Laird and Repatriation Commission

[2004] AATA 723

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 723

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/585

VETERANS'     APPEALS       DIVISION

Re:         RAYMOND JOHN LAIRD

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             7 July 2004

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant suffers from post traumatic stress disorder and that the condition is war-caused.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ post traumatic stress disorder - severe stressor - whether diagnosis correct - whether war-caused 

Veterans' Entitlements Act 1986 ss 9, 120(4)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Delahunty v Repatriation Commission [2004] FCA 309

Fogarty v Repatriation Commission (2003) 37 AAR 363

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Deledio (1998) 83 FCR 82

White v Repatriation Commission [2004] FCA 633

REASONS FOR DECISION

7 July 2004  G.D. Friedman, Member

1.      This is an application by Raymond John Laird (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 9 May 2003.  The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 11 September 2001 that the applicant's post traumatic stress disorder (PTSD) was not war‑caused.

2.      At the hearing of this matter on 25 June 2004 Mr G. Chancellor, of counsel, represented the applicant and Mr K. Herman, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), plus two exhibits (Exhibits A1 and A2) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent.

BACKGROUND

4. The applicant was born on 22 March 1946. After graduating from Highett High School in Melbourne he worked as a trainee accountant, bookkeeper and financial facilitator before commencing national service. He served in the Australian Army (the army) from 17 July 1968 to 16 September 1970, and in Vietnam from 30 August 1969 to 20 August 1970, which is operational service for the purpose of s 9 of the Veterans' Entitlements Act 1986 (the Act).

5.      After leaving the army, the applicant became a trainee executive with Thomas National Transport.  After three years and a half years, he worked as sales co‑ordinator for a motor vehicle company for two years.  Then he worked as a new car salesman before working in finance broking and bookkeeping.  He then returned to the motor vehicle industry in sales.  In 1993 he purchased a business which manufactured plastic and cardboard bins.  The business ceased in 1994, after which the applicant and his wife became subcontractors for the home delivery of groceries.  In addition, the applicant found part-time employment in a supermarket.  He has continued in these positions.

6.      In 2000 the applicant approached the Vietnam Veterans Counselling Service and commenced counselling with a psychologist.  He was referred to several psychiatrists, and was referred to the War Caused PTSD Program at the Repatriation General Hospital.  He has ongoing counselling with a psychologist.   

7.      On 4 April 2001 the applicant made a claim for disability pension for anxiety attacks, nervous condition, hearing loss, tinnitus, back problems, rashes, tinea.  On 11 September 2001 the respondent diagnosed the claimed conditions as PTSD, bilateral sensorineural hearing loss, bilateral tinnitus, lumbar spondylosis and dermatitis.  The respondent accepted liability for bilateral sensorineural hearing loss and bilateral tinnitus, and did not accept liability for PTSD, lumbar spondylosis and dermatitis.  On 1 November 2001 the applicant sought review of this decision by the VRB.  On 9 May 2003 the VRB affirmed the decision as it related to PTSD, and consented to the withdrawal of the claim for lumbar spondylosis and dermatitis.  On 4 June 2003 the applicant lodged an application with the Tribunal for review of the decision of the VRB.

8.      The issue before the Tribunal, for reasons set out below, is whether the applicant suffers from PTSD.

EVIDENCE

9.      In a written statement dated 3 June 2003 (Exhibit A1), the applicant said that his duties in Vietnam were as a technical clerk with 2 Advanced Ordnance Depot (2AOD) which was situated next to the Australian Field Hospital at Vung Tau.  He stated that a siren sounded whenever a helicopter arrived with a casualty, causing him to wake up because of his proximity to the hospital.  He said that he experiences flashbacks and nightmares about his service in Vietnam, and certain noises and events trigger unpleasant memories.  He also said that he suffers from depression and anxiety when reminded of his service.

10.     The applicant described a number of specific events that have caused him distress.  He referred to an incident when a number of casualties were brought to the hospital one night, and several days later the wreck of an Armoured Personnel Carrier (APC) was brought to the Depot (the APC incident).  He said that the sight of the wreck horrified him and he has been haunted by unpleasant memories since then.  The applicant also referred to other distressing incidents, such as the throwing of a smoke grenade into the Sergeants’ mess, a Sergeant who wounded himself and a fatal accident at the Depot.     

11.     In oral evidence to the Tribunal the applicant described the APC incident, and said that the day after the arrival of the casualties he was told that an APC had hit a mine and that there were multiple casualties.  He explained that 3 or 4 days later the wreck of the APC was retrieved, and that the sight of the twisted metal reinforced the horror of war, particularly as an APC carried about 12 personnel, and he felt extreme fear from that time.  He said that the memory of the wreck and the likely deaths of a number of his comrades have remained with him.  The applicant told the Tribunal that he visualises the wrecked APC almost daily, and the sound of a helicopter or the sight of a wrecked motor vehicle are sufficient to bring the unpleasant memories back to him.

