John Kelly and Repatriation Commission
[2015] AATA 56
•2 February 2015
[2015] AATA 56
Division VETERANS’ APPEALS DIVISION File Number(s)
2011/3217
Re
John Kelly
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 2 February 2015 Place Sydney The decision under review is affirmed.
....................[sgd]....................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service – claim that emotional problems were war-caused – consideration of Statement of Principles – diagnosis – response to alleged stressors – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 196A, 196B
CASES
Fogarty v Repatriation Commission (2003) 37 AAR 363
Gerzina v Repatriation Commission [2004] FCAFC 96
Lees v Repatriation Commission (2002) 125 FCR 331
Mc Kenna v Repatriation Commission (1999) 86 FCR 144
Re Gibson and Repatriation Commission [2009] AATA 115
Re Jones and Repatriation Commission [2014] AATA 887
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Thomas (2002) 71 ALD 289
Repatriation Commission v Warren (2007) 95 ALD 606Thomas v Repatriation Commission [2003] FCAFC 122
SECONDARY MATERIALS
Statement of Principles concerning alcohol use disorder No. 1 of 2009
Statement of Principles concerning depressive disorder No. 27 of 2008 (as amended)
Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (as amended)
REASONS FOR DECISION
Ms N Isenberg, Senior Member
2 February 2015
BACKGROUND
The applicant, Mr Kelly, served in the Royal Australian Navy between 25 September 1965 and 20 May 1971. His “operational service”, as defined in the Act, was as follows:
·22 April 1966 to 18 May 1966;
·25 May 1966 to 11 June 1966;
·20 December 1967 to 3 January 1968;
·17 January 1968 to 16 February 1968;
·27 March 1968 to 26 April 1968;
·21 May 1968 to 13 June 1968; and
·13 November 1968 to 28 November 1968.
The applicant claimed pension for a disability described as “emotional condition”/”emotional problem” and contends that he suffers Posttraumatic Stress Disorder (PTSD), depressive disorder and alcohol dependence because of aspects of his service in Vietnamese waters aboard HMAS Sydney.
He seeks review of the decision of the Repatriation Commission which was affirmed by the Veterans’ Review Board (“the VRB”) on 25 July 2011 that refused his claim that these conditions are related to service.
ISSUE BEFORE THE TRIBUNAL
The Tribunal must decides:
·Does Mr Kelly suffer from PTSD, depressive disorder and alcohol dependence?
·If so, were those conditions war-caused?
LEGISLATIVE BACKGROUND
Section 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”) provides that a disease is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.
Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those subsections require me to find that the veteran’s condition was war‑caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
The Repatriation Medical Authority (“RMA”) was established under section 196A. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”) (section 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to “related to service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
The current SOPs relevant to this matter are:
·Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014;
·Statement of Principles concerning depressive disorder No. 27 of 2008 (as amended);
·Statement of Principles concerning alcohol use disorder No. 1 of 2009 (as amended) (previously known as alcohol dependence and alcohol abuse).
The advocate for the applicant contended that it was open to the Tribunal to consider any available SoP, in particular No. 19 of 2014 in relation to PTSD, which was revoked by the current SoP. The attraction of that SoP to the applicant’s case was that, one of the factors sought to be relied on (factor 6(ba)), namely living or working in a hostile or life-threatening environment did not have a requirement of being in that environment for a period of at least four weeks before the clinical onset of the condition (which is contained in factor 6(c) of the current SoP).
I was referred to the Tribunal’s recent decision of Re Jones and Repatriation Commission [2014] AATA 887 which canvassed the authorities –Repatriation Commissionv Gorton (2001) 110 FCR 321; Repatriation Commission v Keeley (2000) 98 FCR 108, Repatriation Commission v Thomas (2002) 71 ALD 289 (and approved on appeal in Thomas v Repatriation Commission [2003] FCAFC 122) and Re Gibson and Repatriation Commission [2009] AATA 115. In Jones, where the applicant made a similar contention as in the present matter, the Tribunal considered there was no basis for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission’s decision and revoked before the Tribunal’s review.
