Hartland and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 452

Hartland and Repatriation Commission (Veterans’ entitlements) [2016] AATA 452 (30 June 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/6589
Re	Geoffrey Hartland
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD Member Dr Sullivan
Date	30 June 2016
Place	Brisbane

We affirm the decision under review.

............................[sgd]............................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ ENTITLEMENTS – defence service – major depressive disorder and post-traumatic stress disorder – not satisfied conditions were defence-caused – decision affirmed under review

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 68, 70, 120, 120B
Military Compensation Act 1994 (Cth)

CASES

Youngnickel v Repatriation Commission [2004] FCA 1691

SECONDARY MATERIALS

Statement of Principles Concerning Depressive Disorder, No. 28 of 2008 (as amended)

Statement of Principles Concerning Depressive Disorder, No. 84 of 2015
Statement of Principles Concerning Posttraumatic Stress Disorder, No. 6 of 2008

Statement of Principles Concerning Posttraumatic Stress Disorder, No. 83 of 2014

REASONS FOR DECISION

Deputy President Dr P McDermott RFD
Member Dr Sullivan

30 June 2016

INTRODUCTION

1. Mr Geoffrey Hartland (“the applicant”) served in the Australian Army between 7 January 1970 and 26 August 1974 and later between 27 July 1976 and 8 December 1993. He has also had some reserve service. Section 68 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) provides that “defence service” for the purpose of the Act is continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date. The terminating date is 7 April 1994, that being the date on which the Military Compensation Act 1994 (Cth) commenced. We have to determine whether the applicant’s conditions of major depressive disorder and post-traumatic distress disorder (“PTSD”) are regarded as defence-caused for the purposes of s 70 of the Act.

   EVIDENCE OF THE APPLICANT

   Evidence-in-chief

2. The applicant gave oral evidence at the hearing about incidents that he says he experienced at various times and confirmed that each of the statements he lodged were true and correct to the best of his knowledge.

   March 1972

3. The applicant stated that he was involved in the recovery of the body of a deceased female who had fallen off a cliff in Malaysia. He was involved with wrapping the body in a blanket. The applicant remarked:

   “Well, we went out to do a recovery of a girl falling off a cliff.  She ended up dying.  So then it was more than a recovery.  When we got to the scene there was no visual marks on her, but then a young digger, I had to look at her face.  So I looked at her face, and it did have an impression on me.  But I just got on with the job and we wrapped her up in a blanket and then use a rope and pivot her out to the boat and we took her back to… the rest of her people. And then I just got on with soldiering”.

   April 1973

4. The applicant referred to an incident in Malaysia at a time of long range reconnaissance patrolling during Exercise King Cobra. The applicant stated it was his first week on patrol at the time of the incident and he was fairly new within this patrol and only had blank ammunition. The applicant said that his patrol came across armed Chinese National soldiers in the jungle. The applicant remarked: 

   “We were in a position which was untenable. We felt helpless because I only had blank ammunition. The Nationals, they had the high ground, and they also had us covered. Our weapons were facing out because they were on my right, and I’m a right hander, so my left was facing out to the left. So therefore I felt pretty helpless at the time.”

5. He added:

   “I estimated they were probably about four or five metres away from me.  When I looked up they were instinctively standing, in other words they were actually covering us with their weapon systems. I’ve been taught how to shoot instinctively.  I’m actually instructed on instinctive fire, and it’s all to do with the body alignment.  Their bodies were aligned - well, the one I was looking at, he was aligning on to me, and instinctively he was aiming at me”.

6. The applicant explained how the incident affected him:

   “At the time I broke out in a bit of a cold sweat. A fear factor came in because I was put in a position where I couldn’t defend myself”. 

7. The applicant related how he did not drink or smoke before he joined the army. He remarked:

   “After the incident my attitude changed. It was like I got away with it, more bravado, and I started drinking and smoking”.

8. The applicant was taken to his statement concerning the incident in which he remarked that he was in fear of his life. In giving his evidence he explained:

   “Well, I felt we were in a helpless situation. I had blank ammunition and there was nothing we could do at the time. So, yes, I was in fear of my life”.

9. The applicant stated that the 303 jungle carbine held by the Chinese National soldier was aiming at him instinctively. He also stated that locals would normally use break action shotguns for hunting.

10. The applicant was referred to paragraph 22 of “Staff Instruction (No.2 of 79) being the general instructions for the Australian Rifle Company at Air Base Butterworth” which provided: “Because of the possibility of chance encounters with wild animals or belligerents a company commander may wish to issue a limited amount of ball ammunition to provide a degree of safety”. The applicant confirmed that the particular provision applied in the course of his rotation as did other provisions in the instructions. The applicant confirmed that paragraph 56 which provided “Leave is to be restricted to the area of Peninsular Malaysia, Bangkok or Singapore, unless exceptional circumstances exist” applied. He also confirmed that paragraph 59 applied, which provided “The company is deemed to be on war service pursuant to Defence Act 54 and is subject to the Army Act under Defence Act 55”.

    August 1984

11. The applicant was referred to an incident in August 1984 at Bandiana when the applicant was drinking in the “sergeants’ mess” and had an altercation with another sergeant when the applicant pulled out a knife and the other sergeants restrained him and he “fronted the RSM and the CO the next day”. The applicant commented that at the time of the incident involving the knife he was “pretty violent”.

    1989

12. The applicant was taken to page 3 of his timeline document where he remarked that the 1989 Koh Samui incident had a “profound effect” on him. He remarked:

    “It was the first time I’d really come across bodies that were pretty well mashed up.  They weren’t wearing any protective gear, so there was a lot of blood, there was a lot of gore, a lot of broken bones, and it was all sort of sticking out, all their joints were chewed away.  So it was just the smell of the blood and the actual gore itself, it sort of stayed with me, and it actually stayed with the others.  It had a big effect on me for a long time”.

13. The applicant added:

    “It still comes back today, if I come across blood or bone, I can still see the - it brings me back to the bodies lying down.  And, yes, it doesn’t take much”.