12.     The applicant said that he did not relate his symptoms or seek treatment until 2000.  He stated that he does not attend veterans’ functions, and has the view that because he was in relatively safe position with 2AOD, in some way he was less of a soldier than other personnel who were exposed to high risk of death or serious injury in operational roles in Vietnam.  The applicant said that treatment such as counselling and anti-depressant medication had been helpful, and he has been able to work full-time in spite of his PTSD.  He emphasised that his condition has damaged his personal and family relationships, and he has continued excessive drinking and smoking, which he said were attributable to his war service.

13.     Under cross-examination, the applicant agreed that his duties in Vietnam did not involve retrieval or cleaning of damaged vehicles, and that he did not see the wrecked APC until it had been cleaned and traces of casualties removed.  In relation to the other incidents, the applicant agreed that these did not have the same impact on him, although the incidents highlighted the poor leadership shown by non-commissioned officers.

14.     In a written report dated 16 October 2003 (Exhibit A2), Dr M. Epstein, psychiatrist, stated:

…

Raymond Laird suffers from a Post traumatic Stress Disorder of the delayed onset type.  The incident that apparently caused this condition was when he saw the APC.  He was confronted with an event that involved death and serious injury to others and he felt a sense of horror and helplessness.  Since he first began speaking about this event in 2000 he has had recurrent intrusive distressing recollections of the event, one or two dreams about it, some distress with reminders of it, such as talking about it, and tries to avoid thinking and talking about it and activities, places or people that arouse recollections of the trauma.

Dr Epstein said that in his view the symptoms were consistent with the Statement of Principles (SoP) Instrument № 3 of 1999 concerning PTSD, and that the diagnosis was appropriate, even though the symptoms were mild.  In oral evidence Dr Epstein told the Tribunal that he assessed the applicant using the criteria in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that there were no other major events in the applicant’s life that could have contributed to the condition.

15.      In a written report dated 12 May 2004 (Exhibit R1), Dr L. Walton, consultant psychiatrist, stated that the applicant meets the clinical criteria in the SoP concerning PTSD, and attracts a diagnosis of the condition.  He said:

In relation to Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999, concerning Post-Traumatic Stress Disorder, the veteran clearly identifies the armoured personnel carrier incident as the most traumatic for him but he also defined other incidents which he found stressful...In relation to the APC incident, when learning of the initial casualties at a distance, the veteran seems to have coped with that information with reasonable equanimity.  However, when he actually observed the damaged APC, he does seem to have been quite markedly distressed.  He does describe feeling horrified. 

16.      In a written report dated 21 March 2003 (T15), Dr J. Gelb, consultant psychiatrist, concluded that the applicant appears to be suffering from chronic PTSD of a mild degree.  He stated:

…Most importantly, he appears to have been severely affected by the witnessing of the helicopters coming in to land on the night that the APC was destroyed, with heavy casualties.  Seeing the APC once it was salvaged appears to have traumatised Mr Laird.

17.     In a written report dated 25 July 2001 (T8), Dr N. Pomorin, consultant psychiatrist, stated:

…

In view of the development of characteristic re-experiencing, arousal and avoidance symptoms following exposure to emotionally traumatic war-time events, I consider that Mr. Laird suffers from a chronic Post traumatic Stress Disorder.

18.     In a written report dated 31 January 2004 (Exhibit R2), Mr J. Tilbrook, of Writeway Research Service Pty Ltd, confirmed that 2AOD was a short distance from the Field Hospital in Vung Tau and the area where helicopters landed with casualties.  He noted that bodies of Australian dead would not have been visible to observers from nearby units.  He noted:

…

69.      Although the frequent sights and sounds of “DUSTOFF” [medical evacuation] aircraft passing overhead on landing approaches may have been disturbing to some 2 AOD soldiers, any casual observations (i.e. panorama view) of the offloading battle casualties at VAMPIRE Pad as bystanders working in the Ordnance depot opposite 1 AUST FD HOSP did  not compare with the impact or affect of extreme combat‑related “stressors” that were experienced by the 1 ATF soldiers when they [were] in contact with the enemy; and who witnessed at first hand the death and wounding of their fellow comrades and numbers of enemy forces during situations of immediate life threatening peril.

Mr Tilbrook stated that more than 20 APCs were destroyed or badly damaged by mine blasts, and that battle-damaged hulks were brought to 2AOD before their return to Australia.  He emphasised that all vehicles had been cleaned thoroughly and bore no evidence of battle casualties by the time they reached 2AOD.  He said that the arrival of damaged vehicles was a common occurrence at 2AOD, and attracted a great deal of attention from sightseers from surrounding logistic units armed with cameras.

19.     Mr Tilbrook concluded that the wreckage of an APC referred to by the applicant that was returned to 2AOD a few days after the arrival of many casualties was most likely the APC that was destroyed in an enemy action on 18 February 1970.  In that action the APC was hit by enemy fire, and two wounded crewmen died after a satchel charge detonated.

