Elton and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 479
•6 July 2016
Elton and Repatriation Commission (Veterans’ entitlements) [2016] AATA 479 (6 July 2016)
Division
VETERAN'S APPEALS DIVISION
File Number
2015/2851
Re
Peter Elton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 6 July 2016 Place Melbourne The Tribunal affirms the decision under review.
..................................[sgd]......................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – disability pension – claim for post-traumatic stress disorder, major depressive disorder, lumbar spondylosis and spondylolisthesis as being war-caused – operational service of 35 days in Vietnamese waters over two periods in 1969 and 1970 – in receipt of disability pension for various physical conditions – alcohol dependency and cannabis dependency both in remission – absence of any corroborating evidence regarding stressors – credit of the applicant – unreliability of evidence and conflict of evidence – satisfied beyond reasonable doubt – decision affirmed.
Legislation
Veterans’ Entitlements Act 1986
Cases
Re Elton and Australian Trade Commission [2013] AATA 133
Re Elton and Repatriation Commission [2014] AATA 475
Repatriation Commission v Deledio (1998) 83 FCR 82
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Meehan v Repatriation Commission [2003] FCA 1371
Forrester v Repatriation Commission [2013] FCA 898
Re Cooke and Repatriation Commission (1998) 50 ALD 907
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Gosewinkel (1999) 59 ALD 690
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Hill (2002) 69 ALD 581
East v Repatriation Commission (1987) 16 FCR 517Secondary Materials
Statement of Principles Instrument No 82 of 2014 Posttraumatic stress disorder
Statement of Principles Instrument No 5 of 2008 Posttraumatic stress disorder as amended by Instrument No 19 of 2014 Posttraumatic stress disorder
Statement of Principles Instrument No 102 of 2014 Anxiety disorder
Statement of Principles Instrument No 101 of 2007 Anxiety disorder
Statement of Principles Instrument 83 of 2015 Depressive disorder
Statement of Principles Instrument No 27 of 2008 Depressive disorder as amended by Instrument No 40 of 2010 Depressive disorder
Statement of Principles Instrument No 62 of 2014 Lumbar spondylosis
Statement of Principles Instrument No 37 of 2005 Lumbar spondylosis as amended by Instrument No 69 of 2013 Lumbar spondylosis
Statement of Principles Instrument No 59 of 2015 Spondylolisthesis and spondylolysis
Statement of Principles Instrument No 5 of 2006 Spondylolisthesis and spondylolysis as amended by Instrument No 44 of 2010 Spondylolisthesis and spondylolysis
REASONS FOR DECISION
Miss E A Shanahan, Member
6 July 2016
Mr Elton lodged an application for an increase in pension and claim for acceptance of conditions in accordance with s 9 of the Veterans’ Entitlement Act 1986 (the Act) with the Repatriation Commission (the Commission) on 14 August 2012. This claim related to his diagnosis of post-traumatic stress disorder (PTSD), a major depressive disorder (MDD) and lumbar spondylosis. The initial claim also made reference to a number of other conditions, which are not relevant for the purpose of this decision.
On 10 October 2013, a delegate of the Repatriation Commission determined that Mr Elton’s PTSD, MDD and lumbar spondylosis were not war caused, and as such the veteran’s disability pension remained at 100 per cent of the general rate. On 29 October 2013, Mr Elton made an application to the Veteran’s Review Board (VRB) in relation to the conditions. On 5 May 2015, the Veteran’s Review Board (VRB) affirmed the decision of the Repatriation Commission. The VRB also expanded the diagnosis of lumbar spondylosis to include spondylolisthesis at the L5/S1 level, but affirmed the decision that the spondylosis was not war-caused.
The diagnoses of PTSD, MDD and lumbar spondylosis had been confirmed shortly after a separate Veterans’ Review Board (VRB) decision of 25 September 2012. In this claim, the VRB had considered another claim made on 9 January 2012 for medical treatment and pension for incapacity resulting from war-cause marijuana abuse and alcohol dependence, both of which were in remission.
Mr Elton lodged an application for review of the decision relating to PTSD, MDD and lumbar spondylosis by the Administrative Appeals Tribunal (AAT), received on 16 June 2015.
Mr Elton was represented by Ms Fiona Ryan of counsel, instructed by Williams Winter Solicitors. The Commission was represented by Mr Gerald Purcell, formerly of counsel, instructed by Department of Veterans’ Affairs (the DVA). Both parties tendered numerous documents, a list of which is appended to this decision. Mr Elton, Associate Professor Bruce Love, Dr Paul Collier and Dr Albert Kaplan gave oral evidence before the Tribunal.
A question of apprehension of bias was raised by Mr Purcell at completion of the evidence, and has been the subject of an interlocutory application and subsequent decision declining the application (Re Elton and Repatriation Commission [2016] AATA 260).
Mr Elton has the accepted war-caused conditions of:
·chronic obstructive airways disease;
·cannabis use disorder;
·alcohol use disorder;
·erectile dysfunction;
·ischaemic heart disease;
·diabetes mellitus; and
·fatty liver.
There are several other less severe conditions such as tinea, tinnitus and onychomycosis of the toenails which have been accepted. Mr Elton also has post-desquamative interstitial pneumonia causing fibrosis, which was accepted as war-caused in 2010, despite there being no residual evidence of this in 2012.
Mr Elton receives the disability pension at 100 per cent of the general rate and has a lifestyle rating of 4.
BACKGROUND TO THE APPLICATION
Mr Elton enlisted as a recruit in the Royal Australian Navy (the Navy) on 7 July 1968. He was then 15 years and 9 months old. At that time, he was repeating Form 4 (Year 10) at Blackburn South High School, having failed Year 10 in six of eight subjects the previous year.
On his three entry tests for the Navy, Mr Elton scored one ‘A’ grade and two ‘C’ grades. Both Mr Elton and his father were anxious for him to attend officer training school, but he was assessed by the naval psychologist as not meeting the required standard. Despite this, he finished his general 11 month training course on HMAS Leeuwin first in a class of 32 and was then assigned to training as an electrical mechanic. In the final examination for that specialty he was placed third in a class of seven.
Mr Elton was discharged from the Navy for the given reason of services no longer required on 13 January 1972, having on 8 December 1971 pleaded guilty to possessing cannabis on board HMAS Sydney. The naval psychologist had on 27 September 1971 reported that Mr Elton had an exaggerated idea of his own capabilities and noted that they could not help feeling that we may someday see [Mr Elton] as a discharge case.
Mr Elton’s service, most of which was in training, was from 7 July 1968 to 21 January 1972. During this period he served on the Sydney from 27 October 1969 to 15 July 1970. For 35 days in this period he was involved in the Sydney’s troop carrying services between Australia and Vung Tau Harbour in Vietnam. There were two such trips, the first between 17 November and 5 December 1969 and the second from 16 February to 5 March 1970. He therefore had operational service for the period 17 November 1969 and 5 March 1970.
Mr Elton has described several incidents resulting in stressful experiences. The first of these was encountered during his training period on Leeuwin where he says bastardisation and physical and verbal attacks on junior recruits was the order of the day. He does not however, claim he suffered in any way during his period on Leeuwin. Mr Elton has described three incidents during his trips to Vietnam, which he claims meet the definition of a Category 1A Stressor in the relevant psychiatric Statements of Principles (SoPs) and resulted in his claimed psychological injuries.
In the first of these incidents Mr Elton claims that in his haste to escape from below deck, having perceived that a catastrophic event had occurred on the Sydney, he fell and injured his back. This it was claimed had led to 45 years of chronic back pain.
The three incidents are described as follows:
Incident One: While sailing through a typhoon in the approach to Vung Tau Harbour during his first trip, Mr Elton was positioned below the waterline in the bow of the vessel when the Sydney shuddered and lurched. There followed an uncanny silence, which led Mr Elton to believe that the bow of the Sydney had broken off from the hull and that he was in the sinking part of the ship. He states he climbed the stairs from below deck to the flight deck as quickly as he could and was reassured to find the ship was perfectly intact.
Incident Two: The second incident is said to have occurred on the same trip and in the same storm or, as described by Mr Elton, typhoon. He and another naval rating were on the flight deck for reasons he cannot recall and the Sydney was said to be lurching from side to side as well as pitching up and down in rough seas.
Mr Elton says that he and his colleague were clinging to the rails around the forward lift and, in a lull in the storm, decided to run to the tower which was in a direct diagonal line across the flight deck. However, the pitching of the Sydney was such that their straight line between the forward lift and the tower became a wide arc. According to Mr Elton, they were in danger of going overboard, despite there being a fence around the perimeter of the deck. Mr Elton expressed surprise that no one came to help them given they were in full view of the tower at all times. He could not recall the name of the colleague with whom he experienced the incident.
