Gregson and Repatriation Commission - [2002] AATA 934

DECISION AND REASONS FOR DECISION [2002] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nº V2001/1400

VETERANS'     APPEALS        DIVISION       )
           Re      KENNETH GEORGE GREGSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date16 October 2002
PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED: (i) the applicant suffers Post Traumatic Stress Disorder (PTSD); (ii) a reasonable hypothesis has been raised connecting PTSD with service; and (iii) the application is remitted to the respondent to assess pension entitlement in accordance with these reasons.

. . . . . . Sgd Mr J Handley. .. . . . .
Senior Member
VETERANS' ENTITLEMENT – applicant exposed to four specific events in service in Vietnam – whether he "experienced a stressor" – diagnosis of Post Traumatic Stress Disorder conceded by respondent – discussion of Statement of Principles and DSM-IV – decision set aside
Veterans' Entitlements Act 1986
Benjamin v Repatriation Commission [2001] FCA 1879
Re Woodward and Repatriation Commission [2002] AATA 639
Repatriation Commission v Hill [2002] FCAFC 192
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Repatriation Commission v Deledio (1998) 49 ALD 193
Dixon v Repatriation Commission (1999) 59 ALD 315
Borrett v Repatriation Commission [2000] FCA 1829

REASONS FOR DECISION

16 October 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 26 July 2001. The VRB then reviewed a decision made by the respondent on 15 March 2000, which refused a claim for anxiety disorder and continued pension at 80% of the General Rate.
The VRB affirmed the decision with respect to anxiety disorder, but set aside the decision insofar as it related to assessment. The VRB decided to assess Mr Gregson as having an entitlement to General Rate of pension at 90%, with effect from 4 August 1999.
The applicant has the conditions of renal calculi, sensori neural hearing loss, tinea and chronic simple bronchitis accepted as war-caused. The condition of anxiety disorder has been accepted as giving an eligibility for treatment only.
At the hearing, Mr Larkin as counsel appeared on behalf of the applicant. Mr Purcell as counsel appeared on behalf of the respondent. The applicant, together with his wife and Dr Cole, a medico legal psychiatrist, gave evidence in support of the applicant's claim. Mr Tilbrook, on behalf of Writeway Research Services, gave evidence on behalf of the respondent. Dr Walton, a medico legal psychiatrist, was not called, but his report was received into evidence.
Prior to the evidence of the applicant, both counsel agreed that Drs Cole and Walton diagnosed the applicant as suffering from Post Traumatic Stress Disorder ("PTSD"). Mr Larkin submitted that the application therefore was concerned only with whether the Tribunal was prepared to accept the factual foundation, which gave rise to PTSD. Mr Purcell submitted that whilst the diagnosis of PTSD was conceded, the respondent denied the factual basis of the applicant's claim. This was hardly surprising as when the application was listed for hearing, the respondent submitted that a major factual dispute existed with respect to the applicant's claim. Having regard to the number of incidents within service the applicant relied upon, (as was evidenced from the pre-hearing documents) two consecutive days were reserved for the hearing of this application.
By way of an alternative basis for the review, Mr Larkin submitted that in the event that the applicant was not able to satisfy the Statement of Principles with respect to PTSD, the Tribunal should find that he suffers the conditions of generalised anxiety disorder or depressive disorder. It was submitted that there were Statements of Principles also with respect to these conditions.
Kenneth George Gregson
Mr Gregson prepared a statement of his evidence prior to the commencement of the hearing. It was received into evidence as Exhibit A. By reason of the number of specific incidents he relied upon connecting service with injury, his reliance upon the contents of the statement in evidence and the complexities associated with the Statements of Principles, I propose to record - deleting informal parts - his statement in its entirety. The Statement is also reproduced because I have become satisfied, having heard the evidence of the applicant and the witnesses both parties called, and for the reasons which will follow later - that the applicant should be diagnosed as suffering the condition of PTSD. I am also satisfied that he meets the applicable Statement of Principles.
The Statement of Mr Gregson is reproduced as follows-
"I was born on 7 April 1952.
I served in the Australian Army from August 1969 to August 1978. I had operational war service in Vietnam from 5 August 1971 to 29 January 1972.
I am currently in receipt of a disability pension from the Repatriation Commission at 90% of the general rate with respect to the following conditions which have been accepted as war caused:
Renal calculi, bilateral sensori-neural hearing loss, tinea and chronic simple bronchitis.
Prior to service in Vietnam I suffered no emotional problems of which I was aware. Specifically, I do not recall suffering anxiety or depression.
After about 2 weeks in Vietnam I was transferred to Nui Dat. At that time the camp at Nui Dat was preparing for closure and this led to a reduced force and a good deal of movement. When I got to Nui Dat the word amongst the troops was that the camp was expected to be attacked by the Viet Cong (VC) imminently. I recall several discussions about this and as a consequence fellow soldiers and I were on edge.
I served as an Electronics Technician and was attached to 104 Signals Squadron. My duties involved maintaining electronic communication systems.
Whilst at Nui Dat I was by the radio when reports of a skirmish between an Australian Patrol and the VC came in. This incident was approximately late September 1971. The skirmish was occurring not far from the base as I understand it. 104 Signal Squadron was monitoring the radio communications at the time and I was providing backup technical support. The actual radio operator called me to listen to the signal. I sat with him and overheard the skirmish. I could hear chaos and fear in the voice of the man who was transmitting the signal to us. I heard noises and screams but I do not (contrary to what is indicated in the Veterans' Review Board's decision) recall whether I heard gunfire. The Transmittor relayed that he and his patrol were under ambush attack. All my training had not prepared me for the actual terror involved in such a situation. I recall feeling shocked, helpless, fearful, apprehensive and useless.
I did not know any of the patrol personally. A number of men were killed in the skirmish and others were injured and required medical evacuation. I was not fearful for my own safety either at the time of the ambush or during the aftermath. From what I had gathered during the assault, the number of VC was not sufficient to create a threat to the integrity of the base.
I was involved in the final closing of the camp at Nui Dat. I was airlifted out and returned to our base at Vung Tau some weeks after the aforementioned ambush. During the airlift from Nui Dat I felt particularly vulnerable. There was little allied protection and the general rumours of imminent attack was still circulating the camp and I was very fearful for my own safety at the time.
The fact is that I did not see action at Nui Dat. I was nonetheless very apprehensive. This led to difficulty getting to sleep and also suffering disturbing dreams during the last period of my stay at Nui Dat.
On return to Vung Tau I was still generally apprehensive. I undertook one clearing patrol "outside the wire" at Vung Tau. I was very apprehensive during the patrol. There had not been action around Vung Tau at the time but to my mind that did not mean that there was not going to be. The fact that a clearing patrol was deemed necessary reinforced in my mind the element of danger.
On another occasion whilst at Vung Tau I was maintaining watch in the tower. I heard a shot fired from outside the camp and I could hear the bullet passing through the air and I heard the rifle shot. I am in no doubt that a shot was fired in my direction from outside the base. There was a field telephone located in the tower and I immediately telephoned the Duty Officer and reported the incident. He told me that as it was a single shot I ought not to worry and that the shot might have been fired from an irate local person. His advice was scarcely soothing to me and I completed my 2 hour watch in fear that I might be shot at any time.
The Department of Veterans' Affairs has previously obtained a report from a Mr. Tilbrook about my allegations. Initially Tilbrook concluded that there was no tower at Vung Tau at the time and therefore the incident could not have occurred. In a supplementary report (in response to a letter from me which amongst other things enclosed a photograph of the tower) he conceded the point. He also apparently obtained a statement from Lt. Col. Wilkins who confirmed that there was a number of incidents reported of shots being fired at the tower.
When I was younger I attempted to laugh off the incident. There was a culture of bravado and I was not about to reveal my fear to the other men. The fact is, however, that at the time and subsequently the incident shook me up.
By the end of my tour of Vietnam I was anxious and I would jump and be startled by sudden noises. These problems have continued to the present day and I now also suffer depression. I have had difficulty sleeping since Vietnam and have suffered night sweats. I have suffered disturbed sleeping patters so that I often wake in the middle of the night and need to get out of bed and settle down and try to get back to sleep. I have been suffering intermittent nightmares. One such nightmare is of taking part in a clearing patrol which in my sleep I re-write so that we are attacked. I have suffered such nightmares intermittently and they frequently cause me to wake. There have been nights where I have sweated so much that my wife and I have had to change the sheets. My restlessness has woken my wife on numerous occasions.
