Fielden and Repatriation Commission
[2004] AATA 862
•18 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 862
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/711
VETERANS' APPEALS DIVISION
Re: PETER JOHN FIELDEN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 18 August 2004
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes therefore the decision that:
1.the applicant suffers from post traumatic stress disorder with alcohol and drug abuse;
2.the condition is war‑caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986, entitling the applicant to a disability pension; and
3.the matter is remitted to the respondent for determination of the rate of pension.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – whether psychiatric condition is post traumatic stress disorder – whether condition war‑caused – severe stressors – whether stressors actually occurred – if so, whether severe enough to cause intense fear, helplessness or horror – operational service
Veterans’ Entitlements Act 1986 ss 9, 120(1), (3), 120A
Statements of Principles
Instrument № 58 of 1998 concerning depressive disorder
Instrument № 76 of 1998 concerning psychoactive substance abuse or dependence and
alcohol dependence or alcohol abuse
Instrument № 3 of 1999 (as amended by Instrument № 54 of 1999)
concerning post traumatic stress disorder
Instrument № 1 of 2000 concerning anxiety disorder
Critch v Repatriation Commission (1996) 43 ALD 574
Gerzina v Repatriation Commission (2003) 176 FLR 426
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
18 August 2004 Miss E.A. Shanahan, Member
1. This is an application by Peter John Fielden (the applicant) for review of a decision of the Repatriation Commission dated 28 February 2000, as affirmed by the Veterans’ Review Board (VRB) on 29 May 2002. The VRB declined the applicant’s claim for a disability pension for emotional behavioural problems, because he failed to meet the requirements of the Statement of Principles (SoP) regarding post traumatic stress disorder (PTSD) and the diagnosis of PTSD. The VRB found that the stressors the applicant claimed to have experienced were not of an extreme nature.
2. The applicant was represented by Mr C. Thomson, of counsel, instructed by Peter J. Liefman, solicitor. The respondent was represented by Mr K. Herman, an advocate with the Department of Veterans’ Affairs, on the first day and by Mr K. Rudge, advocate, on the second day of the hearing. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T14) (the T‑documents), which were assigned the marking exhibit R1. In addition, the respondent tendered the following documents:
Transcript of VRB proceedings dated 29 May 2002 Exhibit R2
Report of WriteWay Research Services (WriteWay)
dated 15 November 2003 Exhibit R3
Report of Dr B. Keshava, consultant psychiatrist, regarding
Mr B. Collins, dated 26 October 1999 Exhibit R4
Report of Dr L. Walton, psychiatrist, dated 9 October 2003 Exhibit R5
Clinical notes of Dr C. Schrueder, consultant psychiatrist Exhibit R6
Clinical notes of Dr G. Braude, local medical officer Exhibit R7
Centrelink records relating to the applicant, dated 1 July 2003 Exhibit R8
The applicant tendered the following documents:
Applicant’s statement dated 30 April 2004 Exhibit A1
Report of Dr C. Percival, psychiatrist, dated 17 February 2004
with attachments Exhibit A2
Map of the relevant area of South Vietnam Exhibit A3
3. The applicant, Dr Percival, Major J. Kocka and Mr Collins (both of whom served with the applicant in Vietnam) gave evidence at the hearing. The respondent called Dr Walton, psychiatrist; and Colonel J. Church, historical research officer with WriteWay.
BACKGROUND TO THE APPLICATION
4. The applicant was conscripted into the Australian Army (the army) on 28 January 1970. He rendered operational service in Vietnam from 26 November 1970 until 12 August 1971 and was discharged from the army on 15 November 1971. Prior to conscription, he was employed as a clerk and during his service he was classified as a clerk administration, 074. Despite this classification of clerk, the applicant claims he swapped positions with another soldier and throughout his service was mainly in the field. While in Vietnam, he commenced drinking to excess and using marijuana. On return to civilian life he became reclusive, continued to drink alcohol to excess, continued using marijuana and commenced using heroin. His return to work as a clerk lasted 11 days. He was subsequently (some years later) employed as a roof tiler and then a rigger. He ceased all work in 1992, after arguments with his employers. His marriage failed as a result of his abusive behaviour when drunk and the few subsequent relationships he has had have not lasted beyond 6 to 12 months. In 1999 he was diagnosed as suffering from chronic PTSD (Exhibit R5), attributed to his Vietnam War service.
