HALLIN And REPATRIATION COMMISSION
[2004] AATA 200
•27 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 200
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/586
VETERANS' APPEALS DIVISION ) Re RICHARD HALLIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Dr JD Campbell, MemberDate27 February 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act1975, the Tribunal sets aside the decision under review and in substitution therefor decides:
(i) The diagnosis of Mr Hallin's psychiatric condition is varied from personality disorder to post traumatic stress disorder with major depression which is war-caused with effect from 11 October 1998;(ii) The condition of alcohol abuse is determined to be war-caused with effect from 11 October 1998;
(iii) The assessment of Disability Pension is:
(a) from 11 October 1998, 80 per cent of the General Rate; and
(b) from 24 March 1999, 90 per cent of the General Rate; and(c) from 3 October 1999, pension is to be paid at the Special Rate.
.............................................
Ms SM Bullock Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS - Disability Pension - Diagnosis - Post Traumatic Stress Disorder - Alcohol Abuse - Assessment - Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 ss 19, 24, 28, 120, 120A
AUTHORITIES
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
27 February 2004 Ms SM Bullock, Senior Member
Dr JD Campbell, Member1. Mr Richard Hallin, the Applicant, made an application for review to the Administrative Appeals Tribunal ("the Tribunal") of a decision made by the Veterans' Review Board ("the Board") on 12 February 2002 (T29). That decision varied the decision of the Repatriation Commission, the Respondent, made on 9 April 1999 (T2), by amending the diagnosis of post traumatic stress disorder claimed by Mr Hallin, to a diagnosis of personality disorder The Board then affirmed the decision under review as varied, including refusing Mr Hallin’s claim for psychoactive drug or alcohol abuse.
2. Mr Hallin provided evidence to the Tribunal. He was represented by Mr N Dawson of Counsel. The Respondent was represented by Mr S Modder, Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("T documents", T1-T32). A number of exhibits were also taken into evidence and are listed in Schedule 1 to this decision. Evidence was provided concurrently by Dr L Schmidtman, Consultant Psychiatrist and Dr R Haik, Consultant Psychiatrist. Evidence was also provided to the Tribunal by Mrs C Hallin, Mr Hallin's mother.
issues
3. In this matter, at issue is what are the diagnoses of Mr Hallin's psychiatric conditions and whether or not they are war-caused. Also at issue is the assessment of the rate of Mr Hallin's pension, at the General Rate and possibly, the Special Rate.
legislation
4. A decision in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act"). The relevant legislative provisions are contained within Schedule 2 to this decision.
background
5. Mr Hallin served in the Australian Army (“the Army”) from 26 January 1966 until 16 April 1968. He rendered operational service in South Vietnam from 11 December 1967 until 2 April 1968 (T4, pp 16,17).
6. At the time of hearing, Mr Hallin was in receipt of a Disability Pension at 50 per cent of the General Rate for the conditions of chronic simple bronchitis; gastro-oesophageal reflux disease; duodenal ulcer; and, bilateral sensorineural hearing loss with tinnitus. He has been in receipt of pension of 50 per cent of the General Rate from 2 April 2002 and was in receipt of Disability Pension at 30 per cent of the General Rate from 24 March 1999. From 11 October 1998, Mr Hallin was in receipt of Disability Pension at 10 per cent of the General Rate.
evidence of mr richard hallin
7. Mr Hallin told the Tribunal that he came to Australia from England when he was approximately 12 years old. He obtained the Intermediate Certificate, leaving school when approximately 15 years old. Prior to leaving school, Mr Hallin explained that he had run away from home with a mate when he was about 14 years old. They travelled to Queensland, where they worked for a short time washing trucks. Mr Hallin stated that he had friends at school. Following school, he worked variously as a jackeroo on a property for approximately 12 months and then undertook other work including joining a carnival travelling around. He undertook this work for approximately 12 months.
8. Mr Hallin joined the Army at age approximately 17 years, enlisting on 26 January 1966. He initially had training at Kapooka and then for approximately 18 months in Brisbane. Mr Hallin was referred to his service records (T4, p16) which detailed offences including in May 1966 for disobeying lawful command; on 18 October 1966 and 9 December 1966, for similar offences of disobeying lawful commands and using threatening language; on 14 December 1966, with failing to appear on parade; and on 13 July 1967, for not sounding reveille. Mr Hallin stated that he could remember some of those charges but not all, stating that they were minor. He stated that he was probably immature at the time and was not used to discipline, or for that matter, getting up early. Mr Hallin explained to the Tribunal that there were many like him who were charged with minor offences.
9. Mr Hallin was referred to a report by Dr R D Lewin, Adult, General and Forensic Psychiatrist, dated 28 June 2001 (T26, p150), in which Dr Lewin reported that Mr Hallin had had 20 charges made against him while in the Army. Mr Hallin strenuously denied that statement, further explaining that after the early charges he "knuckled down". Mr Hallin stated that reading Dr Lewin’s report was like reading about someone totally different. It contained many inaccuracies. Furthermore, Mr Hallin stated he did not get into trouble with the police before the Army as Dr Lewin had also reported. His misdemeanours with the police occurred when he was in his twenties. Mr Hallin has had fights with people but not as described by Dr Lewin. Mr Hallin denied fantasising about threatening people, as Dr Lewin had asserted. Mr Hallin stated that he had stood up for himself when he was he sold a defective car, but he took the car back and the problem was rectified. Mr Hallin stated that he had no problems until Vietnam. He also stated that he had friends and mates in the Army.
10. Mr Hallin arrived in Vietnam in 1967 aged approximately 18 years. His core training had been to undertake duties as a storeman and in the maintenance of bath equipment. When Mr Hallin arrived in Vietnam, because of the TET Offensive, combatant troops were engaged in offensive work while non-combative soldiers, such as Mr Hallin, had their usual duties in addition to infantry duties including patrols in the field, sentry duty, tactical area response teams and patrolling 1000 metres outside the wire perimeter of various locations of the camp.
11. Mr Hallin described a number of incidents which he stated stressed and frightened him a great deal. The first incident occurred about three weeks after he arrived in Vietnam, when he was posted to a New Zealand gun battery to undertake night time guard duty. Mr Hallin described hearing a noise suggestive of someone outside the camp. A call was made to the Duty Officer and an order was given to fire, and Mr Hallin and others opened fire using SLR rifles. There was also fire from the camp's guard tower. There was tracer fire from outside the camp. Mr Hallin stated that he felt fearful and was scared that he would be killed. His heart was pounding, he stated, and he felt impotent and terrified. Mr Hallin further stated that there was a massive overwhelming mixture of emotions including shock and exhilaration. After the incident, he found it very difficult to calm down and relax and as a means of doing so, he consumed alcohol.
12. Mr Hallin described another incident when he was posted to Fire Support Base (“FSB”) Andersen. Mr Hallin noted the report by Mr J Tilbrook of Write Way Research Services (T12). Mr Tilbrook noted (at page 64) that when Mr Hallin was at FSB Andersen between 24 January 1968 and 14 February 1968, there was no firing. Mr Hallin stated that he was there and there was definitely mortar fire. He thought again that he was going to be killed. At that time, Mr Hallin was in his tent and then called to the line and ordered to fire his 50-calibre machine gun. Furthermore, Mr Hallin described a gunship being called in. It was firing and one of the men along side Mr Hallin asked him if he was hit. Mr Hallin described feeling helpless, sick in the stomach, terrified and concerned that the “friendly fire” from the gunship, would injure someone. There was a continuous noise of guns and of tracer bullets.
13. The most stressful incident for Mr Hallin occurred when he was travelling on the road to Baria to collect uniforms from the laundry. Their truck was stopped by US and other troops. Mr Hallin looked around and saw what he initially thought was a pile of rubbish, only to find that it was in fact a pile of dead bodies. Mr Hallin had not seen a dead person before. He described feeling sick in his stomach and had to walk away. Mr Hallin noted that there were other soldiers there who were laughing and were using a limb of a deceased person to hit a ball. He could not believe these soldiers’ actions. Mr Hallin described the situation as being so impersonal, one minute those people were alive and the next they were dead. Mr Hallin stated that he felt horrified at the thought of that and again that night, he became drunk to try and deal with the difficulties of those circumstances. Mr Hallin thought that it was such a waste of life and one of those dead bodies could have been his. In his statement (Exhibit A2), Mr Hallin stated that in that situation he found it difficult to breathe and he was shaking and perspiring.
14. In relation to alcohol consumption, Mr Hallin stated that prior to Vietnam, he had consumed alcohol very occasionally, perhaps a beer. He stated that at that time he did not like the taste of beer. In Vietnam by contrast, Mr Hallin stated that he consumed large quantities of alcohol, mainly Bacardi rum and beer. It was the general rule to drink and everyone did. Mr Hallin was also able to drink more than most of his colleagues because his friend had a key to the bar. After the incidents with the New Zealand patrol, the incident when he was in FSB Andersen and having been confronted by the dead bodies, Mr Hallin explained that he drank more to ease what he described as his stress and problems. He described feeling continuously on edge. Mr Hallin also noted that he obtained marijuana from the US troops which used to settle him down and calm his nerves.
15. Mr Hallin stated that before leaving Vietnam, he knew that he was going to be discharged from the Army, because he had had an argument with a Corporal who was not happy with Mr Hallin's efforts in digging a ditch. Mr Hallin agreed that he was abusive to the Corporal. However, he did not quite understand his discharge as he knew other soldiers who had committed similar offences who were charged, but not discharged from the Army. The Corporal was well known to have been abusing alcohol, Mr Hallin stated, and was himself also later discharged prematurely.
16. When Mr Hallin returned to Australia from Vietnam, he stated that his life was a blur and he was very unsettled. He got into the wrong company of people and he was physically aggressive towards others in 1968. Mr Hallin described his life at that time as involving him consuming alcohol and drugs. Mr Hallin stated that his drinking habit intensified when he returned to Australia from Vietnam in an attempt, he believed, to help him to forget what had happened to him in Vietnam and also to help him sleep, he stated. Also at that time, he was charged with stealing and jailed for approximately two years. Contrary to Dr Lewin's assertion, Mr Hallin stated that he had no trouble with the police before the Army and no problems after his imprisonment.
17. In about 1989, Mr Hallin commenced working at Australia Post. He worked initially as a driver and then after an injury to his right hand, he moved into administrative work involving audit with fairly responsible duties including providing various management reports to the executive. Mr Hallin stated that when he was in the administrative positions, he had a period of stability. Mr Hallin described himself as a perfectionist for himself and for his team, always wanting to achieve good results. Mr Hallin worked long hours, up to 18 hours per day. He said that working like this kept the memories of Vietnam at bay and focussing on his work kept his attention away from other worries he had. He was his own boss and could set his own agenda. Mr Hallin concluded that the period of employment at Australia Post was a time of relative stability compared to his employment history following his return from Vietnam, when he moved from job to job in very quick succession.
18. In about 1997, this period of relative employment calm was lost. Mr Hallin stated that Australia Post was undertaking a large scale downsizing operation and his position was abolished. Mr Hallin attempted, as did his supervisors, to relocate him within Australia Post. Such attempts were unsuccessful. Mr Hallin stated that he was not coping towards the last 18 months in Australia Post and he left on 16 September 1998 (T6, p36). During those last 18 months, Mr Hallin was drinking more and more and also during that period he had in total, seven months off work with illness. Mr Hallin's general practitioner, Dr Loxley, spoke to Mr Hallin about this and in fact advised him to give up work. Mr Hallin admitted that whilst working with Australia Post, he consumed alcohol. He had been warned on a number of occasions by supervisors not to turn up to work intoxicated and he stated that he was able to heed the warnings, but towards the end of his employment, this became more and more difficult for him. As Mr Hallin became more and more stressed, he consumed more alcohol, he stated.
