MARTIAL STORY and REPATRIATION COMMISSION
[2009] AATA 582
•6 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5429
VETERAN'S APPEALS DIVISION ) Re MARTIAL STORY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Date 6 August 2009
PlaceSydney
Decision The decision under review is AFFIRMED ....................[sgd]..........................
M D Allen
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS: Claim for Post Traumatic Stress Disorder, or in the alternative, Anxiety Disorder – Did the Applicant experience a category 1A or category 1B stressor – lack of corroboration of Applicant’s accounts – failure to meet diagnostic criteria – decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986: s 120
Statutory Instruments Numbers 5 of 2008 and 101 of 2007
CASE LAW
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Gosewinkle (2000) 59 ALD 690
REASONS FOR DECISION
Senior Member M D Allen 1. By application made the 9th day of November 2007, the Applicant sought review of a decision of the Respondent, as affirmed by a Veteran’s Review Board (“VRB”), to refuse his claim to have Post Traumatic Stress Syndrome (“PTSD”) accepted as a war-caused disease.
2. The Applicant had 3 periods of operational service in South Vietnam namely 26 April 1966 to 28 July 1966, 6 April 1697 to 7 April 1967 and 14 July 1971 to 7 March 1972.
3. As the relevant incidences giving rise to the Applicant’s claim were alleged to have occurred whilst the Applicant was on operational service, as that term is defined in section 6C of the Veteran’s Entitlements Act 1986 (“the VEA”), the standard of proof in this matter is that mandated by subsection 120(1) and (3) of the VEA.
4. Subsection 120(1) and (3) of the VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to section 120A of the VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principle (“SoP”) issued by the Repatriation Medical Authority.
5. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
6. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 2. The so-called “Deledio principles” are now so well known as not to require recapitulation here.
7. In this matter, two considerations were before the Tribunal. The first, namely whether any illness suffered by the Applicant was war-caused is, as stated above, to be determined pursuant to subsection 120(1) and (3) of the VEA. The primary question here, however, is from what injury or disease, if any, does the Applicant suffer. That question is to be determined to the Tribunals “reasonable satisfaction” pursuant to subsection 120(4) of the VEA. See Benjamin v Repatriation Commission (2001) 70 ALD 622.
8. As was pointed in Repatriation Commission v Gosewinkle (2000) 59 ALD 690 at 703, this Tribunal, in order to be satisfied a disease exists, must apply all of the diagnostic criteria as set out in the applicable SoP, (if one exists). See also Lees v Repatriation Commission (2002) 36 AAR 484 at 489, paragraph 16.
9. The current SoP’s applicable in this matter are Instruments No’s 5 of 2008 for PTSD and 101 of 2007 for Anxiety Disorder. Both parties agreed that these SoP’s were more favourable to the Applicant than the SoP’s in force at the time the Repatriation Commission made its decision in this matter. See Repatriation Commission v Gorton (2001) 110 FCR 321.
10. In these proceedings, the Applicants claim was that he had a war-caused PTSD as a result of 1 or both of 2 traumatic events that occurred during his operational service in South Vietnam.
11. The first event occurred during his first period of operational service when he looked out of the window of the “Free World Building” in Cholon, where he was working as a member of the Head Quarters Australian Force Vietnam (“HQAFV”), and observed a Buddhist monk at the Buddhist centre next door to the Free World Building compound self-immolate.
12. The second traumatic event was during his third period of operational service in 1971 when he was driving an American jeep on the road between Long Binh and Saigon. A shot was fired at him from behind and the round passed through the metal frame containing the windscreen of the jeep.
13. In interviews with psychiatrists, the Applicant has claimed to have been affected by other traumatic events. These events will be discussed later in these reasons. Suffice it to say, they were not pressed during these proceedings.
14. The Applicant has seen various psychiatrists regarding his claim to have a war-caused PTSD. The first psychiatrist consulted by him was Dr Keshava to whom he was referred by his general practitioner, apparently at the instigation of the Vietnam Veteran’s Association (“VVA”).
15. In a report dated 15 April 2005 addressed to the Department of Veteran’s Affairs (“DVA”) but with copy to the VVA as well as the Applicant’s general practitioner, Dr Keshava opined that the Applicant suffered from a Generalised Anxiety Disorder with Alcohol Abuse.
