Green and Repatriation Commission (Veterans' entitlements)

Green and Repatriation Commission (Veterans' entitlements) [2020] AATA 1526 (1 June 2020)
Division:VETERANS’ APPEALS DIVISION
File Number: 2016/6703
Re:Phillip Green
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 June 2020
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for disability pension – claim for PTSD – whether veteran has PTSD – Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014 (Cth) – category 1A stressor – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Filsell and Comcare (2009) 109 ALD 198; [2009] AATA 90
Green and Repatriation Commission [2007] AATA 40
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 June 2020
INTRODUCTION

Mr Phillip Green, the applicant in this matter (‘the veteran’), submitted a claim for disability pension with the Repatriation Commission (‘respondent’). The veteran claims to have Post-Traumatic Stress Disorder (‘PTSD’) as a result of his military service. The veteran served in the Australian Army (‘the Army’) from 20 August 1974 until 29 November 1977, including a deployment to Malaysia for three months from 1 March 1976 to 6 June 1976. His discharge in 1977 was officially recorded as “retention in the military forces not being in the interest of those forces”.[1] The veteran is now 69 years old. He is no longer engaged in employment.
[1] Exhibit A, T-Documents, T4, p. 26.
CLAIM HISTORY
On 8 September 2002 the veteran lodged a “Claim for Disability Pension” for “Hearing”, “Alcoholism”, and PTSD caused by “communist terrorist activities during my service in Malaysia. I felt threatened on several occasions by having weapons pointed at my direction.”[2] In the claim form the veteran provided more detail regarding his claimed PTSD condition:
I feel that I have a problem, because I have trouble talking to people, cannot sleep, loud noises startle me. I also only remember what I need to. I don’t like being in crowded places or driving a motor vehicle. My wife tells me that I become irritable and angry over the least trivial matters.[3]
The respondent considered that the appropriate medical diagnosis for the veteran’s claimed PTSD condition was “personality disorder”.[4]
[2] Exhibit A, T-Documents, T7, p. 63.
[3] Exhibit A, T-Documents, T7, p. 65.
[4] Exhibit A, T-Documents, T13, p. 102.
On 28 November 2002 the respondent accepted the veteran’s claim for “bilateral tinnitus”, however, it also decided that the veteran’s claimed conditions of “personality disorder” and “alcohol dependence or alcohol abuse” were not related to service.[5] The veteran sought review of this decision, and the decision was subsequently affirmed by both the Veterans’ Review Board (‘VRB’) on 25 November 2004, and again by this Tribunal on 30 January 2007.[6]
[5] Exhibit A, T-Documents, T13, p. 100.
[6] Exhibit A, T-Documents, T24 and T44.
In its decision dated 30 January 2007, this Tribunal, differently constituted, highlighted its concern with the credibility of the veteran as a witness, making the comment that: “…there is sufficient inconsistency in the evidence to lead us to believe that the applicant and/or his wife have not been entirely truthful or accurate in their recollections of the extent of events”.[7] The Tribunal also outlined specific concerns they had with: the inconsistency of the veteran’s evidence regarding what he considered as the most stressful event during his service; the fact that the functional nature of the veteran’s life until 1997 did not point to any significant memory problems; and that some of the evidence given from the veteran’s family and friends could not be afforded much weight, was “convenient”, or lacked credibility.
[7] Exhibit A, T-Documents, T44, p. 302; Green and Repatriation Commission [2007] AATA 40, at [70].
On 11 April 2008 the veteran lodged a “Claim for Rehabilitation and Compensation” with the Military Rehabilitation and Compensation Commission (‘the MRCC’) for PTSD pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), noting “whilst in Malaysia… at various times I had weapons pointed at me in a threatening manner. Also others that also made me fear for my life.”[8]
[8] Exhibit A, T-Documents, T46, p. 324.
That claim was disallowed by the MRCC on 7 May 2008.[9] The decision to disallow the claim was subsequently affirmed under review by both the MRCC on 30 October 2008 and this Tribunal on 12 November 2009.[10]
[9] Exhibit A, T-Documents, T47, p. 326.
[10] Exhibit A, T-Documents, T48 and T56.
As to the present application, on 1 December 2014, the veteran lodged a further claim for disability pension for PTSD with the respondent.[11] On 12 November 2015 the respondent determined that this claim was not related to the veteran’s service.[12] The veteran sought review of this decision by the VRB, and the decision was subsequently affirmed on 3 November 2016.[13]
[11] Exhibit A, T-Documents, T57.
[12] Exhibit A, T-Documents, T65.
[13] Exhibit A, T-Documents, T74.
On 8 December 2016 the veteran sought further review of this decision by the Tribunal by way of application dated 8 December 2016.[14] This is the decision which is now under review.
[14] Exhibit A, T-Documents, T2.
ISSUES
There are several issues to be considered in this decision:
·The relevance and impact, if any, of the previous claims made by the veteran;
·Whether the veteran has PTSD;
·If the veteran has PTSD, does the material before the Tribunal raise a connection between the condition and the veteran’s particular service rendered?;
·If there is a connection raised by the material, what is the relevant Statement of Principles (‘SoP’)?; and
·Does the relevant SoP uphold the contention, on the balance of probabilities, that the condition is connected with the circumstances of the veteran’s service?
LEGISLATIVE FRAMEWORK
The veteran’s service in the Army falls within the meaning of “defence service” under the Veterans’ Entitlements Act 1986 (‘the Act’).[15] Therefore, the decision regarding whether or not his claim is defence-caused must be made by applying the standard of proof outlined in subsection 120(4) of the Act. Subsection 120(4) requires this Tribunal to decide the matter to its “reasonable satisfaction”; i.e. for the veteran to be successful it must be established, on the balance of probabilities, that the veteran’s PTSD condition was defence-caused.
[15] Veterans’ Entitlements Act 1986 (Cth) ss 68(1).
Subsection 120B(3) of the Act provides that the standard of “reasonable satisfaction” is to be assessed by reference to any relevant SoPs issued by the Repatriation Medical Authority (‘RMA’).
Section 196A of the Act provides for the establishment of the RMA, which is an independent medical body that issues SoPs based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death. SoPs are binding on the respondent and various review bodies, including this Tribunal.
The relevant SoP in this matter is the Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014. Clause 3 of the SoP sets out the criteria which must be met in order for a PTSD condition to be classified as defence-caused, and includes the following:
A.Exposure to actual or threatened death, serious injury… in one (or more) of the following ways:
(i)directly experiencing the traumatic event(s);
(ii)witnessing, in person, the vent(s) as it occurred to others;…
B.Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
(i)recurrent, involuntary and intrusive distressing memories of the traumatic event(s)…;
(ii)recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s)…; and
…
C.Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
(i)avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); or
(ii)avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and
D.Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
(i)inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs);
(ii)persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (for example, “I am bad”, “None can be trusted”, “The world is completely dangerous”, “My whole nervous system is permanently ruined”);
(iii)persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others;
(iv)persistent negative emotional state (for example, fear, horror, anger, guilt, or shame);
(v)markedly diminished interest or participation in significant activities;
(vi)feelings of detachment or estrangement from others; or
(vii)persistent inability to experience positive emotions (for example, inability to experience happiness, satisfaction, or loving feelings); and
E.Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
(i)irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects;
(ii)reckless or self-destructive behaviour;
(iii)hypervigilance;
(iv)exaggerated startle response;
(v)problems with concentration; or
(vi)sleep disturbance (for example, difficulty falling or staying asleep or restless sleep); and
F.Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month; and
G.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
H.The disturbance is not attributable to the physiological effects of a substance (for example, medication, alcohol) or another medical condition.
Clause 6 sets out a number of factors, and at least one of these factors must be connected with the circumstances of the veteran’s defence service. One of the factors is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;…
The definition of “a category 1A stressor” is outlined in clause 9. It means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault…; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
LAY EVIDENCE
Veteran’s evidence
The veteran provided a statement dated 9 May 2005 as part of this Tribunal’s review of the veteran’s first claim for PTSD in which the respondent considered the appropriate medical diagnosis to be “personality disorder”.[16] In that statement the veteran detailed some of his general impressions of Malaysia. He stated that he heard of an incident where an Australian truck driver was beaten to death, and that the communists blew up cars, police stations and other things. He stated, “I believe my life was in danger the whole time I was stationed in Malaysia”. The veteran listed some of the symptoms he now suffers, including nightmares, being startled by loud noises, hot and cold flushes, irritability, anger outbursts, suicidal tendencies and being anti-social.[17]
[16] Exhibit A, T-Documents, T27.
[17] Exhibit A, T-Documents, T27, p. 164.
The veteran outlined several incidents which occurred while he was in Malaysia, including:
·Field training in thick jungle for three days, when he only had blank rounds. He could hear movement through the jungle and didn’t know what it was;
·On “red letter days” (days of celebration for the communists) all sections were on night duty. It was often raining and very dark, and they could hear people setting off firecrackers or rattling the perimeter wire as if they were trying to get in. The airfield was a target because it contained Australian and Malaysian aircraft. They had no anti-terrorist training. He felt that if someone breached the fence they would have died;
·One day when he was getting off a ferry he witnessed several people being arrested and one of the police officers or soldiers pointed his weapon in the veteran’s direction. He felt as though he “could have been shot at any moment”;
·Whenever he left the base for recreation purposes he had to enter again through the south gate “which was manned by Malaysian guards that were high on drugs a lot of the time… The guards would usually get aggressive and point their machine pistols at us when they were requesting our ID cards”, because the south gate was so close to where the Malaysian aircraft were kept. “I had this done to me on several occasions, so I started using the north gate which was quite a walk to our barracks”;
·One night he was a passenger in a patrol truck, when a Malaysian guard at a guard house yelled at them to stop, but the driver of the truck didn’t hear this. The guard grabbed his machine pistol, and in response the veteran aimed his weapon. Another passenger yelled out “stop” and the truck stopped. The veteran was certain the guards were ready to shoot.
The veteran provided a further statement dated 24 October 2006.[18] In this statement the veteran stated that he recalled “the incidents that occurred in Malaysia like they happened yesterday”. He listed a number of negative symptoms and behavioural changes he experiences including:
[18] Exhibit A, T-Documents, T42.
·He has nightmares about being in the Army or someone trying to kill him;
·He has trouble falling asleep;
·He often wakes up twice a night and takes 1-1½ hours to go back to sleep;
·He has “recurrent and intrusive distressing recollections of events” and has flashback episodes of the traumatic event;
·He avoids thoughts, feelings and conversations associated with the events that occurred in Malaysia. Recalling the events makes him upset;
·He does not associate with his Army friends as it would make him recall what happened in Malaysia;
·He does not socialise and rarely leaves the house;
·He was significantly detached from his family after his Malaysian service. He started talking to most of his family members following his mother’s death and his commencement of medication. Prior to his service he had a very good relationship with his siblings;
·His daughters are scared of him;
·He is irritable and had outbursts of anger for no particular reason. This started after he returned from Malaysia;
·He finds it hard to express affection;
·He cannot see himself doing anything significant in the future;
·His behaviour and personality changed following his return from Malaysia, including not being interested in the Army, which is evidenced by the five disciplinary incidents on his record;
·He has difficulty concentrating and his mind occasionally goes blank;
·Loud noises startle him;
·He suffers from excessive worry and anxiety;
·He would occasionally drink alcohol while he was in Army prior to going to Malaysia, however when he returned from Malaysia his alcohol intake increased;
The veteran detailed the disciplinary incidents which took place following his return from Malaysia. He noted that he wanted to be discharged from the Army, and that is why he went AWOL for 30 days. He stated that his application for discharge was typed by someone else and he was instructed to sign the document. He stated that his reason for leaving the Army was because his behaviour and view of the Army had changed following the incidents in Malaysia, and not because of the reasons listed on his discharge application.
The veteran provided a statutory declaration in support of this application dated 20 April 2017 which stated:
I was deployed to Butterworth Airforce Base, Malaysia from March to June 1976, as Ground Defence with 6RAR. On various occasions when accessing the base at the south gate I was threatened with weapons by the Malaysian Guards, when asking for ID cards. They were very aggressive. This happened to other diggers as well.[19]
[19] Exhibit C.
The veteran also gave evidence at the hearing. He gave the following account of his experience using the south gate at the Butterworth base in Malaysia:
·“… we… constantly had weapons pointed at us from the [HANDAU] guards… They were very poorly trained. They would point a weapon at us demanding ID cards. Sometimes, on a couple of occasions, weapons had been cocked and aggressively pointed demanding ID cards”;
·As far as he knew the weapons were loaded with live ammunition;
·He went through the south gate around four or five times;
·He did not continue to go through the south gate because “it scared the shit out of me. They were dangerous, as far as I was concerned. I did continue a couple more times. If I was with my mates I’d go through there because you can’t admit you’re scared… normally I would go to the north gate which was manned by [HANDAU] guards but also Australian Air Force guards”; and
·The south gate was the preferred gate because the accommodation was right nearby.
The veteran commented that there were several other incidents which took place while he was in Malaysia, including the guard house incident where two guards yelled “stop” but the driver didn’t hear, so the guards drew their machine pistols. The driver stopped shortly afterwards, but the veteran stated that he “thought he was going to come out shooting”.
During cross-examination the veteran was asked about his assessment with Dr Joyce Arnold, Psychiatrist, in October 2002. He agreed that he told Dr Arnold that he was fully functioning, had no difficulties with any psychiatric disorder except for a period of burnout a few years prior, had no difficulty making close relationships and had future goals. However, he disputed the following statements recorded by Dr Arnold:[20]
·That he denied experiencing nightmares, flashbacks and avoidance;
·That he didn’t feel as though he had any problems while he was in Malaysia;
·That while he was in Malaysia he didn’t feel as though he was going to die; and
·That he never felt personally threatened.
[20] Exhibit A, T-Documents, T12, pp. 87, 92.
Mr Brian Maley
Mr Maley provided a statement dated 7 July 2018 in support of the veteran.[21] In this statement he outlined that he had contact with the veteran in December 1974 while they served together. He also met up with the veteran, and described him as a “really happy go lucky soldier as we all were, in our work, and social time”. He states that he was also deployed to Darwin with the veteran in January 1975.
[21] Exhibit D.

