JOHN WILLIAMS and REPATRIATION COMMISSION
[2009] AATA 912
•27 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 912
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2782
VETERANS' APPEALS DIVISION ) Re JOHN WILLIAMS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date27 November 2009
PlaceMelbourne
Decision The decision of the Veterans' Review Board with respect to the conditions of Post-Traumatic Stress Disorder and Alcohol Abuse made on 21 May 2007 is set aside and in substitution IT IS DECIDED:
(i) The applicant suffers the conditions of Post-Traumatic Stress Disorder and Alcohol Dependence; and
(ii) The conditions are war‑caused.
(iii) The application is remitted to the respondent for calculation of pension entitlement.
(iv) The remainder of the decision under review is affirmed.
(Sgd) John Handley
Senior Member
VETERANS' ENTITLEMENTS – Applicant served in Vietnam – when acting as a shotgun in truck on road between Nui Dat and Vung Tau applicant feared ambush or landmine attack – vehicle not in convoy – reasonableness of perception of fear of death – response involved intense fear, helplessness or horror – PTSD and alcohol dependence definitions satisfied – category 1A stressor suffered – decision set aside
Veterans' Entitlements Act 1986 (Cth) s 120(1)
Delahunty v Repatriation Commission [2004] FCA 309
Keeley v Repatriation Commission (1999) 56 ALD 455; (1999) 30 AAR 48; [1999] FCA 1103
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484
Mines v Repatriation Commission [2004] FCA 1331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Witten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 27 AAR 144; (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194
Stoddart v Repatriation Commission (2003) 197 ALR 283; (2003) 74 ALD 366; [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Statement of Principles Instrument No 1 of 2009
Statement of Principles Instrument No 17 of 2008
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 5 of 2008
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 76 of 1998
REASONS FOR DECISION
27 November 2009
Mr John Handley, Senior Member
1. The applicant applies to review a decision made by the Veterans' Review Board (VRB) on 21 May 2007. The VRB then affirmed a decision previously made by the respondent to continue pension at 60 percent of the general rate with respect to a number of accepted conditions. The VRB also decided to affirm a decision previously made by the respondent to deny the conditions of post-traumatic stress disorder (PTSD) and alcohol abuse as war-caused.
2. The applicant is presently 61 years of age. The applicant was educated to Year 11 and then enlisted. He was a member of the Australian Army between 2 October 1968 and 1 October 1970. He served in South Vietnam between 2 July 1969 and 25 June 1970. In South Vietnam he was posted to the 110 Signal Squadron and served as a communications officer. He served in Vietnam in the year after the Tet offensive. His service mainly occurred in Vung Tau but some service was undertaken in Saigon.
3. Mr Burge, a psychologist and Dr Peterson, the applicant's treating psychiatrist, were of the opinion that the applicant suffers from PTSD. Dr Glaser, who examined on behalf of the respondent, was of the opinion that the appropriate diagnosis was generalised anxiety disorder (GAD). The only issue between the practitioners concerning alcohol consumption was whether the appropriate diagnosis was alcohol abuse or alcohol dependence.
4. The applicant relied on four events in service as being responsible for the claimed conditions namely:
(a)Being in fear of exposure to attack either by ambush or by a landmine when riding shotgun in a truck when having to manoeuvre around a felled tree on a roadway;
(b)Being in fear and a sense of vulnerability whilst riding as a passenger in the back of an open truck through Saigon;
(c)Observing South Vietnamese uniformed police shooting from a pistol; and
(d)Visiting a friend in hospital at Vung Tau and observing him and other wounded military personnel.
5. The hearing of this review occurred over three days. On the first day the applicant gave evidence. On the second day Mr Burge gave evidence. On the third day Dr Peterson gave evidence and the applicant was recalled at my insistence.
6. I made that decision because Mr Burge had given evidence concerning the manner in which he formed an opinion concerning diagnosis of PTSD. He acknowledged that individual events might each amount to a severe stressor but a combination or accumulation of multiple events, if more than one constituted a severe stressor, would contribute to chronic PTSD.
7. By way of clarification (and in response to cross examination) he said that each of the four events relied upon by the applicant satisfied the definition of experiencing a severe stressor within DSM-IV and the applicant's response to each event involved intense fear, helplessness or horror. The accumulation of those events contributed to the severity of the PTSD from which he suffered (refer transcript at pages 101 and 102).
8. After the applicant gave his evidence on the first day I was doubtful that all of the events described by the applicant caused him to experience a severe stressor. Equally I was doubtful that the applicant's response to some of the events involved intense fear, helplessness or horror.
9. Indeed I expressed to the representative of the applicant my concern about whether the applicant was in fact pursuing each of the four events (above) having regard to the evidence that he gave on the first day.
10. After further discussion with both representatives I decided that the applicant should be recalled, that he should be examined by both counsel and he should provide a further statement. I also indicated to both counsel at the beginning of the third day that by reason of my responsibility in having to make findings about whether the events in service, as alleged, did occur and if they did, whether they satisfied the definition of either PTSD or GAD. I indicated I did not want the applicant prejudiced or disadvantaged by what I then considered to be a deficiency in his evidence and the manner in which his application had been presented on the first day. Accordingly the applicant was recalled on the third day.
11. The events relied upon by the applicant in evidence and as recited by him in his statements will be summarised below.
fear of landmine attack or ambush
12. In a statement of 7 May 2008 (Ex A1) the applicant described that event in the follow terms:
I suffered a specific traumatic incident when I was riding shotgun in a truck taking supplies from Nui Dat to the Horseshoe, a fire support base. On the way back I had been standing in the turret above the passenger side of the truck, when I noticed that a tree had been felled across the road. At the time I believed the tree was felled to divert the truck to drive over a mine. I was terrified that we could be ambushed or blown up, I was afraid that I was about to die, and this episode left me very scared and shaken. There was nothing I could do about it and I felt helpless
13. In evidence on the first day the applicant gave the following description of that event ‑
Could you just explain the situation at that time?‑‑‑Well, where to start? We come out of Vung Tau, went via Nui Dat – the signal area there, then out to the Horseshoe to deliver something. What route we took, I’ve no idea. I was the shotgun. I didn’t know the roads there. We delivered whatever it was and on the way back there was a tree fell across the road which hadn’t been there, whether it was one or two hours earlier, and which the verge was to the right hand side of the road, enough room for the truck to get through. And I personally believed there was a mine there. I actually froze, bloody – excuse the French, but I was extremely terrified and – by the whole event. Because we had been taught to look for these type of things but, in the end when it came down to the crunch, I didn’t do anything, and I don’t know what the driver was feeling. I didn’t do anything other than just freeze and ‑ ‑ ‑ (Transcript page 10)
14. At page 11 the applicant concluded his evidence with respect to this event in the following terms:
And what was your reaction to that incident; when you returned to base, what did you do?‑‑‑I just internalised it. I – I didn’t do anything. I didn’t do anything on an official level. I didn’t report it. I internalised the whole thing and lived with it. But it’s probably the only time in my life I’ve ever felt that I was going to die.
15. In cross examination the applicant said that he was a radio and keyboard operator and had not been given instructions of his responsibilities when riding shotgun. He acknowledged that he was armed and if there was an obvious need he would discharge his gun. He said that he had travelled on the road between Vung Tau and Nui Dat on previous occasions but only in convoy however on this occasion he was shotgun in a lone vehicle. He was returning to base and recalled that on the outward journey a tree was not lying across the roadway. He said the driver of his vehicle diverted to the right of the roadway around the tree without slowing down. He said there was no discussion between him and the driver and he froze. He also said that the driver did not speak to him about the incident. The applicant did not ever have any discussion with any other person after the event about the circumstances of it because to do so would be showing signs of weakness (transcript page 39).
