Harvey and Repatriation Commission
[2005] AATA 353
•21 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 353
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/663
VETERANS' APPEALS DIVISION ) Re KEITH M HARVEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date21 April 2005
PlaceBrisbane
Decision The decision under review is set aside and the Tribunal substitutes for it the decision:
(a)that Mr Harvey’s post traumatic stress disorder with associated major depression, alcohol dependence and hypertension are war-caused diseases within the meaning of section 9 of the Veterans’ Entitlement Act 1986 (the Act);
(b)that Mr Harvey is entitled to receive pension for incapacity associated with those conditions with effect from and including 24 October 2002, a date which is set in accordance with the terms of section 177 of the Act; and
(c)that the matter of assessment of the rate of pension payable to Mr Harvey is remitted to the Repatriation Commission.
..........[Sgd]..............
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service and defence service with Australian Army – post traumatic stress disorder with associated major depression – alcohol dependence – hypertension – application of Statements of Principles - reasonable hypotheses of relevant relationship to service raised – conditions war-caused – assessment of rate of pension remitted to respondent
Veterans’ Entitlements Act 1986 s 6C, 7, 9, 14, 70, 120, 120A
Repatriation Commission v Budworth [2001] FCA 1421; (2001) 66 ALD 285
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 12 ALD 798
Repatriation Commission v Deledio (1998) 83 FCR 82
Keeley v Repatriation Commission (2000) 60 ALD 401
White v Repatriation [2004] FCA 633
Woodward v Repatriation Commission (2003) FCAC 160
Repatriation Commission v Stoddart (2003) FCAC 300; (2003) 77 ALD 67
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
21 April 2005 Mr RG Kenny, Member Background
1. Keith Harvey, the applicant, served in the Australian Army from 30 April 1968 until 29 April 1977. His service included a period in South Vietnam. He now contends that he suffers from post traumatic stress disorder with depression, alcohol dependence and hypertension and that these are related to aspects of that service in South Vietnam.
2. On 24 January 2002, Mr Harvey lodged a formal claim for acceptance by the Repatriation Commission (the respondent) of “PTSD/alcohol dependence” and “high blood pressure”. That claim, which was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), resulted in a determination by a delegate of the respondent, on 25 July 2002, that Mr Harvey suffered from post traumatic stress disorder with associated major depression, alcohol dependence and hypertension but that these conditions were not related to any aspect of his Army service. That decision was affirmed by the Veterans’ Review Board on 12 May 2003 and, on 7 July 2003, an application was made on his behalf for the matter to be reviewed by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Harvey was represented by Mr R Clutterbuck of counsel and the respondent was represented by Mr M Smith, Departmental advocate.
4.The following material was taken into evidence:
§exhibit 1: the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1 to T24)
§exhibit 2: a statement, dated 28 October 2003, by the applicant;
§exhibit 3: a statement, dated 28 October 2003, by the applicant’s wife, Suzanne Harvey;
§exhibit 4: a medical report, dated 18 December 2003, by Dr Peter Mulholland, psychiatrist; and
§exhibit 5: a transcript of proceedings conducted in the Veterans’ Review Board on 12 May 2003.
Standard of Proof and Causation
5. The standard of proof applicable to the determination of the nature and extent of Mr Harvey’s service and the appropriate diagnosis of any condition in Mr Harvey is provided for in sub-section 120(4) of the Act – this requires such matters to be determined to the Board’s reasonable satisfaction: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. This imports the civil standard of proof so that such matters must be determined on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
6. Sub-section 9(1) of the Act provides that a condition will be taken to be war-caused if:
§it resulted from an occurrence that happened when Mr Harvey was rendering operational service; or
§it arose out of, or was attributable to, any eligible service rendered by him.
7. The standard of proof applicable to that determination is set out in sub-section 120(1) of the Act which reads:
“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.”