Mr Maley stated that he was deployed to Butterworth, Malaysia, on 11 December 1975. He detailed several conflicts which were going on in the area, and stated “this is the situation [the veteran] moved into on 2/3/76”.
Mr Maley stated that he served with the veteran on various exercises in 1976 onwards, after the veteran completed his deployment in Malaysia. He recalled the veteran as having at times “a very angry outlook, very withdrawn, although we all drank alcohol [the veteran] I noticed drank more, and [was] at times very anti Army”.
Mr Maley contacted the veteran again in 2015 after receiving advice from a concerned mutual friend that the veteran “was not travelling well in his life”. Mr Maley believed that the veteran “has retained bad memories from his service times, which he mentions to me more often than not”.
In his statement Mr Maley described how, as an outgoing soldier, he briefed the veteran upon his arrival at the Butterworth Airstrip. He detailed the dangerous conditions that the veteran would have to deal with, including contact with communist terrorists and the HANDAU Malaysian guards at the base who were poorly trained, without basic knowledge of patrolling, undisciplined, and too ready to threaten, with machine guns, Australian soldiers just doing their duty. Mr Maley stated that he believed the threatening actions of the HANDAU guards were a factor which affected the veteran in his personal life and mental wellbeing, as he mentioned this to him on “numerous occasions”. The veteran told Mr Maley the guards had “challenged him on occasions whilst on/off duty, which he felt was quite alarming”.
Mr Maley also gave evidence at the hearing about his own experiences in Malaysia. Mr Maley stated, “There was no briefing… our state of readiness was not given to us – not stated. We were at war. That is the scenario, also, that [the veteran] marched into.” Under cross-examination he confirmed that he was not present in Malaysia at the same time as the veteran and he had no first-hand knowledge of anything claimed by the veteran.
Richard Piggott
Richard Piggott provided a statement dated 9 August 2005, in which he confirmed that he had been posted to Butterworth, Malaysia in 1976.[22] Mr Piggott outlined several incidents which he experienced in Malaysia. He recalled that he had weapons pointed at himself on several occasions, including once when he was with the veteran near a ferry and they saw several people being arrested. He also recalled that the Malaysian guards at the south gate “pointed their weapons at Australian soldiers sometimes if we did not show our ID cards quick enough”.
[22] Exhibit A, T-Documents, T31.
Mr Piggott provided a further statutory declaration dated 4 April 2017, which outlined the following:
“Whilst serving in Butterworth, Malaysia in 1976, I was entering the Southern Gate of the Air Force Base when a guard asked for my ID card. I went to get my ID out of my wallet with the guard pointing his automatic rifle in an aggressive manner. This also occurred at other times to other soldiers when entering the Southern Gate.”
David Piggott
Mr Piggott provided a statement dated 10 October 2005.[23] Mr Piggott stated that during 1971-1973 he was regularly involved in ground security at the Butterworth base. He stated:
There was often verbal and sometimes physical conflict between Australian and Malaysian service men during those times, resulting in stand offs… On a particular night… a Malaysian guard took affront to my presence “I was inebriated”, armed his SMG, and held it to my head. At the time I was endeavouring to return to my barracks via the South Gate to the Airfield. My corporal… intervened in order to ameliorate an awkward and embarrassing situation. These incidences usually were caused as a result of too much alcohol consumed by Aussie soldiers and were regular occurrences…
[23] Exhibit A, T-Documents, T34.
Mr Piggott reaffirmed these comments in his statutory declaration dated 8 April 2017,[24] and commented regarding the incident that, “I did not make an issue of it at the time because I was fairly naïve and had been drinking at the time.”
[24] Exhibit B.
Linton Solomon
Mr Linton Solomon provided a statutory declaration dated 30 May 2017.[25] Mr Solomon stated that he was deployed to Malaysia in the early 1970’s. He noted that Australian soldiers deployed to the Butterworth base were “exposed to significant risk of harm” during this time. He stated, “It was common practice to deploy with live ammunition with expectation of breaches of vital points…”
[25] Exhibit B.
Mr Solomon also referred to the Malaysian guards stationed at the entry and exit points of the base, stating:
Air base sentries were armed with automatic weapons and live ammunition. They could be very nervous depending on their threat level briefings which were not generally known to Australian soldiers. It was not uncommon for armed sentries to challenge people, especially at night.
I have clear recollection of Australian soldiers returning back to base from local leave saying that they had been concerned for their lives after being challenged by armed Malay sentries.
Mark Stewart
Mr Mark Stewart provided a statutory declaration dated 18 August 2016,[26] in which he stated that he was deployed to the Butterworth base in Malaysia for three months in June 1985. He stated that during this deployment he and another soldier witnessed the shooting of the base golf club cook. The cook had refused to stop at a security checkpoint and the guard stationed there opened fire with his weapon and killed the cook.
[26] Exhibit B.
Robert Kenyon
Mr Robert Kenyon provided a statutory declaration dated 22 May 2017,[27] in which he stated that he had been posted to the Butterworth base in the “mid 70’s”. He recounted passing through the south gate while on duty and showing his ID to the Malaysian guard. During this encounter one of the guards had his hand on his weapon and the other guard was about to cock his weapon. Mr Kenyon reported the incident and was later notified that charges would be laid on both guards.
[27] Exhibit B.
Barry Albrighton
Mr Barry Albrighton provided a statutory declaration dated 7 June 2017. He stated that he had served at the Butterworth base during 1976, 1977 and 1979. He recalled being required to patrol the boundary fence of the airbase, and when he walked past the south gate the Malaysian soldier on guard pointed his weapon at him. He stated, “My understanding was that his weapon was loaded with live ammunition and he was under standing orders to challenge everyone who approached his post in this way”.
Richard Green
Mr Richard Green is the brother of the veteran. He provided a statement dated 29 April 2005.[28] Mr Green stated that as a child the veteran was “easy going and happy go lucky”. As a young adult the veteran stayed with Mr Green and his family, and the veteran was “adored” by Mr Green’s wife and children. Mr Green didn’t see the veteran for several years, but caught up with the veteran after his discharge from the Army and “things did not seem to be the same.” Of the veteran’s behaviour Mr Green said that he was “not his normal happy self… he had very few nice things to say about anybody.”
[28] Exhibit A, T-Documents, T32.
After this the brothers had very little contact until the veteran divorced his first wife. At this time Mr Green said the veteran was “very anti everything and our relationship was strained”. Mr Green later saw the veteran at their mother’s funeral, and said “as far as I know this was the only contact he had had with the family in about ten years”. Since the funeral Mr Green has been regularly in contact with the veteran.
Jayne Goodes
Ms Jayne Goodes is the younger sister of the veteran. She provided a statement in support of the veteran dated 14 October 2005.[29] Ms Goodes stated that the veteran was “always a fun person to be around” and “used to come with me to the pub to look after myself and my girlfriends”. She stated, “We were so close and had a wonderful relationship”.
[29] Exhibit A, T-Documents, T33.
Ms Goodes recalled the first phone conversation she had with the veteran after he returned from his deployment overseas; she was excited to tell the veteran about her new life and kids, but “he was very cold towards me and it seemed as if he didn’t want to know me”. She attempted to contact him by phone again but was “faced with the same cold reception”. She didn’t speak to the veteran after this and didn’t see him until their mother’s funeral in 2004. She said, “I could just tell he wasn’t the same person.” Ms Goodes said that she has asked the veteran what happened to cause such a change in him but he didn’t really want to talk about it, however he finally told her about the bad experiences he had while in Malaysia.
Kathryn Green
Ms Kathryn Green is the eldest daughter of the veteran. She provided a statement dated 16 October 2017.[30] She commented, “Growing up with my dad wasn’t easy… He was almost always drunk… He also had a very short temper.” She stated, “He was unpredictable and selfish”.
[30] Exhibit B.
Danielle Green
Ms Danielle Green is the veteran’s youngest daughter. She provided a statement dated 12 October 2017.[31] She recalled that when she was young the veteran was “drunk a lot of the time”, and she remembered him being “angry and emotional most of the time”. She also remembered the veteran responding angrily to a joke she made and telling a story about being overseas and having guns pointed at him.
[31] Exhibit B.
Lisa Green
Ms Lisa Green is the veteran’s second daughter. She provided a statement dated 17 October 2017.[32] She recalled the veteran drinking a lot and being emotional when she was growing up. She stated that she has been able to reconnect with the veteran recently as he has stopped drinking and started looking after himself.
[32] Exhibit B.
Robyn Green
Mrs Green is the veteran’s wife. She provided a statement dated 6 October 2017. In this statement she detailed how the veteran had a breakdown in 1997. She also stated that the veteran found his diagnosis of PTSD hard to accept but he’s been trying to live with it as best as he can.
SERVICE RECORDS
The veteran’s service psychological records include a record of his training interview dated 8 October 1974, which listed the following comments:[33]