Prior to Vietnam I was a light social drinker of alcohol. At that stage on average I might have consumed alcohol on a couple of night during the week only. On those occasions I consumed variable amounts from a glass or two of beer.
In Vietnam I drank to excess quite often. Alcohol was readily available and cheap in Vietnam. On reflection I used alcohol as a way of suppressing my fears. In Vietnam I tended to drink daily and on many occasions to excess.
On returned to Australia from Vietnam I drank heavily for the first 12 months or so. My habit at that stage was drink daily and frequently to a stupor.
After about 12 months following my return to Australia I suffered acute pain in the abdomen from which a diagnosis of renal calculi was made. I was referred to doctors for this condition and they warned me off alcohol. Since that time I have reduced my alcohol consumption to the point that it has been under control. In that regard I think that the kidney stones were a blessing in disguise.
In summary, I have suffered anxiety and related symptoms since my tour of Vietnam. I believe that all of the aforementioned incidents contributed to that emotional response.
I always felt that I could control my emotional state and certainly in the first 12 months on return to Australia I used alcohol to suppress my anxieties. I feel that as time has gone by I have gradually become less able to control my emotional reaction.
I first sought medical treatment for my anxiety in about August or September 1999. At that time I was having difficulty coping at work. I was then employed with the Victorian Association for the Care and Re-settlement of Offenders. I was a Project Officer and this brought me in contact with prison offenders and their families. I had been so employed for approximately 18 months and was finding my job to be very stressful. Accordingly, I saw my treating general practitioner, Dr. A. Pither of Templehills Medical Clinic (formerly of Ivanhoe Medical Clinic). Dr. Pither remains my treating general practitioner to the present day.
Dr. Pither provided counselling for a period and eventually prescribed Zoloft. I was seeing him with increasing frequency up until when I ceased work. He referred me to the Vietnam Counselling Service, which in turn referred me to Dr. J. Cooper whom I see at his rooms in Ivanhoe. Dr. Cooper treated me over a period of about 18 months.
I have suffered acute pain from the kidney stones and continue to do so regularly. I believe this chronic pain has aggravated my anxiety state. Nonetheless, the anxiety state existed before I suffered from the kidney stones. My kidney stones were originally accepted as war caused by the Repatriation Commission on the basis of my failure to keep up fluids in Vietnam. The condition was acute and at one stage dialysis was considered because of the extent of my symptoms".
The applicant confirmed that he was a member of the Australian Army ("the Army") between 1969 and 1978. He was educated to Year 10 in Mildura, left school in 1968 and joined the Army the following year. He completed an electronic course as a technician specialising in communications in the Army and was eventually posted to Watsonia barracks. When it was learnt that he would be posted to Vietnam, he completed a three week jungle-training course in Canungra in Queensland. Upon arrival in Vung Tau he settled for a week and was involved in setting up and maintaining communications equipment and systems. He was eventually transferred to Nui Dat which he recalled being a large camp surrounded by perimeter fencing. Mr Gregson recalled that there was artillery fire whilst he was at Nui Dat. He associated his accepted condition of sensori neural hearing loss with his exposure to artillery fire.
There are essentially 4 incidents within service Mr Gregson advanced to explain his PTSD condition. The first occurred in September 1971 which Mr Gregson confirmed that he overheard a skirmish between Australian troops and Viet Cong by radio equipment in the communications centre which he partially occupied. He recalled that his unit was separated from the main communications area by a wall and a door. He also recalled that he was approached by an officer in the 104 Signals Squadron who had been monitoring and listening to radio communications which were being received. He recalled that the operator - whose name he could not recall - approached him in an apparently disturbed state and said, "Fuck come and listen to this". The applicant said that he approached the radio and heard the screams of Australian troops and other Australian troops yelling out orders. He described what he heard as being chaotic and the voices of persons speaking in an agitated and alarmed state. Mr Gregson said that he was shocked by what he heard and he felt helpless.
Mr Gregson agreed that the history taken by Dr Cole, as recorded in his report of 27 February 2002, was accurate. Relevantly that description is recorded at page 3 of the report as follows-
"Despite his jungle training at Canungra, he was not prepared for what he heard. It was like chaos. He heard noises and screams but no gun fire. It was frantic and messy. It was as though someone were being bashed or murdered in the next room and nothing could be done about it. The operator was calling for help saying that men had been hit. He can recall the feeling he had experienced better than the factual details. The operator at the other end sounded terrified. Both he and the man who had called him in were affected almost as badly as though they were there. He could feel the tension in his chest and the fear, although he himself was not in immediate danger. He did not know what to do and felt helpless. There was no discussion about it afterwards as no-one talked about their feelings but at the time he felt horrified. He knew that men had been killed and wounded although he did not see any casualties".
The second incident Mr Gregson advanced, was the event surrounding the closure of the Nui Dat base and eventually being airlifted out. Mr Gregson was adamant that he was removed by helicopter and disputed assertions the respondent made prior to the hearing that he would not have been taken by air unless he had been injured. Mr Gregson said that his unit had a large truck which was fitted as a communications shelter and the only passenger seating comprised of two seats in the front cabin. He said that there were between 7 and 9 persons in his unit and it was not possible for all of his unit members to be removed by the truck. The closure of the base was also surrounded by rumours, which had been circulating, that Viet Cong would launch an assault on the base. He said it was generally known throughout the district that the base was about to close.
The third incident that caused Mr Gregson considerable concern was being engaged in a clearing patrol outside the perimeter fence. Mr Gregson said that he assumed that by participating in a clearance patrol that there was the risk or the potential for an attack.
The fourth episode upon which he advanced was an occasion where he was on watch duty in an elevated tower, where he believed that a rifle shot was aimed at him. Mr Gregson said that he was familiar with the noise of rifle shots, having lived on a farm as a youth and engaged in exercises with live ammunition during his army training. He said that despite the occasion where he was on watch occurring at night, he was able to identify the sound of a projectile being discharged from a rifle and the direction of the firing of the rifle. Additionally, he said that he heard the noise of the projectile passing through the air. He was confident that it was aimed in his direction from a position outside the perimeter fence and from ground level. He said he was confident in his identification of the noise from the bullet being shot from a rifle and the sound of the bullet passing through the air and likened it to standing on the side of the roadway with his eyes closed being able to identify the difference between a V8 and a VW motor vehicle. Mr Gregson said that he reported the shot on a telephone mounted inside the tower to the Senior Officer on duty. That officer did not investigate the incident any further.
Prior to enlistment, Mr Gregson said that he was a light social drinker, but increased his alcohol consumption when in the Army. He said he drank "a lot" in Vietnam, recalled that beer could be purchased at 15 cents per can and it was readily available. He said there was a culture of heavy drinking in the Army and recalled occasions where if troops were being entertained by a film he would "grab ½ a dozen cans" at the start of the film and then "grab another ½ dozen at half time".
On his return to Australia, Mr Gregson recalled he had difficulty adjusting but was continuing to drink. He recalled being "jumpy" and nervous. He and a friend elected not to accept army accommodation and decided to purchase and live in a caravan at a caravan park outside Melbourne. He recalled an occasion when he was walking back from a shower block to his caravan when a pressure pack can, which was in an incinerator, exploded. He said he "hit the deck" instinctively when he heard the sound of the explosion. He recalled he suffered night sweats and depression.
In about 1973, Mr Gregson recalled that he sought treatment from Colonel Hogan at the Regimental Aid Post at Victoria Barracks. He then presented with depression and kidney stones. He was advised to reduce alcohol consumption but continued to have night sweats and dreamt frequently of being on patrol in Vung Tau.