14. The applicant stated that his ability to assist and save lives at Koh Sumai and in Thailand was “very hopeless”. He remarked:

    “I had a backpack. I had a shell dressing. We administered the shell dressing, but that wasn’t good enough. We then used towels to wrap all the wounds up. Both like her knees were gone, all her elbow chewed out. Anyway, we wrapped her up.  We stabilised her and put her in a ute to get her into the hospital”.

15. The applicant stated that he had shell dressings with him because he carried a “med kit” with him as part of his training.

16. The applicant was asked to describe his feelings having regard to the number of deaths at the scene and the extent of the injuries he had described. The applicant remarked:

    “It was a mess. The bodies were strewn around. There was no one there at the scene to help them. It was getting dark. We were trying to locate where the injured were, because it was long grass… we only knew it was an accident scene because we’d come across two motorcycles on the side of the road. And that’s when I ordered the driver to stop and get out, and then we attended to the scene”.

17. The applicant remarked:

    “I was over there flying the flag for the country and it was my duty to do it, because there was no one else there to help them”.

18. He was then a staff sergeant in charge of that particular group of what he thought consisted of two lance corporals and a private soldier and himself. He stated that he ordered the Australian soldiers to go and see what they could find. They found a male and a female who were deceased, and another female who was alive and attended to. Later they found another male who was deceased.

19. The applicant remarked when he was asked why he would be ordering the soldiers to perform these duties if he was on leave:

    “As I seen it, it was our duty to assist in the situation. There was no one else there, so - I was the senior rank so I automatically took charge and started issuing out the orders to get the victims fixed up and evacuated”.

20. When the applicant was asked how he participated in the treatment of the injured lady he remarked:

    “Basically once we realised that there was one of them still alive, we then started fixing her up, and there was me and the other two guys, because she was so badly injured. We were all basically working on a limb each.

21. He also remarked:

    “…once we had her basically stabilised I ordered one of the utes that was going through… to stop… and then got the girl in the back of the ute and made him go to the hospital.  I put two soldiers in the back of the ute to accompany the girl to the hospital and make sure she got to the hospital”.

22. He mentioned that the people involved in the accident were European and that the female had a Swedish passport and had insurance so that she could get back to Sweden.

23. The applicant stated that his leave had to be approved by the OC because he was only allowed to go to certain areas whilst on the deployment. When asked about recall arrangements he stated that he was on war service so his details had to be entered on to a recall register and he was only allowed to go to certain areas and report in once he got to that area. He stated that he had to sign the recall register before he went on leave so that the person on duty would know where to call him to get him back. He was the officer in charge for that particular group of people because he had the senior rank. A condition of granting the leave was that they had to stay within the areas that were nominated and whilst moving to the destination there was to be no consumption of alcohol.  He remarked that before proceeding on leave they would have the “normal parade” to make sure they had passports, malaria pills, and equipment and were driven by drivers who were cleared by the base from Butterworth.

    2007

24. The applicant was asked about the 2007 motor vehicle accident incident that occurred while he was serving in Iraq and to what extent the recurrence of the memories of the “blood and gore from Thailand” came back. The applicant remarked:

    “When the woman died in my eyes, she was spewing blood out of her mouth, and it was pretty horrific. I could smell - it was like the whole thing happening over again.  The actual accident itself, when I went through the accident and in it, it reminded me of another thing. I was thinking about my wife taking the kids to school. So I thought about that. When she was dying I was thinking about the girl in the fields in Thailand that we recovered”.

25. He added that the female in the fields survived and the other three people died.

26. The applicant stated that he had read Dr Milad’s report. The applicant was referred to his consultation with Dr Milad on 11 March 2013 and asked how forthcoming he was with Dr Milad in recounting all of the incidents. The applicant stated:

    “I didn’t want to actually be confronted by a Muslim doctor. So I felt uneasy through the whole situation and I basically only answered what I had to answer, and all I wanted to do was get out of there”.

27. The applicant likened the consultation to an “interrogation”. He estimated that the duration of the consultation was for an hour and a quarter.

28. The applicant stated that he “had problems” after he came home at the completion of his first tour in Malaysia Singapore before he got out of the army. His first tour ended around Christmas 1973. He was discharged in 1974 and re-joined in 1976.

29. The applicant was reminded that he had a number of medical examinations and medical boards since both the 1973 and 1978 incidents, including a medical board on 20 November 1981 and that he ticked “normal” in the boxes titled “Emotional Stability” and “Mental Capacity”. When the applicant was asked why he did not report any of the psychological issues that he said he had following 1973 he responded: “The only thing I knew was soldiering and I didn’t want to get discharged and I wanted to stay in the army. I felt safe in the army”. The applicant stated that if he reported those issues he would probably been discharged.

    Cross-examination

30. The applicant was referred to the statement by Mr Valentine in the Tribunal documents in relation to the incident in April 1973:

    “The contact lasted less than a minute, neither side made any threatening gestures and we went about our task”.

31. The applicant confirmed that Mr Valentine was the patrol commander. The applicant remarked:

    “We were over there and we were neutrals. There was a communist terrorist war going on between the Malaysian side and the communist terrorists or Chinese communist terrorists. We were ordered not to wear Malay uniforms so we wouldn’t get mistaken for Malay soldiers. I believe because we didn’t have Malay uniforms on, and we were neutrals, that the Chinese communist, or Chinese terrorists, didn’t open fire on us. We know no threatening gestures.  My section commander, the subtle movement of his hand, got us to halt and we actually froze and we’re taught fight, flight or freeze.  We froze. So, we didn’t make any threatening gestures on purpose and I believe the section commander made the right decision. They looked at us and then they turned around. There was a verbal conversation and they went back into the jungle”.

32. The applicant was advised that the patrol commander remarked that neither side “made any threatening gestures”.

33. The applicant was asked if he had any issue with that statement. He remarked:

    “To me, when I look up, and had a weapon that’s pointed at me, instinctively if that’s not threatening, I don’t know what is”.