·“Sallow-faced chap… claims to be coping without worries. Seems just a bit too glib. On paper, he looks good but in person he causes unease.”
·“A tall solid chap who impresses as a knock about type. Has had difficulty staying in one place and managing his finances. Authority maladjustment noted at school and home, and an unstable job history make this lad a poor pet. Motivation sounded sincere but one must doubt his staying power.”
[33] Exhibit A, T-Documents, T5.
These records also note the following relevant factors at the time of his enlistment:
·The veteran was convicted of “unlawful use of a motor vehicle” in 1969 and “stealing and receiving” in 1970; and
·He had “no close mates”.
A research report on the veteran’s disciplinary record and army service outlined several military and civilian offences committed by the veteran during his service.[34] The report also revealed that the veteran received a warning on 7 October 1977 that he was “inefficient in the performance of his duties” and that unless his efficiency improved he would be discharged from the Army. This inefficiency was due to continual absence without leave. The veteran subsequently applied for discharge at his own request on 25 October 1977.
MEDICAL EVIDENCE
[34] Exhibit A, T-Documents, T6.
Dr Joyce Arnold, Psychiatrist
As part of the assessment process for the veteran’s 2002 PTSD claim, he was examined by Dr Joyce Arnold, Psychiatrist, who provided a report dated 5 November 2002.[35] In this report Dr Arnold noted the following:
“[The veteran] stated that he had been angry for some time and he had met a man recently, who had also been in the army. This person had been diagnosed with Post Traumatic Stress Disorder and obtained a TPI pension for this diagnosis. The man told [the veteran] that he had the same diagnosis and so [the veteran] saw his general practitioner Dr Morgan. [The veteran] states that Dr Morgan diagnosed Post Traumatic Stress Disorder and stated that the patient drank too much. Mr Green was unable to volunteer any other symptoms of his Post Traumatic Stress Disorder.”
[35] Exhibit A, T-Documents, T12.
Dr Arnold noted that the veteran doesn’t drive because he gets “road rage”, and he also “goes off at nothing… when something doesn’t go the way he wants it to.” The veteran stated to Dr Arnold that he had been “irritable and moody for many years now”.
Dr Arnold reported that the veteran complained of poor sleep, only getting approximately four hours’ sleep per night; however, she noted that the veteran goes to bed at 8:00pm and falls asleep straightaway because he has had so much to drink. The veteran advised Dr Arnold that he then wakes at around 1:00am or 2:00am and falls back asleep quickly. Dr Arnold stated that when the veteran was challenged that he had complained of poor sleep, he said that “he actually stayed awake, listening to songs in his head”. The veteran reportedly denied any nightmares, bad dreams or panic attacks at this stage, and stated that he would “doze for one or two more hours until the sun is up”. This reportedly occurred approximately four to five nights per week. The veteran reportedly stated that although he was drowsy, he was not tired, and he did not sleep during the day.
Dr Arnold noted that the veteran’s wife reported that they did not go out and socialise, and the veteran agreed, stating that he “got irritable in company”. The veteran also reported no longer going to the shops.
The veteran reported experiencing “panic attacks”, but Dr Arnold noted that upon specific questioning the veteran does not have the symptoms of panic attacks, but possibly of social phobia.
Dr Arnold reported that when questioned regarding PTSD, the veteran “denies any nightmares, any flashback memories, any avoidance of situations that might remind him of incidents that he had been involved in in the past”. The veteran reported that he has “no difficulty making close relationships and has no sense of (sic) foreshortened sense of future. He has future goals…”
Dr Arnold also reported on the veteran’s past psychiatric history. The veteran reported that he tried to overdose two or three years prior with a handful of Panadeine Forte. He went to sleep but woke up with no problems. He stated that it was an impulsive gesture because he’d “had enough”, however there were no particular issues that he was concerned about. The veteran reported that he no longer had any suicidal thoughts.
Dr Arnold reported that the veteran used to smoke forty to fifty cigarettes per day since he was 15 years old, but gave up in 1999 because of his wife’s poor health. She reported that the veteran drinks approximately eight to ten cans of beer per day. Dr Arnold noted that the veteran “uses cannabis every now and then to help him sleep”, but hadn’t used cannabis since 1998.
Dr Arnold detailed the veteran’s personal history, noting that when he was young he had many different jobs, but then when he turned 30 he decided to join the Army. She noted, “he left the Army because he’d had enough of the discipline”. It was also noted that the veteran had been in trouble whilst he was in the Army.
Dr Arnold discussed the veteran’s posting to Malaysia, and reported:
He stated that he didn’t think that he had any problems whilst he was in Malaysia. Although there were people pointing weapons all the time and he was guarding an airstrip with no bullets in his guns he never felt personally threatened. There was only one night while he was off duty and on a ferry, he was witness to the arrest of two people coming off the ferry. The person who arrested these two men, pointed a gun at him and he quickly retreated. He stated that one night, as they were patrolling the airstrip, they passed some sheds, a Malaysian guard woke up and pointed a weapon at them. When he realised they were Australians, he pulled back. This was somewhat scary to Mr Green but he did not feel that he was going to die.
It was noted that the veteran “felt that he’d coped well with his period of assignment in Malaysia”.
Dr Arnold diagnosed the veteran with Substance Abuse Disorder (alcohol) and Personality Disorder with sociopathic/psychopathic and dependency traits. She reported that there was no evidence of PTSD, and no symptoms referable to it. Dr Arnold noted that his symptoms of poor sleep and irritability are “probably secondary to his alcohol abuse”, and that the veteran’s alcohol abuse is “possibly due to personality traits and dependency”. Dr Arnold speculated that the veteran’s antisocial personality traits had led him to seek the disability pension; he had been able to earn a living post-service but once he ceased work he sought support to maintain his lifestyle. Dr Arnold cited the fact that the veteran had submitted the claim for pension after meeting someone else who had the pension, and the inconsistent and poor history given by the veteran and his wife at the assessment, as further reasons for her impression that the veteran had pursued the claim to obtain a pension and that he had no psychiatric disorder or PTSD related to experiences in the Army.
Dr Rosalie Troup, Psychiatrist
Dr Rosalie Troup, Psychiatrist provided a report on 18 June 2003.[36] In this report Dr Troup outlined a number of stressful situations the veteran reported he had encountered during his deployment in Malaysia. The veteran reported to her that “the whole time he was in Malaysia it was very tense, particularly when they were in situations where he was unarmed and the Malaysians were armed”. The veteran stated that there were a number of incidents where “guns were pointed at him and there was no way of knowing whether the guns were going to fire or not”. The veteran referred to occasions when he was entering the Butterworth base and the Malaysian guards “would spin their weapons around in their hands and say… produce your ID’s”. The veteran told Dr Troup, “they were fooling around but the whole situation was very tense as the guns could have gone off at any time, either deliberately or accidentally”. Dr Troup noted that prior to going to Malaysia the veteran was not irritable and cranky and could get along with other people, however after his Army service he “was not the same person personality wise”.
[36] Exhibit A, T-Documents, T17.
Dr Troup diagnosed the veteran with generalised anxiety disorder, and alcohol dependency disorder secondary to the anxiety disorder. She reported that the veteran does have many of the symptoms of PTSD but she did not believe he would fulfil the relevant criteria. Dr Troup detailed that the veteran has distressing recollections of events, has nightmares about once a month, has flashback episodes, avoids thinking about Malaysia, becomes depressed when he thinks about Malaysia, has some inability to recall important aspects of the trauma, has lost interest in social activities, has difficulty showing emotion, has difficulty falling and staying asleep, is irritable and experiences outbursts of anger, is hypervigilant and startles easily.
Dr P A Grant, Senior Medical Officer Compensation
On 11 July 2003 Dr P A Grant, a Senior Medical Officer from the Department of Veterans’ Affairs reviewed the reports of Dr Arnold and Dr Troup.[37] He recommended that preference be given to the diagnoses of personality disorder and alcohol dependence, as diagnosed by Dr Arnold on the basis that “the presence of heavy ongoing alcohol consumption is a significant factor when considering the basis on which Dr Troup has made a diagnosis of Generalised Anxiety Disorder…”.
[37] Exhibit A, T-Documents, T19.
Dr Jerome Gelb, Psychiatrist
The veteran’s advocate requested a report from Dr Jerome Gelb, Psychiatrist, which was produced on 25 June 2004.[38] Dr Gelb reported the veteran’s statement to him that there were many inaccuracies in Dr Arnold’s report. The veteran stated that he told Dr Arnold that he had significant difficulty going back to sleep once he had woken, that he did have nightmares, that he wakes up fatigued, that he has difficulty concentrating, that he suffers from depressed mood and has suicidal thoughts. The veteran also stated that he reported feeling threatened constantly whilst in Malaysia. The veteran was also concerned that Dr Arnold had misunderstood his farm, stating that he only keeps alpacas as pets and it is not a business venture.
[38] Exhibit A, T-Documents, T21.