5. On 7 January 2000 the applicant lodged a claim for disability pension and medical treatment. On 28 February 2000 the Repatriation Commission rejected the applicant’s claim. The rejection was based on the applicant’s classification as a clerk and that, as such, he would have worked in the Unit Orderly Room and not in the field. On 5 May 2000, the applicant applied to the VRB for review of this decision. On 29 May 2002, the VRB affirmed the decision of the Repatriation Commission as it was not reasonably satisfied that the applicant was suffering from PTSD, but, if he was, the evidence at that time did not identify a traumatic event which could have engendered intense fear, helplessness or horror in the applicant.
6. On 3 July 2002, the applicant sought review of the VRB decision by the Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant — Mr P.J. Fielden
7. The applicant confirmed his conscription to the army and service in Vietnam where he had been posted as a clerk. He had been very averse to serving in Vietnam and, as a protest, attended an official parade in civilian dress. As a result of this episode, he was sentenced to two days in detention. Within a month of his arrival in Nui Dat, he swapped his clerical duties with a newly arrived corporal and took over the latter's active duties.
8. The applicant said that he served with 131 Div. Loc. (Divisional Locating) Battery. The applicant also said he served mainly in the co-ordinating section, which was based 70 per cent of the time at SAS Hill and the rest of the time at the Horseshoe. . He claimed to have spent several two‑week periods of duty at this site during his time in Vietnam. He rotated to the Horseshoe from the main divisional base at Nui Dat. The applicant described his duties at the Horseshoe as calling in the co-ordinates of anything suspicious or otherwise warranting a report. The plotting of movement, lights and sounds was relayed to the central control area, assessed and then a decision made as to whether to fire on the source of the activity. The applicant claimed to have been scared all the time (trans p11) during these watches. While the Horseshoe was never directly fired upon, tracer fire came over the site on one occasion, when the nearby village of Dat Do was attacked. He had found this episode very frightening – I was paranoid (trans p13). He frequently thought about these events and does so to this day and, on doing so, becomes …hot, sweaty and nervous…very jumpy (trans p14).
9. The applicant stated that, on the day following the Dat Do attack, he rode shotgun for Major Kocka, when the latter visited the village of Dat Do to assess whether mortars had been fired in the attack. They had found approximately six Vietnamese bodies lying on the side of the road. The applicant described the bodies as blown up, meaning swollen from lying in the sun, and they emitted a stench (trans p15). He said that this was the first time he had seen a dead body. He was nauseated by the sight. He saw a Vietnamese child, about 10 years old, who placed a cigarette in the mouth of one of the corpses and endeavoured to make the body appear to be smoking by jumping on the corpse's abdomen so air was exhaled from the lungs.
10. The applicant had been disgusted by the child's actions and …felt like it was a waste of time being there (trans p16), as human life was treated as a joke. He said that he frequently re‑experienced this scene. When he returned to Nui Dat after two weeks at the Horseshoe, he drank alcohol until he collapsed. When recollecting this particular event, the applicant stated that he regretted going to Vietnam and not having been a conscientious objector. Had he not gone, he believed he would be relatively sane (trans p17) now. In order to rid his mind of these memories, he had used alcohol to excess and drugs, both of which provided only temporary relief.
11. The third traumatic episode related to a scene at Long Binh Airport. An American serviceman, who had instructed the Horseshoe group in the use of radar, left them his jeep to use between Nui Dat and the Horseshoe. The commanding officer ordered the applicant and another soldier to return the jeep to the United States Forces. While at the airport in Long Binh, the applicant claimed he witnessed the bodies of American servicemen, in body bags, being transported from a hangar to a Hercules transport aircraft. He described the process of loading the transport trolleys with bodies and taking them to the aircraft as being …just as though it was luggage (trans p19). He had become distressed by the lack of respect shown for the dead. Following this episode, he and the accompanying soldier went to a bar and got drunk. They returned to Nui Dat by helicopter the next day.
12. The fourth episode was when, in the company of Major Kocka and Mr Collins, the applicant was crossing a bridge in a jeep. As they approached the police road block on the bridge, a Vietnamese motor cyclist passed them on the left-hand side, apparently attempting to run the road block, and was shot from behind by the South Vietnamese police. The motor cyclist fell from his motor cycle into the path of an oncoming truck. The applicant and his companions were waved on and they …just kept going (trans p26). The applicant felt that any one in the jeep could have been shot. He thinks about the episode on a daily basis and erases it from his memory with beer and marijuana.
