Jones and Repatriation Commission

[2005] AATA 118

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 118

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/33

VETERANS' APPEALS DIVISION		)
Re		REGINALD JOHN JONES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date8 February 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans’ entitlements – Disability Pension – war-caused condition of PTSD – severe stressors experienced during operational service – reasonable hypothesis – decision affirmed

Veterans’ Entitlements Act 1986

Stoddart v Repatriation Commission [2003] FCA 334 (17 April 2003)

Gerzina v Repatriation Commission [2004] FCAFC 96 (3May 2004)

REASONS FOR DECISION

8 February 2005   Senior Member WJF Purcell         

1.      This is an application for review of a decision of the Repatriation Commission (the Commission) of 4 October 2001 which rejected, inter alia, the applicant’s claim for payment of Disability Pension for the conditions of depressive disorder with alcohol abuse and dependence, and anxiety disorder.  The Commission decided that the medical name for the claimed condition was post-traumatic stress disorder (PTSD).  The Veterans’ Review Board (VRB) affirmed the decision on 16 October 2002.  Mr Ower, in his opening address, stated that the applicant intended to pursue his claim in relation to alcohol abuse, and that he satisfied the appropriate Statement of Principles.  In the course of the applicant’s evidence, Mr Ower informed the Tribunal that the applicant was no longer pursuing his claim in relation to alcohol abuse. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the Commission.  Mr Ower was counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness.  Mr Crowe appeared for the Commission.

3.      The applicant, who is 78 years of age, was born in Mount Gambier, and left school at the age of 13, to work in a local woollen mill.  He served in the Australian Army (the Army) from 7 February 1945 until 21 August 1947.  As he served in Japan, his eligible service is also operational service.  He sailed on the MV Duntroon, embarking from Sydney on 12 March 1946, and disembarking in Kure, Japan, on 9 April 1946.  He left Japan on the HMAS Kanimbla 15 months later, embarking from Kure on 30 July 1947, and disembarking at Sydney on 13 August 1947.

4.      The applicant gave evidence that he was initially stationed at a camp near Kure, about a 20 minute train ride from Hiroshima.  About three days after their arrival, and some eight months after the atomic explosion, he travelled by train to Hiroshima, where he remained for one hour, and was exposed to the three “severe stressors” upon which he relies now:   

(a)      The Devastation Stressor

Observing the destruction of the city, he was overwhelmed by the devastation, destruction and death.  Virtually everything in Hiroshima had been flattened; only two buildings were standing, including the Railway Station, which had no roof.

(b)      The Man with no Legs Stressor

The applicant saw a Japanese man pushing himself along the roadway on a trolley.  He had no legs.  The applicant says he experienced extreme horror – it just about made him weep.

(c)       The Injured Survivors Stressor

The applicant says that he saw a lot of survivors, some of whom were okay, but others had scars on their faces, burns, and withered hands.  He experienced extreme horror.  It was a terrible experience. He was horrified by the severity of the burns, and still has nightmares about “those sort of things”. 

5.      The applicant gave evidence that some 12 months after this visit, immediately before their return to Australia, in July 1947, he and three other soldiers travelled to Hiroshima to have a look, to see if there had been any improvement, but nothing had been done.  He did not refer in evidence to any details of this return trip which he found stressful.

6.      The applicant said in evidence that about three days after his first trip to Hiroshima, he was transferred to the island of Eta Jima, some miles across the waters from Hiroshima.  There was no destruction on Eta Jima, which had been occupied, formerly, by the Japanese Naval Academy.  He remained on this island for six months.  He described to Dr Ewer, Psychiatrist, on 24 September 2001, an additional stressor to the three Hiroshima incidents.  This occurred on the island.  Dr Ewer described this as follows:

“…

4.        Mr. Jones told me that he and other soldiers went to an island which contained numerous caves.  There were explosives, arms, mines and ammunition in the caves.  Engineers were removing the explosives and Mr. Jones had to stand on guard.  He recalls sleeping amongst the sea mines.  He informed me that on one occasion a mine exploded.  He experienced fear and apprehension having to be in such close proximity with so many explosives.