19. Mr Hallin's current level of alcohol consumption is half a standard bottle of Southern Comfort whisky per day in addition to four to six beers. If it is a good day, Mr Hallin does not consume alcohol until lunch time, but on a “bad” day, he will commence alcohol consumption when he gets up in the morning.
20. Mr Hallin described two admissions to St John of God Hospital, Richmond, in 2002, which he believed assisted him to deal with his post traumatic stress disorder and his alcohol problem. Mr Hallin described experiencing frequent nightmares about Vietnam. He wakes up in a "cold sweat", he kicks and yells and often kicks his wife, Anne, out of bed. The nightmares have been present on and off for years and are very severe at the present time, Mr Hallin stated. Mr Hallin believes he first received treatment for his alcohol problem in 1997. Mr Hallin stated that he saw the effects of alcohol on other people when he was in St John of God Hospital and it made him more aware and more concerned to try and curtail his own alcohol consumption. Since his hospital admissions, consulting various doctors, psychiatrists and counsellors and taking medication, Mr Hallin believes that his condition of post traumatic stress disorder has been assisted.
21. Considering Mr Hallin's relationships, he was first married in 1973 to Edith and divorced after 14 years of marriage. He stated that the first nine years of his first marriage were all right and he was relatively settled in that relationship. Mr Hallin stated that his first wife left him because she was afraid Mr Hallin would shoot her and their two children. She feared for her life. Mr Hallin stated that at that time, he was aggressive and he physically hit his first wife when she hit him. He was drinking a great deal of alcohol at that time, particularly towards the end of his marriage. Mr Hallin now has limited contact with his first wife and their children.
22. Mr Hallin commenced a defacto relationship with Anne in about 1989 and they subsequently married. This is a very supportive relationship and Mr Hallin stated that his wife calms him down. He recognises that he is not as tender and romantic as his wife would like. Mr Hallin stated that his wife is very good for him and he tries to do the right thing by her. Mr Hallin has one friend, his ex-brother-in-law, who also helps him out.
23. Socially, Mr Hallin does not go out to hotels or clubs, as he recognises that these places can lead to trouble, particularly if he is aggressive. Mr Hallin stated that he is socially isolated apart from his wife, mother, doctors and ex-brother-in-law. Mr Hallin states he spends his time watching television and listening to music. He likes photography but does not do that any more. Mr Hallin undertakes no activity around the house and arranges for someone to mow the lawns. Mr Hallin stated that he just cannot do anything and cannot see the point to anything. Mr Hallin attends Vietnam Veterans' meetings approximately every three months. There are meetings each week, but Mr Hallin feels unable to attend more regularly.
24. In about 1999, Mr Hallin moved to Coonabarabran in New South Wales because he could not stand living any more in the city. He had no family in Coonabarabran at that time. Mr Hallin lives on a property outside town which is not near people. Mr Hallin's mother, Catherine, came to live with him and his wife recently, following the death of her husband who is Mr Hallin's stepfather. The relationship between Mr Hallin and his mother is not very good, he stated. In recent times, Mrs Catherine Hallin communicates with her son via notes. Mr Hallin thinks this has occurred because when his mother would come to talk to him or ask him to do something, he would yell at her. This makes him very sad, he stated.
25. Since living in Coonabarabran, Mr Hallin has not looked for employment. When working for Australia Post, he was advised by Dr Loxley, that he could not work and another general practitioner, Dr Pope, told him he could not work. This advice has also been consistent from Consultant Psychiatrists, Dr J Taylor and Dr L Schmidtman. Mr Hallin stated that he cannot work because he cannot concentrate, he becomes too stressed and he panics. By way of example, Mr Hallin described the situation at Australia Post at the end of his employment. He was asked to undertake a simple task by a supervisor and he simply could not do it. He stated that he did not know where to begin, he could not concentrate, he became agitated and very stressed.
26. In terms of psychiatric care, Mr Hallin consults Dr Taylor, Consultant Psychiatrist, to whom he was referred by his general practitioner. Dr Taylor visits Dubbo and Mr Hallin consults him once per month or if he is feeling particularly unwell, he will see Dr Taylor in Sydney. Mr Hallin also consults a psychologist in Dubbo once per week. In recent times, because of the Tribunal proceedings, Mr Hallin has not seen the psychologist weekly but rather fortnightly. Mr Hallin talks about strategies with the psychologist to deal with his anxiety, anger management, his aggressiveness and to develop methods of recognising when he becomes stressed and ways of avoiding such symptoms.. Currently, Mr Hallin takes the following medication: Luvox, Lipitor, Zoton, Epilim, Celebrex, Valium and Nembutal. Mr Hallin told Dr Taylor and Dr Schmidtman, his treating psychiatrist at St John of God Hospital, Richmond, of the stresses he experienced in Vietnam but did not tell Dr Jenkins, Consultant Psychiatrist, who he initially saw in Sydney on two occasions. Mr Hallin told Dr R Haik, Consultant Psychiatrist, about the dead bodies in Vietnam and about being stationed and going on patrol at FSB Andersen and at the New Zealand gun battery.
evidence of mrs catherine hallin
27. Mr Hallin's mother provided a statement to the Tribunal dated 27 November 2002 (Exhibit A3) and also provided oral evidence. Mrs Hallin noted that her son was a perfect baby and a very good child, doing the normal things boys do and having a normal upbringing. Apart from being accident prone, Mr Hallin had no other behaviour problems as a child, she stated. Mr Hallin would come home from school, change his clothes and do his homework with some “encouragement” from Mrs Hallin. Mrs Hallin stated that she never had to attend school at the request of teachers, nor had there been any particular complaint from the school. Mrs Hallin noted that her son after school, would go riding on his bicycle with his friend until dinnertime. Mr Hallin did wag school a number of times, but this problem was readily rectified when his school teachers developed a system to deal with this. Mrs Hallin stated that her son left home when he went into the Army at the age of 17. She did not actually recall her son joining the circus. Mrs Hallin recalled Mr Hallin did run away when he was about 14 years old. He went with another boy to Brisbane where they worked cleaning trucks. Mrs Hallin put this down to her son being adventurous and having wanderlust. Mrs Hallin also noted that when her children were younger, she and her husband had discussed wanting to go to Queensland because there was work there.
28. Mrs Hallin stated that her son and her second husband did not get along very well. Mrs Hallin believed that there was something missing in their relationship although there was never animosity between Mr Hallin and his stepfather. Mrs Hallin further noted that her second husband adopted Mr Hallin. As Mrs Hallin was unable to have any more children, she and her second husband subsequently adopted a daughter.
29. Mrs Hallin explained to the Tribunal that when Mr Hallin returned from Vietnam, he was a very different person. He would disappear for two weeks at a time and the family would not know where he had been. Furthermore, Mrs Hallin tried to obtain work for him, but he never stuck with employment. Mrs Hallin stated that it was heart breaking to see the change in her son, because he would no longer discuss anything with anybody. Mrs Hallin described her son before the Army as being a personable, nice person, able to express emotions and to show his feelings. Now, Mrs Hallin stated that her son does not show any emotions or feelings. It is now hard for her to remember what he used to be like. Mr Hallin has talked about killing himself at various times, Mrs Hallin stated.
30. In relation to any troubles with the police, Mrs Hallin stated that Mr Hallin had no trouble with the police before he went to Vietnam. After he returned from Army service, he was often in trouble with the police. She believes her son became addicted to alcohol and smoked heavily after Vietnam. Mrs Hallin stated that her son did not drink before he went on overseas service and she used to boast to her friends that her son did not drink. Mrs Hallin could not recall the year that Mr Hallin's problems with alcohol started. She believes that the problem with alcohol has worsened over the last three years.
31. When Mr Hallin joined Australia Post, Mrs Hallin recalled that her son seemed to be somewhat better. She noted that later on at Australia Post, he was frequently off work ill because of stress and he would be away for a couple of weeks at a time. Mrs Hallin stated that her son was eventually given a redundancy package and he moved to Coonabarabran where he had no immediate neighbours to worry him.
32. In relation to her son's first marriage, Mrs Hallin stated that she believed that the marriage was all right for the first nine years. Mrs Hallin keeps in touch with her former daughter-in-law and has been told by her that she left Mr Hallin because she was scared that he would harm her and/or her children. Mrs Hallin stated that she and her second husband moved to Coonabarabran after Mr Hallin and his second wife moved there. Mrs Hallin then moved in with her son when her own husband died. She stated that she is now going to move out because of the difficulties she is experiencing with her son. Mrs Hallin stated that she has difficulties communicating with Mr Hallin and that he cannot concentrate on two things at any one time. Lately she has tried to write letters to him in order to communicate. Sometimes Mr Hallin will respond to these letters when he is ready and at other times, he will not respond. Mrs Hallin also noted that her son has to sit with his back against the wall, so that no one can sneak up on him and that he also had put extra lights around the house so that it is very well lit up. Mrs Hallin had noted in her statement that her son is reluctant to go out to dinner or to socialise.
33. In relation to Mr Hallin's medication, Mrs Hallin described an occasion when her son did not take his medication for one day. Mrs Hallin stated that the results were horrific. Her son was standing outside yelling and stating that everything was wrong. He was so very distressed and she advised her daughter-in-law to encourage Mr Hallin to go back into the house, or someone might call the police. Mrs Hallin also noted that she herself is very stressed out and she could not imagine Richard without him taking his medication. When Mr Hallin's first wife left him, he was not taking any medication. In Mrs Hallin's view, it took some time for people to realise that Mr Hallin needed help.
evidence of ms s saunders
34. Ms Saunders, Mr Hallin's sister, provided a statement dated 24 January 2003 (Exhibit A4). Ms Saunders noted that her brother went to Vietnam in the Army when 19 years of age. He returned in 1968 a very different man. In this regard, Ms Saunders noted that Mr Hallin was extremely unsettled, he found it difficult holding down a job and moved around a great deal. Ms Saunders further reported that her brother had as a main issue, difficulty coping with every day activities and taking instructions from his bosses, supervisors and anyone he felt threatened by.
35. After Vietnam, Ms Saunders noted that her brother became involved with a "bad crowd of people".. When yet another job fell through and he had to make car repayments, he panicked and followed his mates and was consequently arrested for stealing, followed by imprisonment.
36. In relation to his current situation, Ms Saunders noted that Mr Hallin is totally withdrawn and on a “cocktail” of prescribed medications. If any of his medication is stopped for any length of time, Ms Saunders described her brother as a "time bomb just waiting to explode".. The consequence of Mr Hallin's behaviour is that his family are continually walking on "eggshells". When he is on medication required to get him through his daily routine, it is Ms Saunders's opinion that Mr Hallin acts like he has no mind or will of his own. When not on medication, Mr Hallin is extremely aggressive. Most of the time Mr Hallin is withdrawn, socially inept and cannot catch public transport as this is too threatening for him.
evidence of mr j tilbrook, consultant, write way research services
37. Mr Tilbrook provided a report dated 15 September 1999 (T12, pp60-69). Mr Tilbrook noted that although Mr Hallin was posted to Vietnam in a non-combatant role, he was still required to carry a loaded weapon with him in the event of an enemy attack upon the base or other forms of enemy intervention when operating “outside of the wire” at Nui Dat, such as convoy travelling to the outlying FSBs or when deployed at a FSB to provide hot shower facilities for soldiers. Mr Hallin was required with all other administrative and logistic support soldiers at Nui Dat, to participate in rostered security duties, such as sentry duty, gun picquet or as a member of a perimeter patrol conducted in the vicinity of his base.
