McDowall and Repatriation Commission

[2004] AATA 1054

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/785

VETERANS' APPEALS DIVISION		)
Re		WAYNE LESLIE McDOWALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date12 October 2004

PlaceBrisbane

Decision The Tribunal sets aside the decision under review.    

.................[Sgd]........................

Senior Member B J McCabe

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions and benefits – whether reasonable hypothesis exists connecting veteran’s injuries with service – whether respondent can disprove a necessary fact beyond a reasonable doubt – decision set aside

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

Benjamin v Repatriation Commission [2001] FCA 1879

Re Benjamin and Repatriation Commission [2004] AATA 738

REASONS FOR DECISION

12 October 2004 Senior Member McCabe    

Introduction

1.      This is an application for review of a decision of the Veterans’ Review Board (the VRB) of 2 July 2003.  The VRB modified the respondent’s decision of 5 December 2002 by substituting a diagnosis of post traumatic stress disorder (PTSD) for depressive disorder and anxiety disorder.  The decision was otherwise affirmed.

2.      The matter was heard on 12 July 2004.  The applicant was represented by Mr Honchin of counsel.  The respondent was represented by Mr Stoner, a departmental advocate.

3. The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 were before the Tribunal.  The applicant also submitted a statement dated 20 January 2004.  The respondent submitted a report prepared by Dr Mulholland (a psychiatrist) dated 25 May 2004.  The applicant and Dr Mulholland both gave oral evidence.

The Facts

4.      Mr McDowall served in the Royal Australian Navy (the RAN) from 3 January 1962 to 2 January 1982.  For the purposes of the Veterans’ Entitlements Act 1986 (the Act) he rendered operational service as follows:

• 19 January 1965 – 17 March 1965;
• 27 May 1965 – 26 June 1965;
• 11 August 1965 – 25 September 1965;
• 20 September 1965 – 3 October 1965
• 26 October 1965 – 24 December 1965;
• 4 January 1966 – 2 March 1966;

• 14 September 1970 – 8 April 1971.

5.      Mr McDowall says he experienced four incidents while on operational service that caused his psychiatric conditions.  He described the incidents in his statement of 20 January 2004 (exhibit 2).  They were: 

(a)A collision between HMAS Duchess and the kumpit (a small boat) Mutiara on 22 January 1966 off the coast of Borneo (the collision incident);

(b)Observing what he believed were 200 incoming aircraft on his radar which later proved faulty (the radar incident);

(c)Hearing radio transmissions regarding a downed pilot in South Vietnam (the radio incident);

(d)Carrying out body searches of suspected insurgents/smugglers and Vietnamese forces (the body search incident).

The following excerpts are taken from the applicant’s statement.

a.) the collision incident

I recall that I was fast asleep when I was awoken by a horrible crashing and breaking noise.  I could hear screaming and yelling.  At the time the HMAS Duchess was operating in a darkened state, not showing any lights.  I recall that I sprang to my feet and rushed to the guard rail and looked over the side, wondering what was going on.  I was frightened and did not know exactly what to do.  I looked down below my position and I could see the lit phosphorous in the water moving in a backwards direction.  As my eyes became accustomed to the darkness I could see a darkened shape appearing to be pushed backwards by the HMAS Duchess.  At this time the floodlight from the bridge came on…

I could hear the screaming and yelling above the sound of the ship’s engine room blowers.  I could see carnage below me, looking down I could see body parts and blood.  I could see what appeared to be a ship’s hull and the flattened bow of the vessel.  Lying on the deck of what was the flattened bow of the vessel was what appeared to be an arm or a leg and I looked further and I could see people screaming, women and children and I recall specifically seeing their eyes and the horror in them.  I will never forget that scene.  It is something that I see when I dream about the incident.

I recall that I was in such shock and horror at what I saw and frightened because I was unaware if they were armed or not, that I ran from that position…and ran forward as far as I could…I went to the paint locker at the bow of the vessel.  I remained there until daylight.  I recall that I was crying most of the time whilst I was in there.

b) the radar incident

I had been a radar operator aboard the HMAS Duchess…for approximately twelve to eighteen months…At the time we were in a closed up defensive status…We were in the Malacca Straight during the Indonesian/Malayan confrontation and I was on duty as a radar operator during the night watch.

I recall that I was observing the radar when on a sweep approximately 200 radar returns appeared on the screen appearing to come from Sumatra…I recall that [the captain] observed the radar returns with me.  At the time I was in shock and fear, my adrenaline was rushing and I was on edge.  The returns stayed on the radar screen for a lengthy period of rime and appeared to be approaching the ship…

I continued to watch the returns but after a period of time they began to fade…at the time I had never seen a false return on the radar of this nature.  I recall…that I believed the aircraft were enemy aircraft approaching the ship and that we were in danger….During the day I understand that an electrician had gone up the radar mast and determined that the cause of the false returns was moisture in the wave guide from the aerial to the operations room.