…” [T7/39]

7.      The applicant described to Dr Atchison, Psychiatrist, on 29 May 2002 some of his experiences on the island, which she has described in her report of 13 June 2002 as follows:

“…

Mr Jones also described a frightening experience where he was doing guard duty on a naval island that was full of tunnels.  He told me that the engineers were there carting explosives out and dumping them in the sea.  Whilst on duty one night a load of explosives went off in a trench.  He told me it was “like fireworks” and he was terrified that all the explosives would go off and kill him.

Mr Jones also described one experience where he was bunkered down with sea mines all round him.  He told me that he felt frightened that the mines would go off and injure or kill him.

…”  [T11/58-59]

8.      Dr Atchison considered that the several traumatic experiences during his war service in Japan where the applicant was confronted by civilians with severe physical injuries, and on other occasions, was involved in experiences where he was fearful for his life (ie the alleged incidents on the island of Eta Jima) would fulfil the criteria for “severe stressors” in accordance with the post-traumatic stress disorder Statement of Principles (PTSD SoP).  She was of the opinion however, that he did not fulfil the criteria in DSM-IV for an ongoing post-traumatic stress disorder (PTSD), but fulfilled the criteria for alcohol abuse.

9.      Dr Ewer was of the opinion that the applicant was suffering from PTSD, as he was exposed to a number of traumatic experiences during his time in Japan, including the experiences on the island of Eta Jima.  He considered there was a causal link between the traumas and the development of PTSD.

10.     Mr Ower, in the course of his opening address, stated that the applicant was no longer asserting that any incident on the island of Eta Jima satisfied the definition of a “severe stressor” or a “severe psychosocial stressor”.

11.     The VRB, in the course of its Hearing on 16 October 2002, queried why there was no mention of any concern about a depressive condition when the applicant lodged a claim in September 1999 for “chest condition and stroke”.  Ms Cowdroy asked the question:  “Were you having emotional problems at that time or not?”.  The applicant is recorded as answering “No”.  Ms Cowdroy said “Are your emotional problems something of recent origin?”, to which he replied “Yes” [Exhibit R1/p 9].

12.     The VRB member noted that the applicant’s local medical officer, Dr Booker, stated on the applicant’s claim form, that he was not aware of any problem in regard to depressive disorder, alcohol abuse or anything of that sort; and that he stated that he gained the impression that somebody else had provided those words for the applicant.  The applicant replied that Dr Booker was a private doctor, not a RSL doctor, and was his treating doctor for six months.

13.     Dr Booker’s report was drawn to the applicant’s attention in the course of his cross-examination.  He said that he had not been to a doctor for 22 years until he experienced prostate problems, and had been consulting Dr Booker for 12 months prior to completing his claim.  When asked by Mr Crowe why he lodged this claim in 2001, the applicant said that he had been talking to some friends, and they said to see Mr Tilley, the veterans’ advocate.  He said that he was always meeting people at the Club who urged him to lodge a claim for pension because of his service in Japan.  He said that Mr Tilley completed the form and he signed it.

14.     In the claim lodged on 16 February 2001, the applicant claimed “depressive disorder with alcohol abuse and dependence” due to “seeing the bodies of burned families (women and young children …)” [T5/28]; and stated that he first became aware of the signs and symptoms of the disability “since he was a young man”.  The second claim was for “anxiety disorder” which he attributed also to “Seeing the bodies of burned families (women and young children) …”, and again that he had become aware of the symptoms “since he was a young man”.  It is clear on the evidence that when the applicant visited Hiroshima some eight months after the explosion, he did not see the bodies of burned families (women and young children).  Dr Booker stated in relation to the depressive disorder with alcohol abuse and dependence that the “diagnosis has been made by his representative at RSL, ie not by me … I am not aware of any problem”.  In relation to the second claim for “anxiety disorder”, Dr Booker stated again, that the applicant’s diagnosis was made elsewhere, and that he was not aware of any problems “needs further evaluation by DVA” [T5/29].