13. The fifth episode occurred when the applicant was travelling in a convoy of three vehicles to Xuyen Moc, where a new fire support base was to be established. He was travelling in a truck containing survey equipment and following a Land Rover. The vehicles had been directed to follow in the tyre tracks of the vehicles in front. The Land Rover could only place one set of its tyres in the front vehicles' tracks and the opposite wheels detonated a landmine. The occupants of the Land Rover suffered multiple injuries, mainly to their buttocks and thighs. This was the first time the applicant had experienced injury to his own colleagues. Following this episode, the applicant and his colleagues sat on their flak jackets, rather than wearing them, in order to avert similar injuries. The applicant confirmed that roads in Vietnam were coded red and green with the red road being an acknowledged danger road. The applicant attested that he still frequently recalled this event and the possibility that he could have been injured.
14. In cross‑examination, the applicant admitted that he had drunk alcohol at parties prior to his service and had used marijuana once at a party. He confirmed that, while in basic training, he attended parade in civilian dress in protest against his assignment to Vietnam and was charged for refusing a direct order and spent two days in detainment. Mr Herman was of the opinion that conscripts had the right to refuse to go to Vietnam. The applicant denied any knowledge of that right.
15. The applicant denied heavy drinking prior to service and stated the report of Dr Cornan, in 1967, with regard to eneuresis did not state that heavy drinking meant drinking of alcohol. His eneuresis had occurred once per month.
16. The applicant explained the loss of his driving licence pre service was due to him swapping seats with the driver, who was unlicensed when apprehended by the police. The episode when he assaulted a man at a party occurred because the man insulted his girlfriend.
17. The applicant confirmed that his pre-service alcohol intake was, in his mind, moderate, by which he meant a few beers on a Friday and Saturday night. He acknowledged that, in Vietnam, he did not get on with his senior officers and this was the reason he swapped from being a clerk to active duties. He had no idea why this was not recorded in his military record, as it had been approved by his commanding officer.
18. Mr Herman questioned the applicant with regard to the geography of the Horseshoe and his activities there. This did not provide further probative evidence. Nor could the applicant provide dates of the various events he claimed as stressors. The applicant thought that he had swapped from being a clerk to active duties just prior to Christmas, 1970.
19. At the VRB hearing, the applicant had given evidence that women were among the dead Vietnamese at Dat Do. The army records have revealed that 3 South Vietnamese soldiers had been killed and 11 wounded in the attack on Dat Do. The applicant was asked to explain these discrepancies. He said that all corpses wore black pyjama‑like clothing and none wore South Vietnamese army uniforms. The only way he could distinguish female from male Vietnamese was by the length of their hair. Thus, he may have been mistaken in identifying some victims as women. Mr Herman noted that the army records confirmed that a Land Rover, in a convoy of vehicles driving to Xuyen Moc, had been blown up by a landmine. The convoy consisted of several vehicles but no trucks. The applicant reiterated that he had been part of the convoy and travelling in a truck.
20. The applicant was asked to describe the bridge and scene where the Vietnamese motor cyclist was shot while passing their Land Rover. He recalled that the bridge carried two‑way traffic and that their Land Rover had swerved to the side after the shooting, but kept going.
21. In re‑examination, the applicant admitted he had been charged with two offences while serving in the army. The first of these occurred in Australia when he disobeyed orders to attend parade in uniform (he wore civilian clothing), for which he served a 48‑hour detention period. The second (for drinking on the lines – in his tent) resulted in 17‑days detention just before he left Vietnam.
Dr C. Percival
22. Dr Percival had seen the applicant at the request of the applicant’s solicitor and provided a report and an attachment (Exhibit A2). He diagnosed the applicant to be suffering from PTSD and, in his opinion, the applicant satisfied criterion (A) in the SoP. Dr Percival was critical of this criterion, believing it to be quite unrealistic given that:
…part of the symptomatic criteria [for PTSD] is forgetting an important aspect of the events…What more important aspect of the event to forget than the emotions. They are the ones that hurt. (trans p61)
23. Dr Percival said the applicant’s excessive use of alcohol to forget was classical avoidance behaviour and common in PTSD patients. Dr Percival had found the applicant's memory much scattier than the average veteran’s, and this had led him to entertain the possibility of early alcohol dementia. When asked about the alternative diagnosis of a general anxiety disorder (GAD), Dr Percival very clearly explained the commonality and the overlapping of many symptoms of PTSD, GAD and psychoactive substance abuse or dependence.
