Finger and Repatriation Commission
[2005] AATA 400
•4 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 400
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1342
VETERANS’ APPEALS DIVISION
Re: LESLIE LEONARD JOHN FINGER
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 4 May 2005
Place: Melbourne
Decision:1. The Tribunal varies the decision under review, as follows:
(a)the condition described as peptic ulcer disease is amended to ulcerative esophagitis, secondary to gastro oesophageal reflux;
(b)the ulcerative oesophagitis is determined to be a war‑caused disease, with effect from 20 May 2001; and
(c)the condition described as depressive disorder is amended to depressive disorder with anxiety and remains a non war‑caused disease.
2.In all other respects, the decision of the Repatriation Commission dated 20 November 2002, as varied by the decision of the Veterans’ Review Board dated 24 September 2003, is affirmed.
3.Pension remains payable at 30 per cent of the general rate with effect from the 20 May 2001.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – post traumatic stress disorder or chronic depressive disorder – total amnesia with respect to any events experienced by the applicant during service – assumptions relating to severe stressors – failure to fit Statement of Principles template – conceded ulcerative oesophagitis as war‑caused – special rate of pension
Veterans’ Entitlement Act 1986
Statements of Principles
Instrument of 3 of 1999, as amended by Instrument 54 of 1999,
concerning to post traumatic stress disorder
Instrument 58 of 1998 concerning depressive disorder
Instrument 52 of 2002 concerning gastro oesophageal reflux
Instrument 62 of 1999 concerning gastro oesophageal reflux disease
Instrument 21 of 1999 concerning peptic ulcer disease
Bull v Repatriation Commission (2001) 66 ALD 271
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Law v Repatriation Commission (1980) 29 ALR 74
Re Boar and Repatriation Commission (AAT 9124; 26 October 1993)
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
Re Repatriation Commission and Stares (1996) 41 ALD 212
Re Robinson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cooke (1998) 90 FCR 307)
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Whetton (1991) 24 ALD 33
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
4 May 2005 Miss E.A. Shanahan, Member
1. This is an application by Leslie Leonard John Finger (the applicant) for review of two decisions of a delegate of the Repatriation Commission (the respondent) dated 3 May 2002 and 20 November 2002. The two decisions were affirmed by the Veterans’ Review Board (VRB), following amendments to the diagnosis of the claimed conditions, on 24 September 2003. The VRB found that no severe psychosocial stressor had been identified to fit the template of the Statement of Principles (SoP) concerning a depressive disorder or the condition of peptic ulcer disease (ulcerative esophagitis). The VRB also found that the material before it did not raise a reasonable hypothesis within the meaning of the s 123 of the Veterans’ Entitlements Act 1986 (the Act), with respect to the applicant’s claim that his endogenous eczema is war‑caused. The VRB assessed the pension payable to the applicant at 30 per cent of the general rate based on a combined impairment rating, under the Guide to Assessment of Rates of Veteran’s Pensions (5th Edition) (GARP 5), of 15 points.
2. Mr Finger was represented by Mr D. De Marchi, solicitor, and the respondent by Mr K. Herman, an advocate with the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). The parties tendered the following documents:
Applicant’s exhibits
·Applicant’s Statement, dated 5 August 2004 (Exhibit A1)
·Applicant’s Work History, dated 1 September 2004 (Exhibit A2)
·Further Applicant's Statement, dated 16 February 2004, regarding his reflux symptoms (Exhibit A3)
·Statement of the Applicant’s wife, Anita Finger, dated 19 March 2004 (Exhibit A4)
·Letter from Mr G. Reading, dated 3 August 2004 (Exhibit A5)
·Further letter from Mr G. Reading, dated 15 September 2004 (Exhibit A6)
·Report of Mr R. Marshall, dated 1 April 2004 (Exhibit A7)
·Report from Dr R. Peterson, dated 30 March 2004 (Exhibit A8)
·Report of Dr E. Cole, dated 1 April 2004 (Exhibit A9)
·Further report of Dr E. Cole, dated 1 September 2004 (Exhibit A10)
·Report from the Unit Street Medical Clinic including clinical data, dated October 1974 to May 2002 (Exhibit A11)
·Original photographs from Vietnam taken during service by the applicant (Exhibit A12)
·Table entitled “Our Achievements” from a book titled “Mission in Vietnam (Exhibit A13)
·Copies of emails exchanged between the applicant and Mr J. Morris and Mr. M Johns, (Exhibit A14)
·The jacket of the book “Mission in Vietnam” including data relating to “Operation Hawkesbury”, (Exhibit A15)
·Respondent’s exhibits
·Transcript of VRB Hearing, dated 24/9/2003 (Exhibit R1)
·Report of Colonel Church, dated 1/2005 (Exhibit R2)
·Further report of Colonel Church, dated 14/11/2004 (Exhibit R3)
·Further report of Colonel Church, dated 15/7/2004 (Exhibit R4)
·Further report of Colonel Church, dated 19/7/2004 (Exhibit R5)
·Report of Dr R. Horsley, dated 17/9/2004 (Exhibit R6)
·Report of Dr L. Walton, dated 12/8/2004 (Exhibit R7)
·Letter from Mr J. Innes to Colonel Church, dated 29/11/2004 (Exhibit R8)
·Report from Dr L. Walton, dated 20/1/2005 (Exhibit R9)
·Psychological records relating to the Applicant (Exhibit R10)
·Applicant’s Service Records (Exhibit R11)
·Clinical notes of Station Medical Clinic (Exhibit R12)
·Records from Austin Repatriation Hospital (Exhibit R13)
·Personnel file relating to the applicant from Carrier Air Conditioning Pty Ltd (Exhibit R14)
·Clinical notes from Dr R. Peterson (Exhibit R15)
BACKGROUND TO THE APPLICATION
3. Mr Finger, now aged 59 years and 9 months, served in the Royal Australian Army (the army) from 1 February 1967 to 31 January 1969 and rendered operational service in Vietnam from 21 May 1968 to 19 December 1968. He was called‑up for National Service in early 1965, but his service was deferred for two years to enable him to complete his apprenticeship in refrigeration mechanics. Shortly after commencement of his National Service, Mr Finger’s mother died. He had been extremely close to his mother and estranged from his abusive, alcoholic father.
4. On completion of his army training, Mr Finger saw service in the Signal Platoon of the 4th Battalion in Vietnam. Mr Finger recalls that in the first three months in Vietnam he was based at army headquarters in Nui Dat. His memory of the events experienced, his work, which company he was attached to and any involvement in a military operation is essentially negligible. Mr Finger has endeavoured to revive his memory of his Vietnam service by consultation with other members of the Signal Platoon, none of whom recall any stressful events. Only one member, Mr G. Reading, can state he knew Mr Finger while in Vietnam. Mr Finger has read the book titled “Mission in Vietnam” (the relevant chapter of which is Exhibit A15). His conversations with other veterans led him to believe that he took part in “Operation Hawkesbury”. Mr Reading said it was possible that Mr Finger manned a transmission-relay post on SAS Hill by himself for up to one week.
5. Mr Finger believes he would have been required to perform perimeter patrol duties and has some recollection of being frightened by a noise outside the perimeter. After approximately five minutes, he realised that the noise came from a nocturnal animal.