15.     The VRB noted in its Reasons for Decision that the applicant started drinking after his enlistment, when he was at Cowra:

“… and his drinking became heavier mainly at weekends after his return to Australia.  His drinking reduced after his marriage in 1949 but later when he did country jobs he would occasionally have a few beers after work.  He said he was never a regular or heavy drinker.”  [T2/6]

16.     At p 15 of the VRB transcript [Exhibit R1] the following discussion took place:

“…

MR JONES:    Beer and wine.

MR ……….:    Beer and wine.  You have a comment here that after you were at age 23 you settled down, apparently in relation to drinking also.

MR JONES:    Yes.

MR ……….:    Could you tell us about that please, Mr Jones?

MR JONES:    Well, I still drank but at these odd times when I was up in the country but I – well, you have to settle down when you got married.  Weekends you would have a few.

MS COWDROY:       So I take it from what you are saying that from the time you got from Japan to Australia while you might have a drink every Friday and Saturday night and the occasional odd times during the week, you really weren’t ever a regular daily drinker throughout?

MR JONES:    No.

MS COWDROY:       That is what you mean about settling down, I suppose.

MR JONES:    Yes.

MR ……….:    What you describe sounds pretty typical of the average Aussie, would that be right?

MR JONES:    Yes.

MR ……….:    In regards to yourself, a pretty average sort of bloke?

MR JONES:    Pretty mild as far as I am concerned.

…” [Exhibit R1]

17.     The applicant’s oral evidence was in not dissimilar terms; and as stated earlier in these Reasons for Decision, Mr Ower interrupted the applicant’s cross-examination to state that the applicant would not be pursuing the claim for alcohol abuse; and the topic was not explored further.

18.     I outline these circumstances in some detail because of their relevance to my assessment of the applicant’s credibility, the genuineness of his claimed symptoms and their relevance to the diagnosis of PTSD.  The applicant concedes that if he does not satisfy the diagnostic criteria for the condition of PTSD, his application cannot succeed.

19.     The applicant lodged his first claim for payment of Disability Pension in September 1999 for “chest condition and stroke”.  It was not until 16 February 2001 that he lodged the claims that led to these proceedings; firstly for a psychiatric condition, the symptoms of which he alleged he had experienced as a young man, but told the VRB were of recent origin; the second condition of alcohol abuse, the symptoms of which he claimed again, he had suffered since he was a young man, but he told the VRB that in effect he had not been a regular drinker since about 1949.  The applicant however, at the suggestion, he says, of those he met at the RSL Club, put in a claim which he says he signed, but did not complete; but in any event he permitted, or instructed, Mr Tilley to complete the claim on his behalf, containing assertions, which on his own evidence to the VRB, and his sworn evidence to this Tribunal, are not consistent with the true situation.  In my view, to obtain a benefit, he permitted, or instructed Mr Tilley to record these vivid experiences of seeing bodies.  This does not mean that I reject the whole of his testimony, but that I prefer to rely on more acceptable evidence in areas of dispute in the evidence.

20.     The VRB considered that Dr Ewer did not comment on certain of the essential criteria for the diagnosis of PTSD.  As the diagnosis of PTSD had not been proven on the balance of probabilities, the VRB determined that the material did not raise a reasonable hypothesis that the veteran suffered from PTSD.  The VRB recorded, in passing, its general view that the evidence of “severe stressors” did not appear to be robust enough to meet the PTSD SoP definition.