The veteran reportedly told Dr Gelb that the Malaysian guards at the south gate were “high on drugs much of the time” and “often aggressive”, so he started to use the north gate instead. The veteran also detailed the incident which involved the truck being told to stop and having weapons pointed at them. The veteran told Dr Gelb that he had readied his weapon for firing on this occasion.
Dr Gelb outlined several other incidents that caused the veteran fear. The veteran reported believing that “his life was in danger the whole time he was stationed in Malaysia”.
Dr Gelb administered the structured interview for PTSD to the veteran. In this interview the veteran indicated a number of PTSD symptoms including intrusive recollections, frequent nightmares, flashbacks, thought avoidance, situation avoidance, loss of interest in previously enjoyed activities, severe sleep disturbance, severe irritability, and severe hypervigilance. Dr Gelb noted that the veteran had experienced these symptoms for approximately 7 years and had a significant impact on his functioning. Dr Gelb also noted that there was no evidence of cognitive deficit, psychosis or perceptual abnormalities.
Dr Gelb concluded that the veteran “experienced stressors during this three months’ service in Malaysia that in my opinion were potentially life-threatening”. He diagnosed the veteran with PTSD and secondary Alcohol Dependence. However, Dr Gelb also noted that there were no significant symptoms present until his breakdown in 1997, so the connection between his PTSD and his Malaysian service is difficult to establish. Dr Gelb ultimately opined that the veteran would have had mild PTSD on his return from Malaysia, but his symptoms worsened in the past seven years.
Dr Gelb also produced a supplementary report dated 21 September 2004.[39] In this report Dr Gelb opined that the diagnoses made by Dr Arnold and Dr Troup should not be applied to the veteran’s conditions. He noted that it appeared neither of these doctors administered the structured interview for PTSD. He also noted that there is considerable overlap in symptoms between generalised anxiety disorder and PTSD, but the veteran has the additional symptoms necessary to allow a PTSD diagnosis.
[39] Exhibit A, T-Documents, T22.
Dr Gelb provided a further supplementary report dated 27 July 2005.[40] This report contained commentary on the decision of the VRB, including Dr Gelb’s opinion that they “got it wrong”. Dr Gelb discussed conversations held with the veteran’s brother, Mr Richard Green, who was of the opinion that the veteran had been severely affected by his experiences in Malaysia. Dr Gelb confirmed the observations outlined in his original reports and stated that the veteran continued to see him for treatment.
[40] Exhibit A, T-Documents, T30.
Dr David Alcorn, Psychiatrist
Dr David Alcorn, Psychiatrist, provided a report dated 27 July 2005 at the request of the respondent.[41] In this report Dr Alcorn discussed the veteran’s history of alcohol use and his nervous breakdown in 1997, after which he stopped work for six months. At the time of his assessment with Dr Alcorn, the veteran reported having not consumed alcohol for some time and, as a consequence, he felt and slept much better; specifically, his mood was better, he no longer suffered from intermittent waking, and he experienced pleasant reminders of Malaysia such as thinking about the great food he had there.
[41] Exhibit A, T-Documents, T29.
Dr Alcorn opined that, based entirely on the reliability of the veteran’s own reporting, it would be reasonable to conclude that the veteran had a form of generalised anxiety disorder as a result of his experiences in Malaysia, however, Dr Alcorn stated that the information given by the veteran must be weighed against the observations of the VRB that the veteran’s history had changed after several examinations, including this reference:
… a description that seems to have worsened since he saw Dr Arnold and Dr Troup.[42]
[42] Exhibit A, T-Documents, T24, p. 148.
Dr Alcorn stated that the veteran’s anxiety condition:
has been complicated by an intermittently present mood disorder which has included irritable and dysphoric mood. It is likely that this mood disorder arises as a consequence of his alcohol abuse, but I note the subject’s evidence of the last twelve months is that he has ceased drinking with ongoing problems with mood irritability.
Dr Alcorn also stated that the veteran manifests “a sense of entitlement, egocentrism and this regard of others behaviour and feelings and probably meets diagnostic criteria for some features of narcissistic interpersonal attitudes and behaviours”.
Dr Alcorn provided a supplementary report dated 2 November 2005, in which he considered the report of Dr Gelb and the statutory declarations made by the veteran’s friends and family.[43] He concluded that the statutory declarations clearly supported a change in the veteran’s behaviour after his service in Malaysia, including social withdrawal, irritability and strange behaviour. He considered that this evidence supported a diagnosis of an anxiety disorder arising within two years of his Malaysian service.
[43] Exhibit A, T-Documents, T36.
Dr Alcorn provided a further supplementary report dated 16 February 2006.[44] In this report he considered whether the veteran’s generalised anxiety disorder would meet the diagnostic criteria. He concluded that it would not, and further information would be required to establish the existence of the disorder on the balance of probabilities.
[44] Exhibit A, T-Documents, T37.
Dr Karen Chau, Psychiatrist
Dr Karen Chau, Psychiatrist, provided a report dated 24 October 2007, which was provided in support of the veteran’s application for compensation to the MRCC.[45] In this report Dr Chau detailed the veteran’s recollection of “several incidents during his service in Malaysia which made him fearful and helpless as he felt his life was endangered” including:
·The south gate incident – the veteran reported believing his life was in danger as the weapon was pointed at him “in an agitated state” and he had heard that “most Malaysian guards were high on drugs and smoking”;
·Red letter days – “Many people approached the fence line over night” and the veteran “felt unsafe with a weapon that would not fire”;
·Guard house incident – The veteran felt unsafe as he was travelling with a weapon with no bullets.
[45] Exhibit A, T-Documents, T45.
The veteran reported having intrusive thoughts of these incidents.
Dr Chau reported:
“[The veteran] stated that he had “never heard of PTSD” until someone who had it pointed out to him that he may have it, given his irritability and social withdrawal since returning from Malaysia”
She noted that the veteran presented with the following symptoms:
·Nightmares, waking once or twice per night, and waking up unrefreshed;
·Doesn’t like to see people now, but when he was in the Army he “got on well with others”;
·Does not believe he has a future;
·Has road rage and is extremely irritable;
·Easily startled by loud noises; and
·Experiences excessive worry.
Dr Chau noted that the veteran denied any present suicidal thoughts.
The veteran’s wife reported to Dr Chau that the veteran used to be “happy go lucky” before his breakdown in 1997. She also advised that she noticed the veteran repeatedly referring to Malaysia during daily life.
Dr Chau recorded that the veteran gave up drinking two years prior. His wife confirmed that this was on the advice of Dr Gelb.
Dr Chau diagnosed the veteran with PTSD, generalised anxiety disorder, social phobia, and alcohol dependence which appeared to be in remission. She used the PCL-M scale to diagnose the veteran with PTSD.
Dr Frank Varghese, Psychiatrist
Dr Frank Varghese, Psychiatrist, provided a report dated 16 June 2009 at the request of the respondent.[46] The veteran reported to Dr Varghese that he was first diagnosed with PTSD in 2002 when a “mate helped [him] to fill out the paperwork”. When discussing events in Malaysia, the veteran referred to the south gate incident and the ferry incident. When asked about the worst incident he experienced, the veteran said, “the pointing of the rifles”.
[46] Exhibit A, T-Documents, T50.
Dr Varghese noted that the veteran had not consumed alcohol since 2005/2006, and reported no withdrawal symptoms. The veteran denied the use of any cannabis.
The veteran reported that he “still has suicidal thoughts”, has sleep disturbance and nightmares, hates crowds, and is “always anticipating bad things happening”. When the veteran was asked when he was last well, he stated that he thinks it was in the 1990’s.
Dr Varghese noted that the veteran “believes he has been significantly harmed by the events and suffers PTSD… he has fallen into a PTSD culture with an external locus of control”. He determined that the veteran did not have PTSD. He considered that the proposition that the veteran has PTSD as a result of his service in Malaysia was “preposterous”; he was not exposed to combat, and did not suffer any physical injury, nor was there a threat of physical injury.
Dr Varghese considered that the veteran’s principle psychiatric issue was alcohol abuse/dependence. He stated that it is quite possible that the veteran suffered a depressive illness some time in 1997, likely related to issues to do with the breakup of his marriage and compounded by the effects of alcohol. He stated that as the veteran’s alcohol use has since considerably moderated his overall psychosocial functioning has improved. Dr Varghese stated that the veteran experiences dysthymic disorder with anxiety disorder, and he has some significant vulnerabilities in personality.
Dr Ivan Holm, Psychiatrist
Dr Ivan Holm, Psychiatrist, provided a report dated 12 June 2015 at the request of the respondent.[47] He noted that he had assessed the veteran over a number of sessions, and had also interviewed the veteran’s wife.