In 1975 Mr Gregson married and subsequently has two children who are now adults. He served with the army until 1978 but then left and obtained employment with Xerox. He and his family eventually moved to Hobart. He later moved to Sale in Gippsland, Victoria, and last worked in 1999. In October 1999, Mr Gregson suffered what he described as a "breakdown" and has not worked since. Shortly prior to leaving work, Mr Gregson and his wife travelled to Vanuatu and other South Pacific Islands on a cruise, however the trip "rekindled" memories of Vietnam. Mr Gregson recalled tropical vegetation, humidity, "steaminess" and a smell, which reminded him of Vietnam. He found the experience disturbing and said that it was an event, which contributed to him eventually ceasing work. At about this time, he said that the conflict in East Timor was "bubbling away" and was very concerned that his son, who had recently turned 19 years, would be called up. Mr Gregson said that his father was a Changi Prisoner of War and his Grandfather served at Gallipoli. He was adamant that his son would not be a "fourth generation Gregson" in the Army.
In cross-examination, Mr Gregson was taken to a claim for pension that he completed at page 30 of the T-documents, where he has recorded that he first became aware of the disability in "approx 9/97". In another claim found at page 39 and dated 30 October 1999, Mr Gregson appended a typed statement where at page 40 he recorded that his "deterioration has been slowly taking place over the last two years…". Mr Gregson explained that the typed statement was prepared by a Mrs Robertson, who is a pensions' officer with the Vietnam Veterans' Counselling Service. He said that the history prepared by her was upon information that he provided "one month after I hit the wall. Things were a bit foggy. She was frustrated because she could not get adequate information out of me".
Mr Gregson disagreed with the suggestions made that the onset of his PTSD was in 1997. He said that he first saw Dr Hogan in 1973 and thereafter he "masked" his symptoms "for a long period of time". He said he did not refer specifically to his experiences in Vietnam at the time of these claims because he "sat on it".
Nonetheless, Mr Gregson (page 31 in his first claim) referred to the Australian involvement in East Timor as an event which triggered severe anxiety and panic attacks. He said that those events were a reminder to him of "my involvement in Vietnam and the subsequent issues I was faced with on my return from active service". Similar comments were made in the subsequent claim in an appendage found at page 49. When questioned on what he meant by the expression "subsequent issues", Mr Gregson referred to the rejection of him and other Vietnam Veterans from the RSL, not being debriefed upon return to Australia, the attitude of the Australian public to returned Vietnam servicemen and the difficulty that he experienced in adjusting to mainstream life in Australia.
Mr Gregson acknowledged that he remained a member of the Army until 1978, that he continued to serve in a signals squadron and that he had previously enlisted as a volunteer. Nonetheless, he said that he was not keen to remain a member of the Army and it was "a job and it paid the bills".
Mr Gregson said that he left the Army in 1978, then qualified as an electronics technician. He worked in that industry until 1987 when he returned to full-time study (having commenced part-time study in 1986). He obtained a Diploma in Social Sciences, majoring in Welfare in 1988 and was able to cope despite being anxious. Between 1989 and 1991, he worked at Sale as a Child Protection Officer with Community Services Victoria. The work involved liaison with parents and children and the work was regarded as being stressful. He then transferred to Disability Services, being a unit within Community Services Victoria, working with intellectually disabled persons. He also provided support for families of intellectually disabled persons but did not regard the work as stressful as his work as a child protection officer. Between 1994 and 1996 he was employed by the Department of Corrections as a program manager for 3 regional prisons supervising non-custodial activities namely recreation, leave and educational programs. Mr Gregson regarded that employment as a "hard job", but he said he had a supportive manager. When the State Government announced that it was reducing its work force, Mr Gregson accepted a redundancy package and obtained employment with VACRO, a voluntary non-government organisation providing support for prisoners after release from custody. Mr Gregson said that his main role was as a manager with limited prisoner contact, however he left that employment because of his breakdown in 1999. At that time he recalled that he was frequently crying, had poor concentration, was anxious and he "went to pieces". He said he often felt as if "someone was standing on my chest". He said he then ceased to function and sought help from the Vietnam Veterans' Counselling service, who eventually referred him to Dr Cooper, a psychiatrist in Ivanhoe.
Dr Cooper provided two reports, the first of which is found at page 74 of the T-documents. At page 75, under the sub-heading "Service History", Dr Cooper has recorded a history of events in service Mr Gregson advanced as being responsible for PTSD. The applicant agreed that the history then recorded is the first written recording of his service history said to be responsible for his PTSD. He said that the history Dr Cooper recorded appears to be brief and he believed that he would have "elaborated" on the history then taken. However, he said, he could not recall detail. Specifically, he said he could not recall advising Dr Cooper that the "most traumatic event" was the occasion where he listened to Australian Soldiers over a radio. When asked to say what he regarded as the most traumatic event, Mr Gregson said he was unable to place the events on a scale. He regarded all of the events as being significant. When asked, for example, to make a comparison between his reaction to being on patrol and listening to the radio, Mr Gregson said that his "heart beat was just as great on each occasion".
With respect to the four incidents Mr Gregson specifically relies upon, Mr Purcell took the applicant to a summary of findings Mr Tilbrook of Writeway Research Service made. The summary is found at page 154 of the T-documents.
"Contention 1" is described by Mr Tilbrook as the occasion where the applicant was involved in a clearing patrol. Mr Tilbrook concluded that patrols undertaken in 1971-72 were "uneventful as stated by the veteran". Mr Gregson agreed that the events then were "uneventful", however he was of the belief that there was the potential or the perception of risk because a patrol was being undertaken.
"Contention 2" is a summary prepared by Mr Tilbrook of the occasion where the applicant alleged that he was exposed to a rifle shot when he was on duty in a watchtower. Mr Tilbrook said that he found no evidence in unit war diaries of any incident of incoming small arms fire in 1971-1972. However, he acknowledged that information obtained from Lieutenant Colonel Wilkins indicated that during his tour of Vung Tau in 1971-72 "the sound of the 'crack' of a rifle shot was heard passing over the unit lines on 'occasions'".
Mr Gregson said that he was aware that, at the end of the T-documents, there were a number of extracts from unit war diaries, which he had "seen" but he could not "recall" the contents. He remained adamant that he was exposed to a shot from a rifle. He reaffirmed that he was familiar with the sound of rifle shots having regard to his prior military training and his earlier years living on a farm. He was adamant that the content of his Statement prepared prior to the hearing was true, specifically his reference to his ability to hear the sound of a projectile passing through the air. He described the sound as a "crack". He said that he could not recall whether he heard two sounds except at the time he recalled that he thought "shit that's close". He said that this event occurred during a night watch. He was able to determine that the shot originated from below the tower and it was close. He said he picked up a telephone within the tower and rang the duty officer to report the event. He said the duty officer eventually attended the tower and he pointed out to him where the shot originated. He said the duty officer told him "not to worry".
The applicant was referred to a statement submitted by the respondent from Colonel Cloughley, dated 22 August 2002. It appears from the statement that Mr Cloughley was present at Vung Tau "in the first half of 1971" and he reported that:
"… The firing of any shot within or close to the Vung Tau camp area would have been regarded as extremely unusual. It was a safe area, and Vung Tau itself was an in-country centre for rest and recuperation for those engaged on operations elsewhere. Had a shot been heard by any soldier, NCO, warrant officer or officer there would have been a report made to higher authority within the camp. During silent hours, the duty officer would have been informed; during the day, I would have been informed. Had there been such an incident, the duty officer would have reported it to either the SO2 (Ops) or myself. I do not recollect any report having been made of a shot being fired during my tour of duty."

