Kelly and Repatriation Commission
[2011] AATA 316
•13 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 316
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2008/5584
VETERANS' APPEALS DIVISION ) Re RONALD GEOFFREY KELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Roslyn Blakley, Member
Date13 May 2011
PlaceMelbourne
Decision 1. The decision of the Veterans’ Review Board under review in these proceeding with respect to lumbar spondylosis and alcohol dependence is affirmed.
2. The decision under review with respect to Post Traumatic Stress Disorder (PTSD) is set aside and in substitution we decide the applicant suffers PTSD and co-morbid Major Depressive Disorder, both conditions being war-caused.
..................[signed]......................
Senior Member
VETERANS’ AFFAIRS – operational service in Vietnam –– fall in trench while intoxicated ‑ lumbar spondylosis – recovery of tank with blood – bodies piled on side of road – gun pointed at applicant ‑ post traumatic stress disorder – major depressive disorder – diagnosis – whether war‑caused
Veterans’ Entitlements Act 1986 ss 6C, 120, 120A, 128
Border v Repatriation Commission (No 2) [2010] FCA 1430
Hunter v Repatriation Commission (2010) 114 ALD 89
Kaluza v Repatriation Commission (2010) FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Mines v Repatriation Commission (2004) 85 ALD 62
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
13 May 2011 Mr John Handley, Senior Member Dr Roslyn Blakley, Member 1. Mr Kelly (the applicant) is a 63 year old Vietnam Veteran who applied for review of a decision of the Veterans' Review Board (VRB) made on 25 September 2008. The VRB decided to affirm a decision made by the respondent on 25 October 2005 refusing the applicant’s claim for acceptance of post traumatic stress disorder (PTSD), alcohol dependence and lumbar spondylosis.
2. The applicant currently receives pension at 90 per cent of the general rate for the accepted conditions of eye strain, sprain of left ankle, migraine, bilateral hearing loss and tinnitus, solar keratosis, osteoarthrosis of the left ankle and foot, tinea and malignant melanoma of the skin.
3. The applicant has also made claims for pneumonia, hypertension, cirrhosis, osteoarthrosis of the right ankle and foot, gastro oesophageal reflux disease and hiatus hernia which have not been accepted by the Respondent.
4. On the first day of hearing Mr Moore of Counsel who appeared on behalf of the applicant, advised that the claim for alcohol dependence was abandoned. Accordingly, the applicant only pursued his claims for PTSD (or in the alternative, major depression and lumbar spondylosis).
5. Whilst the ultimate objective of the applicant is to obtain pension at the special rate, it was submitted that in the event that one or both claimed injuries were accepted, the application should be remitted to the respondent for assessment of pension.
6. Mr Rudge, who appeared on behalf of the respondent, indicated that the respondent intended to call another veteran who the applicant had alleged was present during one of the incidents upon which he relied in support of his claim for PTSD. The Tribunal was advised that the witness suffers a psychiatric illness and whilst he had indicated that he was prepared to give evidence, by telephone, to do so would be distressing for him and requested that his identity be concealed from publication. The application was not opposed and an Order was made pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 restricting disclosure and publication of the witness’s name. The witness will be referred to as PWB in these reasons.
7. Mr Moore summarised the case on behalf of the applicant at the commencement of the hearing.
8. The applicant left school at the age of 13 years and completed a five year apprenticeship as a butcher. He subsequently obtained employment as a shop butcher. He enlisted with the Australian Army on 2 October 1968 and was discharged on 1 April 1971. He served in Vietnam between 20 January 1970 and 21 January 1971 which constitutes operational service as defined in s 6C of the Veterans’ Entitlements Act 1986 (the Act).
9. Prior to his departure to Vietnam, the applicant was trained at Puckapunyal and Bonagilla in the Catering Corps. He also completed jungle training at Canungra.
10. In Vietnam the applicant was a cook in the 106 Field Workshops at Nui Dat.
11. After discharge the applicant resumed his trade as an employee butcher and later as a self employed butcher in a shop that he purchased and operated between 1972 and 1978. He then sold the shop and obtained employment as a stevedore at the Melbourne waterfront. He was promoted to a stevedore supervisor and continued in that employment until 2000. Thereafter, he was an employee in a timber yard and self employed for limited periods as a small goods salesman and a courier contractor. The applicant ceased employment in January 2008 because of his health problems.
12. Mr Moore submitted that the applicant’s lumbar spondylosis is war-caused because during service, the applicant fell into a trench thereby, suffering a trauma. The applicant agreed that he hurt his back during training at Bonagilla while lifting heavy boxes but submitted that it was minimal in nature and had no long term effect.
13. The claim for PTSD, or alternatively major depression, was put on the basis of three discrete events during service in Vietnam. The first episode involved the applicant observing blood on the outside of a Centurion Tank which was being recovered after it had been struck by mortar. The second episode involved the applicant observing a number of bodies stacked in a village where he and others were delivering playground equipment. The third episode involved the applicant being exposed to an incident where he sought to restrain and calm PWB who was arguing with other persons and was pointing and waving his loaded rifle which he had cocked.
LEGISLATION
14. Section 120 of the Act provides that a disease or injury will be war-caused unless the decision-maker is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the injury or disease with war service (s 120(3) of the Act). Section 120A(3) provides that a hypothesis will be reasonable if there is a Statement of Principles (SoP) in force that upholds the hypothesis.
15. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Federal Court set out a four-step process to determine whether an injury or disease is war-caused in accordance with s 120 and s 120A of the Act.
APPLICANT’S EVIDENCE
Lumbar Spondylosis
16. In evidence the applicant said he had not suffered any injuries to his back prior to enlistment. He agreed that he did suffer back pain during training at Bonagilla following an occasion where he was lifting a metal box containing his tools and other kitchen equipment. He said the box was one metre by three quarters of a metre in dimension and was very heavy. In the course of lifting it, he said his back completely gave way (Transcript, p24). Thereafter, he was engaged in light duties for about two weeks and was prohibited from lifting. He said that he recovered from the effects of that incident and thereafter did not suffer any back pain or any restriction in mobility. He completed jungle training at Canungra which involved carrying a machine gun during training manoeuvres. He described the exercises as rigorous but did not suffer any pain (Transcript, p25).
17. The episode alleged by the applicant as giving rise to his lumbar spondylosis occurred in Vietnam in about August 1970. On that occasion, the applicant said he fell into a deep trench. He said he had intended to walk across a platform over the trench. He missed the platform and fell (the applicant agreed that he was drunk at the time). He said he was wedged with his backside resting on the bottom of the trench. He recalled that he suffered immediate lower back pain and was unable to remove himself from the trench. One of his tent mates came looking for him and with the assistance of at least two others was able to remove the applicant from the trench (Transcript, p26). He was assisted back to his tent. The applicant said he had limited movement and was walking slowly. He was unable to get out of bed for two days. Thereafter, he attended the kitchen, was engaged in alternate duties despite being restricted in movement and continuing to suffer pain. He recalled that he commenced to regain greater mobility after approximately one month. The incident was not reported nor was his absence known to the Commanding Officer (Transcript, p 26).
18. In cross-examination the applicant said he suffered enormous pain in his lower back (Transcript, p42) when he fell into the trench. He disputed that he worked as a cook when he resumed after an absence from the kitchen of two days. The applicant was taken to the evidence he gave to the VRB (Transcript, p39; Exhibit R6, p22) where in response to questions from VRB Members, the applicant said that he worked as a cook without lifting (Exhibit R6, p 22). In this review he said that he did not work as a cook, but performed duties of menu planning and ordering produce. He described that work as the duties of the sergeant cook (Transcript, p40). The applicant was adamant that he did not work as a cook or undertake cooking tasks. He said that his sergeant helped cover some of [his] shift. That is, the sergeant on duty performed cooking type work whilst the applicant was performing sedentary duties of preparing menus and ordering stock. He also said that his absence for two days immediately after the accident was not noticed because his sergeant helped him cover some of his shift (Transcript, p44).
19. The applicant explained that he did not report his back pain to medical staff or a Regimental Aide Post (RAP) because the injury occurred whilst drunk and he regarded it as being self inflicted. He said that he had previously been put on notice by the Major and he feared the consequences of having to explain the reasons he fell into the trench (Transcript, p47).
20. The discharge medical questionnaire (T3, p16) asked whether the applicant suffered any knee, back or joint injury. The word joint is underlined. Against that question the yes box is ticked and the no box has a cross. There is a separate reference by the examining medical officer to a left foot injury but no reference to a back injury.
21. When the applicant was before the VRB, one of its Members asked him to explain why he did not record the back injury on his discharge medical form. He said I was keen to go home. I was keen not to write those things just to go home (Exhibit R6, p23).
22. In these proceedings the applicant was asked whether he could explain why he disclosed a left foot injury but did not disclose his back injury. The applicant agreed that he signed the form but could not explain why his back injury was not recorded on it.
Post Traumatic Stress Disorder
23. The applicant alleged that there were three events in Vietnam which gave rise to PTSD.
24. The first event occurred on 19 February 1970 after the applicant had travelled as a shotgun in a vehicle which was sent out to recover a Centurion Tank which had been the subject of an attack the previous evening. He recorded in his statement that its left track was blown off and he had observed blood on the turret which shocked him (Exhibit A1, paragraph 15).
25. The applicant gave a similar history to Dr Gelb who provided a report dated 25 October 2004 (T9, p57). Unlike the applicant’s oral evidence and the description in his witness statement, Dr Gelb reported that the tracks of the Centurion tank had been blown off (T9, p 59).
26. The applicant agreed that an extract from the Commander’s diary of 19 February 1970, appended to his statement and which recorded the recovery of a burnt out carrier, is the same vehicle which he observed. The extract from the diary was appended to his statement to corroborate his involvement in the recovery of that vehicle (Transcript, p72).
27. The applicant said when he arrived at the location of the damaged tank, he noticed that its left hand track had been blown off and he observed blood on its turret. He said the blood appeared to be from:
…a fairly large wound. It ran from the first level of the turret down the side. It appeared like, as they were getting out of the tank, that that blood was probably – obviously dripping from somewhere (Transcript, p28).
The applicant said that the sight of the blood horrified him and he reacted to it for a long time. He also said it gave me something to think about, seriously think about (Transcript, p29).
28. In cross examination the applicant agreed that the Commander's Diary also had an entry dated 19 February 1970 which recorded at 0700 hours Recovery of burnt out carrier. Carrier damaged by RPG fire in major contact night 18/19 Feb in Long Hais.
29. It was suggested to the applicant that if the carrier was burnt out, any blood residue would either be burnt out or would not be recognised. The applicant said that the blood he observed was on the outside of the carrier but it was burnt out on its inside. When the applicant was challenged that the carrier would more likely be engulfed in fire – because the rocket propelled grenade (RPG) would have hit the inside rather than the outside of the carrier ‑ the applicant said It wasn't burnt out all over. The applicant dismissed the suggestion that the heat of the fire would have caused any blood to have dried out or burnt (Transcript, p72).
30. The second event relied on by the applicant occurred in about September 1970. The applicant and some other colleagues travelled to a village to deliver playground equipment they had built during their spare time. On arrival the applicant said that he observed a number of bodies stacked on top of each other covered by a tarp. The heads were facing away from him. However, he was able to see the boots that those persons were wearing. He described his observation as horrific (Exhibit A1, at [19]). He said the bodies were piled in a heap and lacked compassion, and I know we were in a war, but I was very upset about that (Transcript, p30). The applicant maintained his position during cross-examination and was adamant that the bodies were stacked and were covered by a tarp (Transcript, p73).