34. The applicant was advised that Dr Jenkins was asked about this incident and he stated that the applicant reported that he was anxious. The applicant agreed that this was the correct record of the way he felt.

35. The applicant was advised that Dr Jenkins gave evidence that the applicant did not raise the 1989 and the 2007 incidents with him. The applicant replied: “I didn’t get a chance to raise them”. The applicant stated that he had been a patient of Dr Jenkins for two years but was unable to indicate the number of appointments that he attended with him.

36. The applicant stated that there was not a specific instruction, standing order, Statement of Principles or an army instruction that dictates that he is as a result of his defence service, to assist in attending to, in the first instance, the 1989 accident that he came across but there were “core ethics”.

    Re-examination

37. The applicant confirmed that at the relevant time Mr Valentine was a lance corporal and that a lance corporal could be appointed as a patrol commander. The applicant stated that Mr Valentine was patrol commander because he was the senior soldier, he had “done his subjects for corporal” and was a Vietnam veteran. He added: “He’d been blown up in Vietnam and he understood the jungle and how to patrol”. He said that Mr Valentine was quite experienced and had served about five or six years. The applicant had served two and a half years with his battalion and was on his first deployment as a “very junior soldier”.

38. The applicant was referred to his comment that the patrol commander had made subtle movements of his hands in order to make the patrol stop and was asked what position he was in with respect to the applicant during this encounter with these people. The applicant replied: “He was in front of me.  I was behind him because I was also the radio operator and he had to communicate to me”. When asked what direction the patrol commander was facing with respect to him, the applicant replied: “He was facing forward and he was in front”. The applicant was asked where the patrol commander was facing with respect to the individual who was looking at him. He replied “He would have been to the side as well, the same as I was.  So, he was on the front to the side slightly”. The applicant was asked whether during this encounter he was covering the individual that was looking at him. He replied “Yes, and it was just the way the patrol is walking through the creek line and the way I stopped and he was looking up”. The applicant stated that as a patrol commander, Mr Valentine would have been concerned about the whole patrol.

39. The applicant was referred to paragraph 1.22 of the Military Personnel Policy Manual  which provided:

    “The rule of law underpins the way Australian society is governed and acts as a shaping influence on workplace behaviour, in particular as a constraint upon unacceptable behaviour. Defence members are not exempt from complying with the rule of law from being accountable for their actions, making rational decisions and protecting human rights, whether it is in support of operations or in a non-operational setting.  They also underpin and help shape relationships and behaviour, together such they use base behaviour which is embedded and reinforced within individual service. Cultural reform programs requires everyone to accept personal responsibility and accountability and to think clearly about the consequences of their actions.”

40. When asked about what extent he believed that that paragraph applies to his decision to assist at the scene in Koh Samui, he replied that it is “one of the sole reasons I’m in the army”.

41. After re-examination the applicant was asked a number of questions by the Tribunal. The applicant was referred to his comment that when he was attending Dr Jenkins he did not get a chance to talk with him about the motor vehicle accident in 1989 nor the motor vehicle accident in 2007. The applicant remarked:

    “Dr Jenkins is very short and sharp. I got a good rapport with him and what I did was give him all the documents that I’ve given to everyone else with my timeline of events. I wanted to discuss more with him.  He seemed to be satisfied with the amount of information I’d given him to treat me and I actually wanted to talk to him about the Koh Samui incident. He was happy with the amount of information I’d given him and basically I said “Can I talk more” and he just went, “No, I’ve got enough”. And then he started saying, you know, “I need to do this, that and the other” and he was writing me out some scripts. I’ve actually wanted to go back in and talk about those instances with him but that’s all I can explain. He only seems to want to take in certain amounts of information and then starts to diagnose”.

42. The applicant remarked that he “was a little bit surprised” and “a little bit upset” that Dr Jenkins did not talk to him about the two motor vehicle accidents as he “wanted to talk about it”. The applicant stated that his appointments with Dr Jenkins are normally 10 to 15 minutes. He stated that he was getting treatment from Dr Jenkins for sleeping.

43. The applicant was asked how long he thought that he had depression for, as opposed to PTSD. The applicant replied that he did not know and that he thought that he had “problems” since he got home from Singapore in December 1973 and he “could never work out what was wrong”.

1. The Tribunal referred to the fact that he decided to leave the army after three years and then returned to the army and stayed for an extended period. The applicant was asked if he could help the Tribunal understand why he stayed in the army for so long in spite of having very difficult experiences. The applicant remarked:

   “I couldn’t relate to civilians and I still can’t. I find it very hard to socialise. Like the only friends that I’ve got are military friends because I can talk to them. I cannot talk - I don’t go out.  I don’t drink. I don’t smoke anymore. I don’t socialise at all.  The only thing I’ve ever wanted to do was to soldier on. I don’t even soldier on anymore. So, yes, the army was my home”.

2. The applicant stated that he got married late in his life and that members of his family had served in the military.

3. The applicant stated that he provided Dr Jenkins with information about the stressors over the 18 months prior to the hearing. The applicant remarked:

   “The first time I went there, I only spoke very briefly with him because I was getting to know him and then I gave him all the information on paper hoping that he would go through it and get me to talk about those instances.  I didn’t have the 2007 incident in Iraq on it because I felt as though that had already been diagnosed and I would have brought that up to him as part of my interview when he was talking to me and I would have just went through form 1970 to 2015”.

   Further re-examination

4. The applicant was referred to the question from the Tribunal about why he did not tell Dr Jenkins about the other incidents and his answer: “I wanted to go back in and talk about those incidents”. He was asked when was the most recent time that he asked to go back and speak about those incidents. He replied “It was only last week.  He was going to see me tomorrow”. The applicant stated that he was no longer scheduled to see him tomorrow.