I am therefore obliged to consider the veteran’s claim in the context of the current SoP unless the SoP at the date of the Commission’s decision is more favourable: Gorton and Keeley. In relation to PTSD the SoP in force at the date of the Commission’s decision was No. 5 of 2008.
Having regard to the applicant’s submission, the relevant factors in respect of PTSD therefore are, from the current SoP:
6. …
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
(c) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder;
…
where, relevantly,
“a category 1A stressor” means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
…
“a category 1B stressor” means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
“a hostile or life-threatening environment” means a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
(a)experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;
(b)experiencing or being under threat of nuclear, biological or chemical agent attack; or
…
In respect of alcohol use disorder the applicant relied on:
6. …
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder;
…
where
“a clinically significant psychiatric condition” means a specified disorder of mental health, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner;
and “a category 1A stressor” has the same definition as in the SoP for PTSD.
In summary, the applicant’s contentions were that his PTSD was attributable to the living and working conditions aboard HMAS Sydney (factor 6(c)); or that his first trip to Vietnam exposed him to a category 1A stressor – a life-threatening event (factor 6(a)); or that his subsequent trips to Vietnam exposed him to a category 1B stressor (factor 6(b)). If the applicant fails to establish that PTSD is war-caused or that he experienced a category 1A or 1B stressor then he cannot succeed in respect of alcohol use disorder. Similarly, if the applicant fails to establish he was exposed to a category 1A or 1B stressor then his claim for depressive disorder cannot succeed.
EVIDENCE
I had before me the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975.
Mr Kelly gave evidence. He had previously provided several statements in support of his claim dated 11 January 2012, 22 May 2013 and 28 October 2014.
He gave evidence that he was aged 18 years and one month on his first of seven trips to Vietnam. He said the ship spent about three days in harbour, returning to sea at night. He said he worked in the engine room for the first two trips and was not aware before he went that there would be scare charges. He was “90 per cent sure” he experienced scare charges on his first trip to Vietnam, which appears to have been in early May 1966. He said he was told within an hour that it had been a scare charge and not a bomb.
It was pointed out to him in cross-examination that his first statement (dated 11 January 2012) contained no reference to scare charges at all. He said that at the time he did not think they were significant to his claim. He thought he had to “see” something, and, unlike the bombing he observed on subsequent trips, he did not “see” scare charges. He could not explain why he had been of that view. On the return journey after the second trip he told “the Navy” he wanted a trade transfer because it was too hot in the engine room, when actually, he said, his real reason was because of the scare charges.
His experience with the scare charges, he said, made him “sensitive” to his subsequent experiences. He was scared, he said, just going into Vung Tau harbour, and was already getting flashbacks of the engine room. He was happier, returning to Vietnam, that he was not in the engine room again. He said that during one of his subsequent trips he had been posted as a lookout in Vung Tau harbour. He was 35 metres above sea level on the flag deck. He said he was told to look out for “anything dangerous”, especially in the water and about the surrounding hills, which he thought were the “Long Song Hills” and the “Long Tan Hills” (sic).
He said he saw fighting in the distance while using “seven times”-magnification binoculars. He said he could clearly see vehicles or tanks 15 km away. Closer, about 5-10 km away, he could see bombs being dropped, and could see the people clearly. He said he was “terrorised” and “frightened” by what he saw. He said on one trip he saw two US planes dropping bombs on a village and ”blew all these people away”. There were massive flames which he thought was napalm. He said the Captain was scared of “the fireworks” and moved the ship 1-2 km away because it was too dangerous. Before the VRB he said he saw people being bombed on a number of occasions from a distance of 3 km.
On another occasion he said he saw “mines going off” in the hills which were blowing up machinery. He could see bodies, about 8-14 km away, and because of the magnification of the binoculars, were as if they were only a kilometre away.
He said there were other, less significant, events, such as helicopters and planes flying around and he thought they were threatening”, and he knew of a sampan being blown up.