38. Mr Tilbrook noted that although there is no recorded incident of the enemy turning around Australian defensive mines on the perimeter of the 1 ATF base, such instances certainly did occur at FSBs in the area of operations. Mr Tilbrook noted that at the time of Mr Hallin’s Vietnam service, there was a need for soldiers to be vigilant against enemy tactics when employed on a gun pit duty or sentry duty, particularly at night. In relation to Mr Hallin's contention that at the outbreak of the TET Offensive, he was sent to a New Zealand perimeter guard post and heard noises believed to be the enemy and they were given permission to open fire, it was confirmed by the veteran's Unit Officer in Charge, Lieutenant Colonel Mike Clark, that at the outbreak of the TET Offensive all three of the infantry battalions were deployed away from the Nui Dat base on Operation Coburg. When the nearby provincial township of Baria was attacked and overrun by Viet Cong, there was a genuine fear that the enemy would also launch an attack on Mr Hallin's base. Soldiers were required to man the perimeter defences around the base. Lieutenant Colonel Clark conceded that Mr Hallin was sent to one of the New Zealand gun pits on the perimeter in a sector occupied by the New Zealand infantry companies. It is accepted that Mr Hallin would have heard noises in front of them and that they would be required to seek permission to fire with either MG guns or rifle fire. It is therefore plausible, Mr Tilbrook reported, that when Mr Hallin was on duty in one of those pits, shots were fired by Mr Hallin's group as there was a climate of a heightened sense of hyper-vigilance, particularly given the ferocity of enemy attacks being launched throughout Vietnam during that first four or five days of the TET Offensive.
39. In relation to the contention of Mr Hallin being deployed to a FSB as a forward guard post, with mortar and tracers being fired from a US Gunship, Lieutenant Colonel Clark confirmed that his unit did send a forward detachment to FSB Andersen. This event occurred more that 30 years ago and Lieutenant Colonel Clark could not recall whether or not Mr Hallin was a member of that party as he claimed. It would be expected that Mr Hallin would have been deployed to FSB Andersen as he claimed. Although Mr Hallin was not involved in any contacts with the enemy at that time, it is accepted by Mr Tilbrook that he would have been rostered to perform basic sentry duty at FSB Andersen and could also have been deployed forward as a listening post. Being deployed in such circumstances during the TET Offensive, Mr Hallin would have been witness to the ferocity of outgoing artillery fire, as well as localised harassing mortar fire. It is also accepted by Mr Tilbrook that Mr Hallin would have been witness to the overhead activities of an US Gunship air operations with the firing of tracer rounds at night. Mr Hallin's assertion that the Gunship was firing mortars is not possible as helicopters could not fire mortar rounds. It is accepted by Mr Tilbrook that at the height of the TET Offensive, Mr Hallin would have been afforded the opportunity of witnessing direct air support in the immediate vicinity, but it is probably only Mr Hallin's personal perception that he was within range of such allied air weaponry and at a "risk" of being killed, Mr Tilbrook opined.
40. Mr Tilbrook confirmed that Mr Hallin had a history of disciplinary indiscretions, which led finally to the incident of him having an argument with a Corporal and subsequently being discharged. Lieutenant Colonel Clark also stated that due to poor discipline in the unit, he “sacked” and also sent home the unit's CPL Bates and CSM Stanley because of their inefficiency and alcoholism.
41. In conclusion, Mr Tilbrook reported that there is some substance to all of Mr Hallin's contentions in terms of incidents he experienced in Vietnam. Mr Tilbrook opined that it may be that Mr Hallin's personal perception at the time, as an inexperienced, non-combatant logistic soldier on active duty for the first time, might have been overstating the actual "risk" of enemy intervention, with the exception of his period of service at FSB Andersen.
evidence of mr l davidson
42. The Tribunal has a statement from Mr Davidson dated 29 January 2003 (Exhibit A5) which noted that Mr Davidson served as a soldier with the 6th Ordnance Field Park (6OFP) and during that period, the unit had the title changed to 1OFP. His unit was expected to carry out patrols, perimeter defence and logistic support to the battalion whilst in the field and on operations. Mr Davidson noted that during a nightly perimeter watch he was in a gun pit with two other soldiers, one of whom was Mr Hallin, when they were subsequently fired upon and they returned fire. This exchange lasted for about five minutes and there were no casualties sustained by Mr Davidson or his group. Mr Davidson noted that in the small unit of men, there were two ex Korean veterans and also Mr Hallin who "succumbed" to alcoholism. Mr Davidson noted that Mr Hallin was continually involved with administrative warnings and was sent home prior to the completion of his tour of duty. It was Mr Davidson's view that Mr Hallin should never have been placed in a war zone and he was an unfortunate victim of circumstance.
evidence of mr am flanagan
43. Mr Flanagan provided a statement dated 28 January 2003 (Exhibit A6). Mr Hallin was allocated to be Mr Flanagan's switchboard operator/courier driver. Mr Flanagan noted that undertaking picquet on the wire with the USA, New Zealand and Australian Artillery Batteries along with the Tactical Area of Responsibility patrols came as a shock to Mr Hallin. Mr Hallin was noted to indulge himself with alcohol to relieve his stress. Mr Hallin was relieved of his switchboard duties due to his stress and then worked as a storeman as well as the unit hygiene man, Mr Flanagan reported. Mr Hallin's stress and alcohol abuse led to a clash between him and CSM Stanley and Sergeant Bates who also both became alcoholics in Vietnam. Mr Flanagan noted that Sergeant Bates' alcoholism resulted in him being sent home in April 1968, a period which also saw Mr Hallin return to Australia, discharged from the Army.
concurrent evidence of dr l schmidtman , consultant psychiatrist and dr r haik, consultant psychiatrist
44. Dr Schmidtman provided a report dated 14 January 2003 (Exhibit A7). Dr Haik provided a report dated 28 November 2002 (Exhibit R3). The doctors at hearing provided evidence concurrently. Dr Schmidtman and Dr Haik were provided by the Tribunal with an oral summary of Mr Hallin’s and his mother’s evidence to the Tribunal, agreed by the parties to be comprehensive.
dr schmidtman
45. Dr Schmidtman noted that she had been involved in Mr Hallin's three admissions to St John of God Hospital, firstly for alcohol detoxification, secondly for post traumatic stress disorder and a third admission between the 6 to 20 February 2003, as a crisis admission for an exacerbation of his symptomatology and deterioration in Mr Hallin's mental state. Dr Schmidtman has had contact with Mr Hallin for several weeks over the past two years.
46. Dr Schmidtman considered that the history Mr Hallin had provided to her was consistent with that provided by Mr Hallin to the Tribunal and she confirmed her diagnosis under the American Psychiatric Association’s "Diagnostic and Statistical Manual of Mental Disorders” Fourth Edition ("DSM-1V") of post traumatic stress disorder in terms of the trauma and symptoms. In terms of the stressor for post traumatic stress disorder, Dr Schmidtman considered that Mr Hallin was confronted with a threatening situation in Vietnam and he believed his life was in danger, in the first instance described in his evidence and, in the third incident, Mr Hallin described being absolutely horrified at the sight of the dead bodies and faced the fear of his own mortality. Therefore, Dr Schmidtman considered that the incidents fulfilled the criteria of experiencing and being confronted with a severe stressor as required by DSM-IV. Furthermore, Mr Hallin described symptoms of nightmares and memories, symptoms consistent with high arousal levels and with avoidance of reminders of Vietnam. All the symptoms are consistent with the diagnosis of post traumatic stress disorder, Dr Schmidtman opined.
47. Dr Schmidtman’s history was different to that taken by Dr Haik in that Dr Schmidtman noted Mr Hallin's history of misdemeanours leading to his involvement with the police, had occurred after his tour duty in Vietnam. Furthermore, there were about three incidents from her memory (Transcript, 27 May 2003, p18) of Mr Hallin wagging school and one occasion when he left home and went to Queensland to work for a short period. Dr Schmidtman noted that Mr Hallin's mother appeared not to have considered these events as being of a very recurrent nature and did not give a lot of importance to them. Whether there is a history of personality features underlying Mr Hallin's psychiatric condition is debatable, Dr Schmidtman stated, but even if there were such underlying personality traits, that did not preclude the diagnosis of post traumatic stress disorder. During Mr Hallin's army service, he had difficulty relating to authority and certain offences were recorded. However, even if it was concluded that Mr Hallin had conduct problems or problems with authority in his early teen and adult years, again this also did not preclude him developing a post traumatic stress disorder in addition to those other conduct difficulties. Dr Schmidtman also opined that the two diagnoses could very well exist as post traumatic stress disorder is not an exclusion diagnosis. However, given Dr Schmidtman's observation of Mr Hallin in hospital, and afterwards as an outpatient, she saw no reason to consider an alternate diagnosis.
48. Dr Schmidtman noted that Dr Haik has focused on explaining Mr Hallin's symptoms through personality issues. However, if one looked at it from the point of view of post traumatic stress disorder and also noting the evidence of his mother who found him changed and unable to communicate, then these factors could well be ascribed to post traumatic stress disorder as well as having personality traits. Furthermore, the evidence from Mrs Hallin about Mr Hallin's relationship with his first wife and of the marriage ending because of Mr Hallin's behaviour during the marriage, is evidence of social impairment and also there is evidence of occupational impairment. Dr Schmidtman noted that Mr Hallin had had numerous short term jobs until he found his niche in Australia Post.
49. While noting Dr Haik's diagnosis of Mr Hallin’s psychiatric condition as a personality disorder, Dr Schmidtman stated that one must consider pre and post army service and the severity of his behaviour. Certainly on Mr Hallin's behaviour after service, Dr Schmidtman opined that one could make a diagnosis of personality disorder. However, for a diagnosis of personality disorder, Dr Schmidtman opined that the onset of quite severe problems would need to occur on the DSM-IV criteria before the age of 18 as a predating symptomatology. With the army service and a marked worsening of Mr Hallin’s behavioural problems, one has to consider whether there has been some personality changes related to his incidents in the Army and DSM-IV and ICD-10 Codes acknowledges that as a result of traumatic events, there can be personality changes.
50. Dr Schmidtman stated she had not seen any evidence of Mr Hallin engaging in any behaviour that would be consistent with an anti-social personality disorder, as had been discussed by Dr Haik. On the contrary, Dr Schmidtman had observed Mr Hallin being quite empathic and distressed at the unfortunate circumstances of another veteran and he had gone out of his way to help the widow of a veteran and to help others in distress. Such behaviour is not consistent with an anti-social personality. Furthermore, while a criminal record could be an indication of anti-social personality or of someone who is very disorganised and distressed, it is very hard to judge such matters which have occurred 30 years ago, Dr Schmidtman commented.
51. In terms of the onset of the post traumatic stress disorder, Dr Schmidtman opined that according to the history, the onset was after the events in Vietnam. Mr Hallin had stated, and Dr Schmidtman accepted, that he has experienced symptoms basically since Vietnam. Mr Hallin had not however considered them to be relevant or out of the ordinary and had not talked to anyone about it. Thus, the onset is likely to have happened very shortly after the stressful event but the diagnosis, which is a different issue, happened many years later, Dr Schmidtman concluded.