6. After his service, Mr Finger returned to work as a refrigeration mechanic, working for several small firms until joining Carrier Air Conditioners Pty Ltd (Carrier), in March 1972. He worked initially as a service technician and then as a salesman in spare parts. He was retrenched on the 7 December 2001 and has not worked since except for some voluntary work driving blind aged persons to a community centre and assisting them while at that centre.
7. Mr Finger said he first developed symptoms of depression, 10 to 20 years ago but was unable to be more specific. He noted symptoms of what he now knows to be gastro‑oesophageal reflux in approximately 1980 and was diagnosed as suffering from a peptic ulcer (actually ulcerative oesophagitis) in 2001.
8. Mr Finger first saw a psychiatrist in September 2000, although he had attended a psychologist in the preceding six months. He continues to see the psychiatrist, Dr R. Peterson, regularly. Dr Peterson originally diagnosed chronic depressive disorder, although he considered post traumatic stress disorder (PTSD) as a differential diagnosis. In the absence of any event which could be termed a severe stressor, Dr Peterson favoured the diagnosis of depression. Dr Peterson has since changed his diagnosis to PTSD. Dr Cole has also diagnosed PTSD. Dr Walton and the Austin Repatriation Hospital Veterans’ Psychiatric Unit have made a diagnosis of chronic depression.
9. Mr Finger did not pursue his claim for endogenous eczema. Thus the only claimed conditions before the Tribunal were peptic ulcer/ulcerative oesophagitis and chronic depressive disorder, or in the alternative PTSD.
EVIDENCE BEFORE THE TRIBUNAL
10. At the commencement of the hearing, the respondent conceded Mr Finger’s claim that his ulcerative oesophagitis was war‑caused. The report of Dr R. Marshall dated 1 April 2004 (Exhibit A7) appears to be the basis of this concession. Dr Marshall found that Mr Finger’s ulcerative oesophagitis was completely under control and did not give rise to any disability. Mr Finger confirmed in his evidence that provided he took his medication and avoided over-eating, he was asymptomatic. A gastroscopy in May 2001 revealed complete healing of the cardio oesophageal junction small ulcer. The Tribunal agrees that there is no disability resulting from the applicant’s ulcerative oesophagitis, or what has been, in some reports, termed a peptic ulcer. Thus the only remaining claim relates to Mr Finger’s psychiatric disorder. Should this claim be successful, he has also indicated he will apply for special rate of the disability pension.
EVIDENCE BEFORE THE TRIBUNAL
Mr Finger (Applicant)
11. Mr Finger provided a statement, dated 5 August 2004 (Exhibit A1), in which he declared his recollection of his Vietnam service was confined to spending the first three months at headquarters at Nui Dat. He believed he had been involved in the Operation Hawkesbury as the name was familiar. He said that he had in his possession photographic slides of unknown soldiers taken at rest in country (RIC), at the Peter Badcoe Club in Vung Tau in September 1968 and slides of photographs taken from a helicopter in November 1968 (Exhibit A12). The latter, he believed, he had taken during his return to or from a fire support base.
12. As Mr Finger did not recall any other aspect of his service, including which company he was attached to, he had consulted members of the Signal Platoon. None of these men recalled his presence at a fire support base or his involvement in Operation Hawkesbury, but were able to relate the likely duties he would have performed. These duties included perimeter guard duty and signals duty at a fire support base. Mr Finger had a “vague memory” of the shelling of a fire support base or a company where “people were injured and choppered out”. He did recall that he spent time on what was termed SAS Hill, by himself, for at least one day. His friend, Mr J. Reading, had said it was possible that he was alone at the SAS Hill and that usually the Hill posting was for one week. Mr Reading also advised that soldiers only went for RIC at Peter Badcoe Club after they had been on an operation for six weeks.
13. In examination‑in‑chief, Mr Finger was unable to expand on his written statement.
14. Mr De Marchi pointed out the casualties suffered in Operation Hawkesbury. Mr Finger had no memory of these casualties but was aware of them from his reading of Mission in Vietnam.
15. Mr Finger was able to recall the details of his training, his mother’s death and the leave granted to attend her funeral and his transport to Vietnam by ship. He considered his memory of events before and after his service to be good.
16. Mr Finger stated that he had slept well when he returned from Vietnam, but some 10 to 15 years later, his sleep pattern deteriorated. He could not recall having had a dream since 1969. Mr Finger believed that he had been depressed for some years and acknowledged that he had suffered from road rage for some 15 to 20 years. He had been unaware that his sister, Dorothy Pledger, had noted a major change in his personality on his return from Vietnam.
17. Mr Finger commenced psychiatric treatment in November 2000 and this is ongoing. He was hospitalised at the Veterans’ Psychiatry Unit of the Austin & Repatriation Medical Centre, for two weeks in 2002 after threatening suicide. Mr Finger said he was retrenched in 2001, but had been having difficulty coping with his work at Carrier, prior to his retrenchment. He reported altercations with customers and his managers but also commented that he had never got on with the managers of any of the areas in which he was employed. The branch in which Mr Finger worked was to be closed and originally he believed he would be transferred to the Waverley branch, which would necessitate a drive from Melton South to Waverley twice daily. As a result his retrenchment came as a surprise. Mr Finger stated that, following retrenchment, he made it known in the trade that he was available to work, but he had never submitted a formal application. Mr Finger believed that, but for his psychiatric disorder, he would still be working in the refrigeration mechanics or sales area. Since his retrenchment, Mr Finger has performed voluntary driving and supervision services one half day per week for Vision Australia.
18. At the Tribunal’s request, Mr De Marchi asked Mr Finger what symptoms he currently had regarding his ulcerative oesophagitis. Mr Finger replied that, provided he always took his Zoton, avoided pastries and did not over eat, he was asymptomatic.
19. Mr Herman questioned Mr Finger in respect of his Vietnam service, his work history, the effect of his mother’s death and the work‑related right wrist injury.
20. With respect to the latter, Mr Finger said that he did not have full flexion of his right wrist and continued to suffer arthritic pain.
21. During his working career, Mr Finger said there had been several disagreements with managers, predominately over technical issues which arose from him wanting to do things his way (trans p58). In addition, he had not achieved his sales targets. In his opinion, the targets set were unrealistic. Mr Finger said that he did not believe he would now be able to re‑enter the workforce, given his psychiatric condition and the lack of up‑to‑date qualifications in refrigeration mechanics, although the latter would not apply to sales. Mr Herman referred to Dr Watson's notation, in March 1979, of Mr Finger’s complaint of difficulty in sleeping, and asked Mr Finger when he first had trouble sleeping. Mr Finger said his sleeping difficulties had “gone way back before that” (trans p62) as had his anxiety.
22. Mr Finger confirmed his evidence to the VRB, that he had no recollection of transmitting any radio messages during a major fire fight nor could he recall what he did on SAS Hill. The only episode Mr Finger could recall that gave rise to fear was during sentry duty when he heard noises on the perimeter. After five minutes he realised that the noise had originated from an animal in an adjacent bush.
23. Mr De Marchi questioned Mr Finger about his right wrist symptoms. Mr Finger said that while he continued to have some pain, his wrist injury did not and would not prevent him from working or driving.
24. Mr Fingers said that he had attended ANZAC Day marches and reunions in the past three years, mainly to refresh his memory and obtain information regarding his service in Vietnam. At one stage, he had considered visiting Vietnam with a group of veterans, but this did not eventuate as he was perturbed by the potential damage that such a visit may cause to him.