Incident Three: The third incident was described as occurring on both tours to Vietnam and concerned predominately the detonation of grenades or scare charges around the ship when in port, bombing runs, gunboats in the harbour, helicopters in the air and being surrounded by people carrying guns. While Mr Elton had told several medical practitioners he had stayed in Vung Tau Harbour for approximately two days on each occasion, the records reveal that the first visit was for just over six hours and the second was for four hours and forty-two minutes.
In some communications with the Commission and psychiatrists Mr Elton also claimed to have been exposed to stressful events when serving for a short period in Hawaii. He has not, however, pursued these stressors in this particular claim.
Mr Elton states he commenced smoking cigarettes and drinking beer to excess on his first trip to Vietnam. He further claims that on the return trip from Vietnam in 1969 he was introduced to cannabis by a returning soldier. He subsequently smoked cannabis almost daily while still in the Navy and he believes became addicted. He continued to use cannabis until about 2000 and claims to have spent almost thirty years being continually stoned.
Mr Elton first sought psychiatric treatment and management for his claimed psychiatric disorders in November 2010 when he was referred to Dr Velakoulis. At that time, a diagnosis of marijuana abuse in full remission and alcohol dependence was made. Dr Velakoulis was of the opinion that Mr Elton failed to reach the threshold criteria to sustain a diagnosis of PSTD and, while there was a history of depressive symptoms, these were insufficient to attract a diagnosis of a MDD.
Mr Elton subsequently attended the Vietnam Veterans’ Counselling Service and on their recommendation consulted Dr Paul Collier, who in July 2012 made a diagnosis of PTSD. Dr Collier considered the events of Incident Two to meet the definition of a Category 1A Stressor. At a similar time Dr Moffitt, Mr Elton’s general practitioner, made a diagnosis of lumbar spondylosis and spondylolisthesis.
Following Mr Elton’s discharge from the Navy he returned to civilian life and employment. Mr Elton worked first as a sales consultant. From 1983 he established himself as a real estate agent and continued in this employment until 2006. In 2006, he established his export business known as Corp di Oro Pty Ltd. Mr Elton managed this business from its inception until 5 May 2012, although his wife became the secretary in the company at an earlier date. He was also involved with and employed by Kangaroo Indochine Trading Services Company Limited, which was registered in Vietnam and acted as a wholesale outlet for the wines exported from Australia. In the years 2010 and 2011 Mr Elton spent 559 days in Vietnam compared with 131 days in Australia (Re Elton and Australian Trade Commission [2013] AATA 133).
On 2 May 2012, Mr Elton presented to the cardiology unit of a major hospital in Ho Chi Minh City with chest pain. He was found to have sustained a small myocardial infarct. He underwent further investigation which revealed severe disease in his right coronary artery. Two stents were inserted percutaneously. The left coronary artery circulation was also diseased but stenting was not performed.
On his return to Australia later in 2012, Mr Elton sought further cardiological investigation and treatment and underwent stenting of both his left anterior descending and circumflex coronary arteries. Given the length of the stenoses a total of six small stents had to be inserted into these two vessels. Mr Elton’s coronary artery disease was subsequently accepted as being war-caused.
In July 2014 this Tribunal determined that Mr Elton’s alcohol use disorder and cannabis use disorder, both now in remission, were war-caused with effect from 28 November 2010 (Re Elton and Repatriation Commission [2014] AATA 475).
Mr Elton now spends nine months of the year in Australia, having purchased a property at Clifton Springs. He agreed, in response to a question from the Tribunal, that he is a yachtsman and a qualified mariner familiar with sailing conditions in Port Phillip Bay. Mr Elton has full knowledge of the Beaufort scale, which defines wind strengths in terms of both kilometres and knots per hour with a description of the appearance of the sea in these conditions.
In the decision dated 5 May 2015, the VRB determined that the weight of the psychiatric evidence was that Mr Elton does not suffer from PTSD. The VRB further determined that while Mr Elton may have a depressive disorder, its onset was not until 2012 or 2013 and therefore did not meet the requirement of the relevant SoPs that the clinical onset of the disorder be within five years of experiencing a Category 1A Stressor. In relation to the lumbar back pain diagnosed as lumbar spondylosis with spondylolisthesis, Mr Elton did not meet any of the SoP factors causally linking the condition to service. In particular, there was no record whatsoever of a discrete injury to Mr Elton’s spine meeting the definition of trauma to the lumbar spine provided in factor 6(h) of the relevant SoP.
EVIDENCE BEFORE THE TRIBUNAL
Mr Peter Elton
Mr Elton’s evidence has been summarised under background to the application. It is also referred to in the Interlocutory Decision regarding apprehension of bias. It must be noted that Mr Elton’s replies to questions, particularly those from Mr Purcell, were frequently nonresponsive and often he answered a question by posing another question himself. He had to be cautioned by his counsel Ms Ryan for interjecting during submissions and evidence of other individuals.
Where, as was quite frequent, his evidence before this Tribunal was contrary to that given to various medical practitioners who have provided opinions, Mr Elton attributed this to a typographical error on the part of the doctor or a failure of the doctor to note accurately the history that he had given. He insisted that he had told every medical practitioner exactly the same history of his experiences in the Navy, his visits to Vietnam and his health thereafter. The Tribunal noted that similar reactions to questioning occurred at the VRB hearing and in the hearing of previous proceedings before the Administrative Appeals Tribunal (Re Elton and Australian Trade Commission [2013] AATA 133), where Mr Elton had accepted that some data in his claim for an export market development grant was incorrect but maintained this was not his doing, but that of his agent who had assisted in completing the claim form.
Mr Elton was somewhat derisive of Dr Velakoulis’ report and in particular Dr Velakoulis’ reference to him grieving over his brother’s death. Mr Elton said that although his brother had been seriously ill, he had survived his life threatening illness. Similarly, Mr Elton was also extremely critical of Dr Strauss’s opinion and the events of the actual consultation, wherein he said Dr Strauss was extremely rude to him, did not listen to the history he gave and was in general extremely aggressive. No complaints were aired regarding Doctors Collier and Kaplan, both of whom supported Mr Elton’s diagnosis of PTSD as being war-caused.
Associate Professor Bruce Love, orthopaedic surgeon
On 29 September 2015, Associate Professor Love examined Mr Elton in person. Associate Professor Love obtained the history of Mr Elton falling from a ladder during Incident One and experiencing back pain for two days after the fall. Mr Elton did not report it or attend sick bay. Mr Elton told Associate Professor Love that the acute pain had settled quickly but that he has had back pain of variable intensity ever since that episode and as time has gone by and he aged his symptoms have worsened.
At the time of examination, Mr Elton described chronic low back pain radiating into the left buttock and the back of the left thigh as far as the knee. On physical examination Associate Professor Love noted mild tenderness of the lumbar spine and some limitation of extension and lateral flexion. The plain x-rays of Mr Elton’s lumbar spine taken in 2004 were said to show a crush injury of the 12th thoracic vertebrae and spondylolisthesis at the L5/S1 level. Further imaging in the form of CT scans from July 2012 and September 2015 revealed osteophyte formation with loss of disc height at L5/S1 and spondylolisthesis at L5/S1 level. These changes were subsequently confirmed by MRI.
Associate Professor Love opined that Mr Elton’s spondylolisthesis is at the severe end of the spectrum of lumbar spondylolisthesis and, in his opinion, if Mr Elton had not had the fall in November 1969 his spinal condition would be less severe than it is now. Having perused the SoPs, Associate Professor Love concluded that Mr Elton’s condition fitted the relevant SoP and provided an impairment rating, presumably based on the American Medical Association (AMA) criteria, of 30 percent. Associate Professor Love’s second report of October 2015 related to a query regarding the addressing of the SoPs.
Associate Professor Love’s evidence before the Tribunal was very similar to that of his written report. He agreed that he had not addressed the factors required by the SoP to causally link lumbar spondylolisthesis to the clamed fall in 1969. Associate Professor Love found the SoP intimidating and had not enquired as to whether Mr Elton had any signs of tenderness or difficulty walking at the time of the injury.
The Tribunal asked Associate Professor Love whether he was of the school of orthopaedic opinion that thought a pars defect in the lumbar vertebral laminae was congenital or always the result of trauma, there being divided orthopaedic opinions in this respect. This is relevant in that Mr Elton has a pars defect at L5, which allows that vertebra to move anteriorly on S1 (spondylolisthesis). Associate Professor Love was of the strongly of the opinion that a pars defect can be congenital and is not always related to trauma. In other words, in his opinion it is possible that Mr Elton has always had this particular defect.