   MEDICAL EVIDENCE

   Dr Milad

   Evidence-in-chief

5. Dr Mohamed Milad FRANZCP, Consultant Psychiatrist, was called by the respondent.

6. Dr Milad confirmed that had provided a report dated 9 April 2013 in relation to the applicant. Dr Milad referred to his report where he stated that there was a high probability that the applicant has PTSD which was indicated as the number one condition and major depressive disorder was the number two condition. Dr Milad stated that he would probably nominate the depression condition as the number one condition and PTSD as the number two condition.  Dr Milad stated that the applicant can have depression and then PTSD after that or PTSD leading to depression. 

7. Dr Milad said that when he meets a patient where he has to prepare a report. Dr Milad stated that the face to face interview is about 90 minutes. Before the interview he would usually give the patient a questionnaire to complete. The full history includes background information such as a patient’s data, age, marital status, employment, living conditions, and financial situation. Where the patient is a military person he takes an account of the key events in their life, which he referred to as “a history”. He would link the history when a patient has started to have symptoms and see whether there is any direct relationship.

8. He would examine the history that a presenting patient will have and the symptoms and the struggle from a psychological point of view and then try to put that into a set of symptoms that can make a diagnostic criteria and then look at the impact of the symptoms and their life and look for other factors whether medical factors, relationship factors or employment factors.

9. Dr Milad stated that he would look at the trajectory in life from early childhood and attempt to understand the thought process of their previous experience that may have contributed to how they think and how they behave. He remarked that there are many factors that can make them vulnerable to mental health related problems. He would look at any past psychiatric history and any treatment and diagnoses and ensure that there is no other comorbid factors like illicit substance use, medical conditions or personality dimensions that could contribute to issues. He would also examine whether there is a pattern of problems.

10. Dr Milad stated that “the interesting thing” was that applicant was employed and still working and there is some confusion with somebody who is capable of working but having symptoms. Based on this he remarked that there was probably an issue of functionality of impairment. He recognised that with a one off assessment it can be difficult to ascertain with certainty the relationship between his current functionality at home and at work and his symptoms to assess the level of impairment.

11. Dr Milad confirmed that he did take a history of the adult life incidents or stressors which appear on page 3 of the report and that this information was volunteered by the applicant. Dr Milad confirmed that “he was quite intense about talking about it and even though it sounded like he witnessed something rather than himself in that situation, I took it that it was how he saw it at the time”. Dr Milad was asked to comment on a sentence in the report that read: “He described being exposed to certain stressful situations but not being in life threatening situations before”. Dr Milad stated that he did not remember the details of that. Dr Milad was asked whether he would canvass the period of service of the applicant since 1970. He stated that he concentrated on the events that the applicant mentioned.

12. Dr Milad was asked to comment upon his remarks at page four of his report that the applicant “also stated that he had seen dead bodies and sent coffins back to Australia with deceased soldiers” and “He did not think of any of these previous experiences affected him as much as this incident in Iraq”. Dr Milad stated that he had to see whether they fit criteria A of the PTSD questionnaire which refers to dates of events that could be seen as overwhelming. Dr Milad stated that he would not class seeing deceased people or coffins as an overwhelming life threatening experience to be included as a cause or related to PTSD unless people are injured in battles or are at the time in a high arousal situation such as a war situation.

13. Dr Milad was referred to page 5 of his report which contains what the applicant has described as the current intrusive thoughts related to a motor vehicle accident that occurred in 2007. Dr Milad stated that that is part of the element of the diagnostic criteria in DSM IV and more recently in V.  Dr Milad remarked:

    “He thinks about these thoughts, he gets angry and emotional. He (indistinct) dreams about people trying to shoot him and kill him.  Been acting and feeling as through traumatic events were occurring, especially when he’s driving a car where he can have flashbacks of what happened and expects emotional distress when he drives”.

14. Dr Milad was referred to page nine of the report and confirmed that the date of onset of his PTSD was after 2008 and the depressive disorder condition occurred in the last twelve to 24 months. He stated that his opinion was based on the information provided to him by the applicant.

15. Dr Milad was asked whether he was satisfied that the incident was a category 1A stressor. He stated that it was a highly probable diagnosis but would need to take a further history.  He remarked:

    “I think I’ve seen quite a lot of people like that in the same scenario, in that most - most information where a lot of people are witnessing things rather than actually themselves been being in a life threatening situation and it seems to have the same intensity and the same impact on people is conscious and of feeling helpless, not being able to help people who are (indistinct) soldier of a camp. So these things can become an important event in their life that can shape their thinking and shape their emotions”.

    Cross-examination

16. Dr Milad was asked about his conclusion that the focus of the applicant’s symptoms and onset was the motor vehicle accident incident while he was serving in Iraq. Dr Milad agreed that his opinion of the focus of the symptoms and the onset could have changed had a more detailed history been provided then. Dr Milad remarked that this depended on what information was available to him. He indicated that if the information supports what he has received then it will confirm his suspicion and diagnosis, or suggest a diagnosis such as depression before that or another incident or other factors. He also added that it might make his diagnosis of PTSD as part of the depression.

17. Dr Milad was asked about the information that he was provided and his response was that if there was nothing happening to the person before an incident then the focus of the anxiety will be the one incident that he is assessing. He was asked whether it follows that in the case where there were other incidents beforehand then the more recent incident could just be a recurrence of the earlier incidents. Dr Milad remarked:

    “Yes, if there are events from the past, for example, that fit into the diagnosis of PTSD then - then the PTSD diagnosis is established, but what cause or effect, whether it’s a precipitated, aggravated or relapsed may become a different proposition”.

18. Dr Milad was asked if his observations applied to the issue of onset. Dr Milad gave an example of a person who had a motor vehicle accident in the past which may be quite traumatic to him could result in PTSD and a subsequent car accident (even if it does not look like a huge motor vehicle accident) can be a relapse rather than exacerbation and the depression came as secondary to it. Dr Milad agreed that if there was another motor vehicle incident which occurred prior to this Iraq motor vehicle incident and was of similar or greater intensity, it possible the Iraq incident was just a recurrence of the earlier incident. Dr Milad also remarked in respect of the 2007 motor vehicle accident that he had “not considered that as a life threatening situation in Iraq”. Dr Milad also recognised that in a war situation people are “on a higher edge all the time in a war situation” and they are “in a highly aroused state”.