52. Dr Schmidtman stated that the evidence suggested that the alcohol abuse condition starting during Vietnam service. Given the type of offences before his Vietnam service whilst in the Army, these were not indicative of being alcohol-related. Mr Hallin's evidence to Dr Schmidtman was that he started substantial alcohol consumption in the Army then significantly increased his alcohol following discharge. There was not a substantial change in the alcohol consumption pattern but a variation in the use of other drugs after this time. By the time Dr Schmidtman first examined Mr Hallin, he had stopped using other drugs apart from alcohol (Transcript, 27 May 2003, p75). There was a two year break in his drug/alcohol consumption when he was imprisoned in the 1970s. Dr Schmidtman considered the diagnosis of alcohol abuse appropriate.
53. Discussing Mr Hallin's work, Dr Schmidtman stated that at Australia Post, Mr Hallin finally found a job capable of providing him with sufficient focus and structure to be able to contain his rather disorganised behaviour as evidenced by his previous, short-lived jobs. The removal of the Australia Post job, and possibly a wrist injury, could have led him to decompensate. Dr Schmidtman opined that leading up to his cessation of employment at Australia Post, Mr Hallin’s arousal levels were high, he had poor concentration and he was not coping very well at work before he left. He had temper outbursts not just at Australia Post but in other employment. Mr Hallin's earlier performance at Australia Post and the fact that he was commended was not inconsistent with him suffering from post traumatic stress disorder, Dr Schmidtman opined. Noting the commendation by Mr W Barney, a Facility Manager from the North Parcel Centre of Australia Post dated 11 November 1998 (T28, p183), Dr Schmidtman stated that was many years ago and therefore not reflective of Mr Hallin’s circumstances towards the end of his employment.
54. Dr Schmidtman acknowledged that some people with post traumatic stress disorder can improve and some can work. It was her opinion that Mr Hallin was not one of those people. From Dr Schmidtman's observation, Mr Hallin's ability to concentrate on one task for any length of time has quite diminished. Furthermore, Mr Hallin had trouble remembering the content of discussions at one hour group sessions while he was in hospital. He had difficulty in sticking to tasks for any length of time and, in Dr Schmidtman's opinion, Mr Hallin would be unable to cope and hence work in paid employment where it is a requirement for employees to perform and be efficient. Mr Hallin may be able to undertake chores around the house that did not require performance within a certain timeframe or sustained performance.
55. Dr Schmidtman opined that the fact that Mr Hallin did not talk about his experiences in Vietnam, did not mean he was not experiencing symptoms. Dr Schmidtman explained that she had seen World War II veterans who never talked to anyone about their experiences and then they would present with a quite coincidental presentation, with evidence after 50 years of World War II of experiencing symptoms of post traumatic stress disorder. The fact that a person does not talk about their symptoms, not even to their close friends or family, does not necessarily mean that he or she was not experiencing anything. Similarly, the fact that Mr Hallin did not speak about any particular symptoms until 1999, such as his recurrent nightmares and the feelings and thoughts about his bad memories, did not mean that Mr Hallin was not experiencing such symptoms. Dr Schmidtman explained that people with post traumatic stress disorder often may not talk about the symptoms for over 20 or 30 years. It is very often a case of late disclosure rather than late onset. Life crises such as marriage break up or lack of employment, can trigger the situation leading to decompensation. Mr Hallin's almost obsessive work ethic kept him occupationally distracted for a time at least, Dr Schmidtman opined.
56. In terms of Mr Hallin’s presentation, Dr Schmidtman noted that the Valium medication Mr Hallin takes has a slightly sedative effect, as does some of his other medication. Dr Schmidtman stated that a feature of post traumatic stress disorder is emotional numbing. In this regard, Dr Schmidtman treats quite a number of veterans who can sit and talk about certain traumatic events but that does not mean that those events are not painful to them. It is simply that the veterans do not express their feelings openly and they have learnt over the years not to show those emotions. Dr Schmidtman noted that it may appear that Mr Hallin is “glib” as Dr Haik described him, but over the time she has been with him, this presentation is a bravado and certainly to her he is not a glib or calculating person (Transcript, 27 May 2003, p73).
57. In relation to Mr Hallin attending Vietnam Veterans' meeting every three weeks, but not in the first five months of 2003 prior to the hearing, Dr Schmidtman stated that this attendance pattern is not unusual and indicates a withdrawal and avoidance, because Mr Hallin does not attend the meetings on a weekly basis. Dr Schmidtman noted that with many Vietnam veterans, they may meet together but they talk about everything apart from Vietnam. They feel however that other veterans understand them hence their collection together.
58. Dr Schmidtman also opined that associated with Mr Hallin’s post traumatic stress disorder in a secondary role, is major depression. In this regard, Mr Hallin's mood can fluctuate over time and he would present with episodes of major depression on a baseline of the ongoing post traumatic stress disorder. The major depression is an episodic rather than a chronic condition, Dr Schmidtman explained.
59. In conclusion, Dr Schmidtman stated she was firm in her opinion. She was prepared to entertain alternate diagnoses of Mr Hallin’s psychiatric conditions when put to her, but her opinion remained unchanged that Mr Hallin suffers from post traumatic stress disorder. Even if one were to take into account underlying personality factors, that did not make it impossible for Mr Hallin to have post traumatic stress disorder. Dr Schmidtman had not seen any evidence of personality disorder of the anti-social type in Mr Hallin’s interactions whilst he was under her care with the opportunity for lengthy observations.
60. Dr Schmidtman assessed Mr Hallin's impairment from post traumatic stress disorder with secondary major depression and alcohol abuse at 45 points assessed from Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”).
dr haik
61. Dr Haik noted that he had worked for the Department of Veterans' Affairs last in 1984 and while he agreed that Dr Taylor and Dr Schmidtman may have had more experience treating veterans with post traumatic stress disorder, he did not believe that they knew better than he what a person with post traumatic stress disorder is suffering. Dr Haik stated he does not treat patients with post traumatic stress disorder but undertakes medico-legal assessments in relation to such conditions. In the past 12 months, Dr Haik had examined two people in relation to post traumatic stress disorder. Dr Haik had been undertaking assessments under the Guide examining approximately one veteran per week for the past 12 months (Transcript, 27 May 2003, p65).
62. Dr Haik stated that there is evidence that Mr Hallin suffered features of a conduct disorder during his adolescence, demonstrated by a series of disciplinary indiscretions by refusing conformity with authority later during his Army service between 1966 and 1967. This led to Mr Hallin's discharge from the Army after two and a half years of what was to be a six-year term. Dr Haik noted Mr Hallin was jailed in the early 1970s for car theft and subsequently, his work history had been erratic. It was also noted by Dr Haik that Mr Hallin has been physically violent and reportedly used excessive alcohol and illicit substances. Thus, Dr Haik noted a gradation of bad behaviour which began in Mr Hallin's teens with him running away from home and joining a circus, progressing to the worst stage of his car stealing. In the Army, Mr Hallin behaved badly, disobeying commands, threatening a Corporal, and not getting out of bed when required. Dr Haik opined that the older Mr Hallin became, the more anti-social his behaviour. It is not clear to Dr Haik when the personality disorder had its onset.
63. Dr Haik noted that during Mr Hallin's four months in Vietnam, he was posted to a non-combatant role but he performed some infantry duties. On Dr Haik's initial consideration of the events described by Mr Hallin occurring in Vietnam and the application of the relevant Statement of Principles, Dr Haik did not consider that Mr Hallin met the definition of a “stressor” for post traumatic stress disorder. In terms of those stressors, Dr Haik noted Mr Hallin reported being shot at and of him shooting at the enemy. Dr Haik was concerned that Mr Hallin’s history could be more colourful than real. However, during the course of concurrent evidence, Dr Haik acknowledged the unchallenged statement of Mr L Davidson (Exhibit A5) which noted that Mr Davidson was with Mr Hallin during a nightly perimeter watch in a gun pit, when the men were fired upon and Mr Hallin and Mr Davidson and others returned fire over a period of approximately five minutes. Dr Haik reconsidered the evidence and concluded that Mr Hallin's experiences when being shot at met the DSM-IV definition of a stressor. Dr Haik still did not consider that Mr Hallin suffered from post traumatic stress disorder however because he did not meet diagnostic Criterion F, which requires significant distress in social, occupational or interpersonal functioning. Dr Haik believes that there is no clear evidence that as a result of the stressor, there was any interference in Mr Hallin's life or that he was caused to change direction (Transcript, 27 May 2003, p34). Mr Hallin's marriage break up and his excessive drinking could be explained, Dr Haik opined, by Mr Hallin's personality disorder.
64. Under cross-examination, Dr Haik stated that in terms of one of the diagnostic criteria for personality disorder, Mr Hallin met Criterion C requiring an enduring pattern leading to clinically significant distress or impairment in social or occupational or other important areas of functioning, yet on Dr Haik’s analysis, Mr Hallin did not meet Criteria F for post traumatic stress disorder, which was almost identically worded. Dr Haik stated that he was not prepared to change his diagnosis because a person with post traumatic stress disorder could not, in his view, function so well at Australia Post and have received so many commendations. Dr Haik opined that Mr Hallin could still have a personality disorder during his nine years of successful employment at Australia Post because Criterion C did not have to include as an absolute, occupational distress. Dr Haik's other concern is that Mr Hallin had not mentioned any stressful incidents in Vietnam to other people and instead, waited 30 years to mention them. This suggested to Dr Haik a sense of speciousness from Mr Hallin, particularly given his personality traits indicative of a personality disorder. Dr Haik was sceptical of the evidence provided by Mr Hallin in terms of his ability to embellish it over time and be selective in its presentation.
65. Dr Haik discussed the difficulty Mr Hallin was having with authority, prior to the Army which continued after he left the Army. These difficulties could have been the beginning of an anti-social personality disorder, Dr Haik opined. Dr Haik noted that one of the chief characteristics of personality disorder is that people are maladaptive and inflexible. They do not change as a result of experience and this was the situation, in Dr Haik's opinion, with Mr Hallin. Mr Hallin continued to be confronted with problems with authority for years. He had problems initially with his employment, with his first marriage and he was potentially violent to his first wife. But then Mr Hallin functioned relatively effectively in Australia Post. It was implausible to Dr Haik that Mr Hallin had post traumatic stress disorder 30 years after the fact. The people that Dr Haik has seen over the years suffering from post traumatic stress disorder are seriously affected by the condition and are in pain for years after the stresses have passed. In Dr Haik's view, Mr Hallin showed no pain. He related his history in an easy going, friendly, affable style and was glib. Dr Haik did not pick up any feeling that Mr Hallin continued to hurt as a result of any post traumatic stress disorder. The way he presented related to his personality disorder and it may have been that his drug use also impacted upon Mr Hallin's symptomatology.
66. Dr Haik did not consider that Mr Hallin was made vulnerable by his anti-social personality traits stating that he "…is a man who, again, comes across as fairly tough, fairly teflon-coated. Things haven’t got to him much…". It was in this context that Dr Haik had trouble believing that Mr Hallin, with his tough characteristics, who was able to "thumb his nose at authority - his own parents, then the school, then the army and the corporal-is going to be threatened by challenges in Vietnam."
67. In relation to Mr Hallin suffering from alcohol abuse, Dr Haik did not consider this a correct diagnosis. Mr Hallin’s use of alcohol prior to early adulthood, then mixing with bad associates, stealing and using illicit substances was something that grew as result of his personality structure, Dr Haik opined (Transcript, 27 May 2003, pp29, 30). Furthermore, Dr Haik did not agree with the diagnosis of alcohol abuse because in relation to the DSM-IV diagnostic criteria, there was no evidence that Mr Hallin was placing himself in hazardous situations with for example, cars and machinery. His occupation was not impaired as a result of alcohol. Mr Hallin had no legal problems as a result of alcohol and his social and interpersonal relationships had not been directly effected by alcohol use. Dr Haik noted that the diagnostic criteria are stringent and he further opined that Mr Hallin did not meet the diagnostic criteria for alcohol dependence. There was no evidence of any withdrawal, Mr Hallin had not increased the amount of alcohol used over the years, as it has always been a fairly steady consumption. Dr Haik concluded that there is no doubt that Mr Hallin was drinking to excess of four standard drinks a day and that was going to have an effect on his liver, nervous system or the cerebrum at some stage later in his life. Alcohol consumption and drug use had increased over the years. Dr Haik opined that as the opportunity arose, Mr Hallin used alcohol and other substances and found some comfort in it.