Dr Paul Collier, psychiatrist
Dr Collier had provided a report dated 9 November 2012 to the DVA. He had first seen Mr Elton on 12 July 2012 and had in total seen him on five occasions, the most recent being 7 November 2012. It would appear that the referral was arranged by a Returned Services League (RSL) Pension’s Officer and possibly on the recommendation of the Vietnam Veterans’ Counselling Service. Dr Collier had also received a letter from Mr Elton’s general practitioner, Dr Robert Moffitt, dated 21 May 2012.
Dr Collier is now a psychiatrist in private practice, but had a long attachment to the Veterans’ Psychiatry Outpatient Clinic at the Austin & Repatriation Medical Centre. Dr Collier obtained the history relating to Mr Elton’s experiences on Leeuwin where there was enormous bastardisation, which created concern for Mr Elton regarding his physical safety.
Mr Elton described the three traumatic incidents, the first two of which he said occurred in a typhoon. Mr Elton told Dr Collier that on both occasions thought he was going to die. Dr Collier also obtained details of Mr Elton’s discharge from the Navy, in which Mr Elton described an event where he was threatened with murder while in the brig on the HMAS Melbourne, where he was held after he had been caught in possession of marijuana.
Dr Collier was of the opinion that some of the above experiences would meet the definition of a Category 1A Stressor as required to satisfy the relevant SoP for PTSD. Dr Collier administered a Davidson Structured Interview for PTSD, which appears to be a series of questions relating to all of the symptoms which may be encountered in PTSD. From the answers provided it would appear that Mr Elton experienced all of these symptoms:
·intrusive recollections, at least weekly;
·severe dreams, sometimes as often as four times per week;
·distress on exposure to reminders, particularly DVA correspondence;
·tensing up and sweating in response to triggers;
·avoidance of thoughts and feelings;
·avoidance of ANZAC Day, RSL clubs, relevant television programs and movies;
·amnesia for experiences;
·loss of interest in activities and hobbies;
·detachment from others, restricted affect;
·pessimism as to his future;
·difficulty sleeping;
·irritability;
·memory and concentration impairment;
·hypervigilance; and
·heightened startle response at least once a week.
Based on the results of this questionnaire Dr Collier made a diagnosis of PTSD, in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR). Dr Collier also considered that Mr Elton’s symptoms would meet the diagnostic criteria of a depressive disorder.
Dr Collier obtained a history in relation to Mr Elton’s marijuana abuse and alcohol dependence. Mr Elton had been a heavy cigarette and cigarillo smoker from 1969 until early 2010. Mr Elton’s other physical and medical conditions were recorded. Dr Collier noted Mr Elton’s educational and occupational history, which has already been referred to, that he had lectured in real estate at the Royal Melbourne Institute of Technology and Swinburne University of Technology and that he had been a successful radio broadcaster in addition to his real estate activities.
Dr Collier dated the onset of Mr Elton’s PTSD as being shortly after his first trip to Vietnam in 1969 and was of the opinion that his depressive disorder would have commenced at the same time. The alcohol dependence and marijuana abuse were also said to have commenced in 1969.
Dr Collier administered a Guide to the Assessment of Rates of Veterans' Pensions (GARP V) assessment and estimated a score of 33 impairment points, 70 per cent of which were attributable to PTSD and 30 per cent to a MDD.
Dr Collier recommended treatment with an antidepressant that Mr Elton refused, psychotherapy with a psychologist and group PTSD therapy at the Heidelberg Repatriation Hospital. Dr Collier found Mr Elton unable to work more than eight hours per week, partly due to his psychiatric condition but also due to his recent myocardial infarct and coronary artery stenting.
Dr Collier’s evidence before the Tribunal was entirely consistent with his report. He had since commenced Mr Elton on the antidepressant Loxalate. He confirmed his opinion that Incident Two was a Category 1A Stressor, in that it was a life threatening event.
In cross-examination, Dr Collier agreed that the entire diagnosis for PTSD depended on whether or not psychiatrists accepted the version of events as described by the individual patient. It also became clear in cross-examination that Dr Collier had not obtained the history of Mr Elton falling down the stairs and injuring his back during Incident One.
Mr Purcell put the proposition to Dr Collier that the descriptions of the Incidents One and Two as occurring during a typhoon were incorrect based on the wind levels reported in the ships log. Dr Collier replied that he had made his diagnosis based on the history given by Mr Elton and did not deny that a knowledge of the actual facts surrounding the episode would assist in assessing the degree of risk to exposure to a claimed life-threatening event. Dr Collier said that it remained a psychiatrist’s role to gauge the person’s actual response to the event. In terms of assessing the subjective response of an individual to a stressful situation, Dr Collier ventured to say that an individual might not be thinking straight in such a situation given their state of fear and anxiety.
On re-examination by Ms Ryan, Dr Collier said that he felt Mr Elton’s responses to questions were genuine and that Mr Elton appeared to have believed that Incident Two was a life threatening event, in that Mr Elton was fearful that he would be swept over the side of the Sydney. Dr Collier said he believed Incident One also met the criteria, given Mr Elton’s age and inexperience serving on a large aircraft carrier.
Dr Albert Kaplan, psychiatrist
Dr Kaplan examined Mr Elton on 14 August 2013 at the request of Mr Elton’s legal representatives. In his report of 16 August 2013, Dr Kaplan referred to the three incidents previously documented. On this occasion, Mr Elton described the conditions in Incidents One and Two to Dr Kaplan as being in a storm rather than a typhoon. The report also recorded that Mr Elton had suffered a fall in 1969, but did not include any details of when or where this occurred. Mr Elton said he had experienced back pain since falling and injuring himself while traveling to Vietnam. The psychological symptoms described were of continuous anxiety, poor concentration, insomnia, sweats and vivid nightmares, however Mr Elton could not recall the content of these nightmares.
Dr Kaplan obtained the history that the nightmares had ceased at least 10 years ago, had recurred following Mr Elton’s application for a pension but again ceased after Mr Elton suffered his myocardial infarct in 2012. Mr Elton claimed he has been suicidal on many occasions and described himself as a compulsive eater. It was noted that Mr Elton had ceased attending the Vietnam Veterans’ Counselling Service in 2012. Mr Elton’s history regarding alcohol abuse, cannabis abuse and cigarette smoking of up to 60 cigarillos per day was as previously reported. Dr Kaplan noted that Mr Elton was taking the antidepressant Loxalate.
Dr Kaplan made a diagnosis of PTSD with a differential diagnosis of a Generalised Anxiety Disorder (GAD) associated with Depression.
Dr Kaplan identified the most severe stressor, which he thought met the requirements of a Category 1A Stressor, as being Incident Two. He was of the opinion that being sent to boarding school at the age of seven would or could have an effect in terms of the development of a subsequent psychiatric disorder, but did not stress this point. Dr Kaplan did not receive or record a history of any fall occurring during Incident One.
The Naval psychologist had recorded in 1971 that Mr Elton said he smoked cannabis when he felt depressed. This apparently indicated to Dr Kaplan that the onset of his depression was in that year, although this statement is attributed to Mr Elton and not to the psychologist.
DOCUMENTARY EVIDENCE
Dr Robert Moffitt, general practitioner
Dr Moffitt’s clinical notes regarding Mr Elton were provided. Dr Moffitt has been Mr Elton’s treating general practitioner since 2 August 2010. In his initial visit of 2 August 2010, Mr Elton said the purpose of his visit was that he wished to apply for a DVA pension. He nominated conditions of asbestosis, excessive alcohol use and nightmares. He informed Dr Moffitt he had visited Vietnam twice while serving in the Navy and was now conducting a wine exporting business to Vietnam. Mr Elton’s Body Mass Index (BMI) was recorded as being 32.8 but no other history was obtained. Dr Moffitt referred Mr Elton to an RSL Advocate in Noble Park. A chest x-ray, a CT scan and a numerous biochemical and haematological investigations were ordered.
Mr Elton attended intermittently as he was frequently overseas for period of three to four months. On 18 August 2010 Dr Moffitt completed a DVA form nominating the conditions of chronic obstructive airways disease, bronchiectasis and tinea. He also referred Mr Elton to the psychiatrist Dr Velakoulis. This appointment was delayed as Mr Elton was to be overseas in Vietnam for the following three months.
Investigations revealed that Mr Elton had elevated blood sugar and cholesterol levels. On his return to Australia, Mr Elton was referred to an endocrinologist regarding his diabetes mellitus. In March 2012 a further claim for fungal infection of his toenails was made. Dr Moffitt’s notes record Mr Elton’s small myocardial infarct in May 2012 and subsequent stenting discussed above.
Mr Elton did eventually see Dr Velakoulis in November 2010, who provided a report to both Dr Moffitt and the DVA on 11 December 2011. Dr Velakoulis made a diagnosis of alcohol dependence and marijuana abuse, both of which were in remission. He found that Mr Elton did not reach the threshold criteria for a diagnosis of PTSD and, as there was no evidence of significant depressive symptoms, a diagnosis of MDD was not supported.