19. Dr Milad was referred to page 10 of his report which contains the observation: “This diagnosis is provisional and need further history to rule out that it is not stress disorder comorbid with depression”. It was put to Dr Milad that he did not obtain a further history. Dr Milad indicated that his report includes all the information pertaining to the history he obtained from the applicant. Dr Milad stated that he would need to have further history to make more than a provisional diagnosis. Dr Milad said that that PTSD is an odd diagnosis in psychiatry as “it states its causes at the beginning” and “there has to be stressor, and the stressor has to be at this level of the adjustment disorder, this stress will be post-traumatic stress disorder. So it’s a diagnosis that demands an event that happened.  Now, the event that happened is people just tell me the event.  I don’t have any evidence of…if it’s true or not”.

20. It was put to Dr Milad that he could not say definitively that onset of the condition is not attributable to an earlier event or events earlier than the 2007 motor vehicle accident in the absence of a more complete history..  Dr Milad sought clarification on whether there was something else that may have happened in the past. Counsel for the applicant remarked: “No, I’m saying that, essentially, if there was more information given to you that it’s possible that you could attribute onset to an earlier event”. Dr Milad said that if there is other information that he would have to review it.  Dr Milad remarked that PTSD as a specific diagnosis demands stressors and that if the PTSD can cause someone to have many depressive episodes in the past, and then they had PTSD and depression, then the depression will take precedence and the PTSD has to be seen as part of the depression. 

21. Dr Milad was did not agree that the onset of PTSD is different from the diagnosis. Dr Milad stated the question of delayed PTSD is “an area where not all psychiatrists agree, but usually there is a relationship between an incident, a cause and effect”. The period between a cause and effect is normally more than a month. Dr Milad stated that for a period of ten years a detailed of history is necessary to establish that relationship, a period within the first six months is viewed as closer.

22. Dr Milad was asked whether he would agree that a clinical relationship is important in the diagnosis of PTSD, that is the relationship between clinician and patient is important in properly diagnosing and properly determining the onset of PTSD. Dr Milad remarked that the history provided by the client is important in making a diagnosis. Dr Milad agreed that it may be common to have clients or patients who do not establish a rapport with their clinicians. Dr Milad said that in his experience people are sometimes more stressed or angry before they even sit down in the chair when attending an appointment. Dr Milad was asked whether he had heard of instances where Middle East veterans, or veterans of the Middle East conflicts, have been uncomfortable or not established a rapport with psychiatrists of a Middle Eastern background. Dr Milad said that he saw one case but that case did not involve a lack of rapport, rather it was where a person was treated with medication and had a dissociative reaction. Dr Milad agreed that the applicant appeared to be uncomfortable and emotional.

23. When asked whether he would agree that the applicant was not as forthcoming with information as he could have been, Dr Milad answered:

    “I I didn’t - I would write it down if I felt that way. If I felt that he wasn’t giving me enough information or guarded or directing the information to where he wanted. I would mention that”.

24. He further remarked:

    “I haven’t read it somewhere here to say that he was reluctant to talk about anything, or doesn’t want me to talk about anything”.  He added that he “totally understood where he comes from because being a Middle Eastern - and I could actually - knew what he’s talking about, that people are more interested in the - not in the life and the death of the lady and saving her but for her shame and body images, so I could understand where he comes from, being a Western guy”.

25. Dr Milad was referred to a comment on page 4 of his report where he remarked: “He did not think any of these previous experiences affected him as much as this incident in Iraq”, and he had qualified that statement by saying he was asking him specifically about criteria A at the time. Dr Milad stated that he was attempting to determine if there have been events in the applicant’s life, not necessarily one event. When it was put to Dr Milad that the applicant did not go into any detail about incidents he replied:

    “No, I haven’t been given any major details of events that happened to him that might be life threatening situations or close to any situations”.

26. Dr Milad was referred to page 3 of his report where he commented that the applicant “described being exposed to certain stressful situations but not being in life threatening situations before”. Dr Milad remarked that the applicant “hasn’t provided me with an event that I can put it down as this gentleman as being in that situation and that place, and that situation in that place there that he perceived as life threatening. But he could have other things and he totally forgot to talk about them. I won’t be surprised”. Dr Milad remarked: “I get the impression he has been to stressful situations before but the only thing he can - seems to be recalling… and repeating it to me because that’s what comes into his mind is this incident in Iraq”. Dr Milad reiterated that he would not be surprised if the applicant was in other stressful situations but forgot to mention it to him. Dr Milad also agreed that it was possible that the applicant deliberately did not raise them with him. He acknowledged that sometimes it would take several sessions to explore a situation. Dr Milad recognised that in a one off interview, even in 90 minutes, “you cannot explore everything”.

27. Dr Milad was asked whether DSM IV or DSM V says that PTSD can lead to depressive disorder, and depressive disorder can lead to PTSD. Dr Milad replied: “No, depressive disorder doesn’t lead to PTSD. What I’m saying you can have PTSD symptoms that resemble PTSD in a major depressive disorder. So somebody will come and have PTSD symptoms and major depressive disorder symptoms together but if you look at it you will find that the depression came first and then the PTSD”.

28. There was no re-examination of Dr Milad.

    Dr Scott Jenkins

    Evidence-in-chief

29. Dr Scott Jenkins FRANZCP, Psychiatrist, was called to give evidence by the applicant. Dr Jenkins stated that he had 20 years’ experience working with veterans who suffer from PTSD and he had attended various conferences and training workshops.

30. Dr Jenkins confirmed that he prepared three reports dated 18 February 2014, 7 July 2014 and 30 March 2015 and that those reports were true and correct to the best of his knowledge. Dr Jenkins confirmed that the applicant has been attending medical appointments with him for two years. On average the applicant would attend an appointment with him every month. His most recent consultation would have been in the last three months.

