnesses portrayed it, I would have expected some form of formal disciplinary action to have been taken. Unfortunately, that was not the case.
77. Mr West’s evidence was that the event took place at night, after the canteen had closed. His evidence to the VRB was that he was returning from the canteen. However, by the time the hearing was held before me, this evidence had altered to Mr West lying on his bed in the hut and Corporal Brunt running past him with his rifle, followed by Mr Fisher. When he got outside the hut, Mr Fisher was being threatened with the rifle. Before the VRB, Mr Fisher said nothing about lying on his bed and seeing Corporal Brunt run out with a rifle. He said he was walking back from the canteen and next thing we look around and he has got his rifle out and is going to shoot him, the poor bloke.
78. Mr Fisher’s account of the incident was that it occurred between 4.00 and 4.30pm, that is, in daylight hours. According to Mr Fisher, a group of soldiers had been at a barbeque at the beach and had returned and were lying on their bunks when Corporal Brunt ran outside. Mr Fisher also said that initially, they were cheering and laughing about the event. According to Mr Fisher, Corporal Brunt went back into the hut and got his rifle and when he came back, he threatened Mr Carne and Mr Fisher with his rifle. Mr Nolan’s evidence was that the event occurred between 10.30 and 11.00pm. Mr Denny, who said he was told about the incident a day or so after it occurred, while not stating the time of the event, appears to have told Mr Tilbrook that the incident occurred late one night, after the wet canteen had closed.
79. There is also a substantial discrepancy about who disarmed Corporal Brunt. In his evidence to the VRB, Mr West said:
I think it was one of our sergeants, I think might have come across sort of talking, quietened him down a bit, or quietened him down.
When asked what happened after that, Mr West said not much really he just quietened down and settled down. He was then asked whether he came down off the roof, a question which appeared to have been directed at Corporal Brunt’s behaviour. Mr West answered yes. The following question then refers to the other soldier, the one who was involved with the Maori. It is unclear whether that is a reference to Mr Carne or Corporal Brunt. Despite that confusion, it appears Mr Denny told Mr Tilbrook that Corporal Brunt climbed onto the roof where he was observed to have cocked his weapon. That is the only mention of Corporal Brunt climbing onto the roof and it seems to have come from a reading of the VRB transcript rather than an observation or something that Mr Denny was told.
80. The accounts about whom Corporal Brunt threatened also vary considerably. In his evidence to the VRB, Mr Fisher said he thought it was one of the sergeants that calmed Corporal Brunt down and defused the entire situation. Mr West did not suggest he was directly threatened by Corporal Brunt nor that any other person, other than Mr Carne, was threatened. However, in giving his evidence before this Tribunal, Mr West’s story had altered considerably. On this occasion, Mr West said that when he went outside the hut, Corporal Brunt was pointing his rifle at Mr Fisher, threatening to shoot him and Mr Carne. In fact, Mr West gave the graphic account of Mr Fisher being down on hands and knees with hands over his head when Corporal Brunt was pointing the rifle at him. He also said that after he told Corporal Brunt to stop, Brunt pointed the rifle at him.
81. Mr Fisher’s account was also different. Mr Fisher said he was held to the ground by Corporal Brunt, who told him he was going to blow his head off. When asked where Mr West was at the time, he said he could not say, although he said that they had walked out of the hut together. In fact, Mr Fisher also gave a graphic account of Corporal Brunt throwing him to the ground and putting the rifle to his forehead, and that he had his eyes closed.
82. Mr Nolan’s account was that Corporal Brunt pointed it at a couple of blokes. Although he named three persons, neither Mr Fisher nor Mr West was amongst those. When asked whether Mr Fisher was there, he simply said yes. As to Mr West, he said he was in amongst the group of blokes. He could not remember where Mr Fisher was. He nevertheless believed that Mr West was in danger. Under cross-examination, when asked what he recalled Mr Fisher was doing, he said he was involved in getting the rifle off Brunt – I know Fisher would have been in it.