c) the radio incident

I recall that I was on the bridge of the HMAS Perth.  At the time I was supervising the Helmsman.  I was on the bridge undertaking my supervisory duties, the radio was clearly audible in the bridge.  Over the radio we could hear a downed American pilot talking to a rescue chopper.  There was the sound of gunfire in the background of the radio transmissions and I recall that the rescue chopper had difficulties locating the downed pilot because f bad weather.  I recall at the time the fear in the Helo pilot’s voice could be heard.  I felt helpless, there was nothing that we could do, simply listen and wait to see the outcome.  I recall that I was unable to leave the bridge.  I felt very uncomfortable, nervous, and desperate for the downed pilot.

d) the body search incident

Suspect vessels were intercepted and the crews then brought on board the HMAS Perth and searched.  I participated in a number of searches, I recall three.  These searches included body cavity searches.  No gloves or other equipment was used during these searches….Often there would be up to fifteen people on board these vessels.  I felt horrified doing the searches, which included internal body cavity searches of both males and females.  I recall that whilst I never cried in front of anyone I would cry after the searches.

I recall I was concerned about my own personal safety, the persons we were searching were suspected of carrying or may have been carrying weapons and explosives…I do not recall ever finding any weapons or explosives upon the persons that I searched but I remained in fear there would be such devices on those persons.

The Law

6.      The Tribunal must follow the “reasonable hypothesis” approach laid out in ss 120, 120A of the Act. The correct application of the test was explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Delidio approach has four stages.  But the Tribunal must settle on a diagnosis before the Deledio analysis can begin.  The Tribunal must decide the question of diagnosis to its reasonable satisfaction: s 120(4).

Diagnosis

7.      During the hearing the respondent conceded Mr McDowall suffers PTSD (without conceding it is service related).  In view of the medical evidence (in particular the oral testimony of Dr Mulholland) I can accept this concession.  In cross-examination Dr Mulholland said if the Tribunal was satisfied Mr McDowall suffered PTSD, his symptoms of chronic anxiety (represented by the claim in relation to anxiety disorder) would by subsumed into the PTSD.  I also accept this.

8.      I am reasonably satisfied the applicant suffers PTSD, alcohol abuse or dependence and depressive disorder in light of the medical evidence.

9.      The applicant said if the Tribunal was not satisfied PTSD could be connected to service, it should nevertheless consider the applicant has anxiety disorder.  In summary the applicant argues he suffers either PTSD or anxiety disorder, and depressive disorder and alcohol abuse or dependence.

10.     It is convenient to deal with PTSD, alcohol abuse and depressive disorder first.  If I am not satisfied those conditions are war-caused, I am obliged to consider whether Mr McDowall suffers any other psychiatric condition: Benjamin v Repatriation Commission [2001] FCA 1879; Re Benjamin and Repatriation Commission [2004] AATA 738. Anxiety disorder may be tested at this point, if necessary.

Four steps of Delidio

11.     The first step of Delidio requires the Tribunal to identify a hypothesis connecting the injuries with the circumstances of the veteran’s service.  Mr McDowall says that witnessing the events he described in his statement was so distressing that it brought on PTSD and the related conditions. I am satisfied a hypothesis exists here connecting PTSD, depressive disorder and alcohol abuse with the circumstances of Mr McDowall’s service.

12.     As this appeal was lodged after 1 June 1994, s 120A of the Act applies.  The reasonableness of the hypothesis has to be assessed in accordance with any relevant Statement of Principle (SoP) issued by the Repatriation Medical Authority.  The second step of Delidio requires the Tribunal to identify the relevant SoPs.  Here, Instrument 3 of 1999 as amended by Instrument 54 of 1999 deals with PTSD.  Instrument 58 of 1998 deals with depressive disorder.  Instrument 76 of 1998 deals with alcohol abuse or dependence.

13.     The PTSD SoP relevantly provides:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder…with the circumstances of a person’s relevant service are:

(a) experiencing a severe stressor prior to the onset of post traumatic stress disorder…

…

“experiencing a severe stressor” means 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 Veteran’s Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…

14.     The alcohol abuse SoP relevantly provides:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

(a) suffering from a psychiatric disorder at the time of the clinical onset of

alcohol dependence or alcohol abuse;

(b) experiencing a severe stressor within the two years immediately before

the clinical onset of alcohol dependence or alcohol abuse

15.     The definition of “experiencing a severe stressor” is identical to that in the PTSD SoP.

16.     The depressive disorder SoP relevantly provides:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:

…

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder…

…

“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 of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…

17.     The third step of Delidio requires the Tribunal to assess whether the facts fit the template found in the SoPs.  Facts are not in issue at this stage.  I will deal with PTSD in its entirety, then alcohol abuse, and finally depressive disorder.

Is PTSD related to service?

18.     I do not think the radar incident, the radio incident or the body searches can be “severe stressors”.  While I can accept the events were distressing and certainly stressful, they are simply not of sufficient magnitude.  The examples contained in the definition of “experiencing a severe stressor” are not an exhaustive list.  However they are indicative of the magnitude of the stress required to fulfil the definition.

19.     I accept the collision incident can satisfy the definition.  Mr McDowall says he saw severed limbs lying on the deck of the boat, and an amount of blood floating in the water.  As Mr McDowall described it, this was an event that involved actual death or serious injury, or the threat of death or serious injury to the kumpit’s crew.