24. In cross‑examination, Dr Percival stated that his preferred diagnosis was …Unquestionably post traumatic stress disorder and alcohol dependence (trans p65). He based this on the clinical history he had obtained. He did not place any significance on the events prior to conscription (drinking, one driving offence and the episode of assault), describing the applicant’s teenage years as essentially normal. The applicant’s eneuresis, in Dr Percival's opinion, was physiological rather than psychological in origin.
25. Mr Herman suggested that the applicant may be so confused in his mind that he placed himself in incidents which had been related to him by other veterans. While Dr Percival thought this extremely unlikely, if such was the case, he said he would argue …that the war has done that to him (trans p70).
Major J. Kocka — by Telephone
26. Major Kocka provided a written statement (T12 p76) outlining the roles played by the Division (DET131, DIV LOC BTY) to which he and the applicant belonged. He had shared a tent with the applicant for a period of four months.
27. Major Kocka is currently an executive officer with the Command Staff and Operations Training Centre in Canungra.
28. Major Kocka was a member of the regular army and was deployed to Vietnam in late 1970. The applicant arrived at the same Divisional Locating Battery (Detachment 131) shortly after Major Kocka.
29. Major Kocka had listed the duties of their Battery members in his report of 5 April 2001 (T12) as follows:
…
· Listening Post personnel rotating through the "Horseshoe" feature some 20 kilometers from Nui Dat
· Listening Post personnel rotating on Nui Dat Hill
· Thermal Image Radar personnel rotating through Nui Dat and the Horseshoe feature
· Any intelligence personnel rotating through the Arty Tac HQ in Nui Dat and used on field operations
· SENSOR personnel rotating through Nui Dat Hill and involved in field operations
· Signals personnel manning signals equipment in Nui Dat
· Personnel to support Civil Affairs, resupply convoys in the field, and various other tasks outside Nui Dat
30. Major Kocka said it was usual practice to perform a greater number of duties than those for which the individual had been trained in Australia. He explained their duties at the Horseshoe, including the reporting to the Artillery Tactical Command Post. He confirmed that the applicant was involved in these duties and that his knowledge was first hand.
31. In his statement, Major Kocka had described the Horseshoe as a dangerous area, deep in enemy territory and so sited that he doubted they …could have survived in an attack (trans p74).
32. Major Kocka's statement had been reviewed by the military historian who had consulted Lieutenant Colonel H. Conant. Lieutenant Colonel Conant commented that Major Kocka's description of the Horseshoe was …in extremely dramatic terms and that the enemy forces, at the time, had withdrawn north and there was virtually no action at the site (trans p76). Major Kocka declared that Lieutenant Colonel Conant's comments were …absolutely amazing. If the enemy had withdrawn, no one had told the soldiers at the Horseshoe, who continued to patrol the area and engage in fire fights. To his knowledge, there was a continuing danger at the time.
33. In cross‑examination, Major Kocka acknowledged that the applicant, like many conscripts, did not like authority. Major Kocka had no idea the applicant had been posted as a clerk. No warrant officer or non‑commissioned officer accompanied the group in the field.
34. Major Kocka confirmed that the Horseshoe had come under tracer fire at a time when the applicant was present at the site (trans p86) and that, on many occasions, such fire was not reported.
35. While he could not recollect an exact date, Major Kocka believed that the Dat Do attack occurred just before Christmas 1970. He confirmed he was taken to Dat Do to inspect craters for mortar fire. He described the scene as being like a festival, just crazy (trans p88). This inspection did not reveal any evidence of a mortar attack and he had concluded the injuries and destruction resulted from grenade fire, although he could not exclude a mortar attack. Major Kocka had seen six to eight Vietnamese corpses, none of which were wearing a uniform, and he had concluded they were either Viet Cong or villagers. He could not identify any women, but he said he had taken photographs at the time and that two victims were headless. He confirmed the incident of a child placing a cigarette in the mouth of a corpse. The bodies had been covered in what he thought was lime. Major Kocka disagreed with the army records that only ARVN personnel were killed and he, again, stated he had photographs to show that some corpses were not ARVN.
36. With regard to the episode where a motor cyclist was shot while traversing a bridge, Major Kocka said there were checkpoints, rather than road blocks, to …keep an eye on the civilian population (trans p94). The bridge allowed two‑way traffic with checkpoints at either end. The bridge was more like a causeway, built after the original bridge was destroyed in the war. Major Kocka essentially confirmed the applicant's description of this event, wherein a Vietnamese person was fired on by what Major Kocka thought were Vietnamese police. He had noted a body on the road and plenty of blood (trans p95). After the event, the Land Rover, in which he was a passenger, …just kept driving (trans p95). The oncoming traffic was light.