CONSIDERATION OF THE ISSUES

20. Mr Chancellor submitted that the issue of whether a condition exists is to be decided on the balance of probabilities under s 120(4) of the Act, and that the SoPs are not relevant to the question of diagnosis (Repatriation Commissionv Cooke(1998) 90 FCR 307, Repatriation Commissionv Gosewinckel (1999) 59 ALD 690 and Benjamin v Repatriation Commission (2001) 70 ALD 622. He said that diagnosis should be determined as a preliminary matter (Fogarty v Repatriation Commission, (2003) 37 AAR 363).

21.     Mr Chancellor referred to the unanimous opinion of the four psychiatrists that the applicant suffers from PTSD, and submitted that the Tribunal should be satisfied that the diagnosis was correct.  He noted that the evidence from the applicant and the psychiatrists was that, in the particular circumstances, the APC incident was a severe stressor.  He also pointed to the evidence from Mr Tilbrook, who reported that the version of events as described by the applicant was consistent with the destruction of an APC on 18 February 1970 and the death of two crewmen.  Mr Chancellor stated that, if the Tribunal finds the diagnosis to be correct, then the applicant should succeed in his application as he would satisfy the criteria set out in the relevant SoP for PTSD.

22.     Mr Herman submitted that a psychiatric condition such as PTSD differs from other medical conditions in that the diagnosis is partly dependent on the nature of an event and the person’s reaction to that event, together with the accuracy and reliability of the person’s account of the event.  He said that in this case the Tribunal must be reasonably satisfied that any trauma suffered by the applicant on service conforms to relevant diagnostic criteria for PTSD.

23.     Mr Herman referred to Delahunty v Repatriation Commission [2004] FCA 309 in which Tamberlin J noted the need for an objective event, followed by a mixed objective and subjective test, involving an assessment of a reasonable person in the position of and with the knowledge of the person experiencing the events. Mr Herman also referred to White v Repatriation Commission [2004] FCA 633 in which Spender J stated, at para 30:

30.  In my judgment, the definition of severe psychological stressor concerns an occurrence that, objectively is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned.  Both aspects are relevant and necessary. 

24.     Mr Herman submitted that there were no aspects of the applicant’s service which would reasonably satisfy the Tribunal of the diagnosis of PTSD.  Further, he said that the Tribunal could be satisfied beyond reasonable doubt the applicant did not experience the stressors of the kind listed in the relevant SoP.

25.     Mr Herman conceded that, if the Tribunal finds the diagnosis of PTSD to be made out, the nature of the diagnostic criteria for PTSD is such that the applicant would succeed in his application that PTSD was war-caused.

26.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

27.     The Tribunal agrees with both parties that it must first make a decision on the balance of probabilities or to its reasonable satisfaction that the diagnosis of PTSD is made out.  The following are the diagnostic criteria for PTSD as described in DSM‑IV):

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

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

2.      the person’s response involved intense fear, helplessness, or horror.

…

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

1.      recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.  …

2.      recurrent distressing dreams of the event.  …

3.      acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated).  …

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

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

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

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

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

3.      inability to recall an important aspect of the trauma

4.      markedly diminished interest or participation in significant activities

5.      feeling of detachment or estrangement from others

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

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

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

1.      difficulty falling or staying asleep

2.       irritability or outbursts of anger

3.      difficulty concentrating

4.      hypervigilance

5.      exaggerated startle response

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

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

…

28.     The Tribunal notes that the applicant described the APC incident to four psychiatrists, who found that the applicant satisfied the above criteria, so that each psychiatrist made the diagnosis of PTSD. 

29.     The Tribunal finds the applicant to be a credible witness who gave evidence of his experiences in Vietnam to the best of his ability.  The facts surrounding his recollection of the APC incident, which were not challenged by the respondent, were broadly consistent with the findings of the research undertaken by Mr Tilbrook.  The Tribunal accepts the applicant’s evidence that he was told that an APC had hit a mine and there had been a large number of casualties.  The Tribunal also accepts that the applicant viewed the wreckage of the APC after it was brought to the 2AOD Depot, and that he was profoundly disturbed by the sight of the APC and suffered trauma accordingly.  The Tribunal finds that there was an objective occurrence followed by an objective and subjective reaction evoking substantial distress by the applicant.  Therefore, the Tribunal finds that the APC incident constitutes a severe psychological stressor.

30.     Taking all relevant matters into account, the Tribunal finds that the applicant satisfies the diagnostic criteria for PTSD and that, on the balance of probabilities, he suffers from PTSD.  Consequently, there is no need for the Tribunal to make a decision on whether any of the other incidents described by the applicant constitutes a severe stressor. 

31.     The Tribunal accepts the submission by both parties that, in view of the Tribunal’s findings on diagnosis, the applicant satisfies each of the steps laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 in deciding whether the material before the Tribunal connects a disease, injury or death to war service. On this basis the claim must succeed.

DECISION

32.     The Tribunal sets aside the decision under review and substitutes a decision that the applicant suffers from post traumatic stress disorder and that the condition is war-caused.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

sgd:        Catherine Thomas

Clerk

Date of hearing:  25 June 2004

Date of decision:  7 July 2004
Counsel for applicant:                  Mr G. Chancellor
Solicitor for applicant:                  Williams Winter
Advocate for respondent:            Mr K. Herman

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs