Louis Halvorson and Repatriation Commission
[2012] AATA 930
[2012] AATA 930
Division VETERANS' APPEALS DIVISION File Number
2012/1445
Re
Louis Halvorson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 21 December 2012 Place Perth The decision under review is affirmed.
...(sgd) S D Hotop...............
S D Hotop, Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Royal Australian Air Force – applicant rendered operational service – applicant suffers from social phobia and psoriasis – material before Tribunal does not raise reasonable hypothesis connecting applicant's social phobia or psoriasis with operational service – applicant’s social phobia and psoriasis not war-caused – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning psoriasis No 31 of 2012
Instrument No 56 of 2002 concerning psoriasis
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 110 FCR 321REASONS FOR DECISION
Deputy President S D Hotop
21 December 2012
Introduction
Louis Halvorson (“the applicant”), who was born in June 1933, served in the Royal Australian Air Force (“RAAF”) from 25 March 1952 to 24 March 1964 and from 4 January 1965 to 4 April 1974. He rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 12 September 1959 to 31 January 1962 and from 15 December 1969 to 20 December 1969, and “defence service”, for the purposes of Part IV of the VE Act, from 7 December 1972 to 4 April 1974.
On 27 April 2010 the applicant claimed disability pension under the VE Act in respect of conditions described by him as “panic attacks/anxiety” and “skin problems” of which he first became aware in “1984” and which he claimed were war-caused or defence-caused.
On 16 March 2011 a delegate of the Repatriation Commission (“the respondent”) decided that “posttraumatic stress disorder and psoriasis are not related to service”.
On 20 October 2011 the Veterans’ Review Board (“VRB”) varied the delegate’s decision by substituting the diagnosis of “social phobia” for “post traumatic stress disorder”, and affirmed that decision (as varied).
On 20 April 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 20 October 2011. On 4 May 2012 the Tribunal granted to the applicant an extension of time until 20 April 2012 for the lodging of that application for review.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T12) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·supplementary documents (ST1–ST12) filed by the respondent on 21 September 2012 (Exhibit R1);
·Exhibits A1–A3 tendered by the applicant;
·Exhibits R2 – R5 tendered by the respondent; and
·the oral evidence of Dr Jonathon Spear.
The Applicant’s Prior Claim History
The history of the applicant’s previous claims under the VE Act and the associated medical information are summarised in paras 4.7 – 4.14 of the respondent’s Statement of Facts, Issues and Contentions dated 12 November 2012, and that summary is not disputed by the applicant (see para 4.1 of the applicant’s Statement of Facts, Issues and Contentions dated 28 November 2012). That summary is as follows:
“4.7 In 1992, the Applicant claimed acceptance of ‘anxiety’ amongst other conditions. (ST1/3) The Applicant was examined by a Departmental medical officer, who reported that he became emotional when he talked about the caskets carrying the bodies of dead servicemen during the Vietnam conflict. (ST2/8) He had first noted anxiety and panic symptoms in 1984, when giving a presentation and was now anxious whenever giving a presentation.
4.8The Applicant was referred to Dr John Pougher, a psychiatrist, who reported that the Applicant exhibited a mild to moderate anxiety disorder with a component of social phobia. (ST3/15) This had been evident for about 9 years. Dr Pougher noted that the Applicant became tearful and upset when talking about his Vietnam experiences, which he indicated were organising coffins and wounded evacuations but opined that this was more a manifestation of his present anxiety state than the cause. Dr Pougher did not consider that the Applicant’s psychiatric problems were related to his service.
4.9On 29 March 1993, a delegate of the Repatriation Commission determined that anxiety state is not war-caused. (ST4/17)
4.10In 1995, the Applicant again claimed acceptance of anxiety state as being war-caused. (ST5/21) The Applicant was seen by Dr Lance Risbey, a psychiatrist, who diagnosed him as suffering from ‘… a well-suppressed post-traumatic stress disorder (and at the very least, a chronic anxiety disorder, this being a more general term) stemming from his overseas service, with delayed onset of symptoms and with relatively minimal symptoms until 1993.’ (ST7/28) Dr Risbey pointed to incidents during the Applicant’s service in Butterworth during the Vietnam war, handling medically evacuated soldiers and the caskets of the dead as being causal.
4.11On 19 June 1995, a delegate of the Repatriation Commission determined that post traumatic stress disorder is not war-caused. (ST8/30) This decision was affirmed by the Veterans’ Review Board on 15 February 1996. (ST9/33)
4.12The Applicant was examined in connexion with a claim for compensation from Comcare by Dr Danny Shub, a psychiatrist, who provided a report on 4 June 1996. (ST11/40) Dr Shub opined that the Applicant suffers from an anxiety state causally related to stressful circumstances within his employment in 1984. (ST11/44) Dr Shub considered that it was possible that the Applicant’s stressful overseas RAAF service had rendered him somewhat vulnerable to the development of an emotional disorder.
4.13On 8 February 1999, Dr Risbey provided another report, in which he discussed psychiatric reports from Dr Shub, Dr Zelko Mustac and Professor Peter Burvill, the latter two of which are unavailable. (T4/76) Dr Risbey referred to stressful incidents during the Applicant’s service in Butterworth in 1968 when dealing with the caskets of soldiers killed in Vietnam. (T4/78) Dr Risbey diagnosed the Applicant as suffering from a chronic anxiety state with panic attacks or perhaps an atypical post-traumatic stress disorder. (T4/81)
4.14On 17 November 2009, Dr Kevin Dallimore, a dermatologist, diagnosed the Applicant as suffering from psoriasis. (T4/83)”
The Applicant’s Evidence
A statutory declaration made by the applicant on 26 June 2012 for the purpose of this proceeding was tendered in evidence by the applicant’s representative. Although the applicant did not attend the hearing and was not available for cross-examination, the respondent’s representative did not object to the tender of that statutory declaration.
In that statutory declaration the applicant describes the incidents in the course of his RAAF service, which he regards as relevant for the purpose of determining his present claim for disability pension, as follows:
“ The first incident happened in Indonesia when I was en route to Richmond from the RAF Base in Changi in Malaya and we stopped over in Jakarta to refuel before going via Darwin and hence to Richmond in NSW.
I wandered into a restricted area by mistake to obtain a drink of water when I was confronted by an armed Indonesian guard who had a weapon pointed at me. He aimed the weapon menacingly at me and I could see his finger tightening on the trigger of the weapon. Just at this moment an RAF Liason (sic) Officer appeared and spoke to the guard. The RAF Officer then turned to me and told me to vacate the area immediately, which I duly did.
The next set of circumstances arose out of my tour of duty in Butterworth in Malaysia from 1967 to 1970 where I was posted as Air Movements Officer, responsible for all movements in both air and ocean transport.
Incidences occurred with the movement of body caskets of deceased Australian soldiers and naval personnel evacuated from SVN en route to Australia. We also were responsible for all the medical evacuees who (sic) from SVN who were being repatriated back to Australian hospitals for medical attention not available in country. During my term as the Air Movements Officer there were 86 deceased member caskets processed for movement of Australian soldiers and sailors.
There were 6 instances of deceased British servicemen who were to be returned to England or had to be buried in Malaya. It was British policy not evacuate (sic) bodies of deceased servicemen back to the UK, they had to be cremated first and the ashes returned to the UK. Those next of kin who did not want cremation then the bodies were buried in Malaya. (sic)
One individual incident when unloading caskets from SVN the lid of a casket came off and the casket was found to be waterlogged. This particular incident concerned me deeply and I was determined to find the reasons for it. During a trip to SVN on a fact finding trip to familiarise myself with the conditions at the point of despatch in SVN and to solve some logistical problems. (sic)
After first landing in Saigon and experiencing a bombing attack near my accommodation on that first night I then proceeded to Vung Tau. It was here that caskets on pallets laying in the open while being prepared for loading onto an aircraft and they were wet. (sic) There was no protection from the elements visible to me at that time. This situation I found deeply troubling. This immediately indicated to me the problem experienced with the casket at Butterworth. I then visited Nui Dat briefly and then onto Phan Rang and from there back to Saigon. I then returned to Butterworth. The duration of my trip was 6 days and it answered a lot of questions that I had had and I was determined to find remedies.