31. Dr Jenkins confirmed that he recalled the applicant having providing a document titled: “Timeline of stressor events: Geoffrey Ronald Hartland” and he was asked whether he considered that timeline of stressor events in forming his views. Dr Jensen remarked: “This is always a problem when there is written and oral material”. Dr Jenkins said that he was relying mainly on the events that the applicant discussed with him for his substantive reports. Dr Jenkins stated that he has possession of the timeline of stressors and he was aware that the applicant had not discussed with him the motor vehicle accident in 1989. When Dr Jenkins was asked when he became aware that he had not discussed the motor vehicle accident with him, he answered he became aware “having looked at the material for today”. Dr Jenkins stated that he had not since discussed the incident with him.

32. Dr Jenkins was referred to his opinion in his reports that clinical onset occurred in the mid-1970s and was asked what, if any, contribution could he says the motor vehicle accident of 1989 made to his PTSD. Dr Jenkins replied:

    “The evolution of PTSD is a process rather than an event, so there can be numerous events which will contribute.  Having read the details of the motor vehicle accident in 1989, I certainly think that would also have contributed to the development of his PTSD considerably.  It has the basic criteria of, you know, an exposure to a situation which involves major harm to other people, including death".

33. Dr Jenkins was referred to the timeline document of the applicant in the Tribunal documents[1] in which the applicant states in relation to the Koh Samui incident:

    This incident had a profound effect on me -

    [1] Exhibit A, T-Documents, T2.

34. Dr Jenkins was asked to what extent, if at all, that incident attributed  to onset the of PTSD. Dr Jenkins answered:

    “Where I was seeing Mr Hartland for the first time and we were discussing his stressors and had we discussed that and he provided the information that I have on the sheet in front of me, I certainly would have attributed to that incident a significant impact on the development of PTSD. That’s about as much as I can say, I think”.

35. Dr Jenkins was referred to his report of 30 March 2015 where he made the following observations about the recovery of a deceased female: he remarked:

    “He has a clear memory of the distress and anxiety that he suffered at the time of the event”.

36. Dr Jenkins was asked what, if any, attribution that event contributed to the onset of PTSD. He remarked that he was distressed when he was relaying the event and he actually spoke to him about that event on more than occasion, so he felt that it did contribute to the development of PTSD.

    Cross-examination

1. Dr Jenkins confirmed that he is the treating doctor for the applicant and he had a two year history of examining him having first examined the applicant in 2013. Dr Jenkins confirmed that the motor vehicle accident at Koh Samui in 1989 has never been discussed. Dr Jenkins confirmed that in the course of the two year history of monthly examinations, that incident was not raised at all in the interviews of the panel. Dr Jenkins remarked: “It seems a substantial event but I wasn’t aware of it until I read it”. He confirmed that he did not have a history of the 1989 motor vehicle accident and had not referenced the incident against the specific DSM criteria B. Dr Jenkins added: “I didn’t have any awareness of the motor vehicle accident when I was seeing him”.

2. Dr Jenkins was questioned about his agreement that the incident had a profound effect on the applicant. Dr Jenkins replied: “I was asked a hypothetical question about that and I gave a hypothetical answer. But my report was based on what [information] I had. I can’t be any more decisive about it because I wasn’t aware of it”. Dr Jenkins was questioned that he that he did not qualify his opinion by saying that it is a hypothetical question and this is a hypothetical answer. Dr Jenkins replied: “Well, how about I qualify it now”.

3. Dr Jenkins was asked about the incident that is mentioned in his report of 30 March 2015 concerning a person swimming at the bottom of a cliff. He was asked if that is a profound stressor. Dr Jenkins stated that his observation of the applicant’s distress when he was discussing it suggested that it was.

4. Dr Jenkins was also referred to the incident that occurred on exercise when the soldiers crossed a creek and saw four men alone where he recorded that the applicant  expressed feelings of being hyper vigilant and anxious. Dr Jenkins responded that “hyper vigilant” was his terminology but “anxious” was the word of the applicant.  Dr Jenkins added: “And no, that’s as much as I have on that one, other than the increase in alcohol consumption”. 

5. Dr Jenkins referred to his report in which he stated that the likely onset of PTSD was the mid-1970s. Dr Jenkins remarked:

   “Yes. Basically because I haven’t seen Mr Hartland before 2013, all I can say was that given his relating of those events and the amount of distress that he stated that he had because of those events and the increase in his alcohol consumption, that was my best assessment of when the condition commenced, but I don’t know when it was initially diagnosed”.

6. When was put to Dr Jenkins that he had not addressed any of the supplementary criteria, B, C, D, he replied:

   “There are several aspects of DSM that indicate whether someone should have a diagnosis of post-traumatic stress disorder. There needs to be a trauma, in addition to the trauma the consequence of that trauma needs to include several things. One is a variety of anxiety symptoms which can include things like irritability, hyper vigilance, exaggerated startle reflux, that sort of thing.  Certainly those are present in this gentleman’s state. It also requires some evidence of avoidance.  Now, avoidance can either be avoidance of triggers, things that are likely to bring it up, but in this gentleman’s case his avoidance is largely the difficulty and hesitance that he has with talking to anyone about these events, he did find it very difficult talking about them and often had to pause while he was relating them because it produced more symptoms. The third one that is highly disputed among people who do diagnosis is the numbness aspect, but the numbness aspect is usually reflected in difficulty in interpersonal relationships and marriages and that sort of thing, and certainly the things that he related to me as we were talking indicated that he did have difficulties with that as well.  So really the only - in my view of the way that DSM works, those aspects of his symptoms certainly meet the diagnosis and I would be surprised if another psychiatrist would find any other diagnosis than that on the same kind of history”.