16. Apparently the Applicant was not satisfied with this diagnosis. In his report of 1 July 2008, psychiatrist Dr Lewin notes:
“ Mr Story was advised to seek psychiatric care by friends in the Vietnam Veteran’s Association. He initially consulted Dr Keshava who said that his condition was in remission. His advisers suggested he might like to seek another opinion. Mr Story was then referred to the care of Dr Altman.”
17. Having been referred to Dr Altman, the Applicant was diagnosed as suffering from a PTSD.
18. Following a hearing before the VRB, in order to assist that Board reconcile the difference in opinion between Dr’s Keshava and Altman, the Applicant was referred by the Respondent to psychiatrist Dr Synnott. In a comprehensive report dated 24 November 2006, Dr Synnott opined that the Applicant did not suffer from a PTSD but that the most likely diagnosis was one of Anxiety Disorder currently in remission.
19. The Applicant disagreed with this opinion and obtained a reference to a Dr Schmidtman at St John of God Hospital, Richmond. The 2 page report produced by Dr Schmidtman, in which she states that the Applicant suffers from PTSD, can only be described as superficial.
20. Although Dr Schmidtman apparently saw the Applicant on 27 March 2007, her report is dated 9 May 2007. In the report she confuses the history given and makes errors of detail.
21. Subsequent to the instigation of his appeal to this Tribunal, the Applicant was referred by his solicitors to psychiatrist Dr Dinnen. Dr Dinnen diagnosed a PTSD with associated features of Depression and Alcohol Abuse.
22. The Respondent referred the Applicant to Dr Lewin, psychiatrist, and also to Professor Mattick, the Professor of Drug and Alcohol Studies and the Director of the National Drug and Alcohol Research Centre in the Faculty of Medicine at the University of NSW.
23. Dr Lewin’s opinion is that the Applicant, whilst continuing to abuse alcohol, does not have a current psychiatric illness.
24. The Applicant’s condition of Alcohol Abuse was accepted by the VRB in 2007. Professor Mattick accepts the diagnosis of Alcohol Abuse on the basis of the Applicant’s history of observing a monk pour petrol on himself and setting himself alight. Significantly he does comment:
“Whether these events occurred or not is a matter for expert historical comment.”
25. As pointed out in Benjamin v Repatriation Commission supra, the primary question for the Tribunal is from what disease does the veteran suffer. That decision is to be made to the Tribunals “reasonable satisfaction”, ie upon the balance of probabilities. See Repatriation Commission v Smith (1987) 15 FCR 327.
26. Instrument No. 5 of 2008 defines PTSD as meaning a psychiatric condition meeting certain specific diagnostic criteria, including:
“(a) The person has been exposed to a traumatic event in which;
(i) The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) The person’s response involved intense fear, helplessness, or horror.”
27. Of the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a persons relevant service, factors 6(a) and (b) read:
“(a) Experiencing a category 1A stressor before the clinical onset of post traumatic stress disorder; or
(b) Experiencing a category 1B stressor before the clinical onset of post traumatic stress disorder.”
28. Clause 9 of the SoP defines the stressors as:
“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)being an eyewitness to or participating in, the clearance of critically injured casualties;”
29. Instrument No. 101 of 2007 lists as factors raising a reasonable hypothesis that connects an anxiety disorder with a persons service the following:
“6.
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only;
(i)…
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder…”
The terms “category 1A stressor” and “category 1B stressor” are defined in identical terms to the 1A and 1B stressors in Instrument No. 5 of 2008.
30. At the outset there can be no doubt that witnessing a Buddhist monk pour petrol over himself and then set himself alight would constitute a category 1B stressor. Likewise, having a bullet pass in proximity to ones head would be a category 1A stressor.
31. The Respondent challenged the Applicant’s version of events. It became clear from the material before me that the Applicant has not been consistent in the histories he has given. Although it was suggested that after some forty years his recollection may be faulty, I do not accept that if an event made such a lasting impression upon him, as he now claims, his recall would not be better and more consistent than it is.
32. In a statement dated 8 February 2008 lodged with the Tribunal for these proceedings, the Applicant said:
“2. On 26 April 1966, I boarded a Qantas aircraft at Richmond for Saigon via Manila. We landed the following day and we were billeted at the Majestic Hotel at five to a room. The Australian Headquarters was in the Free World Compound adjacent to a Buddhist Monks compound and we were separated by a fourteen foot high barbed wire fence.