31. The third event upon which the applicant relied also occurred in September 1970 and involved PWB. The applicant said he knew PWB when they had undertaken advanced training at the cooking school as members of the Nº 1 Company at Ingleburn in New South Wales. The applicant said that he and PWB also socialised together while at Ingleburn.
32. The applicant said that PWB contacted him when PWB was posted to Vietnam and they made arrangements to meet. PWB was located in a logistics unit about one kilometre from the applicant's posting. On the occasion that they did meet, the applicant said they attended the boozer at about 5pm, had a meal together and then returned to the boozer and later they watched a film (Transcript, p32-33).
33. At about 9pm the applicant returned with PWB to his tent which he was sharing with two other persons. The applicant said he did not know those persons nor could he recall their names.
34. Shortly after returning to the tent, the applicant asked PWB how he was settling into service in Vietnam. He said that PWB responded with words to the effect I'm not here to win any friends I'm here to do a job (Transcript, p34). The applicant said in response, You can't have that attitude in Vietnam. The applicant said one of the other persons sharing the tent with PWB then said (to PWB) Listen you want to listen to your friend (Transcript, p34).
35. The applicant said that PWB then became hostile, words were spoken between PWB and the other person in the tent and PWB then walked towards his locker, pulled out his rifle and said Listen this is what you'll get if you don't shut up (Transcript, p34). He said PWB cocked his rifle and a magazine was fitted to it. He said PWB then started waving the gun around. The applicant said he attempted to pacify PWB by standing between him and the other person and on occasions he was looking down the barrel of the rifle. He said after about 10 minutes PWB did calm down. The applicant said he left the tent and from that day he has not had any association at all with PWB. He later heard that PWB was involved in another episode in December 1970 where he discharged his rifle through the tent roof, was returned to Australia and was later discharged from service.
36. The applicant said that the event in September 1970 horrified him and has recurring nightmares about it (Transcript, p36).
37. In cross-examination the applicant was reminded of his earlier evidence where he said that he had never met any members of the family of PWB (Transcript, p32). Mr Rudge referred the applicant to the transcript of the VRB where the applicant told the VRB that he and PWB had socialised together with PWB’s wife and family, that he had been invited to functions at his place and we formed a very very good friendship (Exhibit R6, p 35).
38. The applicant acknowledged that the transcript records him referring to his relationship with PWB. However, in evidence in these proceedings, the applicant said that his comments were referrable to another person who has the same first name and middle name as PWB (Transcript, p74). For the purposes of the remainder of this decision, this other person will be identified as PWS.
39. The applicant also told the VRB that after he transferred to Vietnam he corresponded with PWB. During cross-examination, Mr Rudge referred the applicant to a statement prepared by PWB (Exhibit R5). PWB recorded that he did not correspond with or receive correspondence from the applicant during service in Vietnam. The applicant said that he did write three letters to the kitchen when I first got there of which he was incorporated in that (Transcript, p75). The applicant said that the person he was referring to in his discussions with the VRB was PWS.
40. In re-examination the applicant explained that PWB and PWS were both cooks at Ingleburn and he blended both persons when giving evidence at the VRB (Transcript, p78).
41. The applicant was advised that PWB recorded in his statement that he did not have dinner with him nor did he watch a film with him in Vietnam. When he was asked to comment on that part of the statement of PWB the applicant said I refute that outright (Transcript, p76).
42. The applicant was also examined about his evidence to the VRB where he referred to letters that he had written to PWB. It was at that point in evidence that it was learnt that the applicant had in his possession a diary that he had been maintaining in Vietnam. The diary was produced in evidence (Exhibit A5). On 27 January 1970 there is an entry, 1 4 page [letter] to 1 Company cooks and on 22 February 1970 there is a similar entry, 8 page to the Boys. In evidence, the applicant explained that the boys refers to his former colleagues in the kitchen at Ingleburn (Transcript, p81). On 1 March 1970 the applicant recorded that he wrote a six page letter to PWB.
43. At the beginning of the diary in a section entitled notes the applicant recorded I owe one letter to PWB.
44. In another part of the diary, apparently reserved for addresses and telephone numbers, the applicant has recorded PWS together with the name of his wife and their address in New South Wales.
45. The applicant said that the contents of his diary confirmed his evidence to the VRB that he did correspond with PWB.
46. The applicant was later re-called to clarify the circumstances of his involvement with PWB in his tent.
47. The applicant said that PWB had taken umbrage at comments made by one of the other persons in the tent. That person at all relevant times remained on his stretcher. PWB was standing, holding his loaded rifle. The applicant said that he took a position between PWB and the other person. He said that by PWB waving his gun around, he was indicating to the applicant to get out of the way. The applicant said that he had been looking down the barrel of the gun and was about one metre away from PWB. He said the eyes of PWB were glazed and angry (Transcript, p176). He said he did not report the incident because he was a friend. When it was suggested to him that PWB might be dangerous to other persons, the applicant said it is the greatest thing that I have never done in my life that I didn't report him (Transcript, p176).
48. The applicant acknowledged that he was drunk at the time of the incident with PWB. When asked whether we should have any confidence in his recollection of the events, he said:
… I should say that you would have every confidence, and the reason being that when something as dramatic or drastic as that can snap you to a state of sobriety in an instant (Transcript, p180).
WRITEWAY RESEARCH SERVICES
49. The respondent consulted Writeway Research Services who in turn engaged retired Lieutenant Colonel Barsley to conduct research into the events alleged by the applicant in service. Mr Barsley prepared reports dated 9 March 2005 (T10) and 18 March 2010 (Exhibit R4). He also gave oral evidence before the Tribunal where he adopted the contents of his reports.
50. In relation to the first stressful event, observing blood on the Centurion tank, Mr Barsley said that the Commander’s Diary indicated that the vehicle that was being recovered was not a centurion tank as the applicant alleged but rather was a personnel carrier. Mr Barsley said that a centurion tank is a 50 ton vehicle which has a forward facing gun mounted to the top of a turret. The Carrier referred to in the Commander’s Diary is an armoured personnel carrier being approximately 10 tons which may have been retro fitted in Vietnam with belly armour to strengthen its undercarriage. Mr Barsley said a centurion tank and an armoured personnel carrier have different functions and look completely different (Transcript, p 151).
51. Mr Barsley noted from the Commander’s Diary that the personnel carrier had been damaged by an RPG (rocket propelled grenade). He assumed that the carrier had been struck by an RPG in its engine compartment which caused the fire and the vehicle to be burnt out. He said an RPG punctures the wall of a vehicle and causes damage inside the vehicle. He was unable to say whether there would be intense heat but the reference in the Commander’s Diary to the vehicle being burnt out would indicate the vehicle caught fire after there was an explosion inside the vehicle (Transcript, p151).
52. In relation to the second stressful event, namely, observing the stacked bodies, Mr Barsley reported that his research confirmed there was a project underway to build, erect and install playground equipment (T10, p74). However, he could not find any record of the applicant attending a village as he described.
53. Mr Barsley stated that while not frequent, it was common for convoy drivers to witness dead bodies by the roadside (Transcript, p152, T10, p74). It was the practice of the South Vietnamese troops to collect the bodies of dead Viet Cong persons and display them in local villages for identification purposes. The Vietnamese would lay bodies by the roadside to be collected by the District Chief for burial purposes. Mr Barsley doubted that the bodies would be stacked because the Vietnamese were superstitious and would not have been irreverent (T10, p74). He said that it would have offended the Catholic or Buddhist religion practiced locally and would not have afforded respect to the deceased persons (Transcript, p152-153).
54. Mr Barsley said that Viet Cong persons did not wear boots. They wore sandals made of material that was similar to, if not actual, motor vehicle tyres (Transcript, p153). He was unable to comment on the applicant’s evidence that he saw boots. In cross-examination, he agreed that it was possible that the bodies were covered by a tarpaulin prior to identification and burial (Transcript, p155).
55. Mr Barsley was asked to report on the third stressful incident involving PWB. In his first report, Mr Barsley recorded that the episode in September 1970 which was described to him as the applicant suddenly staring down the barrel of another, was not the subject of any report that he could locate (T10, p77). After he completed that report, Mr Barsley was asked to conduct further investigations. He spoke with PWB. The results of his investigations and the conversation with PWB were reported on 18 March 2010 (Exhibit R4).
56. In his report he confirmed, by reference to service personnel records that the applicant was posted as a cook in the 12 Transport Platoon between 16 May 1969 and 20 January 1970. PWB was posted to the same platoon between 4 July 1969 until 2 September 1970. The applicant and PWB served together between 4 July 1969 and 20 January 1970. The records also indicate that the applicant was posted to the 106 Field Workshop in Vietnam on 20 January 1970. PWB was transferred to the 1st Field Squadron in Vietnam on 2 September 1970.
57. Mr Barsley was aware that the applicant had alleged that his altercation with PWB occurred a few days after PWB arrived in Vietnam.
58. In his report, the contents of which he confirmed in evidence, Mr Barsley summarised his conversation with PWB. He recorded that the initial reaction of PWB to the allegation of the applicant – having a gun pointed at him by PWB, was bullshit. He recorded that an incident occurred in his tent in December 1970 where both he and the applicant were intoxicated. He said to Mr Barsley that there was some malice between them and no persons in the tent were threatened with a weapon. PWB said that he did fire his weapon through the roof of the tent and whilst he was not officially disciplined, he was severely reprimanded verbally and was transferred to HQ Coy 1 ALSG in Vung Tau.
GENERAL
59. Mr Rudge cross-examined the applicant about his circumstances subsequent to his discharge from service.
60. The applicant said he returned to his trade as a butcher in self-employment which he conducted until 1978. Despite his back injury the applicant said that carcasses which were delivered to his shop were broken down by him whilst suspended from a rail. He said he would not lift more than a five or six kilogram cut of meat at any one time. He was working between 55 and 60 hours per week and eventually sold the business because of those hours.
61. The applicant then obtained work on the Melbourne waterfront and continued that employment until 2000. He eventually became a foreman and supervised between four and ten persons at any one time. He was working an average of 45 hours per week. He left the waterfront in about 2000 following the waterside dispute with Patrick Stevedoring and obtained a redundancy payment.
62. He said he intended to become a self funded retiree but after about two months he obtained work as a labourer in a timber yard where he worked about 35 hours per week. He continued that work for 12 months and started his own business delivering small goods. He eventually left that industry and worked as a contract courier with Australian Air Express (AAE).
63. During his engagement with AAE he started work between 3.30 and 4.00am daily and worked until about 4.30 to 5pm. He returned home to look after his wife's parents who were living with him. He then attended the Doncaster/Fitzroy Cricket Club where he was a committee person and a volunteer. He then returned home and completed the paper work associated with his employment for about three hours. He agreed that his engagement with AAE and his other circumstances at or about that time was stressful. He also described himself as an insomniac.
64. Despite the condition of alcohol dependence being withdrawn from these proceedings the applicant was examined about his alcohol habits. Despite objection from Mr Moore, it was contended that Dr Strauss, who examined on behalf of the respondent would give evidence that the consumption of alcohol by the applicant masked his depressive disorder.