Mr Cloughley continued to report that the firing of a shot would have been unusual and "operationally significant". Mr Gregson acknowledged Mr Cloughley's report and said that the procedures that he spoke about were the procedures of "other people… not mine". He gave a similar response when he was shown an extract from a Commanders diary dated 30 July 1969, where there is a report that "two light calibre shots came in from the WEST near Sergeants lines".

"Contention 3" recorded by Mr Tilbrook is a summary of the events surrounding the evacuation from the Nui Dat base. Mr Tilbrook recorded that he could find no evidence of any member of the signals personnel being evacuated by helicopter "as all units were evacuated by vehicle convoy". Additionally, he recorded that there was "no specific assessed threat of an enemy attack" upon the base, but he accepted that there would have been "a general perception or fear amongst the 1 ATF troop garrison at the time that there was a risk that the enemy may have resorted to launching an attack during the final withdrawal phase from Nui Dat".
Mr Gregson acknowledged that, in hindsight, there was nothing hazardous that he was aware of at the time of withdrawal. Mr Gregson was then asked to comment on a statement from a Mr Hunter, which was lodged on 23 August 2002. Mr Hunter is described as presently being the Deputy Director of Electronic Warfare Development within the Department of Defence and he records that he arrived at Nui Dat in late September 1971. He regarded the "pullout" from Nui Dat as uneventful, there was no "undue tension or fears of being attacked" and it was "just another drive to Vungers". He said that in the time that he spent at Nui Dat he did not feel under any "undue danger" and regarded the streets of Vung Tau during stand down period as being more dangerous. Mr Gregson acknowledged these comments, but noted that Mr Hunter had referred to "the odd red alert" and said that an event of that type was indicative of an imminent attack or danger. Mr Gregson said that he felt vulnerable leaving the base and being in the air when he was lifted out by helicopter. He said that he was part of a remaining skeleton staff, where there were few troops left at the time of his evacuation. He said that "everyone" knew that the base was closing down and had heard rumours that an attack might be launched on the base by VC.
"Contention 4" is a summary of the circumstances surrounding the applicant listening to combat action over a radio. Mr Tilbrook concluded that "no direct evidence was found in the official army records to confirm or to refute the veteran's claim that he was "invited" into the 104… to hear combat action unfolding over the radio". He also reported that Lieutenant Colonel Roberts (refer pages 164-168 of T-documents) was "sceptical" of Mr Gregson's claims.
Mr Gregson said that he had a clear recollection of being called in to the communications room to hear the combat being broadcast. He said he could not now recall the name of the person who called for him, nor the names of other soldiers that he had shared a tent with. Mr Gregson recalled that the broadcast was being transmitted over a "25 set" with an external speaker. He said he did not know whether the usual practice of the radio operator was to use a headset. He dismissed the suggestion that he and the radio operator were listening to the broadcast by a headset, because it would have to be shared, which was not possible. Nonetheless, he said he did not "commit these details to memory".
Mr Gregson acknowledged that he would expect that orders would be "screamed out" during an attack, however he said that his jungle training at Canungra had not prepared him for events of the type that he heard on the radio. He described the apparent chaos, the anxieties and associated feelings of other soldiers as distressing. He said it was evident from what he heard that Australian troops had "taken hits" but it was not clear to him then, whether there were persons who had been killed. He learnt of deaths later. So far as he could recall he listened for approximately half an hour but he was unsure of this. He said he did not listen to the radio for a "fleeting period of time". He said he remained listening because he wanted to support the radio operator who - consistent with Army culture-"was a mate". He acknowledged that the radio operator would have been classified as a "tactical operator" who would have been experienced, however, Mr Gregson regarded the events that were transmitted by the radio as being significant and his "mate" was obviously distressed. He denied that he continued to listen to the radio because he was "curious". He said he could not recall whether this event occurred during night-time or day time and said that the transmission was on an FM frequency, which was clear, and not subject to interference. When he was asked to comment on a report from a General Hughes which was lodged on 22 August 2002 dismissing any ambush of Australian troops, Mr Gregson said that he would accept that there was no "ambush" and was prepared to have that word removed where it was recorded within his Statement. Nonetheless, he remained adamant as to the events that he heard over the radio and the effect it had upon him.
In conclusion, Mr Gregson acknowledged that the events and details concerning them were not communicated to persons prior to his first attendance with the Vietnam Veterans' Counselling Service in 1999, except that he did attend Colonel Hogan at Victoria Barracks in 1973. Additionally, he said that his "family" would give evidence concerning his health prior to 1999.
At the conclusion of the applicant's evidence, I notified both counsel that I had received a report in another veteran's application (V2001/1029) in the previous week concerning the description of the sound of a bullet after it had been fired. I indicated to both counsel that the report was obtained by the respondent in that application following evidence that veteran gave on the first day of hearing. Subsequent to receipt of the report - which I had read in preparation for the resumption of the hearing in that application - the veteran withdrew his claim and no evidence was heard. The report was of course not received into evidence. The content of it was not subject to cross-examination. Nonetheless, I offered the report to both counsel in anticipation that it may assist them to clarify the evidence of a person advanced by the respondent to be an expert and gave leave to both counsel to ask the applicant further questions concerning this part of his evidence.
Colonel Church, who was the author of that report dated 26 July 2002, relevantly reported-
"The veteran claims that he heard the shot passing near him with a whooshing sound. This is a highly inaccurate description of the sounds that he would have heard. The sequence of sounds would have been - first the loud crack of the round passing overhead ……. then shortly after that by the more softened crack of the weapon being fired which has arrived at the speed of sound ie. 1125 feet/second at about 70 degrees F or 1.46 seconds after the shot was fired that is 0.65 seconds after the crack at the round passing overhead".
The applicant said that he recalled that the shot was fired from close range and he was able to tell the difference between a shot fired from close range and long range. He said that he did not recall saying in evidence that he heard "two cracks", but he was adamant that he was aware of the sound of a "bullet fired at close range".
Mr Larkin understood that the applicant said in evidence that he did hear two sounds and he drew my attention to part of the applicants statement at page 3 where it is recorded "I heard a shot fired from outside the camp and I could hear the bullet passing through the air and I heard the rifle shot".
Mr Purcell sought clarification of the applicant's earlier evidence by requesting that a transcript of that part of the evidence be made available to him at the resumption of the hearing the next day.
In re-examination, Mr Gregson acknowledged that the claim form at page 30 did not ask him only when he first became aware of the disability, but also asked when he became aware of the aggravation of the disability.
Mr Gregson remained adamant that the symptoms of PTSD did not emerge for the first time in 1997. He agreed with the content of the report of Dr Cole, who described his symptoms after returning to Australia which have largely continued namely restlessness, difficulty settling down, being apprehensive, disturbed sleep, night sweats and suffering nightmares. Additionally, he has suffered "impending doom".
Whilst it appears from the T-documents that the records of Dr Hogan in 1973 have not been located, Mr Larkin drew to Mr Gregson's attention a reference in a medical report found at page 24, dated October 1977, where a history was then taken of "irritability" and "depression".
With respect to the applicant's belief that there was a risk of the Nui Dat base being attacked whilst it was being closed down, Mr Gregson took comfort from part of the report of General Hughes. General Hughes confirmed that a broadcast by the Prime Minister to members on the base that the Nui Dat base was to be packed up and troops returned was a "silly statement" which:
"…invited the enemy to attack Nui Dat or to attack soft civilian targets so that 1 ATF would react. Offensive action is known to be the best form of defence and the Australian presence in Phuoc Tuy province was maintained in fact and by deception and bluff up to 7 November 1971."

Doctor Edward Cole

Dr Cole is a medico legal psychiatrist who examined the applicant at the request of his solicitors on 24 January 2002 and provided a report dated 27 February 2002.
In his report, Dr Cole recorded the applicant's limited recall of the events in Vietnam but extensively recorded his feelings. He said the DSM-IV definition of PTSD referred to an inability to recall detail but the ability to express and recall feelings. He was satisfied that the applicant, having listened to events unfolding over the radio and being fired upon, constituted "stressors within the PTSD Statement of Principles". He said those events put the applicant in fear.
Dr Cole also referred in his report to the feelings the applicant experienced in Vietnam, that returned during a voyage he undertook with his wife to Vanuatu. He said the tropical climate, vegetation and smell were reminders to the applicant of his experiences in Vietnam and he was satisfied that the "memories" of his Vietnam service were then stimulated.

Dr Cole was satisfied that the applicant did suffer chronic PTSD, which was long lasting and was likely to be long lasting. He thought the proceedings against the Repatriation Commission would produce a temporary aggravation only of that condition. He acknowledged that within the diagnosis of PTSD, the applicant will suffer similar features applicable to the diagnosis of generalised anxiety disorder and depressive disorder. Specifically, he said common features were irritability, impaired concentration and sleeplessness. Nonetheless, it was his opinion that the appropriate diagnosis was PTSD because of the trauma the applicant suffered during service.
In cross-examination, Dr Cole said that he consulted the applicant on one occasion only, but he did then have with him a copy of a report from Dr Cooper, dated 24 January 2000. He acknowledged that Dr Cooper diagnosed the applicant in 2000 with the condition of sub-syndromal PTSD, however Dr Cole was of the opinion that the applicant should properly be diagnosed as suffering PTSD by reference to the definition of it within the Statement of Principles. Dr Cole said that he regarded the application of DSM-IV and the Statement of Principles as "unnecessary encumbrances".
Whilst acknowledging that the diagnosis would only follow the history taken, Dr Cole said that being fired upon was not the only relevant stressor to which the applicant was exposed. He regarded it however as being the "leading stressor". He said that he obtained a history from the applicant that he heard the bullet passing through the air and the applicant assumed that it was fired at him. Dr Cole said that in his experience, bullets travel at "super sonic speed" and the sound of the bullet passing through the atmosphere is usually heard before the sound of it being emitted from a gun or rifle.
In re-examination, Dr Cole said that he regarded the Statements of Principles as being "far too rigid" but, nonetheless, he was satisfied on the history taken that the applicant did experience a stressor within the meaning of the Statement of Principles.
I was curious by the comments of Dr Cole as to the Statement of Principles and DSM-IV being an "unnecessary encumbrance" and I asked him whether he made his diagnosis by reference to DSM-IV or to the Statement of Principles. He said that in the present application he made the diagnosis by reference to DSM-IV and found a relationship to service by reference to the Statement of Principles. He said that in the absence of a Statement of Principles he would have found the diagnosis of PTSD. He said the condition of PTSD is a creature of DSM-IV and prior to its publication the equivalent diagnosis was post traumatic neurosis.
Doctor Lester Walton
Dr Walton is a medico legal psychiatrist who examined the applicant at the request of the respondent on 15 May 2002 and provided a report dated 24 June 2002. Mr Larkin indicated during the hearing that he did not require Dr Walton for cross-examination and in those circumstances Mr Purcell was content not to call him. I draw no inference against the respondent for its failure to call Dr Walton.
In his report, Dr Walton said that he agreed with the diagnosis made by Dr Cole of PTSD. He acknowledged that the applicant had exhibited features of anxiety and depression, but he preferred the diagnosis of PTSD. He also agreed with opinions expressed by Dr Cole that PTSD "can be present in nascent form for a number of years before there are relevant triggering incidents, in this particular case those triggers being this man's journey to Vanuatu and also the military activities in East Timor".
Dr Walton obtained a history from the applicant that he did overhear radio monitoring of enemy activity and:
"… He has a vivid recollection of the fear being experienced by the radio operator in the field, as well as the other distressing noises, but he does not have a clear recollection of the sound of gunfire. Mr Gregson stated that he was aware that the patrol had been ambushed and was under fire and that he felt helpless, horrified and useless."