Just prior to my trip to SVN, whilst at Butterworth I was watching a Royal Navy helicopter with sailors doing rapelling (sic) training at the base. As the special forces were rapelling (sic) to the ground with fixed ground anchor tapes I watched as one sailor left the helicopter only to watch his anchor tape break away and unravel and when it reached him he freefell about 80 feet to the ground and unfortunately was pronounced dead when help arrived.
On return to Australia some two to three months after my visit to SVN I was posted to the position of Command Movements Officer at Headquarters Support Command in Melbourne. I very smartly set about rectifying the situation that I had experienced with the wet caskets in Vung Tau. I ordered the waterproofing of the whole pallet with a plastic waterproof covering so as to prevent the ingress of fluid into the caskets prior to loading onto the aircraft. This I hoped would prevent further episodes of the lids coming off caskets in the future due to moisture.
I did not experience any further traumatic events during the next few years. However in 1984 whilst addressing a reserve group of soldiers in Bunbury I just could not continue to speak to them and immediately handed over the group to my Warrant Officer and left the lecture precinct. I was looking at a sea of green uniforms and I cannot explain my reaction to that. The same feelings of tensions and uneasiness have arisen ever since then when I have been required to present any material or make a presentation of any kind.” (Exhibit A1)
[The Tribunal notes that “SVN” refers to South Vietnam.]
The applicant’s representative also tendered in evidence an exchange of e-mails between the applicant and Phil Brightwell in November 2012 (Exhibit A2). The applicant’s e-mail, dated 16 November 2012, relevantly states as follows:
“ Hi Phil,
A voice from the deep??!! While mulling over my annual Xmas newsletter, a thought came to me in a flash!! viz, that you may be able to give me some back-up info to help consolidate a matter I have going before our Veteran’s Affairs department?? It has to do with our time in Air Movements RAAF, Butterworth, and the handling of Casevacs, caskets human remains etc. If I pose a few questions, would you mind giving me your recollection/s of the matters at that time?? Hoping you don’t mind, I’ll list a couple of things here-under!
1.There was an ‘older’ RAF sergeant with us, when we were working together in the integrated (RAF/RAAF) air movements section, stocky med-height, dark hair, had worked in movements in the Berlin Airlift period, had stories of ‘cement dust and a/craft internal condensation’ forming a sold ‘ballast’ in a/craft operating in that environment;
a. do you recall him, and possibly his name?
2.Would you recall at least one consignment of caskets (filled), arriving at BUTT where the caskets were made from compressed cardboard type stuff, they had been in some rain fall at Vung Tau prior to loading and were a bit soggy at BUTT, when lifted the top cover lifted off and ‘a plastic-shroud-covered arm flopped around’ – apart from a few Malay handlers ‘going pale!!’ the RAF sergeant pushed the arm back in and dropped the cover back, he then organized a (as I recall) restraining strap to go around the casket to keep it together. [They had temporarily run out of the aluminium caskets at Vung Tau]. If you do remember this,
a. what colour-type do you recall the casket being?
b. What colour do you recall the shroud plastic being?
3.And, it’s probably too much to ask if you could put an approximate month on it – if in fact you do recall any of it? I can’t place a time on it, other than to state that it must have been before all you RAF types went back to the UK, and left us to push back the red hoard all on our own!!!
Sorry to dump the unpleasant memories bit on you, but it could help my case a bit if you could have some answers on that time.
…” (sic)
Mr Brightwell’s reply, dated 19 November 2012, relevantly states as follows:
“ …
In answer to your questions:
1.I am pretty certain the RAF sergeant you referred to was ‘Dan’ Archer. (Dan wasn’t his real name – that was a nickname pinched from a long-running BBC radio programme called ‘The Archers’, and it was the name of the leading character. That programme is still running, by the way – and it was one of my late grandmother’s favourites! You could probably get his correct name from our Ministry of Defence, if you needed it; if not, I might be able to get it for you.)
2.I only vaguely remember the incident with the soggy cardboard caskets; I don’t think it happened on my shift. I think the cardboard caskets were buff-coloured, and the plastic shrouds were black, but I am not really sure about that.
3.I’m afraid I have no idea about when that actual event took place – just that it was somewhere between the time when you arrived in AMSBUT and when I left there on 1/3/69. Sorry.
…”
The Recent Psychiatric Evidence
Dr Lance Risbey
A report of Dr Risbey, Consultant Psychiatrist, dated 28 March 2011, states as follows:
“ Further to my previous assessments and reports on this man (the last being 8th February 1999) I have had the opportunity of reviewing Mr Halvorson, pursuant to a new referral by his GP and have seen him on 13th September 2010, after an interval of 11½ years since the previous attendance. I have also seen him on 21st October, 3rd November, 10th November and 1st December 2010, and also on 13th January and 11th February 2011.
As previous reports indicate, Mr Halvorson has a long history of anxiety symptoms, and in particular, panic when speaking in public, in particular, since 1984, and in an AAT document entitled ‘Oral reasons for decision’ of 6th July 1999, it was concluded that the panic he felt in Bunbury in 1984 was connected with his military service. The last paragraph read ‘The decision under review correctly accepted that liability for that first feeling of panic as an episode of aggravation of a previously existing chronic anxiety condition because it arose in the course of his employment with the RAAF Reserves. The tribunal is however unable to accept the applicant’s claim that the underlying anxiety condition itself, whatever its correct diagnosis, arose out of, during or in the course of his employment with the Royal Australian Air Force. The tribunal agrees with the decision maker that the effects of the aggravation has (sic) ceased at the date of determination and for these reasons, the determination under review is affirmed’. (ie the decision by the DVA to reject his claim was affirmed.)
The question arises as to the underlying source of his condition, ‘whatever it’s (sic) correct diagnosis’, in that, if it did not arise out of or during or in the course of his service with the RAAF, then from where else did it arise? Related to this is the question as to the presence or not of a pre-existing, underlying condition, and if such existed, its nature, time of onset, and causation.
It is of interest to note that he saw Psychiatrist, Dr John Pougher, on 7th July (sic) 1993, who diagnosed ‘Anxiety Disorder with Social Phobic Disorder’. Noting Mr Halvorson’s tearfulness when describing his experiences in relating (sic) to South Vietnam, he nevertheless stated it was ‘not related to service’.
The diagnosis has been in dispute, but this of (sic) secondary importance as highlighted by the AAT decision. I no longer regard the diagnosis of Post-Traumatic Stress Disorder (which I had previously suggested as being the most likely fit to his set of symptoms, and I note that Dr Danny Shub, Psychiatrist, stated in his report of 4th June 1996 that the diagnosis was Generalised Anxiety Disorder. Dr Shub pointed out that not only was the condition not consistent with PTSD, but neither was it consistent with ‘panic attack’. However, panic attack is not a diagnosis but only a single event as a manifestation of underlying conditions. Panic attacks can occur within PTSD, Panic Disorder, or other anxiety disorders including Social Phobia (Social Anxiety Disorder), although not all cases of social phobia suffer from panic attacks.
I am advised by the DVA that, as yet, the Repatriation Medical Authority have not issued Statements of Principles for social phobia, and therefore they would be guided by specialist opinion. It is further complicated by issues (general, and specific to this case) of Social Phobia arising as a complication of a pre-existing disorder.
Whilst on the subject of the appropriate diagnosis, Mr Halvorson’s symptom pattern over the years since 1984 fits that of the diagnosis of Social Phobia better than any other condition, and the main issue remains the causation. As stated above, this is in accord with Dr Pougher’s diagnosis of January 1993.
Diagnostic Criteria for social phobia (DSM-IV 300.23) include:
A.A marked and persistent fear of one or more social or performance situations in which the person is exposed to unfamiliar people or to possible scrutiny by others. The individual fears that he or she will act in a way (or show anxiety symptoms) that will be humiliating or embarrassing.
In Mr Halvorson’s case, he was speaking to a group of Army Reservists in Bunbury in 1984, and after managing well for the first five minutes he became aware that he was facing army men whose colleagues had been killed. Over the next few minutes he began to feel increasingly panicky, although at the time did not see the casual (sic) connection. As his talk proceeded, he felt increasingly panicky, thinking ‘they are all looking at me, hanging on every word’, and he became aware, in an uncomfortable way (and for the first time) of being the focus of attention. He later realised that the feeling was reminiscent of a feeling he had experienced whilst handling the caskets of dead soldiers during the Vietnam War, and that speaking to Army men was the trigger for that first major panic attack.