68. Dr Haik concluded that it was possible but not probable that Mr Hallin, as a man with a personality disorder present either before or following service, experienced stressors in Vietnam which could have brought about the onset of post traumatic stress disorder in a vulnerable person. However, given Mr Haik’s history, it is Dr Haik's view that Mr Hallin’s condition is best explained by his personality traits and personality disorder without having recourse to adding a diagnosis of post traumatic stress disorder. Personality disorder is difficult to treat and medication is not the way to treat such patients. One needs to undertake a great deal of counselling about the patient's inflexible and maladaptive ways, Dr Haik stated.
69. Considering the issue of assessment of Mr Hallin’s psychiatric conditions under the Guide, Dr Haik was questioned about Table 4.6, which deals with Social Interaction, concerning Mr Hallin’s evidence to Dr Haik that he had negligible social contact and only one friend, and that this was not reflected in Dr Haik's rating. Dr Haik stated that it was not necessarily Mr Hallin's symptoms which caused him to avoid people. In this regard, Dr Haik opined that Mr Hallin is quite happy staying at home and doing nothing, with his wife undertaking everything for him. People with personality disorders, for example with avoidant personality disorder, do not want to mix with people, Dr Haik stated. Dr Haik later agreed that in relation to a rating under Table 4.6, that because of the negligible social contact, therefore Mr Hallin was entitled to a rating of 8 points. In relation to Table 4.7 for Leisure Activities, Dr Haik agreed that if there was a reduction caused by personality disorder, then Mr Hallin would be entitled to a higher rating than zero, which Dr Haik had initially assessed. Furthermore, in relation to Table 4.8 for Current Therapy, Dr Haik stated that he did not consider that ongoing therapy of any magnitude is going to be significant for Mr Hallin. Medication can be effective, working long term and is safe. Ongoing contact or interaction of the psychiatrist is not necessarily beneficial, Dr Haik also opined, somewhat of a different opinion to evidence earlier provided by Dr Haik which was that counselling with patients with personality disorder is the most effective treatment regime.
70. In relation to employment, Dr Haik noted that Dr Loxley in 1997 had reported that Mr Hallin should retire from work because of a chronic wrist injury. Dr Haik also noted that in 1998, Mr Hallin accepted a voluntary retrenchment and has not worked since, claiming that he feels totally unmotivated, unable to work and has refused to return to work. Dr Haik opined that Mr Hallin has the intellectual ability to be able to work. Dr Haik expected that Mr Hallin has a tendency to not truly apply himself and that he had not truly applied himself for many years prior to Australia Post and having left Australia Post, has continued in the same vein.
71. In conclusion, Dr Haik stated that he believed he had to stand up and express his opinion and perhaps he was placing his “neck on the block" in opining that Mr Hallin has personality characteristics indicating some speciousness.
72. Finally, with respect to Dr Schmidtman’s opinion, Dr Haik noted that if he was working in a hospital in a program treating patients with post traumatic stress disorder and a patient told him that he was shot at, was afraid and had constant thoughts for 30 years about Vietnam with nightmares, then Dr Haik would diagnose post traumatic stress disorder. However, because Dr Haik was not in that situation, he could stand back and objectively assess the circumstances outside the mind set of a post traumatic stress disorder treatment setting. Dr Haik believed that he could look at the circumstances of Mr Hallin in a more dispassionate manner. Dr Haik’s final opinion is that Mr Hallin has predominantly a "non-specific personality disorder". Mr Hallin certainly has anti-social traits but on reflection, Dr Haik did not consider that Mr Hallin had an anti-social personality disorder. Mr Hallin is now in his 50s and in Dr Haik’s final opinion, the sharp edges of anti-social traits and personality disorder have softened but Mr Hallin is disabled in many ways. While others might opine that that scenario is because of the late onset of post traumatic stress disorder, Dr Haik is firmly of the view that it is because of a personality disorder which has been evident for years whereas there is not evidence of ongoing symptoms for post traumatic stress disorder over the years.
evidence of dr pr loxley, general practitioner
73. The Tribunal had two hand written notes from Dr Loxley dated 30 December 1997 (T24, p128) and 7 January 2001 (T24, p129). In his first note, Dr Loxley reported that Mr Hallin has ongoing problems related to stress at work and is finding it difficult due to his chronic wrist problem. Dr Loxley opined that Mr Hallin would be best served by retiring from his current work. In the second report in January 2001, Dr Loxley noted that Mr Hallin presented to his surgery first on 10 July 1989 with post traumatic stress disorder associated with his war service in Vietnam. He had had a recent aggravation complicated by work problems and was unfit to work at that time and was referred for psychiatric assessment.
evidence of dr j taylor, consultant psychiatrist
74. Dr Taylor provided two reports dated 19 July 1999 (T13, p72) and 11 September 2001 (T27, p174). Dr Taylor opined Mr Hallin satisfies the DSM-IV diagnostic criteria for post traumatic stress disorder and that there was a clear relationship between post traumatic stress disorder and Mr Hallin's military service in Vietnam. Furthermore, at the time of first reporting, Dr Taylor concluded that Mr Hallin also satisfied the DSM-1V criteria for major depression. Whilst the diagnosis of poly-drug abuse would be appropriate in years past, Mr Hallin no longer satisfies the diagnostic criteria for this disorder, Dr Taylor opined. It is Dr Taylor's view that Mr Hallin was attempting to treat himself with the poly-drug use but that only perpetuated his problems with post traumatic stress disorder. Major depression was probably secondary to post traumatic stress disorder. Dr Taylor was reviewing Mr Hallin regularly on his visits to Dubbo.
75. In his second report dated 11 September 2001, Dr Taylor noted that he had continued to see Mr Hallin during his visits to Dubbo over at least the last two years.. Dr Taylor had read the report of Dr R Lewin, Consultant Psychiatrist and made a number of comments. The fact that Mr Hallin was in a non-combatant role during the Vietnam war did not preclude him from suffering from post traumatic stress disorder given his experiences there, Dr Taylor reported. Dr Taylor noted that Mr Hallin described regularly waking feeling agitated and anxious and reported comments from his wife that he calls out at night. These are characteristic indications of nightmares. Furthermore, night sweats are another characteristic indication that nightmares are occurring. Nightmares are not always remembered, Dr Taylor noted. The indirect evidence of nocturnal anxiety, night sweats and yelling and restlessness are compelling in Mr Hallin's case. Dr Taylor noted that Mr Hallin having described all of this to Dr Lewin, it was then surprising that Dr Lewin reported that Mr Hallin did not report bad dreams or nightmares to him. Mr Hallin had repeatedly reported to Dr Taylor that he experiences intrusive thoughts which can have a flashback type quality. Dr Taylor noted that in Dr Lewin's opinion these were “ordinary memories” (T27, p175). Regarding the avoidance phenomena required by DSM-IV, Dr Taylor noted that Dr Lewin reported that there had been a degree of "social withdrawal".. Dr Lewin also noted that Mr Hallin found it difficult to make friends and there is a pervasive theme developed in Dr Lewin's report of Mr Hallin's inability to form close relationships with others. Dr Taylor opined that whilst a certain degree of this might well have been present before Mr Hallin's Vietnam experience, it might well be the case that this is an indication of the problems that Mr Hallin has with intimacy.
76. Regarding Mr Hallin's arousal symptoms, Dr Lewin made mention of Mr Hallin's long-standing problems with sleep disturbance. Dr Lewin also made a repeated reference to Mr Hallin's resorting to violence as a method of solving problems. That whole pattern seems to have escalated since his Vietnam experience. In Dr Taylor's opinion, this is an indication of marked irritability in Mr Hallin. Dr Taylor noted that Dr Lewin did not mention that Mr Hallin, when he wakes at the sound of minor noises at night, will go on "patrol" around his house to check the perimeter. Mr Hallin’s startle response is exaggerated and Mr Hallin becomes very upset when people approach him from behind. While Dr Lewin noted that Mr Hallin had not mentioned any of these problems to his general practitioner, Dr Taylor noted that in his experience, it is not uncommon for veterans not to mention these problems to their general practitioners. There are several reasons for this including that many general practitioners are not particularly interested in matters of a psychological nature. It can certainly take a few sessions to develop a rapport with a Vietnam veteran, for them to be able to disclose much about their service to an appropriately trained psychiatrist. Often people go to their general practitioners for their "physical" problems.
77. Dr Taylor noted that Dr Lewin mentioned that Mr Hallin's symptoms were not as bad when he was in full-time work. In Dr Taylor's experience, hard work is one of the more common defences that Vietnam veterans have to their symptoms of post traumatic stress disorder. One of the common problems that Dr Taylor saw in his World War II patients is that when they retire in their seventies, they can commonly present with full-blown symptoms of post traumatic stress disorder. They had managed to distract themselves from their symptoms for decades by using hard work and commitment to, for example in Dr Taylor's experience, their farming responsibilities.
78. The other aspect of defensive behaviour not mentioned in Dr Lewin's report is the use of drugs and alcohol. In Dr Taylor's experience, well over half of the Vietnam veterans who he treats with post traumatic stress disorder, have a comorbid diagnosis of psychoactive substance abuse or dependence. Vietnam veterans, in Dr Taylor's experience, learnt to control their anxiety problems in Vietnam with the use of large doses of alcohol. Mr Hallin readily admits that he also had access to large amounts of marijuana at the same time and he self-medicated with these substances.
79. It is Dr Taylor's opinion that Dr Lewin attempted to develop the argument that Mr Hallin's behaviour since Vietnam and probably before it, is explicable by a diagnosis of anti-social personality disorder. Certainly the history provided to Dr Lewin indicates anti-social traits with significant criminal behaviour and one jail sentence. Dr Taylor opined however that anti-social personality disorder is not a diagnosis which precludes the possibility of a post traumatic stress disorder. It is Dr Taylor's view, based on his experience in treating Vietnam veterans and of his experience with Mr Hallin over the past two years, that he does satisfy the diagnostic criteria for post traumatic stress disorder. In relation to Dr Lewin's description of Mr Hallin as callous and uncaring, in Dr Taylor's experience, Mr Hallin interacts with his wife in a warm manner. This might be one of the few relationships of trust he has been able to develop over the years.
evidence of mr s peate, psychologist
80. The Tribunal had available to it a report from Mr Peate dated 2 July 1999 (T13, p71). Mr Peate worked with the Vietnam Veterans’ Counselling Service and diagnosed Mr Hallin with a chronic depressive illness, explosive rages and was clarifying whether or not there was a further diagnosis of post traumatic stress disorder. Mr Peate noted that due to Mr Hallin's volatile emotions, it was not in his or the public's best interest for him to travel for psychological/psychiatric intervention on the same day. Thoughtless actions by other drivers can cause Mr Hallin to experience road rage symptoms.
evidence of dr rd lewin, adult, general and forensic psychiatrist
81. Dr Lewin prepared a report dated 28 June 2001 (T26, p150). Dr Lewin examined Mr Hallin on two occasions on 22 and 28 June 2001. Dr Lewin noted that Mr Hallin complained of irritability, sleep disturbance and a marked concern for his personal security. Mr Hallin reported sleep disturbance characterised by initial insomnia and ruminations. There was a pattern of broken sleep associated with bad dreams. Mr Hallin awakens to a slight noise, feeling agitated and his wife has commented that he calls out at night. Mr Hallin described worrying about money, day-to-day matters such as shopping or unusual events such as attending a doctor's appointment. There has been an increase in the frequency of such symptoms in the last few years. In quiet moments when Mr Hallin is not distracted, he described finding himself thinking about his Vietnam experiences. Dr Lewin noted that Mr Hallin attended a Veterans' Centre at Dubbo approximately once per month and he feels comfortable in the company of other veterans. Generally, he does not participate in Anzac Day commemorations.