8. The application of that provision is affected by the terms of sub-section 120(3) and section 120A of the Act which require that consideration be given to any relevant Statement of Principle which has been published by the Repatriation Medical Authority (RMA)
Mr Harvey’s Service
9. The nature and extent of Mr Harvey’s service with the Australian Army is not in dispute. I am reasonably satisfied that he rendered a period of operational service and eligible war service, as defined in sections 6C and 7, respectively, of the Act in the period from 15 October 1970 until 14 October 1971 in South Vietnam. I am also satisfied that he rendered a period of defence service, as defined in section 68 of the Act, in the period from 7 December 1972 until his discharge on 29 April 1977. However, there is no contention before the Tribunal that the conditions were associated in any way with Mr Harvey’s defence service. Rather, his claim was based upon events that occurred during his service in South Vietnam and, therefore, the claim is that the conditions are war-caused pursuant to sub-section 9(1) of the Act.
The Conditions to be Considered
10. In response to Mr Harvey’s claim, Mr Smith accepted that alcohol dependence and hypertension were able to be diagnosed but he disputed a diagnosis of post traumatic stress disorder with associated major depression.
11. Mr Harvey’s treating psychiatrist from March 2002 until March 2003 was Dr Graham Altman who provided a report on 19 April 2002. In his evidence, he explained that he been involved with the treatment of hundreds of Vietnam veterans and said that he was familiar with the Statements of Principles for post traumatic stress disorder, depression and alcohol dependence. He confirmed his opinion that Mr Harvey suffered from severe chronic post traumatic stress disorder with an associated major depression and alcohol dependence.
12. The respondent obtained a further psychiatric opinion from Dr Peter Mulholland who provided a report (exhibit 4) and also gave evidence. He saw Mr Harvey on one occasion in December 2003 and, while he concluded that he suffered from alcohol dependence, he was unable to confirm a diagnosis of post traumatic stress disorder. He referred to the difficulties in isolating, for diagnostic purposes, separate psychiatric conditions in the one individual. However, he said he would not argue with any practitioner who did this. Dr Mulholland referred to some features of post traumatic stress disorder in Mr Harvey but said that these were not sufficient to meet the diagnostic criteria. He took a history from Mr Harvey of his drinking patterns in South Vietnam and noted that Mr Harvey said he used alcohol to assist him to get to sleep at that time. Dr Altman described this as representing self-medication by Mr Harvey for psychiatric problems he was suffering whilst in Vietnam. Dr Mulholland, in his evidence, conceded that this could be so. He also conceded that diagnostic aspects of post traumatic stress disorder may be masked by alcohol dependence and that, if Mr Harvey was using alcohol to assist him in going to sleep in South Vietnam, there may have been a psychiatric problem present at that time.
13. In 1998 and 1999, Mr Harvey was experiencing marital difficulties and he saw psychiatrist Dr Desmond Nasser. Dr Nasser provided a report, dated 13 May 2002, in which he diagnosed dysthymic disorder. Dr Nasser made no reference to Mr Harvey’s experiencing of any traumatic events in Vietnam.
14. In 1999, Mr Harvey was treated by psychologist, Raymond Hudd, on a weekly basis for about 6 months. In his evidence, Mr Hudd said that he specialised in patients with trauma-related psychiatric problems. He said that he was of the opinion that Mr Harvey suffered from post traumatic stress disorder. He based that opinion on the Diagnostic and Statistical Manual for Mental Disorder: 4th edition (DSM-IV).
15. On the basis of Dr Altman’s psychiatric opinion, the observations of Mr Hudd and the concessions made by Dr Mulholland, I find that it is more probable than not that Mr Harvey suffers from the conditions as diagnosed by Dr Altman i.e. post traumatic stress disorder with associated major depression and alcohol dependence. I am also satisfied to that standard that he suffers from hypertension.
16. The next issue for determination is whether any of these conditions can be related to Mr Harvey’s service.
Principles of Causation
Deledio Step 1
17. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCA 82 at 92, set out a four-step procedure for determining issues of causation where operational service has been rendered. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. To that end, Mr Clutterbuck advanced three contentions:
first hypothesis: On 25 December 1970, Mr Harvey was based in the task force maintenance area in Nui Dat and, following the shooting of three Australian soldiers, Mr Harvey was confronted by a sergeant who, armed with a pistol, demanded that he move away from the area of the shooting;
second hypothesis: One evening in Nui Dat, there was a power blackout and a “stand-to” was called which necessitated Mr Harvey going with other soldiers to his weapons’ pit when an artillery shell burst above the Nui Dat base in close proximity to him;
third hypothesis: While he was based in Saigon towards the end of his Vietnam service, Mr Harvey was driving a postal vehicle which collided with a Vietnamese boy who was riding a push-bike and, subsequently, he was confronted by an angry crowd of Vietnamese people.