On 21 May 2012, Mr Elton requested that Dr Moffitt provide him with a letter of referral to Dr Collier. At the same visit, Mr Elton asked that the DVA be advised in the claim form of his erectile dysfunction, hearing loss and tinnitus. On 18 July 2012, Dr Moffitt completed a Carer Payment and/or Carer Allowance Medical Report form for Mr Elton’s partner/wife Naruwee Bamrung. This Carer certification was again provided in April 2013.
During 2013, Mr Elton attended only occasionally. He was referred to an endocrinologist as his diabetes was poorly controlled. He was earlier also referred to a respiratory physician, Dr Niall Cain. There are no entries in the medical record between 28 May 2014 and 8 July 2014.
On 5 November 2014, Mr Elton complained of pain in his right knee. Subsequent plain x-rays and an MRI showed only very mild degenerative changes, consistent with early osteoarthritis.
Dr Cain’s investigation of Mr Elton’s lung function in 2010 showed mild obstructive pulmonary disease with a lowered diffusing capacity, which he attributed to a now resolving infection that Mr Elton had recently suffered while in in Vietnam.
In 2015, Mr Elton’s appointments were for repeat prescriptions and in relation to the right knee investigations.
On 4 July 2012 Mr Elton complained to Dr Moffitt of pain in his right groin, having two months before undergone a coronary artery angiogram via a femoral artery puncture. At that time he also complained of back pain for the first time. Radiological investigation of Mr Elton’s back revealed spondylolisthesis at L5/S1. There was noted to be what was termed a chronic pars defect.
Dr Arthur Velakoulis, psychiatrist
Dr Velakoulis saw Mr Elton on referral from Dr Moffitt, amongst others, in October 2010. As previously mentioned Dr Velakoulis made a diagnosis of alcohol and marijuana use both in remission and found that Mr Elton did not meet the diagnostic criteria for PTSD. Dr Velakoulis’ clinical notes were also provided to the Tribunal, but unfortunately they are difficult to read. Dr Velakoulis provided two reports, the first to Dr Moffitt on 21 April 2011 and the second to Dr Moffitt and the DVA following a request from the DVA on 11 December 2011.
Dr Velakoulis obtained a history relating to Incidents One and Two but no history of a fall during Incident One. Mr Elton had advised Dr Velakoulis that he had spent two nights in Vung Tau Harbour and had memories of gunboats, helicopters, armed personnel and grenades being hurled over the ships railing hourly, helicopter gunships landing, soldiers boarding on and off craft and jetfighter runs and bombing in the distance. Mr Elton described Incidents One and Two as occurring during a typhoon. According to the history given by Mr Elton, he felt he was at breaking point after two days in the harbour. The second trip to Vietnam was described as being through calm waters with good weather, but with the scenario in Vung Tau harbour the same as on the first trip.
Mr Elton described having visual and emotional dreams associated with mild distress but told Dr Velakoulis that these dreams had resolved in the 1990s. Mr Elton said he had been a heavy user of marijuana for many years, having commenced in 1969 on his return trip from Vietnam, having ceased in 1998.
Mr Elton claimed that his alcohol consumption commenced in 1969 when he accessed one bottle of beer per day while on board the HMAS Sydney. He said that this was handed out to him despite the regulations prohibiting alcohol provision to personnel under the age of 18. When seen in 2010, Mr Elton admitted to drinking two bottles of wine per day with three to four glasses of spirits. Dr Velakoulis’ estimated this to be 18 to 20 standard drinks per day. Dr Velakoulis considered other stressors in Mr Elton’s life to be his marriage breakdown and his grief at the death of his brother. The latter seems to be a mistake as, though Mr Elton’s brother was seriously ill, he survived.
Despite the alcohol dependence and extreme alcohol intake, Dr Velakoulis considered that Mr Elton had been quite capable of discharging his duties as a businessman and exporter of wine and was clearly capable of working for more than 40 hours per week.
In his report dated 21 April 2011, Dr Velakoulis made a diagnosis of alcohol dependence with a cluster of symptoms possibly consistent with past PTSD which had improved since 2004 - 2005. It was recommended that Mr Elton take the vitamin thiamine and consider alcohol reduction strategies, despite Mr Elton not being motivated to change his behaviour. Further treatment was complicated by the fact that Mr Elton lived in Vietnam and only stayed in Melbourne for short periods.
Mr Elton communicated with Dr Velakoulis presumably by mail or e-mail, updating his progress while he was residing overseas. In his second report, Dr Velakoulis confirmed his earlier diagnosis, made similar recommendations in relation to medical treatment and expressed similar concerns about the practicality of treatment while Mr Elton lived in Vietnam.
Dr Velakoulis had submitted Mr Elton to various questionnaires regarding his psychiatric state as part of an Outpatient Questionnaire on 28 July 2011. Mr Elton at this time denied any re-experiencing of any past happenings or of having physical reactions in the form of sweating or tachycardia when reminded of a stressful experience and having no feeling of truncated future potential. He did, however, admit to two disturbing events, avoidance of thinking and talking about past stressful experiences, loss of interest in activities previously enjoyed and feeling emotionally numb. He indicated he had trouble falling and staying asleep, admitted to being irritable and angry, having difficulty concentrating and being easily startled. He completed the questionnaire regarding his dimensions of anger reactions in which his responses were at the higher end of the spectrum.
Navy psychologist’s report
This has been referred to above under background to the application.
Dr Nigel Strauss, psychiatrist
Dr Strauss provided two reports, the first of which is dated 13 June 2013, he having seen Mr Elton at the request of the DVA on 6 June 2013. His second report of 17 September 2013 is essentially a commentary on Dr Kaplan’s report of 16 August 2013.
Dr Strauss’ clinical history, as obtained from Mr Elton, is the most detailed and complete of all reporting psychiatrists. Dr Strauss has detailed Mr Elton’s family history, his schooling experiences, his occupational history, his service history and has recorded the three incidents previously reported. Dr Strauss’ records include the fall said to have occurred in Incident One, when Mr Elton in a panic fell from the gang plank as he attempted to escape the below deck level, as he thought the front of the ship had broken off from the hull and the latter was sinking. Mr Elton’s cigarette and cigarillo usage, his high alcohol intake and his marijuana abuse were detailed, as was his residence predominately in Vietnam and to a lesser extent Thailand between 2009 and 2012.
When directly questioned by Dr Strauss, Mr Elton denied significant depression. Dr Strauss recorded that Mr Elton had never seen a psychologist or a psychiatrist until he attended Dr Velakoulis in late 2010 when he was seeking a DVA pension. Mr Elton had seen other psychiatrists and, for a short time, a psychologist since attending Dr Velakoulis but has never received any psychotropic medication. Mr Elton denied nightmares or flashbacks when directly questioned by Dr Strauss. He did admit to some lack of concentration and deterioration in his memory. Mr Elton said he had ceased smoking in 2011 and shortly thereafter had reduced his alcohol intake because of the finding of fatty liver changes.
In Dr Strauss’s opinion, the incidents described by Mr Elton did not meet the requirements of a Category 1A or 1B Stressor. He agreed that Mr Elton suffered from alcohol dependence in remission but concluded that his drinking was not war-caused but instead related to peer pressure and the availability of alcohol. At the time he was seen, Mr Elton had not smoked marijuana for nearly 10 years or more and therefore did not suffer from marijuana dependence or abuse.
Dr Strauss concluded that Mr Elton did not have a significant psychiatric disorder and was capable, from a psychiatric viewpoint, of normal employment subject to any physical restrictions that might be appropriate.
In the second report of 17 September 2013, Dr Strauss reiterated his opinion and as requested commented on the report of Dr Albert Kaplan provided on 16 August 2013. Dr Kaplan had seen Mr Elton on 14 August 2013, two months after he had attended Dr Strauss. Dr Strauss noted that Dr Kaplan had concluded that Mr Elton suffered from PTSD, he having reached this diagnosis based on symptoms Mr Elton had described which included intrusive thoughts, avoidance symptoms, increased arousal, recurring nightmares, although these had ceased some years earlier.
Mr Elton had also told Dr Kaplan he was depressed and anxious, slept poorly, over-ate and had difficulties with memory and concentration. This was in contrast to the history obtained by Dr Strauss. In particular, Mr Elton had denied that he currently had dreams and flashbacks to his time in Vietnam, claiming that these had ceased many years ago. Based on the history he had obtained, Dr Strauss disagreed with Dr Kaplan’s conclusions.