In late 1970 or early 1971 he received a draft to HMAS Hobart which was to return to Vietnam. He had known that people were killed when the Hobart had previously come under fire. He told his Petty Officer that he would not go and he was told that he would be sent “to Holsworthy”, by which I understood him to mean, to military prison. He said that there was a “conference” and it was decided that he was a conscientious objector; he was “branded a coward”. He was sent to HMAS Penguin for psychological assessment by Dr McGeorge. He said that he still had thoughts at that time of the scare charges he had heard while in the engine room and seeing people blown up. He did not want to be part of it again.
He said he saw one or two “psychiatrists” before he had seen Dr McGeorge and thought he had seen another psychologist or psychiatrist before he started seeing Dr Altman in 2010. The Navy, in investigating him for discharge, had attributed his tension headaches to his wife’s mental condition. In fact, he said, he had not wanted to go to Vietnam aboard HMAS Hobart. He had commented to this effect in his discharge medical which was provided in the papers. He referred there to his “short and most painful draft to the HMAS Hobart”. He told the VRB, in respect of the Hobart that “the guns were going off and they were sending me mental”. He did not in fact deploy on the Hobart.
He thought the Navy had provided the excuse of “domestic worries” so as to be able to get rid of him. In fact, his discharge application referred to his wife’s attempted suicide. He was unclear if he had written the application, but because of the language doubted that it was his. He agreed though that he had signed it so he could get out.
In 2010 “things were getting worse” so his GP referred him to Dr Altman who he has seen about once per month since that time, and in the last three months, in anticipation of the hearing, more often. Dr Altman had prescribed Lovan and the dose has been increased over time. In addition Dr Altman has helped him with coping strategies.
He said that he had told Dr Altman about the scare charges, notwithstanding there is no reference in the doctor’s first report (dated 19 November 2010) or the clinical notes, until May 2013. He acknowledged that by the time of the report of 19 November 2010 he had seen Dr Altman about four times. He said he was there for treatment so it took a while for Dr Altman to ask about his Vietnam experiences. In fact, on the first consultation, the doctor had recorded the bombing experiences the applicant had described in relation to subsequent trips to Vietnam.
When he was asked about Dr Altman’s later report, dated 13 October 2014, in which the doctor referred to the scare charges, the applicant repeated his understanding that he had to have seen something in order for it to “be accepted” as a stress factor. This, it seemed to me, was somewhat disingenuous, given the applicant’s evidence that he was seeing Dr Altman for treatment.
The applicant was also referred to a medico-legal report dated 13 February 2012 from Dr Dinnen, consultant psychiatrist. Dr Dinnen saw the applicant once – on 2 February 2012. Dr Dinnen recorded that the applicant had said, in respect of his first two trips to Vietnam that he was “in the engine room, and ... saw very little of what went on outside the ship”. No mention was made of the scare charges, either.
The applicant was referred to Dr Altman’s report of 19 November 2010, and to the doctor’s clinical notes which had been supplied to the Tribunal. The notes record that he told Dr Altman he had had eight trips to Vietnam, had witnessed “continuous bombing every minute or so” and that he had seen “army tanks and machinery being blown to pieces, about 3 km away”. He also “saw human beings being blown to pieces – several – on about 6 occasions” and pieces of machinery and humans “were blown into the air at great height - about 30 metres”. At the time he felt “absolutely terrified and wanted to escape. Every night [he] was there [he] didn’t sleep [because he] was terrified the ship would be blown up”.
He agreed in cross-examination that he did not have eight trips to Vietnam; the ship did not remain at berth during the night, but said he had meant “in the vicinity” when he referred to “every night [he] was there”; the explosions threw machinery and bodies only about 10-15 m into the air, but he had not meant to exaggerate.
Dr Altman also recorded that the applicant reported nightmares of flashes of the bombing or of small boats being blown up. The nightmares started after the first trip to Vietnam. He agreed in cross-examination that, by that time, he had, on his evidence, not yet experienced the bombing he claims to have observed, and he had not seen a small boat blown up at all. He said, contrary to Dr Altman’s notes, that he had different dreams at first.