16. When the applicant was recalled he was taken to another statement he completed on 14 October 2009 (Ex A6) where within paragraph 2 relevantly the applicant recorded as follows:
In relation to paragraph 2 of my statement of 7 May 2008,1 said that I was terrified that we could be ambushed or blown up. I was afraid that I was about to die and this episode left me very scared and shaken and there was nothing I could do about it and I felt helpless.
To Mr Burge, I also indicated that I was afraid that I was going to die and felt helpless. I believe that I should have spoken up during the Tribunal hearing. I did say I was frozen in fear.
The only notation made by Dr. Glaser in relation to this incident was that I had the shakes for a while but that I was reluctant to show any weakness because I would get picked on.
17. In evidence on the third day the applicant reaffirmed that he was terrified that he could have been ambushed or blown up, that he was afraid that he was about to die and the event left him feeling scared and shaking and helpless.
travelling as a passenger in saigon
18. In his statement of 7 May 2008 the applicant at paragraph 4 recorded the following:
I was very worried about riding in the back of an open truck through the streets of Saigon, completely exposed. I feared that someone would throw a hand grenade into the back of the truck or shoot at us at any time. I traveled [sic] in this way for the period of time I was posted to Saigin [sic]
19. In evidence the applicant said that he had been serving in Saigon for a period that he estimated at between two and six weeks. He could not be precise. He said that he and other personnel were billeted at the Hotel Canberra and worked at the Free World Centre in Saigon. He said that he and other persons were collected daily in an open truck and transported to the Free World Centre and returned to the Hotel Canberra in an open truck at the end of each day. On those occasions he said that he felt vulnerable, he had a sense of apprehension and believed that he was travelling in a hostile environment along and through side streets which were surrounded by multi storey buildings. He said the journey on each occasions would take between 20 and 35 minutes over a distance that he estimated to be between 5 and 10 kilometres. He agreed that an incident did not ever occur. He acknowledged a fear that he then held of a hand grenade being thrown into the back of one of the trucks whilst he was a passenger and said further that he had been trained never to express fear because it would be perceived as a sign of weakness.
20. In cross examination the applicant said he could not be sure of the period of time he was stationed in Saigon but recalled that it was at least two weeks and up to six weeks. He recalled that when staying at the Hotel Canberra he paid for cleaning service of his room on a fortnightly basis and recalled making one such payment. He travelled in an Australian vehicle and on each occasion he was armed. He was aware that Saigon had been attacked by the Viet Cong in the year previous but his concern was being exposed in an open truck in what could have been a hostile environment going down narrow streets with buildings overlooking it (transcript page 18).
shooting by south vietnamese police
21. In his statement of 7 May 2008 at paragraph 3 the applicant recorded:
When at Vung Tau during 1969, I was walking down the street; I cannot remember who I was with, but a White Mice (a Vietnamese Policeman) was shooting with a pistol about 70m where I was. I had been made aware of the ruthlessness of the White Mice and that they were a law unto themselves, Although the firing was not in my direction, I moved around the corner out of the line of sight. I felt scared and worried and quickly left the area.
22. The applicant was not asked any questions concerning that event in examination in chief.
23. The entirety of the cross examination of the applicant concerning this event is reproduced as follows:
Now, you weren’t asked any questions about that episode today. Is there anything further that you wish to say about that?‑‑‑That wasn’t – well, I don’t believe that particularly was a – I was asked about any other episodes that I had over there, but that was – and I said that one as I was putting the statement, but to me it’s not a – I wasn’t ‑ ‑ ‑
Then you weren’t particularly ‑ ‑ ‑?‑‑‑I removed myself from the area because it wasn’t safe ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ and that was – that was the end of that. I never, ever – never, ever thought about it again.
You weren’t personally threatened in that scenario, were you?‑‑‑No one was shooting a gun at me, no.
And you didn’t feel personally threatened?‑‑‑I wasn’t personally threatened at – as I – as the situation was going, I was not personally threatened.
All right?‑‑‑And I – there was – that was – I was asked about whether there were other incidents, and this was an incident, but it wasn’t one that was going to harm me. Although it was better to be removed, like it could be ‑ ‑ ‑ (Transcript pages 44-45)
24. The applicant was not asked any questions concerning this event in re‑examination.
25. In his statement of 14 October 2009 the applicant said:
In relation to paragraph 3 of my statement of 7 May 2008,1 said that I had been made aware of the ruthless ness of the "white mice" and that they were a law unto themselves. Although the firing was not in my direction, I moved around the corner out of the line of sight. I felt scared and worried and quickly left the area. I gave this account to Mr. Burge, although I did brush off this incident at the Tribunal. I reiterate that I was scared and worried at the time. I did also tell Dr. Glaser that "white mice" had a reputation of being extremely brutal.
26. On the third day the applicant gave some evidence in relation to this episode which is found at page 147 of the transcript in the following terms:
And when you gave evidence here you indicated that you brushed off that incident as not being significant?‑‑‑The incident happened.
Yes?‑‑‑I was scared at the time. I did brush it off when I was there at the tribunal because it was an incident that happened; I left the area; that was the end of it. It was discussed later but it was not, not as terrifying, can I say, as the incident with the truck and the tree.
27. In cross examination the applicant was taken to his evidence on the first day which relevantly is reproduced at transcript pages 151‑152 as follows:
And then could I suggest that you said in evidence – this is at page 44 of the transcript, sir, following some further questions, at line 43:
I never ever, never ever thought about it again.
Do you remember saying that?‑‑‑I don’t remember saying that, but I haven’t read ‑ ‑ ‑
The transcript ‑ ‑ ‑?‑‑‑But I’m not – it’s in the transcript, it must have been said.
The transcript says:
I never ever, never ever thought about it again.
That was your evidence; do you accept that?‑‑‑If that’s what it says in the transcript, that’s what I said.
And then you were asked this question:
You weren’t personally threatened in that scenario, were you?
and your answer was:
No one was shooting a gun at me, no.
And the next question was:
And you didn’t feel personally threatened?
You said:
I wasn’t personally threatened – I was - as the situation was going, I was not personally threatened.
And you would agree that you weren’t personally threatened in that episode, were you?‑‑‑The gun wasn’t pointed at me, no. I was ‑ ‑ ‑
And you would never – and you have never thought about it again?‑‑‑Well, I have thought about it again, because ‑ ‑ ‑
Because you have had to go through this process. But as you said ‑ ‑ ‑?‑‑‑That’s ‑ ‑ ‑
‑ ‑ ‑ in the longer term ‑ ‑ ‑
MR DE MARCHI: No, allow him to finish.
MR PURCELL: Sorry. I thought you had?‑‑‑It’s – it’s not me that’s, sort of, making something of that incident. Like, Mr Burge says that, from what I understand, that it had something to do with my – I’m only a lay person, I don’t know. That’s why I go and see, to try and seek professional help to get some answers to some of the things that are bothering me.
visiting a friend in hospital
28. In his statement of 7 May 2008 the applicant recorded the following:
I had a friend, John Johnson who was also serving in Vietnam at the time, and I heard that he was in hospital at Vung Tau. We were from the same town and lived in the same street. I went to the evacuation hospital and saw him and other soldiers injured and made me feel very vulnerable and exposed. I felt very vulnerable throughout my time in Vietnam.