Additionally, he obtained a history from the applicant of being apprehensive during an air lift out of Nui Dat, being engaged in a patrol outside the base and hearing a shot fired from outside the camp when on tower watch which he believed was aimed at him.
Rosemary Gregson

Mrs Gregson is the wife of the applicant. She said that she and her husband married in 1975 and she had known him for one or two years previously. She recalled that he was then drinking heavily, he avoided crowds, was generally anxious and was "edgy" around other people. She recalled that there was little conversation then concerning the circumstances of his service and she understood that that was part of "the army persona". After they married, she observed that her husband was restless during sleep, he would sweat profusely, he would lash out with his feet and would often wake up in a distressed or disorientated state. She said symptoms of this type have continued throughout the marriage. In 1999, she said that her husband suffered a "breakdown" and at that time he would cry "at the drop of a hat", was very emotional, very anxious and withdrawn. She said when his first application for pension was dismissed, he was very distressed and he withdrew.
In cross-examination, Mrs Gregson acknowledged that her husband worked for the Child Protection Agency which was a position which was sometimes stressful but she thought that he "handled it well". She acknowledged that some cases were upsetting. Mrs Gregson recalled that her husband was later employed by the Department of Corrections but had a supportive manager. She said her husband ceased that employment when the Department downsized. She recalled that her husband had concerns about future employment because he understood that it was his responsibility "to earn a living", however he obtained a job virtually immediately with VACRO at a similar salary. She said he ceased that employment because of recurrent chest infections, anxiety and sleep disturbance. She also acknowledged that his renal colic, for which he has a long history, has been the cause from time to time of some anxiety.
In re-examination, Mrs Gregson said that she and her husband discussed the making of his claims for pension and whilst she acknowledged that the circumstances of service were first documented in or about 1999, the reference in the claim form to symptoms at September 1997 were intended to refer to aggravations at or about that time. She was adamant that her husband had exhibited the symptoms she described earlier since she first met him in 1975.
John Douglas Tilbrook
Mr Tilbrook was a member of the Australia Army for 38 years and achieved the rank of major. He is presently a member of the Army Reserve. He provided a curriculum vitae prior to the commencement of the hearing, which detailed his experience in military research.
Mr Tilbrook provided two reports for the respondent dated 3 March 2000 and 28 May 2001, both found within the T-documents. Each report had a number of documents attached, more significantly the second report which contained statements and summaries of the evidence of persons who had been located for the purposes of enquiring into the allegations made by Mr Gregson concerning his service. The summary of the findings made by Mr Tilbrook are found at page 154 of the T-documents, being the last page of his second report.
Attachment 1 to the second report is a statement of retired Lieutenant Colonel Buchanan who reports that he was posted to the 110 Signal Squadron in South Vietnam where he then held the rank of Lieutenant. He said that he commanded a deployment troop from March 1971 until September/October 1971. His Statement records the deployment of troops and the closure of the Nui Dat base. He could not recall the applicant, however a photograph of Mr Gregson from Vietnam appeared to indicate the applicant being present at the Nui Dat base that was occupied by the 104 Signal Squadron. He suggested that Mr Keith Hunter, another signalman, be contacted for further information.
Attachment 2 is a statement of Lieutenant Colonel Wilkins comprising three pages. He gave a detailed history of the presence and roles of signals squadrons during his tour between June 1971 and February 1972. He recalled Mr Gregson and confirmed that he was a member of the 104 Signal Squadron. Significantly, he recorded that he did not have vehicles at Nui Dat during its final stages of withdrawal and his personnel returned to Vung Tau either by Caribou aircraft, helicopter or task force unit vehicles. He continued:
"…Ken's statement that he returned by helicopter when the base was abandoned is therefore quite believable and in accordance with my recollections of what happened at the time."
Attachment 5 is a statement from retired Lieutenant Colonel Roberts, who was the officer in charge of the 104 Signal Squadron at Nui Dat in 1971. He reported that he was "not in a position" to dispute the assertion that Mr Gregson was one of the last to leave the Nui Dat base. He said though it was "open to some conjecture" that he was airlifted by helicopter and also reported that he found it "extremely difficult to believe" that the applicant was in fear of attack. He later reported that he would have been "very surprised" if there were records of a number of alerts at the Nui Dat base. He also reported that he had "no grounds upon which to deny" that Mr Gregson was at the 104 Signal Squadron radio bunker and overheard military communication.
Attachment 6 is an extract of a history from the 547 signal troop in South Vietnam, which was described as a covert unit having the responsibility to collect communications intelligence.
Attachment 7 is an intelligence summary with respect to the perceived threat of an attack on the 15th, the 16th, and 18th of October 1971.
Attachment 8 is an example of a patrol program for the period 22 to 30 July 1971. Mr Tilbrook said that between August 1967 and the Tet Offensive on 30 January 1968, patrols had ceased but later resumed and continued until February 1972.
Attachment 9 are copies of the 110 Signal Squadron unit war diaries for the period August 1971 until February 1972 comprising 103 pages.
Attachment 10 are copies of the 104 Signal Squadron war diaries for the period August 1971 to November 1971, comprising 3 pages.
Attachment 11 is a copy of a transcript of the 4 RAR/NZ operation log sheets for the period 21 and 22 September 1971 concerning Operation Ivanhoe. These documents comprise 45 pages and are a transcription of the radio broadcast for the above date, part of which was heard by the applicant being an event that he alleges has given rise to his PTSD.
Mr Tilbrook said that he would have expected the war diaries at Attachment 9 to have contained a reference to the applicant being fired upon whilst he was on patrol in a watchtower. He regarded the diary as being detailed and comprehensive. He said the diary had been completed by Lieutenant Colonel Wilkins (refer earlier at Attachment 2).
On 20 August 2002, Mr Tilbrook wrote a letter to the respondent advising that further information had been obtained in the form of a Statement from General Hughes, who was the commanding officer of the 4 RAR/NZ unit in Vietnam. As well as, Mr Hunter (the person referred to at Attachment 1) and retired Colonel Cloughley, who was the author of the patrol programs found at Attachment 8. At the hearing, Mr Tilbrook provided a copy of an extract from a book entitled "Last Out" described as the "4 RAR/NZ (Anzac) Battalion Second Tour in Vietnam".
General Hughes reported that in Operation Ivanhoe there were 5 allied troops killed in action ("KIA") and 24 wounded ("WIA"). With respect to the applicant's allegation of overhearing radio communication of this operation, General Hughes reported that "infantry men have never been aware of background noise such as screams and gunfire". Additionally, he said that no Australian Patrols were subject to "ambush attacks". He also reported that if Mr Gregson claimed that he heard combat unfold over the radio after hours at night, that he would be incorrect.
Mr Hunter reported that there were "a couple of red alerts" and later reported that there was the "odd red alert" but it "never amounted to anything unusual". He reported that during his two or three weeks at Nui Dat in or about September or October of 1971 he did not feel "in any undue danger at any time".
Colonel Cloughley reported that the firing of any shot within or close to the Nui Dat base would have been regarded as extremely unusual. Had a shot been heard a non-commissioned officer ("NCO"), a warrant officer or an officer would have made a report. Colonel Cloughley reported that he was present at Nui Dat "in the first half of 1971". With respect to the objective of reporting, Mr Tilbrook produced a copy of the "Commanders Diary Narrative" for the period 28 to 31 July 1969, where on 30 July 1969 there was a report of "two light calibre shots coming in from the West near Sergeants Lyons - source not identified. One ALSG vetoed pursuit outside the wire".
In cross-examination, Mr Tilbrook agreed that the responsibility of a military historian is onerous and when engaged to report on behalf of the Repatriation Commission there is a duty to carefully consider an applicant's contentions. He agreed that he would be responsible to identify and source material, carefully read it and analyse it, which may in turn also cause research elsewhere. He also agreed that it would not be appropriate to make conclusions or findings until all relevant factual source material had been observed or eliminated.
Mr Tilbrook said that part of his source material was the 110 Squadron diaries, which he read and "paid reasonable care".
With respect to his report of 3 March 2000, Mr Tilbrook said that he was then satisfied that it was a report that the Department of Veterans Affairs could rely upon. At paragraph 9 of his report (T-documents p.84), Mr Tilbrook concluded-
"…it is considered that sufficient information has been assembled to address the veteran's four separate contentions from the 110 Signal Squadron unit war diaries and the authoritative sources identified in paragraph 8."
In that report, Mr Tilbrook concluded that he could find nothing in the war diaries of any report of incoming fire, whilst the applicant was on watch patrol. He further reported that there were no watchtowers at the Nui Dat base and the only towers present were high voltage radio antennae.
Mr Tilbrook reported that he was unable to substantiate Mr Gregson being airlifted from Nui Dat because he was unable to find any reference to Mr Gregson having been detached to the Nui Dat base. He also reported that Mr Gregson would have been working in the 1 ATF communications centre and he would not have heard voice traffic over the combat radio. He said that the 104 Signal Squadron bunker was a restricted area and the applicant would have only been present to repair any technical faults.
With respect to the apparent errors in his first report, Mr Tilbrook agreed that his report of the applicant not being present at Nui Dat was untrue. He also agreed his reporting that watchtowers were not present at Nui Dat was also incorrect and amounted to a "oversight" on his part. He said that he relied on knowledge that he had of the Nui Dat base, which he attended in 1968. He agreed that he did not make enquiries of Mr Roberts concerning watchtowers. Mr Tilbrook agreed that his report would have been the basis for the respondent denying the claim.
Mr Tilbrook said that Mr Gregson contacted him after he apparently obtained a copy of his first report. He recalled the applicant as being agitated and annoyed concerning the conclusions that he had made, however he accepted "much of what he [Mr Gregson] said". He said he recommended that Mr Gregson obtain further information and forwarded it to DVA. He also acknowledged receiving a photograph of Mr Gregson (Attachment 4) which confirmed his presence at Nui Dat.
With respect to the summary of findings found at page 154, Mr Tilbrook said that he relied on the 110 Signal Squadron diaries to permit him to conclude that there was no evidence of any incoming fire passing in close proximity to the watchtowers manned at night. He did conclude that Lieutenant Colonel Wilkins had reported that there had been the sound of the "crack" of a rifle shot passing over unit lines in 1971-1972. He did not, however, record in his summary that Lieutenant Colonel Wilkins had reported to him that "there were occasional instances during the veterans tour of duty… whereby soldiers in the 110 Signal Squadron unit lines heard the crack of a rifle shot at night". Further, Lieutenant Colonel Wilkins also reported that some of the shots were fired from outside the camp, that those persons were not identified and he could not explain why enemy threats of that type were not recorded in his war diaries. Mr Tilbrook acknowledged that he did not record those conclusions in the summary of his findings at contention number 2 on page 154. The information that he obtained from Mr Wilkins was recorded at paragraph 22 to 24 of his report, and found at pages 149-150 of the T-documents. With respect to the third contention that the applicant was airlifted from Nui Dat and was in fear of attack, Mr Tilbrook reported that, from the "official army records or from the authoritative sources", he could find no evidence of Signals personnel being evacuated by helicopter. This was despite having a report from Mr Wilkins (Attachment 2) who confirmed that Signal Squadron personnel were evacuated by helicopter. When asked why he did not qualify his conclusions that there was other material in support of the applicant's contentions, Mr Tilbrook said, "I stuck by the official records; Wilkins did not have all the information that I had".
With respect to the unit being subject to "red alerts", Mr Tilbrook said that he relied on the information obtained from Mr Roberts who had been sceptical. He acknowledged however that he had information from Mr Hunter who confirmed that there were a number of red alerts during his time at the Nui Dat base.
Submissions
Mr Larkin submitted that the applicant did experience a severe stressor during his service. He submitted that the agreed diagnosis of PTSD was consistent with the nature of the applicant's service. Upon the basis therefore that the hypothesis raised by the applicant was reasonable, Mr Larkin submitted that the claim could only be defeated if the Tribunal found that there were raised facts which could permit a finding that the injury did not arise from service.
Mr Larkin acknowledged that the occasion where the applicant was engaged in a patrol could be observed as being "uneventful", however the applicant then was 19 years of age, was in a foreign country with an ill defined enemy and required to be engaged in a patrol to ensure the safety of himself and others.
With respect to the applicant being engaged on duty in a watchtower, Mr Larkin submitted that the applicant gave a coherent account of the events where he heard the sound of a bullet which he believed was aimed at him. He said there was no effective challenge made to that evidence by the respondent, nor was there any evidence that the applicant was exaggerating that event. It was submitted that it is highly surprising that there would be a written report of that incident, having regard to the statement of Mr Wilkins who indicated that there were occasions where shots were heard but which were not recorded. It was submitted that the absence of the written record does not detract from the veracity of the account given by the applicant.
As to the circumstances of the applicant overhearing a radio broadcast, Mr Larkin noted that the evidence pointed to the apprehension by the applicant of a potential or impending danger. Whilst General Hughes reported that Australians were not ambushed, it was submitted that the nature of the broadcast and a reference to the Last Out publication (page 227) suggested that in fact an ambush did occur.

Mr Larkin submitted that the reports Mr Tilbrook prepared attract little weight. He submitted that the first report was most unsatisfactory and when confronted by the applicant concerning the obvious errors, Mr Tilbrook did not report his errors to the respondent. It was submitted that the second report of Mr Tilbrook was only completed - many months later - and then only after the respondent provided him with further information.
Mr Purcell, on behalf of the respondent, submitted that PTSD did not arise out of service, because the applicant did not provide any documented report connecting service with PTSD until 1997. He said it was necessary to consider the applicant's employment as a civilian as a basis for the diagnosis of PTSD. Additionally, it was submitted that the attendance by Mr Gregson in the early 1970s, where the condition of "irritability/depression" is found at page 24 of the T-documents is a reference to the consequences of persisting renal colic.
With respect to the Statements of Principles, Mr Purcell submitted that the definition of PTSD requires an objective finding as to the stressor within service and a subjective response to that stressor. It was submitted that the events surrounding the applicant being on patrol and the events concerning the applicant being at the Nui Dat base prior to evacuation did not satisfy the objective standard as dictated by the definition of PTSD. Despite the Federal Court decision in Benjamin v Repatriation Commission [2001] FCA 1879 (Benjamin), it was submitted that veteran applicants will continue to be required to satisfy the objective and subjective standards the PTSD definition imposes.
As to the circumstances of the applicant being on duty in a watchtower, it was submitted that the alleged stressor could not objectively be found. Mr Purcell noted that the events occurred at night in darkness where the applicant therefore could not be seen. He also pointed to the statement of Mr Wilkins who said that the noises associated with rifle fire were not uncommon and it was possible that the radio tower, as opposed to the watchtower, was the intended target. It was submitted that there was no material pointing to the applicant being shot at, and when asked in evidence how he would rank this episode in comparison to the other three upon which he relied, he said Mr Gregson regarded all episodes as equally serious. Additionally, it was noted that there was no apparent reaction or response by the applicant at the time to that event which was consistent with the applicant not having "experienced a stressor".
With respect to the applicant listening to a radio broadcast, it was submitted that the transcribed account of the broadcast, as Mr Tilbrook made available, did not reflect what was actually said. Although, it was acknowledged that the transcript reveals an intense military event where persons were killed and injured. It was submitted that on the one hand, it might be thought that the applicant was "confronted" (refer PTSD definition). However, Mr Purcell submitted that the applicant had a choice whether to listen or to continue to listen to the broadcast. Additionally, the listening to the broadcast was not part of the applicant's duties. It was put that on the applicant's evidence he listened to the broadcast for up to ½ an hour and at an objective level it could not be said that he was "confronted". Additionally, it was put that on the basis of the Statement of General Hughes the Australian troops were not ambushed and the event did not occur at night (refer Statement of General Hughes). Mr Purcell further submitted as relevant that Mr Gregson was not conscripted and enlisted voluntarily into the army.
Statements of Principles
The applicant's claim upon the respondent was made on 4 November 1999. At that date, Statement of Principles Nº 3 of 1999 and Nº 54 of 1999 (both entitled Post Traumatic Stress Disorder) had been issued by the Repatriation Medical Authority. As the claim was lodged after 1 June 1994, s.120A(3) of the Veteran's Entitlements Act 1986 ("the Act") provides that an hypothesis will only be reasonable connecting injury, death or disease with service if there is in force a Statement of Principles which "upholds the hypothesis".
The condition of PTSD is defined within Instrument Nº 3 of 1999, at paragraph 2, which is reproduced as follows-
"2.(a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b)For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81".
The applicant relies on factor 5(a) which provides as follows-
"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or …."
The expression "experiencing a severe stressor" is defined at paragraph 8 as follows-
"'experiencing a severe stressor'" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"
Instrument Nº 54 of 1999 is relevant only to the extent that it amends Instrument Nº 3 of 1999, with respect to the definition of "experiencing a stressor". The amendment is the addition of the word "severe" before the word "stressors" as that word appears before the sub-paragraphs enumerated (i) (ii) and (iii). It appears that the amendment is to correct an oversight when Instrument Nº 3 of 1999 was issued.
In Benjamin, the Full Federal Court of Moore, Emmett and Allsop JJ decided (at paragraph 41) that Statements of Principles were not "relevant to the question of diagnosis". In the present case, Drs Cole and Walton, being practising psychiatrists who are eminent in their field and suitably qualified to make the diagnosis, both agreed that the applicant did suffer from PTSD. An analysis of the definition of PTSD, where the diagnosis is mutually agreed between the appropriately qualified witnesses and conceded by the respondent, appears to be irrelevant. Counsel for the respondent submitted that the objective standard of Part A(i) of the definition of PTSD could not be satisfied, yet when the diagnosis is conceded, this submission also appears irrelevant. The only valid submission where diagnosis is conceded, is, in my view, that the conceded injury did not arise out of the service.
It seems to me in circumstances where the witnesses agree as to diagnosis and the respondent concedes the diagnosis and the Tribunal ultimately finds that the material points to that diagnosis (as I will at the conclusion of this decision) that subject to a finding of connection between service and PTSD the focus needs to be on whether the material raised pointed to the applicant "experiencing a severe stressor", as defined, during his operational service (refer Full Court of the Federal Court decision of Repatriation Commission v Hill [2002] FCAFC 192 ("Hill"), a decision of Black CJ, Drummond and Kenny JJ decided 18 June 2002).
The words "experienced", "witnessed" and "confronted" as they appear within the definition "experiencing a severe stressor" were discussed by the Tribunal in ReSlattery and Repatriation Commission (1998) 52 ALD 90 at 106. At paragraph 79 of that decision, the Tribunal found-
"The word 'witnessed' suggests that the person was present at the event involving real or present (ie. actual) or threatened death. The word 'experienced' suggests that the person observed or encountered such an event and the word 'confronted' that he or she was faced with such an event."
I am now satisfied that, whilst the above definitions are valid, they are unfortunately narrow. The Macquarie Dictionary defines "experience" as:
(i) a particular instance of personally encountering or undergoing something;
(ii)the process or fact of personally observing encountering or undergoing something;
(iii)knowledge or practical wisdom gained from what one has observed, encountered or undergone;
(iv)to have experience of; meet with; undergo;.