[47] Exhibit A, T-Documents, T62.
Dr Holm diagnosed the veteran with chronic PTSD, and opined that the stressors the veteran described would potentially satisfy the criteria listed in the SoP. He considered that the veteran’s decision to cease work on the advice of his doctor could be linked to his PTSD, and that the veteran is totally and permanently incapacitated for any employment. Dr Holm considered that the veteran’s two most significant symptoms were anxiety and irritability. He also noted the following symptoms:
·Recurrent recollections of events which occurred during his service in Malaysia, which are at times intrusive and distressing;
·Difficulties coping with people;
·Periods of depression and suicidal ideation, and previous engagement in self-harming behaviour;
·He previously had significant difficulties with alcohol dependence, but this was noted to be no longer a problem of clinical significance;
·Increased arousal including sleep disturbance;
The veteran reported that the most stressful event in Malaysia occurred when he was in a truck and they had to be cleared by Malaysian guards; the guards were quite hostile and threatening, and pointed their weapons at him.
Dr Holm reported that the veteran’s mood presented as generally depressed and irritable, and noted that he became quite agitated when discussing the experiences he had during his service in Malaysia.
Mr Chris Goodall, Psychologist
Mr Chris Goodall, Psychologist, prepared a report at the request of the veteran dated 29 May 2017.[48] In this report Mr Goodall noted that the veteran had been seeing him for counselling since August 2009. The veteran reported to him that he had feared for his life whilst serving in Malaysia. Mr Goodall noted that after leaving the Army the veteran started to experience a number of symptoms which are consistent with PTSD, including depression, suicidal ideation, irritability, sleep disturbance, hypervigilance and substance abuse.
[48] Exhibit E.
Dr Bruce Lawford, Psychiatrist
Dr Bruce Lawford, Psychiatrist, provided three reports at the request of the veteran.[49] His first report is dated 28 March 2017. In this report Dr Lawford concluded that the veteran suffers from PTSD and meets the criteria in the relevant SoP. He also determined that the veteran had alcohol abuse disorder in remission, noting that he consumed around two standard drinks per day. Dr Lawford referred to several occasions when the veteran was threatened with a weapon in Malaysia, including at the south gate, when the truck didn’t stop near the guard house, and at the ferry.
[49] Exhibit B.
Dr Lawford provided a further report on 31 July 2017. In this report Dr Lawford detailed his experience treating veterans with PTSD and alcohol abuse disorder. He noted that he had reviewed the statutory declarations made by other veterans who had also served in Butterworth at various times.
Dr Lawford discussed his diagnosis of PTSD, noting that the veteran was threatened with a weapon and exposed to threatened death or serious injury and therefore meets the definition of a category 1A stressor. He recorded that the veteran experiences the following symptoms:
·Recurrent involuntary and intrusive distressing memories of the traumatic events;
·Nightmares and sleep disturbance;
·Avoids stimuli associated with the traumatic events;
·Feelings of detachment or estrangement, and inability to experience positive emotions;
·Irritable behaviour and angry outbursts;
·Hypervigilance; and
·Problems with concentration.
Dr Lawford also discussed the veteran’s alcohol use disorder, which he noted was presently in remission. He stated that this disorder was likely to have exacerbated the veteran’s PTSD.
Dr Lawford noted that he had read the reports of Dr Arnold, Dr Troup, Dr Gelb, Dr Alcorn, Dr Chau, Dr Varghese, and Dr Holm. He disagreed with Dr Arnold’s diagnosis of personality disorder, stating that it is difficult to diagnose personality disorder with a person who has alcohol use disorder. He also stated that persons with personality disorder have great difficulty maintaining long-term relationships, and the veteran had been married for 21 years and enjoys a close relationship with his daughters. He also disagreed that a person would not be threatened by having weapons pointed at them.
He also recorded his disagreement with Dr Varghese. Dr Lawford noted that Dr Varghese’s opinion is inconsistent with the SoP, which in Dr Lawford’s opinion provides that being threatened by a weapon is a sufficient stressor. He also noted that Dr Varghese’s opinion that the veteran’s experiences in Malaysia could not result in any psychiatric disorder is inconsistent with current psychiatric opinion.
Dr Lawford noted his agreement with Dr Ivan Holm with respect to his comments on previous psychiatric assessment and his diagnosis.
Dr Lawford commented on the fact that a number of psychiatrists have noted that the veteran has problems recounting his history. He stated that this could be due to his ongoing PTSD and alcohol dependence disorder, as these affect multiple cognitive functions.
Dr Lawford’s third report, dated 3 November 2017, was provided in response to the report of Dr Shaikh. In this report Dr Lawford pointed out that all psychiatrists who have examined the veteran have found that he suffers from a psychiatric disorder. He also highlighted Dr Shaikh’s lack of research on PTSD specifically.
Dr Lawford also provided further commentary on the report of Dr Varghese. He noted that Dr Varghese’s statement that the veteran’s principal psychiatric issue was alcohol abuse/dependence is no longer correct as the veteran has since moderated his alcohol intake. He also noted that Dr Varghese’s comment that about the veteran’s development of PTSD being “preposterous” is inconsistent with “famous research conducted by Kessler et al in 1995”, which found that certain types of traumatic events, including being threatened with a weapon, were associated with high PTSD rates.
Dr Lawford outlined his disagreement with many of the comments of Dr Shaikh, including his account of the veteran’s mental health symptoms and history. Dr Lawford referred to numerous documents which contradict the opinions of Dr Shaikh, including letters from the veteran’s daughters and his brother. Dr Lawford stated that the veteran had no psychiatric disturbance prior to his service in Malaysia, experienced traumatic events which are accepted in the scientific literature as associated with high risk of developing PTSD, was exposed to these events on several occasions, and had clearly changed behaviour following his service including anger outbursts, problems maintaining work and continued alcohol overuse.
Dr Lawford also gave evidence at the hearing. He confirmed that he has examined the veteran several times and continues to see him. He confirmed his diagnosis of PTSD and alcohol use disorder in remission. Dr Lawford stated that the veteran met all the criteria in the structured interview for PTSD that he administered, and in his opinion, meets the definition of a category 1A stressor outlined in the SoP because he was threatened with a weapon.
During his evidence-in-chief Dr Lawford reiterated all of the symptoms the veteran displays which he considers are consistent with a PTSD diagnosis, including intrusive symptoms, feelings of detachment, anger problems and trust issues. He considered that the clinical onset of PTSD occurred sometime while the veteran was in Malaysia.
Under cross-examination Dr Lawford agreed that he first examined the veteran approximately 40 years after the stressors were said to have occurred in Malaysia. He confirmed that the main stressor that the veteran experienced was having a gun pointed at him at the main gate, and the other incidents were not relevant as they didn’t meet the criteria for a stressor. Dr Lawford was asked about how his diagnosis would be affected if the veteran had never actually experienced having a gun pointed at him at the main gate, and Dr Lawford stated that, “If it was never pointed at him, he wouldn’t have any problem”. He further clarified that the veteran wouldn’t have any psychiatric condition. Dr Lawford was also asked about the relevance that the veteran continued to go through the south gate for social outings after he had a weapon pointed at him, and he stated that there was a certain culture in the Army of not wanting to appear weak, so people would often persevere with things that they shouldn’t. He stated that eventually the veteran decided to go through another gate. He also stated that the veteran would have been embarrassed to tell his mates that he was worried by the incident.
Dr Lawford gave evidence that his assessment and diagnosis were based on what he was told by the veteran, the information he gained from the veteran’s daughters and brothers, corroborative documents, and his understanding that the veteran appeared not to have any issues before he went to Malaysia: “when he came back, he was completely different and had a lot of problems.” He stated, “We had to get other information because there was a suggestion that... he’d been functioning really well…”, but he had lost numerous jobs due to being irritable and he was a “fairly disastrous family man”.
Dr Wasim Shaikh, Psychiatrist
Dr Wasim Shaikh, Psychiatrist, provided two reports at the request of the respondent, dated 27 July 2017 and 19 December 2017.[50] He also gave evidence at the hearing.
[50] Exhibit F.
In his report of 27 July 2017 Dr Shaikh noted that the veteran alleged that four primary incidents led to the development of his psychological condition, including having a weapon pointed at him at the gate, and the Red Letter Days. The veteran “could not recall much of it”, but did recall having guns pointed at him on various occasions. Dr Shaikh noted that the veteran described being scared, “but it is known that his life was never under threat”.