18. Mr Clutterbuck submitted that these, either in combination or individually, constituted a severe stressor which led to the onset of post traumatic stress disorder with associated depression. He also submitted that Mr Harvey’s alcohol dependence developed as a result of the post traumatic stress disorder or, alternatively as a direct result of the three events or a combination of them. Finally, he submitted that Mr Harvey’s hypertension developed as a consequence of his alcohol dependence.
19. I accept that those submissions constitute separate hypotheses of a relationship to operational service for post traumatic stress disorder with associated major depression, alcohol dependence and hypertension.
Deledio Step 2
20. The second step requires identification of the relevant Statements of Principles. These are Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999 for post traumatic stress disorder; Instrument No. 58 of 1998 for depressive disorder; and Instrument No. 76 of 1998 for alcohol dependence. In the decision under review, the respondent relied upon Instrument No. 31 of 2001 for hypertension and, since then, that Instrument has been repealed and replaced by Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004.
21. Where a Statement of Principles, which was in force at the date of the initial claim, has been amended or replaced by a subsequent Statement of Principles, the matter is to be determined in accordance with whichever of the Instruments is more favourable to Mr Harvey: see Keeley v Repatriation Commission (2000) 60 ALD 401 at 415, 422.
Deledio Step 3
22. The third step requires consideration of whether any of the hypotheses raised is a reasonable one. This requirement will be met if an hypothesis fits the template provided by a relevant factor and associated definition in the Statement of Principles. These read:
post traumatic stress disorder:
5 (a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
experiencing a severe stressor means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as 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;”
alcohol abuse/dependence
5 (a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset on alcohol dependence or alcohol abuse.
psychiatric disorder means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV";
experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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;”
depressive disorder
5 (b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder
psychiatric condition means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
severe psychosocial stressor means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
hypertension
Instrument No. 31 of 2001
5 (b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension;
Instrument No. 35 of 2003
5 (b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension;
Instrument No. 3 of 2004
5 (b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months, immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol.
23. If any of the hypotheses for any of the conditions under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Evidence
24. Oral evidence was given in this matter by Mr Harvey, Dr Altman, Dr Mulholland and Mr Hudd.
25. Mr Harvey outlined his experiences in Vietnam in the following way. He was a member of Detachment 1st Communication Zone Postal Unit which was responsible for the postal services to Australian military personnel in Vietnam. He completed the battle efficiency course at the Jungle Warfare Centre at Canungra before going to Vietnam and was qualified as a driver. He also underwent training as a postal clerk and it was in that capacity that he served in Vietnam. Mr Harvey said he spent the first six months at Nui Dat, the next three months in Vung Tau and the final three months of his one year service in Vietnam in Saigon. Mr Harvey described the incidents involving the shooting on Christmas day and the premature explosion of an Australian artillery shell as having occurred whilst he was in Nui Dat and the incident involving the motor vehicle accident with the Vietnamese boy as having occurred whilst he was in Saigon.
26. On the evening of the shooting on Christmas day, Mr Harvey had been at the movies and, at around 7.30pm, he went to the toilet. It was there that he heard three shots coming from the vicinity of the sergeant’s mess which was approximately 70 feet away from him. He ran towards the mess which he described as a large tent with the sides rolled down and surrounded by sandbags. He was able to see bodies lying on the ground inside the tent. His progress towards the mess tent was stopped by a sergeant who pointed his pistol at him and told him to go back to his tent. He said that the barrel of the gun was very close to his face and he was able to see that it was in safe mode because the safety catch was on. Nevertheless, he was extremely fearful of being shot. He turned and felt the pistol in his back and again was frightened of being shot. He was familiar with the type of pistol that the sergeant had and realised that only a slight movement of the thumb was required to turn the safety catch off. He returned to his tent.