The word "witness" is defined as:

(i)to see or know by personal presence and perception;
(ii)to be present at (an occurrence) as a formal witness or otherwise;

…
(v)to be at the scene of;

…
(vi)one who being present personally sees or perceives a thing; a beholder, spectator or eyewitness.

The word "confront" is defined as

(i)to stand or come in front of; stand or meet facing; stand in the way of;
(ii)to face in hostility or defiance; oppose;
(iii)to set face to face.

The Shorter Oxford Dictionary offers a more expansive definition of "experience" by referring to "(ii) to have experience of; to feel, suffer, undergo". The definitions of "witnessed" and "confronted" are similar in the Shorter Oxford Dictionary.
The PTSD Instrument is said to be a derivation of DSM-IV. In a chapter of DSM-IV describing the diagnostic features of PTSD (page 424), the following is reproduced as an aid to what was understood by the authors of the Manual as events that are "experienced" and "witnessed". Whilst the following quotation refers to "traumatic events", as I have said earlier, the phenomena of "experiencing a severe stressor" as defined is almost word perfect to Part (A)(i) in the definition of PTSD at paragraph 2.
"Traumatic events that are experienced directly include but are not limited to military combat, violent personal assault (sexual assault, physical attack, robbery mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or man made disasters ….. Witnessed events include but are not limited to observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body part. Events experienced by others that are learned about include but are not limited to violent personal assault, serious accident or serious injury, experienced by family member or a close friend."
The words - and the event - of "experiencing a severe stressor" mean that the event or events involving-

actual death; or
threatened death or serious injury; or
a threat to a person's physical integrity; or
a threat to a physical integrity of another person
must be experienced or witnessed or confronted. Necessarily, the experience must be personal and, except for (i) above - which must necessarily be the death of someone other than an applicant - the events in (ii), (iii) and (iv) involve events that may be endured either by the applicant or another person, yet, precipitating a "severe stressor" which is personal and is "experienced". The phenomenon of 'experiencing a severe stressor' is not found within DSM-IV. It is a creature of the Statement of Principles and its relevance is its location within the paragraph 5 factors, one of which must exist as a minimum.

Additionally, and in order to comprehend what is intended to be the ambit of "experiencing a severe stressor", the above chapter from DSM-IV also records the following (at p.424)-
"The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to extreme traumatic stressor involving direct personnel experience of an event that involves actual or threatened death or serious injury, or other threat to ones physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of anther person; or learning about unexpected or violent death, serious harm or threat of injury or injury experienced by family member or other close associate".

Conclusion and Reasons For Decision

In Repatriation Commission v Deledio (1998) 49 ALD 193 ("Deledio"), a Full Federal Court of Beaumont, Hill and O'Connor JJ concluded that there were four stages which had to be followed by a decision-maker in order to determine whether a reasonable hypothesis has been raised connecting injury with the circumstances of service. Those stages are reproduced at page 206 as follows-
"1.   The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.    If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s.196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.    If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.    The Tribunal must then proceed to consider under s.120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
In the present application, the veteran relied on four specific episodes pointing to an hypothesis connecting PTSD with his service. Those events comprised being shot at whilst on watchtower duty, being engaged in a patrol outside the perimeter fence, being the last of the personnel to leave the Nui Dat base and overhearing a radio broadcast of a contact between Viet Cong and Australian troops. The hypothesis of connection with service has therefore been raised. Stage 1 is therefore satisfied.
Stage 2 is also satisfied because there are Statements of Principles, which are "in force" as previously discussed.
Stage 3 requires an analysis of whether the hypothesis raised is reasonable. It will be "reasonable" if it is consistent with the "template" as found within the Statement of Principles. The relevant "template" is one of the factors found at paragraph 5, namely "experiencing a severe stressor prior to the clinical onset of Post Traumatic Stress Disorder".
The diagnosis of PTSD is conceded by the respondent and agreed between the two psychiatrists who provided reports on behalf of both parties. Both also agree that the condition of PTSD has its genesis in the applicant's service in Vietnam. Having regard to the evidence of the psychiatrists and the evidence of the applicant as to the events within his service in Vietnam, there is material which has been raised and which points to the applicant having "experienced a severe stressor" during his Vietnam service. Those severe stressors he experienced were the episodes that he has relied on in these proceedings. The clinical diagnosis appears to have been made in approximately 1997 or 1998. It appears that the applicant was exhibiting symptoms of PTSD prior to the occasion of diagnosis, which may give rise to a finding of "clinical onset" earlier than 1997 or 1998. Nonetheless, it is clear from the material that has been raised in these proceedings that the severe stressors experienced by the applicant occurred prior to the clinical onset of PTSD.
It is only at stage 4 in the Deledio analysis that fact finding is required. In Dickson v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235, Wilcox J cautioned against the likelihood of error if the process of evaluation of a hypothesis raised by the material is not distinguished from its fact-finding role. In Borrett v Repatriation Commission [2000] FCA 1829, Tamberlin J found that the Tribunal decided "questions of fact and degree prematurely" at stage 3 of the Deledio process, which was "contrary to the statutory scheme".