7. Dr Jenkins confirmed that he first examined the applicant in 2013. Dr Jenkins was asked of the symptoms that he just described, are they are his currently presents or are these earlier histories as he presented in the mid-1970s. Dr Jenkins remarked that the diagnosis can only be based on what he saw in terms of the applicant’s mental state. Dr Jenkins added: “Beyond that, everything is contingent on the history that he gives me, and that is all that anybody has to work with. Which is, you know, a question like, “What did you feel at the time?”...[or]…  How long have you felt this way?”  It would be his reply”. It was put to Dr Jenkins that he had spoken about symptoms of irritability, startled reflexes, avoidance and numbness, and was asked whether they were matters that were evident in the mid-1970s. Dr Jenkins replied: “He reported that they were, that’s all I can say”.

8. Dr Jenkins was asked if he had taken a history of the more recent event, the motor vehicle accident in 2007. Dr Jenkins replied:

   “That was not discussed. I do have the paperwork in front of me now where he has done the timeline and discussed deployment in 2007 but that was not something we had discussed”.

9. It was put to Dr Jenkins that there is a history of the applicant not disclosing his 1989 incident that he now relied upon and not discussing his 2007 incident which has led to him attending for psychological assessment. Dr Jenkins remarked that it was typical that patients who are veterans provide him with only a limited amount of information.

10. Dr Jenkins was asked about his view that the applicant reported that he could not develop any kind of rapport with Dr Milad. Dr Jenkins replied “Yes. That was his reflection on it, yes.  He didn’t like Dr Milad very much.… So basically what he said was that he felt intimidated by Dr Milad and wasn’t able to tell him much because he didn’t feel comfortable or trust him. That was about it”.

11. Dr Jenkins was referred to page 2 of his report of 30 March 2015 where he commented:

    “Subsequent to the creek crossing event Mr Hartland commenced drinking excessive amounts of alcohol –”

12. Dr Jenkins was asked if he was aware of the effect of excessive amounts of alcohol on personality. He replied that excessive amounts of alcohol can disturb a person’s behaviour and can have multiple long-term physical effects which include affecting the person’s behaviour. Dr Jenkins remarked that the applicant did not have any “stigmata” that he would look for when assessing alcohol damage such as small vessel disturbances or abdominal fluid or change in his fingernails. The applicant did not have any of those external signs but reports of chronic excessive alcohol use.

13. Dr Jenkins agreed that it was possible that excessive alcohol abuse could disturb a person’s behaviour. When Dr Jenkins asked whether he explored that particular aspect with him he remarked that he had talked to the applicant about alcohol consumption but his main concern was his mental state.

14. Dr Jenkins was asked whether he took into account the excessive amounts of alcohol when he made his assessment in opining that there was a clinical onset in the mid-1970s. He replied “Yes. It’s extremely common. I have rarely found veterans who have become anxious and that this persists who don’t end up having difficulties with excessive alcohol consumption. It’s a form of self-medication really”.

15. Dr Jenkins was directed to the depressive disorder statement of principles, in particular factor G of the DSM-IV criteria, which says:

    “The symptoms are not due to the direct physiological effects of the substance –”

16. Dr Jenkins remarked that the applicant “has features of depression that don’t meet the cut off for criteria for separate diagnosis. It is probably a part of his post-traumatic stress disorder”. Dr Jenkins emphasised that the depression is not a “stand-alone diagnosis”.

17. It was put to Dr Jenkins that as far as the facts are known to him the applicant had an incident in a creek crossing and he had PTSD in the mid-1970s. Dr Jenkins replied:

    “Given the history that he gave me that was my best guess, but all I can say is he certainly had features of PTSD when I saw him two years ago.  Prior to that all I have is his report”.

18. Dr Jenkins was asked about his later observation of the applicant:

    “He was probably further exacerbated by later stressors”.

19. Dr Jenkins remarked:

    “That was a verbal response to the hypothetical.  Anything can happen to make it worse along the way but again, that is - I only had the reports that I presented, the material that I discussed in the reports.  I didn’t have any of the further material”.

20. He added:

    “I would use the word “probably.”  It is a point for discussion but I didn’t believe that I could make a firm comment about it”.

21. Dr Jenkins reiterated that he had not explored the 1989 or the 2007 incidents with the applicant.

22. There was no re-examination of Dr Jenkins.

23. The Tribunal asked Dr Jenkins a number of questions.

24. Dr Jenkins was asked why the applicant was referred to his practice. Dr Jenkins read out the initial referral:

    “Thank you for seeing Geoffrey Hartland, age 60, for ongoing management of PTSD and depression.  Has been a veteran for years and was assessed in April and diagnosed… DVA has asked Geoff to follow up with the local psychiatrist”.

25. When Dr Jenkins was asked who made the original diagnosis he replied “I can only guess. I know he saw Dr Milad before he saw me but I have no idea other than that”.

26. Dr Jenkins was asked about when he took the past psychiatric history and whether he elicited that he had had to see a psychiatrist or general practitioners through his life after the mid-1970s. Dr Jenkins replied: “I was only aware that other than the attendance with Dr Milad, I was only aware of which local medical officers”.

27. Dr Jenkins was asked whether he was surprised that the applicant had not needed any care from the 1970s on. Dr Jenkins replied:

    “No. Definitely not. It’s always a surprise when people do get any care.  Essentially post-traumatic stress disorder really wasn’t widely valued until the late 1990s and even then it was probably after 1999 when you would begin to see that diagnosis regularly.  The other issue is there is some suggestion at the moment, in the literature, that it’s not uncommon for people to present late for care having managed by developing their own coping mechanisms to survive, but finding by the time they’re in their 50s or late 50s, early 60s, that they’re no longer able to and their symptoms overwhelm them. So that’s about what I’m used to”.

28. Dr Jenkins was unable to identify why the applicant may have been able to manage his PTSD that he thought developed in the mid-1970s. Dr Jenkins remarked: “Specifically I wouldn’t be able to guess on that one, no”.

29. Dr Jenkins was asked if there any other aspects to his life after his deployment in South East Asia that he felt would be evident of PTSD. Dr Jenkins remarked:

    “I understood your question so hopefully - other than - I mean the answer to your question is that he had ongoing symptoms of irritability and violent nightmares with thrashing and all that sort of thing.  But in terms of specific events I probably don’t have any accurate record of those”.

