Lowes and Repatriation Commission - [2000] AATA 677

DECISION AND REASONS FOR DECISION [2000] AATA 677

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/365

VETERANS' APPEALS DIVISION )

Re TERENCE LOWES
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date8 August 2000
PlaceCanberra

Decision The tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with the direction that the veteran's disease condition of PTSD is war-caused.

..................(Sgd.)............................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – post traumatic stress disorder – whether war-caused – whether factors in statement of principle met – whether in fact in danger during service – whether perceived danger a sufficient stressor - whether relevant significant incident occurred during eligible service.
Legislation
Veterans' Entitlements Act 1986.
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission [1999] FCA 1103
Ogston v Repatriation Commission [1999] FCA 342
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

8 August 2000 Pamela Burton, Senior Member

This is an application for review of a decision of the Repatriation Commission dated 29 October 1997 so far as it related to and rejected the veteran's claims for post-traumatic stress disorder ("PTSD") and migraine. The Veterans' Review Board affirmed the decision in this respect on 29 October 1998. The veteran has other disabilities which have been accepted as war-caused. At the hearing the tribunal was informed that the veteran's migraine condition is accepted as war-caused. Whether or not his PTSD is war-caused affects the rate of pension to which the veteran is entitled.
Mr David Thorley represented the veteran at the hearing, and Mr John Sylvestre represented the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition a statement by the veteran, various medical reports and other documents were tendered at the hearing. The veteran gave evidence at the hearing, and Mr Le Pavoux gave evidence in person on his behalf. Dr Brian White, consultant psychiatrist, gave telephone evidence for the veteran, and Dr Robert Lewin, consultant psychiatrist, gave telephone evidence on behalf of the respondent. Mr Brendan O'Keefe, professional historian, gave evidence in person on behalf of the respondent.
The veteran was born on 18 August 1948. He served in the Royal Australian Navy from April 1964 until his discharge in 1973. In this time the veteran had various periods of eligible service for the purpose of the Veterans' Entitlements Act 1986 ("the Act"). Of particular relevance to these proceedings are three periods of operational service, namely 31 August 1965 and 9 February 1966 when he served on HMAS Vendetta; 8 April 1967 and 13 June 1968 when he served on HMAS Sydney; and 16 March 1971 and 11 October 1971 when he served on HMAS Brisbane. The precise dates of his operational service are set out in the respondent's statement of facts and contentions dated 12 October 1999 and they are not in dispute. The veteran's period of eligible defence service is agreed to be 7 December 1972 to 21 September 1973.
What is disputed by the respondent is whether the incident which occurred while the veteran was serving on HMAS Brisbane upon which the he relies as a "stressor" relevant to his claimed PTSD, occurred while he was on operational service, or when HMAS Brisbane was in Australian waters. Under subsection 13(1) of the Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury. The Act requires that for a claim to be accepted, the disability must be related to operational service, or eligible defence service commencing on or after 7 December 1972.
The respondent also disputes that the veteran suffers from PTSD or any other psychiatric disorder. It further contends that neither of the other incidents upon which the veteran relies as relevant "stressors" that led to his PTSD were serious enough to meet the definition under the relevant Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority ("the RMA"), and to which the tribunal must have regard.
The veteran contends that the PTSD from which he claims he now suffers is linked to three traumatic incidents which occurred during his operational service. The first occurred on 30 November 1965 (the "Vendetta incident"), when the Vendetta on which the veteran was serving intercepted an Indonesian fishing vessel. The second occurred in 1967 (the "Sydney incident"), in Vung Tau harbour when percussion charges were dropped over the side of the Sydney to scare away enemy swimmers who might attach mines to the vessel. The third incident occurred, according to the veteran, during his operational service between 16 March 1971 and 11 October 1971, and according to the respondent, on the night of 26 and 27 January 1971 (the "Brisbane incident"). The latter incident occurred when there was a dangerous decline in the water levels in the boiler of the Brisbane. The veteran recalls the incident as occurring when he was serving on the vessel off the coast of Vietnam. The respondent contends that an incident matching this description, though not causing any real threat to the vessel or the service personnel, occurred on the night of 26 and 27 January 1971 in Australian waters, outside the veteran's periods of operational service or eligible defence service. It further contends that there is no record of such an incident occurring between March and October 1971 while the vessel was on duty in Vietnam.
Standard of Proof
The standard of proof applicable is set out in subsections 120(1) and 120(3) of the Act in respect of war-caused conditions during operational service. The effect of the provisions is that the tribunal must find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstance of the particular service rendered. The veteran does not bear any onus of proof.