29. The applicant was not asked any questions concerning this event in examination in chief. The cross examination concerning that event is found at transcript pages 45‑46 in the following terms (commencing after counsel for the respondent read to the applicant the above paragraph from his statement):
Now, again, that’s a bit like the incident with the white mice. It’s not something ? That’s right.
that has caused you ? That’s right. I – it made me feel vulnerable, but that’s – that – that’s it. He was a friend, and we went in the same intake, and he was over there and – injured and in hospital. It just makes you feel vulnerable, like he’s a very good friend and
Do you know what injury he had? I don’t remember, but I believe – I believe – I think they were shrapnel wounds when he was up the Horseshoe.
Yes? I believe. You – you might know better than me.
Well, I probably have the edge on you there because there is an official report involving a Private J Johnson? Yes.
Wounded by mortar fragments at the Horseshoe? It was, I
And in December of 1969. Would that accord with your understanding? Could be, yes.
Yes? Part of – well, you’ve got the official documents. I’m not going to
But – well, I ? I’m not going to argue with them.
Well, but your understanding was at the time that he had a minor injury, is that right? I had no idea what his injury was. Well, it wasn’t
It wasn’t life-threatening? It wasn’t life-threatening, no. No, I didn’t believe it was life-threatening.
30. In his statement of 14 October 2009 the applicant said:
In relation to paragraph 5 of my statement of 7 May 2008,1 stated that I went to the hospital to see John Johnston and saw him and another soldier injured. This made me feel very vulnerable and exposed.
31. On the third day the applicant was directed towards that episode and the entirety of his evidence in chief is reproduced at transcript pages 147‑148 as follows:
Okay. In relation to paragraph 5 of your statement of 7 May, you indicated your friend, John Johnson, who was serving in Vietnam at the same time as you, was hospitalised in Vung Tau. Vung Tau was whereabouts in relation to where you were serving? I was in Vung Tau at that time.
All right. And there, where was he in Vung Tau? He was in the local hospital – he was in the military hospital on the base.
Was that an American or an Australian hospital? No, an Australian hospital.
Okay. Now, you said that you and Johnson came from the same town and you lived in the same street? We were friends and lived in the same street before we were both called up, on the same intake.
Now, you saw him at the evacuation hospital and you saw him with other injured soldiers? There were other injured soldiers there. They didn’t make any particular impression on me. He did - for the fact that I knew him.
What sort of impression did he make on you? It just showed me how vulnerable and how – that I was being there, like.
Okay. You have said that, in the statement, that you felt very vulnerable and exposed and that you felt vulnerable throughout your time in Vietnam?‑‑‑I certainly did, yes.
Did you feel vulnerable throughout your time in Vietnam after seeing John Johnson injured, or was it a statement that applied to all of you?‑‑‑I think it applied – I think I was always vulnerable but I felt more exposed, more vulnerable, after that because it sort of brought it home that here was someone who was a good friend of mine that was, had been hit.
Now, to Dr Glaiser, you told him that John Johnson looked sore and sorry, and that Dr Glaiser noted that he couldn’t remember whether he was able to speak to you or not. But you said that you visited him more than once?‑‑‑Yes, I did visit him more than once and I’m more than sure that I spoke to him because ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑I think on the second or third visit, or whether it was, whether it was the second visit I gave him some money, because he had nothing, he was – for whatever he needed money for. So I must have spoken to him for him to convey that to me.
32. In cross examination on the third day the entirety of the applicant's evidence concerning this is found at transcript pages 152‑153 as follows:
Thank you. Now, your friend, John Johnson, whom you visited in hospital – that was in Vung Tau, wasn’t it?‑‑‑Vung Tau.
Yes?‑‑‑Evacuation hospital.
You were asked some questions about that at the previous hearing. You said:
I went to the evacuation hospital and saw him and other soldiers injured and it made me feel very vulnerable and exposed. I felt very vulnerable throughout my time in Vietnam.
You agree that’s what you wrote in your statement?‑‑‑Yes.
Now, again, this was a question put to you:
That’s a bit like the incident with the White Mice?
and you later on said:
That’s right. It made me feel vulnerable, that’s it. He was a friend and we went in the same intake and he was over there and injured and in hospital. It just makes you feel vulnerable.
And that was essentially your evidence. And you would agree that that’s what you would say about that incident today?‑‑‑That’s what I said, it just brought it home to me, but that’s what I said.
And you said – you were asked whether he had a minor injury and you said:
I have no idea what his injury was.
It wasn’t life threatening?
And you agreed with that? That – I’d agree with that. I didn’t know what it was – I think you’ve told me what it was.
Well, I’m actually reading – I have the benefit of the transcript, so I will just read it to you to make sure that there’s no misunderstanding about that. At the bottom of page 45, line 45, I asked you this:
Well, but your understanding was at the time that he had a minor injury; is that right?
You said:
I had no idea what his injury was.
I said:
Well, it wasn’t life threatening.
and you said:
It wasn’t life threatening, no. No, I don’t believe it was life threatening.
? Not.
Yes. And then when – well, I’m just reading from the transcript ? I’m not arguing.
And you would agree that that’s your position now, isn’t it? Sorry?
Your position is still the same in respect of that incident? I’m not arguing with you, no.
alcohol consumption
33. In a report of 30 June 1999 (T‑docs T7, p14) Dr Peterson was of the opinion that in the event that GAD was due to the experience of service in Vietnam, it would follow that the psychoactive substance abuse that he has a history of being subject to would also be due to these experiences. In a further report of 24 August 2006 (T12, p69), Dr Peterson was then of the opinion, having obtained a history in some detail of the applicant's experiences in Vietnam, that the appropriate diagnosis was PTSD and that diagnosis includes alcohol abuse which has been a feature of his behaviour since the time of the precipitating events.
34. Mr Burge in a report of 19 May 2008 (Ex A3) was of the opinion that the applicant suffers from alcohol abuse.
35. Dr Glaser who examined on behalf of the respondent (Ex R1) in a report of 14 May 2008 diagnosed the applicant as suffering from alcohol dependence.
36. In an alcohol questionnaire completed by the applicant in 1998 (T5, p10‑11), the applicant recorded that he began to consume alcohol on a regular basis in October 1968 at enlistment and did so by reason of peer pressure. He was then drinking on two or three occasions per week and was then drinking beer at four stubbies per day. He also recorded that his alcohol consumption changed significantly from June 1969 after he arrived in Vietnam and explained the reasons for change being cost factor, peer pressure, helps settle the nerves. He recorded that he was then drinking beer and spirits daily and estimated consumption between six to eight stubbies on each daily occasion.
37. A doctor at the Bacchus Marsh Medical Centre recorded on 4 November 1998 (T6, p12‑13) that the symptoms of psychoactive substance abuse or dependence were first noticed on 16 May 1997. It was the opinion of that doctor that the psychoactive substance abuse or dependence was related to service in Vietnam and the underlying pathology of that condition became permanently worse by reason of dependence on alcohol since service.
38. In evidence on the first day of hearing the applicant agreed that he did drink some alcohol prior to enlistment but increased the consumption considerably after arriving in Vietnam and especially after the episode where he thought that he would be at risk from a landmine or an ambush. He said he drank alcohol to make life better and deliberately drank beer or rum to put himself under the weather on a daily basis. He continues to drink alcohol on a regular basis, often to excess and although he feels that his consumption is under control he said that he consumes alcohol for relaxation.