21.     The VRB considered also, that the applicant’s evidence at the Hearing, that he was never a regular or heavy drinker, was at odds with the picture presented by Dr Atchison, who provided no evidence to support the contention that the applicant abused alcohol during his war service.  The Board concluded that there was inadequate evidence to lead to a diagnosis of alcohol abuse, and that there was no way to link the applicant’s drinking at whatever level, to a non-existent psychiatric condition.  The VRB affirmed the Commission’s decision.

22.     The Commission maintains that the applicant does not satisfy the threshold issue – he does not suffer from PTSD.  He does not fulfil the description derived from DSM-IV, as set out in the PTSD SoP.

23.     The Commission contends also, that the applicant never experienced a “severe stressor” and does not satisfy factor 5(a) of the PTSD SoP.

24.     I consider that the applicant has found himself now in a real dilemma.  When encouraged in 2001 to lodge a claim because of his service in Japan, he initiated, or acquiesced to the particulars of the claim.  Despite his evidence to the VRB that in effect he suffered no psychiatric or depressive symptoms until post 1999, and that he was never a “drinker”, he has been interviewed by two psychiatrists now, given evidence to the VRB, and pursued his claim to this Tribunal, and given evidence on oath, that is inconsistent, in so many respects, with his earlier statements.  He is now at the end of the legal roundabout.  He presents as a pleasant, good humoured man, for whom all this deviousness is proving somewhat overwhelming.  He has been inconsistent throughout, in my view, in his responses to questions regarding his symptoms, and I am reasonably satisfied, on the evidence, that his experiences, and his symptoms do not fulfil the diagnostic criteria for post-traumatic stress disorder, which are as follows:

“Diagnostic criteria for

309.81 Posttraumatic Stress Disorder

A.The person has been exposed to a traumatic event in which both of the following were present:

(1)the person experienced, witnessed, or was confronted with an event or events that involved actual of threatened death or serious injury, or a threat to the physical integrity of self or others

(2)the person’s response involved intense fear, helplessness, or horror.  Note:  In children, this may be expressed instead by disorganized or agitated behaviour

B.The traumatic event is persistently reexperienced in one (or more) of the following ways:

(1)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.  Note:  In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. 

(2)recurrent distressing dreams of the event.  Note:  In children, there may be frightening dreams without recognizable content.

(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on wakening or when intoxicated).  Note:  In young children, trauma-specific reenactment may occur.

(4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

(5)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma

(2)efforts to avoid activities, places, or people that arouse recollections of the trauma

(3)inability to recall an important aspect of the trauma

(4)markedly diminished interest or participation in significant activities

(5)feeling of detachment or estrangement from others

(6)restricted range of affect (e.g., unable to have loving feelings)

(7)sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

D.Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

(1)difficulty falling or staying asleep

(2)irritability or outbursts of anger

(3)difficulty concentrating

(4)hypervigilance

(5)exaggerated startle response

E.Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month.

F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Specify if:

Acute:if duration of symptoms is less than 3 months

Chronic:if duration of symptoms is 3 months or more

Specify if:

With Delayed Onset:          if onset of symptoms is at least 6 months after the stressor”

A. The person has been exposed to a traumatic event in which both of the following were present:

25.     As to diagnostic criterion A, I am reasonably satisfied that the applicant was not exposed to a traumatic event which satisfies the criterion.  The one hour visit to Hiroshima, and the three incidents of seeing the devastation, the legless Japanese man, and injured people, does not, in my view, satisfy the criterion.  As Mansfied J said in relation to the definition of “experiencing a severe stressor” in the PTSD SoP, in Stoddart v Repatriation Commission [2003] FCA 334 (17 April 2003) at p 14 para 55:

“55.     In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”

26.     In my view, the applicant was not confronted with an event that involved threat of death or serious injury.  He submitted that he observed death and serious injury by the very nature of viewing the devastation.  He observed the effect of the nuclear bomb. The “death” is inherent in the destruction of Hiroshima, and the “serious injury” is evident in both the burns and the scars he observed, and the man with no legs.