37. Throughout his cross‑examination, Major Kocka had referred to his concern regarding the applicant’s state of mind toward the end of his Vietnam posting. This had not been pursued by Mr Herman. In re‑examination, Mr Thomson sought to elucidate these observations. Major Kocka stated that, toward the end of the applicant’s posting in Vietnam , he appeared to …get from one problem to the next. He was always in trouble. (trans p97).
Mr B. Collins — by Telephone
38. Mr Collins provided a statement dated 3 April 2001 (T12 p69). Mr Collins served in Vietnam at the same time and at the same base as the applicant. He was able to attest to events that they had both experienced. The applicant had arrived in Nui Dat in late 1970 and, initially, performed duties as a clerk in the Battery Commander's office, following which he undertook general duties. The latter involved work at Nui Dat with rotations to the Horseshoe and riding shotgun in convoys.
39. Mr Collins confirmed the incident when a Land Rover ran over a landmine. He was not present in the convoy and he did not know whether the applicant was present. Mr Collins had visited his sergeant, Sergeant Doyle, a victim of the landmine explosion, in hospital in Vung Tau. Mr Collins believed that the convoy was headed for a village named Quan Moc or Quan Loc.
40. While the applicant and Mr Collins had been present at the Horseshoe at the same time, Mr Collins manned a radar post, half a kilometre from the listening post where the applicant was sited. Tracer fire over the Horseshoe was not uncommon.
41. Following the Dat Do village attacks, several personnel from the Horseshoe went to the village the following day, as did members of Artillery Intelligence from Nui Dat. The applicant was present and arrived with officers from Artillery Intelligence. Mr Collins confirmed that there were several dead bodies, the first corpses he had seen, and the episode of the child putting a cigarette in a corpse's mouth. Mr Collins said that he was overcome with mixed emotions …at the sight (trans p114).
42. In mid‑1971, several soldiers acquired a jeep and drove to Vung Tau for a drink and a meal. They were absent without leave (AWOL). On the way back to Nui Dat, they had to cross a temporary roadway near a village called "Cat Loh". The South Vietnamese police had established road blocks to check Vietnamese civilians. They did not stop at the road block. Suddenly, a Vietnamese person, on a motor cycle, passed their jeep on the left‑hand side and was shot from behind, falling into the path of an oncoming truck. Mr Collins estimated the motor cycle was one metre from the left‑hand side of the jeep. He said he had reacted to this with shock. They had not reported the episode, …because we were AWOL (trans p115).
43. Mr Rudge challenged Mr Collins' memory regarding the latter event. Mr Collins had successfully claimed a disability pension for PTSD from the Department of Veterans' Affairs on the report of a psychiatrist (Dr Keshava (Exhibit R4)). In support of his claim, Dr keshava had recorded that, while Mr Collins was walking in Vung Tau, a Vietnamese citizen was shot nearby. Mr Collins denied he had ever seen such a shooting and emotionally confirmed that the incident that had triggered his PTSD claim was that of the motor cyclist shot on the bridge near Cat Loh. Mr Collins described the bridge as solid earthworks and single lane each way (trans p122).
44. The Tribunal notes that, throughout their evidence, Mr Collins and Major Kocka referred to the applicant as Gunner Fielden.
Dr L. Walton — in person
45. Dr Walton saw the applicant at the request of the respondent and provided a report dated 9 October 2003 (Exhibit R5). Relying on the history given by the applicant, Dr Walton diagnosed PTSD with associated substance abuse and depression. The substance abuse and depression fell under the umbrella of PTSD and were not separate diagnoses. In his opinion, the applicant’s alcohol abuse was potentially injurious to his brain and such damage could result in confabulation. When Dr Walton saw the applicant, he had ceased using heroin and LSD, but continued to smoke three bongs of marijuana a night.
46. In cross‑examination, Dr Walton agreed that the applicant met the SoP requirements for PTSD with regard to his subjective reaction to the nominated events (trans p102) and these were present from the time of his Vietnam service.
Colonel J. Church — in person
47. Colonel Church provided three WriteWay reports relating to the applicant dated 26 February 2000 (T8), 11 August 2001 (T13) and 15 November 2003 (Exhibit R3). Colonel Church had been an officer in the Australian Regular Army for 36 years, serving in Korea, Malaysia and Vietnam. He served in Vietnam from April 1970 to May 1971.