65. The applicant said he commenced drinking alcohol before enlistment. He said he drank on Thursdays, which was payday and on Friday night after work and again on Saturday nights after he played sport. He said his consumption of alcohol at that time was light.
66. He agreed that he commenced drinking heavily during training at Puckapunyal. He said he was drinking with a group of eight at the boozer on three or four occasions per week for one or two hours each night after evening meal. He said that seven or eight jugs of beer were consumed by the eight persons during each session (Transcript, p60)
67. His alcohol consumption again increased when he was training at Bonagilla. He was then drinking on three or four occasions per week and on weekends when he was on leave at home. When he was transferred to Sydney for further training, he worked a shift of two days on and two days off. He said that when not rostered to work he would commence drinking at lunchtime, would consume five or six glasses of beer in the afternoon and another six or eight glasses of beer at night.
68. The applicant said that when he arrived in Vietnam, his alcohol consumption again increased because of peer pressure and the culture.
69. The applicant said that he ceased drinking between 1975 and 1977 because it was affecting his business as a self-employed shop butcher. He eventually resumed and said that by the late 1990s and early 2000 his alcohol consumption had got out of hand (Transcript, p63). At or about that time he reaffirmed his earlier evidence that he was stressed because of issues associated with his wife's parents living with him, the hours he was working with AAE (which he estimated to be 60 per week) and his activities with and commitment to, the cricket club.
70. As an indicator of the alcohol consumed by the applicant in 2000, he said he could comfortably drink two or three glasses of wine and three or four glasses of gin and tonic.
71. Mr Rudge referred the applicant to the clinical notes obtained from the Austin Hospital (Exhibit R10). On 20 July 2001 Dr John Cooper, a consulting psychiatrist, recorded that the applicant ceased self-employment because of
…unsatisfactory conclusion – had bought business hoping to build up – never happened – will lose a bit of $ at end of day – would have involved greater risk financially to take business to next level – couldn't take the risk. (Exhibit R10, p30)
The applicant agreed that at or about that time, he had ended his self-employment as a small goods sales person but disagreed with the history that Dr Cooper had taken. He said he ceased employment because he was receiving treatment for a melanoma.
72. In the context of examining the applicant's service in Vietnam, Dr Cooper recorded that the:
…most traumatic thing that happened over there – a soldier was burned to death in his tent – Noel Smith – on the other side of the kitchen – couple of hundred metres away – saw him rushed to helipad – died in hospital later. (Exhibit R10, p31)
73. The applicant said that the reference by Dr Cooper to Noel Smith was a mistake (Transcript, p68). He said he had returned to Australia at the time that Smith died in Vietnam and learned about his death by another cook.
74. The applicant agreed that after his discharge from service, he played cricket until 1983. He eventually joined the Fitzroy/Doncaster Cricket Club where he was the President for about five years until 2000. In addition to the administrative tasks involved with that position, he was also a volunteer at the club and was a cleaner of its club rooms and other facilities.
75. The applicant played pennant squash for three or four years in the 1970s, he ran a marathon annually for three or four years, he has played golf regularly and continues to play 18 holes at the Northern Golf Club where he is a member. In or about 1996 he was running six or seven kilometres on three or four occasions per week.
PWB
76. The respondent intended to call PWB by telephone. There was insufficient time available to call him on the first day of hearing and Mr Rudge intended to call him at the resumed hearing. Mr Rudge informed us that attempts to contact PWB were unsuccessful. We were also advised that PWB has a psychiatric disability. Mr Rudge acknowledged that Mr Moore, on behalf of the applicant, may submit that an adverse inference should be drawn by his failure to appear and greater weight should be given to the evidence of the applicant as opposed to the contents of the statement of PWB.
77. Nonetheless, the signed statement of PWB dated 26 April 2010 was received as Exhibit R5 and is reproduced as follows:
I, [PWB] of [address deleted] in the State of … state as follows:
1.I enlisted in the Australian Army on 9 December 1968 for three years.
2.Following my qualification as a cook I was posted to 12 Tpt Pl at Ingleburn on 4 July 1969. Almost immediately I went to work at the School of Military Engineering (SME) situated in Moorebank Ave, Casula, approximately 5 kilometres from Holsworthy.
3.I am aware that Mr Kelly has provided a description of my relationship with him for the purposes of his claim with the Department of Veterans’ Affairs. I did not socialise with Mr Kelly in Australia. As noted above, it is my recollection that I was sent to SME until posted to Vietnam. I did not invite him to my home and did not introduce him to my wife and son. My second child, a daughter, was born on 14 August 1970 just prior to my departure for Vietnam. I did not correspond with or receive correspondence from Mr Kelly during his service in Veitnam [sic].
4.On 2 September 1970 I was posted to 1 Fld Sqn in Vietnam as a corporal, not 17 Construction Company as alleged by Mr Kelly.
5.I did not go to the movies with Mr Kelly as he alleged. In fact, I never went to the movies during my service in Vietnam. Further, I did not have dinner with him.
6.It is true that I told Mr Warren Barsley that Mr Kelly’s story was ‘bullshit”. I told him “tent incident” occurred on 2 December 1970, not in September when I arrived in country. I admit there was some malice between myself and my fellow tent mates, not Mr Kelly as noted by Mr Barsley. I believe the malice with my tent mates was due to my posting as a Cpl which upset the promotional prospects of my tent mates who were both privates.
7.The incident was over 40 years ago and I admit I was intoxicated at the time. However, it is my recollection that I was in the tent with my two tent mates. Mr Kelly was not present.
8.Hence I did not threaten Mr Kelly by pointing my loaded SLR in his face as he has alleged. Nor did I threaten the two cooks in my tent.
9.I did fire my weapon through the roof of the tent. There was no official disciplinary action taken for the unauthorised discharge; however, I was severely reprimanded verbally and transferred out of the unit to HQ Coy 1 ALSG on 10 December 1970.
10.Later in the month of December 1970 I suffered an accidental laceration of my right little finger. The tendon suture failed and I returned to Australia on 8 February 1971 for further medical treatment. I was admitted to 2 Camp Hosp at Ingleburn NSW on 11 February 1971. I did not suffer a “nervous breakdown” and did not return to Australia under the circumstances described by Mr Kelly.
11.Following my release from hospital I was posted, together with my family, to Singapore for two years.
12.I was discharged from the Australian Army upon the expiration of my engagement on 8 December 1977.
MARGARET KELLY
78. Mrs Kelly is the applicant’s wife. She completed a statement which she adopted save for an alteration at paragraph 12 were she confirmed that her husband ceased work in January 2008, not January 2007 as recorded (Exhibit A2; Transcript, p121)).
79. Mrs Kelly said that she and the applicant married in 1975. Her husband first complained of lower back pain two or three years after they were married. Those complaints have continued to the present time. She said that his back pain interferes with his ability to sleep and be comfortable whilst in bed. He has physiotherapy from time to time and takes Mobic for the pain (Transcript, p125).
80. Mrs Kelly said that her husband never told her that he was a Vietnam veteran. She learnt that her husband served in Vietnam from friends. She has attempted to discuss the circumstances of his service with him but he has resisted. He has told her that he does not wish to talk about service. He has avoided television programs where the Vietnam war is broadcast.
81. Mrs Kelly said her husband suffers nightmares and has poor sleep. She said in recent years the frequency of his nightmares has increased and he sleeps in a separate bedroom because his nightmares interfered with her sleep. On occasions, he has told her that in his nightmares, he is being chased by someone who wants to kill him.
82. Since his admission to the detoxification program at Repatriation Hospital in 2008, Mrs Kelly said her husband has reduced his alcohol consumption from approximately two bottles of scotch per week to one bottle per week. She said that he only drinks alcohol at night.
83. In cross-examination, Mrs Kelly said that she was aware that her husband had spoken to students at St Bernard’s school about his service in Vietnam. She said he had spoken on one or two occasions in the last 10 years. She understood that he was happy to do it and thought it was amazing given that he had not spoken to her about his service (Transcript, p126). Mrs Kelly said that her husband was asked to speak to the students by a person at the cricket club who was a teacher at the school. On reflexion, she thought that he had spoken at St Bernard’s school some time after 2001, when Dr Cooper at the Austin Repatriation Hospital was treating him.
84. Mrs Kelly confirmed that in September 2008 she told the VRB that in the last five years, her husband’s personality had gradually changed and that he had become angry towards her (Exhibit R6, p17). She could not pinpoint the time when those changes commenced and whether the changes started before or after the commencement of treatment in 2001 at the Austin Repatriation Hospital. In this proceeding she said that the changes in the applicant’s personality commenced in the early 2000s (Transcript, p130).
85. At the VRB, Mrs Kelly said that prior to the changes in his personality, the applicant was outgoing, happy, helpful to others and involved in a number of different sports. In 2007 he was working from about 3 or 4am each day until late afternoon. When he came home, he would look after her parents, travel to the cricket club and when he returned home in the evening, he completed his paperwork. She agreed that her husband had always worked long hours. When told that Dr Chin had reported that in November 2007 her husband was overworked, overstressed, overstretched and on the verge of a breakdown, she said that she did not remember her husband ever telling her about a breakdown. Mrs Kelly agreed that at or about that time her husband was aged 59 or 60.
MEDICAL EVIDENCE
Dr Hassan
86. Dr Hassan is a psychiatrist who treated the applicant in the first half of 2008 in the PTSD ward at the Austin Repatriation Hospital where she was employed as a Registrar. From October 2008 when she commenced private practice, she has treated him as a private patient. Initially she saw the applicant on a fortnightly basis and when his condition stabilised, she saw him monthly (Transcript, 87).
87. Dr Hassan prepared a report dated 3 December 2009 (Exhibit A3). In the report she diagnosed the applicant as suffering from chronic PTSD of delayed onset, major depressive disorder (MDD) and alcohol dependence/abuse. The PTSD and MDD are in partial remission. The alcohol dependence/abuse is in remission. She regarded the primary psychiatric diagnosis as chronic PTSD which improved with medication and biological and psychotherapeutic treatment she had administered.
88. Dr Hassan said that the alcohol abuse/dependence and MDD diagnoses were bound up with the primary diagnosis of PTSD, or overlaps. She also said:
…the symptoms often overlap, but often there is a co-morbid diagnosis for a person who suffers from PTSD. It’s very difficult to not develop a depressive disorder. (Transcript, p88).
89. In cross-examination, Dr Hassan said that she had read the reports completed by Dr Strauss, a psychiatrist engaged by the respondent, who expressed the opinion that the applicant had a major depressive illness which is constitutionally based. Dr Hassan said she understood the expression constitutionally based to imply that the applicant was predisposed to depression because of either a strong family history of depression or the applicant’s experiences as a child. Dr Hassan said she did not agree with that opinion. She acknowledged that there is one member in the applicant’s family who had psychiatric issues (his mother) however, she said that is not sufficient, without knowing the full story, to draw the conclusion that Dr Strauss came to.
90. She was aware that Dr Strauss expressed the opinion that the applicant had used alcohol to self-medicate and deal with his depression, but now that he is not drinking the depression has become significant. Dr Hassan again was not of that opinion. It was her view that alcohol is a maladaptive coping strategy and the applicant consumed alcohol to avoid the symptoms of stress and PTSD which were emerging. She said the applicant did not have a coping strategy and his reduction in alcohol consumption brought PTSD to the fore (Transcript, p89).She acknowledged that Dr Strauss was of the opinion that his reduction of alcohol had brought depression to the fore.