Dr Strauss had previously seen the report of Dr Collier written in November 2012, Dr Collier having also made a diagnosis of PTSD, a MDD, substance abuse and erectile dysfunction arising from his operational service. Dr Collier’s report had contained information regarding Mr Elton’s training experiences on Leeuwin and Dr Collier had concluded that Mr Elton’s experience on Leeuwin had contributed to his current psychiatric problems. Dr Strauss maintained his view that, although it was clear that Mr Elton may have had some difficult times while in the navy, he was not of the opinion that Mr Elton suffered from a psychiatric condition or psychiatric treatment. Dr Strauss also noted that in the recent appointment with Dr Kaplan, Mr Elton had not mentioned his experiences on Leeuwin.
Logs of the HMAS Sydney
The Tribunal has been provided with the detailed Logs of the Sydney’s two trips to Vietnam in November 1969 and March 1970. These contained detailed statistics and measurements relating to the weather throughout the trips. An examination of these Logs for the relevant days from 25 November to 29 November, and in particular 27 November 1969, was undertaken in conjunction with the Beaufort Scale provided by Mr Purcell. November 27 had been considered the most likely day that Incident One, and potentially Incident Two, occurred.
The highest recorded wind force in that period was Force 6 on 27 November at 2300 hours. According to the Beaufort Scale, this corresponds to strong winds blowing at 40 to 50 kilometres per hour or 22 to 27 knots which is associated with the commencement of large wave formation with white foam crests. In contrast, a hurricane or typhoon has a Beaufort Scale force rating of 12+, with a wind force of 118 kilometres per hour or more, producing exceptionally high waves, wave crests blown into froth and the air being filled with foam and spray, the sea completely white with visibility seriously affected.
The Sydney anchored in Vung Tau Harbour at 0600 hours and left Vung Tau Harbour after six hours and twenty minutes at 1220 hours. During this time soldiers disembarked, cargo was unloaded and the ship embarked returning soldiers and other cargo. At 1500 hours, having left the harbour, the Sydney experienced wind Force 7 which had fallen to Force 6 by 1700 hours. Force 7 is described in the Beaufort Scale as a near gale with winds of 51 to 62 kilometres per hour with sea heaping up and white foam and breaking waves blown in streaks along the direction of the wind.
Similar Logs were provided for the second visit to Vietnam. The second trip seems to have taken place in much clearer and calmer weather with low swells and wind forces in the range of 2 to 4 throughout the journey.
Business and Certificate of Marriage data provided for application 2012/4535
These reports form part of the T-documents of AAT proceeding 2012/4535 (Re Elton and Repatriation Commission [2014] AATA 475), to which the Tribunal was directed by Ms Ryan. An Order had been made by the Tribunal making available the existing documentation and summons material from that proceeding for the current proceeding.
According to the Certificate of Marriage, Mr Elton married Naruwee Bamrung at the Registry of Civil Marriages in Melbourne on 12 August 2009. Ms Bamrung’s address was 111/27 Village 9, Ban Wan Sub District, Hang Dong District, Chang Mai, Thailand and Mr Elton’s was in Ho Chi Minh City, Vietnam.
The Australian Security and Investment Commission (ASIC) have provided an extract of the current and historical company extract relating to Corp di Oro Pty Ltd generated on 5 July 2013. The company was first registered in that name in May 1999. It had previously existed as Kastelton Corporation Pty Ltd. As of 15 November 2012, Naruwee Bamrung was listed as a director and secretary of Corp di Oro Pty Ltd, Peter Robert Elton having ceased appointment as both director and secretary on 15 November 2012. In the separate proceeding of Re Elton and Australian Trade Commission [2013] AATA 133, Mr Elton’s wife was identified as Hoa Nguyen.
Medical report from Dr Robyn Horsley
Dr Horsley provided an assessment of Mr Elton dated 15 October 2013. Dr Horsley’s report was based on a very detailed clinical history, albeit reliant on the information provided by Mr Elton. Dr Horsley obtained the known history regarding Mr Elton’s operational service and the stressors he claimed to have experienced in Vung Tau Harbour, particularly the events that occurred during the 1969 trip. She recorded that between 2006 and 2012 Mr Elton spent 80 per cent of each year in Vietnam. This was to service his wine exporting business. Mr Elton told Dr Horsley that he had recently ceased work as a wine exporter and, as his licence had expired, the Vietnam based company was importing wines directly from Australian producers.
Dr Horsley addressed all of Mr Elton’s then claimed medical conditions, these being his psychiatric disorder, erectile dysfunction, sensorineural hearing loss, tinnitus, lumbar spondylosis, ischaemic heart disease, right inguinal hernia, diabetes mellitus and fatty liver. She further addressed his accepted conditions of tinea, chronic obstructive airway disease, and fungal infection of the toenails and his recently claimed conditions of marijuana abuse in full remission and alcohol dependence now in remission.
On physical examination, Dr Horsley noted that Mr Elton weighed 121 kilograms with a height of 187 centimetres, yielding a BMI of 34. Mr Elton’s lumbar spinal range of movement was limited in lateral flexion and rotation to half the normal range. No sensory loss was detected in his lower limbs and muscle power was normal. There was a minor reduction in straight leg raising on the right and absent ankle reflexes. Examination of Mr Elton’s knees was normal, except for the presence of some crepitus in the right knee. Cervical movement was normal and shoulder movement was normal, except for discomfort experienced in the last 10 to 15 degrees of flexion and abduction. Mr Elton’s hand force was 32 kilograms on the right and 28 kilograms on the left. Mr Elton is right hand dominant.
Dr Horsley was of the opinion that Mr Elton would derive great benefit from a structured exercise program as he was significantly deconditioned and overweight. A loss of weight would assist the control of Mr Elton’s diabetes and his reported shortness of breath on exertion in the presence of normal lung function tests.
Mr Elton had reported a sitting tolerance varying between 15 and 60 minutes, walking tolerance of 5 to 10 minutes, static standing tolerance of 30 seconds and driving tolerance of 30 minutes, all of which Dr Horsley felt should improve with a structured physical program. Dr Horsley concluded that the primary factor preventing Mr Elton from working was his psychiatric status. Dr Horsley concluded that his physical conditions did not prevent work, but did restrict the type of work he was able to do. Dr Horsley recommended that Mr Elton avoid over-reaching, lifting weights heavier than 10 to 20 kilograms and use good manual handling techniques for all lifting.
RELEVANT LEGISLATION
Section 9 of the Veterans’ Entitlements Act 1986 (the Act) provides that an injury or disease is taken to be war-caused if it arose out of, or was attributable to, any eligible war service.
As Mr Elton had operational service, the standard of proof applying to the causation, that is whether or not his injuries and or diseases are war-caused, is provided in s 120(1) and s 120(3) of the Act, which state:
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.
Note: This subsection is affected by section 120A.
...
(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.
Note: This subsection is affected by section 120A.
All other issues such as diagnosis of the medical conditions, attract a standard of proof of reasonable satisfaction as provided in s 120(4) of the Act which states:
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
As Mr Elton’s application was lodged in 2012, s 120A applies in relation to SoP’s. Section 120A provides:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces; or
(iii) the British nuclear test defence service rendered by a member of the Forces.
Note 1:Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2); that upholds the hypothesis.
Note:See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
The Tribunal is also required to consider the evidence and the hypotheses raised in accordance with the process set out by Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the four-step process being:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The applicant has identified the SoP attracted by Mr Elton’s claim in relation to PTSD as Instrument No 5 of 2008 as amended by Instrument No 19 of 2014 or, in the alternative, the current SoP, Instrument No 82 of 2014.
The applicant has identified the relevant SoP attracted for an anxiety disorder, including GAD, being that at the date of primary decision Instrument No 101 of 2007 or the current Instrument No 102 of 2014.
For MDD, the nominated relevant SoP was Instrument No 27 of 2008 or the current SoP relating to a depressive disorder, Instrument No 83 of 2015.
In relation to Mr Elton’s claimed lumbar spinal disorder, the diagnosis of spondylosis, spondylolisthesis and spondylolysis are the conditions under consideration. The SoP for lumbar spondylosis is currently Instrument No 62 of 2014, but at the date of the primary decision was Instrument No 37 of 2005 as amended up to Instrument No 69 of 2013. The SoP for spondylolisthesis and spondylolysis is currently Instrument No 59 of 2015, but at the date of primary decision was Instrument No 5 of 2006 amended by Instrument No 44 of 2010.
It is useful to note that the psychiatric SoPs identified by the applicant each make reference to a Category 1A Stressor required to satisfy the relevant factors. The SoPs all define a Category 1A stressor in the following terms:
"a category 1A stressor" means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
SUBMISSIONS
Applicant
Ms Ryan submitted that Mr Elton’s psychiatric illness was, as diagnosed by his treating psychiatrist, PTSD and a depressive disorder. It was contended that both of these diagnoses related to Mr Elton’s operational service and that the whole of the evidence and material before the Tribunal raised a reasonable hypothesis that Mr Elton experienced a severe traumatic event that was life threatening and met the requirements of a Category 1A Stressor in all of the relevant psychiatric SoPs.