82. In relation to service in Vietnam, Dr Lewin noted that Mr Hallin served in a number of high-risk areas but was "not present when actual heavy attack occurred". Dr Lewin reported that Mr Hallin knew that the enemy was present and felt fearful. Dr Lewin opined that Mr Hallin did not report clinical features of association or re-experiencing phenomena. Mr Hallin described intermittent feelings of depression and there was a history of social withdrawal.
83. Dr Lewin noted a long history of abuse of alcohol, marijuana and "speed". Many of his symptoms in fact could be, in Dr Lewin's opinion, directly attributed to the use of one or other of those drugs. Symptoms of anxiety and suspiciousness are common complications of the use of marijuana, amphetamine and other stimulant substances, Dr Lewin reported. Dr Lewin also noted a pattern of wagging school and of Mr Hallin’s disdain for his father's attempts to curb his misbehaviour. He described running away from home for several days at the age of 15 and Dr Lewin reported that Mr Hallin was involved in car theft at the same age, a claim Mr Hallin vigorously denied. Dr Lewin noted that he observed a pattern of "callous disregard for the rights and feelings of others". It appeared to Dr Lewin that there has been a pattern of conduct disturbance in Mr Hallin's teenage years, followed by a pattern of personality vulnerability throughout his adult life.
84. While Mr Hallin described some degree of distress related to several episodes during his military service, Dr Lewin opined that this was not overwhelming anxiety or terror. Dr Lewin did not diagnose post traumatic stress disorder because he did not consider that Mr Hallin fulfilled the standard diagnostic criteria. In this regard, Dr Lewin opined that Mr Hallin's current symptoms are of more recent origin and more readily and reasonably explained by other factors. In Dr Lewin's opinion, Mr Hallin's pattern of severe drug abuse arises against the background of a personality disturbance.
evidence of professor rp mattick, clinical psychologist
85. Professor Mattick provided a report dated 30 August 2002 (Exhibit R4). Mr Hallin had been referred to Professor Mattick for assessment of his psychological and cognitive functioning, particularly related to the extent of his alcohol and drug use, the presence of alcohol/drug abuse or dependence and the relationship of these to his service in Vietnam.
86. Professor Mattick noted prior to serving in Vietnam, Mr Hallin had a number of behaviour disturbances which were listed in his service records. In Vietnam there was further behavioural disturbance requiring disciplinary action.
87. Professor Mattick noted exposure to stressful events in Vietnam, notably at FSB Andersen; an incident at the Second 34th gun battery; and also an incident at the New Zealand gun battery. Professor Mattick referred to tracer fire, gunfire and of Mr Hallin having to fire his gun himself and often being fearful and scared. There is also the report of a DC3 gunship coming over a ridge and it "lay waste the whole area in front of us".. In relation to alcohol consumption, Mr Hallin claimed to have consumed alcohol prior to going to Vietnam on Army service in Australia and then drank more regularly in Vietnam. He also claimed to use cannabis in Vietnam. The claim further was that on return to Australia, Mr Hallin drank more heavily, consuming Bacardi rum, beer and cannabis. Professor Mattick opined that if one took Mr Hallin's self-report at face value, he appears to meet the DSM-IV criteria for alcohol abuse in his twenties after returning to Australia from Vietnam. Also, if one accepted Mr Hallin's report, he appeared to Professor Mattick to have met the criteria for cannabis abuse with an onset in his twenties. There also appears to have been amphetamine use sometime after Mr Hallin's service in Vietnam, possibly in 1987.
88. If Mr Hallin's evidence about the stressor(s) he experienced in Vietnam is also accepted, then Professor Mattick opined that Mr Hallin did appear to have experienced a severe stressor before the onset of alcohol abuse, this particularly related to exposure to gun fire in Vietnam and also having seen the limb of a North Vietnamese army soldier or Viet Cong soldier being used to play cricket or football. Applying the Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, Instrument Number 76 of 1998, Mr Hallin has met criteria for alcohol abuse with an onset at some time in his twenties. Furthermore, if it is found that Mr Hallin has suffered from a psychiatric disorder at the time of the onset of his alcohol abuse, then he would appear to have met that Factor in the above mentioned Statement of Principles.
89. Professor Mattick noted Mr Hallin's reports of experiencing dreams of events in Vietnam and also night sweats. Professor Mattick's opinion is that drug and alcohol use are related to a pattern of behavioural disturbance which was evidenced before Vietnam and not related to Vietnam in any plausible fashion. While the current situation is that Mr Hallin continues to drink alcohol heavily, he does not currently meet the diagnostic criteria for cannabis or amphetamine abuse under the DSM-IV.
90. Professor Mattick stated that Mr Hallin did not appear distressed when he discussed events of Vietnam with him and Professor Mattick further suspected that Mr Hallin may not meet the criteria for post traumatic stress disorder. It may well be, Professor Mattick concluded, that Mr Hallin does meet the criteria for a reasonable hypothesis if one accepted that he was exposed to stressful events during service and that he had an onset of his alcohol abuse and perhaps cannabis abuse within two years of these events.
91. Professor Mattick noted that Mr Hallin ceased work as his position was abolished because of the downsizing of the administration at Australia Post. Professor Mattick noted that Mr Hallin appeared to have worked at a significantly senior lever for a number of years. Professor Mattick could find no relationship between Mr Hallin's service and his decision to take a redundancy package. Furthermore, Professor Mattick could find no evidence that Mr Hallin is significantly impaired in his ability to continue working and the only problems he could identify are Mr Hallin's difficulty coping with people, feeling on edge and consuming alcohol at lunchtime. Mr Hallin's reported symptoms including alcohol abuse would not prevent him from undertaking remunerative work, Professor Mattick opined and Mr Hallin is fully capable of working greater than 20 hours per week as he was prior to October 1998. There was no cognitive dysfunction affecting Mr Hallin's ability to work, nor any significant memory dysfunction. Mr Hallin does not currently abuse or misuse amphetamine based on his reporting to Professor Mattick.
evidence of dr r mills, consultant physician in occupational medicine
92. Dr Mills provided a report dated 23 January 2003 (Exhibit R4).
93. Dr Mills undertook an assessment under the Guide and reported the following ratings: Sensorineural hearing loss had a rating of 20 points from Chapter 7 of the Guide. In relation to bronchitis, Dr Mills opined there is a nil impairment from Table 1.10 of the Guide as no medication is used and there is no history of lower respiratory tract infections. In relation to gastro-oesophageal reflux disease, applying Table 6.1.6, a rating of 5 points is relevant as Mr Hallin has intermittent symptoms necessitating ongoing maintenance treatment verified by gastroscopy.. In relation to post traumatic stress disorder, Dr Mills stated that he was unable to comment on the diagnosis nor assign impairment ratings as this was beyond his area of expertise. In relation to alcohol abuse, Dr Mills commented that although Mr Hallin provided a history of excessive regular alcohol intake, on examination, Dr Mills was unable to identify any end organ damage. He had provided a history of recent alcohol intake although Dr Mills was unable to verify that and assigned a nil impairment, as he was unable to verify the diagnosis at the time of examination.
94. In relation to work, Dr Mills noted that other than working in the Army, Mr Hallin's duties had involved labouring, driving and working for Australia Post. Dr Mills concluded that not taking into consideration any disabilities, he would consider Mr Hallin physically fit for full duties, including driving, labouring and office duties. His most significant impairment to returning to the workforce for 20 hours or more relates to Mr Hallin's claimed alcohol abuse and thus, his inability to operate machinery or vehicles, his inability to deal with the public and his potential unreliability in the workforce. Dr Mills reiterated however that he was unable to verify the diagnosis of alcohol abuse. Thus the substantial cause for Mr Hallin being off work at this time relates to his reported use of alcohol and also his psychological symptoms. Mr Hallin's sensorineural hearing loss, chronic bronchitis and gastro intestinal symptoms would not in Dr Mills' opinion, prevent Mr Hallin working in positions for which he has experience and training for 20 hours or more per week. There was thus no objective evidence that Mr Hallin's accepted and claimed disabilities prevented him from undertaking remunerative work during the assessment period. Dr Mills noted that Mr Hallin had not sought employment since 1999.
evidence of ms d golding, business manager, employment national
95. The Tribunal had a statement on behalf of Ms Golding, dated 22 August 2002 (Exhibit A10). The statement confirmed that from Employment National's database, there was a record for Mr Hallin dated 12 November 1998, as registering a desire to work full or part time on an ongoing, temporary or contract basis. Due to a change to the operational computer program, Employment National was unable to view a long-term history of the file to determine when the file was closed.
consideration and findings
96. We have reached decision in this matter taking into account the oral and documentary evidence, the submissions, legislation and case law. There are a number of issues to be decided in this matter. Does Mr Hallin have one or a number of psychiatric conditions and if so, what is the diagnosis of any such condition? Any psychiatric condition present must then be considered as to whether or not causation is linked to Mr Hallin’s war service. If a positive outcome results from that determination, then we must undertake an assessment in relation to the General Rate of Disability Pension and if relevant, an assessment of eligibility for pension at the Special Rate.
97. The Applicant submits that the correct diagnoses of Mr Hallin's psychiatric conditions are post traumatic stress disorder with secondary major depression in addition to a separate condition of alcohol abuse, all related to Mr Hallin's service in Vietnam. The Respondent asserts that Mr Hallin has a personality disorder not related to service.
98. In determining the diagnoses of any of Mr Hallin's psychiatric conditions, this must be done to the Tribunal's reasonable satisfaction in line with subsection 120(4) of the Act. The diagnostic criteria for post traumatic stress disorder are contained in DSM-1V and are found in almost identical terms in the relevant Statement of Principles, Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999.
99. For the condition of post traumatic stress disorder, Criteria A(1) and (2) in DSM-IV require that a person be exposed to a traumatic event in which he or she experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror.
100. We are reasonably satisfied that in Vietnam, Mr Hallin was exposed to enemy fire when he was in a gun pit during a nightly perimeter watch. The exposure to such a stressor is supported by the report from Mr Tilbrook (T12) and also the statement by Mr L Davidson (Exhibit A5). Mr Hallin's evidence was that he was very afraid at this event. While we note that there were other traumatic instances, for example, Mr Hallin seeing deceased bodies, the casualties of war and, the inappropriate use of body parts, the sight of which horrified him, in addition to other perimeter patrol incidents, the event he described of being shot at and him having to return fire as confirmed by Mr Tilbrook and Mr Davidson satisfies Criteria A(1) and (2). In relation to Criterion B, we accept Mr Hallin's evidence and that of Dr Schmidtman and Dr Taylor, that Mr Hallin experiences nightmares and satisfies one of the categories, as required, of Criterion B. In relation to Criterion C, Mr Hallin has a markedly diminished interest in participating in social activity, has feelings of detachment and estrangement from others and would avoid thoughts or feelings related to his service in Vietnam thus satisfying Criterion C. In relation to Criterion D, again, given the evidence, we are reasonably satisfied that Mr Hallin has difficulty falling or staying asleep, has outbursts of anger and difficulty concentrating thus satisfying Criterion D. In relation to Criterion E, the disturbance has been present for more than six months and has been present since Vietnam or shortly thereafter. In relation to Criterion F, we are reasonably satisfied that there has been significant distress in the social and occupational aspects of Mr Hallin's life. In this regard we note Mr Hallin’s diminished social activities, his isolating himself on the farm away from people in Coonabarabran and the disturbance of employment prior to the Australia Post period of employment, but also a disturbance of employment at Australia Post in the last 18 months, before he accepted a voluntary retrenchment in September 1998. We take note of Dr Haik's view that he seemed able to accept some disturbance in relation to social or occupational matters in the DSM-IV diagnostic Criterion C for personality disorder, but could not accept Criterion F in relation to post traumatic stress disorder, which is similarly worded to that for personality disorder. We were unable to understand Dr Haik’s seemingly inconsistent opinion in relation to these almost identical diagnostic criteria.