83. In his written statement, Mr Denny said I am confident that Pte West was present during the incident and in the circumstances was directly threatened with death by Cpl Brunt. When asked in his examination-in-chief, why he was confident that Mr West was present, Mr Denny said that he lived in the same hut as Corporal Brunt, that the soldiers in huts often went around together and did everything together. With respect to Mr Denny, his confidence regarding Mr West’s presence seems to be mere speculation.
84. Finally, it appears that Mr Denny told Mr Tilbrook that disciplinary action was taken against Corporal Brunt. However, in his evidence before the Tribunal, Mr Denny said that no investigation took place, nor was any disciplinary action taken. If this incident was in fact as serious as it is claimed, it is difficult to understand that no enquiry was held or that no disciplinary action was taken against Corporal Brunt. Any threat to kill is a very serious matter, particularly where, as claimed by all of the witnesses, Corporal Brunt had the means to carry out his threat.
85. The only evidence which seems to be consistent is that Mr Carne was riding a bicycle on the roof. That clearly attracted a crowd, which according to some of the evidence, regarded it as a laughing matter. In fact, it appears that Mr Carne was cheered on by the crowd. On the evidence before me, I find that there was an incident involving a soldier riding a bicycle on the roof of one of the huts. However, the evidence regarding Corporal Brunt and those involved, is much less clear.
86. While a number of those witnesses indicated that Corporal Brunt threatened to shoot Mr Carne, it is not at all clear if Corporal Brunt threatened any other person. In fact I have no confidence that Mr Carne was in fact threatened with death or serious injury. In my opinion, the account of this event has been significantly embellished with the passage of time and the retelling of it. If the incident was as serious as the witnesses have portrayed, it would be remarkable indeed that a formal investigation did not take place. For that reason and because the accounts given by the various witnesses of this incident have significant inconsistencies, I find, on the balance of probability, that for Mr West, the Corporal Brunt incident was not an event which involved actual or threatened death or serious injury or a threat to the physical integrity of himself or others.
87. In fact, I am satisfied beyond reasonable doubt that the Corporal Brunt incident did not involve actual or threatened death or serious injury or a threat to the physical integrity of Mr West or others.
88. Even if I am wrong about that, I cannot be satisfied, on the balance of probability, that Mr West’s response to this incident involved intense fear, helplessness or horror. In fact, I am satisfied beyond reasonable doubt that it did not. As Dr Wild wrote in his clinical notes, Mr West was under no direct threat. In fact, in his report of 4 February 2001, Dr Wild noted that Mr West was only peripherally involved in that event. Mr West told Dr Wild that it shook me up at the time. When asked about that in the VRB hearing, Mr West agreed that it shook him up. That is not an expression of intense fear, helplessness or horror.
89. In my opinion, it is also significant that Mr West made no mention of this event to Dr Percival when he was first interviewed on 15 September 1998. Despite many medical practitioners’ indicating that Mr West was an imprecise and poor historian, it appears to me that the accounts he gave to the various psychiatrists about his service in Vietnam, while using imprecise language, contained significant detail. Dr Wild in fact commented about this in his 4 February 2001 report. On that occasion, Dr Wild diagnosed PTSD on the basis that Mr West had experienced significant stress during his period of service ….There was no single event identified by Dr Wild at that time which might have contributed to Mr West experiencing intense fear, helplessness or horror.
90. Dr Walton, in his report dated 27 November 2001, said that Mr West’s account to him, which was consistent with information he had provided to other medical practitioners, was that Mr West’s subjective response to the Corporal Brunt incident fell short of intense fear, helplessness or horror. Dr Walton said that Mr West seemed to describe understandable enough apprehension surrounding the Corporal Brunt incident, but not an extreme emotional response. In July 2002 Dr Wild administered the MMPI-2 test to Mr West. That test indicated that Mr West wished to present himself as unwell as possible. The test results indicated that he was exaggerating his symptoms and that, possibly, he was malingering.
91. On the second occasion Dr Percival interviewed Mr West, on 17 May 2006, Dr Percival had become aware of the Corporal Brunt incident, which Mr West did not describe to him on the first interview some years previously. Despite Dr Percival telling Mr West that if he was to succeed in his present application, it would have to be on the grounds of new information which was relevant to the nature of his experiences in Vietnam, Mr West did not offer any further enlightenment.