3. On approximately the second day we were there a commotion started in the compound next door and I went to a window on the second floor and observed a monk pouring petrol over himself and then he proceeded to light it. There were a number of other monks all chanting but nobody tried to stop him. The monk just sat there with his legs crossed burning to death and nobody lifted a finger.
4. I felt helpless with a fourteen foot barbed wire fence between me and them. It was terrible. The smell is something that is hard to believe. This occurred on two more occasions whilst I was in Saigon.”
33. In evidence in chief, the Applicant said that the burning monk incident could have been in May or early June. Cross examined, he stated he had only seen one self-immolation. It had occurred “early in my deployment “. He added that he has a photographic memory and that he was looking out the window for thirty seconds.
34. During the time he witnessed the monk set himself alight, the other person in the room with him was a Corporal from the same unit who was at that time on the telephone. The Applicant did not draw the Corporal’s attention to what was occurring.
35. As a result of the Applicant’s statement being lodged with the Tribunal, the Respondent obtained a report from a military researcher, Mr Barsley. In that report dated 5 May 2008, Mr Barsley noted that no reference could be found to any Buddhist self-immolation in either the Saigon Post or Sydney Morning Herald newspapers published between 25 April 1966 and 7 May 1966. More importantly, no reference to any such event was contained in the duty officer’s log or the Commanders diary for HQ AFV for the months of April and May 1966, although references were made to disturbances emanating from the Buddhist centre next door to the Free World building where HQ AFV was located.
36. Because the Applicant’s evidence as to when the Buddhist immolation may have occurred changed from “early in my deployment” to “could have been any time I was in South Vietnam”, Mr Barsley was asked to conduct further research. He found reference in the duty officer’s log for 17 June 1966 to a reported self-immolation at the Buddhist centre occurring at 2330 hours on that night. The Applicant had previously stated his hours of work at HQ AFV were from 0800 to 1700 hours.
37. As stated above, the Applicant said in cross examination that he has a photographic memory and that he only witnessed one self-immolation.
38. No witnesses have been produced to corroborate the Applicant’s evidence that he observed a Buddhist monk self-immolate. He said that there was a Corporal in the room with him at the time but that he did not draw the Corporal’s attention to what was happening. The Applicant has not volunteered the name of that Corporal and although the event is now over forty years ago, the Corporal was a member of the Applicant’s unit, which was not a large group. As an officer, I would have expected the Applicant to know the names of the NCO’s he was working with in the unit and if the event made such an impression upon him as he claims, I would have expected the name of the NCO present to be remembered by him.
39. According to the Applicant he was billeted with 4 other officers at the Majestic Hotel whilst in Saigon. No names have been suggested as to who these officers might have been. I understood the Applicant to say that he did not discuss the burning monk incident with anyone. I would have expected that in the normal course of human conduct, the Applicant would have mentioned the incident to one or more of the officers who shared the billet with him and with whom he, no doubt, messed and drank.
40. I also find it remarkable that no other Australian officer at HQ AFV apparently witnessed the incident. The incident is horrendous enough to excite comment and one would have expected the fact of the self-immolation next door to the headquarters to be a matter of comment throughout the headquarters and of record. Certainly, other incidents of unrest at the Buddhist centre were noted in the duty officer’s log.
41. The history taken by Dr Keshava states:
“He has seen Buddhist monks burning themselves in the streets of Saigon.”
42. In a report to the VRB dated 2 August 2009, Dr Altman stated:
“ He stated that the following was stressful for him on his first trip to Vietnam:
1.“The Buddhist monks burning themselves in from of me on three occasions to death. It was terrible. The pain they must have been suffering. I still see it at night. I couldn’t help – there was nothing I could do – bad. I still dream about it – it is very vivid.”
2.“A bullet came through from the rear of the vehicle straight through the windscreen and only missed me by about four inches. I was all shaking and everything. It could have hit me it was so close. We stopped the vehicle to see where it came from. I was very nervous.”
43. I note also that Dr Altman refers to the bullet incident occurring during the Applicant’s first trip to South Vietnam as opposed to the Applicant’s evidence that it was during his third period in South Vietnam.