101. The Tribunal is reasonably satisfied on consideration of all the evidence that the correct diagnosis of Mr Hallin's psychiatric condition is post traumatic stress disorder. Given the opinions of Dr Schmidtman and Dr Taylor, we are also reasonably satisfied that Mr Hallin has a secondary major depression not as a separate condition but as part and parcel of post traumatic stress disorder. At this point, it is relevant to note that Mr Hallin probably does have some anti-social personality traits, but this does not preclude a diagnosis of post traumatic stress disorder as opined by Dr Taylor and Dr Schmidtman. The Tribunal believes that considering all of the diagnostic criteria for post traumatic stress disorder and personality disorder, that post traumatic stress disorder better accounts for Mr Hallin's symptomatology.. Thus the Tribunal prefers the opinions of Dr Schmidtman and Dr Taylor, Mr Hallin’s treating psychiatrists. Dr Schmidtman’s and Dr Taylor’s opinions are consistent with the history and the symptomatology, whereas Dr Haik’s opinion was not supported by the evidence. Dr Lewin did not have all the evidence available to the Tribunal and we consider that Dr Schmidtman and Dr Taylor provided more comprehensive opinions, particularly as they are treating doctors.
102. There is another diagnostic issue for the Tribunal to determine and that is whether or not Mr Hallin has a condition of alcohol abuse as submitted by Mr Dawson. Alcohol abuse has been diagnosed by Dr Schmidtman and Dr Taylor and if Mr Hallin's history is accepted, by Professor Mattick.
103. Considering the diagnostic criteria for alcohol abuse contained within DSM-IV, the Tribunal is reasonably satisfied that given Mr Hallin's history, which we accept in relation to alcohol, then alcohol has caused a failure to fulfil major roles at home in Mr Hallin's first marriage and at work, accepting Mr Hallin’s evidence that he was warned at Australia Post for consuming alcohol whilst working. Mr Hallin has continued to use alcohol despite having persistent recurrent social and interpersonal problems caused or exacerbated by the effect of alcohol. Thus, we are reasonably satisfied that in applying the diagnostic criteria contained in DSM-IV, Mr Hallin suffers from alcohol abuse. The Tribunal does not consider that Mr Hallin satisfies the criteria for substance abuse in the form of either cannabis or amphetamine as, based on Professor Mattick's view, and the evidence of Dr Schmidtman and Mr Hallin himself, we are reasonably satisfied that the diagnostic criteria are not made out for substance abuse in relation to those substances.
104. What then is the relationship between Mr Hallin's service and post traumatic stress disorder with major depression and alcohol abuse? To determine this, we turn firstly to the Statement of Principles, Instrument Number 3 of 1999 as amended concerning Post Traumatic Stress Disorder. Factor 5(a) of Instrument Number 3 of 1999, as amended, states:
"(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder ;
…
'Experiencing a severe stressor' means the person experienced, witnessed, or 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' Entitlements 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;
…"
105. Pursuant to subsection 120(3) of the Act, we are not at this stage making any findings of fact but trying to establish whether or not there is a reasonable hypothesis raised. The material indicates a number of incidents during Mr Hallin’s service in Vietnam which may have been stressful to Mr Hallin. Of particular relevance is the situation described of Mr Hallin being in a perimeter gun pit and being fired upon and having to fire back at the enemy. The material indicates that Mr Hallin was extremely fearful for his life. There is material supporting the presence of another soldier with him during this incident. Furthermore, there is a material pointing to this incident from historical reports. It is the Tribunal's view that given the material, it is not fanciful, nor out of the realm of possibility that Mr Hallin experienced a stressful event which caused him intense fear and this occurred before the onset of post traumatic stress disorder which is taken to have occurred on service. Accordingly, pursuant to subsection 120(3) of the Act, we find that a reasonable hypothesis has been raised that Mr Hallin experienced a severe stressor on service in Vietnam.
106. Turning to the application of subsection 120(1) of the Act, there is undisputed evidence from Mr Davidson that he was present with Mr Hallin in the gun pit on watch and that they were fired upon by the enemy. An historical report by Mr Tilbrook confirms that at the relevant time of Mr Hallin's service, even though he was in a non-combatant role, he was expected to undertake watches around the perimeter of the camp, along the wire and in gun pits and that he would actually have experienced being fired upon and have had to fire back. Mr Hallin's evidence is thus corroborated. Furthermore, the Tribunal accepts Mr Hallin's evidence of his description to the Tribunal and to Dr Taylor, Dr Schmidtman, and Dr Lewin that he felt extremely frightened, anxious and fearful for his life. We are not satisfied beyond reasonable doubt that pursuant to subsection 120(1) of the Act, there is no sufficient ground for determining that Mr Hallin suffered a severe stressor while in Vietnam and that he therefore has a war-caused post traumatic stress disorder which has, as confirmed by expert medical opinion, a feature of secondary depression.
107. In relation to whether or not Mr Hallin has a war-caused alcohol abuse condition, which the Tribunal is reasonably satisfied exists as a separate diagnosable condition, we must apply the relevant Statement of Principles, Instrument Number 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. The relevant factor is Factor 5(a) which states:
"(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.
…"
108. The Tribunal has already determined that Mr Hallin has a war-caused post traumatic stress disorder with its onset arising on service in Vietnam or shortly thereafter. This is not fanciful or out of the realms of possibility and in the Tribunal's view constitutes a reasonable hypothesis from the material that alcohol consumption dramatically increased as a direct result of Mr Hallin's suffering from post traumatic stress disorder. The material also indicates an onset of alcohol abuse within Mr Hallin twenties, probably commencing on service and increasing after service when he returned to Australia. The material from Mr Davidson suggests excessive use of alcohol on service which is also pointed to by medical opinion. The Tribunal finds that a reasonable hypothesis has been raised pursuant to subsection 120(3) of the Act. Applying subsection 120(1) of the Act, there is nothing in the material to dispute, to the requisite standard of proof, the existence of post traumatic stress disorder, a psychiatric disorder. Furthermore, Professor Mattick concedes that if Mr Hallin's evidence of stressful events in Vietnam is accepted and if it is also accepted that he has a psychiatric condition such as post traumatic stress disorder, then alcohol abuse is present and has been present from Mr Hallin’s twenties related to service. There is also support from the majority of medical opinion including Dr Schmidtman, Dr Taylor and Dr Pope that Mr Hallin abuses alcohol. Thus, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Hallin has an alcohol abuse condition which was war-caused. It is the Tribunal's finding in summary, that Mr Hallin has the war-caused conditions of post traumatic stress disorder with secondary depression and also alcohol abuse with effect from 11 October 1998.
109. Turning to the assessment of the rate of Disability Pension for Mr Hallin's post traumatic stress disorder and alcohol abuse conditions, there is some difficulty in making an assessment in relation to the original claim. In this regard, the Tribunal will rely on the assessment made by Dr Schmidtman, Mr Hallin's treating psychiatrist as a more realistic assessment relating back to that initial acceptance of the claimed condition. The Tribunal notes that Dr Taylor assessed Mr Hallin's post traumatic stress disorder and alcohol abuse as 64 points from Chapter 4 of the Guide while Dr Schmidtman assessed a rating of 45 points. We considered that Dr Schmidtman's assessment accords with our understanding of all of the evidence as applied to the Guide. Hence, the Tribunal finds that the appropriate ratings are as follows from Chapter 4. From Table 4.1, Subjective Distress, the appropriate rating is 15 points to reflect persistent symptoms causing considerable distress with relief from that distress difficult to achieve even with a high level of support and reassurance. When the Tribunal considered the evidence of the medical experts combined with the evidence from Mr Hallin's mother, sister and Mr Hallin himself, this is a reasonable assessment. In relation to Table 4.2 for Manifest Distress, the appropriate rating is 10 points to indicate obvious distress and preoccupation with symptoms evident to the casual observer and persons unfamiliar with the veteran. Again, the evidence from medical experts and Mr Hallin and his family combined with the Tribunal's own observation of Mr Hallin indicated that 10 points is the appropriate rating. While the Tribunal notes Dr Haik's view about Mr Hallin being glib and specious, the Tribunal does not accept this explanation for Mr Hallin's presentation, preferring the opinions of Dr Taylor and Dr Schmidtman and the Tribunal's own observation of Mr Hallin. In relation to Table 4.3 for Functional Effects the appropriate rating is 1 to indicate minor interference with functioning in some everyday situations. In relation to Table 4.4 for Occupation, the Tribunal considers the appropriate rating is 8 to indicate that Mr Hallin cannot work. This is supported by the opinions of Dr Loxley, Dr Taylor, Dr Schmidtman and Dr Pope. The Tribunal prefers the opinions of those experts as opposed to Dr Haik, who had some inconsistencies in his argument in relation to diagnosis of either post traumatic stress disorder or personality disorder and Dr Lewin who did not have all of available information provided to the Tribunal. In relation to Table 4.5 for Domestic Situation, the Tribunal considers the appropriate rating is 3 to reflect frequent conflict with family members. In relation to Table 4.6 concerning Social Interaction, we consider the appropriate rating is 6 to reflect Mr Hallin's general social withdrawal as indicted by the majority of evidence. In relation to Table 4.7 for Leisure Activities, the appropriate rating is 6 to reflect a substantial reduction in most recreational pursuits. In relation to Table 4.8 for Current Therapy, the appropriate rating is 5 points, which indicates the need for intensive specialist psychiatric treatment on an outpatient basis including medication and/or inpatient hospital care for short periods. This precisely describes Mr Hallin's circumstances in which he is receiving treatment on an outpatient basis from either Dr Schmidtman or Dr Taylor and also that he has had three inpatient admissions to St John of God Hospital. The total rating applying the requirements of Chapter 4 of the Guide is 45 points.
110. Because of various claims made by Mr Hallin at various times, the assessment of the General Rate of pension must be determined over the duration of the assessment period. As at 11 October 1998, the original assessment without post traumatic stress disorder and alcohol abuse was 10 per cent of the General Rate for bilateral sensorineural hearing loss with tinnitus (T2). With the combination of post traumatic stress disorder and alcohol abuse with the rating 45 points and the rating for sensorineural hearing loss and tinnitus of 4 points, the combined impairment rating from Scale 18.1 of the Guide is 47 points, which should be rounded down to 45 points. An impairment rating of 45 points with a lifestyle already assessed by the Commission at 3, provides pension at the General Rate of 80 per cent with effect from 11 October 1998.