39. In cross examination the applicant said that he was a part time driver of semi trailer trucks and frequently drove interstate. He said he would rest for about seven hours before returning to Melbourne and within that time he would consume three or four stubbies of beer. He said that he could safely consume that quantity of beer because it is out of your system by the time you have to drive again.
40. The applicant said that in about April 2007 he completed the Kakoda Track by walking it over a 10 day period. He said that he paid a local person to carry his pack in which he had four bottles of Scotch whisky. He said he drank two bottles over the first four days and consumed the other two bottles over the balance of the journey. He said he had arranged to have Scotch whisky carried because beer, which he would normally drink, wasn't practical.
41. The applicant was taken to the report of Dr Glaser where at page 4 he recorded a history of commencing to drink alcohol heavily in Vietnam and becoming a binge drinker. Dr Glaser then recorded the applicant having told him I could not afford to drink with a young family (when he returned).
42. The applicant said that his children were born between 1975 and 1977 when he was then employed by the Tax Office. He said he was consuming alcohol on a daily basis but there were occasions at the end of each fortnightly pay period where he had nothing to buy a drink with but there was never an occasion where he stopped drinking for a fortnight or a week (refer transcript at page 156). The applicant said that his normal pattern was to drink at home on most nights and on occasions where there were parent teacher interviews he would start to drink after he returned from those interviews. On weekends when he took his children to weekend sports he would drink only when he returned home.
michael burge
43. Mr Burge is a clinical psychologist who has been in practice since 1988. He was an employee of the Department of Veterans' Affairs between 1989 and 1996 where he was mainly treating Vietnam Veterans who suffered PTSD. Mr Burge provided a report at the request of the applicant's solicitor on 19 May 2008 arising out of two consultations of 30 January 2008 and 16 April 2008. It was his opinion that the applicant suffered from PTSD and from alcohol abuse.
44. Mr Burge said that the event that mainly precipitated PTSD was the occasion where he had been riding shotgun and was worried that he would be ambushed and that he would be killed. He said the applicant described the experiencing of ‑
Extreme horror and terror, fear and helplessness at that thought of dying. He said the reaction of the applicant was typical of a person experiencing a shock response for the person can freeze and numb out and go into inaction and not do what would be normally of the case that you would expect under those circumstance. In particular if that wasn't his normal job. In the case of particular operations and people are trained on what to expect that is less the case and that mitigates the possibility of some kind of shock or shellshock as it used to be called.
45. It was his opinion that the applicant would be unlikely to volunteer information to Dr Glaser because of his symptoms of PTSD. He thought the applicant would struggle and be nervous about what might be triggered – or how he might feel exposed during such an interview especially if there was not a sort of trusting relationship developed. The dreams occurred by the applicant's estimate at three or four occasions per fortnight. He reported that the applicant did not experience flashbacks but rather he experienced intrusive images and thoughts . . . and other somatic reactions. He explained that phenomena as re-experiencing previous events by association with external for example stimulus responding to smell or observation which may cause an association with previous experiences in Vietnam.
46. Mr Burge also obtained a history of the applicant being scared when he observed a South Vietnamese policeman shooting from a pistol at a distance of 70 metres from him. He was also aware that the applicant had visited a friend in hospital and observed him and other persons who were injured which caused the applicant to be scared and nervous and suffer a feeling of vulnerability.
47. It was the opinion of Mr Burge that whilst the incident where the applicant felt that he was at risk of ambush was the most serious event, the other events of being in the proximity of a South Vietnamese policeman and visiting the hospital caused the cumulating of these events and these severe stressors that – no matter how minor or how major they might be – do add to the pool of impact psychologically on a person's condition and added to the chronic nature of his condition. He said that in his experience and from literature, the severity and endurance of PTSD symptoms are affected by danger, the severity of traumatic events and the number of those events.
48. The witness took a history from the applicant of heavy alcohol consumption in Vietnam and a continuation of that habit to the present time where he was advised that he continued to consume between six to 10 stubbies of beer per day. It was his opinion that the applicant consumed alcohol as a form of coping and mitigating the effects of PTSD.
49. It was his opinion that the applicant was . . . an obvious case of post-traumatic stress disorder and it's quite typical of the type of ways Vietnam Veterans cope and the sort of symptoms that are manifested in Vietnam Veterans from that theatre of war.
50. In cross examination Mr Burge said that he observed the applicant during the first interview to be visibly distressed as evidenced by him becoming agitated, distant, non‑animated in facial expression and his body language was stiff. He said it was an effort to have him discuss his experiences in Vietnam.
51. Mr Burge did not report any history in detail of the applicant's personal life save that at page three of his report he recorded that the applicant
Had less success in emotionally avoidant manoeuvres and is increasingly becoming angry, agitated and withdrawn. He reports at times to be emotionally numb, ironically giving the illusion of calm to the outside world. Emotional intimacy with the family can often be difficult. Mr Williams indicated that he has very little contact with others apart from the family.
52. Whilst Mr Burge did not have his clinical notes with him, he indicated that from his memory the applicant did have a partner currently, but he could not recall how many children he had or details concerning the relationship between the applicant and the children. He relied on the contents of his report; especially the comments reproduced above. He said that he understood that his responsibility was to determine whether the applicant suffered from GAD or PTSD and it was very obvious to him that the applicant suffered from PTSD. He was aware that the applicant had been divorced, he could not recall when that occurred, he acknowledged that it would be a stressful event and was aware that Dr Peterson, the applicant's treating psychiatrist, first saw the applicant upon referral at or about the time that his marriage had broken down. Nonetheless that first presentation occurred in about 1999 and Mr Burge first attended the applicant in 2008. It was his experience that persons who have PTSD have difficulties with relationships.
53. With respect to the episode where the applicant thought that he was at risk of ambush, Mr Burge said that he was not surprised that the applicant described in evidence that the event was momentary, and lasted for a few seconds only. He was aware that Dr Glaser had reported that that event, on the applicant's description, was not life threatening and said that he disagreed with that opinion and regarded the event as a perceived life threatening event. He said that if the applicant had come across a tree on a golf course it would be very different to the applicant coming across a fallen tree on a roadway that was a typical trap and the setting being a theatre of war. He also disagreed with an analogy described by Dr Glaser of a person walking along a suburban street in a neighbourhood known to have a high crime rate and perceiving what would appear to be a person in front of him, but which in reality is a tree or some other object. That event might initially be regarded as being distressing but after a few seconds a person would typically realise that they were not in danger and any perceived threat was not real nor did it persist. A similar analogy was made by Dr Glaser with respect to the applicant travelling in the back of an open truck through streets in Saigon. Mr Burge disagreed with the analogy drawn by Dr Glaser and with a comment made in cross examination that fearful type events are everyday occurrences. He said
That's a very long bow that the doctor is using and I'd hardly compare walking down a sort of a worrying neighbourhood – the back streets of Fitzroy or wherever – as comparing that to a theatre of war where people are often killed, there are casualties, there are body bags and there is death and destruction almost on a daily basis and I think that's a very poor comparison.
54. Mr Burge was of the opinion that the episode of the applicant being in the proximity to the South Vietnamese policeman was a severe stressor because shots had been fired but it was not as severe as the ambush episode. When relevant extracts from the transcript on the first day of hearing (page 45) were read to the witness he said just focussing on that piece of communication alone I would agree yes to the proposition put to him that the applicant's response did not involve intense fear, helplessness or horror.