He suffered occasional episodes of anxiety whilst speaking in public over the next nine years, and then began to experience panic in such situations more frequently from 1993 onwards. During each attack he would feel weak, as if about to collapse.
B.Exposure to the feared social situation almost invariably provokes anxiety, which may take the form of a situationally bound or situationally predisposed Panic Attack.
As noted above, episodes of public speaking subsequent to 1984 repeatedly provoked great anxiety, indicating that social phobia had set in. Indeed, from December 1984 he progressively lost confidence in his former ability to give talks in public. A second major Panic Attack occurred in 1986 whilst in Northam. From 1993, having now worked in the Ministry of Justice for the previous six years, he was increasingly troubled by having to engage in public speaking at a course for managers at the Wembley Institute of Management, together with increasing difficulties with internal politics in his department. During merger talks (to staff of departments merging) he had to take his turn in speaking about his section, and at these times he felt like running out of the room. He would become nervous and sweaty, would lose the thread of his concentration, and felt ‘mentally bound up’.
This anxiety in reaction to anticipating further public speaking has continued to be emotionally crippling and, in fact behaviourally limiting for him.
C.The person recognises that the fear is excessive or unreasonable.
Mr Halvorson certainly has insight that his fear is irrational and excessive, especially in view of his ability to speak in public without such fear prior to 1984. Having been able to fulfil such duties without anxiety, he was dismayed, and continues to be dismayed, at his anxiety in this situation, from 1984 onwards.
D.The feared social or performance situations are avoided or else are endured with intense anxiety or distress.
From the history as noted above, and in other reports, it is clear that Mr Halvorson’s symptoms since 1984 certainly satisfy this Criterion.
E.The avoidance, anxious anticipation, or distress in the feared social or performance situation(s) interferes significantly with the person’s normal routine, occupational (academic) functioning, or social activities or relationships, or there is marked distress about having the phobia.
As with Criterion D, Mr Halvorson’s history indicates that his symptoms clearly satisfy Criterion E.
F.In individuals under age 18 years, the duration is at least 6 months.
Not applicable as he is over age 18.
G.The fear or avoidance is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition and is not better accounted for by another mental disorder (eg Panic Disorder With or Without Agoraphobia, Separation Anxiety Disorder, Body Dysmorphic Disorder, a Pervasive Developmental Disorder, or Schizoid Personality Disorder).
In the past I had regarded Mr Halvorson as probably suffering from an atypical form of Post-Traumatic Stress Disorder, but in my opinion his fear and avoidance is specifically related to speaking in public, especially in the military context. This highlights the circumstances of the onset of this condition in 1984, as described previously. The military connection links directly back to his service in South East Asia when handling the coffins of soldiers killed in action, and thinking about their personal lives (as documentation often indicated clues to their circumstances, in some detail). In 1984, when faced with a group of Army Reservists, many of whom had lost mates in the Vietnam War, he became overcome with anxiety and other emotions, and has been unable to face this specific situation ever since. Therefore, I consider my previous diagnosis of PTSD is not as good a fit to the symptoms as is Social Phobia. Thus, in view of Social Phobia being the best fit, his symptoms are not better accounted for by another mental disorder (not even PTSD).
H.If a general medical condition or another mental disorder is present, the fear in Criterion A is unrelated to it, eg, the fear is not of Stuttering, trembling in Parkinson’s disease, or exhibiting abnormal eating behaviour in Anorexia Nervosa or Bulimia Nervosa.
His phobia is certainly restricted to the prospective of (sic) challenge of speaking in public, the difficulty he has endured both in his occupation and in leisure pursuits such as being asked to present awards, or (in his retired capacity) being asked to speak at a meeting at the Department of Veterans’ Affairs (a Consultative State Forum, reporting to the Commonwealth Consultative Forum as on 19th October 2010). Even prior to the meeting, he became anxious about attending, because he was apprehensive about being put in a position when he may be called on to speak ‘in public’. In other words, he was in fear of having the fear attack should the necessity to speak in public arise. Therefore during the meeting he felt tense, and after the meeting this feeling continued for at least two days. He related this to being similar to the fear of speaking at a military parade (for example, being asked to present trophies at an RAAF Navigation Graduation). He said that the previous day he developed diarrhoea and a nervous agitated feeling in his abdomen. He has had to cancel such arrangements because the fear becomes too intense.
With regarding the specifying for generalisation (sic) (see under ‘B’ above), there does seem to have been some generalisation to various social situations and not just public speaking in the strictest sense. Even in close friendships, he feels held back and somewhat inhibited, and has received feedback that he seems detached.
His situation is somewhat more complex and, like many psychiatric conditions, does not neatly fit into a DSM ‘box’ in its entirety. For example, as a result of his military training and service, he remains in conflict about being vulnerable and trusting in close relationships (essential to intimacy) on the one hand, and not being able to be vulnerable in the military setting which ‘became normal for me’, as he’s stated This has left him with a sense of perhaps missing out on a ‘normal life’. Further, he continues to become upset when thinking about the military situations which came back to him so clearly in 1984 (and subsequently), in that he still gets upset recalling coffins coming through the base at Butterworth, and his reading of the documents accompanying the caskets.
With previous assessments, diagnoses, and DVA determinations, it is understandable that the nature of his condition was in doubt, as was the nature of any causal connection between military service and the onset of his social phobia in 1984. It is clear that an audience of military personnel on the first occasion of his acute onset of anxiety was a relevant factor in causing that onset; even more so was the thought that some of these men would have served in Vietnam and lost mates there. However, Mr Halvorson’s strict officer training and stoical personality drove him to fight the symptoms such that he was reluctant to acknowledge to himself how vulnerable he was to these reminders. Nevertheless, the recurrence of the symptoms, in similar circumstances, made it clear (and eventually, clear even to him) that the military connection was crucial in the onset of this condition.
Regarding the significance of this connection, it is important to recall that he had previously been able to speak in public with confidence. This had indeed been part of his duties as an Air Force Officer. Furthermore, his current work was not particularly stressful at the time (even though this has been attributed with the causation of his anxiety, simply because that was his particular employment at the time). To attribute to his employment the cause of his disorder is to take the close temporal relationship at face value, without looking at the particular content and context of the circumstances.
In summary, it is my opinion that this man suffers from a social phobia, being a specific anxiety disorder, which arose in 1984 in circumstances which triggered the activation of a latent anxiety reaction to his overseas service when he handled caskets containing dead soldiers. I have demonstrated that the diagnostic entity which is the best fit for his symptoms is that of Social Phobia, and have demonstrated the nature in which his symptoms satisfy the diagnostic criteria of that condition, as per DSM-IV (1994).
Further, it is my opinion that the evidence supports strongly the hypothesis that the causation of his condition is a combination of (a) prior social stressors during his service at RAAF Butterworth in the later 1960’s, and (b) the triggering effect of giving a talk to a group of Army reservists in Bunbury in late 1984. These two factors combined, generated his condition, a condition arising in a man who had previously been a confident public speaker. Taking into account the totality of evidence, it appears that his condition has arisen because of his military service, without which it would not have arisen. In this regard my opinion differs from that of my colleague Dr Pougher.
Previous assertions that his condition beginning in 1984 was not causally connected to Military Service may or may not have been made with reference to a history of earlier symptoms, while he served in RAAF (1952 – 1975, fulltime; and 1975 – 1985, in Active Reserves). His overseas operational service included three months in Jakarta in 1955, then in Malaysia (Butterworth) from 1959 – 1962 , and 1968 – 1969 (including a week in Vietnam in 1969). The latter period included the most upsetting psychological stressors (handling the caskets, and seeing a serviceman fall to his death from a height of 80 feet, just below a helicopter when the rappelling tape severed).
Of significance, however (and mentioned in previous reports) was a helplessness-inducing and threatening experience in Jakarta in 1955 when an Armed Guard pointed a rifle at him, and then tightened his finger on the trigger.