48. Colonel Church confirmed that his research had shown that, at all times, the applicant was classified as a clerk and clarified the point that National Servicemen had no right to elect not to go to Vietnam, National Servicemen were required to go wherever they were sent (trans p128).
49. Inquiries had revealed that the village of Dat Do was attacked on 22 December 1970. The reports state that all casualties of this offensive were members of the Army of the Republic of Vietnam (ARVN) who normally wore green uniforms. Colonel Church felt that Artillery Intelligence’s officers' presence in Dat Do after the attack would have been appropriate for intelligence gathering, but the presence of the applicant and Mr Collins was inconceivable.
50. Colonel Church had not checked the applicant’s service beyond June 1971, as he had mistakenly thought that the applicant had returned in June rather than the actual date of August 1971.
51. Colonel Church gave detailed evidence regarding the use of black roads which were subject to enemy interference, and green roads, which were regarded as being safe. Single vehicles were permitted to be driven from Nui Dat to Long Binh, but not between Baria and Bien Hoa. No evidence was presented to the Tribunal as to which route the applicant had taken to Long Binh Airport. As of 31 January 1971, Colonel Church had handed over the control of the relevant roads to the Vietnamese and he had no knowledge of road checks beyond that date.
52. Colonel Church had witnessed the way in which American casualties were treated in Korea and described it as most respectful. He had no knowledge of United States procedures in Vietnam. The Australian Defence Forces did not use body bags. Australian casualties were transferred to the American evacuation hospital in Vung Tau, and he had no knowledge of how they dealt with deceased army personnel.
53. Colonel Church had first hand knowledge of the bridge in the vicinity of Cat Loh. The original bridge had been destroyed in warfare and had been replaced by a rock‑filled causeway to allow, at the most, two passing Land Rovers, but not a truck and a Land Rover as intimated by the applicant and Mr Collins.
54. Colonel Church denied that there was any instruction, warning or general knowledge that when a South Vietnamese police officer blew his whistle, army personnel stopped and crouched low. Major Kocka, Mr Collins and the applicant have given evidence to this effect, but the Tribunal cannot see its relevance. To his knowledge, Colonel Church was unaware of any proclivity of the Vietnamese police to fire at members of the public.
55. The Tribunal asked Colonel Church if road blocks were always manned by South Vietnamese police or at times by the ARVN. He replied that, at times, the ARVN manned the checkpoints.
56. Colonel Churches' reports had addressed all the applicant’s claimed stressor events. In general, there were no army records of the stressor events, other than of the Dat Do village attack, to support the applicant’s claim, but the Colonel did not deny, unequivocally, that they occurred. Any such events should have been reported if they had occurred.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Dr Schrueder
57. Dr Schrueder provided reports dated 25 November 1997 and 24 January 2000, and he had treated the applicant from 12 November 1999 on his referral to the Academic Psychiatric Unit. Dr Schrueder had diagnosed PTSD with depression and an impairment score of 47 points. Dr Schrueder did not detail the stressor events, nor the applicant’s emotional response to them. The Tribunal notes that the VRB only had Dr Schrueder's opinion before it and not those of Dr Percival and Dr Walton.
RELEVANT LEGISLATION
58. As the applicant had rendered operational service, s 120(1) and (3) Veterans’ Entitlements Act 1986 (the Act) are applicable. Section 120A requires the Tribunal to apply any relevant SoPs. The parties agreed that the relevant SoPs are as outlined at the beginning of these reasons. These included Instrument № 1 of 2000 concerning anxiety disorder and Instrument № 58 of 1998 concerning depressive disorder. Based on the evidence of the consultant psychiatrists, who were all of the same opinion, the Tribunal now considers these two SoPs not to be relevant.
59. The relevant sections of the Act state as follows:
120(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.
…
120(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.
60. The applicant relied upon risk factors 5(a) and 5(b) of Instrument № 76 of 1998 concerning psychoactive substance abuse or dependence and alcohol dependence or alcohol abuse. With regard to his psychiatric condition, the applicant relied on factors 2(a), (b), (c) and (f) and factor 5(a) of Instrument № 3 of 1999 concerning post traumatic stress disorder.