27. In cross-examination, he agreed that the incident with the sergeant occurred in just a few minutes. It was put to him that it was most unlikely that he would be shot by an Australian sergeant in those circumstances. However, he said that, as a member of the postal unit, he was not used to such experiences and that, in the confusion of what was happening, all he knew was that the gun was in his face and then in his back and that he was fearful of being shot.
28. Mr Harvey referred to the second incident involving the premature detonation of an artillery shell. He said that each tent had a gun pit which was to be used by soldiers in the event of an attack. On the night in question, there had been a black-out in the camp and a “stand-to” was called. This necessitated him and the other soldiers going to the pit with their weapons. In his evidence, he said that the explosion took place as he was heading towards the gun pit but, in his statement (exhibit 2), he said that the explosion had occurred after he had been in the pit for some time. In his evidence to the Veterans’ Review Board, he said that, after the stand-to was ordered, he went to the tent, grabbed his weapon and then there was a shell burst. He told the Veterans’ Review Board that they “were all in the hole real quick, whether there were snakes there or not.” When the alternative versions of events of whether he was in the pit or not were put to him, Mr Harvey said he was not able to say which of those was correct. He remembered that he was extremely scared when the explosion occurred and that he was not aware of whether or not it was incoming artillery. He said that, at the time, he was literally shaking in his boots with hot and cold shivers and his whole body was shaking.
29. Mr Harvey said that, following these two events, he found it difficult to get to sleep and was consuming increasing levels of alcohol to assist him to do so.
30. In relation to the motor vehicle accident with the Vietnamese boy, Mr Harvey said he was returning to his base from the airport and was driving an American van. He believed it was a Dodge and said that it was left hand drive. He understood that the vehicle was on loan to the Australian Army. He said that he drove it often and that, unlike the Land Rovers which had roll-up canvas on the sides and on the back, the Dodge was closed in with metal and glass. He said it was customary for the driver to be accompanied by a guard when using a Land Rover but that this was not always the case when the American vehicle was used. He said that he was on his own when the accident occurred and that he saw the boy carrying a bamboo pole, at each end of which was a basket. He felt a bump and immediately stopped. He alighted and moved to the rear of the vehicle and saw the boy on the road and then was confronted by several Vietnamese who appeared to be yelling at him in an angry manner.
31. Mr Harvey recalled that an American civilian appeared on the scene and enquired whether he wanted the military police to be contacted. Mr Harvey said he did and they arrived shortly afterwards. They comprised Australian military police, American military police and local Vietnamese police whom he called the “white mice”. Before that, he was in fear of being injured by the crowd and took his rifle from the vehicle and held it in front of him for protection. He said that this occurred about two weeks before he was due to return to Australia. He could recall Australian military policemen taking details and, shortly afterwards, the local police took the boy away in their vehicle. He said that, because he was about to leave the country, he did not report it officially, but could recall telling one other postal worker that he had had an accident.
32. During his evidence, Mr Harvey was referred to a report prepared by John Tilbrook, a military historian with Writeway Research Service. Mr Tilbrook was engaged by the respondent to conduct research into military records to provide a background to the events described by Mr Harvey. In preparing that report, Mr Tilbrook consulted a wide range of military records and spoke with various people who were in Vietnam at the same time as Mr Harvey. The report listed a range of people who were unable to confirm that Mr Harvey served in Nui Dat or in Saigon at the times or in the manner that he claimed. In his evidence, Mr Harvey confirmed that he was there at those times and he referred to statutory declarations that had been provided by Desmond Carmody, Edward O’Keefe and Peter Sampson, soldiers with whom he served in Vietnam, which confirmed that he had been there at the time.
33. Mr Harvey said that, before joining the Army, he was a social drinker in that he would have one or two beers if he went to a social function. After joining the Army, he was consuming a “couple of beers” per day and his consumption was at that level when he first went to Vietnam. He increased his consumption there because there was not much entertainment and beer was very inexpensive. On the day of the shooting at Nui Dat, he had consumed five or six cans of beer and he said this was because it was Christmas. He said his consumption increased after that in part because he found it difficult to get to sleep. Mr Harvey said that he continued to consume alcohol heavily whilst in Vietnam and said that this practice remained with him on returning to Australia.