111. Following the acceptance of the conditions chronic simple bronchitis, gastro-oesophageal reflux disease and duodenal ulcer, the combined rating of these conditions with post traumatic stress disorder and alcohol abuse provides a combined impairment rating of 53 to reflect the rating of nil points for chronic bronchitis from Chapter 1 of the Guide, 5 points each for duodenal ulcer and gastro-oesophageal reflux disease from Chapter 6 and 4 points for hearing impairment and tinnitus. The combined impairment rating of 53 from Scale 18.1 is rounded to 55, with a lifestyle rating of 3, providing a Disability Pension at 90 per cent of the General Rate with effect from 24 March 1999.
112. The Veterans' Review Board on 5 November 2002 undertook a further assessment of the General Rate of pension applicable to Mr Hallin and concluded that the combined impairment for bronchitis, duodenal ulcer, gastro-oesophageal reflux disease and hearing impairment and tinnitus was 30 points from 2 April 2002. Combining with this the impairment rating of 45 points for Mr Hallin's post traumatic stress disorder and alcohol abuse conditions, the combined impairment rating for this period is 62 points from Scale 18.1. This is rounded down to 60 points. This then converts to a degree of incapacity of 100 per cent given the expected lifestyle of 4 obtained from the shaded area of Scale 23.1, with effect from 2 April 2002.
113. From the foregoing, it can be seen that certainly in relation to the assessment of 80 per cent of the General Rate with effect from 11 October 1998, this takes Mr Hallin into consideration for eligibility for the Special Rate of pension. Under section 19 of the Act, the assessment period of this matter starts on the application day when the claim or application for an increase in pension is made. Unless Mr Hallin meets the criteria for the Special Rate contained within section 24 of the Act during the assessment period, he cannot be entitled to the Special Rate of pension. The assessment period concludes on the day on which the decision-maker, in this case the Tribunal, makes its determination.
114. Mr Hallin has pension of at least 70 per cent of the General Rate and thus meets subsection 24(1)(a) of the Act. In relation to subsection 24(1)(b) of the Act, we are required to determine if Mr Hallin's incapacity from his war-caused conditions alone render him incapable of undertaking remunerative work for greater than eight hours per week. Section 28 of the Act provides some guidance in determining whether or not, in this case, Mr Hallin is incapable of undertaking remunerative work, detailing the only matters that regard can be had to in deciding that question. Thus, the only matters which can be considered are Mr Hallin's occupational, trade and professional skills, his qualifications and experience, what work he could understandably undertake with those skills and the degree his conditions have impacted upon him. Subsection 24(1)(b) of the Act states that it must be the conditions of themselves alone which prevent Mr Hallin working, whereas subsection 24(1)(c) of the Act focuses on whether or not there are other matters which have contributed to his inability to work.
115. Mr Hallin ceased work on 16 September 1998 (T6, p36), when he accepted a voluntary redundancy/retrenchment. He registered for employment assistance with Employment National on 12 November 1998. There is no record of when this registration for employment assistance ceased, however, the Tribunal notes that Dr S Jenkins, Consultant Psychiatrist, reported on 5 February 1999, that Mr Hallin was planning to move to the country to get away from having to face people and that this was entirely consistent with his assessment of Mr Hallin having a post traumatic stress disorder. Dr Jenkins opined that Mr Hallin’s post traumatic stress disorder was significant enough to prevent him from ever being employed again (T10, p54). Thus the registration with Employment National occurred in November 1998 but by February 1999, Mr Hallin was, it would appear and consistent with the severity of his post traumatic stress disorder symptoms, contemplating moving to the country.
116. It is clear to the Tribunal on all of the evidence that at Australia Post, Mr Hallin was conscientious, working obsessively and to all intents and purposes was coping in that environment. We accept Dr Schmidtman's and Dr Taylor's evidence that when work was to be withdrawn, Mr Hallin then decompensated as the distraction or focus afforded him by work was no longer there and his post traumatic stress disorder symptoms came to the fore. Furthermore, the Tribunal notes Mr Hallin's employment records with considerable amounts of sick leave being taken in the last 18 months of his work at Australia Post and also he was during that time being warned about excessive use of alcohol whilst at work.
117. In the Full Federal Court decision in Banovich v Repatriation Commission (1986) 69 ALR 395, it was noted that:
“It follows that a member’s loss of particular employment for a reason unrelated to a war disability would never destroy a member’s subsequent entitlement to claim a Special Rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity--and by that incapacity alone--from continuing in that field of remunerative activity” (at paragraph 23)
Thus, it is clear that a veteran can leave work for a range of reasons but the test for entitlement to Special Rate during the assessment period is based on the evidence including the medical opinion as to what is the situation of the veteran in terms of his ability or inability to work.
118. Mr Hallin had registered for employment unsuccessfully but his evidence which is accepted by the Tribunal and supported by medical evidence, is that he ceased looking for work because he was too ill as result of his post traumatic stress disorder. Mr Hallin has had three admissions to St John of God Hospital for post traumatic stress disorder and alcohol abuse. Dr Schmidtman, Dr Jenkins and Dr Taylor stated that Mr Hallin was unable to work for greater than eight hours per week because of his psychiatric conditions alone. While Dr Haik and Dr Lewin do not support those opinions, neither Dr Haik's nor Dr Lewin’s opinions take account of post traumatic stress disorder which the Tribunal has found exists as a war-caused condition. The Tribunal prefers the view of Dr Schmidtman and Dr Taylor who are Mr Hallin’s treating doctors and Dr Jenkins who was a treating doctor. The opinions provided by other experts while genuinely provided, are less helpful in that they do not have the full evidence available to the Tribunal. We are satisfied in relation to subsection 24(1)(b) of the Act, that it is Mr Hallin's post traumatic stress disorder with secondary major depression and alcohol abuse alone which are responsible for his inability to work as qualified by section 28 of the Act. In so finding, the Tribunal notes Dr Loxley's report of 30 December 1997, which relates to Mr Hallin having a chronic wrist problem, however the Tribunal does not consider that this condition, when considered against all of the evidentiary material, indicates that the cause of Mr Hallin being unable to work related to his wrist problem and thus as a non-accepted condition, would disentitle him to Special Rate. Furthermore, when the Tribunal considers Dr Loxley's report of January 2001, there is no mention of a wrist problem causing an inability to work and the issue in relation to Mr Hallin's ability to work relates to his psychiatric problem of post traumatic stress disorder. Thus, the Tribunal is reasonably satisfied that Mr Hallin is totally and permanently incapacitated from his war-caused conditions of post traumatic stress disorder with associated major depression and also alcohol abuse which of themselves alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
119. In relation to subsection 24(1)(c) of the Act, this focuses on the war-caused condition not only leading to Mr Hallin being unable to work, but because of this, he has been prevented from continuing to undertake remunerative work and is suffering a loss of salary or wages or earnings on his own account that he would not have suffered if he was not prevented from working. If Mr Hallin did not have his conditions of post traumatic stress disorder and alcohol abuse, we are of the view that he would have been able to continue to work. This finding is based on evidence from Mr Hallin’s treating psychiatrist and the medical impairment assessment for Mr Hallin's other medical conditions. Furthermore, the statements from Mr Hallin's mother and sister indicate the severity of Mr Hallin's psychiatric conditions and confirm our view that he is prevented from continuing to undertake remunerative work and that as a result of that he is suffering a loss in his case, of salary or wages.
120. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J held that the task of the Tribunal is to:
"…make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
121. The Tribunal is satisfied that there is no intervening event that would disentitle Mr Hallin to pension at the Special Rate. The wrist problem mentioned by Dr Loxley is not supported as an intervening or other reason in combination for Mr Hallin either ceasing work or preventing him continuing work. As was discussed in Forbes v Repatriation Commission (2000) 101 FCR 50, we are satisfied that there is no other factor having employment consequences playing a part in Mr Hallin's inability to work or to obtain and hold remunerative employment sufficient to displace his case for pension at the Special Rate.
122. We have not had recourse to the ameliorating provisions contained within subsection 24(2) of the Act as we are firmly of the view that Mr Hallin meets all of the legislative requirements for Special Rate contained within subsection 24(1) of the Act.
123. Accordingly, we find that Mr Hallin is entitled to pension at the Special Rate from and including 3 October 1999, the date on which Dr Pope, General Practitioner opined in a Work Ability Report that Mr Hallin was unable to work less than eight hours per week because of a permanent condition of post traumatic stress disorder (T7, p37). This also accords with the emotional and behavioural medical impairment assessment provided by Dr Pope with other material which the Tribunal considers to have been prepared on 3 October 1999 (T10, pp55-58). Dr Taylor in his first report in July 1999 is not as specific in his opinion about inability to work as Dr Pope. Dr Jenkin's report of 5 February 1999 (T10, p54), while noting that he had no doubt that Mr Hallin's condition was "currently significant enough to prevent him from ever being employed again" this has not conveyed the element of permanent impairment required for Special Rate compared to Dr Pope's more comprehensive assessments.
124. For all the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides:
(i) The diagnosis of Mr Hallin's psychiatric condition is varied from personality disorder to post traumatic stress disorder with major depression which is war-caused from 11 October 1998;
(ii) The condition of alcohol abuse is determined to be war-caused with effect from 11 October 1998;
(iii) The assessment of Disability Pension is:
(a) from 11 October 1998, 80 per cent of the General Rate;
(b) from 24 March 1999, 90 per cent of the General Rate; and
(c) from 3 October 1999, pension is to be paid at the Special Rate. Payment of pension at the Special Rate supersedes the General Rate assessment of 100 per cent from 2 April 2002.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr JD Campbell, Member
Signed: .......................................................................................
AssociateDates of Hearing 26, 27 May 2003, 6 August 2003
Date of Decision 27 February 2004
Counsel for the Applicant Mr N DawsonSolicitor for the Applicant Ms A Aitken, RL Whyburn & Associates
Representative for the Respondent Mr S Modder, Departmental Advocate
SCHEDULE 1
Number
Description
Date
A1 Amended Applicant's Statement of Facts and Contentions 11 March 2003 A2
Statement by Mr Richard Hallin
23 January 2003
A3
Statement by Mrs Catherine Hallin
27 November 2002
A4
Statement by Ms S Saunders
24 January 2003
A5
Statement by Mr Lee Davidson
29 January 2003
A6
Statement by Mr Anthony M Flanagan
28 January 2003
A7
Report by Dr L Schmidtman, Consultant Psychiatrist
14 January 2003
A8
Discharge Summary by Dr L Schmidtman, Consultant Psychiatrist
20 June 2002
A9
Discharge Summary by Dr L Schmidtman, Consultant Psychiatrist
23 July 2002
A10
Letter from Ms Donna Golding, Employment National
22 August 2002
A11
Extracts from the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition (“DSM-1V”)
R1
Respondent's Statement of Facts and Contentions
23 May 2003
R2
Report by Professor RP Mattick, Clinical Psychologist
30 August 2002
R3
Report by Dr R Haik, Consultant Psychiatrist
28 November 2002
R4
Report by Dr R Mills, Consultant Physician in Occupational Medicine
23 January 2003
R5
Veterans' Review Board decision in relation to Mr Hallin
5 November 2002
SCHEDULE 2
1. Section 19 of the Act deals with the determination of claims and applications. Subsection 19(9) defines the assessment period and states:
“(9) In this section:
…
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
…”
2. Section 24 of the Act deals with Special Rate of pension and as relevant states:
“24 Special rate of pension(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…”
2. Section 28 of the Act as relevant states:
“28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
3. Section 120 of the Act deals with the status of proof required for the application for various legislative provisions and states, as relevant:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
4. Section 120A of the Act deals with the reasonableness of an hypothesis being assessed by reference to a Statement of Principles.
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