91. Dr Hassan was referred to the notes of Maureen Peck, an alcohol counsellor who also treated the applicant at the Austin Repatriation Hospital. Ms Peck made notes about a family history of alcoholism. Dr Hassan was aware that the applicant’s parents had consumed alcohol, more so his mother than his father. She said that it did not follow that the applicant consumed alcohol because he observed his parents consuming alcohol. In the context of the effect parents’ drinking may have on a child, she said it was multi-factorial and it was important to understand the applicant’s circumstances. She said the applicant had grown up in a family with strong religious doctrine, he did not commence to drink until the age of 19 and was therefore, not attracted to alcohol as a young man. The applicant experienced a personal tragedy with his mother’s illness and he took on a lot of responsibilities within the family, particularly his younger siblings. It followed, in her opinion, that the applicant’s consumption of alcohol was not necessarily constitutional.
92. Dr Hassan emphasised the impact of early development and said that it is important for protectiveness for whatever life throws at you. She noted that the applicant had:
… healthy attachments with primary caregivers in the early years went well for him. It was in his teenage years where he was exposed to his mother becoming unwell and at that time, he didn’t manifest any signs of distress or stress… He wasn’t delinquent, he finished school… he was going to church on a regular basis. (Transcript, p94)
She said that as an adult, the applicant enjoyed a long-term relationship with his wife and children. On balance, she was of the opinion that the applicant was not predisposed to developing a psychiatric disorder (Transcript, p88 and 94).
93. Dr Hassan was aware that the applicant was a light social drinker before enlistment and that his drinking increased during his training, escalating to drinking enormous quantities of alcohol whilst in Sydney before being deployed to Vietnam. She said that he was in an environment where alcohol was easily accessible, either at a discounted price or free. The availability of alcohol and peer pressure predisposed the applicant to excessive alcohol consumption during his army training before he served in Vietnam.
94. The Tribunal asked Dr Hassan whether the applicant was predisposed to alcohol dependence because of the circumstances of the applicant’s family. She could not provide a definitive answer. She said that even if the applicant had not enlisted in the Army or served in Vietnam it could never be known whether he would have eventually suffered from alcohol dependence or abuse. She said that we will never know whether the influence of the army experience in Vietnam actually holds the key to that or not (Transcript, p97).
95. Dr Hassan was also aware that the applicant did not increase the quantities of alcohol consumed after his Vietnam service. She thought that when he returned from Vietnam, he had adequate mechanisms to cope with PTSD because his personality was stable and he was very active. Therefore, he did not need to increase his substance use (Transcript, p98). She was aware that he was actively engaged in the cricket club, he was working long hours, he cared for his parents-in-law and had few hours of sleep daily. She said activities of that type pointed to marked avoidance. She added:
…he kept himself as busy as he possibly could with as little sleep as possible because the sleep brought the re-experiencing symptoms… (Transcript, p 98).
96. Mr Rudge then cross-examined Dr Hassan on the basis for her finding PTSD as opposed to MDD. He referred her to the applicant’s evidence before the VRB, where he said he increased his alcohol consumption after he ceased work as a waterside worker. The applicant explained that he was more upset and consumed alcohol to camouflage how he was feeling. Mr Rudge also drew to Dr Hassan’s attention the applicant’s evidence that he would come home and [he would] just be feeling down for no apparent reason and [he would] drink … (Transcript, p99). Dr Hassan agreed that description was indicative of depression. However, she said that depression was also a clinical feature of PTSD.
97. Dr Hassan said that the applicant’s PTSD was of delayed onset and his symptoms had become marked over the last 10 years at, or about the time he ceased employment. When the symptoms come to the fore, he was confronted with the reality that his service had affected him and he was not coping. He felt shame and had difficulty accepting that a man with his level of success and standing was unable to cope with his experiences. These feelings acted as a trigger for MDD. (Transcript, p99 -100).
98. Dr Hassan was aware that the applicant had given a history that he observed a soldier rushed to hospital by helicopter after being burnt in his tent. The soldier later died in hospital. She was not aware that the applicant was not in Vietnam at the time of the incident and therefore, could not have witnessed it. She said that the applicant told her that the most traumatic incident he experienced was PWB pointing a gun at him (Transcript, p102). She said the applicant has a traumatic memory of that experience which has resulted in re-experiencing symptoms of PTSD (Transcript, p102).
99. In relation to the burnt soldier, Dr Hassan explained it was not uncommon for patients who become distressed when learning of an incident to later give a history that they witnessed the event. She said that it assists the treating psychiatrist to assess the patient and treat the symptoms as a consequence of the distress that is experienced.
100. Dr Hassan said that the applicant was probably able to picture in his mind the setting of a person that he knew being burnt to death. She said that he would find that distressing, even if he did not witness it. She said that type of circumstance would allow a person to be one step protected from actually having their own traumatic memory of it, but it is still a distressing thing (Transcript, p109).
Dr Strauss
101. Dr Strauss is a consultant psychiatrist who examined the applicant at the request of the respondent on two occasions. He provided reports dated 15 September 2009 (Exhibit R1) and 6 May 2010 (Exhibit R2).
102. Dr Strauss reported that the applicant suffered MDD. He did not believe that the applicant suffers from PTSD because he does not have the symptoms to justify such a diagnosis.
103. The applicant told Dr Strauss about PWB pointing a gun at him in the tent while intoxicated. Dr Strauss understood that this was the frightening event that gave rise to his illness. He conceded that the event would be frightening. However, on the history he obtained, Dr Strauss said that it was only recently that the event caused the applicant concern. He acknowledged that the applicant did have significant psychiatric problems (Transcript, p136) but in his opinion, they were related to depression rather than to anxiety.
104. Dr Strauss said that he was not convinced that the tent incident was substantiative enough to be responsible for the applicant’s problems (Transcript, p136). He was satisfied that the applicant was exposed to parents who consumed alcohol heavily, the applicant himself had consumed alcohol heavily before departing for Vietnam and there was no history of the applicant increasing alcohol consumption after his service. He concluded:
…But when you are hanging everything on one particular incident that went on for 10 minutes, many, many years ago, particularly in a case like this, where that is all there was, then I am not convinced that that is the diagnosis. (Transcript, p136)
105. Dr Strauss was informed that the clinical histories obtained during the prehearing preparation of this application revealed that Dr John Cooper treated the applicant in the Veterans’ Psychiatric Unit at the Austin Repatriation Hospital in 2001. He was told that Dr Cooper obtained a history from the applicant that the most traumatic event was observing another soldier being taken to hospital by helicopter having been burnt in a tent fire. Dr Strauss was also told that a similar history was given to Dr Gelb in 2004.
106. Dr Strauss thought it was impossible to reach conclusions about the affect of traumatic events when some of them are not disclosed to treating or medico legal doctors.
107. In cross-examination, Dr Strauss was referred to Dr Hassan’s opinion that the applicant suffered from PTSD and the symptoms came to the fore when alcohol consumption was reduced in 2008. Dr Strauss said in his opinion the depression suffered by the applicant came to the fore when alcohol was reduced. He said that Dr Cooper had in fact diagnosed PTSD in 2001. It therefore followed that symptoms of PTSD did not come to the fore in 2008 after the applicant was admitted into the Veterans’ Psychiatric Ward for detoxification.
108. Dr Strauss said that the applicant was vulnerable to suffering from depression because of his family history. In his opinion, the depression that the applicant now suffers had been masked for some years because he was consuming large quantities of alcohol. Dr Strauss also noted that the applicant did drink large quantities of alcohol before service in Vietnam commenced. Whilst acknowledging that the applicant was probably exposed to peer pressure, he was also vulnerable at that time because of his personal circumstances.
109. Dr Strauss re-affirmed that he was not of the opinion that the applicant suffered from PTSD because he had obtained a history that the applicant had on four occasions, attended schools and talked to students about his experiences in Vietnam. He thought if a person had reacted to service in such a way as to justify a diagnosis of PTSD, talking to students about those circumstances would have been rather difficult (Transcript, p138).
110. A history was taken from the applicant that he had been a self-employed courier for many years, started work at 3 or 4 am and worked long hours. He was involved with the Fitzroy/Doncaster cricket club, he cared for his wife’s parents and he worked into the night completing paperwork. The applicant was also drinking heavily and having very little sleep. Dr Strauss held the opinion that based on that history, the applicant was becoming increasingly anxious, tense and not coping. He noted that the applicant was then approaching his 60th birthday and probably losing his resilience which was also weakened by him drinking heavily. He disagreed with an opinion expressed by Dr Hassan that the applicant was working long hours to avoid the distress of PTSD. Dr Strauss thought that was a generalisation. In his opinion, PTSD does not dictate whether you work very hard or not at all (Transcript, p140).
111. On balance, Dr Strauss was of the opinion that the clinical onset of depression occurred recently in the last three or four years. He said that his alcohol consumption masked the depression for many years. The symptoms did not manifest until about the time the applicant ceased work.
112. Dr Strauss reported that the applicant’s psychiatric condition is constitutionally based. In cross-examination, he said that the applicant’s mother had been admitted to a psychiatric hospital and both his parents were reasonably heavy drinkers. He said that he suspected that they both suffered depression because it’s well known that people who are heavy drinkers often mask depression by drinking heavily (Transcript, p141).
113. Dr Strauss thought that the applicant’s cognitive function, memory and concentration were affected by the excessive quantities of alcohol that he had consumed for many years. He suspected that the applicant’s recollections of service events had been mixed up in his mind. This may explain why the applicant claimed that he was frightened after he witnessed the burnt soldier being rushed to hospital and later claimed that he was frightened after having a gun pointed at him in the tent. Dr Strauss said it was difficult for him to determine or judge the reliability of the histories that the applicant had given to doctors.
114. Dr Strauss acknowledged that the applicant gave a history of having nightmares in which he was chased by a person trying to kill him. He accepted that PTSD could have a delayed onset and that a person could consume alcohol to mask the symptoms of PTSD. He said it can be difficult to obtain an accurate history from a person who has abused alcohol and who does suffer from PTSD and depression.
115. Dr Strauss noted that in 2001, Dr Cooper diagnosed PTSD after the applicant told him about an event which he then regarded as significant, namely the burnt soldier. In 2008, when the applicant was going through detoxification and receiving treatment for his alcohol dependence, he gave a history of the gun incident which he considered to be significant. However, Dr Strauss said:
…even if this man was abusing alcohol in the early 2000s, I still have difficulty understanding why it was that he associated his alleged distress at that time with an event completely unrelated to the one he is focusing on now. (Transcript, p146)
116. Dr Strauss acknowledged that a therapeutic relationship develops between the patient and the treating doctor where with time, the patient is prepared to reveal events that are frightening or hurtful. Nonetheless, he thought that the applicant, having attended Dr Cooper on three occasions would not have had anything to hide. He accepted that a person may repress a memory where a gun was pointed at him because it was hurtful. However, having a gun pointed at you would be just as hurtful as seeing someone burnt to death. Dr Strauss said Why would you mask … having a gun pointed at you with an episode where somebody burnt to death (Transcript, p147).