27.     I do not accept this submission.  The applicant, when he lodged his claim stated that he saw “bodies of burned families (women and children)”, but he admitted in evidence that this was not so.  Dr Ewer was under the impression that the applicant was in Hiroshima for a lengthy period of time; and Dr Atchison understood he “worked” there.  I do not accept that this event, judged objectively, from the point of view of a reasonable person in the applicant’s position, and with the knowledge the applicant had at that time, was capable of, and did convey, this risk of death or serious injury.  It was not an event which satisfies criterion A(1).

28.     Criterion A(2) requires the person’s response to involve intense fear, helplessness, or horror.  None of the applicant’s various descriptions of his subjective reaction to Hiroshima, are of this level of intensity.  I doubt that if he had experienced intense fear, helplessness or horror, he would return, some 12 months later “for a look”, and to see what had happened since his last visit.  I am reasonably satisfied on the evidence, that his subjective reactions do not satisfy this criterion.

29.     As I am reasonably satisfied on the evidence that the applicant was not exposed to a traumatic event in accordance with diagnostic criterion A, it is not necessary to address the remaining criteria; but because of the volume of evidence relating to these topics, and the views of the medical practitioners, I will address each of them.

B.  the traumatic event is persistently reexperienced in one (or more) of the following ways:

30.     The applicant told Drs Ewer and Atchison that he experienced recurrent and distressing dreams of the event [criterion B(2)], but he told the VRB that he had not suffered any psychiatric problems before 1999.  I am reasonably satisfied that had he suffered a traumatic event, then this criterion was not satisfied.

C.  persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

31.     The applicant maintained that he tried at all times to avoid thoughts and feelings related to his experience [criterion C(1)].  He avoided watching TV or anything that would remind him of the event [criterion C(2)], and he told Dr Ewer he felt detached and estranged from others, and had a sense of foreshortened future and a restricted range of affect [criterion C(5), (6) and (7).

32.     In the light of my assessment of the applicant, I do not accept that he in fact suffered these symptoms.  I prefer to rely upon his evidence to the VRB that his psychiatric symptoms were of recent origin. I am reasonably satisfied that had he suffered a “traumatic event”, then criterion C would not have been satisfied.

d.  persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

33.     The applicant mentions that since the Hiroshima incidents he has had difficulty sleeping.  Dr Atchison reported that the applicant denied any particular problems with sleep patterns [criterion D(1)].  As to the balance of the requirements of the criterion, suffice it to say that his description of his symptoms to Dr Ewer and Dr Atchison were often contradictory, eg he told Dr Ewer at each of his interviews that he suffered hypervigilance [criterion D(4)], and exaggerated startle reaction [criterion D(5)].  Dr Atchison reported that he did not describe intrusive recollection, hypervigilance or flashbacks; and he said in the course of his evidence, that he did not suffer from an exaggerated startle reaction.  I am reasonably satisfied, on the evidence, that had the applicant suffered a “traumatic event” he would not satisfy criterion D.

34.     As the Full Court of the Federal Court (Black CJ, Herry and Bennett JJ) said in Gerzina v Repatriation Commission [2004] FCAFC 96 (3May 2004) at para 5:

“Where a person claims to suffer from a war-caused disease the decision-maker must first determine whether the person suffers from the claimed disease and that issue must be decided to the “reasonable satisfaction” of the decision-maker.  If a positive finding is made on that question, the decision-maker will proceed to decide whether the disease is war-caused, applying the standard of proof in a case of operational service in ss 121 and 3 of the Act, as affected by s 120A.”

35.     I am reasonably satisfied on the whole of the evidence, that the applicant does not suffer from post-traumatic stress disorder, and I so find.  His application for review cannot succeed.

36.     For these reasons, the Tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date/s of Hearing  18/19 May 2004
Date of Decision  May 2004
Counsel for the Applicant         Mr S Ower
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent     Mr A Crowe
Solicitor for the Respondent     DVA