92. In fact, Dr Percival noted that in the course of his discussion with Mr West, Mr West used a copy of Mr Tilbrook’s report as an aide memoir in his attempts to describe the situation to him. He said this was necessary because of his own poor memory. I have grave concerns about the veracity of Mr West’s explanation because, as Mrs West said in her evidence, Mr West discussed the Corporal Brunt incident and other experiences he had in Vietnam shortly after his return to Australia, not only with her, but with others. Dr Percival indicated that Mr West read paragraph 43 of Mr Tilbrook’s report verbatim to him. That is the account which Mr Denny gave to Mr Tilbrook. Mr Denny of course did not witness the incident.
93. In any event, Dr Percival then formed the opinion that the Corporal Brunt incident could well have ended in the injury or death of one or more of the participants. Although Dr Percival was of the opinion that Mr West’s truck driving experiences in Vietnam might have evoked a feeling of intense fear and/or helplessness, he did not say the same about the Corporal Brunt incident. However, by the time Dr Percival provided his final report dated 17 November 2008, he appeared to have changed his opinion. That opinion was based essentially on Mr Denny’s report of the incident rather than the report of any of the witnesses. Dr Percival said:
With respect to what I continue to regard as the primary diagnosis, that is post traumatic stress disorder, the events in which Mr West, Corporal Brunt, and others were involved, as described by the Veteran and by the supporting statements which are now to hand, but in particular that of the Veteran’s commanding officer of that time, there seems to be no possible grounds on which one could deny that Criterion A is met by those events.
94. In his interview with Dr Glaser, Mr West explained that following the episode with Corporal Brunt, he felt sick for days and days. Dr Glaser, accepting that Mr West was not particularly articulate and had difficulty in expressing his feelings, and consistent with his social and economic background, believed that by using the expression he did, was indicating that he felt more than modest apprehension. With respect to Dr Glaser, that appears to be speculative.
95. Furthermore, as I have already said, the effect of the events during Mr West’s Vietnam experience, and in particular the Corporal Brunt incident, seems to have grown following the VRB hearing. By the time Mr West provided his written statement to this Tribunal, he described being terrified that someone, including himself, might be shot by Corporal Brunt. That certainly was not the account he gave to various medical practitioners prior to the VRB hearing. Because of the unreliability of the evidence given about the Corporal Brunt incident after March 2001, I cannot find that the Corporal Brunt incident caused Mr West to experience intense fear, helplessness or horror.
96. There were a number of other aspects of Mr West’s evidence which are clearly contradictory. In his final report (17 November 2008) Dr Percival said that Mr West described a clear pattern of intrusive thinking with respect to the Corporal Brunt episode. Apparently, he described memories being triggered by the sight, in reality or on television, of Maoris (Corporal Brunt having been a Maori) and by the sight of any form of firearms. However, Mrs West twice described (to Dr Wild and Dr Glaser) Mr West as having guns on the farm and shooting them in the air and threatening her with a gun at some point. I cannot reconcile these actions with the Mr West’s statement to Dr Percival in November 2008.
97. Mr West also described a pattern of hypervigilance to Dr Percival in November 2008. However, as Dr Percival reported, this information was not forthcoming on either the first or the second assessment that he conducted.Dr Percival assumed that this was because Mr West found the whole issue too painful to discuss. However, the evidence of Mrs West was that Mr West discussed the incident regarding Corporal Brunt soon after his return from Vietnam and he has talked about it to others.
98. The fact that Mr West appears to have exaggerated his symptoms is supported by Dr Wild’s finding on the MMPI-2 tests. Dr Wild found that Mr West was at least exaggerating his symptoms and he may have even been malingering. It led Dr West to state he was no longer confident of his diagnosis of PTSD.
99. The exaggeration has also become evident as Mr West’s application has progressed over the years. In his interview with Dr Percival in November 2008, Mr West mentioned that intrusive memories about Vietnam were triggered by the sight, in reality or on television, of Maoris. There was no mention of that when Dr Percival first interviewed him in 1998 as he did not recount the Corporal Brunt incident to Dr Percival on that occasion. He did, however, recount that incident to Dr Walton in November 2001. However, in his description of the symptoms he was experiencing, there is no mention of Maoris.