55. Mr Burge was of the opinion that the events described by the applicant of riding in the back of a truck in Saigon did constitute a response of intense fear, helplessness or horror. He reported (refer report page 2) that the applicant was then often worried about riding in the back of an open truck through the streets of Saigon completely exposed. He said that being worried was the equivalent to intense fear, helplessness or horror because being very very worried and being very very vulnerable is roughly consistent to that (refer transcript page 99).
56. With respect to the applicant's reaction to the hospital visit, Mr Burge said that he could not recall whether he had been informed that the injuries suffered by the applicant's friend was not life threatening nor could he recall the wounds that he suffered. However, the applicant reported that he had been disturbed on observing his friend, was shocked and worried and the circumstances were quite horrifying to the applicant.
57. On balance, Mr Burge said that the event where the applicant thought that he was at risk of ambush was the most stressful event but the other events were also stressful and accumulation of these contributed to what I consider him to have that condition and it contributed to the onset of the post-traumatic stress disorder. He agreed in evidence in chief that he said that the accumulation of events adds to their psychological effect and adds to the severity of the condition. He acknowledged that in applying the DSM‑IV definition of PTSD individual events are assessed and in the present case each would satisfy the definition. However, the multiple events to which the applicant was exposed in Vietnam contributed to the chronic nature of his PTSD condition. He said that each of the four events described to him by the applicant constituted the experiencing by him of a severe stressor and his response to each event involved intense fear, helplessness or horror. Having regard to his evidence with respect to these events and the cumulative effect he said that the applicant suffers from moderate to severe PTSD.
58. It was the opinion of Mr Burge that the clinical onset of the alcohol dependence or abuse, of the applicant, had its clinical onset during service in Vietnam.
dr peterson
59. Doctor Peterson is a psychiatrist who has been treating the applicant since 1998. Although a history was then obtained of military service in Vietnam the applicant's presenting problem was emotional distress associated with the deterioration in his marriage (refer report at T7 dated 30 June 1999).
60. Over the years as the applicant was treated by Dr Peterson a history was obtained in some detail of circumstances of service in Vietnam especially involving an episode where the applicant was riding shotgun in a truck. That episode is described on the second page of a report completed by Dr Peterson on 24 August 2006 (T12) where he has recorded that a tree had fallen across a roadway and during the clearing of the obstacle he was sure they were about to be attacked and that he had bought the farm. Dr Peterson said they were the words used by the applicant and the latter expression was understood to describe the applicant's fear of impending death (refer transcript page 163).
61. Dr Peterson was of the opinion that the applicant presently suffered from PTSD. He was aware that there was an alternative diagnosis made by Dr Glaser and was aware also that there had been discussion and dispute concerning the precipitating experience of the event when the applicant was riding shotgun. He said that the experiences of a person are always an individual matter and that what an individual experiences at a particular time is not what is the immediate precipitating event but rather the internal experience that is the precipitating cause of an ongoing syndrome that we used to call post-traumatic stress disorder (transcript page 164).
62. Dr Peterson was aware that the applicant had been employed for more than 30 years by the ATO but did not regard that employment or its duration as inconsistent with the diagnosis of PTSD. He said that he has treated many veterans for many years and he has observed that those persons appear on the surface to have maintained a successful life but as they approached retirement age or have ceased work, their air of confidence just collapsed like a pack of cards. He said that the applicant, like many other veterans, by dint of vast personal emotional energy sustained effort at work but the effort no longer became sustainable and when claims are made questions are asked of how it could be that they would otherwise appear to be confident and have been able to earn and acquire assets yet have an underlying emotional disorder since the cessation of service. He sees persons in similar circumstances on a daily basis.
63. During the course of his treatment he has observed the applicant as re‑experiencing traumatic events from service which he described as intrusive painful recollections.
64. Dr Peterson was aware that the applicant readily consumed alcohol to excess which satisfied him that he could be diagnosed as suffering from alcohol abuse. He did not have an accurate history of the quantities or regularity of the alcohol consumed but said that regular access and use of alcohol remains a feature of his lifestyle. It was his opinion that the alcohol habit commenced from service in Vietnam.
65. In cross examination Dr Peterson acknowledged that the applicant was referred initially for treatment of stress, depression and for issues associated with separation from his wife. He agreed that matrimonial separation can be distressing and can of itself cause unhappiness. Nonetheless whilst the events in service were not recorded in the first report completed by Dr Peterson it was his clinical impression that there were some events during service which were contributing to the applicant's emotional disorder and over which he then diagnosed GAD.
66. In his second report of 24 August 2006 Dr Peterson referred to three events in service. He referred to the applicant's friend being injured in service, being transported in an open truck and whilst riding shotgun. When he was challenged concerning the description of that event (refer above) Dr Peterson said that he is the applicant's treating psychiatrist and was not engaged solely or exclusively to provide a report compatible with DSM-IV criteria. To do so would expose the applicant to precise interrogation of his experiences which, in a clinical environment, would be counter productive.
67. It was the opinion of Dr Peterson that the two episodes involving the applicant's friend and riding in an open truck contributed to a general feeling of fear and apprehension in a war zone. However, the ambush incident was the final straw. It was his opinion that the applicant's response to that event did involve intense fear, helplessness or horror. He acknowledged that his description of the event was different to the description given by the applicant to other doctors and in evidence namely, there was no evidence of the tree being cleared from the roadway which would have involved the applicant and or the driver removing themselves from the vehicle to do so. He said that his description was not inconsistent with the description that he had been given from time to time by the applicant however there had been a consistency of description by the applicant of his experience to that event and he did expect to be shot. He said the applicant found the event to be distressing and caused him to endure painful recollections which he said was a reasonable precipitant for PTSD.
68. Dr Peterson initially diagnosed the applicant as suffering from alcohol abuse but having described the applicant as also demonstrating tolerance, he acknowledged that was one of the criteria for alcohol dependence which is excluded from the definition of alcohol abuse. He acknowledged that by reason of the applicant consuming alcohol on a daily basis he would be dependent if precise definitions needed to be applied. Whilst not having precise clinical notes of the quantities consumed, Dr Peterson said that there were occasions where the applicant presented for treatment where he had been suffering a hangover which would evidence of prior excessive alcohol consumption.
69. Counsel for the respondent then took Dr Peterson through the diagnostic criteria of the PTSD definition and it emerged that the witness did not have clinical notes which precisely matched the diagnostic criteria of the definition. Counsel persisted and suggested that Dr Peterson did not have relevant details of the events in Vietnam nor did he have details of alcohol consumption. Dr Peterson said:
If that was the focus of our therapeutic interaction, I certainly would have done so and may well do so in the future. But I don't see that it serves a clinical purpose to in an already disturbed individual to bring out the precise nature of his experiences. In some circumstances it's clinically absolutely contra-indicated.
70. When it was suggested that Dr Peterson had been his treating psychiatrist and that he would have been dependent on obtaining an accurate detailed and reliable history which in effect was absent, Dr Peterson said
I absolutely accept that I've not clearly defined the extent and nature of his alcohol abuse but I would dispute that I need to or it's clinically appropriate to bring out the precise details of his experience. That's not the manner in which I would attempt to influence the further progression of his disorder.