In his medical records, it is noted in April 1963 that he was prescribed ‘Librium’ for a ‘Mild reactive anxiety state’, and on September 1965 he was prescribed ‘Pro-banthine’ for Gastro-intestinal symptoms associated with anxiety. These notes indicate the earliest records of a developing anxiety state which may or may not have been diagnosable as a disorder at that stage.
In October 1971 he was prescribed ‘Valium 2mg bd’ for more overt anxiety symptoms (this following his overseas service in 1968 and ’69).
There is thus good evidence of the beginnings of an anxiety state (not specified), beginning in the 1960’s, which became more overt with panic and social phobia in 1984.
The details of symptoms and history in my previous reports remain valid, including a lengthy update report of 8th February 1999 and 9th December 1997. However, I do and previously did retract the diagnosis of Post-Traumatic Stress Disorder on the grounds that it is not the best fit for his symptoms, and that Social Phobia is the best fit. Further, I initially offered the suggestion that PTSD was the ‘probable’ diagnosis in my first report of 7th March 1995, and changed (retracted) it in 1997.
In summary this condition has disabled him significantly over a number of years (from 1984 onwards) and continues to distress him, for example when he is invited to speak in public (such as presenting awards to military trainees). He remains highly distressed and anxious at the prospect of such an engagement, and is usually unable to carry through with it.
His current age (77) makes it unlikely that psychological treatments will be successful in relieving him of his Anxiety Disorder, and the most practical solution for him is to continue avoiding public speaking engagements and to decline invitations to such. This is unfortunate, but as he has now been suffering this condition since 1984 (more than 26 years), and is nearing the age of 78, it is the most practical approach.” (T10, pp 105–110)
Dr Jonathon Spear
Dr Spear, Consultant Psychiatrist, was called as a witness by the respondent. He confirmed that, at the request of the Department of Veterans’ Affairs, he assessed the applicant on 4 October 2012 and prepared a report, dated 19 October 2012, regarding that assessment. Dr Spear’s report states as follows:
“ Thank you for referring Mr Louis Allan Raymond Halvorson for psychiatric assessment and report. Based on Mr Halvorson’s medical condition as specified in your referral, I confirm that my specialty is appropriate for the conduct of this assessment.
Having reviewed the available records and file data, interviewed and examined Mr Halvorson, I now submit a detailed medical report in answer to your request.
I obtained the following information from my interview with Mr Halvorson (unless otherwise specified).
FILE MATERIAL AVAILABLE:
The following file materials were made available to me:
1.Referral letter from Department of Veterans’ Affairs dated 25 September 2012.
2.Statements (sic) of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008.
3.Statements (sic) of Principles concerning Anxiety Disorder No. 101 of 2007.
4.Statements (sic) of Principles concerning Anxiety Disorder No. 15 of 2011.
5.Statements (sic) of Principles concerning Anxiety Disorder No. 42 of 2010.
6.Appeals Tribunal Reasons for Decision dated 23 May 2012.
7.Application for review of decision dated 17 April 2012.
8.Department of Defence clinical records Dr Lance Risbey, treating psychiatrist dated 8 February 1999, 28 March 2011 and 7 March 1995.
9.Report of Dr Danny Shub dated 4 June 1996.
HISTORY:
The documented history confirms that Mr Halvorson has been given a number of diagnoses including Anxiety Disorder, Posttraumatic Stress Disorder and Social Phobia. He first claimed for anxiety in 1992. He had a further claim in 1995 with Dr Lance Risbey, treating psychiatrist, diagnosed ‘a well-suppressed Posttraumatic Stress Disorder’. Dr Danny Shub reviewed Mr Halvorson in 1996 and diagnosed Generalised Anxiety Disorder which he described (sic) to civilian employment. In 1999, Dr Risbey provided a further report diagnosing Chronic Anxiety with Panic Attacks or atypical Posttraumatic Stress Disorder. In a further dated (sic) 28 March 2011 Dr Risbey refers Mr Halvorson (sic) as having social phobia which he attributes to handling coffins containing the bodies of deceased servicemen during his military service with RAAF Butterworth in Malaysia.
Mr Halvorson’s documented stressors including (sic) handling injured soldiers, handling coffins containing the remains of deceased servicemen in his role as squadron leader at RAAF Butterworth in Malaysia. It also (sic) documented that he witnessed a serviceman fall while repelling (sic) from a helicopter. In addition, there is a report of him being threatened by an Indonesian soldier.
In 1993 (sic), he was treated with the Benzodiazepine Librium for ‘mild anxiety’.
In 1970, he was again documented to be prescribed a Benzodiazepine Diazepam 2mg twice daily for anxiety and he was reported to see a psychiatrist in Melbourne.
In 1984, he reported a panic attack when speaking to an audience of reserve soldiers. He subsequently experienced anxiety prior to making presentations and in July 1984 took some stress leave from work. Documentation indicated he felt victimised at work and issues to deal with internal organisational politics.
Dr Shub raised the possibility of excessive alcohol use. He noted symptoms including irritability, panic and some reduction in socialisation. He noted that Mr Halvorson appeared well on mental state examination.
There is reference to reports by two further psychiatrists, Professor Burvill and Dr Mustac. These records are not on file.
Dr Risbey, treating psychiatrist, appears to have made a diagnosis of Posttraumatic Stress Disorder. He made a diagnosis of 10% impairment according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment guidelines. His most recent diagnosis was one of social phobia made in 2011.
In 1998, he was documented to have symptoms including avoidance of talking about the Vietnam War, fear of hurting his wife, tension headaches, fear of having panic attacks, anger regarding an employer, anxiety in crowded trains or cinemas, panic attacks, reduced confidence, ideas of guilt, impaired concentration and a fear of loss of control.
Presenting Complaints:
At interview, Mr Halvorson confirmed that he had served at RAAF Butterworth in Malaysia between January 1968 and February 1970. His work involved responsibility for the processing of soldiers killed in action, including one who had been killed by an assassination and two by accidents.
He believes over the period of time he may have supervised transfer of approximately 84 or 85 deceased servicemen in total. He reported on one occasion there was 17 bodies during heavy period of action in Vietnam. The process involved him being informed that the casket would arrive and him processing the documentation and ensuring that the bodies could then proceed to Australia. He stated regarding the incident, ‘At the time you do your job’.
In 1984, he described an incident when he was talking to 60 reservists. ‘I went to pieces I was unable to continue talking’. He had a desire to get out. He believed people were looking at him. He felt self conscious. He went to the back of the room and drank soda water. He was unable to focus on the rest of the presentations.
He subsequently lost confidence speaking in public. He may have experienced somatic anxiety symptoms such as stomach churning, diarrhoea together with apprehension of talking in public and a fear of having further panic attacks. He avoided public speaking when at work with the Ministry of Justice.
When asked (sic) him about the incidents in 1963, he was unable to recall the details of these.
In 1971, he described having a loss of faith in the military system. He was considering leaving the service. He saw a psychologist on three occasions. He was concerned about having stigma of mental health issues. He was advised to make up his own mind. It appears that the psychologist was using a problem-solving approach.
In 1990s, when I enquired about his reported symptom of anger he reported sometime he believed he may have had some anger which he directed at himself because he was angry with himself for feeling anxious. He reported he is only anxious when he was the centre of attention, for example during a presentation. He may also have been anxious perhaps meeting a new group of people particularly if he felt he would be under scrutiny or asked questions.
In terms of avoidant behaviour, he reported he avoids war movies. He avoids crowds. If he does go into crowded places he feels panicky or uncomfortable.
On one or two occasions, he may have considered suicide particularly when his wife was seriously ill and he was her full-time carer.
He saw a Vietnam Veterans’ counsellor for four sessions in 2010. During these episodes, he became tearful. He was unsure if these sessions were beneficial or not
Work Status:
Mr Halvorson served with the Royal Australian Air Force achieving the rank of squadron leader between 1952 and 1964 then between 1964 and 1974 when he took retirement.
He then served as deputy commanding officer for the Reserve at Royal Australian Air Force Base Pearce between 1975 and 1985. Currently he is treasurer of the Defence Force Welfare Association.
In civilian life he has worked for Government serving with the Department of Corrective Services and then with the Ministry of Justice as a manager. He carried out a survey of infrastructure needs in the prison service throughout Australia and then became a manager of logistics.