25. The Tribunal, having noted an entry in Mr Finger’s army psychological record, asked Mr Finger if he had failed to pass the theory exams of the last two years of his apprenticeship. Mr Finger said that he had failed the last year of his apprenticeship and, as a result, did not have certification as a refrigeration mechanic. The Tribunal also queried the applicant’s domestic arrangement prior to his service. Mr Finger said that he had left home at 18 years of age to live with his sister, Mrs Pledger. At the same time, his mother left the family home to live with another of her daughters. Mr Finger and one of his sisters had persuaded his mother to leave home after his alcoholic father became abusive towards a younger sister. Mr Finger was shown the psychological assessment form dated 1 February 1967 wherein a series of standard questions had been answered. He did not believe the writing and the answers were his, but could not be certain.
26. Mr Finger’s statement with respect to his smoking history (Exhibit A3) is no longer relevant as the respondent has conceded that his ulcerative oesophagitis is war‑caused.
Mrs Anita Finger
27. Mrs Finger provided a statement (Exhibit A4) stating that she met her husband in August 1969 at a dancing school and they married in November 1970. When they first met, she said that he was "quiet and withdrawn". Some four to five years after their marriage, she first noted that "he had a very short fuse". Mrs Finger described her husband’s episodes of road rage and an altercation at a football match. In response to a question from the Tribunal, Mrs Finger said the latter incident was relatively recent but the road rage dated back to the 1970s.
28. Mrs Finger dated her husband's sleeping difficulties to when their children were little (late 1970s, early 1980s). Over the years his sleeping pattern had deteriorated with constant twitching when trying to go to sleep and some “whimpering” when asleep. She said that he had avoided socialising for the past 10 years.
29. Mrs Finger believed her husband’s suicide threat in 2002 was triggered by depression and a feeling of worthlessness. In 2001 he was not coping at work. She was unaware of arguments with customers but knew of his disagreements with his bosses. Mrs Finger had never discussed Mr Finger’s Vietnam service with him, but had participated in counselling services at the Austin Repatriation Hospital and with Dr Peterson.
30. The Tribunal asked Mrs Finger if her husband turned his rage and aggression toward her, to which she answered Yes. Mrs Finger agreed that the Austin Repatriation Hospital medical note that Mr Finger’s threatened suicide had been precipitated by an argument with her was correct.
Mr G. Reading (by telephone)
31. Mr Reading adopted his statements (Exhibits A5 and A6). Mr Reading had met Mr Finger during training in 1967 and had served as a signaller with the 4th Battalion for the first three months of his service in Nui Dat. He then served in two rifle companies. He stated (Exhibit A6) that he "did a stint on S.A.S. Hill, monitoring & relaying communications for the Task Force". This he said was a one man, one week operation and to the best of his knowledge the entire platoon completed one of these assignments, including Mr Finger. Mr Reading believed that all servicemen that had undertaken operations in Vietnam were entitled to a period of RIC, which amounted to a two‑night stay at the Peter Badcoe Club in Vung Tau.
32. Mr Reading said Mr Finger had visited him in August 2004 to request support for his application for a disability pension at the special rate. Mr Reading described his own duties as a signaller relaying information. He said he would have associated with Mr Finger during the first three months, when stationed at headquarters, before he, Mr Reading, was transferred to a rifle company.
33. Mr Reading informed the Tribunal that he was in receipt of a disability pension at special rate for PTSD and what he described as stomach problems.
34. Mr Reading was unable to remember which operations he was involved in but did recall his time on SAS Hill, where he was housed in a tent with a large amount of radio equipment. He said that many signallers were assigned to rifle companies to provide communication relays and all intelligence was reported back to Battalion Headquarters.
35. Mr Reading could only recall one probing attack on a fire support base while he was in Vietnam and the battalion did not suffer any casualties. He said there had been an episode concerning Charlie Company, which was strafed by American aircraft.
36. Mr Reading said he had spent RICs at the Peter Bedcoe Club but did not recall being there with Mr Finger.
37. Mr Herman queried Mr Reading’s statement that he had spent up to one week alone on SAS Hill monitoring the radio network, as this seemed beyond the capabilities of one signaller. Mr Reading explained that the signaller’s task was to care for the equipment. The relaying of messages was automatic. If contact was lost, it was the signaller’s responsibility to reconnect the circuit. It was possible for the signaller to leave the Hill as long as they maintained telephone contact with the SAS office or headquarters. Should the signaller be unable to re‑establish the relay, the Platoon Sergeant (Mr W. O’Brien) would come from the 4th Battalion Headquarters in Nui Dat (a couple of miles away) and re‑establish communications.
38. Mr Reading was asked to comment on Mr Finger’s personality prior to Vietnam. He described his group as a "happy‑go-lucky bunch of blokes". Mr Reading was unaware of the death of Mr Finger’s mother soon after his enlistment and could not recollect any unusual reaction by Mr Finger to his mother’s death.
39. Mr Reading could not recall Mr Finger serving in a rifle company, nor could he recall Mr Finger after his first three months at headquarters in Nui Dat.
40. Mr De Marchi suggested there was a high incidence of PTSD among members of the Signal Platoon and asked Mr Reading if he had any explanation for this vulnerability. Mr Reading expressed the opinion that given the army’s reliance on communications in the field, any breakdown in the radio relay could result in "diabolical trouble" (trans p105) and "it is a pretty nervous situation" (trans p105).
41. The Tribunal asked Mr Reading if he in fact intercepted, read or heard any of the messages automatically relayed by the equipment he maintained. Mr Reading said it was possible to intercept or hear the messages, but he did not do so.
Colonel Church (by telephone)
42. Colonel Church of Writeway Research Pty Ltd (Writeway) provided four reports (Exhibits R2-R5) in response to requests from the Repatriation Commission. Colonel Church served in the Australian Regular Army for 36 years, commanded the 2nd Battalion in Vietnam for a period of 12 months in 1970 to 1971 and retired in 1982. During his Vietnam service, the 2nd Battalion was involved in numerous operations. Colonel Church’s investigations into Mr Finger’s Vietnam service were somewhat hampered by Mr Finger’s inability to recall which company he was assigned to during the conflict and also the inability of other members of the Signal Platoon, who were consulted, to remember Mr Finger.
43. Mr Herman asked Colonel Church to outline the arrangements that existed for personnel in Vietnam to qualify for RIC. Colonel Church said all personnel, be they specialists, members of administration or members of a rifle company, had a two‑night spell at the Peter Badcoe Club every six weeks. This arrangement applied to all personnel, including those serving at Battalion Headquarters and fire support bases.
44. Mr De Marchi asked Colonel Church to detail a signaller’s duties and methods of monitoring communications on SAS Hill. Colonel Church advised that a relay station consisted of 2 radio sets lashed together, one to receive and the other to relay. These relay stations were manned by a minimum of 2 people and in the 4th Battalion, by 3 people – an NCO and two signallers (as reported by the Signal Commander of the 4th RAR, Mr J. Innes (Exhibit R8)). Colonel Church also said that a signaller’s duties and operation were fundamental to the conduct of a battle. The exact nature of the duties would depend on which net Mr Finger was involved in, there being an operational net and an administrative net. Battalion Headquarters had 7 men in the operations net and 3 to 4 men in the administrative net for each 24 hours. Rifle Platoons had their own radio operators, who were not members of the Signals Platoon. Each company had its own operational radio net which operated on a different frequency to its communications with Headquarters. Artillery Fire Support bases operated on a distinct and separate net from the Battalion net.