In coming to its decision, the tribunal must have regard to the relevant SoPs issued by the RMA from time to time, if any, in relation to a claimed war-caused condition. These SoPs state what factors must exist before a hypothesis is to be considered reasonable or for a connection to service to be probable. Pursuant to sections 120A and 120B of the Act the tribunal cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition. However, in the case of operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused.
In this matter there is a SoP relevant to the veteran's PTSD. The most recent SoP for this condition in respect of a veteran's operational service is Instrument No. 3 of 1999 as amended by Instrument 54 of 1999. Factor 5(a) of the SoP requires the veteran to be "experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder". Clause 8 of the SoP defines "experiencing a severe stressor" as:
The person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
At the hearing the parties proceeded on the assumption that the most recent SoPs applied in relation to PTSD on the basis of the decision in Ogston v Repatriation Commission [1999] FCA 342. Since that time the decision of the Full Federal Court in the matter of Repatriation Commission v Keeley [2000] FCA 532 has been handed down which, in effect, upheld the decision of His Honour, Justice Heerey, in Keeley v Repatriation Commission [1999] FCA 1103, ruling that the applicable SoPs are those in force at the time the decision under review was made. Leave is currently being sought to appeal to the High Court from the decision of the Full Federal Court and thus the question of which SoPs apply is not yet finalised. In delivering this decision prior to the outcome of the High Court proceedings I must therefore take into account the effect of each relevant SoP.
The SoP relating to PTSD in existence at the time the respondent first considered the veteran's claim, that is, as at 29 October 1997, is Instrument No.15 of 1994. It is in similar terms to the Instrument No 3 as amended by Instrument No 54 of 1999. It does not, however, require the stressor to be "severe". Nothing much turns on the differences in the wording of the SoPs on the facts of the matter before me, given the nature of the stressful incidents upon which the veteran relies.
Date of effect
The earliest date of effect, should the veteran be successful, is 23 October 1996, being three months before the respondent's receipt of his claim that he suffers a war-caused PTSD.
The evidence
The veteran was born on 18 August 1948. He was 15 when he commenced employment with the Royal Australian Navy in April 1964. He was 16 when he was drafted to the HMAS Vendetta, a destroyer, turning 17 whilst on board the vessel. He was the Layer who was responsible for the elevation of gun barrels. His action station was in the aft turret. His evidence is that on 30 November 1965 the Vendetta contacted an Indonesian vessel and the crew was ordered to their action stations. The turret is fully enclosed and the veteran's position was the furthermost away from the escape hatch. He saw the Indonesian boat and once he was at his action station, his knowledge of the danger depended entirely upon information from radio contact. He became aware that there were over a hundred well-armed armed soldiers on the Indonesian boat and that that vessel was too close to the Vendetta to be fired upon from the turret. The danger he perceived as imminent was that if the Indonesian soldiers thought they had "nothing to lose", they might storm the Vendetta and thrown a grenade in the aft turret, from which the veteran would have no escape.
The Vendetta incident reached the official Report of Proceedings for the vessel. It indicates that the Vendetta assisted another ship in the arrest of the Indonesian boat, and that the Vendetta's Commander described the incident as the "highlight of the patrol" (Exhibit 2). Mr O'Keefe, professional historian, in his report dated 11 October 1999 prepared for these proceedings, stated that the absence of any mention of the incident in contemporary newspapers and official history volumes might suggest that the episode was a fairly minor matter. On the other hand, he stated, the current unavailability of detailed information "makes it very difficult to determine with any degree of certainty just how serious or dangerous an incident it was." He cast doubt on the possibility of a grenade being thrown into the gun turret when the turrets were closed up. Similarly, he stated that he found it difficult to understand how the Indonesians soldiers could have got up the side of the Vendetta to reach its deck and storm the ship (Exhibit 2).
Mr O'Keefe's logical analysis is no doubt correct with the benefit of hindsight. However, I do not think the young veteran in the situation of the emergency to which he was reacting at the time had the capacity or the time to make such a knowledgeable and rational analysis. The veteran said in evidence that he had no reason to believe the Indonesian soldiers could not access the Vendetta's deck, and he feared that if the soldiers stormed the ship they might throw ammunition down the turret, by opening the hatch from the outside. His fears were fueled by a pre-embarkation briefing, which included a warning that the Indonesian soldiers were desperate people. He had a genuine apprehension not helped by the fact that his action station was in a confined space in the turret from where he could not observe the outside events. He understandably perceived that he was in a dangerous and helpless situation. His fear was made worse by what he imagined might be happening outside the turret and his knowledge that the Vendetta was not designed to do the work it was trying to do with respect to the Indonesian boat.