Dr Dinnen reported that the applicant was on his third trip when he was “confronted by planes and helicopters flying around and blowing people up”. He had referred to his use of binoculars and seeing to a distance of 20 km away and the veteran had estimated he could see – at about 3-12 km away – 3-12 people in the distance, in the hills, and saw what he assumed to be bombing and resultant smoke. He felt terrified. The applicant agreed he had referred to this as “the distressing experience” (emphasis added). On subsequent trips he was a lookout and saw a mobile unit being blown up on a hill and suspected it was a truck.
Before the VRB he said he thought some of the bombing was being conducted by the Viet Cong, and he believed Vung Tau was bombed by the Viet Cong on his fifth and sixth trips, and this was when the majority of the bombings he witnessed had happened. The applicant said at this Tribunal’s hearing he had a “rough recollection” that it was in February (1968) (his fourth trip) that he had seen the US bombers and that it was in April (1968) (his fifth trip) that he had seen the activity in the hills. He said in cross-examination that he “presumed” there were humans because, after the bombing, there was nothing left because the explosion was large. As to the truck explosion, he presumed there were people driving it but he couldn’t actually see them.
Dr Smith, consultant psychiatrist, provided a report dated 9 July 2013 and also gave oral evidence. Dr Smith was critical of Dr Altman’s reports because Dr Altman had not addressed the diagnostic criteria for either PTSD or depressive disorder. In excluding a diagnosis of PTSD Dr Smith considered that the events relied on did not result in the diagnostic criteria being met. He did not regard any of the claimed stressors to be of the seriousness required by the diagnostic criteria. He observed the applicant was able to continue his duties. He considered the applicant’s reluctance to go to Vietnam again a reasonable response, but this did not amount to PTSD. He observed that the applicant had made no mention of allegedly traumatic events when he had seen Dr McGeorge in 1971. He considered the likelihood of delayed onset of PTSD to be remote, and indeed, this was not the applicant’s contention. It was only when the applicant saw Dr Dinnen and Dr Altman that the condition was diagnosed.
The applicant said he saw Dr Smith, for only 23 minutes, although Dr Smith said it was about 35 minutes, which was in his view, sufficient time to elicit answers to the questions he wanted to ask. The applicant said that Dr Smith asked questions about his sleep and did not ask follow-up questions. He said he told Dr Smith about his dreams of flashes of bombs in the hills and of the dark in the engine room. He was asked to comment on Dr Smith’s observation that his memory and concentration was good and he said that, at the time, his concentration was good but if there is stress then his concentration deteriorates.
Dr Smith agreed that the applicant had told him that when he heard the scare charges he “shit himself”, and not “lost control of his bowel”, as the doctor had over-delicately in my view, recorded.
Dr Smith said that nightmares are not specific to PTSD and observed that alcohol can affect sleep, including producing nightmares, as it affects the “circuitry”. Dr Smith was asked in cross-examination about his observation that the applicant did not experience “true dissociative flashback episodes”. He explained that means a person must not only re-experience the event but must also have the appropriate response, such as being overwhelmed by anxiety. He did not detect this emotional response in the applicant; the applicant had a “blunt affect”.
Dr Smith went through the diagnostic criteria for PTSD and said that criterion G specifies that the disturbance must cause clinically significant distress or impairment, and this was not the case. Further, criterion H provides that the disturbance must not be attributable to the physiological effects of a substance, for example, alcohol.
Dr Smith took a history that the applicant was consuming 6-10 schooners a day, six days a week and that was taking its toll both physically and psychologically, for example, excessive alcohol consumption can lead to aggression and to depression. As to alcohol consumption, the applicant reportedly told Dr Smith that he did not consume excessive quantities of alcohol during his service, but it was unclear when he had started drinking to excess. The applicant told Dr Smith that he had successfully operated his own business, selling insurance, despite excessive alcohol consumption. Dr Smith considered the applicant suffers from chronic alcohol dependence, but was of the view that it was not service-related.