In 1980s, his workplace was undergoing merges (sic) and budget stressors. He denied other stressors in his workplace at today’s interview.
In 1996, he reported doing some consulting work before he retired in 2000. He provided consultation advice for the WA Art Gallery.
He was a fleet captain at a yacht club but found it difficult to hand out prizes or to speak recently to a group of school principals.
Current Problems:
Mr Halvorson is anxious if he is expected to speak without notice at social functions in front of an audience. He also feels he might go blank or stuff up in some way. He feels anger that he might have a desire to run from the situation if he is asked is (sic) to speak. He described difficulty relating to his son who is a police officer. He has a fear that he may become remote from his son. He added, ‘It sounds silly’. He worries about his relationship with his son and work situation and how his son might be handling things.
He reported being at a committee meeting yesterday where he felt anxious reading out the annual budget report. He also felt anxious in a post conference dinner. He has had a fear that he might be asked to speak in public.
Lifestyle:
Mr Halvorson typically gets up at 7:00 am. He may have a cup of tea and do the crossword. He does exercise before having his breakfast. He is the treasurer for the Defence Force Welfare Association. This involves recording payments and banking. In addition, he has a number of wood work projects which remain unfinished.
He attends Tai Chi but he avoids taking on the leader position as he has a fear of going blank.
He attends social events at the village centre and attends a weekly coffee meeting. He reported having few friends.
He may drink three glasses of wine a night. He described having half a bottle a night. He described a moderate to high alcohol intake for his age. He denied having concerns about his alcohol abuse or escalating his use, therefore he does not appear to have alcohol dependence. His level of alcohol intake may be sufficient to aggravate his symptoms of anxiety.
He described a high intake of caffeine with two cups of tea and four cups of brewed coffee a day (estimated daily caffeine intake 700 mg).
He denied illicit drug use.
Current Medication/Treatment:
He is under the care of Dr Robert Lawler General Practitioner at the Oakleigh Clinic. He is currently taking Lipitor and Aspirin 75 mg.
Past Medical/Psychiatric History:
Mr Halvorson is documented to have accepted claims for sensorineural hearing loss and tinnitus and left chondromalacia patella. His conditions which have not been accepted include lumbosacral spondylosis, cervical spondylosis, anxiety disorder, posttraumatic stress disorder, social phobia and psoriasis.
Other conditions documented include allergic rhinitis.
In 1963, the military record indicated he had no mental health problem at that time.
Family History:
Mr Halvorson denied a family history of mental health issues.
Personal/Social History:
Mr Halvorson was born in Perth. His father served in the Army Reserve as an officer and then in World War II. His father then worked as a salesman for a car dealership. Before working for the civil service, he was an administrator in Papua New Guinea.
His mother was a homemaker who then worked as an officer (sic) clerk. His sister and twin brother are alive and well. He described a good relationship with them.
At school, he made friends and got on well with most teachers and no issues with school refusal or conduct.
He has been widowed four years. They had a 50-year relationship.
He currently lives alone. He reported some difficulty relating to his younger son.
MENTAL STATE EXAMINATION:
At interview, Mr Halvorson looked healthy. He had white hair and was wearing hearing aids. He was well groomed. He was cooperative and appropriate. His arms were folded. There was no evident distress even when discussing his alleged military trauma.
His speech was normal in rate, tone and volume. He had no formal thought disorder. He described his mood as ‘a bit tense’. He had a normal range of affect. He appeared mentally quick.
He has an obsessional fear of failing or having a panic attack or looking silly or becoming over emotional. There was no evidence of delusions or hallucinations and no thoughts of self-harm or suicide.
He appeared of above average intelligence. He was fully orientated. His memory was intact. His comprehension was normal. His concentration was normal.
In terms of insight, he said ‘it’s not a physical thing it’s in the mind’. He does not know what would help. He finds perhaps focusing on his notes when speaking in public and preparing for the speech can help.
Adaptation: His main reasons for living are that he considers suicide is a sign of weakness.
He tends to cope using rationalisation. He appeared very analytic. He tends to cope by suppressing his emotions. He finds keeping active can be helpful. He finds that preparation and making notes prior to speaking in public is helpful.
Attitude to Problem: Mr Halvorson stated ‘you never leave the military when you have been in it a long time, you have press (sic) on regardless’. ‘I feel angry with myself and avoid situations where I might have to duck and run.’
Premorbid Personality:
Mr Halvorson appeared to be a perfectionist. He described having high personal standards. He has strong sense of responsibility and high expectations . He described an incident where his 20-year-old grandsons were putting their elbows on the table and he found it difficult to suppress the urge to check them for this. He does not like putting up with idiots. Despite this he considers himself to be pretty easy going. He admits to feeling uncomfortable in social situations.
SUMMARY AND ASSESSMENT:
1.What is the diagnosis of the psychiatric condition (if any) from which Mr Halvorson is suffering?
I reviewed Mr Halvorson’s diagnoses according to DSM-IV-TR taking into account the documentation and history provided at interview and his appearance at mental state examination. He appears to fulfil Criterion A exposure to a traumatic event, which would be considered ‘category 1B stressor’.
I could see no evidence of re-exposure symptoms. He appeared to have a number of Criterion C symptoms including a sense of estrangement and restricted feelings.
Apart from worry, I could find no evidence of symptoms of hyperarousal or hypervigilance.
His duration of symptoms has been more than 12 months and appears to have caused him some distress.
Although he had some symptoms suggestive of Posttraumatic Stress Disorder he did not appear to meet the diagnosis of Posttraumatic Stress Disorder as defined in the statement of principles No. 5 of 2008.
Again in review of the statement of principles regarding anxiety disorder, he appears to meet the Criterion A with excessive anxiety and worry. He finds it difficult to control his anxiety, so that he meets Criterion B. He did not appear to have symptoms suggestive of Criterion C such as restlessness, fatigue, impaired concentration, irritability, muscle tension or difficulty falling or staying asleep. His symptoms of worry may be attributable to his caffeine use and alcohol use.
Therefore in my view he does not meet the definition of Anxiety Disorder as defined by the statement of principles.
In terms of DSM-IV diagnoses, Mr Halvorson appears to meet the criteria for Panic Disorder without Agoraphobia, in partial remission. He meets Criterion A in that he experiences anxiety when about being (sic) in a public speaking situation where his sense of attention may be subject to scrutiny. He meets Criterion B in terms of avoiding those situations or enduring them with distress. These symptoms are not best accounted for by another mental health condition such as Social Phobia, Obsessive Compulsive Disorder, Posttraumatic Stress Disorder or Separation Anxiety.
2. In your opinion, what is the cause of the condition?
Given that Mr Halvorson’s onset of panic disorder occurred in the line of his work as a reservist, it seems likely that his symptoms consistent with panic disorder with (sic) agoraphobia are due to his exposure to various alleged military traumas as discussed in the body of the report. Other significant stressors in the documentation included issues in his workplace with a restructuring and more recently a bereavement. He also gives a history of heavy caffeine intake and higher than recommended intake of alcohol both of which may aggravate symptoms of anxiety.
Therefore I consider Mr Halvorson’s military service probably significantly contributed significantly (sic) to his mental health condition but other factors have played a part in terms of aggravating his condition and in delaying a recovery.
…” (original emphasis) (Exhibit R3)
In his oral evidence Dr Spear was referred to Dr Risbey’s report of 28 March 2011. He accepted Dr Risbey’s opinion that the applicant satisfied the DSM-IV diagnostic criteria for Social Phobia and he ultimately accepted that Dr Risbey’s diagnosis of Social Phobia was more appropriate than his initial diagnosis of Panic Disorder Without Agoraphobia in the applicant’s case. He explained that he had arrived at that diagnosis on the basis of the history provided to him by the applicant in his interview on 4 October 2012 but he acknowledged that Dr Risbey “knows [the applicant] much better” than he does. Finally, he opined that the time of clinical onset of the applicant’s Social Phobia condition was 1984.
Medical Evidence Regarding Psoriasis
It is common ground that the applicant suffers from psoriasis. There is, however, little medical evidence before the Tribunal regarding the clinical onset of that condition. That evidence comprises only the following:
·a reference in a clinical history prepared by Dr N Tuppin, Departmental Medical Officer, dated 8 October 1992, in relation to the applicant’s claim for disability pension in September 1992, which states:
“ Gets rash on penis & neck, no clear diagnosis but ? psoriasis” (Exhibit R1, ST2, p 9);
·a report of Dr K Dallimore, Dermatologist, dated 17 November 2009, which refers (inter alia) to “some psoriasis around the orbits” and “elsewhere where he has psoriasis especially of the scalp”. (T4, p 83)
Writeway Research Service Report
A Writeway Research Service report of Air Commodore M J Brennan (Ret’d), dated 24 October 2012, was tendered in evidence by the respondent (Exhibit R2). The contents of that report are as follows:
“ References:
A.Department of Veterans’ Affairs Letter QSM43537 of 16 April 2012
…
Research Task
3.Reference A requested research on matters relating to Squadron Leader Halvorson’s service as follows:
a.Are you able to confirm that there was a mortar attack in Saigon during the period that Mr Halvorson was there?
b.If so, how far from his hotel was it?
c.What procedures were used in taking caskets from the mortuary in Vung Tau to the airport?
d.Were caskets left out in the rain?
e.Were caskets containing bodies of dead servicemen transported from Vung Tau during the period that Squadron Leader Halvorson was there?
…
Vietnam Visit
5.A Personal Record Extract on Squadron Leader Halvorson’s personnel history file shows an attachment for him to ‘RAAFAFV’ (RAAF Australian Force Vietnam) from 15 December 1969 to 20 December 1969 for duty ‘Liaison Visit SV’ (South Vietnam) under the authority PZ8958 of 28 November 1969. Base Squadron Butterworth Personnel Occurrence Report Serial No 51/69 dated 31 December 1969 records that Squadron Leader Halvorson (then a Flight Lieutenant) departed 15 December 1969 by service air on detachment to RAAFAFV wef 15 December 1969 and returned to Butterworth by service air on 20 December 1969 under the authority of PZ8958 of 28 November 1969. …
6.A review of service air flights between Butterworth and Vietnam was conducted and, given the dates of attachment and travel, the then Flight Lieutenant Halvorson would have flown to/from Vietnam on the following service air flights:
a.MV 769. 37 Squadron Unit History Sheets from December 1969 record that FLTLT R W J Cooper GD Plt and crew departed RAAF Richmond on aircraft A97-178 on 13 December 1969 and returned on 17 December 1969 on A97-159. The itinerary and schedule for this mission would have been:
Date Route 13 Dec 69 Richmond to Darwin 14 Dec 69 Darwin to Butterworth 15 Dec 69 Butterworth to Vung Tau/Vung Tau to Butterworth 16 Dec 69 Butterworth 17 Dec 69 Butterworth to Richmond This was a medical evacuation mission and patients would have been carried on the Vung Tau to Butterworth and Butterworth to Richmond legs. By policy, caskets containing the remains of deceased personnel were not carried on medical evacuation missions. The then Flight Lieutenant Halvorson would have flown to Vietnam on the Butterworth to Vung Tau leg.
b.VT449. 36 Squadron Unit History Sheets for December 1969 record that FLGOFF R A Howard GD Plt and crew departed RAAF Richmond on aircraft A97-210 on 19 December 1969 and returned to Richmond on 23 December 1969. The itinerary and schedule for this mission would have been:
Date Route 19 Dec 69 Richmond to Darwin 20 Dec 69 Darwin to Vung Tau/Vung Tau to Butterworth 21 Dec 69 Butterworth 22 Dec 69 Butterworth to Darwin 23 Dec 69 Darwin to Richmond This was a standard Vung Tau courier mission and the then Flight Lieutenant Halvorson would have flown from Vietnam on the Vung Tau to Butterworth leg.
7.No detailed itinerary covering the then Flight Lieutenant Halvorson’s visit to Vietnam in December 1969 was found during the review of relevant files and other records. Other than for an entry in Unit History Sheets for 1 Operational Support Unit recording his arrival at that unit on 15 December 1969 for a liaison visit, no records were found of other locations visited or dates spent at particular locations.
Mortar Attack on Saigon
8.Squadron Leader Halvorson advises that, during his visit to Vietnam in December 1969, he was accommodated in the Buis Hotel for 2 or 3 nights and visited Tan Son Nhut Airport during the day. On one of the nights that he was at the Buis Hotel, there was an enemy mortar attack on Saigon, during which he took cover under his hotel bed. He estimates that the mortar rounds exploded about 400 metres from the Buis Hotel.
9.Air Base Defense in the Republic of Vietnam 1961 – 1973 lists an attack on 19 December at 0241 hours against Tan Son Nhut Air Base involving four stand-off weapons being fired at the Base. There was no damage recorded. Tan Son Nhut Air Base was some seven kilometres from the Buis Hotel which was situated in Cholon. It was on the North side of Dai Lo Hong Bang in the block bounded by Su Van Hanh on the East and Duong Nguyen Duy on the West. Hong Bang has had a name change and is now called Nguyen Chi Thanh.
10.Editions of the Saigon Post covering the period of Squadron Leader Halvorson’s visit to Vietnam were reviewed at the National Library. There were articles covering three attacks in Saigon during this period, one being an attack on the premises of a newspaper, one being a rocket attack on Saigon and one being the attack on Tan Son Nhut mentioned in the previous paragraph. Details of these attacks taken from the Saigon Post articles follow.
11.The 17 December 1969 edition of the Saigon Post contained an article covering an attack in Saigon early the previous day and reported the following details. Early Tuesday morning (16 December 1969) a group of terrorists believed to be Viet Cong attacked Chin Loan (Right Opinions) newspaper offices in Saigon with gunfire and explosives. A watchman and two other employees were injured. The explosives ripped down the building causing extensive damage to the newspaper’s various departments and two printing presses.
12.A review of Headquarters Australian Forces Vietnam Monthly reports, Duty Officer’s Log Book and Provost Units Monthly reports was conducted at the Australian War Memorial but these records were not helpful in identifying the location of the attack on the Chin Loan newspaper. Internet searches have not provided any information on the newspaper or its location. Accordingly, the distance between these offices and the Hotel Buis has not been determined. Notwithstanding, given that the then Flight Lieutenant Halvorson arrived at Vung Tau on 15 December 1969 and Unit History Sheets for 1 Operational Support Unit record that he arrived that day for a liaison visit, it seems unlikely that he would have been in Saigon in the early hours of the morning of 16 December 1969.
13.The 18 December 1969 edition of the Saigon Post contained an article covering an attack on Saigon the previous day and reported the following details. The communists trained their guns anew on Saigon early Wednesday (17 December 1969) slamming a 122mm rocket into a residential area on Phan Thanh G n (unclear but could be Gian) street. Initial reports said four civilians were wounded, including two women, and two houses were damaged. The 20 December 1969 edition of the Saigon Post contained an article also covering this attack with the following details Early Wednesday communist troops fired a 122mm rocket into downtown Saigon. The attack wounded four civilians and destroyed a house.
14.A review of Headquarters Australian Forces Vietnam Monthly Reports, Duty Officer’s Log Book and Provost Units Monthly reports was conducted at the Australian War Memorial but these records were not helpful in confirming the location of the attack on Phan Thanh Gian street. A search using Google Maps identified only one Phan Thanh Gian street in the vicinity of Ho Chi Minh City. This street is some 15 kilometres from the location of the Hotel Buis.
15.The 20 December 1969 edition of the Saigon Post also contained an article covering the attack on Tan Son Nhut the previous day (19 December 1969) – see paragraph 9 – and reported the following details. Communist gunners attacked Tan Son Nhut firing four big Russian-made rockets into the sprawling installation. A military spokesman said the 122mm rockets slammed into the base shortly before 3am. Spokesmen described South Vietnamese and American military casualties as slight. They also said there was light damage to material. One of the rockets struck a housing area for South Vietnamese Air Force dependants killing one civilian and wounding five others.
Repatriation of Remains of Deceased Australian Servicemen
16.Squadron Leader Halvorson advises that, during his period of service in Butterworth from 1967 to 1970 as Air Movements Officer, he was involved with the repatriation of bodies of dead servicemen from Vietnam to Australia and the transportation of wounded servicemen being sent back to Australia. He has said that there were 86 deceased member caskets processed for movement through Butterworth during his time there. On one occasion, the lid of a casket came off and it was found to be waterlogged. Squadron Leader Halvorson advises that on his visit to Vietnam he went to Vung Tau, where he saw caskets on pallets laying in the open waiting to be loaded into aircraft. These caskets were wet.