71. Dr Peterson was aware of a report completed by Dr Glaser at the request of the respondent. He read the report and was aware of the conclusions that had been reached. Whilst acknowledging that Dr Glaser had reported that the ambush event was very distressing for the applicant, it was not a life threatening event. Dr Peterson said that Dr Glaser had expressed an opinion based on the weight that he had given to the explanation of the event given by the applicant and upon his reconstruction of the event as described by the applicant based on the description given on the one occasion only that the applicant had attended him. Dr Peterson said that he obtained a different clinical perspective of the applicant based on his treatment and the frequency of his attendances upon the applicant. Dr Peterson acknowledged the analogy given by Dr Glaser in his report of persons suffering momentary fear by a misunderstanding of a perceived circumstance or event but said that it was critical to understand that the person's interpretation of what's happening to them at the time (as being) crucial. He said that he often sees veterans who have difficulty describing their emotional life and describing or recollecting experiences. He said it was important clinically and perhaps over time to reconstruct precisely what happened. He said the applicant continued to recall and experience the ambush event and said that particular contact has stuck in his mind and alright it is not well documented and it's open to other interpretations and I agree. But that's my perspective.
72. In re‑examination Dr Peterson said the analogy reported by Dr Glaser were everyday run of the mill and not likely to lead to an ongoing emotional disorder. But on the descriptions given to him by the applicant, he had been serving in a combat zone and ‑
The whole atmosphere is enough to distress just about everyone that has served there and – on necessity, or you don't service, you're alert and alarmed all the time. You may well misinterpret what in other circumstances would be everyday experiences. But you have to. That's part of the combat experience.
73. In re‑examination Dr Peterson confirmed that by reference to the PTSD definitions of alcohol abuse and alcohol dependence it was his opinion that the applicant satisfied the definition of alcohol dependence. He said that he met several of the criteria found within the definition namely, tolerance, withdrawal, excessive consumption, avoidance of events and continuing to consume despite knowledge of the harmful effects.
74. He reaffirmed his earlier opinions that the ambush episode alone is responsible for the PTSD diagnosis and the other events of themselves would not give rise to that diagnosis being made.
dr glaser
75. Dr Glaser is a clinical psychiatrist who examined the applicant at the request of the respondent on 29 April 2008. He provided a report of 14 May 2008 received as exhibit R1. Dr Glaser was seriously ill on each of the three days of hearing and did not give evidence. The respondent relied on his report.
76. The alcohol history obtained by Dr Glaser was of commencing to drink heavily during service. The history obtained from the applicant was consumption by reason of beer being readily available, at a cost of five cents per can and it helped [him] deal with what [he] was dealing with. At the time of consultation the applicant gave Dr Glaser a history of consuming between six and 10 stubbies of full strength beer per day and some glasses of wine on occasions with an evening meal. He said that his present alcohol consumption was less than it had been previously, that he had a prior conviction for exceeding .05 and he now drank in a very calculated fashion which was understood by Dr Glaser to mean that the applicant was implying that he would time his drinking so that he would not ever be caught with a raised blood alcohol content if he was driving. He said that the longest time that he had spent without drinking alcohol had been between 16 and 18 hours, that he drinks daily and he would not allow himself to be in a situation where he would be without alcohol for a few days. He diagnosed the applicant as suffering from alcohol dependence.
77. It was the opinion of Dr Glaser that the applicant suffered from GAD but that condition was not service related and it followed from the factors within the applicable Statements of Principles (SOPs) that alcohol dependence was also not service related.
78. Dr Glaser was aware of the reports written by Dr Peterson and also had copies of his clinical notes. Whilst he found the applicant impressed him as being sincere and distressed, he was embarrassed about talking about his current personal circumstances. He said it would be reasonable for the applicant to continue to have mental health interventions. However he noted that the applicant had coped well since his service in Vietnam, he had been engaged by the ATO for 38 years and had been promoted to the position of auditor. He had undertaken an adult apprenticeship as a motor mechanic and was engaged in part time employment. He noted from the notes of Dr Peterson that the applicant had built a house, had been riding a bicycle, had been engaged in travel including trips to Europe and had been engaged in negotiations concerning a redundancy payment from the Tax Office.
79. It was not his opinion that the applicant suffered from PTSD. He acknowledged that whilst the applicant had been exposed to some stressful events during service they would not satisfy the DSM-IV criteria for PTSD. When he referred to the ambush event it was his opinion that the applicant did not experience feelings of horror and helplessness, he was a little shaky afterwards and was able to continue with his normal duties. On balance it was the opinion of Dr Glaser whilst the applicant had been exposed to
A number of alarming and distressing events but these did not involve the experiencing of or witnessing of life threatening situations. In particular or seeing the tree lying on the road and realising the implications of this (a possible ambush) was clearly very distressing for him the situation in and of itself was not life threatening.
80. Dr Glaser then recorded the analogy which has been the subject of comment by Dr Peterson and Mr Burge concerning a person walking at night time in a neighbourhood with a high crime rate and perceiving a figure in the distance which might cause them to have fear but they later realise it to be a tree or another object. That circumstance was described by Dr Glaser as distressing but would last only for a few seconds, the person would rapidly realise that their life was not in danger and any perceived threat was neither real nor persisting. He said that analogy would equally apply to the circumstance of driving through Saigon in an open truck and the event where the applicant observed a South Vietnamese policeman discharge a gun. He said the applicant's life was not in danger because he was aware that the policeman had been firing in the opposite direction. He acknowledged that the applicant did visit his friend who was in hospital however he did not witness the circumstances of the injuries that had been suffered and it was his opinion that those injuries would not have been perceived by the applicant as being sudden or unexpected.
81. On balance therefore, it was the opinion of Dr Glaser that the history that he obtained did not establish that any of the requisite factors establishing a connection between this gentleman's Vietnam service and his psychiatric problems, as specified in the Statements of Principles exist.
conclusion and reasons for decision
82. The first issue to be determined by this review is a finding on the balance of probabilities of diagnoses.
83. In cases such as the present where PTSD is advocated as the diagnosis it is impossible to move towards making such a finding without drawing attention to the decision of Mines v Repatriation Commission [2004] FCA 1331. In that decision, Gray J decided that a finding of PTSD can only be made if there is a finding that a veteran has been exposed to a traumatic event as defined at paragraph 2(b)(A)(i) and (ii) of Statements of Principles No 3 of 1999. Making such a finding before the fourth stage of the Deledio template (refer Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 27 AAR 144; (1998) 83 FCR 82 is impermissible. However, in the absence of any evidence of an event in a veteran's life other than an event or events in service to which he has been exposed to a traumatic event, it is impossible to make a finding of PTSD before embarking on the four stages of analysis within Deledio. It is not sufficient to adopt the conclusions reached by medical witnesses because applicable SOPs define PTSD and only if the definition is satisfied will the SOP be considered in order to determine whether there is a factor which exists as a minimum raising a reasonable hypothesis of connection with service.
84. I will later in these reasons discuss at some length the evidence of the applicant and the medical witnesses with respect to relevant events which occurred during service but at this stage I think it is sufficient to indicate that I do find, as a fact, that the event where the applicant was of the belief that he was at risk of ambush did constitute a traumatic event as defined within SOPs (which I will identify later). On the evidence of the applicant and the support given to him clinically by Dr Peterson, I am satisfied that the applicant reasonably perceived a threat of death or serious injury as judged objectively from the point of view of a reasonable person in the position of the applicant. That is to say, the experience of the applicant immediately before, at the time of and following the perceived risk of ambush involved the subjective element of him perceiving the risk of actual or threatened death or serious injury and his response did involve intense fear, helplessness or horror.
85. The remaining parts of the PTSD definition are satisfied as follows:
B(ii)Recurrent distressing dreams of the event.