117. Dr Strauss conceded that it was possible that the gun incident was much more significant to the applicant than the burnt soldier incident. However, his opinion was based on the history that he was given. The depressive symptoms, in his experience, were more observable and easier to identify. Despite cross-examination by Mr Moore, Dr Strauss was not convinced that the applicant suffered from war-caused PTSD. He did not believe that the gun incident had been put out of his mind in the early 2000s because it has more significance than anything else. I’m just not prepared to accept that (Transcript, p147).
MEDICAL RECORDS, CLINICAL DATA AND OTHER DOCUMENTARY EVIDENCE
118. Prior to the commencement of the hearing of this application, a large quantity of medical, clinical and other data was obtained by the respondent pursuant to s 128 of the Act. It was copied and forwarded to the applicant’s solicitors and lodged with the Tribunal. The contents of the records provide a useful chronology of the illnesses and injuries suffered by the applicant. A great deal of the material identified and summarised below was not referred to by either party during the hearing.
Back Injury
119. In the course of his evidence, the applicant confirmed that he suffered back pain during recruit training at Bonegilla. For the purpose of his claim for lumbar spondylosis, he relied on having fallen into the trench in Vietnam.
120. The applicant’s service medical records provide that the applicant attended Fawkner for treatment of back strain on 16 February 1969 (T3, p13). He also attended for back strain on 17 February 1969 (T3, p13).
121. In his Discharge History Questionnaire dated 16 February 1971, the applicant did not disclose or volunteer a back injury arising out of him falling into the trench in August 1970 whilst in Vietnam (T3, p16).
122. The respondent produced a Medical History Sheet dated 2 June 1971 (Exhibit R14). The medical officer recorded that the applicant reported symptoms of ache side of back after activity and that those symptoms were first noticed in 1969 and 1970. The explanation for the backache was:
…bending down to pick up a heavy tin containing cooking utensils – sudden sharp pain of back 1969 – Bonegilla. Five weeks before he could bend down and pick up something with confidence. Now gets occasional ache esp. after playing football. No radiation down legs.
The medical history sheet records the provisional diagnosis of the back as ? strain of sacrospinalis incap – neg ? disc lesion.
123. On 3 April 1974 an insurance company who was considering a proposal by the applicant for life insurance wrote to the respondent enquiring into injuries or illnesses associated with his service. An officer of the respondent replied on 26 April 1974 confirming the acceptance of eye strain and sprained left ankle but also added he also suffers from Lumbo Sacral Sprain but this is not considered to relate to his war service (Exhibit R7, p2). It is apparent that the respondent was aware in 1974 that the applicant suffered back pain. Presumably a claim for a back condition was made prior to April 1974. While there is no documented evidence of such a claim, the applicant made a claim for lumbo sacral sprain on an unknown date (T documents, List of Not-accepted injuries).
124. The first documented claim for a back injury was on 2 August 1996 (Exhibit R7). The applicant describes the injury as back problems and the relationship to service as altered stance and gait due to A/D of ankle problems trauma on service (Exhibit R7, p15). In 1996 the applicant was being treated by Dr McLean of the Melville Road Clinic in Pascoe Vale. Dr McLean recorded the following notes on the back of the claim form (Exhibit R7, p16):
Patient states he hurt back originally with army 1969 (I have no record of back injury until 4.5.92). Hurt back bending over at work 1996.
Hurt back in army in 1969. (According to Mr Kelly – was in hospital in Wangaratta).
4.5.92 seen with backache – referred for physiotherapy.
7.3.96. Hurt back at work – physiotherapy/Voltaren.
125. Dr McLean’s clinical notes were also before us (Exhibit R8). While his notes are difficult to interpret, there is an entry on 4 May 1992 which records backache and lumbar spine (Exhibit R8, p11). The entry on 7 March 1996 records hurt back [illegible] (requires to bend over a lot) at work. o/e c/o pain lumbar area (Exhibit R8, p16).
126. The clinical file of Dr McLean also contains some Workcover medical certificates. On 7 March 1996 Dr McLean completed a certificate confirming the applicant’s incapacity from 7 March 1996 to 11 March 1996 for the injury of Ac lumbar back pain and the diagnosis of Ac lumbar back strain (Exhibit R8, p28).
127. The applicant made a claim for workers’ compensation on 7 March 1996 (Exhibit R12, p46). The form provides that the applicant reported lower back strain on 6 March 1996 and that the injury occurred when the applicant bent down to hook belts onto cars and felt a sharp pain in his lower back. Part of the form is reserved for completion by the injured worker who is asked the question Have you had any previous pain or disability in the area of your present injury/condition? If yes, please give details. The recorded answer is No.
128. The applicant made a claim for acceptance of back problems (together with other injuries that were the subject of this review) on 16 August 2004 (T6, p31). The signs and symptoms of the back problems were recorded as constant back pain. The connection between injury and those symptoms and service is recorded as trauma to the back whilst on active service. The applicant recorded that he first became aware of those signs and symptoms in 1970.
129. On 14 September 2004, Dr Moffit, the applicant’s treating doctor, completed a medical questionnaire. He recorded a diagnosis of scoliosis and spondylosis of the thoracolumbar spine (T8, 40-41) and relied on an x-ray taken on 14 April 2004 (Exhibit R11, p134). Dr Moffitt recorded that he had obtained a history from the applicant of having experienced initial back pain in Vietnam after a fall into a trench… Later in the form he recorded I believe his spondylosis and scoliosis of the thoracolumbar spine was caused initially by a fall into a trench in Vietnam in approximately 1970.
130. On 17 October 2005 Dr Moffitt completed another questionnaire with respect to the condition of lumbar spondylosis and recorded that the applicant suffered an injury when he fell into a trench and felt pain in his lower back (T13, 90-91). He added, [the applicant] didn’t report his injury at the time as he was drunk and didn’t want to get into trouble. He found the applicant had symptoms of low back pain radiating to both legs with the L leg more (painful). He also recorded the applicant had suffered symptoms continually since his initial injury in 1970.
131. On 25 October 2004 the applicant attended Dr Gelb, a consultant psychiatrist at the request of the respondent. Dr Gelb took a history of the applicant having wrenched his back during Vietnam service when he fell into a trench and was found in the early hours of the morning and taken back to his bed (T9, p60).
132. Peter Cross, a former colleague of the applicant, prepared a statement. He recorded that in Vietnam, the applicant was found in a trench… he was bought back to our tent. Ron could not work the next day and his shifts were shared by the other cooks. He also recorded that the applicant did not report the incident as he did not want to say that he was intoxicated and therefore, bring attention to our tent (T‑documents, pxxxviii).
133. Mr Neil Wise, a physiotherapist, prepared a report dated 12 July 2010 (Exhibit A4). Mr Wise recorded the applicant had been under his care since 1992 and had subsequently attended on a number of occasions for treatment of lower back pain.
134. The respondent referred the applicant to Dr Steven Hall who provided a report dated 12 October 2009 (Exhibit R3). Dr Hall obtained a history from the applicant of falling into trench in Vietnam whilst in a drunken stupor. He also recorded that the applicant did not report the incident because he was intoxicated. The injury was covered up by his colleagues which the applicant told Dr Hall:
…was apparently easy to do since his work in the kitchen involved shift work. He would sit in the kitchen but was not actively involved working for a period of time after the incident.
135. The clinical material includes three radiology reports namely, an x-ray report of the lumbosacral spine taken on 25 October 1996 (Exhibit R8, p133), an x-ray report of the applicant’s thoracolumbar spine and sacroiliac joints on 14 April 2004 (Exhibit R11, p134) and a report of a CT scan of his lumbar spine on 16 September 2004 (Exhibit R11, p128).
Stressors
136. During the hearing there was considerable controversy about whether a number of claimed events in service actually occurred and if they did, whether a connection existed between them and any illness or injury. Indeed, there was considerable controversy concerning the diagnosis for the applicant’s conditions. This will be the subject of analysis below.
137. The documents before us indicate that the applicant first made a claim for the injuries that were the subject of this review on 30 April 1996 (Exhibit R23). The applicant claimed PTSD and migraines, which were alleged to have arisen because of the stress of service. The specific circumstances of service were not recorded. However, the claim form provides that further information to come from Dr J Cronin when available.
138. In response to that claim, the respondent arranged for the applicant to be examined by Dr Trudy Kennedy. She was not called to give evidence but did complete a report on 12 July 1996 (Exhibit R7, p3-4). While her letterhead does not specify her qualifications, she is known to have practiced as a psychiatrist.
139. Dr Kennedy recorded that the applicant served in Vietnam and that he had a history of migraine in the preceding 12 months which she understood to be the origin for the claim for post traumatic stress disorder. She recorded that the applicant served as a cook in Vietnam in a unit that moved and repaired trucks and that he sometimes rode shotgun during his lunch hour or time off… She did not record a history from the applicant of any other event during his service and recorded that the applicant told her that he did not really feel that his war service was a bad experience. She concluded that there was no evidence of post traumatic stress disorder.
140. Five days later, Dr Cronin completed his report (Exhibit R7, p5-8 and Exhibit R9) as contemplated when the claim of 30 April 1996 was made.
141. Dr Cronin took a history that the applicant had served in Vietnam as a cook and the cookhouse was a good and stable environment. Nonetheless, there were one or two distressing incidents that he will never forget. One of those incidents was an occasion where the applicant travelled to a village the day after a battle and seeing bodies piled up. The applicant told Dr Cronin that it was a shocking experience which he had not forgotten; he felt devastated and continued to remember that there were children wandering throughout the village.
142. The applicant told Dr Cronin that the other incident was a terrible performance by a Philippine band during a concert he attended while on leave. Dr Cronin noted that Normie Rowe was in the audience and was pressured to sing against his will. Rowe performed and the applicant said that his performance was worse than the Philippine band and he had been booed off the stage. The applicant felt shattered and said he identified with Normie Rowe.
143. Dr Cronin concluded that the applicant felt emotionally strong whilst in Vietnam and was strong when he came back but this has been chipped away at over the years. He thought the applicant had some generalised anxiety that he considered to be related to his developmental experiences and being exacerbated by his father’s death. He reported that the migraine headaches the applicant was experiencing had resumed since his father’s death.
144. Dr Moffitt referred the applicant to Dr Cooper in the Veterans’ Psychiatry Unit of the Austin Repatriation Medical Centre. The applicant consulted Dr Cooper on 20 July 2001 and his clinical notes were tendered into evidence (Exhibit R10, p30‑33).
145. Dr Cooper records that the applicant’s service in Vietnam was relatively good – nothing untoward (Exhibit R10, p31).He also recorded that the applicant’s unit had been involved in retrieving tanks and APCs (armed personnel carriers) on a fortnightly basis where the applicant would volunteer as the shotgun. The applicant described to Dr Cooper an occasion where someone had panicked because they thought they had been fired on and the applicant was petrified because he thought we were under attack (Exhibit R10, p31).