44. The history obtained by Dr Synnott during his consultation with the Applicant on 11 November 2006 was:
“When asked if he could identify reasons for the symptoms, Mr Story said when he was in Vietnam in 1966 in the period April to July and based in Saigon he witnessed (on three separate occasions) Buddhist monks pouring petrol over themselves and then setting themselves alight…”
45. The Applicant was represented before the VRB by an advocate from the VVA. He was also present himself before the VRB. The advocate tendered a submission to the Board in which he stated:
“ Mr Story witnessed the self immolation by Buddhist monks on three occasions in Saigon in 1966.”
The reasons of the VRB record that:
“The veteran told the Board that he was in a compound next door to a Buddhist temple in Saigon. They were separated by a barbed wire fence. He said that he witnessed monks immolate themselves on three occasions…”
46. When interviewed by Dr Dinnen, the Applicant referred only to a monk burning himself.
47. Describing the incident to Dr Lewin, the Applicant recounted how he had seen the monk sitting cross legged and then pouring a can of petrol over himself and setting himself alight. He said he saw the flames and witnessed the body burning. He added he had not mentioned the episode to anyone.
48. Dr Schmidtman, in whose report I have placed no credibility, refers to the Applicant “witnessing monks pouring petrol on themselves and burning alive” (Tribunal’s emphasis).
49. All in all there are discrepancies in what the Applicant has told various psychiatrists and his evidence to the Tribunal. In particular, though he seems to have told the VRB that he saw Buddhist monks immolate themselves on three occasions, to me he originally stated that the witnessed self-immolation was approximately the second day he was in Saigon in 1966, however later after investigations by Mr Barsley, changed his evidence to sometime during his service in South Vietnam.
50. There are other discrepancies in the histories obtained by medical practitioners. To Dr Keshava the Applicant said he had seen body bags brought by the planes and helicopters.
51. I accept the Applicant’s evidence to me that he did see dead Americans being placed in body bags and then placed into ambulances for transport to the morgue at Tan San Nhat airport. However, he said that witnessing the body bags was not upsetting.
52. Dr Altman in his report to the VRB stated that the Applicant had said:
“I was exposed to dead people being brought up in body bags to the morgue in Saigon about once a week for eight months and then they were put in caskets by the morgue and shipped home to Australia. They were our own people. Some of them were people I moved there – I could have picked them out. I felt badly.”
53. Challenged in cross examination regarding this passage in Dr Altman’s report, the Applicant said that he would not have told Dr Altman that, and that he had never seen an Australian soldier in a body bag.
54. Unfortunately, as usual, Dr Altman was not called in these proceedings. If Dr Altman did not correctly record what the Applicant told him then no attempt was made to correct Dr Altman’s report either before the VRB or before me until cross examined.
55. Dr Synnott in his report refers to the Applicant “having to be involved in collecting dead people in body bags and taking them back to the mortuary” which is a similar history to that obtained by Dr Altman.
56. Cross examined, the Applicant said that Dr Synnott had got it wrong, and he had only seen body bags being transferred.
57. I am satisfied that the Applicant did not witness any burning Buddhist monk. I believe the most charitable explanation for the Applicant’s evidence is that he heard about these activities, one at least of which occurred while he was in South Vietnam and possibly but not necessarily in Saigon, and that he has now come to believe that he in fact witnessed it.
58. So far as the shot through the windscreen of the jeep is concerned, the Applicant’s evidence was that he pulled to the side of the road and was shaking and needed to calm himself.
59. The diagnostic criteria for a PTSD requires the patient to have experienced a traumatic event to which the response involved intense fear, helplessness or horror. The Applicant was, understandably, shaken after the shot was fired, but there is no evidence at all that his response involved intense fear, helplessness or even horror. Apparently after pulling to the side of the road he then drove back to Long Binh without further incident.
60. So far as the Applicant’s activities post-Vietnam are concerned, I cannot ascertain any indicia for the clinical onset of an Anxiety Disorder within the 5 years post-Vietnam service. As was pointed out in Lees v Repatriation Commission supra and Repatriation Commission v Cornelius [2002] FCA 750, the clinical onset of a disease can be said to be:
“the presence of those signs or symptoms of a disease which if observed by a clinician would warrant the conclusion that the patient suffered from a particular illness or disease.”