The veteran's evidence was to a large extent verified by Mr Garry Le Pavoux, who served on the Vendetta with the veteran. He recalled the incident and said that as his action station was behind the Bridge he was able to observe the events. He confirmed that the Captain gave the Vendetta's crew a briefing in which he stated that the Indonesian boat had approximately 200 uniformed soldiers with weapons and explosives. Mr Le Pavoux considered himself in danger. He confirmed that while the boarding party of the Vendetta was armed, the rest of the crew was not. He said he had every confidence in the Captain and the commanding officers, but that the crew was nevertheless hypervigilant as to what was happening. Mr Le Pavoux did not recall that the Vendetta "assisted" the Malaysian vessel in arresting the Indonesian boat. He suggested that the report to that effect was a "polite way of supporting Malaysia and giving them some credit." He thought that the Malaysian vessel might well have escorted the Indonesian vessel into the shallow water on the final leg into port.
In relation to the Sydney incident, I was provided with a copy of "The Vung Tau Ferry" (HMAS Sydney) and Escort Ships (Vietnam 1965-1972), by Rodney Nott and Noel Payne, 1998. It provides an argument to counter the generally publicised view that the Sydney was never in danger in the course of Vietnam War. While it is not before me as evidence of any particular facts it provided valuable background material which assisted me in placing the veteran's evidence in a relevant context. The author gave historical accounts of incidents which, if accurate, could reasonably be regarded as frightening to the crew, although in fact the Sydney was not the subject of hostile fire. Mr O'Keefe also used the book as a source in his search for relevant information for the purpose of preparing the report tendered in evidence at this tribunal.
Mr O'Keefe notes that there is no mention in the Sydney's Reports of Proceedings for the relevant period of percussion charges being dropped. He stated that it was standard practice for this vessel and others while visiting Vung Tau to use percussion charges to deter enemy swimmers and frogmen from attaching explosive charges or mines to the ship's hull or anchor cable. In support he refers to the text of an Executive Officer's Temporary Memorandum for Sydney at the time when the veteran was serving aboard the vessel, published in Nott and Payne's book. At clause 22 of the Memorandum it stated that "The patrolling boat is to drop scare charges as ordered by the O.R.O." Mr O'Keefe believes that the crew would probably not have been aware of exactly what times the charges were to be used. He said the vessel's Report of Proceedings for April 1968 confirm to some extent that the vessel continued to employ defensive measures against enemy swimmers and frogmen and that the enemy swimmers at least constituted a threat to the ship (Exhibit 2).
In relation to the Brisbane incident, the veteran's evidence is that while his duties were in the boiler room, his action station was guard duties. He said the Brisbane was a guard ship on the gun line at the time and he was sure of this fact. He recalls that when the emergency arose in the boiler room the reason why the engines were not shut down is because the vessel was on the gun line. He recalls that eventually the engines were shut down for a time while a cross over valve was opened to get water from the other engine room. He recalls hearing a Petty Officer explain after the event that "because we were on the gun line and thought the water might come back, no order was given to shut the engines down".
The veteran gave a consistent history to examining medical practitioners that this incident occurred off the coast of Vietnam, this fact heightening his anxiety about the state of the vessel and the vessel's and crew's ability to escape the area intact.
The Reports of Proceedings of the Brisbane between March and October 197I were examined at the Australian War Memorial and, by letter of 19 March 1998, Senior Naval Historical Officer, Mr J. H. Straczek, reports that no reference was made to the boiler room incident (T18). Mr O'Keefe's inquiries as contained in his report of 11 October 1999 (Exhibit 2) produced the same result. At that time he was not able see the relevant Reports of Proceedings for the Brisbane, as access to the documents are closed to the public by reason of the 30-year rule for Commonwealth Government records. The information he obtained was derived from a precis obtained from a staff member with responsibility for these records at the Australian War Memorial who checked the Reports.
That information indicated that a boiler room incident consistent with that described by the veteran – but not as serious – occurred on night of 26-27 January 1971 and that no other such incident was reported as occurring on the Brisbane in the relevant period. Mr O'Keefe also indicated in his report that his inquiries revealed that the Commanding Officer of the Brisbane, Captain R.G. Loosli, reported this incident in a separate message to his superiors in January 1971. That message was likely to have contained a fuller account of the incident. However, in the short time available to him before these proceedings Mr O'Keefe was not able to track down the message. He suggested that Captain Loosli be contacted.