30. Dr Jenkins was asked if he had the impression that his employment history was stable even though it is within the military. Dr Jenkins replied:

    “Well, from his side it was not a happy experience so most of the discussions he and I had about his military experiences were unhappy ones.  And I do believe - that is about all I can say.  You know, I don’t have enough of his military record, in detail, to be able to comment”.

31. The Tribunal asked Dr Jenkins about his impression of the applicant’s personal and social history after the mid-1970s. Dr Jenkins replied: “My impression was that he became a bit of a loner and had difficulties with his interpersonal relationships”.

    LEGISLATION

32. We have to determine whether the applicant’s conditions of major depressive disorder and PTSD are regarded as defence-caused under the Act. Section 70(1) of the Act provides that the Commonwealth is liable to pay a pension by way of compensation to a member of the Defence Force where the member is incapacitated from a defence-caused injury or a defence-caused disease. A condition is “defence-caused” if the condition arose out of, or was attributable to, the member’s defence service.

33. Section 120(4) of the Act provides that the respondent is required to decide the application to its reasonable satisfaction. Subsection 120B(3) of the Act provides that in deciding the application, the respondent is to be reasonably satisfied that the injury or disease was defence-caused only if the material before it raises a connection between the injury or disease and some particular service rendered by the person, and there is an in force a Statement of Principles (“SoP”) determined under the Act that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.

34. In applying s 120B(3) of the Act this Tribunal is required to consider the claim by reference to the SoP in force at the date of its decision or a SoP to which the applicant can be regarded as having an accrued right.

35. The SoPs for Depressive Disorder are Instrument No. 28 of 2008 (as amended) and Instrument No. 84 of 2015. The SoPs for Post-traumatic Stress Disorder are Instrument No 6 of 2008 or Instrument No 83 of 2014.

    CONSIDERATION

36. At the outset of the hearing the applicant clarified that this case rested on the defence service undertaken by the applicant and that this application did not involve operational service under the Act.

37. In his report of 30 March 2015 Dr Jenkins expressed an opinion that the applicant has PTSD with depression and that the date of clinical onset was in the mid-1970s. At that time there were two stressors: the first in March 1972 when the applicant was involved with the recovery of a body of the deceased female in Malaysia; and the second in April 1972 when the applicant was patrolling during Exercise King Cobra.

38. In evidence before this Tribunal Dr Jenkins related how he was informed by the applicant that he had images of the dead female. At this time the applicant was not undertaking defence service which would have commenced on 7 December 1973. However, the Tribunal is not reasonably satisfied that there was clinical onset at this time of the recovery of the deceased female. The state of the evidence before this Tribunal does not enable such a finding to be made having regard to the observations of Bennett J in Youngnickel v Repatriation Commission [2004] FCA 1691 at [28]. The Tribunal also observes that the applicant had a successful career with promotions after this time.

39. Certainly, at the time of Exercise King Cobra in 1973 the applicant was undertaking defence service under the Act. However, the Tribunal is not reasonably satisfied that the encounter with the Chinese Nationals constituted either a Category 1A stressor or a Category 1B stressor under the SoPs. The applicant was not then experiencing a life-threatening event. During the hearing the applicant took issue with the description of Mr Valentine as being the section commander (which Mr Valentine described himself as) and rather described him as the patrol commander. Nevertheless the evidence of the applicant was that Mr Valentine was seasoned in jungle warfare and was responsible for the members of the patrol. The evidence of Mr Valentine that “neither side made any threatening gestures” is relied upon by the Tribunal to find that the applicant was not then “experiencing a life-threatening event”. The state of the evidence does not enable the Tribunal to find that there was clinical onset of any of the claimed conditions at this time.

40. During the hearing the applicant gave evidence of the Koh Samui incident of 1989. The applicant has at no time discussed these events with his treating psychiatrist who he had been consulting for two years. In these circumstances the Tribunal cannot be reasonably satisfied that these events have significance in having contributed to the condition of the applicant. In evidence Dr Jenkins has quite properly confirmed that his opinion as to the Koh Samui incident having contributed to the condition of the applicant was “hypothetical”.

41. The Tribunal has reviewed the 2007 incident which occurred whilst the applicant was on a journey when he was picking up targetry. The incident occurred on 6 September 2007 and was the subject by a statement by the applicant which he signed on 8 September 2007. A psychological report of 13 February 2008 records that the applicant was experiencing an ongoing adverse reaction to the fatality. A further psychological report of 24 July 2008 indicated that the problems with sleep and mood appeared to have resolved.

42. The event of 2007 could not be regarded as occurring during defence service as it occurred after the “terminating date” in s 68 of the Act.[2]

    [2] See [1] of these reasons.

43. For the sake of completeness the Tribunal has reviewed the other events that have been referred to in statements of the applicant and has concluded that it cannot be reasonably satisfied that these events constitute a Category 1A stressor or a Category 1B stressor under the SoPs. This is also the conclusion of the Tribunal in respect of the incident at Bandiana.

44. The difficulty that is faced by the applicant is that the evidence from Dr Milad upon which we rely is his provisional opinion that there was the clinical onset of both PTSD and major depressive disorder after the terminating date.[3]

    [3] Veterans’ Entitlement Act 1986 (Cth) s 68.

    CONCLUSION

45. We are not reasonably satisfied that the applicant’s conditions of major depressive disorder and PTSD are defence-caused. We affirm the decision under review.

I certify that the preceding 124 (one hundred and twenty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD, Member Dr M Sullivan

..............................[sgd]..........................................

Associate

Dated 30 June 2016

Date(s) of hearing	20 August 2015
Date final submissions received	18 January 2016
Solicitors for the Applicant	Mr Glenn Kolomeitz, Glenn Kolomeitz Lawyers
Solicitors for the Respondent	Mr Bruce Williams, Repatriation Commission