Evidence was given by Commodore Mulcare, a military historian. He provided two reports dated 30 May 2014 and 16 July 2014. He was asked about the use of scare charges during 1966, the time of the applicant’s first and second trips aboard HMAS Sydney. He said that all the ship’s crew would have been briefed before the ship arrived in Vung Tau and he considered it unlikely that an Ordinary Seaman (such as the applicant) would have been unaware of what was to happen, although he had probably not actually heard a scare charge before being deployed. He stated that HMAS Sydney was engaged in a pre-deployment exercise off Jervis Bay in March 1966, but he was uncertain whether scare charges were demonstrated. He said it was customary for the engine room to be informed before unusual events, such as scare charge occurred. He regarded it as “extraordinary” if, as the applicant claims, a scare charge was not explained. He said that there may have been a few scare charges placed during the two periods in question. He agreed that people in the engine room would hear a lot of noise if a scare charge was released and that if there were an attack, those people would have furthest to go in order to escape.
In his report CDRE Mulcare referred to bombing strikes during the periods of HMAS Sydney being at anchor in Vung Tau harbour, the closet of which was 48 km away. He concluded that the veteran would have been unable to see the air strikes. In his supplementary report he referred to a report by CDRE McKay who recalled helicopters firing rockets in what he thought was the Long Hai Hills or in the riverine complex of Rung Sat. In any event it was “well to the north” of HMAS Sydney. Because CDRE McKay reported a “many seconds” delay in hearing the sound of the rocket firing CDRE Mulcare deduced the firing to be at the more distant Rung Sat. Further, there was no mention of any significant engagement in the Long Hai Hills at that time. It would not have been possible for observers, with binoculars to see the explosions impacting.
CONSIDERATION
Only after the Tribunal determines that a veteran is suffering from a particular condition does the question arises as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363.
The issue whether a disease exists, which is a question of fact, is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307; Gerzina v Repatriation Commission [2004] FCAFC 96; Repatriation Commission v Budworth (2001) 116 FCR 200.
Both Dr Dinnen and Dr Altman in their reports provided a diagnosis of PTSD. Dr Smith did not find Mr Kelly to suffer PTSD. One of the reasons was that Mr Kelly did not, in his view meet the diagnostic criteria for PTSD which are outlined in the SoP for PTSD and which are derived from DSM-5.
Unfortunately, I did not have the benefit of hearing oral evidence from Dr Altman or Dr Dinnen who might have elaborated upon and clarified the contents of their reports, neither of which specifically addresses the diagnostic criteria for the making of a diagnosis of PTSD. It was submitted on the applicant’s behalf that, on the question of weight to be attached to their reports it was open to the Respondent to call those doctors, in particular, Dr Altman. The applicant contended that Dr Altman, as the treating psychiatrist, was to be preferred over Dr Smith, who at best, only saw the applicant for less than an hour.
Dr Smith’s failure to diagnose PTSD was based largely upon his opinion that the applicant’s response did not satisfy the criterion of a response of “intense fear, helplessness, or horror”. This was a criterion in DSM-IV, but is not part of the DSM-5 criteria.
It is useful to set out criterion A as it is set out in the current SoP:
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i)directly experiencing the traumatic event(s);
(ii)witnessing, in person, the event(s) as it occurred to others;
(iii)learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; or
(iv)experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (for example, first responders collecting human remains; police officers repeatedly exposed to details of child abuse). This criterion does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related;
As can be seen from the totality of criterion A a high level of exposure is required in order to meet the criterion. I do not consider that the evidence can, on the balance of probabilities, support a finding that the applicant had been exposed to actual or threatened death or serious injury, nor that he witnessed actual or threatened death or serious injury as it occurred to others; the scare charges did not involve an actual or threatened death or serious injury to him, nor am I satisfied that he witnessed actual or threatened death or serious injury to persons in what he may have observed while on watch. I do not accept, especially given the variation in his accounts that he saw persons blown up as he claimed.
In addition whether or not the applicant met the other diagnostic criteria for PTSD, it remains that criterion G specifies that the disturbance must cause clinically significant distress or impairment, and this does not appear to be the case. Further, criterion H provides that the disturbance must not be attributable to the physiological effects of a substance, for example, alcohol. It was difficult, however, to attempt to reach a view whether the applicant’s alcohol dependence (which was diagnosed by both Dr Altman and Dr Smith) was responsible for any of the feelings associated with the other diagnostic criteria that the applicant claimed, although this may account for the variations in the accounts he has given over time.