At the close of the proceedings I invited both parties to obtain and lodge any further relevant information about the date of the incident referred to by the veteran with the tribunal.This invitation was renewed at a Directions Hearing on 18 July 2000 on the understanding that any relevant material be lodged prior to 7 August 2000. In response the respondent lodged a supplementary report of Mr O'Keefe dated 24 July 2000 was lodged with the tribunal and served upon the applicant. That report forms part of Exhibit 2.
In his report of 24 July 2000, Mr O'Keefe indicated that he gained access to the Reports of Proceedings for the Brisbane in 1971. He stated that he carefully checked the Reports of Proceedings for that year and, consistent with the earlier information he had received, he found mention of only one problem that could fit the veteran's description of the boiler room incident. He confirmed that an incident was recorded in the January Report of Proceedings as having occurred during the night of 26-27 January, when the feed water expenditure became excessive. A reference was made to Captain Loosli's previous message about the incident. The Report later attributes the cause of the abnormally high feed water expenditure to "excessive leak-off from some packed glands together with maloperation of one Turbo Generator condensate return". Neither a copy of Captain Loosli's message about the incident to his superiors nor any statement by Captain Loosli has been made available to the tribunal.

Mr O'Keefe states that another reference was made to a problem with in the boiler room in the Reports of Proceedings for the month of March 1971. However, it bears no resemblance to the incident described by the veteran, and it occurred on 5 March 1971, outside the veteran's period of operational service.
I accept the available documentary evidence as sufficient to support a finding that the Brisbane incident recalled by the veteran occurred in January 1971 outside the period of his operational or eligible service. This is consistent with his evidence that he had nightmares while serving on the Brisbane when it was in Vietnam waters. The veteran is likely to have suffered stress and fear during that period of operational service and related the stress and fear he felt during the incident in the boiler room to that time.
Mr O'Keefe suggested, from the information available to him, that the incident in the boiler room on the Brisbane was not a major problem, and that there was no mention of any alarm among Engine Room personnel. As to that, however, I pay little regard. The omission of mention of alarm on its own does not persuade me that the veteran's evidence as to the alarm the incident engendered amongst the crew at the time is inaccurate.
In the course of cross-examination, the veteran agreed that an incident of that gravity should be reported at least in the vessel's logbook. He thought, however, that not all incidents are reported in the Report of Proceedings. Any such incident is likely to be contained in the engineer's logbooks. The relevant logbooks have not been made available to the tribunal. I am, however, satisfied beyond any reasonable doubt that the Brisbane incident recalled by the veteran took place in January 1971 in Australian waters.
In other respects, I accept the veteran's description of the Brisbane incident. The veteran was drafted onto the Brisbane in 1969 and was stationed in the boiler room. The situation arose where the water level dropped dangerously low. The veteran thought the boilers were going to explode. The appropriate emergency procedures failed and the veteran felt a sense of helplessness. The veteran thought the boilers should have been shut down but he was outranked and had no authority to take that action. He felt helpless and afraid.
It was shortly after this that he suffered from nightmares and often woke up screaming. He became anxious about confined spaces and he "jumped ship" for two weeks. He was demoted as a result.
Medical evidence
The veteran attended Dr Glen Kelly, general practitioner, in about 1997 about his anxiety symptoms. Dr Kelly diagnosed PTSD in accordance with the DSM IV criteria in his report of 14 November 1997 (T14). His opinion that it was related to war-service, was based on the history of the Brisbane incident involving the boiler. Dr Kelly referred him to Dr White, consultant psychiatrist, who diagnosed PTSD and referred him to St John of God Hospital in Sydney for treatment. In his report dated 6 September 1999 (Exhibit A), Dr Schmidtman, consultant psychiatrist at the hospital, diagnosed PTSD with associated secondary anxiety/panic disorder symptoms, depression and alcohol dependence. The symptoms included recurrent intrusive and distressing memories and nightmares with content related to traumatic incidents from his Navy service; avoidance of reminders (that is enclosed spaces) which trigger physical and emotional responses of anxiety; and ongoing hyperarousal symptoms; that is, anxiety, panic attacks, irritability, poor sleep and poor concentration. Dr Schmidtman specifies the near explosion of a boiler as the significant incident that occurred during the veteran's service.