Dr Shaikh noted the veteran’s report that his mental health was “not too bad” between 1977 and 1988. Dr Shaikh commented that during this time he successfully raised a family and was the sole income earner. He stated that his mental health was relatively stable from the late 1980’s until the late 1990’s, at which time his GP advised that he was working too hard and recommended he take a few months off work. The veteran reported that between 1997 and 2002 he had several psychological symptoms including anxiety, reduced socialisation, and irritability. Over recent years the veteran reports experiencing anxiety, sleep disturbances, low mood, social isolation and anger issues. He claimed to have attempted self-harm more than once. Dr Shaikh noted that the veteran reported having much improved mental health over the few months prior; his general mood had improved, he had given up alcohol, he was exercising regularly, and he didn’t experience much anxiety. The veteran reported a good relationship with his wife, with no arguments. He continued to experience sleep disturbances but reported that his nightmares had reduced in intensity and severity.
Dr Shaikh reported that the veteran engaged well in the interview and there was no evidence of impaired concentration or memory, anxiety or agitation. The veteran did report that he had ideas of self-harm, particularly when asked to attend medical assessments, but these thoughts were not consistent.
Dr Shaikh concluded that while the veteran did seem to have weapons pointed at him whilst in Malaysia, it appeared that this was “never under duress and there was not an immediate threat to his personal safety on these occasions”. Dr Shaikh stated that there was no evidence to suggest the presence of psychological distress at the time of his service in Malaysia, or in the years thereafter. He considered that the first sign of psychiatric symptoms did not appear until 1997/1998, but it is probable that his psychiatric complaints at this time related to a combination of work overload, the illness of his wife, and him giving up smoking. Dr Shaikh noted that the veteran again presented with psychiatric distress during 2002, but his alcohol consumption was in excess around this time.
Dr Shaikh referred to the veteran’s history of alcohol use, noting that his alcohol consumption continued to be an issue until early 2017. He considered that the veteran’s symptoms of emotional disturbances, anxiety, social isolation and easy aggression/ irritability were, on the balance of probabilities, related to his alcohol dependency. Dr Shaikh also noted a history of cannabis use.
Dr Shaikh noted that specialist opinions on the veteran’s condition have been divided. He also noted that despite diagnoses of PTSD being made, there have not been consistent reports of re-experiencing phenomena. He also considered that there was no explanation as to why the veteran did not present with any relevant psychiatric complaints for almost 25 years following the relevant incidents.
Dr Shaikh made the following comments:
It appears that in 2002, following a meeting with a friend who advised him regarding his PTSD/TPI claim, [the veteran in hindsight started excavating symptoms that could be reflective of PTSD and has since attempted, via multiple specialists, to have his claim buoyed.
For a diagnosis of PTSD, it is imperative that one is exposed to an incident/incidents where there is a significant threat of personal injury or death. It is not my opinion that [the veteran] was exposed to such an incident/incidents. Nevertheless, even if it were deemed that he did have exposure to such an event, there is no evidence to suggest the presence of psychiatric phenomena in the quarter of a century following his nominated stressors.
Dr Shaikh noted that he is generally in agreement with the opinions of Dr Varghese. He believes that the veteran developed dysthymia around 1997, with a likely relationship to increased workload and family stressors. He also believes that the veteran’s alcohol dependence has likely been a significant contributor to his psychiatric experiences, which is further justified by the fact that the veteran’s mental health and social functioning greatly improved following his alcohol cessation in the last few months.
Dr Shaikh’s supplementary report of 19 December 2017 provided an updated opinion following review of the reports of Dr Lawford and other additional evidence including statements from the veteran and other individuals. Dr Shaikh confirmed that his opinion remains that the veteran does not meet the criteria for PTSD, and that instead he presented with a history of dysthymic disorder which, at the time of assessment, was in remission. At the hearing Dr Shaikh clarified that dysthymia is essentially chronic depression.
In this report Dr Shaikh went through the criteria of the DSM-5. With respect to criterion A, Dr Shaikh noted that he continued to be of the opinion that the veteran was not exposed to threatened death or serious injury; despite having weapons pointed at him the veteran continued to use the south gate and attend bars and nightclubs, particularly when he was not in uniform. Dr Shaikh considered that, had this been a traumatic experience, he would expect that the veteran would have stopped attending the bars and nightclubs.
With respect to criterion B, Dr Shaikh highlighted again that the veteran did not present with persistent re-experiencing phenomena in the 25 years after the event. He considered that the veteran’s recent reporting of such phenomena to himself was of “questionable veracity”, due to the possibility that it was linked to his claim proceedings.
With respect to criterion C, Dr Shaikh noted that there is no evidence that there was an avoidance of trauma related stimuli following the event.
With respect to criterion D, Dr Shaikh noted that despite some of the evidence suggesting that the veteran experienced a change in his personality following his service, there was no evidence of this phenomena being consistent until 1988 when, following increased alcohol consumption and a breakdown in his marriage, the veteran experienced disruption to his mental health.
With respect to criterion E, Dr Shaikh considers that this is not met because there is a lack of objective evidence to support that these symptoms began after the trauma. Further, Dr Shaikh noted that reports of sleep disturbances and irritability could be related to the veteran’s history of alcohol misuse.
Dr Shaikh considers that the veteran meets criterion F, as his symptoms have reportedly lasted for more than a month.
With respect to criterion G, Dr Shaikh considers that even if the veteran presented with symptoms following the event, there was no obvious functional impairment in his social and occupational capabilities. Despite a reported change in personality, the veteran got married and raised three children, and worked as the sole income earner. Any evidence of significant impairment in social and occupational functioning did not exist until the late 1990’s.
With respect to criterion H, Dr Shaikh stated that there has been a consistent presence of alcohol misuse in the veteran’s history, and a recent reduction in his alcohol consumption seems to have led to an improvement in functioning and emotional symptomatology.
Dr Shaikh’s evidence-in-chief confirmed the opinions he outlined in his reports. He also stated that there was some evidence of an alcohol-related mood disorder.
Dr Shaikh was asked about the fact that the veteran continued to go through the south gate despite his claims that this resulted in a weapon being pointed at him, and it was put to him that the veteran did this to avoid looking weak. Dr Shaikh stated, “It doesn’t change my opinion.” He considered if the event was traumatic, a desire to avoid looking weak would not be a sufficient explanation to continue to use the gate, because the gate was only being used for social events.
Dr Shaikh was also asked about his disagreement with the opinions of Dr Lawford. He stated that he believed Dr Lawford’s assessment was based almost entirely on the evidence of the veteran, particularly as the veteran continues to see Dr Lawford.
During cross-examination Dr Shaikh was asked whether he believed that a person having a loaded weapon pointed at them from a metre away would be traumatic to that person; Dr Shaikh stated that this had to be taken in context, and in context he confirmed that he did not believe that the event experienced by the veteran was traumatic or life-threatening.
SUBMISSIONS
Veteran’s submissions
The veteran submits that he meets the requirements in the SoP, and specifically that he meets factor 6(a) of the SoP as he experienced a category 1A stressor. The veteran contends that the category 1A stressors he experienced were both (a) experiencing a life-threatening event and (c) being threatened with a weapon.
Estoppel
The veteran addressed the estoppel issue raised by the respondent. The veteran submits that in earlier claims his memory was “very vague”, but has now improved with psychiatric therapy. The veteran referred to item 3(D)(i) of the SoP, which outlines that “inability to remember an important aspect of the traumatic event(s)” is one of the elements for the definition of PTSD. The veteran also referred to the comments of Dr Lawford in his 31 July 2017 report, where he stated that a number of psychiatrists have noted that the veteran is a difficult historian or has problems recounting his history. Dr Lawford considered that the veteran’s memory problems most likely stemmed from a combination of PTSD and alcohol dependence. The veteran submits that with psychiatric treatment and the remission of his alcohol dependence disorder, he has improved memory and recollections of his military service; furthermore, these recollections are still consistent with most of the evidence he has given previously.