146. A significant issue in this matter was the incident involving the burnt soldier. Dr Cooper recorded that the most traumatic thing that happened to the applicant was Noel Smith, a soldier being burnt to death in his tent a few hundred metres away from where the applicant was located in the kitchen. The notes provide that the applicant observed Smith being rushed to helipad. Dr Cooper also recorded that the applicant continues to wake at night time from dreams about it – in dream run down to his tent, people running down screaming – dream occurs about a few times per month. (During the hearing, the applicant acknowledged that he did not observe that event and that he was not in Vietnam at the time it occurred. He knew Noel Smith and when the applicant returned to Australia he was advised by others that Smith had been killed in the circumstances described). Dr Cooper did not mention any other event during the applicant’s service in either his notes or his reports.
147. In July 2002 the applicant completed a cigarette smoking questionnaire and recorded that while in Vietnam, he was smoking 100 tailor made cigarettes per day (Exhibit R7, p70). This is consistent with the history obtained by Dr Gelb (T9, p61). In addition loneliness and peer pressure, the applicant recorded that he smoked cigarettes because of fear from life threatening events, horrific sights… The applicant did not specify the event or events which caused him fear or the horrific sights.
Recovery of Centurion Tank
148. Dr Kennedy (Exhibit R7, p3) recorded the applicant sometimes rode shotgun during his lunch hour… Dr Cooper recorded the applicant was involved in reconnaissance – retrieving tanks and APCs would volunteer to ride shotgun on recovery vehicles – about fortnightly… (R10, p31). Dr Kenny in a report to the respondent of 30 June 2002 reported that the applicant’s unit was a recovery unit. That meant going out to pick up tanks etc. He said he would go out riding shotgun. He would be apprehensive and it really opened up his eyes (T5, p21).
149. Dr Gelb reported on 25 October 2004 that whenever a tank or an APC was required to be recovered, the cooking staff who were not on duty were approached and asked to ride as shotgun. He reported that the applicant told him that he performed that duty on eight to 10 occasions. He reported that on the final occasion, the applicant was part of a team recovering a Centurion tank. The applicant told Dr Gelb that he saw blood on the tank that shocked him and he described having experienced a panic attack at the scene (T9, p59).
150. The applicant relied on the Commander’s Diary narrative, which was appended to his statement (Exhibit A1). The diary recorded that on 19 February 1970 persons in the 106 Field Workshop recovered a burnt out carrier which had been damaged by fire from a rocket propelled grenade during the previous evening. The Commanding Officer who completed that report was Major Nolan. The applicant said that entry in the Commander’s Diary corroborated his evidence that he attended to recover a Centurion tank, despite the reference in the diary to recovery of a carrier (Exhibit A1 at [15]).
151. Mr Barsley from Writeway Research Services, gave evidence about the distinction between a carrier and a Centurion tank. In an email of 19 February 2005 to Mr Barsley, Mr Nolan said that catering staff were on many occasions sought out to escort recovery crews on tasks away from Nui Dat (T10, p78). He reported that a number of Centurions were recovered during the year. In most cases the wheel station was damaged by a mine without injury to crew but there was an occasion where a mine was set off under the centre of the tank and the crew sustained injuries. Mr Nolan said he could not recall who was in the recovery crew on that occasion. There is no further information about the recovery of the tank (which resulted in injuries to crew) and it is unclear whether that recovery was the incident recorded in the Commander’s Diary narrative on 19 February 1970.
152. Peter Cross who appears to have been a former serving colleague of the applicant recorded that we regularly rode shotgun on the recovery truck depending on the shifts… (T-documents, p xxxviii).Brian Milner recorded that duties sometimes included being a shotgun escort to and from the recovery of damaged vehicles (T-documents, p xxxix).
Observing Bodies
153. In his statement, Mr Cross recorded that there was an occasion where Ron reported what he saw at Swan Moc the bodies stacked after a contact the previous night (T-documents, pxxxviii). Dr Kenny reported that the applicant said he saw a heap of Vietnamese but they were stacked and covered (T5, p21).Dr Gelb reported that the applicant told him that there was an occasion where he observed dead bodies that had been stacked one on top of the other. They had not been covered and the sight was vividly stamped on my brain (T9, p60).
154. Dr Thompson, a psychiatrist who was treating the applicant in the Veterans’ Psychiatry Inpatient Unit at Austin Repatriation Hospital in February 2008, prepared a report for Dr Rafe, the applicant’s general practitioner (Exhibit R10, p95). Dr Thompson reported that the history of PTSD syndrome was related to some events in service, one of which included witnessing dead Vietcong soldiers.
Episode In Tent
155. Dr Gelb reported that in his final few weeks in Vietnam, the applicant went to say farewell to another cook, PWS (T9, p60). He said that PWS shared a tent with other persons who he did not know. During a conversation in the tent, there was significant agitation between PWS and the other men who had told PWS that he was rocking the boat and that he should pull his head in (T9, p60). The applicant reported to Dr Gelb that he attempted to intervene but within an instant was staring down the barrel of the rifle of one of the unknown soldiers. The incident was not reported but the applicant later heard that the soldier involved had a nervous breakdown and was sent home (T9, p61).
156. Dr Thompson in his report to Dr Rafe, referred to another event responsible for his PTSD syndrome in which a peer soldier held him hostage at gunpoint for a time. He also reported that the applicant regularly re-experienced seeing the soldier sitting on the end of his bed with the rifle pointing at him.
157. On 6 March 2008 Ms Peck a psychologist and alcohol counsellor, recorded in her notes that the applicant has crap days caused by him having nightmares esp. about preventing friend from shooting others (R10, p24).
158. On 8 August 2008, Dr Monshat a psychiatric registrar in the veterans’ PTSD day program at Austin Health made notes about the applicant’s progress. He recorded ongoing background thoughts about needing to stare down barrel of a shotgun in breaking up a fight between two soldiers (Exhibit R10, p50). Notes made on 15 August 2008 record recurring dream of staring down barrel of gun (Exhibit R10, p49).
159. On 20 March 2008, Dr Hassan recorded that during the last year, the applicant suffered the re-experiencing of nightmares, one of which concerned an event in September 1970 where a fellow cook put gun to his head and tried to shoot [him] (R10, p20).
160. On 16 May 2008, Dr Hassan recorded the applicant experiencing vivid nightmares every night for the last 5/52 (R10, p17). She also recorded:
…the nightmare is always the same, recurring dream of incident in Vietnam where a fellow cook tried to shoot him, he never fought him but always tries to punch him within the dream. Wakes up punching the pillow, always quite weakly. (R10, p17)
APPLICANT'S CREDIT
161. A number of matters emerged during the hearing which have raised concerns about the applicant’s credibility.
162. The records indicate that in 2001 the applicant told Dr Cooper that he witnessed his friend, Noel Smith, burnt in a tent and taken to a helipad for treatment elsewhere. The applicant later heard that Smith had died and as a consequence of that episode, he suffered nightmares. In evidence before us, the applicant admitted that he did not observe the burning tent nor did he observe Smith being taken to a helipad. The applicant said that he had returned to Australia when Smith had died. (It is noteworthy that despite the history given to him, Dr Cooper did not find that the applicant suffered from PTSD).
163. Dr Gelb reported that the applicant described waking that day to the news that Noel Smith had been seriously burnt (T9, p60). That history differs from the history taken by Dr Cooper. Whilst Dr Gelb did ultimately diagnose PTSD, little attention was given to that episode and it is unclear whether that episode did feature in the making of the diagnosis of PTSD.
164. The applicant said in evidence that he made a mistake in the history that he gave to Dr Cooper. When he was asked to clarify what he had meant by the mistake, he said:
…in recalling the incident I placed myself still in Vietnam when, in actual fact, I wasn't, and bearing in mind that your first information there is some 32 years on from the event where I made the statement, for all intents and purposes I thought I was there (Transcript, p69).
165. Dr Hassan was referred to the history given to other doctors. She said that she had never obtained a history that the applicant was exposed to the death of Noel Smith. This is despite her having treated the applicant for more than two years. Dr Hassan explained that it was not unusual for a person to place himself at the scene of a distressing event, particularly when the person can picture the event unfolding. In this instance, the applicant knew Smith and was familiar with the environment in which the event occurred (Transcript, p108-109). We accept this explanation. Accordingly, we do not draw an adverse inference against the applicant. In any event, the Smith incident does not appear to have formed the basis of a diagnosis of PTSD.
166. The other matter that raises concerns about the applicant’s credibility is the inconsistency in the evidence relating to the tent incident in which another soldier pointed a gun at the applicant.
167. The applicant said in evidence before us that PWB pointed the gun at him. In his evidence to the VRB the applicant said that PWB was his friend, that he had corresponded with him on a number of occasions and had been entertained by him and his family in Sydney before departure to Vietnam. Following the VRB hearing, PWB was asked by the respondent to respond to the applicant’s evidence and he denied, in his statement (Exhibit R5) that such a relationship existed or that they had socialised as alleged.
168. It emerged that the person PWB had the same first and middle name as the person PWS. The applicant confirmed that PWB was in fact the person in the tent who pointed the gun at him. He said that while PWS was a good friend who he socialised with, he also corresponded with PWB. PWB in his statement denied having received correspondence from the applicant. However, the diary produced by the applicant contained contemporaneous entries which pointed to him sending letters to PWB.
169. We are satisfied that there has been confusion between PWS and PWB which may be explained by both of those persons having the same first and middle names. We do not draw any adverse inference against the applicant because he confused PWS with PWB. In any event, if we accept that a soldier pointed a gun at the applicant, the identity of that soldier is irrelevant.
DIAGNOSIS
Lumbar Spondylosis
170. Mr Rudge on behalf of the respondent conceded that the applicant does suffer the condition of lumbar spondylosis. We are satisfied that the respondent has properly made that concession.
171. The x-ray reports of 25 October 1996 (Exhibit R8, p133) and 14 April 2004 (Exhibit R11, p134) point to that diagnosis. Professor Hall in his report of 12 October 2009 (Exhibit R3, p2) was undoubtedly of the opinion that the applicant suffered lumbar spondylosis. Dr Moffitt completed a medical questionnaire on 14 September 2004 in which he recorded that the applicant had a spondylosis of his thoracolumbar spine (T8, p41).
ptsd and mdd
172. When making a finding on the probabilities, of whether an illness or injury exists, the Tribunal is obliged to identify the collection of relevant symptoms (refer Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]). In the case of PTSD an additional step is required, namely, a finding of whether a traumatic event or events occurred (Mines v Repatriation Commission (2004) 85 ALD 62 at [48]). Thus, a fact-finding exercise is required at the diagnosis stage. However, this exercise is not violating the sequential process dictated in Deledio where ordinarily making findings of fact before the fourth stage would be impermissible.
173. In her report, Dr Hassan has considered all parts of the definition of PTSD in Instrument Nº 5 of 2008. She is satisfied they are all met. We do not delegate our responsibility to her but we have concluded that her opinions are sound and are to be preferred. For reasons which will be discussed below, we are satisfied that during his service, the applicant was exposed to a traumatic event as defined, namely:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror…
174. Dr Hassan has been treating the applicant since 2008. In her opinion, the applicant suffers from PTSD and MDD as a co-morbid condition. She explained that his alcohol served as a coping strategy and when his alcohol consumption decreased, the symptoms that were previously masked, came to the fore. Having heard the basis of her diagnosis, we are satisfied on the balance of probabilities that the applicant suffers from PTSD. We hold a similar view with respect to the diagnosis that she made of the co-morbid MDD.