Dr Schmidtman had previously reported to the Department of Veterans' Affairs on 17 September 1997, 18 December 1997 and 28 October 1998 (T11, T15 and T21), about these matters. In these reports he connected PTSD with the veteran's Navy service, including his operational service in Malaysia and Vietnam. Nevertheless, it is clear that Dr Schmidtman saw the Brisbane incident as the most significant incident.
Dr White, consultant psychiatrist, gave telephone evidence. In his report dated 24 September 1999, (Exhibit B) he states that he diagnosed PTSD from the veteran's history and his recurring distressing repetitive dreams of incidents in his Navy service. Dr White too, attributed the condition primarily to the Brisbane boiler room incident. However, Dr White described the Vendetta incident as having had a "persisting and significant effect on [the veteran]" and opined that it has contributed to his PTSD (Exhibit B). He saw the pattern of the veteran's symptoms as falling within the DSM IV criteria, consistent with the evolution of the diagnoses over the last 20 years, and consistent with the pattern of military veterans and naval veterans involved in hazardous or potentially hazardous positions. Dr White acknowledged that while the veteran was not confronted with and did not witness actual death or injury in the course of the described incidents, the potential for serious injury was present. He thought that the veteran's response to his perceived exposure to death or injury in the course of his service caused the veteran to feel fear, helplessness and horror.
Dr Lewin, consultant psychiatrist, gave telephone evidence at the hearing. He said that since writing his report of 2 June 1999 (Exhibit 1) he had read Dr White's report of 24 September 1999 and that he nevertheless stood by the opinions he expressed in his own report.
Dr Lewin was sceptical about the veteran's evidence. He said in evidence that he suspected that the veteran was not giving him a full and accurate account of what occurred. In his report of 2 June 1999 (Exhibit 1) he said that the veteran used "jargon terms" such as hypervigilance, scanning and nightmares, repeatedly suggesting the diagnosis of PTSD. He said that the use of the words "nightmares" and "hypervigilance" was stilted and practiced.
It is interesting to note that Mr Le Pavoux used the word "hypervigilance" from which I conclude that it is a term familiar to both men, whether or not it has come into their vocabulary as a consequence of their service or otherwise. In my opinion the veteran's use of the description "nightmares" for dreams is not extraordinary. "Nightmares" is a word used in common parlance to distinguish the negative quality of a dream from ordinary dreams. By the time the veteran was examined by Dr Lewin, he had been diagnosed as having PTSD by his treating practitioners and could be expected to be familiar with the term and to understand that he was suffering from that condition. Dr White comes to a similar conclusion stating in his report of 24 September 1999 (Exhibit B), that it would be remiss if a patient was not provided with a significant amount of education about an illness, its symptoms and management. He thought the veteran's use of this terminology was a product of such an educational program and of his attempt to use appropriate terminology in his communications with health care professionals.
Of more relevance is Dr Lewin's view that the pattern of the veteran's nightmares did not necessarily fit within the PTSD criteria. He said in his report dated 2 June 1999 (Exhibit 1) that "In my clinical experience, dreams are a symbolic representation of actual events and the usual clinical experience is for dreams to change over time, to gradually diminish in frequency and intensity. The experience that Mr Lowes described is not consistent with my usual clinical experience."
Dr White, in his report of 24 September 1999 (Exhibit B), points out that "Recurrent distressing dreams of the event" is part of the DSM IV diagnostic criteria, to which Dr Lewin makes no reference in his report. Dr White further responded in his report dated 21 October 1999, lodged with the tribunal by the consent of both parties after the close of the proceedings. This report forms part of Exhibit B. Dr White refers to a book entitled "Posttraumatic Stress Disorder in Litigation" by Robert Simon (1995) to which Dr Lewin had referred in his evidence. He points out that at p.44 it states "malingering should be considered in claimants who report recurrent dreams months later that review the traumatic incidents in exact detail throughout the sleep cycle". Dr White goes on to comment that the veteran's dreams do not fit into that category.
Dr Lewin is experienced in PTSD. He has 15 years of clinical experience in psychiatry and dealt with thousands of cases of PTSD including affected veterans. It was put to him that Dr White maintains that it is common with PTSD sufferers with military backgrounds to have persistence of the same dreams. Dr Lewin stated that this is inconsistent with his clinical experience. He believed that cumulative stress is not a valid concept. He considered that a later traumatic event might lead to recurrent rather than cumulative stress. Dr Lewin also disagreed that an environment of constant fear over a 12-month period could be a stressor. He conceded, however, that if a person has a post-traumatic neurosis, they might be more susceptible to significant trauma later on. However, he thought that the second episode was unlikely to develop into PTSD. He denied the suggestion that his difference of opinion with Dr White in this respect reflected different schools of thought on the subject. He said that it was a fact that the same dreams do not persist.