The veteran submits that although his 2002 PTSD claim was made under the same Act, a different SoP was in effect at the time. The veteran referred to several differences in the old SoP, including a now-abolished requirement that the veteran had experienced “intense fear, helplessness, or horror”. The veteran highlighted that under the Act, a veteran can make a claim if there are changes made to the SoP that are based on current scientific evidence which could impact on the veteran obtaining a pension, and it does not matter if the same evidence is relied upon.
The veteran also noted that his second claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The veteran submits that he should not be estopped from relying on the same evidence as in his previous claims for the above reasons.
Diagnosis
The veteran highlighted that Drs Arnold, Troup and Varghese did not use a diagnostic tool such as the Davidson’s Structural Interview for PTSD when assessing the veteran. Conversely, Drs Gelb and Chau both used a diagnostic tool to conclude that the veteran suffers from PTSD. The veteran also submitted that Dr Arnold’s report was filled with numerous errors.
The veteran outlined several concerns he has with the report of Dr Varghese. The veteran submitted that, in addition to making no mention of any formal testing procedures, Dr Varghese also failed to mention the SoP. The veteran referred to Dr Lawford’s comment that it appeared Dr Varghese did not agree with the SoP. Ultimately the veteran queried the validity of Dr Varghese’s report.
The veteran queried whether the medical reports provided for his previous two claims should be taken into account in this claims process.
The veteran also criticised the report of Dr Shaikh, submitting that he simply agreed with some of the previous experts such as Dr Varghese. The veteran took issue with his comment about the veteran’s “misuse of cannabis”.
Dr Lawford diagnosed the veteran with PTSD and confirmed that the veteran meets the SoP criteria for this disorder as he was threatened with a weapon on several occasions. The veteran submits that the diagnosis of Dr Lawford should be preferred as he is the veteran’s treating psychiatrist and has considerable experience in the background of PTSD, particularly when treating veterans. Dr Lawford also outlined why the diagnosis meets the SoP criteria, and his opinion is based on both the reports of the veteran and a considerable amount of collateral information
Respondent’s submissions
Estoppel
The respondent submits that the specific incidents described by the veteran in this claim have already been considered by the Tribunal in its Decision on 30 January 2007.[51] During cross-examination the veteran agreed that the evidence he had provided to the Tribunal during this hearing process, in terms of the stressors he had experienced, was the same evidence that he had previously given during the hearing before the Tribunal in 2007.
[51] Exhibit A, T-Documents, T44.
The respondent submits that there has been no relevant change to both the veteran’s hypothesis and the factual matters put forward by him, including:
·He was not engaged in combat operations while in Malaysia;
·The veteran has communicated an inconsistent account of the events and the associated level of threat associated with those events; and
·Despite the veteran’s claim that the events he experienced were stressful, the evidence indicates that he nevertheless continued to travel through the south gate regularly for social outings.
The respondent submits that the Tribunal remains bound by the findings of fact made by the Tribunal in 2007, with the effect that the veteran is unable to rely on any stressors during his service in Malaysia being causative of his claimed PTSD condition.
PTSD diagnosis
The respondent submits that the evidence does not support a conclusion that the veteran suffers from PTSD. Drs Arnold, Alcorn, Varghese and Shaikh all considered that the veteran does not suffer from PTSD.
The respondent argued that Dr Arnold considered that there were no symptoms of PTSD and no evidence of a traumatic event being experienced by the veteran. Dr Alcorn diagnosed the veteran as instead suffering from alcohol abuse and possible generalised anxiety disorder.
The respondent draws attention to Dr Varghese’s opinion that the veteran did not suffer from PTSD and any experiences that he had while in Malaysia could not result in any psychiatric disorder. He concluded that his principle psychiatric issue has been alcohol abuse.
Dr Shaikh does not believe that the veteran has PTSD on the basis that he was not exposed to any incidents where there was a significant threat of personal injury or death, and in any case the veteran did not display any psychiatric phenomena in the 25 years following the alleged stressors.
The veteran’s evidence
The respondent submits that the veteran’s evidence from when he first complained of PTSD in 2002 is considered to be the best evidence when assessing his claimed PTSD condition, as opposed to his recent evidence.
During his evidence-in-chief Dr Shaikh placed considerable importance on previous evidence from the veteran as opposed to his present recollection of events.
The respondent submitted that Dr Arnold’s report of 5 November 2002 recorded a different history to that now being put forward by the veteran, including a denial of nightmares, flashback memories, and situation avoidance. While the veteran has claimed that parts of Dr Arnold’s report are incorrect, during cross-examination the veteran accepted that he “possibly” had told Dr Arnold that he had no difficulty making close relationships, had no foreshortened sense of future, and that he had future goals, and that he “probably” told Dr Arnold that he had been fully functioning, able to earn a living, and had no difficulties with any psychiatric disorder except for a period of burnout some years ago.
The respondent contends that the alleged stressors described by the veteran are not corroborated by any independent evidence. The veteran’s main lay witness, Mr Maley, agreed that he was not present in Malaysia with the veteran and had no firsthand knowledge of what was being claimed by the veteran.
The respondent submits that the veteran’s evidence regarding the claimed stressors has been previously determined to be inconsistent, untruthful and inaccurate. In 2007 the Tribunal detailed the same stressors as those now alleged by the veteran. In relation to the incident involving the checking of ID cards at the south gate, the Tribunal found that “the applicant has overstated the position about this incident”. In relation to the “truck incident”, where a truck failed to stop near a guard house, the Tribunal concluded that “nothing happened and it was resolved quickly”. In its decision the Tribunal expressed general concerns regarding the credibility of the veteran as a witness and noted several inconsistencies which led the Tribunal to believe that the veteran had not been entirely truthful or accurate in his recollection of events.
Dr Lawford’s diagnosis
The respondent submits that the opinion of Dr Lawford is based on the veteran’s evidence, and if that evidence is unreliable, Dr Lawford’s diagnosis of PTSD cannot be accepted. Dr Shaikh considered that Dr Lawford had incorrectly diagnosed the veteran as suffering from PTSD because his assessment was based almost entirely on reports by the veteran; this is in part due to the fact that Dr Lawford has continued to treat the veteran.
The respondent submitted that during cross-examination, Dr Lawford agreed that contemporaneous evidence of a change in the veteran’s behaviour would be relevant in supporting a diagnosis of PTSD; therefore, by extension, a lack of evidence that the veteran had changed his behaviour at the time of the alleged stressors would not support a diagnosis of PTSD. The veteran continued to travel through the south gate on a number of occasions following the alleged incident, thereby demonstrating no change in behaviour.
The respondent referred to the question put to Dr Lawford whether it was feasible that the veteran may have suffered from some other psychiatric condition if it were assumed that the veteran never had a gun pointed at him at the south gate, to which Dr Lawford replied that in that case the veteran would not have any psychiatric condition.
The respondent submits that an absence of corroborative evidence regarding the alleged stressors and the previously assessed unreliability of the veteran’s evidence means that Dr Lawford’s opinion should not be accepted.
SoP requirements
The respondent submits that, if the Tribunal considers that the veteran does suffer from PTSD, the veteran does not satisfy the relevant SoP. The respondent considers that the veteran has failed to establish that he experienced a category 1A stressor. The respondent submits that even if it were accepted that the veteran experienced a category 1A stressor during his service in Malaysia, this was not, on the balance of probabilities, causative of any diagnosed psychiatric condition.
CONSIDERATION
At the outset of my consideration I state that I respectfully adopt the reasoning of Deputy President Jarvis in Filsell and Comcare[52] that concepts such as estoppel have no place in administrative decision-making. The appropriate mechanism to deal with any abuse of process in the Tribunal is s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) where an application before the Tribunal is frivolous or vexatious. No application for a preliminary hearing under is s 42B of the AAT Act was made by the respondent.
[52] (2009) 109 ALD 198; [2009] AATA 90 at [52].
After the veteran made his claim that he had PTSD he was examined by Dr Arnold. On 5 November 2002 Dr Arnold made a comprehensive 18-page report on the mental health state of the veteran.[53] Dr Arnold, who is an experienced psychiatrist, examined whether the veteran had PTSD. She reported:
On specific questioning with regard to Post Traumatic Stress Disorder, he denies any nightmares, any flashback memories, any avoidance of situations that might remind him of incidents that he had been involved in the past.
[53] Exhibit A, T-Documents, T12.