45. Colonel Church agreed with Mr De March that casualties were reported to Headquarters via the network, and that Headquarters had loudspeakers which could carry information to all the Headquarters’ staff. However, loud speaker use was kept to a minimum and communication from a company commander would be received, in this case, by Colonel Church, or an officer wearing headphones. Colonel Church agreed that the task of signallers was or could be stressful during operations and this would apply to Mr Finger if he took part in Operation Hawkesbury. He said that even if at Headquarters, Mr Finger’s involvement would at times have been stressful, as he would have heard about events where people were killed or injured.
46. Colonel Church, on questioning by Mr Herman, explained that the administrative nets dealt with housekeeping matters (trans p125) relating to troop movements, leave, rations and similar matters, and operational and administrative nets were in different locations at Headquarters, but co‑located at company levels.
Dr L. Walton
47. Dr Walton provided two reports (Exhibits R7 and R9), having diagnosed Mr Finger to be suffering from a major chronic depressive disorder with anxiety. Dr Walton considered the alternative diagnosis of PTSD, but rejected that diagnosis as there was no evidence (objective or subjective) of a stressful event, before, during or after operational service; or avoidance, re‑experiencing and stressful recollection of any events, as delineated in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Mr Finger had given Dr Walton a history of depressive symptoms commencing 10 to 20 years previously (i.e. 1984 at the earliest). Dr Walton noted the discrepancies between the history he obtained from Mr Finger and the history Mr Finger gave to Dr Cole. Dr Walton doubted that Mr Finger had suffered a pathological grief reaction to his mother's death. However, the loss of his mother was likely to have rendered him more vulnerable to the adverse psychological consequences of military service. On the other hand, Dr Walton noted there was no data to indicate that Mr Finger's service did not contribute to his psychological disorder.
48. Dr Walton had assessed Mr Finger's impairment according to the Guide to Assessment of Rates of Veteran’s Pensions (fifth edition) (GARP 5) at 40 points and found him to be capable of working 8 hours per week, but not more than 20 hours per week.
49. Dr Walton was of the opinion that Mr Finger's retrenchment was due to the closure of the branch at which he worked, rather than being due to his psychological condition. However, he believed that, had Mr Finger's work performance been evaluated in 2001, he would have been at significant risk of being retrenched or retired due to ill‑health (Exhibit R7).
50. Mr Herman sought Dr Walton's comment regarding Mr Finger's ability to recall stressful events before Vietnam and after Vietnam in contrast to his amnesia about events during his time in Vietnam. Dr Walton could not really explain this phenomenon, but said that the ability to recall stressful events "ought to be fairly consistent throughout one's say adult life at least" (trans p129). Leaving aside Mr Finger's Vietnam service, Dr Walton said that it was common in clinical practice to see persons with a troubled childhood who then suffered loss in adulthood and later developed a depressive condition.
51. Mr De Marchi referred Dr Walton to the statements of Mr Finger's co‑workers at Carrier and those of his sister, Mrs Overton, (T‑documents p125). Dr Walton agreed that the evidence pointed to Mr Finger not working efficiently prior to his retrenchment.
52. Dr Walton had not obtained any history from Mr Finger relating to the extent of his operations in Vietnam and had been unfamiliar with the 4th Battalion's operations until he had heard Colonel Church's evidence at the hearing. Colonel Church's evidence suggested that Mr Finger could have been involved in direct operational duties. However, Mr Finger could not recall them and did not, even if amnesic, exhibit the symptoms of PTSD. Dr Walton said he had found no evidence of a "repressed memory syndrome".
53. Mr De Marchi asked Dr Walton to assume or accept that Mr Finger had experienced a traumatic event in Vietnam; that he did have nightmares, and on that basis, his repression of the memory of the event would point to a diagnosis of PTSD. Dr Walton agreed these factors were included in the DSM‑IV criteria for PTSD, but reiterated that Mr Finger's level of memory loss in relation to his Vietnam service was not consistent with his memory of other events. However, such amnesia was possible as a result of his Vietnam service.
54. Mr Herman asked Dr Walton to comment on the possible diagnosis of a pathological grief reaction relating to his mother's death, as suggested by Dr Peterson. Dr Walton said that he had no information to support such a diagnosis. Mr Herman also asked Dr Walton if an exact psychiatric diagnosis was significant in determining a patient's treatment, to which Dr Walton replied that both medication and counselling "were not necessarily very diagnosis specific" (trans p143).
55. The Tribunal asked Dr Walton in what way did medication and counselling for chronic depressive disorder differ from medication and counselling for PTSD. Dr Walton said the same drugs were used in both conditions but the counselling technique differed, although there were "substantial commonalties in both treatment modes" (trans p144). In response to Mr De Marchi's query as to the importance of getting the right diagnosis, Dr Walton said there were implications in terms of prognosis and treatment, but not in a practical sense of managing persons with psychiatric disorders. Dr Walton said that, to his knowledge, there were no objective tests for the diagnosis of PTSD.
56. The Tribunal asked Dr Walton to comment on the Austin Repatriation Veteran’s Psychiatric Unit's diagnosis of an adjustment disorder and depression, based on Mr Finger having been an inpatient in this unit for two to three weeks in 2002. The Tribunal also asked Dr Walton to comment on Mr Finger's psychiatric assessment on enlistment on 1 February 1967. Dr Walton advised he would "give some weight to the fact that there was no diagnosis made of PTSD because they would, as you might expect, routinely look for that" (trans p146). Dr Walton had not previously seen the Army Psychiatric Assessment, but having read it, he was of the opinion that Mr Finger was a somewhat anxious young man with some concerns about his family's situation and his abilities, but not disabled psychologically at enlistment, though perhaps more vulnerable in terms of psychological risk.
Dr E. Cole
57. Dr Cole provided two reports dated 1 April 2004 and 1 September 2004 (Exhibits A9 and A10). In the second report Dr Cole diagnosed PTSD and depression, acknowledging the absence of any traumatic event which might equate to a severe stressor.
58. Mr De Marchi informed Dr Cole of Colonel Church's evidence: that Mr Finger could possibly have heard about Australian army casualties via the radios he technically monitored. Dr Cole said that this, in his opinion, would provide the necessary stressor.
59. Mr Herman suggested to Dr Cole that his diagnosis was based on an assumption that Mr Finger had experienced a stressor in Vietnam. While Dr Cole agreed with this suggestion, he said he had found Colonel Church's evidence to have strengthened his assumption. Dr Cole considered the leading symptoms of PTSD to be insomnia, traumatic dreams and a reluctance to talk about or confront any situation that might arouse distressing memories. Dr Cole had not obtained any history of flashbacks from Mr Finger and agreed with Mr Herman that the applicant's contemplated trip to Vietnam was contrary to avoidance behaviour. Dr Cole said that he had not obtained a history relating to Mr Finger's childhood and adolescent family relationships. Mr Herman outlined the problems relating to Mr Finger's alcoholic and abusive father, the family break‑up and of Mr Finger's work‑related disappointing experiences. Dr Cole said that Mr Finger's childhood experiences would have rendered him more vulnerable to developing depression and his work difficulties would certainly have aggravated any existing depression.