17.As Air Movements Officer at Butterworth, Squadron Leader Halvorson would have had an involvement in the repatriation to Australia of the remains of servicemen killed in Vietnam and of the transportation of wounded servicemen. The scheduled route for all RAAF transport aircraft returning from Vietnam to Australia included a crew rest day at Butterworth and the Air Movements Section at Butterworth, which Squadron Leader Halvorson headed, would have been involved in the loading and unloading of these aircraft.
18.Records show that twelve Australian servicemen, ten Army and two RAAF, died in Vietnam during the period 3 December to 19 December 1969. CARO records of the ten Army personnel were reviewed to determine details of the repatriation of their remains from Vietnam and only one of these servicemen killed in this period was repatriated from Vietnam during the then Flight Lieutenant Halvorson’s visit there. These remains were carried on the RAAF courier VT 448 which departed Vung Tau for Butterworth on 17 December 1969.
19.Personal history records for the RAAF members were examined at National Archives but there are no details of the repatriation of their remains to Australia in those records. However, for the airman who was killed on 3 December 1969, cemetery records show he was buried on 11 December 1969 at Fawkner Park Cemetery in Melbourne so his remains were repatriated to Australia prior to the then Flight Lieutenant Halvorson’s arrival in Vietnam.
20.The Casualty File for the other RAAF airman was examined at Defence Personnel Records at Queanbeyan. Entries on this file show that he died on 11 December 1969 from injuries sustained in a motor accident on 3 December 1969 and that his remains were repatriated from Vung Tau on 13 December 1969 on RAAF courier mission PG 952. This mission started at RAAF Richmond on 11 December 1969 and concluded at RAAF Richmond on 16 December 1969. An entry on the file shows that his remains were carried by air from Tan Son Nhut on the am AVF courier on 13 December 1969 for loading on the PG 952 mission aircraft. Cemetery records show that he was buried at Mr (sic) Gravatt Cemetery in Brisbane on 18 December 1969.
21.The remains of all Australian servicemen killed in Vietnam were processed through the USAF Mortuary at Tan Son Nhut. All bodies were embalmed and transhipped to their destination in the well known (then and now) hermetically sealed aluminium US pattern caskets. Because of the embalming process, refrigeration of remains or storage in temperature controlled environment was not required. This pragmatic approach was required as hundreds remains (sic) awaited shipment at one time or another.
22.The repatriation procedure for Australian servicemen included carriage of remains to Australia on RAAF courier aircraft. The remains of deceased Australian servicemen were not taken from the mortuary at Vung Tau to be loaded on to a RAAF aircraft for repatriation; remains were transhipped from Tan Son Nhut to Vung Tau in the morning of the day the RAAF courier aircraft was scheduled to arrive there.
23.Squadron Leader Halvorson advises that, on one occasion, the lid of a casket came off and it was found to be waterlogged. As noted above, the caskets used for repatriation of remains were the standard US pattern aluminium caskets which were hermetically sealed and which under normal circumstances would not have permitted water entry. No previous reports of a waterlogged casket have been advised to Writeway research and a former Commanding Officer of 1 Australian Field Hospital is unaware of any such incident.
24.The research has been unable to find a definitive answer to whether caskets would have been left out in the rain. The deliberate leaving of caskets in the rain for long periods is inconsistent with the reverence with which servicemen normally afford their fallen comrades but caskets may well have become wet if there was rain during aircraft loading/unloading operations.
Summary of Findings
25.Squadron Leader Halvorson was attached to RAAF Australian Forces Vietnam from 15 to 20 December 1969 for a liaison visit. He would have travelled from Butterworth to Vung Tau on 15 December 1969 on RAAF mission MV 769 and returned to Butterworth from Vung Tau on RAAF (sic) 20 December 1969 on RAAF mission VT449. No detailed itinerary covering the then Flight Lieutenant Halvorson’s visit was found during this research task. Other than for an entry in Unit History Sheets for 1 Operational Support Unit recording his arrival at that unit on 15 December 1969 for a liaison visit, no records were found of other locations visited or dates spent at particular locations.
26.There were three attacks in Saigon during the period of Squadron Leader Halvorson’s visit to Vietnam:
a.Early morning of 16 December 1969, a group of terrorists believed to be Viet Cong, attacked Chin Loan (Right Opinions) newspaper offices in Saigon with gunfire and explosives;
b.Early morning of 17 December 1969, a 122mm rocket was fired into a residential area on Phan Thanh G n (unclear but could be Gian) street;
c.On 19 December at 0241 hours, four stand-off weapons were fired at Tan Son Nhut Air Base.
The location of the Chin Loan newspaper could not be identified so its distance from the Hotel Buis where the then Flight Lieutenant Halvorson was billeted cannot be determined. A Phan Thanh Gian street in the vicinity of Ho Chi Minh City was located on Google Maps and is located some 15 kilometres from the Hotel Buis. Tan Son Nhut Air Base was located some seven kilometres from the Hotel Buis.
27. The remains of one Australian serviceman were repatriated from Vietnam during the then Flight Lieutenant Halvorson’s visit there. These remains were carried on the RAAF courier VT 448 which departed Vung Tau for Butterworth on 17 December 1969. Caskets were not taken from the Vung Tau mortuary for loading on RAAF courier flights; caskets were transported from Tan Son Nhut to Vung Tau on the morning of the day the RAAF courier aircraft was scheduled to arrive there.
28. No previous reports of a waterlogged casket have been advised to Writeway Research and a former Commanding Officer of 1 Australian Field Hospital is unaware of any such incident. Caskets used for repatriation of remains were the standard US pattern aluminium caskets which were hermetically sealed and which under normal circumstances would not have permitted water entry. However, caskets may well have become wet if there was rain during aircraft loading/unloading operations.” (original emphasis)
The Relevant Legislation
The VE Act
Section 9(1) relevantly provides:
“ … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
Section 7(1) relevantly provides:
“ … for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…
…”
The words “disease” and “injury” are defined in s 5D(1) as follows:
“ disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 120, which deals with standard of proof, relevantly provides
“(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury …;
(b) that the disease was a war‑caused disease …; or
(c) that the death was war‑caused …;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…”
Section 120A relevantly provides:
“ …
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
Section 196B relevantly provides:
“(1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non‑warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease — it would not have occurred:
(i) but for the rendering of that service by the person; or
…”
The Statements of Principles
The relevant Statements of Principles, as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, are referred to below (see paragraphs 32–33).
Analysis and Findings
The relevant diseases/injuries
The first matter which the Tribunal is required to determine is whether the applicant has suffered any relevant diseases or injuries. That matter falls to be determined, in accordance with s 120(4) of the VE Act, to the Tribunal’s reasonable satisfaction – that is, on the balance of probabilities: Repatriation Commission v Cooke (1998) 90 FCR 307 at 312; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-635.
It was ultimately common ground that the applicant suffers from Social Phobia (Social Anxiety Disorder) which he contracted in 1984. On the basis of the report of Dr Risbey dated 28 March 2011 (see paragraph 11 above) and the oral evidence of Dr Spear (see paragraph 13 above), the Tribunal so finds. The Tribunal also finds that the applicant’s Social Phobia is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.
It is also common ground that the applicant suffers from psoriasis. As regards the time of clinical onset of that condition, the Tribunal, having regard to the medical evidence referred to in paragraph 14 above, is not satisfied that the applicant suffered from that condition prior to 2009. The Tribunal is, however, satisfied, on the basis of Dr Dallimore’s report of 17 November 2009, that the applicant contracted psoriasis in 2009, and it so finds. The Tribunal also finds that the applicant’s psoriasis is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act).
Is the applicant’s Social Phobia a war-caused disease?
The Repatriation Medical Authority has neither determined a Statement of Principles under s 196B(2) of the VE Act, nor declared that it does not propose to make such a Statement of Principles, in respect of Social Phobia. That being the case, s 120A(3) of the VE Act does not apply in relation to the applicant’s claim in respect of incapacity from Social Phobia: see s 120(4). Instead, the question whether the applicant’s Social Phobia is a war-caused disease falls to be determined in accordance with subss (1) and (3) of s 120 of the VE Act.