61. Both of the relevant SoPs define experiencing a severe stressor in similar terminology, except that the definition in Instrument № 3 of 1999 has the requirement that the event or events might evoke intense fear, helplessness or horror. In the SoP, experiencing a severe stressor is defined in clause 8 in the following terms:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
62. The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 relating to the reasonable hypothesis standard of proof. The series of steps are as follows:
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 an 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.
SUBMISSIONS BEFORE THE TRIBUNAL
63. The applicant contended that he met all criteria of factor 2(b) of Instrument № 3 of 1999, in particular criterion (A)(i) and (ii), which states:
2(a) …
(b)…
(A)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
64. The applicant and his witnesses described five episodes of exposure to traumatic events during the applicant’s Vietnam service and, on the evidence, the applicant’s psychological status had changed before he left Vietnam. The applicant’s alcohol intake had increased during service in response to these traumatic events (Critch v Repatriation Commission (1996) 43 ALD 574) and had escalated further upon return to civilian life. The applicant’s psychiatric disorder had led to alcohol dependence and abuse or, in the alternative, the applicant’s alcohol abuse and dependence resulted from exposure to a severe stressor within the two years immediately before the onset of the dependence/abuse (factor 5(b) SoP 76 of 1998).
65. The respondent challenged the diagnosis of PTSD (Repatriation Commission v Cooke (1998) 90 FCR 307) and submitted that the stressors relied upon by the applicant did not occur or, if they did, were not sufficient to cause intense fear, helplessness or horror. The adjective intense qualifies all three nouns (Gerzina v Repatriation Commission (2003) 176 FLR 426) and in the respondent's opinion, the applicant’s stated response to each traumatic event was not intense.
66. The respondent contended that the applicant commenced drinking alcohol and using marijuana prior to his conscription. Throughout his service, the applicant had been classified as a clerk (administration) and, as such, he would not have seen active service beyond occasional relief posting at the fire support base.
67. Official army records from November 1970 to June 1971 confirmed the incident of the attack on the Dat Do village and the damage to a Land Rover and its occupants by a landmine, although the dates and some details of these events did not tally with the applicant’s evidence. The remaining three stressor incidents, referred to as tracer fire at the Horseshoe, the loading of body bags at Long Binh Airport and the shooting of a Vietnamese civilian on a bridge near Cat Loh, had not been reported.
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE
TRIBUNAL
68. The applicant has raised three hypotheses. First, that he suffered severe psychosocial stressors during his operational service in Vietnam and, as a consequence, developed PTSD, which, in turn, led to alcohol dependence. Secondly, that, if he did not meet the criteria for PTSD, he was suffering from GAD, which, in turn, led to alcohol dependence. Thirdly, or in the alternative, his alcohol dependence arose from his experiencing a severe stressor during his operational service. All three of these hypotheses were based on the development of his symptomatology within two years of experiencing a severe stressor.
69. Having examined all the material before it, the Tribunal has formed the opinion that there is sufficient material pointing to the hypotheses. There is nothing to suggest that the hypotheses are not reasonable. They are not contrary to proven or known scientific facts and they are in no way fanciful or untenable. The parties are in agreement that the relevant SoPs are Instrument № 58 of 1998 concerning depressive disorder, Instrument № 76 of 1998 concerning psychoactive substance abuse or dependence and alcohol dependence or alcohol abuse, Instrument № 3 of 1999 (as amended by Instrument № 54 of 1999) concerning PTSD and Instrument № 1 of 2000 concerning anxiety disorder. As stated earlier in these reasons, following the hearing of all the psychiatric evidence, which was unanimous, the Tribunal determined that the SoPs regarding anxiety disorder and depressive disorder were not applicable to the facts before it.
70. The applicant, who was a clerk prior to his conscription into the army on 28 January 1970, served in Vietnam from 26 November 1970 until 12 August 1971. He had not wanted to go to Vietnam and, in retrospect, stated he should have been a conscientious objector. He was not given any choice as to where his served. Throughout his time in Vietnam he was classified as a clerk administrative. The evidence before the Tribunal is that he changed roles with another regular army bombardier and within one month of his arrival in Vietnam, he was performing active, and not clerical, duties. This is not recorded in his army records nor could it be confirmed by WriteWay. However, the Tribunal noted that Major Kocka and Mr Collins, who served in Vietnam with the applicant, throughout their evidence referred to the applicant as Gunner Fielden.