C(i)Efforts to avoid thoughts, feelings or conversations associated with the trauma.
(v)Feeling of detachment or estrangement from others.
(vi)Restricted range of affect (e.g. unable to having loving feelings).
D(i)Difficulty falling or staying asleep.
(ii)Irritability or outbursts of anger.
86. The above clinical criteria are experienced by the applicant in a persistent manner as that qualification is expected by the definition.
87. Part E of the definition is poorly recited because the references to (b), (c) and (d) are erroneous. Reference to the definition of PTSD within DSM-IV indicates at paragraph E that the symptoms which should be considered at this part are those that are found at criteria B, C and D which have been considered above.
88. Paragraph E is satisfied to the extent that the symptoms referred to above do have had a duration of more than one month and they are in the nature of a disturbance. Support for this part of the definition is found within the evidence of Mr Burge at paragraphs 45 and 51 earlier and Dr Peterson at paragraph 63 and 71 earlier. Part F of the definition is satisfied to the extent that the disturbance does cause impairment in social, occupational or other important areas of functioning.
89. Accordingly, I am satisfied and find as a fact, that the applicant does suffer PTSD.
90. Additionally I am satisfied that the applicant suffers from alcohol dependence. That diagnosis was made by Dr Glaser. It was not the diagnosis made initially by Dr Peterson but when the criteria within the definition of alcohol abuse and alcohol dependence were identified to him, he became satisfied that alcohol dependence was the appropriate diagnosis. That concession was made by him because he was satisfied that the applicant did tolerate alcohol which is one of the clinical criteria of alcohol dependence. Accordingly, because that clinical finding exists Part B of the alcohol abuse definition excludes a finding being made of that condition. That is to say, if the clinical findings within the definition of alcohol dependence are satisfied, the definition of alcohol abuse prohibits that condition being diagnosed. Dr Peterson was prepared to change his view and adopt the diagnosis of alcohol dependence (refer transcript page 178‑179).
91. The other elements within the alcohol dependence definition which the applicant would satisfy are those found at numbers:
(2) the consumption of alcohol to relieve or avoid withdrawal symptoms,
(3) often consuming alcohol in larger amounts or over a longer period than was intended;
(5)A great deal of time being spent in activities necessary to obtain use or recover from the effects of alcohol; and
(7)Continued use of alcohol despite knowledge of a persistent or recurring physical or psychological problem.
Three of the seven clinical elements of the alcohol dependence definition must be met in order for the diagnosis to be found. I am satisfied, having regard to the above, that the definition is satisfied and it therefore follows that I am satisfied on the probabilities that the diagnosis of alcohol dependence should be made.
deledio
92. The hypothesis advanced by the applicant was of events in Vietnam being responsible for his PTSD and for his alcohol dependence.
93. The assessment period in this application commenced on 15 May 2006 when the applicant lodged his primary claim and subsequent to that date there have been a number of SOPs with respect to the claimed conditions. At the date of claim Instrument No 3 of 1999 was in force with respect to PTSD. It was subsequently amended (not in any material way) by Instrument No 54 of 1999.
94. From 9 January 2008 Instrument No 5 of 2008 with respect to PTSD has been in force and whilst it recites the same definition of that condition, there are different factors of connection with service.
95. At the beginning of the assessment period Instrument No 76 of 1998 was in force with respect to alcohol dependence or alcohol abuse. Subsequently, Instrument No 17 of 2008 and Instrument No 1 of 2009 have been introduced with respect to those conditions. The definitions have remained constant but the latter Instruments have different factors of connection to the former.
96. Having regard to the Full Federal Court decision of Repatriation Commission v Gorton [2001] FCA 1194 and the Federal Court decision of Keeley v Repatriation Commission (1999) 56 ALD 455; (1999) 30 AAR 48; [1999] FCA 1103 the Tribunal is obliged to consider the reasonableness of the hypothesis advanced by a veteran by reference to a SOP in force at the time of the Tribunal decision. However, if that SOP does not uphold the hypothesis, an applicant may rely, by reason of an accrued right, on an earlier SOP within the assessment period.
97. Subject to the applicant being able to satisfy a factor within a SOP applying within the assessment period, it may be necessary to determine whether a sub-hypothesis can be established with respect to alcohol dependence. However the most recent SOPs with respect to alcohol dependence and PTSD have almost identical factors (with identical definitions) being the experiencing of a category 1A or 1B stressor. If one of those factors is satisfied the process of establishing a sub-hypothesis will not be necessary. However it is noted that the occasion of clinical onset of either a category 1A stressor or 1B stressor differs. In the PTSD SOP the experiencing of either of those types of stressors must occur before the clinical onset of PTSD. In the alcohol dependence SOP the 1A or 1B stressor must occur within five years before the clinical onset of alcohol dependence.
98. The third element of Deledio requires a determination of whether the hypothesis advanced by the applicant is reasonable. It will be reasonable if it fits or is consistent with the SOP template. I am satisfied that the hypotheses, as raised by the applicant, fits within the SOP template and is therefore consistent with it. It follows that the hypotheses as raised are reasonable.
99. Pursuant to s 120(1) of the Veterans’ Entitlements Act 1986, I am not satisfied, beyond reasonable doubt, that the injuries or illnesses suffered by the applicant are not war‑caused. I am therefore satisfied for the reasons that follow that the applicant's claim must succeed.
100. It is unfortunate that Dr Glaser was not able to give evidence in these proceedings. He interviewed the applicant on one occasion only and although he had access to the reports of Dr Peterson and his clinical notes he would not have understood, or comprehended in any intimate sense, the evidence given by the applicant and the support given to his application by Dr Peterson and Mr Burge.
101. Dr Peterson impressed me as a dedicated caring practitioner who has been treating the applicant since 1998. He estimated in evidence that he has attended the applicant on more than 50 occasions. He is also a psychiatrist in practice who has treated many Vietnam veterans. He has noticed similar patterns of behaviour and conduct and there was nothing inconsistent about the presentation of the applicant since 1998 with that of a number of other veterans namely, being exposed to an event which caused a response which is controlled or hidden behind a cloak of what appears to others as successful employment but later becoming overwhelmed and the condition externally manifesting.
102. The applicant served in Vietnam having enlisted as a young man. He did consume alcohol prior to service but not in the quantities or at the frequency that he did during service. He was exposed to a number of events but the most predominant, in my view, was the ambush incident.
103. It was argued that the incident could not have amounted to the applicant having experienced an event that involved actual threatened death or serious injury and nor did his response involve intense fear, helplessness or horror. That proposition was put because the vehicle in which the applicant travelled did not slow down, it swerved to avoid the fallen tree, the episode itself had a duration of three or four seconds, the applicant did not express any concern before or after the incident to the driver or anyone else and there was nothing that pointed to the fallen tree being indicative of the applicant being at risk of ambush or by having to move away from the roadway being at risk of a landmine.
104. It is now well settled that experiencing a threat is not confined to objective assessment or observation only. All surrounding circumstances must be considered.
105. The applicant was engaged principally in signalling type operations. On the occasion of this incident he, and the driver, were travelling alone whereas previously he had travelled on that road in convoy. On the outward journey a tree had not fallen or been felled across the roadway but was present in that position on the return journey. The applicant said that he understood that the presence of the tree in the circumstances could expose him to risk of a landmine if the truck decided to drive around it and or he could be at risk of ambush. He said that he froze and did express to Dr Peterson that he thought that he was at risk of being killed.