Ms Ryan referred to the decision of Reeves J in Border v Repatriation Commission (2010) 191 FCR 163 in which His Honour said, clarifying the phrase experiencing a life threatening event at 177:
“Experiencing a life-threatening event” involves a subjective factor ... The effect of the event and not the threat itself has to be assessed — It is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death ...
… not only is it wrong to assess the nature of the threat itself, but it is also wrong to assess the character of the event said to pose the threat by reference to a full knowledge of all the circumstances, or all the objective facts.
Ms Ryan contended that the history that Mr Elton had given in the matter was consistent, including that the weather conditions on Sydney prior to arrival in Vung Tau were severe. Given that he was 17 years old at the time, Mr Elton had never had an experience like this before. It was submitted that both Incidents One and Two met the definition of a Category 1A Stressor. Ms Ryan contended that a reasonable hypothesis was raised and that the material clearly satisfied the SoP requirement.
Ms Ryan contended that in 2014 the AAT had determined that, despite an attack on Mr Elton’s credit, he had been exposed to a Category 1A Stressor and his evidence had been accepted as truthful. She contended that for this Tribunal to make a different decision would bring the Tribunal into disrepute in relation to the Stressor. Ms Ryan did not address the date of onset of either psychiatric condition.
In relation to Mr Elton’s claimed spondylosis, spondylolisthesis and spondylolysis, Ms Ryan submitted that factor 6(g) in the lumbar spondylosis SoP was satisfied, Mr Elton having suffered trauma to the lumbar spine in the course of Incident One. Additionally, Association Professor Love had opined that the relevant SoPs were satisfied. The conditions of spondylolisthesis and spondylolysis were not addressed in submissions.
In response to a comment from the Tribunal regarding the different history of his fall obtained by different experts, Ms Ryan submitted it was not uncommon for medical experts to record the history of a patient incorrectly. Ms Ryan referred in particular to Mr Elton’s evidence on Oath that he had given the same history to each consultant medical practitioner he had seen. It was contended that regardless of what was concluded in terms of wording of the history given, the discrepancies were not sufficient to inform a finding of Mr Elton’s back injury being, beyond reasonable doubt, unrelated to his operational service.
Respondent
Mr Purcell did proceed to submissions regarding the substantive issue before the Tribunal. He pointed to the inconsistencies in Mr Elton’s evidence and, in particular, Mr Elton’s description to all psychiatrists except Dr Kaplan that the Incidents One and Two occurred during a typhoon. In support of his contention, Mr Purcell referred to the Sydney logbooks which showed that the Sydney did not experience Force 7 winds until after the ship had left Vung Tau harbour. Given the recorded wind speed, Mr Purcell contended that neither Incident One nor Two could be classified as a Category 1A Stressor, as neither could not result in a life threatening situation.
In relation to the lumbar spondylosis Mr Purcell, while identifying Instrument No 5 of 2006 as amended to be that most favourable to the applicant, contended that Mr Elton did not meet the definitional requirements, as he had not sought any medical attention at the time he claims he injured his back or in the following days and had continued with his normal duties.
Mr Purcell also stressed the conflicting descriptions given by Mr Elton to various medical practitioners, quoting Dr Horsley who recorded that he quickly ran upstairs and hit his back on the way up and then later states he hit his back against the stairs, as he rose quickly up to the deck, both descriptions contradicting Mr Elton’s description of a fall. The Tribunal’s attention was drawn to the notes of Dr Velakoulis, who made no reference to a fall or back trauma, Dr Collier, Mr Elton’s treating psychiatrist who made no reference to this fall occurring as part of Incident One and Dr Kaplan, who mentioned a back injury but not that it occurred during any of the quoted incidents.
Mr Purcell further addressed Mr Elton’s credibility in relation to the issue of the typhoon, which Mr Elton had said hit the ship just north of the Sunda Strait. This was despite the log evidence of the Sydney that just north of the Sunda Strait it undertook a replenishment exercise with a British tanker, an exercise that cannot be undertaken except in calm water.
Similarly, Mr Purcell submitted that Mr Elton’s earlier evidence that he was in Vung Tau Harbour for two days is patently incorrect, as Logs record the Sydney was only in the harbour for some five hours.
In relation to the claim of spondylosis, spondylolisthesis and spondylolysis addressed by Associate Professor Love, Mr Purcell contended that Associate Professor Love had not identified which of the factors required in the SoP in order to establish a causal relationship had been met. Associate Professor Love had found the SoPs somewhat incomprehensible.
In relation to the spondylolisthesis the SoP, be it either Instrument No 59 of 2015 or Instrument No 5 of 2006, required a high impact trauma to the spine, such that it caused a fracture of the vertebral arch. As Mr Elton had neither reported this injury nor received any medical treatment at the time that it is said to have occurred, Mr Purcell submitted that it was untenable to suggest that he was injured to the extent required by the SoP.
Mr Purcell relied on the Federal Court Decision in Meehan v Repatriation Commission (2003) FCA 1371, wherein Jacobson J determined that a lack of credibility and the giving of conflicting evidence would support a finding beyond reasonable doubt against an applicant, and as such satisfy step 4 of the Deledio process.
Mr Purcell submitted that, based on the decision of Mortimer J in Forrester v Repatriation Commission (2013) FTA 898, Mr Elton’s application with respect to all the conditions claimed to be war-caused should fail at step 1 of the Deledio process, as the material does not point to a hypothesis connecting any of Mr Elton’s claimed conditions with the circumstances of his service.
In response, Mr Ryan distinguished the decision in Forrester, as this had been a widow’s claim and no evidence was available from the Veteran.
TRIBUNAL’S DELIBERATIONS
Mr Elton has based his claim for an increase in his disability pension on the medical conditions of PTSD, MDD, spondylosis and spondylolisthesis with spondylolysis as being war-caused and disabling.
Ms Ryan highlighted the previous decision of Senior Member Friedman dated 15 July 2014 and requested this Tribunal give consideration to that decision and the evidence then given. The Tribunal has done so, particularly as there existed a direction that all summons material provided for the 2014 hearing be made available for the current hearing.
In accessing the documentation provided for Mr Elton’s earlier DVA claim lodged on 28 February 2011, another closed file in which Mr Elton had been the applicant was found. This related to the decision in Re Elton and Australian Trade Commission [2013] AATA 133. Mr Elton had lodged a claim relating to his business activities in Vietnam between 2006 and 2012, and concerned his application to the Australian Trade Commission under the Export Market Development Grant for compensation for various costs he had encountered in exporting wine to Vietnam. In this application, the Tribunal determined that Mr Elton was a resident of Vietnam working as a consultant to Kangaroo Indochine Trading Services Company Limited, rather than providing approved promotional activity on behalf of his company Corp di Oro Pty Ltd. This decision is relevant only as a cross-reference to evidence in the current matter.
Diagnosis of Claimed Conditions
The Tribunal is required, before proceeding to a consideration of whether the claimed conditions are war-caused in accordance with s 120(1) and s 120(3) of the Act, to establish the diagnosis and date of clinical onset of the claimed medical conditions (Re Cooke and Repatriation Commission (1998) 50 ALD 907; McKenna v Repatriation Commission (1999) 86 FCR 144; Repatriation Commission v Gosewinkel (1999) 59 ALD 690, Repatriation Commission v Bawden (2012) 206 FCR 296) to its reasonable satisfaction, pursuant to s 120(4) of the Act.
On both the oral and documentary evidence provided, the Tribunal determines that Mr Elton’s claimed medical conditions and their dates of clinical onset, where such information is provided, are:
·Post- Traumatic Stress Disorder (PTSD) - first diagnosed in July 2012 with, according to Dr Collier, a clinical onset date in the early 1970s;
·Major Depressive Disorder (MDD)- first diagnosed in July 2012 by Dr Collier with a clinical onset attributed to the early 1970s;
·Spondylosis with spondylolisthesis and spondylolysis, with the first provided record of the complaint of back pain with right sciatica being made on 4 July 2012 to Mr Elton’s general practitioner Dr Moffitt.
Although a CT scan, said to have been performed in 2004/2005, had shown spondylolisthesis at L5/S1 with nerve root compression and a plain x-ray conducted on 14 April 2004 had shown L5/S1 spondylolisthesis, it was not until an MRI in September 2015 that this diagnosis was confirmed. Mr Elton had told Dr Horsley in 2013 that he had an x-ray of his spine some years before which showed a congenital defect. This, to the Tribunal’s knowledge, would refer to what is called a pars defect, that being a failure of the maturation process wherein the epiphyses of the lamina of the vertebral arch do not ossify and the arch therefore does not become complete, resulting in a gap in both laminae. This defect allows a greater range of forward displacement of one vertebra upon another.