175. Dr Gelb, Dr Tanaghow and other doctors at the Austin Hospital, also diagnosed the applicant with PTSD. Those doctors obtained a comprehensive history from the applicant unlike the history obtained by Dr Cronin and Dr Kennedy in earlier years.
176. Dr Strauss, although not satisfied that the applicant suffered PTSD, was satisfied that he suffered from a major depressive illness (Exhibit R1, p8). That opinion fortifies our finding of the applicant suffering from MDD.
DELEDIO
177. We must now proceed to determine whether there is a hypothesis which is reasonable by applying the four stages of analysis found in Deledio at 97.
178. It was submitted on behalf of the applicant that during his operational service in Vietnam, he fell into a trench which resulted in lumbar spondylosis.
179. In relation to the psychiatric conditions, it was submitted that the applicant was exposed to distressing events during his service, namely seeing blood on a tank that he was sent to recover, seeing bodies piled by the road side and having a gun pointed at him. These events resulted in PTSD and MDD. We are satisfied that there is material pointing to those hypotheses. The first stage of Deledio is therefore satisfied.
180. The second stage of Deledio requires us to identify whether there are SoPs in force.
181. The assessment period commenced on 16 August 2004, the date the applicant made the claim. In the assessment period there were two Statements of Principles (SoPs) for lumbar spondylosis namely, Instruments Nº 46 of 2002 and Nº 37 of 2005. There is no material difference between those instruments. The applicant relied on factor 6(g) of the 2005 SoP.
182. There are three SoPs for the condition of MDD within the assessment period namely, Instruments Nº 58 of 1998, Nº 17 of 2007 and Nº 27 of 2008 (as amended by Instrument Nº 40 of 2010). The applicant relied on factors 5(b) and 5(c) of Instrument Nº 58 of 1998.
183. There are two SoPs applicable to PTSD in the assessment period namely Instruments Nº 3 of 1999 (as amended by Instrument Nº 54 of 1999) and Nº 5 of 2008. The applicant relied on factors 6(a) and (b) of Instrument Nº 5 of 2008.
184. The applicant is entitled to rely on the earlier instruments on the basis that he has an accrued right that has not been eliminated by later instruments. However, we are obliged to consider the SoPs which are in force at the date of review. If the hypothesis does not then meet those SoPs, we are permitted to consider the earlier SoPs (Repatriation Commission v Keeley (2000) 98 FCR 108; Repatriation Commission v Gorton (2001) 110 FCR 321).
185. Although we have found the applicant has established hypotheses at the first stage of Deledio, it does not follow that the hypotheses are reasonable. That finding can only be made – at the third stage of Deledio – if the hypothesis fits or is consistent with the template found within an applicable SoP. The hypotheses must contain one or more of factors which the Repatriation Medical Authority has determined to be the minimum which must exist.
lumbar spondylosis
186. The SoP in force with respect to lumbar spondylosis at the present date is Instrument No 37 of 2005. Factor 6(g), upon which the applicant relies, must exist as a minimum, before we can be satisfied that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of service. Factor 6(g) refers to an applicant having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis. Trauma to lumbar spine is defined in considerable detail but essentially requires a discrete injury to the lumbar spine …
187. Mr Moore submitted that the applicant suffered a trauma to his lumbar spine when he fell into a trench. There is no material before us to indicate that the applicant suffered a trauma to his lumbar spine. He did not report the incident nor did he have treatment for it.
188. We cannot find a definition of lumbar spine in the medical dictionaries. In the Medline Plus online dictionary lumbar is described as the vertebra between the thoracic vertebra and the sacrum. We understand that to be the lower back. Spine is described as an articulated series of a vertebra connected by ligaments and separated by intervertebral fibrocartilages providing protection for the spinal cord.
189. The complaint of back pain suffered by the applicant after he fell could have been by assault upon muscle or tissue. There is no material which points to the facts raised in support of the hypothesis (Hunter v Repatriation Commission (2010) 114 ALD 89 at [13]) of a discrete injury to his lumbar spine. The hypothesis therefore advanced by the applicant does not fit nor is it consistent with the template found within the Instrument Nº 37 of 2005. In those circumstances, we are obliged to find that the hypothesis is not reasonable.
190. The only other SoP within the assessment period with respect to lumbar spondylosis is No 46 of 2002. Factor 5(h) is in identical terms to factor 6(g) of the current instrument and the definition of trauma to the lumbar spine is not materially different. Therefore, the earlier SoP does not assist the applicant. Accordingly, while the applicant suffers from lumbar spondylosis, the condition is not war-caused.
post traumatic stress disorder (ptsd)
191. Mr Moore submitted that the applicant saw blood on a tank that he was sent to recover, saw bodies piled by the road side and also had a gun pointed at him. These events were referred to in the material before us, including the witness statements and the medical evidence. Accordingly, we are satisfied that the material points to a hypothesis that is consistent with the template in Instrument Nº 5 of 2008, namely, experiencing either a Category 1A or IB stressor for the purposes of factors 6(a) and (b) of the SoP.
192. It is only at the fourth stage of Deledio that findings of fact should be made. At this stage, s 120(1) dictates that if the Tribunal is not satisfied beyond reasonable doubt that the injuries claimed were not war-caused then the claim must succeed.
193. We were impressed by the evidence of Dr Hassan. She initially commenced treatment of the applicant in early 2008 when she was a Senior Psychiatric Registrar at the Austin Repatriation Hospital. She later left that employment and commenced private practice as a psychiatrist. She has treated the applicant as a private patient since October 2008 at intervals of between two weeks and one month. She was satisfied that the applicant did suffer PTSD of delayed onset, the symptoms of which had previously been suppressed by alcohol abuse.
194. The notes from the Austin Repatriation Hospital record that the applicant was admitted to the detoxification program in February 2008. It would appear from the evidence that the applicant has reduced his alcohol consumption considerably. The emergence of his symptoms and his ability to articulate those symptoms and the circumstances of his service in Vietnam is consistent with the opinion expressed by Dr Hassan that those symptoms were suppressed by his alcohol habit.
195. It is worthy to note – and consistent also with the opinions expressed by Dr Hassan ‑ that the applicant’s lifestyle of working long hours, extra domestic and sporting responsibilities and few hours sleep, provided him with a safety mechanism to cope with his PTSD. When he retired from the work force, withdrew from the cricket club and reduced his alcohol consumption, his symptoms emerged and he was prepared to undertake treatment from Dr Hassan. It is also worthy to note that in 2001, the applicant discontinued his treatment with Dr Cooper. It appears from Dr Cooper’s notes that the applicant also then withdrew from the alcohol program at the Austin Repatriation Hospital.
196. The emergence of the PTSD symptoms and the applicant’s preparedness to acknowledge his illness explains the contrast in the histories obtained by other doctors, including Dr Kennedy and Dr Cronin. Dr Kennedy and Dr Cronin both saw the applicant in 1996 and they did not find he suffered from PTSD.
197. The applicant attended Dr Cooper on a number of occasions in 2001 and 2002. In his first report of 20 July 2001, Dr Cooper recorded the diagnosis as ? PTSD (Exhibit R10, p34). He also diagnosed alcohol abuse. On 16 August 2001 he recorded a diagnosis of ? mild post traumatic stress disorder/other anxiety disorder (R10, p33). On 23 August 2001 he diagnosed the applicant with alcohol abuse and mild anxiety (Exhibit R10, p29). In a note to Ms Peck, on 18 October 2001, Dr Cooper recorded that the applicant had mild underlying anxiety – prob not PTSD (Exhibit R10, p27). In a report to the applicant’s treating general practitioner on 27 December 2001, Dr Cooper reported that the applicant had some anxiety symptoms, they do not amount to a post traumatic stress disorder and that his primary difficulty is alcohol abuse (Exhibit R10, p87). Dr Cooper prepared a report to the applicant's general practitioner on 2 February 2003 and his diagnosis at December 2002 was alcohol abuse and associated symptoms of mild anxiety not associated with generalised anxiety, rather than post traumatic stress disorder (Exhibit R11, p139).
198. The applicant attended Dr Kenny at the request of the respondent in June 2002. He was of the opinion that the applicant did not have a psychiatric problem beyond the issue of substance abuse (T5, p25).
199. In October 2004 the applicant attended Dr Gelb a consultant psychiatrist at the request of the respondent, who was of the opinion that the applicant had PTSD at a moderate level of severity (T9, p64). The opinion of Dr Gelb was the first occasion where PTSD was positively diagnosed.
200. In February 2008 the applicant was admitted to the detoxification program at the Austin Repatriation Hospital and commenced intensive treatment by the psychiatric staff, most notably Dr Hassan.
201. Dr Strauss was not satisfied that the applicant suffered PTSD and thought that he suffered from depression, the symptoms of which had previously been masked by alcohol. He saw the applicant on one occasion only. We thought that his opinions were rigid (Exhibit R1, p9). Whilst he has referred to a number of other medical reports that were provided to him, unlike Dr Hassan, there does not appear to be any analysis of the applicant’s clinical history.
202. As stated above, we accept the evidence of Dr Hassan. We consider her opinions and explanations sound and we are also confident in the history she obtained from the applicant. She reported that the most significant event for the applicant was having the gun pointed at him by PWB. Therefore, we are satisfied that the applicant suffered a Category 1A stressor ‑ experiencing a life threatening event, when he was in the tent with PWB who was apparently menacing other persons, who was in close proximately to the applicant and behaving erratically and holding a loaded rifle. The episode with PWB is also recorded in the history taken by Dr Gelb in 2004 (T9, p60-61).
203. Consistent with the history taken by Dr Hassan and Dr Gelb, Ms Peck recorded on 20 March 2008 that the applicant was having crap days caused by nightmares, especially about preventing friend from shooting others. (Exhibit R10, p24) The applicant also consulted Dr Hassan on the same day and she recorded that the applicant was a 60 year old married Vietnam veteran with a recent onset of PTSD following trauma in Vietnam in 1970. Specifically she recorded that the applicant was re-experiencing nightmares of an event in September 1970 where a fellow cook put gun to his head and tried to shoot him (Exhibit R10, p20-22).On 16 May 2008 Dr Hassan recorded that the applicant was continuing to experience vivid nightmares. She recorded:
…the nightmare always the same, recurrent dream of incident in Vietnam when a fellow cook tried to shoot him, he never fought him, but always tries to punch him in the dream. Wakes up punching the pillow always quite weakly. (Exhibit R10, p17)
204. Dr Thompson recorded a history of the applicant being held hostage at gunpoint (Exhibit R10, p95-96).Dr Monshat recorded that while the applicant was an inpatient at the Austin Hospital, he had recurring dreams of staring down the barrel of a gun (Exhibit R10, p49 -50).
205. Those histories by four treating clinicians and the medico-legal witness, Dr Gelb, satisfies us that the episode in the tent involving PWB as described by the applicant did, as a fact, occur.
206. PWB did not give evidence. However, he lodged a statement denying the incident as described by the applicant. He admitted an incident in December 1970 where he (PWB) discharged his rifle through the roof of a tent. The applicant was not present on that occasion. He denied that he had an association with the applicant in September 1970 in the manner that the applicant described.