71. The applicant has detailed five stressful events that occurred during his period in Vietnam and which caused him great distress. These have been referred to as his duties at the Horseshoe base where tracer fire was common and where much of the duty was performed at night; the episode at the Dat Do village where he viewed the corpses of several Vietnamese killed in the fire fight; his experience at Long Binh Airport where he viewed the loading of body bags, containing United States military personnel, on to a Hercules transport aircraft; the shooting of a Vietnamese civilian motor cyclist at a bridge, one metre from a vehicle in which the applicant was travelling, and being a witness to the detonation of a landmine under a Land Rover containing Australian military personnel, when crossing a bridge. These events were of varying severity based on the applicant’s evidence, but appeared to have had a cumulative effect. The Tribunal notes that the level of stress caused by any event is a subjective test.
72. The applicant described himself as, essentially a social drinker prior to his conscription. His drinking was limited to social events and he denied that the two episodes in which he was charged with an offence were related to excessive alcohol intake. These two events involved a charge of assault, which occurred at a party, and a driving offence, when he claimed he changed places with the driver of a vehicle which was involved in an accident, because the driver's blood alcohol would have been high. The applicant’s alcohol consumption increased throughout his time in Vietnam, particularly after stressful events when, he stated, he would drink until he could not remember the event. He spent 17 days in detention, immediately prior to his return to Australia from Vietnam, having been found drinking in his tent. On return to civilian life, the applicant did not work for a period of several years and then obtained relatively non‑skilled work, having found it impossible to return to clerical duties. He has not worked since 1992. His drinking escalated after his service and was a major contributing factor to the failure of his marriage.
73. The evidence of Major Kocka and Mr Collins, essentially, substantiated the applicant’s evidence regarding the stressful episodes with the exception of the episode at Long Binh Airport. There were inconsistencies in the evidence with regard to time and details. For example, how many Vietnamese were killed in the Dat Do village attack? Mr Collins receives a disability pension at the special rate, having developed PTSD. His claim is based on the episode of the shooting of the Vietnamese motor cyclist on a bridge near the village of Quan Moc. When challenged with the psychiatric report of Dr Keshava, who had examined and treated Mr Collins, Mr Collins vehemently stated that the psychiatrist had made a mistake and that his claim had always related to this episode, as described by the applicant. Mr Collins advised that this episode had not been reported to the commanding officers as the group had taken the Land Rover without permission and were, in effect, AWOL. Major Kocka, who had shared a tent with the applicant for a period of four months, had noted a change in the applicant’s state of mind towards the end of the applicant’s tour of duty. He described the applicant as going from one problem to the next. He was always in trouble.
74. Colonel Church had conducted investigations on behalf of WriteWay at the request of the respondent and looked at the five stressful episodes the applicant claimed to have experienced. He was only able to confirm two events, namely the attack on Dat Do village and the damage to a Land Rover by a landmine with consequent injury to the passengers. Colonel Church doubted the applicant's statement that he had seen active service, as at all times he had been classified as a clerk. However, he was not able to deny unequivocally that any of the other events had occurred. Unfortunately, Colonel Church had been under the impression that the applicant had returned to Australia in June 1971 and had not checked the records beyond that time. The applicant had returned on 12 August 1971.
75. The applicant was seen by three psychiatrists, one of whom was his treating psychiatrist. All three were of the opinion that the applicant suffered from PTSD with some depressive symptoms and alcohol dependence. They agreed that these conditions came under the same umbrella, namely the diagnosis of PTSD. All three were also of the opinion that the applicant met the criteria of Instrument № 3 of 1999 (as amended by Instrument № 54 of 1999), although they acknowledged that such a determination was the province of the Tribunal. The Tribunal notes that the two of the three reporting psychiatrists felt it possible that the applicant’s longstanding alcohol dependence and abuse may have resulted in cognitive damage and may have affected his memory.
76. Based on the psychiatric expert evidence, the Tribunal is satisfied that the correct diagnosis is PTSD with alcohol dependence and some features of depression, and possibly, anxiety.
77. The Tribunal sets aside the decision under review and finds that the applicant's PTSD and alcohol dependence are war‑caused within the meaning of the Act and that the requirements of SoP 3 of 1999 (as amended by 54 of 1999 and 76 of 1998) are met. The matter is remitted to the Repatriation Commission for determination of the level of pension payable to the applicant.
I certify that the seventy‑seven [77] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 14 May 2004
22 June 2004
Date of Decision: 18 August 2004
Counsel for the applicant: Mr C. Thomson
Solicitor for the applicant: Peter J. Liefman
Advocate for the respondent: Mr K. Herman
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