34. Mr Harvey recalled being advised as a result of an examination conducted in August 1976 that his blood pressure was high with a reading of 160/100 and he said that “slight hypertension” was referred to in a medical report in 1977. He said that he has been on medication for the treatment of hypertension since that time.
35. Mr Harvey was asked why he had not made reference to his experiences in Vietnam to psychiatrist Dr Nasser who saw him in 1998 and 1999. He said he went to see Dr Nasser because he was having problems with his marriage and that it was only these matters which were the subject of questioning by Dr Nasser. He said that, subsequently, in speaking to other Vietnam veterans, he was advised that Dr Altman could assist him. When he spoke to Dr Altman, he was asked questions about his Vietnam service and, therefore, revealed the various incidents that occurred to him. He said he would not open up an area of enquiry with a psychiatrist but responded to the questions that were asked of him.
36. Mr Harvey was referred to the claim form which initiated investigations about his post traumatic stress disorder and alcohol dependence. There, the only circumstance he referred to in Vietnam were “patrolling and guard duties” as to which he wrote: “I was in fear of my life all of the time”. In his evidence, he said that, whilst he was based in Vung Tau, he would undertake patrol duties around the camp at night armed with a machine gun. He said no incidents occurred during these tasks but that he felt apprehensive whilst undertaking those patrols.
37. Dr Altman confirmed the diagnoses in Mr Harvey. He noted that Mr Harvey had not made complaint of circumstances in Vietnam when he was being treated by Dr Nasser. He said this was not surprising because Mr Harvey had consulted Dr Nasser for the specific purpose of resolving his marital difficulties. He said it was not unusual for a veteran not to volunteer experiences unless asked and he said this was what he had done with Mr Harvey. He noted the report of Dr Mulholland and his reference to the lack of indicia for the presence of post traumatic stress disorder. He also noted that Dr Mulholland referred to the applicant as taking alcohol in order to assist him to get to sleep whilst in Vietnam and he said that this could constitute self-medication by him at that time.
38. Mr Hudd confirmed his belief that Mr Harvey was suffering from post traumatic stress disorder and that this was related to his experiences in Vietnam. He said he had extensive involvement with persons who had experienced traumas and he considered that Mr Harvey fell into that category.
39. Dr Mulholland was referred to his report where he expressed the opinion that Mr Harvey did not suffer from post traumatic stress disorder and he confirmed that he based this on an absence of a severe stressor. As noted above, he conceded that the ingestion of alcohol during the period in Vietnam to assist him to sleep may have constituted self-medication by Mr Harvey at that time. He was referred to the incident at Nui Dat when the gun was pointed directly at Mr Harvey’s face and his back and to the explosion of an artillery shell as well as the incident in Saigon involving the motor vehicle accident. In relation to the first two of those, Dr Mulholland was reminded that the applicant was not in the infantry and not in a combatant role in Vietnam and that he was, rather, a postal officer. In that context, Dr Mulholland agreed that those two incidents could have constituted traumatic events for him.
40. Suzanne Harvey, the applicant’s wife, completed a statement on 28 October 2003 (exhibit 3) in which she said that they had married in 1968 and that he was a moderate consumer of alcohol at that time and until he went to Vietnam. She said that he was drinking to excess after he returned to Australia and that this continued at an increasing rate over the years until they separated for a period in 2000. She said that he received psychiatric treatment at that time but that this had not greatly impacted on his alcohol consumption problems.
Submissions
41. Mr Clutterbuck submitted that Mr Harvey’s evidence as to where he served in Vietnam should be accepted. He referred to the confirmation of dates and times provided in the supporting statutory declarations from fellow soldiers. He submitted that the opinion of Dr Altman should be adopted as to the existence of psychiatric conditions and their relationship to service through the three identified incidents and, in particular, through the most significant of these which was the incident on Christmas Day following the shooting of the sergeants. He noted that, in the Writeway Report, Mr Tilbrook referred to Mr Harvey’s absence from the list of witnesses that were called at the court martial following that event. He submitted that his absence from the list did not mean that he was not present at the time. It had never been his case that he had seen the actual shooting but had experienced the aftermath of it and, in that case, it was not surprising that he would not be called as a witness. He submitted that, when assessing the impact upon Mr Harvey of the incidents he described, it was important to keep in mind that he was non-combatant and, therefore, not used to events of those kinds.