106. I am satisfied that the applicant did perceive the threat of serious injury or death from that event and it was a genuine and reasonably held perception. Being the passenger and not the driver, he was helpless and powerless and had no control over the decision to drive around the tree. Other persons who might have observed or heard of the incident might conclude that the conduct of the driver was appropriate. Nonetheless persons might conclude that the threat as perceived by the applicant was no less real, especially by the applicant being in a theatre of war, being relatively untrained to operate as a shotgun and whilst travelling as a lone vehicle as opposed to previously travelling on that roadway in convoy.
107. I am satisfied that the applicant did experience a category 1A stressor defined as experiencing a life threatening event (refer factor 6(a) and paragraph 9 (a) of Instrument No 5 of 2008). The incident did as a fact occur and by regard to the applicant's perception as described earlier it was life threatening. The applicant did not exaggerate or embellish his account of the event or his response, if anything, it was understated.
108. In concluding this part, I adopt the conclusions of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283; (2003) 74 ALD 366; [2003] FCA 334 where at paragraph 50 His Honour concluded:
That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them.
109. Support for the above conclusions was given by the Full Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424. The Full Court then considered Instrument No 3 of 1999 where the relevant factor then adopted by the applicant was him experiencing a severe stressor. That phenomenon was defined by the Instrument as meaning 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 persons or another person's physical integrity.
110. I am not satisfied that a category 1A stressor as defined (experiencing a life threatening event) is, for practical purposes, or in reality, any different to experiencing a severe stressor as defined. The potential outcome for each factor as defined, is the same namely, the threat of death. The threat of death as the applicant perceived is not to be understood as real or objectively judged (Woodward at paragraph 134). The applicant's response is recorded earlier, especially the history taken by Dr Peterson (at paragraph 60) of the applicant being sure of being attacked and then thinking that he had bought the farm (an expression conveying a belief that he though he would die). In the circumstances the applicant then found himself and as he then perceived, especially by that description, it is hardly paranoid ideation nor was it fantasy, baseless imagination or delusion (refer Delahunty v Repatriation Commission [2004] FCA 309 at paragraph 30).
111. There is no clear evidence which would point to the occasion of the clinical onset of PTSD. That need not be considered because the category 1A stressor must occur before the clinical onset. There was no evidence of PTSD prior to the ambush incident and it follows that the ambush incident, the category 1A stressor, occurred before the clinical onset of PTSD.
112. I am satisfied and also find as a fact, that alcohol dependence has its connection with service. The applicant did consume alcohol before Vietnam but it would appear in modest quantities. In his alcohol questionnaire completed on 9 July 1998 (T5), the applicant said that he started to consume alcohol on a regular basis in October 1968. At that time he was drinking four stubbies per day on two or three occasions per week.
113. In the following year, in June 1969, the applicant recorded by the same statement that his alcohol consumption changed significantly, that he was drinking daily at six to eight stubbies per day plus spirits. Whilst he recorded that the reasons for the change in his alcohol habit arose out of cost factor, peer pressure he also recorded helps settle the nerves.
114. The applicant's general practitioner recorded that the clinical onset of alcohol problems occurred on 16 May 1997 (refer page 40 of the T‑documents). It was suggested by counsel for the respondent that that date coincided approximately with the receipt by the doctor of GGT readings from a pathologist which would give an indication of actual or potential organ damage by heavy alcohol consumption (transcript, page 68). It was also suggested that there were periods after Vietnam where the applicant abstained from consuming alcohol but on closer analysis (having regard to the evidence given by the applicant when he was recalled), those periods only occurred on occasions at the end of each fortnightly pay period where there was insufficient funds left from salary to buy alcohol. On those occasions the period of abstinence would be for a few days only.
115. Whilst the applicant may have been influenced to consume alcohol in Vietnam because of its low cost and peer pressure, I am satisfied on the totality of the evidence, that he considerably increased the quantity and frequency of alcohol consumed, by reason of the ambush incident, it being a category 1A stressor (having an identical definition to the definition that appears in the PTSD Instrument) and significantly, in order to meet factor 6(b) of Instrument No 1 of 2009, the category 1A stressor did occur within five years before the clinical onset of alcohol dependence.
116. There is a clear and consistent history on the applicant's evidence and from the file and evidence of Dr Peterson that the applicant did consume alcohol in excessive quantities commencing in Vietnam and subsequently.
117. I think it is unlikely that the clinical onset of alcohol dependence did occur on 16 May 1997 as the general practitioner reported in June 2006 (T‑documents, page 40). That date remains unexplained and was the subject of a considerable discussion towards the end of the first day of hearing. It may coincide with the doctor receiving the pathology reports giving an indication of alcohol consumed, but it does not follow that the onset, clinically, of alcohol dependence occurred on that date.
118. The meaning of the expression clinical onset appears to have consistently followed the decision of Re Robertson and Repatriation Commission (1998) 50 ALD 668 where the Tribunal then decided at paragraph 23:
. . . there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
(refer also Repatriation Commission v Cornelius [2002] FCA 750; Re Witten and Repatriation Commission (1998) 54 ALD 605 and Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484.
119. The analysis of the expression clinical onset is cast in the alternative. It would be open to a doctor to make a finding on investigation which would indicate to him when the disease was present (in the present case 16 May 1997) but alternatively the onset clinically of a disease occurs when the person becomes aware of the feature or symptom which would enable a doctor to say that the disease was present at that time.
120. In the same report of 2 June 2006 where the doctor recorded clinical onset of 16 May 1997, he also recorded that the predisposing factors to the development of alcohol abuse was stress in service in 1969. Whilst I am satisfied for reasons given earlier that the appropriate diagnosis is alcohol dependence, I am no less satisfied that the dependency upon alcohol commenced during service and has remained.
121. In concluding this part I adopt the analysis of the Full Court in Lees at paragraph 16 where it was decided that the expression clinical onset is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.
122. Mr Burge was of the opinion that the clinical onset of the applicant's alcohol problems occurred during Vietnam (refer paragraph 58 earlier). Whilst he acknowledged that he did not have a comprehensive alcohol history, he did say in evidence that the applicant had reported to him that he had drank consistently and heavily from that period of time from Vietnam. Mr Burge did not depart from that opinion when it was suggested to him that his conclusions were not soundly based because of the absence of a complete history (refer transcript page 103‑104).
123. On balance I am satisfied on the probabilities that the clinical onset of alcohol dependence occurred during service or, within five years, as factor 6(b) permits, of experiencing the category 1A stressor in Vietnam, especially having regard to a sustained pattern of alcohol consumption and dependence at the conclusion of his service.
124. In all of the circumstances I am satisfied that the decision of the VRB which affirmed the decision made by the Repatriation Commission to deny acceptance of the condition of PTSD and alcohol abuse is set aside and in substitution I am satisfied that the conditions of PTSD and alcohol dependence are war‑caused. During the currency of the hearing the entitlement of the applicant to pension increased from 60 percent to 70 percent. Counsel for the applicant asserted that the applicant was only seeking an increase in general rate entitlement by reason of him continuing to be employed. In the circumstances it is appropriate that the matter be remitted to the respondent for calculation of entitlement to general rate pension in accordance with these reasons.
125. The remainder of the decision of the VRB, concerning a condition withdrawn by the applicant's representative from this review, is affirmed.
I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Grace Carney Associate
Dates of Hearing 12 June, 31 July and 20 October 2009
Date of Decision 27 November 2009
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Mr G Purcell
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