The applicant impressed me as a witness of truth. He presented as a humble, forthright person who did not embellish or exaggerate. In some respects he was a poor historian but this is to be expected when he was asked to recall events which occurred more than 30 years ago. Additionally, his poor memory is consistent with the evidence of Dr Cole who said that a classical feature of PTSD was poor memory but vivid recall of feelings. Those feelings were visibly demonstrated throughout the hearing when the applicant broke down, having been required to recall events from service which were apparently painful.
One of the events the applicant relied upon was being exposed to the risk or threat of being shot whilst on watchtower patrol. This was dismissed by the respondent because it could find no written report of the episode and the risk of attack was believed to be minimal. Reports of this type were given by persons who were either not on the Base at the time, or who relied on military protocols or procedures. The applicant said the episode did occur, in fact he recalled the sound of the projectile passing through the air. This was said to be a separate sound to the sound which occurs when a projectile is emitted from a gun or rifle. That the applicant was able to hear the projectile suggests its close proximity to him, as opposed to a proposition advanced by Mr Tilbrook that there had been some reports of shooting at a radio tower located a considerable distance from the watchtower. Mr Gregson said that he did report the incident to a duty officer who attended the tower and suggested that he need not worry. Apparently, the incident was not reported but that is not the responsibility or the fault of Mr Gregson. It was the duty officer's responsibility, who apparently did not follow protocol. Additionally, there was material before the respondent from Mr Wilkins who indicated that during his tour of Vietnam there were bullets fired at the base which were not reported. Because I am satisfied that the applicant is a witness of truth, I am also satisfied and find as a fact that this episode occurred. It does not require any great leap to conclude that having been exposed to a bullet that the applicant would have then been "confronted" or "experienced" an event that then threatened him with death or serious injury or a threat to his physical integrity. I am therefore satisfied that that event amounted to the applicant "experiencing a severe stressor".
The applicant also referred to an occasion when he overheard a radio broadcast of actual combat. He said that he was approached by a radio operator, whose name he could not recall, to listen to the broadcast, apparently due to the distressing and sensational information being transmitted. It is beyond doubt that the event occurred and that it was extreme and graphic - and absolutely real - in its description and account of events unfolding during this event, known to be Operation Ivanhoe. A transcript of the broadcast is found within the T-documents, as an appendage to the second report of Mr Tilbrook.
Mr Gregson could not recall the time of day that he listened to the broadcast, nor could he recall the period of time that he spent listening to it. Nonetheless, I have concluded, that by reason of the apparent distressed or agitated state of the radio operator and the sensational and distressing news being broadcast (and heard by Mr Gregson) that the events that were heard are those events which are portrayed by the transcript. Similarly, that will also give a clue to the time of day - if relevant - to when the broadcast was heard.
At page 313, of the T-documents there are references to "ran into a few enemies, have got a couple of KIA". Page 317 again refers to 3 KIA and refers to wounds apparently suffered by an officer. Page 320 records "we are completely surrounded and we need more ammo". Page 321 records "I want every available support the enemy are getting bad". Later on the same page:
"…every time we move they fire. We are lying flat c/s 43 think they heard them coming up behind him poss, they got the freq of a set they captured. Can't accept any Irroquois - too dangerous. 42 believes he may be on the edge of another bunker system to his south because of fire lanes."

Page 322 contains part of a broadcast where the conflict is obviously occurring in darkness, at night, because it is recorded against the time "1945". The message received was "shelldrake is finding it hard to find features in the dark". Page 323 in part records-

"D Coy 5KIA 2 extracted. 6WIA poss 1 extracted. Bcoy 15 WIA, 12 extracted, 3 remained on duty. Sunray 42 can't stop bleeding, request assist on relay from starlight".

On page 324 being an apparent continuation of the last broadcast the following was recorded:

"sunray - CES 42 wounded, left shoulder, below shoulder blade, believe shrapnel entered from rear, bleeding badly, can't stop it."

At page 325 the message recorded was:

"C/S 42 loc 3 bodies lying around the bunkers. C/S 40 also counted 1 body on the way in. This morning C/S 42 fired at enemy. Saw 2 NEN go down and not come up again - makes 4 KIA (VC) 2 poss. Final count to be confirmed in morning ".

General Hughes said that there were no Australians ambushed in Operation Ivanhoe. I am unable to conclude from the transcript of the broadcast whether that episode amounted to a "ambush", but it appears that Australian troops were considerably under threat, indeed there is evidence of a considerable number of casualties and persons wounded. General Hughes reported that "no manoeuvre occurred at night by Australian forces". I do not know what he intends to mean by the word "manoeuvre" but clearly part of Operation Ivanhoe occurred during night time. The time "1945" and the word "dark" both found at page 322 is indicative of these events occurring at night. It seemed to me from reading his Statement that most of his criticism of the applicant's account of the episode of listening to the radio broadcast was that it was beyond his responsibility or duty. Because he apparently believed that the applicant was not being truthful, he suggested to Mr Tilbrook that enquiry be made of the applicant as to the frequency of the radio or the time of day that he allegedly listened to the broadcast. Comments of that type are unhelpful and unfair.
The applicant explained that he listened to the broadcast - although he was uncertain of the duration - because he wanted to support the radio operator. He also felt distressed and helpless because other Australian personnel - who he did not know - were either killed or wounded or at risk of being killed or wounded. The applicant said that he did not know the names of all persons who engaged in that Operation, indeed it is probable that he had not ever had contact with them. Nonetheless, he said the protocol within the Army was that all Australian personnel were "mates" and there was a responsibility and a duty to look out for "mates". It is not difficult to imagine that the applicant's response, did involve helplessness and horror listening to these events unfold. Because I am satisfied that the applicant did listen to the radio broadcast and - having regard to the description of the event by the applicant and having later read the transcript of the broadcast as found within the T-documents - I am satisfied that Mr Gregson did then "experience a severe stressor". He experienced, witnessed, and confronted events (refer earlier definitions) that did involve actual death and threat of death and actual and threat of serious injury to the physical integrity of other persons.
The remaining two episodes Mr Gregson relied upon were an occasion when he was on patrol outside the perimeter fence and being a member of the signals squadron which was preparing the evacuation of the Nui Dat base. During both of these events there was no report of Mr Gregson or other members of his squadron being fired upon or under threat. They were not engaged in conflict and there was no evidence of directly being threatened or indeed observing Viet Cong. Whilst I would not discount these events as contributing to the PTSD, I cannot find that they are of the same character as the other two episodes relied upon by the applicant. It should be said however that in order to preserve the integrity of Mr Gregson, I am prepared to find as a fact that he was evacuated from the Nui Dat base by helicopter. The attacks made upon his character by persons enlisted by Mr Tilbrook - who were not called to give evidence - and who disputed that Mr Gregson was airlifted - are unfair and unfounded.
Mr Purcell submitted (paragraph 92) that it was relevant to consider that the applicant was a volunteer and not a conscript. The relevance or intention of this submission is not clear. If it is intended to mean that regular army members are less likely to suffer PTSD by service than conscripts, there is no evidence in support. It is a proposition I have never heard as being put in any veterans application nor have I ever read any reference to a proposition of this type in any documents or other literature lodged in veterans applications.
Despite the condition of PTSD not being diagnosed until the late 1990s, I am satisfied that the events in service were responsible for it. There was much evidence of the applicant being engaged in heavy alcohol consumption in Vietnam. Mr Gregson said that he consumed alcohol as a relaxant and as a distraction. This was set against a background of moderate social consumption of alcohol prior to enlistment. Indeed, the apparent heavy consumption of alcohol which commenced in Vietnam and continued after he returned to Australia, was responsible for the eventual diagnosis of renal calculi, which has subsequently been accepted by the respondent as war-caused. The consumption of alcohol, in my view, points to the applicant suffering the effects of stress and/or anxiety contemporaneously with the events in service, which he now has put forward as responsible for his PTSD. There is reference also in about 1977 to the applicant exhibiting irritability and depression. Mr Purcell submitted that those symptoms were associated with persisting renal calculi. There is no evidence in support of that assertion. It might equally be the case that those symptoms were associated with the events in service which have given rise to these proceedings.
It was advanced on behalf of the respondent that an examination of the applicant's work history as a civilian should be considered in the context of whether his PTSD is related to service. It was said that his work with the Department of Community Services and with the Department of Correctional Services were stressful. Indeed, the respondent pointed to the applicant ceasing his employment with VACRO when he had his "breakdown".
I am not satisfied that the applicant's employment as a civilian is responsible for his PTSD. The applicant acknowledged that his work with the Department of Community Services was stressful, however he managed it and coped with the pressures of the job. He eventually obtained employment with the Department of Correctional Services, where he said he was exposed to a less stressful environment and worked under a supportive manager. He was engaged in administrative and research type work with VACRO, however his "breakdown" occurred at or about the time that he and his wife were engaged in a cruise to Vanuatu. He said the tropical climate and local environment reminded him of Vietnam and caused him considerable distress. The East Timor conflict further compounded this.
Both doctors were of the opinion that the applicant's service in Vietnam was responsible for his PTSD as diagnosed in the late 1990's. Dr Cole was of the opinion that the applicant's experiences in Vietnam could "lie below the surface" and be stimulated 30 years later.
Having regard to the above reasons and to the terms of stage 4 of the Deledio process, I am not satisfied beyond reasonable doubt that the condition of PTSD is not war-caused.
The remaining part of the application before the Tribunal was consideration of the applicant's claim for special rate pension. Mr Larkin submitted at the commencement of the hearing that in the event that PTSD was found to be war-caused, that the applicant should be remitted to the respondent for assessment of entitlement to special rate pension.
Whilst there was some evidence at the hearing of the applicant's work history, I am unable - additionally in the absence of any submissions or evidence by the respondent - to assess entitlement to special rate pension having regard to the provisions of s.24 of the Act. It follows that that part of the application is remitted to the respondent for assessment.
In conclusion, the decision under review is set aside. The applicant does suffer PTSD and a reasonable hypothesis exists connecting it with service. The application is otherwise remitted to the respondent to assess pension entitlement.

I certify that the 128 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro....................................
  Associate
Date/s of Hearing  27 and 28 August 2002
Date of Decision  16 October 2002
Counsel for the Applicant        Mr Larkin
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent    Department of Veterans' Affairs