I do not accept the assertion of the veteran that he did not make these comments to Dr Arnold. The veteran admitted probably telling Dr Arnold that he was:
Fully functioning, able to earn a living, no difficulties with any psychiatric disorder except for a period of burnout some years ago.
I do not accept it as plausible that Dr Arnold had not accurately reported what the veteran had said to her when he accepted that he probably told her other statements that he was reported to have made to her.
Dr Arnold further reported:[54]
The history given about the way in which they approached the Department for a pension, that is an acquiantence [sic] having a pension for PTSD introducing them to an advocate, who then made the diagnosis. This combined with the inconsistencies and poor history given by Mr Green and his wife, strengthen my impression that Mr Green persues [sic] this claim on the basis of obtaining a pension and that he has no psychiatric disorder or post traumatic stress disorder related to experiences whilst he was in the Army. Although he does have the diagnosis of Substance Abuse – Alcohol Dependency, he has little insight into this or wish to seek treatment for the same.
[54] Exhibit A, T-Documents, T12, pp. 98-99.
Ever since Dr Arnold gave her report in 2002 the veteran has on different occasions given an inconsistent account of his experiences in the military and has made several assertions of several stressful incidents. These are referred to in the report of Dr Gelb dated 27 July 2005[55] as well in later accounts of the veteran.
[55] Exhibit A, T-Documents, T30.
In his statement dated 9 March 2005 the veteran asserted that he experienced a number of stressful incidents such as the ferry incident involving a pistol, the guards incident at the South Gate of the base where the guards would check the ID cards and point their machine pistols at him, the Malaysian guards incident where he asserted he had a M60 ready to shoot a guard as well as bar and hotel incidents.
The accounts that have been given by the veteran are not consistent. The veteran told Dr Arnold that he was guarding an airstrip with no bullets in his guns and never felt personally threatened. The veteran has made inconsistent assertions about the guards at the South Gate. In his 2005 statement the veteran remarked that the guards at the South Gate had “red eyes and were aggressive”, he added “The guards would usually get aggressive and point their machine pistols at us when they were requesting our ID cards”. However, earlier in 2003 the veteran had informed Dr Troup that the guards would “would spin their weapons around in their hands and say… produce your ID’s”. The veteran told Dr Troup, “they were fooling around but the whole situation was very tense as the guns could have gone off at any time, either deliberately or accidentally”.
After reviewing the evidence before the Tribunal, I have concluded that the veteran is not a credible witness who has accurately related the events of his military service. I do not make this finding lightly. I do not accept that the veteran has experienced these stressful incidents. This is not a case where the veteran has been unable to remember peripheral events. Dr Alcorn in his report of 27 July 2005 refers to the veteran having pleasant reminders of Malaysia. It is not plausible that the veteran had such reminders if he had experienced the stressful events.
I have borne in mind that the veteran ceased his military service in 1977. The VRB emphasised that his military service in Malaysia was peacetime service which is defence service under the Act and not operational service. There is no cogent evidence which would enable me to accept that at the time the veteran served in Malaysia this was, as Dr Holm has stated in his report of 12 June 2015, a “period where there was extreme tension and constant concerns about attacks on the base”. If this was the case it is not plausible that the colleagues of the veteran would frequent the local bars where they would be vulnerable. It is also not plausible that the veteran would have trained in the Malaysian jungle with blank rounds if there was danger at that time.[56]
[56] Exhibit A, T-Documents, T27, p. 165.
It was 20 years after the cessation of his military service in Malaysia that the veteran said that he experienced a breakdown. Dr Alcorn in his report of 16 February 2006 has referred to the difficulty of there being little in the way of significant symptoms present until the breakdown of the veteran in 1997. Dr Alcorn noted Dr Gelb’s remarks that “the connection between the PTSD and his Malaysian service is difficult to establish”.[57] I accept the conclusion of Dr Varghese that the veteran’s breakdown in 1997 was most likely related to his marriage breakdown and compounded by effects of alcohol. I accept the conclusion of Dr Shaikh excluding the possibility of delayed onset PTSD as there is only limited empirical data supporting the existence of such a condition.
[57] Exhibit A, T-Documents, T37, p. 231.
I rely upon the conclusion of Dr Shaikh who has given cogent reasons in his report of 19 December 2017 why the veteran has never suffered from PTSD:
In Mr Green’s situation, the question is whether his experiences during a three-month prior in 1976 comprised being exposed to “threatened death, actual or threatened serious injury”. In retrospect, Mr Green believes that in various incidents he has noted, he was exposed to threatened death or threatened serious injury. The pivotal events appear to be “the pointing of guns” at the south gate of Butterworth RAF base by Malaysian troops.
Statements provided by other colleagues who were in service at the time confirm that this indeed occurred. However, I continue to remain of the opinion that Mr Green was not exposed to threatened death or threatened serious injury. It is noted that despite such events occurring they continued to engage in usual activity such as attending bars and nightclubs, and continued to use the south gate, particularly when they were not in uniform. Had the “pointing of guns” at the gate been a traumatic phenomenon, one would expect that they would consider not attending to the bars/nightclubs, particularly as they would have to pass the south gate when not in uniform.
I do not accept the conclusions of Dr Lawford who in his report of 31 July 2017 opined that the veteran has PTSD. The veteran has in my view exaggerated the stressful situations that he claims that he experienced. For instance, Dr Lawford refers to the claims of the veteran that “on numerous occasions” the guard at the base “would unsling his rifle from his shoulder and point his weapon at the veteran on return to the base”. I do not consider that this occurred. In his statement of 9 May 2005 the veteran did not make a claim that he was threatened with a rifle. I appreciate that Dr Lawford considers that the difficulty of the veteran in recounting his history could be partly due to his alcohol dependence disorder. However, that does not detract from the veteran’s apparent deliberate changing of his story in major respects.
In my opinion Dr Varghese in his report of 16 June 2009 has provided a comprehensive and fair report in examining the claim of the veteran that he had developed PTSD. I respectfully consider that Dr Varghese was justified in stating that the proposition that the veteran has PTSD as a result of service in Malaysia is preposterous. After the hearing the veteran has taken issue with the report: however, the veteran did not request the attendance of Dr Varghese before the Tribunal in the Hearing Certificate that was lodged by the veteran prior to the hearing.
I can understand why Dr Lawford came to his conclusion which is based on the self-report of the veteran, but I do not accept that the veteran has correctly related his experiences to Dr Lawford. I also conclude that the veteran did not correctly relate his experiences to Dr Chau before she issued her report of 24 October 2007.
I should comment upon the psychological reports. The report of Ms Georgia Ash, Clinical Psychologist, dated 27 July 2017 does not give reasons for the diagnosis of PTSD.[58] I have read the report of Mr Chris Goodall, Psychologist, dated 29 May 2017[59] who reports that after leaving the Army the veteran started to experience a number of symptoms which are consistent with PTSD, including depression, suicidal ideation, irritability, sleep disturbance, hypervigilance and substance abuse (alcohol). While the report of Mr Goodall is useful in providing an outline of the complaints of the veteran, in reporting that the veteran displays symptomatology consistent with PTSD, Mr Goodall certainly has not provided a diagnosis of PTSD by reference to the diagnostic criteria. The report was admitted on the second day of the hearing and the respondent has not had the opportunity to investigate the report. Mr Goodall was not eventually called as a witness.
[58] Exhibit B.
[59] Exhibit F.
The veteran has tendered several statements made by colleagues who served in Malaysia.[60] These statements do not in my opinion directly corroborate the alleged stressful experiences of the veteran. One statement was made by a colleague who served in Malaysia in 1985 while the veteran served in Malaysia much earlier. The veteran himself has related how one of those colleagues regularly frequented a bar. In these circumstances it is not plausible, as one colleague has asserted, that that the veteran served at a time of danger.
[60] Exhibit B.
I have given some consideration to the alcohol dependence condition of the veteran. The 2002 claim of the veteran included claims for PTSD and alcoholism. The veteran in his claim form has asserted that he consumed 8-10 cans of beer a day “because I feel I need it to get through the night to sleep”. The 2007 MRCC claim and the current claim did not include claims for alcohol dependency/abuse. While the veteran has not expressly made a claim for alcohol dependency, I consider that I should examine the evidence before me as it has long been the case that a veteran is not bound by his description of a condition.
In his statement of 24 October 2006, the veteran remarked:
I would occasionally drink alcohol while I was in the Army prior to Malaysia, while I was in Malaysia, I would drink most nights I was not on duty. However, on return from Malaysia my alcohol intake increased, and this probably went hand in hand with my interest in the Army decreasing.
Mr Maley in his statement refers to the veteran drinking a lot after his deployment to Malaysia. Dr Lawford in his report of 3 November 2017 refers to information from the three daughters that the veteran was frequently drinking when they were growing up.
I have concluded that there is no basis for the alcohol dependency condition of the veteran to be service related. Dr Arnold in her report of 5 November 2002 diagnosed the veteran with substance abuse disorder but stated that she could not see any link between the condition and the service in Malaysia. Dr Alcorn in his report of 27 July 2005, which is comprehensive, has made a thorough evaluation of the veteran’s history of alcohol use. At the time of the assessment the veteran reported having not consumed alcohol for some time, and consequently he felt and slept much better. Dr Alcorn also reported that there is no cogent evidence that the veteran’s alcohol abuse, which in Dr Alcorn’s opinion predated the Malaysia service, was permanently aggravated by the veteran’s service in Malaysia.
Dr Chau in her report of 24 October 2007 then commented that the veteran gave up drinking two years previously. Dr Chau diagnosed the veteran as having alcohol dependence appearing to be in remission. Dr Lawford has also diagnosed the veteran as having alcohol abuse disorder in remission.
Dr Varghese in his report dated 16 June 2009 reported that the veteran hadn’t consumed alcohol since 2005/2006. Dr Varghese considered that the veteran’s principal psychiatric issue was alcohol abuse/dependence. Dr Varghese believes that the veteran’s breakdown in 1997 was likely related to his marriage breakdown and compounded by the effects of alcohol. He states that as the veteran’s alcohol use has moderated and his overall psychosocial functioning has improved. Dr Varghese reported that the veteran’s alcohol abuse/dependence is unrelated to Malaysia.
Dr Shaikh noted in 2017 that the veteran had totally given up alcohol recently and had much improved mental health as a result. He noted that the veteran’s alcohol consumption was an issue until early 2017 and considered that the veteran’s symptoms of emotional disturbances, anxiety, social isolation and irritability were likely related to his alcohol dependency.
CONCLUSION
In light of the evidence before the Tribunal, I have concluded that the veteran does not have PTSD and therefore the decision under review must be affirmed. I also conclude that the alcohol use condition of the veteran, which is in remission, is not related to the service rendered by the veteran.
DECISION
I affirm the decision under review.

I certify that the preceding 183 (one hundred and eighty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................
Associate
Dated: 1 June 2020

Dates of Hearing: 16, 17 July 2018

Date final submissions received: 1 November 2018

Advocate for the Applicant: Mr Neville Cullen

Solicitor for the Respondent: Mr Peter Crethary, Moray & Agnew Lawyers

[2020] AATA 1526

1 June 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Causation

Natural Justice

Procedural Fairness

Dates of Hearing:	16, 17 July 2018
Date final submissions received:	1 November 2018
Advocate for the Applicant:	Mr Neville Cullen
Solicitor for the Respondent:	Mr Peter Crethary, Moray & Agnew Lawyers