Dr Lewin thought it of no importance to the condition of PTSD that each of the traumatic events raised by the veteran involved him being in a confined space. What is relevant is the emotional response to the trauma, the degree of trauma and the meaning of it to the person. He concluded that the veteran's anxiety disorder is a life-long feature of his functioning and unrelated to any specific event, and that he had the vulnerability to an anxiety disorder from childhood. He thought that the veteran does not suffer from PTSD, and that he is not suffering from any war caused psychiatric disability. Dr Lewin placed a lot of emphasis on the veteran's alcohol abuse and dependence. As to this, Dr white said that in his clinical experience alcohol abuse was commonly found to be co-morbid with PTSD in military patients.
Dr Lewin is not the veteran's treating doctor. He exhibited very set ideas about PTSD developed from his own clinical experience and without reference to the DSM-IV criteria. Yet, the pattern of the veteran's condition fell within Dr White's clinical experience of others with PTSD. Dr Lewin appeared influenced by his view that the veteran did not give him a full account of events – evidenced by the veteran's particular use of certain words, which view is not persuasive.
Dr White has seen the veteran on several occasions over two and a half years, and treated him. I prefer the evidence of Dr White to Dr Lewin. Dr White provided convincing reasons based on his clinical observations of the veteran, his experience and the criteria set out in the DSM-IV for coming to his diagnosis of PTSD.
Findings
The veteran continues to suffer claustrophobia, anxiety, panic attacks and nightmares. Dr White diagnosed PTSD. Dr Schmidtman who treated the veteran supports this view. Taking into account the whole of the evidence and Dr White's opinion, I find that the veteran suffers from PTSD.
The stressors suffered by the veteran in the Vendetta and Sydney incidents were sufficiently serious and their effects on the veteran severe enough to meet the relevant SoPs and to raise a reasonable hypothesis connecting his service with his condition of PTSD. This is so even though the effect on him of the Brisbane incident is not to be taken into account. The veteran was not subjected to enemy fire. He was not shot at. However, he was 17 or just 18 years old when the Vendetta incident occurred. He felt, and not unreasonably so, that he was in danger. He was scared while enclosed in the gun turret of the Vendetta, knowing of, but not being able to see and monitor, the danger outside. That he had reason to be scared and feel helpless is supported by Mr Le Pavoux.
In relation to the Sydney incident, the same applies. Mr O'Keefe, historian, confirmed that there were recognised dangers necessitating percussion drops, and that there were skirmishes suspected in the area in which the Sydney was anchored. Dr Lewin also conceded that different people react in different ways to perceived danger. I accept that the veteran felt helplessness and horror.
Following the approach taken in the matter of Repatriation Commission v Deledio (1998) 49 ALD 193, under the relevant SoPs the factors are met to raise the reasonable hypothesis in relation to the first two incidents. The circumstances raised an hypothesis connecting the disease with the veteran's particular service rendered. The question arises then, whether, on the evidence those incidents are connected to his current condition of PTSD, or whether the Brisbane incident is the stressor responsible for his current condition.
I accept that the Brisbane incident almost certainly caused the veteran to feel helpless and in danger. The boiler room in which he was located was below the water line. He believed, whether reasonably or not, that the boiler might explode. This incident clearly contributed to his PTSD.
However, for the veteran's PTSD not to be war-caused, I must be satisfied beyond reasonable doubt that there is no sufficient ground for finding that neither of the two earlier incidents caused the veteran's PTSD. I am not able to say with any certainty that the Vendetta and Sydney incidents which occurred during periods of the veteran's operational service, did not cause his PTSD, in that it can not be said that had the Brisbane incident not occurred, the veteran would not now be suffering PTSD. On the evidence before me I am satisfied that the veteran's PTSD condition is war-caused, despite my finding that the Brisbane incident occurred outside the veteran's operational or eligible defence service.
Decision
The decision under review is set aside and the matter is remitted to the respondent for reconsideration with the direction that the veteran's disease condition of PTSD is war-caused.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  19 October1999
Date of Decision  8 August 2000
Counsel for the Applicant        Mr D Thorley
Solicitor for Applicant               Gary Robb & Associates
Counsel for the Respondent    Mr J Sylvestre
Solicitor for the Respondent    Department of Veterans' Affairs, Advocacy