61. Following his service in South Vietnam, the Applicant continued in his career in the ARA, being promoted to the substantive rank of Major in 1975 after having held acting rank since 1972. The only disappointment in his Army career was that he was not selected for promotion to Lieutenant Colonel. He was, however, selected to undertake exercise “Long Look Ed” which involved a posting to Germany.
62. Contained in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 are the Applicant’s service medical documents covering his annual medical examinations post-service in South Vietnam. In none of those documents is there any notation of any possible psychological disturbance. I agree with the Applicant’s submission that as a serving officer, he would not admit to any symptoms of psychiatric illness at an annual medical examination for obvious reasons, however the fact that the examining medical officer noted no signs of psychological disturbance is relevant. Similarly there are no reports by superior officers that in any way call into question the Applicant’s ability to undertake his duties.
63. No mention was made by the Applicant of any symptoms of psychiatric illness when he was medically examined at the time of his discharge from the Army. The document at T15 page 74, although largely illegible, is headed “Final Medical Board” and notes 5 disabilities which the Board considered were attributable to service. I cannot see that there could have been any repercussions upon the Applicant’s career if he nominated at his discharge medical examination any symptoms or signs of psychiatric illness and indeed it would have, at that stage, been to his advantage to so nominate them.
64. I note that the Applicant said in cross examination that at time of discharge, he truthfully answered “No” to the question whether he experienced frequent nightmares.
65. In his report, Dr Synnott took a history that as the time of his discharge from the Army:
“His psychological symptoms included : nightmares and sleep disturbance; recurring and intrusive memories during the day time of his experiences from the time in Vietnam; tense and anxious and unable to relax; depressed and low in his mood; becoming distressed with any reminders about his Vietnam experiences.”
66. Dr Synnott recorded and the Applicant stated in cross examination that his psychological state deteriorated in 2003. At that time he was having a difference of opinion about the direction of his business with this then partner in the business.
67. Having been discharged from the Army, the Applicant had a successful business career. His first wife died in 1983 but he remarried, having met his current wife in 1985.
68. The Applicant’s current psychiatric state was well covered in the report by Dr Lewin. The Applicant and his wife still eat out once a fortnight and, as a couple, they get on well together and generally do not argue.
69. The Applicant plays golf twice a week and takes part in a regular get together with a number of retired military officers. Recently the Applicant and his wife travelled overseas with a couple of friends. He experienced no anxiety regarding this and even drove in Europe. Dr Lewin recorded the Applicant as saying:
“I don’t have any anxieties – life has been good to me”
70. There is conflict between what the Applicant said in evidence as to his mood and what he told Dr Lewin. Dr Lewin recorded:
“There was no sustained disturbance of sleep, appetite, weight, energy or mood. Mr Story described a lively, happy mood and he said that he feels happy much of the time. He remarked upon enjoying a good life, He told me that he does not get depressed. From time to time, he feels “down” for a few hours, but no sustained disturbance of mood was described.”
71. In evidence, the Applicant said he is, when by himself, morose and thinks of ways of terminating his life. This occurs once or twice a month. He gets on edge and agitated but he obtained relief from this in getting in his car and driving.
72. Given the doubts I have regarding other parts of the Applicant’s evidence, I am more persuaded by the evidence of Dr Lewin that the Applicant does not suffer from any psychiatric illness at present. I am confirmed in this opinion by the report of Dr Synnott who diagnosed an Anxiety Disorder but in remission.
73. I am satisfied on the balance of probabilities that at no time has the Applicant suffered from a PTSD as the diagnostic criteria for that condition have not been met. For the reasons stated above I am also reasonably satisfied that the Applicant does not suffer from an Anxiety Disorder.
74. The decision under review is affirmed.
75. In affirming the decision under review, I realise my reasons for that affirmation may seem inconsistent with the reasons for the VRB finding that the Applicant’s alcohol abuse was war-caused. That matter was, however, not before me. I note that Professor Mattick in his report accepted unequivocally the history given by the Applicant.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: .............................[sgd]...................................................
M.Corcoran, AssociateDate/s of Hearing 17 & 20 July 2009
Date of Decision 6 August 2009
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant K C I Lawyers
Solicitor for the Respondent Dr Stephen Thompson, Sparke Helmore
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