60. In re‑examination, Mr De Marchi took Dr Cole through criteria 2(a)C and D of the SoP for PTSD and identified "inability to recall the trauma" of criteria C(iii); avoidance of activities that arouse recollections of the trauma, "difficulty…falling asleep" D(i); and irritability or outbursts of anger D(ii). Dr Cole agreed that these features were all present in the applicant.
Dr R. Peterson (by telephone)
61. Dr Peterson is Mr Finger's treating psychiatrist. He prepared two reports dated 30 April 2002 and 30 March 2004 (T13, Exhibit A8) and provided his clinical notes (Exhibit R15). Initially Dr Peterson had diagnosed PTSD on purely clinical grounds. However, in light of the absence of a precipitating event, he concluded that the correct diagnosis was a chronic depressive disorder; which he attributed to the impact of Mr Finger's overseas service experiences exacerbating an abnormal grief reaction (T13 p58). Dr Peterson had assessed Mr Finger's impairment at 42 points and found him unable to work for 8 hours per week (Exhibit A8) because of his nervous disorder.
62. Mr De Marchi acquainted Dr Peterson with Colonel Church's evidence, that it was more likely than not that Mr Finger had been confronted with information regarding casualties and evacuations of members of his battalion while monitoring the Battalion radio relay net. Mr De Marchi also outlined the casualty rate of the 4th Battalion (19 personnel killed during Mr Finger's period of service). Dr Peterson said this information would satisfy the DSM‑IV criteria of a major precipitating event.
63. Mr Herman asked Dr Peterson to provide his qualifications, as Mr De Marchi had neglected to do so. Dr Peterson said that he had graduated in medicine from The University of Melbourne in 1970, and from 1972, was continuously engaged in the practice of psychiatry. In addition, he was a Fellow of the Institute of Australian Psychiatrists and an associate of several societies. Dr Peterson was not a Fellow of the Royal Australian and New Zealand College of Psychiatrists, despite seeking admission for many years. The Tribunal asked Dr Peterson if he had sat the Part 1 and Part 2 examinations of this college, to which he answered yes. The Tribunal asked if he had failed the Part 2 examination and the answer was again yes.
64. Mr Herman informed Dr Peterson of Dr Walton's opinion relating to the importance of a definitive diagnosis in determining treatment. Dr Peterson agreed that the treatment of PTSD and chronic depression were the same except for the level of counselling. Dr Peterson also agreed that with respect to any severe stressors, these were based on assumptions, given Mr Finger's amnesia, although the latter may be a response to any stressors. Dr Peterson suggested that Mr Finger's amnesia could be "an extreme example of the suppression of such memories" (trans p170).
65. Dr Peterson interpreted the applicant's troubled childhood as rendering him more vulnerable to later stressful experiences. He also said that Mr Finger’s employment problems and his wife's threatened retrenchment would contribute to any existing psychiatric disorder.
66. When asked by Mr Herman to date the time of onset of Mr Finger's symptoms, Dr Peterson stated that he had relied on the reports of the applicant's sister and wife, stating that he was a different person when he returned to Australia from Vietnam. The Tribunal notes that Mr Finger did not meet his future wife until nine months after his discharge from the army. Dr Peterson commented on the phenomenon of delayed onset of PTSD.
67. Mr De Marchi asked Dr Peterson to expand on a comment he had made regarding biological markers for the diagnosis of PTSD. Dr Peterson stated that there were objective tests, anatomical, physiological and biochemical in nature, which revealed abnormalities in persons suffering PTSD. He described these changes as "shrinking of particular sub‑cortical nuclei, changes in the hypothalamic pituitary access" (trans p173) and changes in the serum levels of cortisol and ACTH. Dr Peterson said he had been collaborating with a Professor Johnson (Professor of Endocrinology at The University of Queensland) on further research into these changes.
68. Dr Peterson was asked by both Mr De Marchi and the Tribunal to provide references and scientific journal reports on these matters and also on MRI studies of the brains of PTSD sufferers. Dr Peterson was not able to provide this material at the hearing, but undertook to do so in the future. The Tribunal advised it would not take this material into account in arriving at its decision in these proceedings.
DOCUMENTARY EVIDENCE
Psychological record LJ Finger 3790596 (Exhibit R10)
69. The army performed a psychological examination of Mr Finger on 1 February 1967, when he commenced his service. This records that his parents were separated for a period of four years and that he lived with one of his sisters, saw his mother on a regular basis, but did not see his father. The report records that he failed the last two years of his apprenticeship training. He was worried that the study required in his army training might be burdensome. The interviewer, a Sergeant Robinson, commented that Mr Finger showed a lack of animation during his interview (expressionless face). He said the applicant was very slow in answering questions and many times stopped to think out an answer to such questions as
Did you repeat any classes at school? What were your best subjects?.
Sergeant Robinson also commented:
He passed his Intermediate in 1961 and then passed the first two years of his trade refrigeration, but failed the third and fourth years. He says he finds study hard and is worried about taking on too heavy study load. He is not strongly motivated toward OUT and did not show strong enthusiasm for anything during the interview.
A Major Gatterall discussed the results of the interview with Sergeant Robinson and recommended that Mr Finger not be referred for SEL ED. Mr Finger was assigned to the Infantry (Signals).
The Applicant's Service Record (Exhibit R11)
70. This record does not contribute any useful information, except to confirm dates of enlistment and discharge and that Mr Finger was granted four days emergency leave from 14 February to 18 February 1967. The Tribunal assumes that this was the leave granted when his mother died.
General Practice Medical Records – Unit Street Medical Clinic and
Station Street Medical Clinic (Exhibit R12 and Exhibit A11 respectively)
71. The Station Street Medical Clinic records include the Unit Street Medical Clinic records and will be considered together. They cover a period from 3 December 1974 to 9 February 2004.
72. The Unit Street records reveal that Mr Finger first complained of anxiety, difficulty in sleeping and irritability on 14 March 1979. He was prescribed a sleeping tablet on that occasion. Hypnotics were again prescribed on 21 May 1980, as, once more, he was having difficulty sleeping. He remained on various sleeping tablets and next reported difficulty with sleeping on 14 June 1990. This was of two‑week's duration. On 31 January 1991 he reported increasing pressure at work, changes at his work site and emotional outbursts. At that time there were no sleeping problems. He was prescribed Murelax. On 29 October 1994 he again complained of stress at work and difficulty in sleeping and was prescribed Ducene. Throughout the period, he attended his general practitioner for a variety of minor health problems. At various times he was prescribed non‑steroidal anti‑inflammatory drugs for non‑specific joint and bone pains. In December 1995, he complained of epigastric pain, which his general practitioner thought might be due to Naprosyn. By May 1998, his gastrointestinal symptoms had progressed and gastroesophageal reflux was considered the most likely diagnosis and a trial of Zantac commenced. On 8 February 2000 he again reported insomnia and also twitching of the lower limbs when trying to go to sleep. He was referred to the sleep centre at the Alfred Hospital where a provisional diagnosis of restless leg syndrome was made. The Alfred Sleep Centre felt there was some conflicting evidence. Treatment was commenced. The Unit Street records were transferred to the Station Street Medical Centre on 21 September 2001.