42. Mr Clutterbuck submitted that there was abundant evidence before the Tribunal to indicate that the alcohol consumption patterns of Mr Harvey changed significantly during his service and that he increased his level of consumption of beer and continued at that elevated level in the years after his return to Australia. He referred to the statement of his wife as confirmation of this (exhibit 3).
43. Mr Clutterbuck submitted that hypertension was related to Mr Harvey’s alcohol consumption. He referred to service medical records which revealed the presence of hypertension in March 1977. He also referred to a medical report, dated 22 May 2002, from his treating doctor at that time, Dr N Bedi (T13, folios 62-63). There, Dr Bedi referred to reports of a cardiologist who had described the condition as being present for many years since he was in the Army. Dr Bedi described 1975 as being the year of clinical onset of this condition.
44. Mr Clutterbuck submitted that there were some inconsistencies in the Writeway Report and, while it suggested that the Australian Postal Unit did not have any American vehicles at their disposal, he referred to paragraph 34 of the report which described an incident on 15 December 1971 when a US Army loan postal van which was used by the Australian staff and which had been borrowed from Danang, was subjected to a fire bomb attack and was badly damaged by fire.
45. Mr Smith submitted that Mr Harvey was drinking heavily before he went to Vietnam and was well on the road to alcoholism by that time. He said that this was merely encouraged by the ready availability and low price of alcohol in Vietnam.
46. In relation to the incidents of trauma, he said that it was remarkable that these had not been detailed to Dr Nasser. He submitted that, on the basis of the report of Dr Mulholland, there should be no diagnosis of post traumatic stress disorder. He submitted that the reaction of Mr Harvey did not meet the threshold level sufficient to constitute a severe stressor for the purposes of the Statement of Principles. He referred to Mr Harvey’s evidence before the Veterans’ Review Board where he described himself as feeling anger when confronted with a pistol rather than intense fear or horror.
47. In relation to the gun incident, Mr Smith submitted that it was not reasonable for anyone to believe that they could be shot in those circumstances. He conceded that it would cause a person’s adrenalin level to rise but it did not constitute a threat. In relation to the premature detonation of the artillery shell, he submitted that, in those circumstances, anyone would well know that they were not under attack and that, accordingly, the person would not feel fear. In relation to the incident involving the traffic incident, he submitted that this was not a circumstance that constituted a threat or a danger to Mr Harvey or a circumstance that he would feel real fear for, after all, he was armed with a rifle.
Consideration
§ Reasonableness of Hypotheses (step 3:- psychiatric conditions)
48. The meaning of the term “experiencing a severe stressor” is set out above. Both subjective and objective considerations are relevant in applying that definition: see White v Repatriation Commission (2004) FCA 633, Woodward v Repatriation Commission (2003) FCAC 160 and Repatriation Commission v Stoddart (2003) FCAC 300; (2003) 77 ALD 67. There is no requirement that there be an actual threat: see Stoddart at paragraph 30-31 and Woodward at 131-142. In Stoddart, the Full Federal Court said:
“The definition extended to a person experiencing or being confronted with an event involving a threat of death of serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partial subjective connotation.”
49. The material before the Tribunal in relation to the premature detonation of an artillery round and being confronted by Vietnamese civilians after the motor vehicle accident do not point to circumstances sufficient to meet the experiencing of a severe stressor in the Statements of Principles relating to post traumatic stress disorder and alcohol dependence. These cannot be equated with the level of harm inherent in the three examples provided in that definition i.e. a threat of serious injury or death, engaging with the enemy or witnessing casualties or participation or observations of casualty clearance, atrocities or abusive violence. However, the material relating to the confrontation with the armed sergeant does point to the requirements in the definition in the Statement of Principles in that such a series of events was capable of conveying a risk of death or serious injury. Whether it did so is a matter for further determination (in step 4) but, at this stage, the material in relation to that incident raises, in accordance with factor 5(a), an hypothesis of a relationship to service which is reasonable.