I am therefore not reasonably satisfied in respect of diagnosis of the claimed PTSD: Repatriation Commission v Warren (2007) 95 ALD 606.
Having come to this view it was not necessary to consider the factors relied on by the applicant. Nonetheless, I observe that factors 6(a) requires, relevantly, experiencing a life-threatening event and 6(b) requires, relevantly, being an eyewitness to a person being killed or critically injured. Having regard to my findings, the applicant would be unable to succeed in respect of those contentions.
As to 6(c) – for at least four weeks before the clinical onset of PTSD living or working in a hostile or life-threatening environment, namely a situation or setting characterised by a pervasive threat to life or bodily integrity, such as being under threat of artillery, missile, rocket, mine or bomb attack, the applicant was not in Vung Tau for any period of four weeks. The maximum period, it appears was a few days. Even aggregating his entire time in Vung Tau does not meet the four week requirement. It is not necessary for me to come to a view whether, in any event, periods spent in Vung Tau were necessarily a hostile or life-threatening environment for the purposes of the SoP.
Having found that the applicant does not succeed when the current SoP is applied, I turn then to SoP No. 5 of 2008, the SoP current at the time of the Repatriation Commission’s decision. The diagnostic criteria at that time, as discussed above, were derived from DSM-IV, which required the response of “intense fear, helplessness, or horror”. Mr Kelly’s evidence before me did not relate a response of the required intensity, although he is steadfast in his belief that he saw bodies thrown in the air by explosions. Further, the person must have been exposed to a traumatic event in which “the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others”. For the reasons discussed above, the applicant cannot meet this diagnostic criterion. Similarly as with the current SoP I observe that he could not be said to have experienced category 1A or 1B stressors: factors 6(a) and (b).
I am mindful of the decision in Repatriation Commission v Bawden (2012) 206 FCR 296 where the Full Federal Court said:
One should be slow to attribute to the legislature an intention that incapacity from an alleged illness which the decision maker does not accept occurred at all is nevertheless compensable because it cannot be proven beyond reasonable doubt that it did not occur.
As to depressive disorder, the factors relied on refer to experiencing a stressor (category 1A or 1B) within five years before clinical onset. I have already come to a view, discussed above, in relation to the claimed stressors. Further, there was no clear evidence as to the clinical onset of depressive disorder. Certainly, it was not diagnosed until Dr Altman first saw the applicant in 2010, nearly 40 years after his service ended: Lees v Repatriation Commission [2002] FCAFC 398.
As to alcohol use disorder, Dr Altman and Dr Smith (but not Dr Dinnen) diagnosed alcohol dependence. Dr Altman took a history that the veteran’s alcohol intake was negligible before going to Vietnam but that he drank excessively while ashore, whereas he reportedly told Dr Smith he did not consume excessive quantities of alcohol while in the Navy. Neither made any observation about clinical onset. Factors 6(b) and (c) refer to experiencing category 1A and 1B stressors within the five years before the clinical onset of alcohol use disorder. I have already found the applicant not to have experienced stressors as defined. Furthermore, because those claimed stressors were during the veteran’s Vietnam service, clinical onset would have to have been many years ago. The earliest presentation with symptoms that permitted a diagnosis of the condition is 2010.
Another possible consideration is factor 6(a) – having a “clinically significant psychiatric condition” at the time of the clinical onset of alcohol use disorder where that term is defined to mean “a specified disorder of mental health, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner”. It has only been in latter years that the veteran has required psychiatric counselling. Further, I have found that any “clinically significant psychiatric condition” is not related to his service: Mc Kenna v Repatriation Commission (1999) 86 FCR 144.
CONCLUSION
In all of the circumstances, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Kelly’s claimed emotional conditions or emotional problems – whether PTSD, depressive disorder or alcohol dependence are related to his operational service.
DECISION
I therefore affirm the decision under review.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...................[sgd].....................................................
Associate
Dated 2 February 2015
Date of hearing 2 December 2014 Advocate for the Applicant Mr T Latimore, Legal Aid NSW Advocate for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
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