73. It would appear that Mr Finger was attending the Unit Street and the Station Street clinics at the same time. The Station Street records in the 1970s and early 1980s relate essentially to musculoskeletal injuries, some of which occurred at work and were treated with non‑steroidal anti‑inflammatory agents (Naprosyn and Indocid). In March 1991 Mr Finger suffered a work‑related fracture of his right wrist, which was treated at the Royal Melbourne Hospital by external fixation. Once more an anti‑inflammatory, Voltaren, was prescribed for his fracture site pain. In February 1992 he reported that he was not sleeping well and was very short tempered. He was commenced on Prothiadin 50 milligrams at night. He remained on modified work duties until mid‑1996. In February 1999 he suffered a back injury at work. This was treated with Naprosyn and Panadeine. In 1999 he presented feeling depressed, tearful and short‑tempered with continuing sleep disturbance. He was subsequently referred to Dr Peterson who had prescribed a Effexor of 75 milligrams daily. In March 2001 he was referred for gastroscopy as his reflux symptoms had increased in severity. Following the gastroscopy, which revealed mild oesophagitis, Zoton was commenced.
74. Over the next three years, the medical records relate predominantly to Mr Finger's ongoing psychiatric disorder, stress at work which culminated in retrenchment on 30 November 2001, and matters relating to his Department of Veterans' Affairs' application for a disability pension. During this period, he remained on anti‑depressants and frequently was prescribed anti‑inflammatory drugs until achieving good control with long‑term Zoton.
75. The Tribunal notes that Mr Finger has been taking anti‑inflammatory agents since the 1980s and these may well have contributed to his gastro‑oesophageal reflux and ulcerative esophagitis.
Photographs (Exhibit A12)
76. This series of photographs were taken by Mr Finger during his Vietnam service. They show a group of unidentified young men at the Peter Badcoe Club and scenes of the South Vietnamese countryside, taken, presumably, from a helicopter.
The Book Entitled Mission in Vietnam and a Table from this publication,
entitled Our Achievements (Exhibit A13 and Exhibit A15)
77. The extracts from Mission in Vietnam, which is a non‑historical account of the 4th Battalion's service in Vietnam, includes a description of Operation Hawkesbury and the Australian Army casualties and the enemy's causalities during the period of Mr Finger's service in Vietnam.
E-mails from Members of the Signals Platoon (Exhibit A14)
78. E-mail correspondence from Mr John Morris and Mr Maxwell Johns were generated following requests from Mr Finger and his wife as to whether they could recall his service in Vietnam. Neither of these gentlemen could recall Mr Finger but related their own experiences in Vietnam. Mr Morris expressed the opinion that Mr Finger may have been a signaller for the trackers but could not confirm that, having spoken with five other members of the Signals Platoon.
The Transcript of the VRB Hearing dated 24 September 2003
79. The salient points of the transcript indicate that Mr Finger could not recall going to a fire support base, although he did remember one trip to the Horseshoe base. Mr Finger did recall spending a couple of nights alone in a single radio relay post on a small hill, but when asked if that was possibly SAS Hill, he replied that he did not think so. Whatever the site, Mr Finger could not recall any thing untoward happening during his two days on the hill. He said that there were no fire fights in the area, nor any small armour traces. Mr Finger could not recall being involved in any transmission of radio messages where there was a major fire fight in progress.
Dr Horsley Report (Exhibit R6)
80. Dr Horsley had assessed Mr Finger with respect to his, work‑related, fracture of the right wrist. However, as this was not being pursued in the terms of his psychiatric disorder or his application for special rate, the parties agreed that Dr Horsley's evidence was not relevant.
The Austin Repatriation Medical Centre –
Veteran’s Psychiatry Unit Medical Records (Exhibit A15)
81. Mr Finger was hospitalised in the Austin Repatriation Veteran’s Psychiatry Unit from 24 June 2002 to 5 July 2002, having been admitted as a matter of urgency following his threatened suicide after an argument with his wife. The Unit obtained a history of sad, irritable and angry mood; loss of motivation; decrease in energy; disturbed sleep pattern, with sleeping during the day and insomnia at night; normal appetite; social withdrawal and negative thinking. He had described frequent rumination about a number of issues: not being appreciated by many people over the years, since childhood (was physically and emotionally abused by his father); being let down and abandoned by the "world", including doctors; inability to work and support the family and
…feeling ashamed to live on wife's earnings". "He completed National Service from 1967 to 1969, spent six months in Vietnam, and based at Nui Dat, in Signals and Switchboard. Involved in one operation but did not witness or suffer any trauma or injuries. He attributed his irritability, road rage, increased startle and generalised anxiety as sequels of his army service.
The psychiatric unit at the Austin and Repatriation Hospital observed Mr Finger closely during his admission and noted that with the use of 5 milligrams of Valium at night he slept well. During his stay as an inpatient, he took one day's leave to go to a dinner dance with his wife and enjoyed himself. A diagnosis of "adjustment disorder and depression" as well as marital discord was made. The unit recommended that Mr Finger attend anger management courses and the men's group referral line. His medication was changed prior to his discharge and he was then taking Citaloprim 40 milligrams; Prizosin 2 milligrams twice daily; Lanzoprazole 30 milligrams, and Diazopan 5 milligrams at night.
The Carrier Personnel File on Mr L. Finger
82. The Carrier personnel file confirmed that Mr Finger had worked for that company from 27 March 1972 to 7 December 2001. He had initially been employed as a service technician, following which he moved to the spare parts section. No performance appraisals were available. The record contained the reports of minor work‑related accidents.
Dr Peterson's Clinical Medical Records (Exhibit R15)
83. Dr Peterson's records confirm that Mr Finger had little, if any, recollection of his Vietnam service. Mr Finger did, however, remember events prior to his Vietnam service and his reaction to his mother's death shortly after he enlisted. (Dr Peterson's notes say that this was five weeks after entitlement, but in fact it was two weeks after enlistment.) The record also includes Mr Finger's sleep history and his twitching and tossing during sleep which resulted in investigation for restless leg syndrome. In other respects, these clinical notes confirm Dr Peterson’s oral evidence to the Tribunal, with the exception that Mr Finger told him he "slept like a log" prior to his enlistment whereas the applicant's psychological records says he slept poorly but attributed this to frequent late nights. Notice is taken of Mr Finger's son's domestic problems and divorce and the comment that Mr Finger and his wife's social activities were always limited and secondary to those of his wife. The Tribunal notes that, in the records of the Station Street Medical Clinic, there are reports of Mr Finger playing squash as late as 2001 and in his evidence before the Tribunal several interstate holidays were referred to. Dr Peterson's records reveal that Mrs Finger frequently accompanied her husband to the consultations and Mrs Finger had said she had attended counselling with her husband. The records would indicate that Dr Peterson was treating Mrs Finger for depression. The records also report activities such as relatively frequent visits to the Pascoe Vale RSL Club, spending weekends in Warrnambool, painting his house in November 2002, visiting Halls Gap in early December 2002, retiling his bathroom in February 2003, performing voluntary work for Vision Australia and holidaying on the Gold Coast in August 2003. The notes contain references to some marital disagreements. Further entries in Dr Peterson's notes relate to Mr Finger's progress and response to medication. On 28 October 2003 Dr Peterson noted that Mr Finger's lack of memory of his Vietnam service was inconsistent with his memory of the rest of his life experiences (Exhibit R15 p14).