While Dr Kaplan has provided a diagnosis of PTSD, he has also provided a differential diagnosis of a GAD. The differential diagnosis is not supported by any of the other reporting psychiatrists and therefore shall not be considered by the Tribunal.
The Tribunal accepts that the diagnosis of spondylosis, spondylolisthesis and spondylolysis is established on objective criteria, namely CT scanning and MRI.
The psychiatric diagnosis is more complicated in that two psychiatrists, Doctors Collier and Kaplan have made a diagnosis of PTSD, with Dr Collier making this diagnosis in July2012 and Dr Kaplan in August 2013. Both considered what was described as Incident Two to be a Category 1A Stressor as required in the SoP. Both dated the onset of the condition to the early 1970s, and thus within five years of exposure to the Category 1A Stressor. As noted above, Dr Collier has been Mr Elton’s treating psychiatrist since July 2012.
Mr Elton attended Dr Velakoulis between 2010 and late 2011 and provided several summaries of his past experiences and medical history to Dr Velakoulis in writing. Dr Velakoulis’ clinical notes have also been made available to the Tribunal. Dr Velakoulis determined that Mr Elton did not have a diagnosable psychiatric disorder, but may have had some PTSD symptoms which were no longer present. Dr Strauss, in June 2013, also concluded that Mr Elton did not suffer from any diagnosable psychiatric disorder and confirmed his opinion after being fully informed of the reports of Doctors Collier and Kaplan.
The histories obtained by the four psychiatrists vary considerably, although Mr Elton claims this variation is due to misinterpretation by the doctors, he claiming to have given the same history at all times. The majority of the psychiatrists relate that Mr Elton did experience nightmares, the content of which was unknown, but that these ceased in about 2000. The nightmares had recurred at a lesser intensity when Mr Elton first applied for a Veterans’ disability pension, but again disappeared in 2012 after he suffered a myocardial infarct.
Dr Collier appears to have based his diagnosis primarily on the results of Mr Elton’s answers to Davidson Structured Interview for PTSD. Mr Elton gave a positive answer to all the questions posed, in contrast to a different series of questionnaires to which he provided answers for Dr Velakoulis. In his responses, Mr Elton denied re-experiencing or reliving stressful past events, denied having physical reactions to such experiences from the past or that his future would be cut short and said he was super alert or watchful to a moderate degree. Mr Elton did rate highly in terms of the questionnaire relating to the dimensions of his anger reactions.
Based on the balance of probabilities, or to its reasonable satisfaction as required by s 120(4) of the Act, the Tribunal finds that Mr Elton does not suffer from PTSD.
The other psychiatric diagnosis made by Dr Collier, and Dr Collier alone, is that of a MDD. Dr Kaplan, in providing a differential diagnosis, did address the possibility of GAD with depressed mood. Doctors Velakoulis and Strauss found no evidence of any diagnosable psychiatric disorder, including a MDD. However, the evidence before the Tribunal is such that it cannot exclude the possibility that when first seen in July 2012 by Dr Collier, Mr Elton met the requirements for the diagnosis of a MDD he having recently suffered a myocardial infarct and undergone coronary artery stenting. His depressive symptoms were then such as to require treatment with the antidepressant Escitalopram (trade name Loxalate).
As the Tribunal has determined there is insufficient evidence before it to affirm a diagnosis of PTSD the only conditions to be considered with respect to a causal link with Mr Elton’s operational service are those of MDD and his spondylolisthesis, spondylosis and spondylolysis, the decision of the VRB with respect to PTSD is affirmed.
Major Depressive Disorder – Causation in relation to the Mr Elton’s operational service
As noted above, the Tribunal is required to follow the process delineated by the Full Court of the Federal Court in Deledio. Step 1 of the Deledio process states:
The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
The Tribunal has examined all of the material before it and decides that there is, albeit sparse material that points to such a hypothesis connecting Mr Elton’s major depressive disorder to his operational service.
The Tribunal finds it unclear as to how much of the material is required to satisfy Step 1 of Deledio. In Repatriation Commission v Codd (2007) 95 ALD 619, Gordon J identified at 622 the threshold question as being:
… whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran’s [in that case, death] with the circumstances of his service. ... (emphasis added),
whereas in Repatriation Commission v Bey (1997) 79 FCR 364 the Full Court stated at 730:
A “reasonable hypothesis” involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
Further, in Repatriation Commission v Hill (2002) 69 ALD 581, quoting the decision in East, the Court said at 596:
if an essential element of a hypothesis is not raised or pointed to by the material before the decision-maker then the hypothesis is not raised by that material. (emphasis added)
It has been argued that this lack of consensus has been resolved by the introduction of s 120A and the SoP scheme wherein the connection between a disease and service is delineated by links or factors contained in the SoP.
Step 2 of the Deledio process
There are several SoPs relating to a major depressive disorder. The applicant has identified those on which it relies as being Instrument No 83 of 2015 or in the alternative Instrument No 27 of 2008 the latter being the SoP in force at the time of his application. The factor relied upon by Mr Elton in Instrument No 27 of 2008 was Factor 6(a)(ii):
experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or...
In Instrument No 83 of 2015 the relevant factor is 9(1)(b) and is identical in content to that above.
Step 3 requires the Tribunal to determine whether the hypothesis raised is reasonable in terms of being consistent with the template found in the SoP. Mr Elton’s MDD was diagnosed by Dr Collier in mid to late 2012. In Dr Collier’s report the relevant factor was confirmed as being exposed to a Category 1A Stressor. Dr Collier is the only psychiatrist who has made the diagnosis of MDD. As the diagnosis was made in late 2012 it was not within five years of experiencing what has been described as a Category 1A Stressor occurring in November 1969. As a result the hypothesis raised in relation to MDD it is not reasonable and the claim with respect to this psychiatric conditions fails at Step 3 of the Deledio test.
The applicant has not identified any other factor in the Depressive Disorder SoP upon which they rely and thus the Tribunal has not considered other factors which might be applicable.
Lumbar Spondylosis causation in relation to the Mr Elton’s operational service
Steps 1 and 2 of the Deledio test have been satisfied in that there is some material pointing to or raising a reasonable hypothesis relating Mr Elton’s lumbar spondylosis to his operational service. The relevant SoPs are Instrument No 37 of 2005 or in the alternative Instrument No 62 of 2014. The applicant has relied on factor 6(h) in the 2014 Instrument No 62 of 2014 or factor 6(g) in Instrument No 37 of 2005. Both of these factors relate to having trauma to the lumbar spine before the clinical onset of lumbar spondylosis, with that of Instrument No 62 of 2014 requiring the trauma to have occurred at least one year before the onset of the condition.
Both SoPs define trauma to the lumbar spine as being:
a discrete event involving the application of significant physical force ... to the lumbar spine that causes the development within 24 hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the lumbar spine …. these symptoms and signs must last for a period of at least seven days following the onset save where medical intervention has occurred
The material does not contain any record or other reporting of a discrete injury to Mr Elton’s lumbar spine that satisfies the definition of trauma to the lumbar spine. Step 3 of the Deledio process is not satisfied as the hypothesis is not consistent with the template described in the SoP. As such, the claim for lumbar spondylosis being war-caused is not substantiated and the application fails in this respect.
Spondylolisthesis and Spondylolysis – Causation in relation to the Mr Elton’s operational service
As was the case in relation to the spondylosis, it was not until 4 July 2012 when evidence of these two conditions was finally confirmed on radiological investigation. The Tribunal does note that the VRB referred to an earlier MRI report on 12 April 2005, this having been requested by Mr Elton’s former general practitioner Dr I Davis. While this is said to have shown degenerative changes diagnostic of spondylosis, there is no comment with respect to the presence of spondylolisthesis or spondylolysis. However, the VRB in its decision noted that spondylolisthesis at L5/S1 was identified in the MRI scan of 2005.
The applicant has identified and relied upon the SoP Instrument No 5 of 2006 concerning spondylolisthesis and spondylolysis or in the alternative Instrument No 59 of 2015 relating to these two conditions.
The SoPs define both conditions. Without making any finding of fact, it should be noted that the significance of spondylolysis is that it relates to a defect or fracture involving the pars interarticularis of a vertebra which thereby renders the individual more likely to develop spondylolisthesis, which is the displacement of one vertebra on another. The factor relied upon by the applicant is the same in both SoPs and in both is Factor 6(a) which in Instrument No 5 of 2006 requires experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch and having occurred, in terms of Instrument No 5 of 2006, within the six weeks before the clinical onset of spondylolisthesis or spondylolysis. In the case of the more recent Instrument No 59 of 2015, the trauma must give rise at the time of the clinical onset of spondylolisthesis or spondylolysis.