Pursuant to s 120(3) of the VE Act, the Tribunal, in the present case, is required to determine, “after consideration of the whole of the material before it”, whether it is “of the opinion that the material before it” does, or does not, “raise a reasonable hypothesis connecting” the applicant’s Social Phobia with the circumstances of his “operational service”.
The Tribunal is of the opinion that the material before it raises a hypothesis connecting the applicant’s Social Phobia with the circumstances of his RAAF service overseas in the periods 1955 and 1967–1970. The question, however, is whether the material before the Tribunal raises a reasonable hypothesis connecting the applicant’s Social Phobia with the circumstances of his “operational service” in Vietnam in the period 15–20 December 1969 (being the only relevant period of “operational service” in the applicant’s case).
The Tribunal notes that neither of the two psychiatrists who diagnosed the applicant’s Social Phobia – namely, Dr Risbey and (ultimately) Dr Spear – connected that condition with the applicant’s service in Vietnam in the period 15–20 December 1969. Rather, each of those psychiatrists connected the applicant’s Social Phobia with certain circumstances of the applicant’s service which was not “operational service”, namely, his handling the caskets of dead soldiers, and his witnessing a serviceman falling to his death when rappelling from a helicopter, during his period of service at Butterworth in 1968–1969, and his being confronted by an armed Indonesian guard in Jakarta during a journey from Changi, Malaya to Richmond, New South Wales in 1955. Neither of those psychiatrists referred in his report to any incident during the applicant’s “operational service” in Vietnam in the period 15–20 December 1969. Indeed, none of the psychiatric material before the Tribunal refers to any circumstances of the applicant’s “operational service” in connection with his mental condition, however diagnosed.
Having considered the whole of the material before it, the Tribunal, for the purposes of s 120(3) of the VE Act, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s Social Phobia with the circumstances of his “operational service”. Accordingly, pursuant to s 120(3) of the VE Act, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s Social Phobia is a war-caused disease.
In accordance with subss (1) and (3) of s 120 of the VE Act, therefore, the Tribunal determines that the applicant’s Social Phobia is not a war-caused disease, within the meaning of s 9 of the VE Act.
Is the applicant’s psoriasis a war-caused disease?
The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a Statement of Principles concerning psoriasis. The Statement of Principles which is currently in force is Statement of Principles concerning psoriasis No 31 of 2012 (“the current SoP”). The current SoP relevantly states:
“ …
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that psoriasis and death from psoriasis can be related to relevant service rendered by veterans, ...
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psoriasis or death from psoriasis with the circumstances of a person’s relevant service is:
(a) for a first episode of psoriasis only,
…
(vi)experiencing a category 1A stressor within the three months before the clinical onset of psoriasis; or
(vii)experiencing a category 1B stressor within the three months before the clinical onset psoriasis; or
…
Other definitions
9.For the purposes of this Statement of Principles:
‘a category 1A stressor’ means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
‘a category 1B stressor’ means one of the following severe traumatic events;
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
…
‘relevant service’ means:
(a) operational service under the VEA;
…”
The Statement of Principles which was in force when the respondent made its decision in this matter on 16 March 2011 was Instrument No 56 of 2002 concerning psoriasis (“the 2002 SoP”). The 2002 SoP relevantly stated:
“ …
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that psoriasis and death from psoriasis can be related to relevant service rendered by veterans, …
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psoriasis or death from psoriasis with the circumstances of a person’s relevant service are:
…
(e) suffering from a clinically significant anxiety disorder or a clinically significant depressive disorder at the time of the clinical onset of psoriasis; or
(f) experiencing a severe psychosocial stressor within the 30 days immediately before the clinical onset of psoriasis; or
…
Other definitions
8.For the purposes of this Statement of Principles:
…
‘clinically significant anxiety disorder’ means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
…
‘relevant service’ means:
(a) operational service; or
…;
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
…”
Pursuant to s 120A(3) of the VE Act, a hypothesis connecting the applicant’s psoriasis with the circumstances of his “operational service” will be a reasonable hypothesis, for the purposes of s 120(3), only if it is upheld by the relevant Statement of Principles.
The proper approach for the Tribunal to take in this matter is, first, to apply the current SoP, and, if the application of that Statement of Principles does not result in a determination that the applicant’s psoriasis is a war-caused disease, then to apply the Statement of Principles which was in force when the respondent made its decision in this matter on 16 March 2011, namely, the 2002 SoP: Repatriation Commission v Gorton (2001) 110 FCR 321.
The current SoP
The only factors which might arguably “exist” in this case, having regard to the material before the Tribunal, are the factor set out in cl 6(a)(vi) and the factor set out in cl 6(a)(vii).
As regards each of those factors, however, the material before the Tribunal does not, in its opinion, point to the applicant’s having experienced either a “category 1A stressor” or a “category 1B stressor” during his “operational service”; nor, in its opinion, does that material point to the applicant’s having experienced such a stressor related to his “operational service” within the three months before the clinical onset of psoriasis (which the Tribunal has found to have occurred in 2009 – see paragraph 25 above).
Accordingly, any raised hypothesis seeking to connect the applicant’s psoriasis with the circumstances of his “operational service” is not upheld by either cl 6(a)(vi) or cl 6(a)(vii) of the current SoP, or any other provision of that Statement of Principles, and, therefore, pursuant to s 120A(3) of the VE Act, is not a reasonable hypothesis.
Applying the current SoP, the Tribunal determines, in accordance with subss (1) and (3) of s 120 of the VE Act, that the applicant’s psoriasis is not a war-caused disease, within the meaning of s 9 of the VE Act
The 2002 SoP
The only factors which might arguably “exist” in this case, having regard to the material before the Tribunal, are the factor set out in cl 5(e) and the factor set out in cl 5(f).
As regards the factor set out in cl 5(e), although the material before the Tribunal points to the applicant’s “suffering from a clinically significant anxiety disorder” – namely, Social Phobia – “at the time of the clinical onset of psoriasis” (in 2009), that material does not, in the Tribunal’s opinion, point to the applicant’s “suffering from a clinically significant anxiety disorder or a clinically significant depressive disorder”, which was related to his “operational service”, at that time. Accordingly, a hypothesis seeking to connect the applicant’s psoriasis with the circumstances of his “operational service”, through his suffering from Social Phobia (which the Tribunal has determined not to be a war-caused disease), is not upheld by cl 5(e), together with cl 4, of the 2002 SoP.
As regards the factor set out in cl 5(f), even if the material before the Tribunal pointed to the applicant’s “experiencing a severe psychosocial stressor” during, or related to, his “operational service”, that material does not, in the Tribunal’s opinion, point to his experiencing such a stressor “within the 30 days immediately before the clinical onset of psoriasis” (in 2009). Accordingly, a hypothesis seeking to connect the applicant’s psoriasis with his having experienced a “severe psychosocial stressor” during, or related to, his “operational service” is not upheld by cl 5(f) of the 2002 SoP.
In the Tribunal’s opinion, the material before it does not point to the existence of any other factor set out in cl 5 of the 2002 SoP.
Accordingly, any raised hypothesis seeking to connect the applicant’s psoriasis with the circumstances of his “operational service” is not upheld by the 2002 SoP and, therefore, pursuant to s 120A(3) of the VE Act, is not a reasonable hypothesis.
Applying the 2002 SoP, the Tribunal determines, in accordance with subss (1) and (3) of s 120 of the VE Act, that the applicant’s psoriasis is not a war-caused disease, within the meaning of s 9 of the VE Act.
Conclusion
The Tribunal has determined that the applicant suffers from Social Phobia and psoriasis but that neither of those diseases is a war-caused disease, within the meaning of s 9 of the VE Act.
For the sake of completeness, the Tribunal notes that the applicant did not contend that either his Social Phobia or his psoriasis is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act. Having regard to the evidence before it, the Tribunal confirms that there is no basis for such a contention.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ...(sgd) T Freeman...................
Administrative Assistant
Dated 21 December 2012
Date of Hearing 12 December 2012 Representative of the Applicant Mr B Cooper Representative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans' Affairs
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