Report of Mr J. Innes (Exhibit R8)
84. Mr Innes was the Commanding Signals Officer of 4th Battalion during the 1968 to 1969 tour of duty. He was asked to provide a report by Colonel Church. In order to provide this report he consulted various signal platoon non-commissioned officers and two corporals. Mr Innes, after consultation with his colleagues, had advised that SAS hill was manned by a signal platoon, which, at a minimum, were two soldiers and frequently an NCO. This hill was part of the Australian Special Air Service squadron site. It would appear that none of the personnel consulted recalled Mr Finger.
THE RELEVANT LEGISLATION
85. As Mr Finger had rendered operational service, s 120(1) and (3) of the Veterans’ Entitlements Act 1986 (the Act) are applicable. Section 120A is also attracted and requires the Tribunal to apply any relevant SoP. The parties agreed that the relevant SoPs are № 58 of 1998 concerning depressive disorder; № 3 of 1999 as amended by № 54 of 1999 concerning PTSD and № 21 of 1999, although the latter is now irrelevant given that the respondent has conceded that the applicant's ulcerative oesophagitis is war‑caused.
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.
(2) …
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A(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.
(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.
(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.
86. The applicant has relied upon risk factor 5(a) of the SoP concerning PTSD, which provides:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of posttraumatic stress disorder; or
…
Or in the alternative upon risk factor 5(b) of the SoP for depressive disorder.
87. The SoP for PTSD defines experiencing a severe stressor as
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
The SoP for depressive disorder defines a psychosocial stressor as
an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
88. The applicant, pending his application for PTSD as being a war‑caused condition, also applies for special rate of pension, which attracts s 24 and s 28 of the Act, which provide:
24(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3) This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.
(5) The rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
…
28 In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
SUBMISSIONS
89. The applicant submitted that, on the balance of probabilities, the diagnosis of his psychiatric disorder was PTSD; this diagnosis being supported by the testimony of Dr Cole and Dr Peterson. These doctors had reached the diagnosis on purely clinical grounds, but had noted in their reports that they were unable to identify a severely stressful event during Mr Finger’s service in Vietnam. Having heard the testimony of Colonel Church, in particular his statement that a signaller in Vietnam, at the time of Mr Finger's service, was likely to have been confronted with stressful events relayed by the radios he was servicing, were of the opinion that this was sufficient to meet the requirement of DSM‑IV. The applicant submitted that simply being in Vietnam with an infantry battalion at the time of his service would have been a stressful event (trans p181). In the alternative, should the diagnosis be a depressive disorder, the applicant submitted "that the statement of principle is also met by the requirement of a traumatic event on service albeit it is that qualified traumatic event not identified by the applicant" (trans p185). As all psychiatrists had agreed that Mr Finger's adolescent years had been difficult, they were all of the opinion that the experiences with his abusive alcoholic father would have made him more vulnerable to the development of a depressive disorder.
90. The applicant submitted that his retrenchment was attributable to his psychiatric state (PTSD) and not to the closure of the branch of Carrier where he was employed.
91. The applicant relied upon factor 5(a) of SoP 4 of 1999. Factor 5(a) of SoP 4 of 1999 states that PTSD is connected with the circumstances of a person's relative service: (a) experiencing a severe stressor prior to clinical onset of the post traumatic stress disorder. The applicant also submitted that, on the balance of probabilities, Colonel Church was of the opinion that the applicant would have been exposed to a stressful event by way of confrontation with events relayed via radio that would satisfy factor 5(a) of the SoP. In particular, the applicant relied upon the report of Colonel Church in Exhibit R5, where, at page 4 para 9, he stated:
Mr Finger's duties as a radio operator would have made him aware of what was happening in the world outside the fire support base and he would have known the results of the contracts with the enemy; would have been involved in the process of calling for medical evacuation helicopters to remove casualties. He would have been aware of the serious injuries to the members of the Battalion and may have been affected by this information being past in periods of high stress and following contact with the enemy. (trans p191)
In response to the question posed to him, is it "likely or at least reasonably possible that personnel in a situation similar to Mr Finger would have experienced feelings of substantial stress in reaction to the above?" Colonel Church had replied "I believe it is reasonable – possibility for somebody placed in this situation to be deeply affected by the knowledge that people were being killed and injured somewhere in the Battalion while he was taking down the stream of information that passed at such times over the radio net". The applicant also relied on the evidence of Mr Reading, that there was a high incident of PTSD in members of infantry battalions.
92. In summary, the applicant submitted that he suffered from PTSD as a result of experiencing a severe stressor in Vietnam with the most likely stressor being the entire Vietnam conflict while he was in service; that the hypothesis so raised was reasonable and supported by the evidence before the Tribunal, albeit much of it based on assumption; that he had ceased work because of his PTSD alone and was therefore eligible for a special rate of pension.
93. The respondent submitted that a reasonable hypothesis had not been raised (Bull v Repatriation Commission (2001) 66 ALD 271) as all the material before the Tribunal failed to identify the applicant's exposure to a stressor during his period of service. Not only was there no objective evidence of a severe stressful event, there was likewise no evidence of a subjective reaction involving an experience, giving rise to intense hopelessness, fear and horror.
94. The respondent submitted that the applicant's correct psychiatric diagnosis was of a depressive disorder based on the evidence of Dr Walton and the Veterans' Psychiatric Unit of the Austin and Repatriation Medical Centre. The alternative diagnosis of PTSD, as proposed by Dr Peterson and Dr Cole, rested significantly on certain assumptions. In addition, the respondent submitted Dr Peterson's evidence should not be given the same weight as that of the other three psychiatric reports, as Dr Peterson is less professionally qualified than the other psychiatrists.
95. Based on the diagnosis of depressive disorder, the respondent submitted that the relevant SoP (58 of 1998 concerning depressive disorder) was not met as there was no evidence of the onset of the chronic depression within 2 years of any traumatic event that may have occurred during his Vietnam service. The applicant's evidence had placed the onset of his depression within the last 10 to 20 years and the applicant's wife had first noted changes in his behaviour in approximately 1974 or 1975, some 6 to 7 years after Mr Finger's operational service. The respondent noted the first entry regarding depression in the clinical notes of any treating doctor was in March 1979.
96. On the question of intermediate or special rate, the respondent submitted that, in the opinion of Dr Walton, the applicant should be able to work more than eight hours per week; although Dr Cole was of the opinion that Mr Finger could not work at all. In addition, the applicant did not meet the requirement of s 24(2), the so‑called alone test, as Mr Finger had ceased his last paid job as a result of company restructuring. Having ceased work, the applicant, on his own evidence, had made no serious attempt to re‑enter the workforce. The respondent submitted that other factors such as the applicant's lack of current technical qualifications in refrigeration, his history of a worker's compensation claim and perhaps some minor incapacity from a past injury to his right wrist, would have also attributed to any loss of salary, wages or earnings the applicant might attract.
97. The applicant, in his reply submission, submitted that (based on the authority of Re Repatriation Commission and Stares (1996) 41 ALD 212, Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission v Webb (1998) 51 ALD 575 and Bull - upon which the respondent relied) it was permissible for the Tribunal to make reasonable assumptions in determining whether the hypothesis was reasonable (trans p205).
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE TRIBUNAL
98. At the commencement of the hearing the respondent conceded that Mr Finger's ulcerative oesophagitis (also termed peptic ulcer disease) was war‑caused within the meaning of s 9 of the Act. As, on his evidence, Mr Finger's symptoms were well‑controlled with medication and with reference to GARP, this condition does not alter or impact on his current disability rating of 30 per cent of the general rate of pension.