207. We acknowledge that PWB has a severe psychiatric illness which may explain why he did not make himself available to give evidence. It is our belief that the evidence of the applicant should be preferred. He gave evidence and was subjected to cross-examination. In fact we re-called him to clarify a considerable part of his evidence concerning this event. We are reluctant to draw an adverse inference against the respondent because it did not fail to call PWB but rather, he refused to appear. Indeed, he rejected the invitation to give evidence by telephone. We are also fortified in the conclusion we have reached concerning this event because we note that Dr Hassan specifically recorded the applicant suffering nightmares recurring every night – September 1970 (Exhibit R10, p20). It is no coincidence that the recurring event is recorded against that date; it being the month in which the applicant said the episode occurred in the tent with PWB.
208. For all the above reasons we are satisfied that episode did occur as the applicant described. In our view it constitutes the experiencing by the applicant of a life threatening event being a Category 1A stressor.
209. The occasion where the applicant observed dead bodies stacked on top of each other was the subject also of some controversy during the hearing. Mr Barsley said that bodies were not stacked because to do so would offend local and Buddhist custom. However, a history of stacked bodies was taken by Dr Kenny (T5, p21) and Dr Gelb (T9, p60) and corroborated by Mr Cross (T-documents, pxxxviii). Dr Hassan referred to piles of bodies in her clinical notes (T16, p2). Dr Thomson reported that the applicant witnessed dead Vietcong soldiers (Exhibit R10, p96). That experience would constitute a Category 1B stressor because the applicant experienced a severe traumatic event namely, viewing corpses or critically injured casualties as an eye witness.
210. On balance we are satisfied that the applicant did observe bodies as he described. This is especially so because Dr Kenny obtained a history of that event two years before the primary claim was made.
211. The remaining stressful episode advanced by the applicant was the occasion were he was engaged as a shotgun in a convoy to recover a burnt out centurion tank. The applicant said he observed blood on the turret.
212. The applicant’s said he was engaged as a shotgun. His evidence is supported by the reports of Doctors Kennedy, Gelb, Kenny and Cooper. The applicant’s colleagues, Mr Cross and Mr Milner also corroborate his evidence.
213. The applicant said that he was engaged to recover a centurion tank. However the Commander’s Diary referred to the recovery of a carrier. There was an assumption that the entry in the diary referred to the same event that the applicant described, yet there were no records produced which could be cross-referenced against the diary to point to the applicant being engaged as a shotgun on that occasion. The description of the recovered vehicle is also inconsistent. A centurion tank is distinctly different from a carrier and the applicant must surely have known the distinction because the field workshop, to which he was assigned as a cook, was responsible for the recovery of damaged centurion and carrier vehicles.
214. In an email to Mr Barsley of February 2005, Mr Nolan (previously Major Nolan) recorded that a number of centurion tanks had been recovered in 1970 (T10, p78). Mr Nolan was not called to give evidence. Perhaps his reference to a carrier (in the Commander’s narrative) was an error.
215. We accept that the veteran did engage in the recovery of a vehicle, despite the differing descriptions of it. His history to the doctors supports the event having occurred. We note Mr Nolan in his email referred to servicemen being injured. It is conceivable that they would have suffered wounds, which bled. We accept there was blood present on the recovery vehicle. The event however does not constitute a 1A or 1B stressor. Subjectively, the applicant’s reaction is consistent with the Full Federal Court decision Woodward v Repatriation Commission (2003) 131 FCR 473 (Woodward) description of the Part A definition of PTSD of a person being confronted in the mind. The reaction of the applicant was of being horrified and it gave him something to think about, seriously think about. It does constitute experiencing a severe stressor within the meaning of factor 5(a) and paragraph 8 of SoP No 3 of 1999. The earlier SoP is therefore satisfied.
216. In Hunter v Repatriation Commission (2010) 114 ALD 89 at [22], Perram J said that the definition of 1A and 1B stressors in the current SoP concerning PTSD requires a claimant to have come, in effect, face to face with some species of peril. His Honour, referring to Woodward contrasted the definitions in the earlier instrument which could be satisfied if a claimant were confronted with a peril which this court has held includes being “confronted in the mind”.
217. In Border v Repatriation Commission (No 2) [2010] FCA 1430, Reeves J discussed the requirements that must be fulfilled before it can be said that a veteran experienced a stressor for the purposes of the SoP concerning PTSD. His Honour referred to various events that may qualify as category 1A or IB stressors. He said that some aspects of the definitions are purely events based and require an objective assessment of whether the event occurred. For instance, being threatened with a weapon. Others, such as experiencing a life-threatening event, require a subjective assessment of the character of the event (at [45, 55-57]).
218. On the analysis of the above decisions, it is not difficult to conclude that the episode in the tent in September 1970 and the episode involving the witnessing of bodies each involved the applicant coming face to face with a species of peril. We accept that while in the tent, PWB, who was both intoxicated and agitated pointed a loaded rifle at the applicant. The applicant was therefore, threatened with a weapon and experienced a life-threatening event. We also accept that the applicant observed bodies stacked on the side of the road. He experienced Category 1A and 1B stressors respectively. He was also confronted within the meaning of Woodward and satisfies the earlier SoP with respect to the episode when he recovered the vehicle.
219. For the above reasons, we are satisfied that the applicant does suffer PTSD. There is a connection between PTSD and these events in service. Insofar as PTSD is concerned, the fourth stage of Deledio is satisfied because we are not satisfied beyond reasonable doubt that PTSD was not war-caused. That part of the claim must succeed and the decision under review insofar as it refused acceptance of the condition of PTSD must be set aside.
major depressive disorder (mdd)
220. Mr Moore submitted the condition of MDD was either secondary to or a sequel to the condition of PTSD or it was a separate standalone condition (Transcript, p200‑202). Dr Hassan was of the view that depressive disorder was a co-morbid condition with PTSD. Dr Strauss was of the opinion that the applicant had suffered depression for many years and he associated it with his familial circumstances.
221. Having previously decided that the applicant does suffer from PTSD and MDD, the remainder of this part we have been influenced by the Medline Plus definition of co-morbid namely existing simultaneously with and usually independently of another medical condition. We understand that definition to mean that for the purposes of the MDD condition existing co-morbidly with PTSD that both conditions are independent of each other but they exist simultaneously.
222. The SoP in force for MDD is No 27 of 2008. There are four factors only which in our view apply to the veteran namely, factors 6(a)(ii), (iii), (vi) and (vii). The material raised by these proceedings points to the applicant satisfying factor (vii) only, namely, having a clinically significant psychiatric condition within the two years before the clinical onset or depressive disorder. A clinically significant psychiatric condition is defined at paragraph 9 as an:
Axis 1 disorder of mental health that attracts a diagnosis under DSM‑IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example at least monthly) to a psychiatrist, clinical psychologist or general practitioner.
223. We are satisfied the PTSD is the clinically significant psychiatric condition.
224. The factor requires that PTSD therefore existed within two years before the clinical onset of depressive disorder. We found earlier that the applicant does suffer from PTSD and that it did have a clinical onset but we were not required to make any finding of when it occurred.
225. The overwhelming majority of the medical evidence heard in these proceedings points to PTSD having been diagnosed and treated in or about 2007 and 2008.
226. Professor Tanaghow in a report to Dr Creamer (Exhibit R10, p85) on 5 December 2007 was satisfied the applicant suffered PTSD with depression. Dr Hassan who has been treating the applicant since March 2008 was satisfied the applicant suffered PTSD and confirmed in her evidence before us that he also suffers from MDD co-morbidly (Exhibit A3).
227. In August 2008, when the applicant was admitted to the PTSD residential program at the Austin Repatriation Hospital, the diagnosis then made was of PTSD with co-morbid MDD. (Exhibit R10, p35). The clinical notes of Dr Rafe record three entries for depression between 24 November 2007 and 17 October 2008 (refer Exhibit R11, pp10,40 and 98). Ms Iacono, a psychologist at the Austin Repatriation Hospital, diagnosed depression on 12 October 2007 and 17 January 2008 (Exhibit R11, pp66 and 72).
228. We are satisfied that the medical history is consistent with the judicial interpretation of the words clinical onset and recently summarised and affirmed by Jacobson J in Kaluza v Repatriation Commission (2010) FCA 1244. His Honour then relied on the Full Federal Court decision of Lees v Repatriation Commission (2002) 125 FCR 311 (at [93]) and concluded that:
…clinical onset requires a need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
At [95] His Honour added that the essence of the test (of clinical onset) was all the symptoms must be displayed and treatment sought so that the practitioner can determine the date of clinical onset.
229. Much was heard in these proceedings of the condition of PTSD and MDD being suppressed by alcohol consumption. The treatment of both conditions did not commence until 2007 or 2008. On that basis, we are satisfied that the treating doctors, by their reports and, in the case of Dr Hassan, by her evidence, satisfied us of the presence of features or symptoms in or about 2007 and 2008 and during that time those features or symptoms were displayed and treatment (was) sought.
230. We are satisfied that both PTSD and MDD can on the evidence be properly described as being co-morbid. We are satisfied that the clinical onset of MDD was in or about 2007 or 2008. We would have also found – although we were not required to do so – that PTSD had its clinical onset in the same period. It follows that the applicant did have a clinically significant psychiatric condition (PTSD) within two years before the clinical onset of depressive disorder.
231. When the clinical data was reviewed we located a report of 4 December 1981 completed by Dr David Harding a neurologist, to whom the applicant was referred by Dr McLean. It would appear that the applicant was referred for treatment or management of his migraine headaches. In his report to Dr Harding, Dr McLean recorded that the applicant has been depressed and irritable recently but admits that there are very many reasons why he could be depressed (Exhibit R8, p70). The contents of that report were not brought to our attention by either party, nor did it feature in any submissions. There is nothing which would indicate to us that the contents of the report of Dr Harding were known by any of the doctors other than Dr McLean who was not called as a witness. But there is nothing which indicates that the applicant was then treated for depression. It follows that the definition of clinical onset as discussed by Jacobson J in Kaluza was not then satisfied. We therefore do not find that the clinical onset of depressive disorder was in 1981.
232. We reaffirm that the majority of medical evidence points to the clinical onset of depressive disorder having occurred in or about 2007 or 2008, when the applicant presented with symptoms and was then treated. At or about that time the condition of PTSD was also diagnosed and treated.
233. We are therefore satisfied that the third stage Deledio analysis is satisfied.
234. The fourth stage is also satisfied, largely for the reasons expressed earlier under the PTSD part. Additionally we would add that we found the medical evidence of Dr Hassan and the contents of the medical reports compelling and to be preferred. We are not satisfied that the opinions expressed by Dr Strauss are sound which we thought were written and expressed rigidly, without the benefit had by Dr Hassan of having treated and consulted with the applicant over many years. As a fact we are satisfied that MDD is co morbid with PTSD and it is war-caused.
DECISION
235. The decision of the VRB under review in these proceeding with respect to lumbar spondylosis and alcohol dependence is affirmed.
236. The decision under review with respect to Post Traumatic Stress Disorder (PTSD) is set aside and in substitution we decide the applicant suffers PTSD and co-morbid Major Depressive Disorder, both conditions being war-caused.
I certify that the two hundred and thirty-six [236] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Dr Roslyn Blakley, MemberSigned:............................[signed].............................................
Associate Grace HorzitskiDates of Hearing 14 and 15 July 2010, 13 October 2010
Date of Decision 13 May 2011
Counsel for the applicant Mr G Moore
Solicitor for the applicant Mr P Liefman
Departmental Advocate Mr K Rudge
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