20.     The applicant’s story also satisfies the question of clinical onset.  Dr Mulholland indicates in his report of 25 May 2004 Mr McDowall stated his “insomnia with bad dreams dates at least from 1967”.  He indicates this may represent “embryonic features” of the illness.  I accept the insomnia and bad dreams represent clinical onset of PTSD.  Factor 5(a) is satisfied.

21.     The hypothesis connecting Mr McDowall’s PTSD with the circumstances of his relevant service is reasonable.  His condition is deemed to be war-caused unless the respondent can disprove a necessary fact or prove an inconsistent one beyond a reasonable doubt: s 120(1).  This is the fourth stage of Delidio. 

22.     At this point it is appropriate to say my acceptance of the collision incident as a severe stressor is predicated upon Mr McDowall having seen limbs and blood in the water.  The respondent sought to show Mr McDowall could not have seen limbs or blood in the water.  The respondent relied on reports of proceedings which contradict the applicant’s story.  They attempt to show that while the collision occurred, it was not nearly as serious as described by the applicant.

23.     I quote from the report of proceedings (at ff35-38 T4).  Captain Burnside (the ship’s captain) describes the collision.  He said simply

During the middle watch when investigating a darkened contact a Kumpit struck the starboard side of the ship and damaged its bows.  The Kumpit was taken in tow together with its Indonesian crew and passengers…

24.     The report does not describe any injuries to the crew of the kumpit.  In addition the respondent showed the applicant had not mentioned limbs or blood until recently.  For example I refer to a written statement of Mr McDowall dated 19 August 2002 (ff33-34 T4).  Mr McDowall describes the collision, but he does not describe any severed limbs or blood.

25.     The respondent did not seek to disprove the applicant’s story in relation to clinical onset.  A daily medical record of 30 March 1967 (f44 T6) records Mr McDowall suffers insomnia, dreaming and a lack of energy, which supports Mr McDowall’s story about clinical onset.

26.     I have some doubts as to whether the event occurred precisely as reported by the applicant. However I do not think the respondent can disprove this element of Mr McDowall’s story beyond a reasonable doubt.  I note the kumpit was so damaged it would have sunk, according to Captain Burnside.  The applicant says it was a crowded vessel.  He says there were about 40 to 45 people on board.  A collision that was violent enough to sink the kumpit could certainly result in some severe injuries to its crew, especially if the vessel was crowded.  I do not think the respondent can satisfy the high standard of proof required by s120(1) of the Act.

27.     Mr McDowall suffers PTSD.  That condition is war-caused.

Is alcohol abuse or dependence related to service?

28.     The first two Delidio steps have already been completed in relation to the alocohol abuse or dependence condition.  Does Mr McDowall’s story fit the template found in the SoP?  I have already concluded the collision incident represents a “severe stressor”.  It occurred in 1966.  Mr McDowall suffers PTSD, which had clinical onset in 1967.  Dr Mulholland dates Mr McDowall’s chronic excessive intake of alcohol from 1970 (exhibit 3).

29.     Factor 5(a) of the alcohol abuse SoP is satisfied.  The respondent did not seek to disprove any necessary fact of Mr McDowall’s story in relation to alcohol abuse, apart from the seriousness of the collision.  I have already come to a conclusion about that (above).

30.     The condition of alcohol abuse or dependence is war-caused.

Is depressive disorder related to service?

31.     The first two steps of Delidio have already been completed.  Do the facts as stated by Mr McDowall fit the template found in the SoP?  Dr Mulholland says the “depression possibly dates from 1970 if not before” (exhibit 3).  Dr Likely says the condition’s onset could be dated “from the time of Mr McDowall’s service in Vietnamese waters” (f4, f117 T4).  I accept 1969-1970 as a rough guide to the clinical onset of the condition.

32.     Mr McDowall thus satisfies Factor 5(c) of the SoP.  He had a clinically significant psychiatric condition – PTSD – within the two years immediately before the clinical onset of depressive disorder.  It is therefore unnecessary to determine whether any of the events amount to a “severe psychosocial stressor”.

33.     The respondent cannot disprove beyond reasonable doubt any fact necessary to Mr McDowall’s story in relation to depressive disorder.  His depressive disorder is related to service.

Alternate diagnosis?

34.     Dr Mulholland said in oral evidence that if the Tribunal was satisfied Mr McDowall suffered PTSD, his symptoms of chronic anxiety (represented by the claim in relation to anxiety disorder) would by subsumed into the PTSD.  I accepted this.

35.     Because I am satisfied Mr McDowall has PTSD, I am not satisfied to the required standard (s 120(4) of the Act) that Mr McDowall has anxiety disorder.

Conclusion

36.     The decision under review is set aside.  Mr McDowall suffers PTSD, alcohol abuse or dependence, and depressive disorder.  Those conditions are war-caused.  The matter is remitted to the respondent for calculation of the rate of pension. The date of effect is 2 September 2002.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Date of Hearing: 12 July 2004.
Date of Decision: 12 October 2004
The applicant was represented by Mr Honchin of counsel.
The respondent was represented by Mr Stoner, a departmental advocate.