50. I am also of the opinion that the material in relation to the Nui Dat incident with the sergeant points to the satisfaction of factor 5(b) in the Statement of Principles for depressive disorder (severe psychological stressor) and alcohol dependence (severe stressor) respectively. However, there is an additional element in the relevant factors for these conditions. For such hypotheses to be reasonable, there must be material which points to the clinical onset of the condition within two years of experiencing the severe stressor. The term “clinical onset” has not been defined by the Repatriation Medical Authority. However, the requirements will be met if a veteran describes symptoms to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicate that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670, Re Sandiford and Repatriation Commission (1998) 27 AAR 210 at 217 and Repatriation Commission v Cornelius [2002] FCA 750.
51. Dr Mulholland was prepared to accept that Mr Harvey’s alcohol dependence dated from his Vietnam experience. He was not able to link it to service in a causal sense but his temporal reference points to a clinical onset within the time frame referred to in the Statement of Principles. This means that the evidence points to the satisfaction of the requirements of factor 5(b) in the Statement of Principles and that the hypothesis advanced for alcohol dependence is reasonable.
52. Dr Mulholland was not able to provide a temporal relationship between depression and service. He noted that psychologist Raymond Hudd had dated depression back to Vietnam but Dr Mulholland observed that the history he obtained based the symptoms as beginning in 1996 or 1997. An alternative factor in the Statement of Principles for depressive disorder is factor 5(c): having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder. It will be seen below that I have determined post traumatic stress disorder and alcohol dependence to be war-caused conditions. It is not disputed that these constitute clinically significant psychiatric conditions and the material before the Tribunal points to these conditions as dating back to Mr Harvey’s service and as pre-dating his depressive disorder. Therefore, I am of the opinion that the material before me raises a reasonable hypothesis of a relevant relationship between Mr Harvey’s depressive disorder and his service in accordance with factor 5(c) of the Statement of Principles..
53. On the basis that the hypotheses of a relationship to service for post traumatic stress disorder, alcohol dependence and depressive disorder are reasonable then, through the application of step 4 of the procedure in Deledio’s case, those conditions will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
Reasonableness of Hypothesis (step 3:- hypertension)
54. The relevant factor in the Statement of Principles for hypertension is factor 5 (b) and it has been amended throughout the period since Mr Harvey made his initial claim. As noted above, the most favourable of these, from his perspective, is to be applied. This is the factor as it appeared before the initial decision maker (Instrument No. 31 of 2001). This requires that he be suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol, contained within alcoholic drinks, at the time of the clinical onset of hypertension.
55. Mr Harvey’s service records in 1976 described him as being “mildly hypertensive” and it was Mr Harvey’s evidence that he has been treated for hypertension since that time. That and the medical report of Dr Bedi point to the condition developing after Mr Harvey had an established alcohol dependence with consumption levels beyond the threshold level of at least 200 grams per week and, provided that condition is war-caused, the hypothesis of a relevant relationship of hypertension to service is reasonable.
56. On the basis that the hypothesis of a relationship to service for hypertension is reasonable then, through the application of step 4 of the procedure in Deledio’s case, this condition will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
Deledio Step 4: Are the conditions war-caused?
57. The events of Christmas Day 1970 in Nui Dat are well documented and were related in the Writeway Report. That report includes observations by various Army personnel to the effect that they were not aware that Mr Harvey was serving at Nui Dat at the time. None of those persons or the author of the Writeway report were called to give evidence. On the other hand, the statutory declarations completed by Desmond Carmody, Edward O’Keefe and Peter Sampson were before the Tribunal. Mr Carmody wrote that he was stationed at Nui Dat from July 1970 until March 1971 and that Mr Harvey was also stationed there at the time. Mr O’Keefe said that he arrived in Vietnam on 22 October 1970 and made postal runs to Nui Dat where he met Mr Harvey. He said that he made several such trips to Nui Dat and stayed with him on these occasions. Mr Sampson also confirmed that Mr Harvey was in Nui Dat for part of the period when he was there from January to June 1971.