100. Neither Dr Wild nor Dr Percival in 2006 reported that Mr West found Maori or Asian faces disturbing. This symptom seems to appear first in Dr Glaser’s report of July 2008. According to Dr Glaser, Mr West said sometimes when I hear Maoris or see a dark Maori. When Dr Glaser asked him if he had been able to have conversations with people of Maori extraction he said not for a long time. Dr Glaser then reported that Mr West acknowledged there would be no opportunity for him to do so where he lives. Nevertheless, he said when I see my army mates, I think about things like this. Dr Glaser also asked him specifically about his emotional response to Asian people. According to Dr Glaser, Mr West said:
I was a bit funny for a while but there are a hell of a lot of them around [where he lives] … I am still nervous seeing them but I know that I am here not there.
101. When Dr Glaser asked Mrs West about reminders that triggered her husband’s distress, she simply mentioned that he came across as being racist because he described all Asians as gooks. Apparently, Mr West did not consider that description inappropriate. However, that does not seem to me to be a manifestation of distress.
102. The problem that Mr West faces in this case is that in order for a diagnosis of PTSD to be properly made, he must satisfy the diagnostic criteria set out in DSM‑IV‑TR. Criterion A requires that not only must the person have witnessed or been confronted with an event that involved actual or threatened death or serious injury but also that the person’s response must involve intense fear helplessness or horror. However, despite the many interviews conducted by various psychiatrists between 1998 and 2002 Mr West did not describe such a response. Coupled with that is Dr Wild’s opinion, that the results of the MMPI-2 tests clearly indicate an exaggeration by Mr West of his symptomology. None of this gives me any confidence in the subsequent diagnosis of PTSD which can be directly associated with the Corporal Brunt incident.
103. Although Mr West may well genuinely display symptoms associated with PTSD, I find that those symptoms do not arise out of the Corporal Brunt incident. Although I have found that an incident involving Corporal Brunt occurred with somebody riding a bicycle on the roof of a hut, I am not satisfied, on the balance of probability, that the evidence establishes that any person was threatened with death or serious injury. More importantly, I cannot be satisfied on the evidence that Mr West’s response to that incident involved intense fear, helplessness or horror. For those reasons, I must find that a diagnosis of PTSD arising out of the incident involving Corporal Brunt would be incorrect.
DEPRESSIVE DISORDER AND ALCOHOL DEPENDENSE/ABUSE
104. For these two conditions to be accepted as war-caused, I must accept that Mr West suffers from PTSD arising out of the Corporal Brunt incident. Because I have found that not to be the case, it follows that, if Mr West in fact suffers depressive disorder and/or alcohol dependence/abuse, those medical conditions do not arise out of his operational service.
CONCLUSION
105. Mr West claimed that he suffered from PTSD, depressive disorder and alcohol abuse caused by his operational service in Vietnam in 1971. However, after careful evaluation of all of the evidence put before me, although I have found that an incident involving Mr Carne riding a bicycle on the roof of a hut in Vung Tau probably occurred, I am unable to find that this incident satisfies Criterion A(i) of DSM-IV-TR. Nor am I satisfied that Mr West’s reaction to that incident satisfies Criterion A(ii).
106. Because I have found beyond reasonable doubt that the Corporal Brunt incident as described by Mr West did not occur, as Gray J said in Mines’ case, no purpose is served by proceeding through the reasonable hypothesis process of reasoning because, at the fourth step where I am required to make material findings of fact, I would merely be repeating my findings made when addressing the diagnosis of PTSD.
107. As Mr West’s claims regarding depression and alcohol abuse depend on me finding that his PTSD was war-caused, those claims also cannot succeed.
108. I find that the decision made by the VRB on 27 November 2007 rejecting Mr West’s claim for the disability pension on the grounds of PTSD, depression and alcohol abuse was correct and I affirm that decision.
I certify that the one hundred and eight [108] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
[sgd]: Olympia Sarrinikolaou
Clerk
Dates of Hearing 8-9 September 2009
Date of Decision 4 December 2009
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Peter J Liefman
Counsel for the Respondent Mr K. Rudge
Solicitor for the Respondent Department of Veterans’ Affairs
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