Factor 6(b) of Instrument No 59 of 2015 may also be relevant, it applying to spondylolisthesis only and requiring experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the one year before the clinical onset of spondylolisthesis.
Both SoPs define acute traumatic spondylolisthesis or spondylolysis as spondylolisthesis or spondylolysis arising as the direct result of a severe high energy trauma to the spine.
The material before the Tribunal does not point to or raise any episode of lumbar trauma meeting the required definition. The claim for lumbar spondylolisthesis and spondylolysis as being war-cause therefore fails at step 3 of the Deledio process.
Alternative Arguments Presented by the Respondent
In addition to matters already considered, the Respondent has placed great emphasis on the unreliability and inconsistency of Mr Elton’s evidence to various medical practitioners and Tribunals. In light of this argument, and the possibility the Tribunal has erred in its considerations leading to its decision to affirm the decisions under review, the Tribunal has elected to proceed to consideration of the factual basis of the claim in accordance with step 4 of the Deledio process, which states:
The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
On 2 August 2010 when he first consulted Dr Moffitt, Mr Elton stated he wished to apply for a DVA pension. Mr Elton informed Dr Moffitt that he had asbestos in the lungs, was smoking and taking illicit drugs, abused alcohol and had nightmares following his trips to Vietnam. Dr Moffitt noted that Mr Elton was now spending lots of time conducting his business exporting wines to Vietnam. Other than the above statements no symptoms were reported, no examination was performed and Mr Elton was not on any medication. Over the ensuing months appointments with specialists were arranged and claims were made for tinea, pulmonary fibrosis, chronic obstructive airways disease, cannabis abuse and alcohol abuse. All were accepted as war-caused, despite the later results of lung function testing and expert opinions.
Mr Elton’s evidence relating to his operational service and stressful experiences is the only source of information provided. There is no supporting corroborative evidence. Mr Elton cannot recall the names of any navy personnel with whom he served except for the first names of two otherwise unidentifiable people. There is documentary evidence that conflicts with his evidence. The most relevant of these is the claim that Incidents One and Two took place in a typhoon.
The Sydney’s log book records there being a storm after the Sydney had left Vung Tau Harbour and not on 27 November 1969. The Tribunal accepts that to the mind of a then 16 year-old it may have seemed like a typhoon. It also, however, notes that Mr Elton is a yachtsman and qualified mariner, has revealed his familiarity with the Beaufort Scale and has had access to the T-documents since 2011. This would have allowed him time to correct his earlier statement. The Tribunal notes he had altered the history given when he saw Dr Kaplan in 2013 by substituting storm for typhoon.
Mr Elton has informed most consultant medical practitioners that he was a high-achiever academically at secondary school, despite his service records stating that at the time he enlisted as a recruit he was repeating Year 10, having failed six of eight Year 10 subjects in 1967.
Despite having provided Dr Velakoulis with details of his experiences and a claimed extreme level of bastardisation existing during his training on Leeuwin, Mr Elton denies these affected him personally either at the time or in retrospect.
Mr Elton’s claim relating to back pain due to spondylosis/spondylolysis/spondylolisthesis is stated to have arisen from a fall on the Sydney during Incident One. Dr Collier has not referred to this fall in any of his reports; Dr Kaplan has recorded a fall with no details of where or when; Dr Velakoulis is silent on the occurrence of a fall and Dr Strauss, whose opinion and evidence Mr Elton challenges, has described a fall occurring as Mr Elton sought the safety of the flight deck in Incident One. Dr Horsley’s description of the event, as relayed to her by Mr Elton, was that in his haste climbing up the gangplank in Incident One, Mr Elton had hit his back on the side of the hatch.
Drs Collier and Kaplan have relied, to an extent, on the Service record of the Navy psychologist who was said to have recorded that Mr Elton had smoked cannabis in 1969 when he was depressed. This was not, in fact, the psychologist’s opinion but what Mr Elton reported and later changed, stating that he smoked cannabis as he wanted to be discharged from the Navy.
Where the history recorded by a medical practitioner, and in one instance by Mr Elton’s agent, has differed from Mr Elton’s evidence, Mr Elton has insisted that this has been an error on the part of the other party as he has always given the same factual history of events. On the reading of the reports, that which closely reflects Mr Elton’s evidence is that of Dr Strauss.
Mr Elton has not been able to explain why he was on the flight deck in Incident Two. He thought he may have been returning paint to the paint locker, although his duties on the Sydney were primarily the manning of telephones as he was an electrical mechanic trainee. Mr Purcell pointed out that sailors would not be painting the ship in a typhoon. On the day, Mr Elton had been assigned to a handling, that is, unloading of cargo, group but he denied this to be the case.
Mr Elton’s description of the events he observed while in Vung Tau Harbour conflict with official records. It was not possible to see bombing raids or similar identified events from the harbour. The harbour itself was never, in the course of the entire Vietnam War, bombed nor was the Sydney ever attacked.
The Sydney was in harbour in Vung Tau for 6 hours and 20 minutes on 28 November 1969 and for less than 5 hours during its visit in 1970 not, as Mr Elton had stated to the VRB and several doctors, for 2 days on each occasion.
In 2010 or 2011, Mr Elton informed Dr Velakoulis he had sold his business. The ASIC records state that on November 2012, Mr Elton was replaced as a director and company secretary by Naruwee Bamrung (his wife). No evidence as to a change in any other company details has been provided.
In the matter of Re Elton and Australian Trade Commission [2013] AATA 133, Mr Elton’s wife was identified as Hoa Nguyen, a Vietnamese citizen, although his marriage certificate of 2009 records his marriage to Naruwee Bamrung, a citizen of Thailand. Mr Elton was identified as a resident of Vietnam on this marriage certificate. Mr Elton’s claim for an Export Market Development Grant was denied on the basis that the evidence indicated that Mr Elton was a consultant to an importing company based in Vietnam, not an exporting Australian entity, and therefore did not qualify for a Grant.
The Tribunal acknowledges that the then Senior Member Friedman in his decision in the matter of Re Elton and Repatriation Commission [2014] AATA 475, published on 15 July 2014 and heard on 14 and 15 April 2014, found Mr Elton to be a truthful witness. I cannot substantiate or agree with his opinion. At the hearing on 23 and 24 April 2016, Mr Elton appeared as being aggressive in his responses to Mr Purcell and with respect to some medical reports. He interjected in the course of the hearing until cautioned to desist by Ms Ryan and gave non-responsive answers to questions as he had done before the VRB.
The conflicting evidence, credibility issues and almost total lack of corroboration of Mr Elton’s evidence in support of his claim result in the Tribunal, in accordance with the decision in Meehan v Repatriation Commission [2003] FCA 1371, concluding that it is satisfied beyond reasonable doubt that the Applicant’s psychiatric conditions as claimed and his lumbar spinal conditions as delineated are not war-caused.
Conclusions
For these reasons outlined above, the Tribunal is satisfied to the requisite standard that, in each case, the claim fails. The Tribunal therefore affirms the decision under review.
1. I certify that the preceding 164 (one-hundred-and-sixty-four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.
......................................[sgd]..................................
Associate
Dated 6 July 2016
Date of Hearing 23 March 2016 to 24 March 2016 Counsel for the Applicant Ms Fiona Ryan Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Mr Gerald Purcell Solicitors for the Respondent Department of Veterans’ Affairs Advocacy APPENDIX
APPLICANT
A01Statement of Peter Elton dated 8 October 2012.
A02Statement of Peter Elton dated 4 June 2015.
A03Report of Associate Professor Bruce Love dated 29 September 2015.
A04Report of Associate Professor Bruce Love dated 21 October 2015.
A05Email from Peter Elton to Michael Jorgensen dated 29 May 2013.
RESPONDENT
R01T-Documents.
R02Photograph of HMAS Sydney taken circa 1965.
R03Photograph of HMAS Sydney from Ship’s Newsletter February 1968.
R04Wikipedia database entry for Typhoon retrieved on 22 September 2015.
R05Chart of South East Asia.
R06Wikipedia database entry for Gaspar Strait retrieved on 29 October 2015.
R07Beaufort Scale Explanation from seabreeze.com.au retrieved on 22 September 2015.
R08Extract from Jeffery Grey, The Royal Australian Navy and South-East Asian Conflicts, 1955-1972 (Allen & Unwin, 1998).
R09Extract from HMAS Sydney Ship’s Log from 17 November 1969 to 2 December 1969.
R10Extract from HMAS Sydney Ship’s Log from 16 February 1970 to 1 March 1970.
R11Document produced by Noble Park RSL to Dr Moffitt headed Summary of incidents leading to stresses.
R12Transcript of Veterans’ Review Board hearing dated 5 May 2015 for matters V13-0324A and V13-0196A.
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