58. On the basis of the applicant’s evidence and that supporting documentation from fellow soldiers, I accept that Mr Harvey did serve in Nui Dat and was there on Christmas Day 1970. I accept his evidence that he was in the vicinity of the shooting at the sergeants’ mess and I accept as correct the submission by Mr Clutterbuck that mere presence in the area would not necessarily be sufficient to require him as a witness in subsequent proceedings when he did not see the shooting incident. Mr Harvey’s evidence was that he was confronted by an armed sergeant in a manner which caused him to be in fear of being shot. The standard of proof in applying the final step in the Deledio process is weighted heavily in favour of Mr Harvey. I cannot be satisfied beyond reasonable doubt that the event he detailed in his evidence concerning the confrontation with the armed sergeant did not occur to him in the way he described.
59. I have noted in the submission of Mr Smith that no reference was made by Mr Harvey to Dr Nasser about his problems on service. However, I have also noted Mr Harvey’s evidence in that regard and the comments of Dr Altman. I accept the contention that the focus of Dr Nasser’s enquiries and of Mr Harvey’s intentions at that time were his marital difficulties rather than any more long-standing matters relating to his service years.
60. In considering his reaction to the incident with the sergeant at Nui Dat, I accept the submission of Mr Clutterbuck that the impact on a non-combatant soldier would be greater than that of a soldier regularly in the field and I have noted the concession made by Dr Mulholland that this could constitute a traumatic event to such a person. That was also the evidence of Dr Altman. Mr Harvey’s evidence was that he feared for his life when this occurred and he thought he would be shot. I am not satisfied beyond reasonable doubt that, from the point of view of a reasonable person in Mr Harvey’s position at that time, the incident was not capable of conveying or did not convey the risk of death or serious injury to him. Because I can not be so satisfied, I find that Mr Harvey’s post traumatic stress disorder is a war-caused disease.
61. While there is evidence that Mr Harvey consumed alcohol before going to Vietnam and in Vietnam before he experienced the incident on Christmas Day 1970, I am not satisfied beyond reasonable doubt that he did not increase his alcohol consumption thereafter and continue to drink at that rate in post-war years. I have noted above the reference by Dr Mulholland to the clinical onset of the condition and I am not satisfied beyond reasonable doubt that the requirements in factor 5(b) of the Statement of Principles are not met. Because I can not be so satisfied, I find that Mr Harvey’s alcohol dependence is war-caused.
62. Whilst the evidence does not point to a clinical onset of major depression within the time-frame required by the Statement of Principles, an alternative means of meeting the Statement’s requirement is that the condition became manifest after a clinically significant psychiatric condition is present. Dr Altman’s diagnosis was that this condition was associated with Mr Harvey’s post traumatic stress disorder and I am not satisfied beyond reasonable doubt that the condition did not develop in him in a manner linked to his post traumatic stress disorder. Because I can not be so satisfied, I find that Mr Harvey’s major depressive disorder that he suffers in association with his post traumatic stress disorder is war-caused.
63. The medical evidence of Mr Harvey’s hypertension is that it has been present from the mid to late 1970s and that his alcohol dependence was well established by that time. Accordingly, I am not satisfied beyond reasonable doubt that his hypertension is not related to his alcohol dependence. Because I can not be so satisfied, I find that Mr Harvey’s hypertension is war-caused.
Decision
64. The decision under review is set aside and the Tribunal substitutes for it a decision that Mr Harvey’s post traumatic stress disorder with associated depression, alcohol dependence and hypertension are war-caused diseases within the meaning of section 9 of the Act. Mr Harvey is entitled to receive pension for incapacity associated with those conditions with effect from and including 24 October 2002, a date which is set in accordance with the terms of section 177 of the Act. The matter of assessment of the rate of pension payable to Mr Harvey is remitted to the Repatriation Commission.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
Associate
Date/s of Hearing 24 March 2005
Date of Decision 21 April 2005
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr M Smith, Departmental Advocate
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