99. The Tribunal is required to follow the steps enunciated by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97):
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 a 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 s 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.
100. On the balance of probabilities the Tribunal accepts the diagnosis of Dr Walton and the Austin Repatriation Medical Centre’s Veterans' Psychiatric Unit, that the applicant's psychiatric disorder is a chronic depressive disorder (Repatriation Commission v Cooke (1998) 90 FCR 307) and the date of onset of this condition was, at the earliest, 1974 (Re Robinson and Repatriation Commission (1998) 50 ALD 668 and Repatriation Commission v Cornelius [2002] FCA 750). The Tribunal takes particular note of the Austin Repatriation Medical Centre’s Veterans' Psychiatric Unit report, in view of their experience in diagnosing and treating veterans suffering from PTSD and other psychological disorders; and the fact that this unit observed and treated Mr Finger as an inpatient over a period of 11 days. However, as Dr Walton acknowledged that some of Mr Finger's symptomatology was compatible with an alternative diagnosis of PTSD, both of these conditions are considered in this decision for the sake of completeness.
101. The applicant has not enunciated a hypothesis as such, except to state, in their statement of facts and contentions, that "…It is submitted that Depression/Anxiety and Peptic Ulcer Disease are related to the applicant's operational service in Vietnam". At the commencement of the hearing the applicant advised that the claimed psychiatric disorder was PTSD or in the alternative a chronic depressive disorder. In the latter instance, there was one psychiatric opinion that the applicant had suffered an abnormal grief reaction (to his mother's death within days of his commencement of service), which was impacted upon by his operational service to such a degree that the chronic depressive disorder resulted.
102. Having examined all the material before it, the Tribunal has determined that there is material pointing towards the raised hypothesis albeit requiring assumptions to be made (Re Stares; Burns).
103. The parties and the Tribunal agreed that there are SoPs applicable to PTSD, namely Instrument 3 of 1999 as amended by Instrument 54 of 1999; and depressive disorder, namely Instrument 58 of 1998. If the hypothesis is consistent with the template of the SoP, the hypothesis is said to be reasonable. The applicant has relied on factor 5(a) of SoP 3 of 1999 and in the alternative, factor 5(b) or 5(h) of SoP 58 of 1990. The Tribunal, without reference to any finding of facts from the material before it, has determined that the hypotheses raised are reasonable and not contrary to proved or known scientific fact; obviously fanciful, incredible, absurd, ridiculous, not tenable, too remote or too tenuous or that the hypothesis is not inconsistent with the factors in a SoP.
104. In accordance with step 4 of the Deledio determination, the Tribunal must next consider, under s 120(1), whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war‑caused injury. Mr Finger has almost total amnesia of his Vietnam service; he does not know what company he was in and has no recall of any traumatic event which might be classified as a severe stressor, nor has he any recall of an episode of response involving intense fear, helplessness or horror. The requirements of the objective and the subjective elements in DSM‑IV for PTSD are not met (White v Repatriation Commission [2004] FCA 633 and Stoddart v Repatriation Commission (2003) 74 ALD 366). The only information that Mr Finger was able to impart came primarily from discussion with other veterans or was a vague recollection of non‑stressful events.
105. There is no evidence he was stationed at a fire support base, except that he recalls working on a relay radio net on a small hill. In his evidence before the VRB, Mr Finger denied that he had spent any time that he could recall at a fire support base other than one short trip to the Horseshoe base; and he did not believe the small hill he had spent two days at was the so‑called SAS Hill at Nui Dat. He also denied any recall of performing guard duty, having seen any fire fights or small armour tracers (Exhibit R1) or being involved in the transmission of radio messages, as opposed to manning a relay net in a purely technical role, i.e. to make sure the radios were functioning. Having read the publication entitled Mission in Vietnam (Exhibit A15) the name Hawkesbury sounded familiar to him; but apart from that he had no recall.
106. Despite Mr Finger's efforts to refresh his memory by speaking to other Vietnam veterans who may have served at the same time as himself in the Signal Platoon, none of the veterans or the relevant officers are able to remember Mr Finger or are aware of any traumatic events he may have experienced. Mr Reading, who was also a signaller, had known the applicant prior to Vietnam and was stationed with him at Nui Dat Headquarters in the first three months of their deployment. He had no knowledge of the company to which the applicant was posted after the initial three‑month period. The applicant's service record is of no assistance. Mr Reading gave evidence as to his own experiences and denied having ever intercepted and listened to any messages relayed on the radio net. Based on Mr Finger's recollection of spending two days on a "small hill", Mr Reading had suggested this site might be what was known as SAS Hill at the Horseshoe fire base, the site to which he himself had been posted.
107. In relation to the relevant SoP for PTSD, the applicant has denied all of the symptoms delineated in criterion B, obviously has an inability to recall any trauma (criterion C(iii)), but does experience "difficulty falling…asleep" (criterion D(i)) and suffers "irritability or outbursts of anger" (criterion D(ii)) in the form of road rage and verbal abuse directed at his wife. Overall, he does not meet the DSM‑IV criteria for PTSD.
108. Similarly, the applicant does not meet the requirements of SoP 58 of 1998 concerning depressive disorder, which requires the experiencing of a severe psychosocial stressor (factor 5(b)) or, having a clinically significant psychiatric condition within the two years immediately before the clinically worsening of the depressive disorder (factor 5(h)). On Mrs Finger's evidence, symptoms of depression commenced in about 1974, and on the medical evidence in 1978 or 1979, although there is an entry in 1975 (Exhibit R12) that refers to some anxiety arising from family problems.
109. Colonel Church's research and opinion have, of necessity, been very general given the paucity of detail regarding the applicant's service. While he has stated that a signaller's duties could be very stressful and confronting, given the nature of information that might be transmitted, there is no evidence before the Tribunal that the applicant intercepted any such information and Mr Reading's evidence was that he had never intercepted transmitted information. Colonel Church acknowledged that bases had loudspeaker systems, but at the time he commanded the 2nd Battalion in Vietnam transmissions relating to enemy activity, casualties and the like were received by officers via headphones and not broadcast via the public address system. Colonel Church did raise the possibility that Mr Finger might never have been stationed outside the Nui Dat headquarters, in which case he would have spent his entire service in a safe and relatively quiet environment. Mr Finger provided photographic evidence to support his contention that he had spent leave at the Peter Badcoe Club. It was initially thought that this indicated that Mr Finger had been on operational service in a battalion, but Colonel Church's evidence was that everybody, be they administration, support staff such as chefs, or combat soldiers, was entitled to such leave every six weeks.
110. The applicant has submitted that his amnesia is in effect an extreme example of an "inability to recall any important aspects of the trauma" (criteria C(iii) of SoP 3 of 1999 concerning PTSD). There is no evidence before the Tribunal to support this contention.
111. For the reasons given above, the Tribunal is satisfied beyond reasonable doubt that Mr Finger's chronic depression is not war‑caused as provided by s 9 of the Act. Given this determination, the question of special rate is not relevant.
I certify that the hundred and eleven [111] 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: 1 February 2005
2 February 2005
Date of Decision: 5 May 2005
Solicitor for the applicant: Mr D. De Marchi, De Marchi & Associates
Advocate for the respondent: Mr K. Herman
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