MILLS and REPATRIATION COMMISSION
[2011] AATA 336
•20 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 336
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3043
VETERANS' APPPEALS DIVISION ) Re IVAN MILLS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Miss E A Shanahan, MemberDate20 May 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
John Handley
Senior Member
VETERANS AFFAIRS – applicant served as a radar operator on HMAS Sydney in Korean waters – nine events in service advanced to support claim of connection between service and PTSD – evidence of applicant unreliable – PTSD diagnosis not made – collection of symptoms consistent with dysthymic disorder – hypothesis not consistent with applicable factors within three SoPs within the assessment period – decision affirmed.
Veterans’ Entitlements Act 1986 s 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Delahunty v Repatriation Commission (2004) 38 AAR 511
Kaluza v Repatriation Commission (2010) FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
McKerlie v Repatriation Commission (2010) 52 AAR
Meehan v Repatriation Commission [2003] FCA 1371
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz (2006) 93 ALD 107
Woodward v Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
20 May 2011 Mr John Handley, Senior Member
Miss E A Shanahan, Member
1. On 28 November 2006 the applicant claimed acceptance of the conditions of breathing problems and PTSD (post traumatic stress disorder) together with a consequent increase in pension. At that time, the applicant was in receipt of pension at 30% of the general rate for the accepted conditions of bi-lateral sensorineural hearing loss and bi-lateral tinnitus.
2. The Respondent rejected the applicant's claim on 20 April 2007 (T18, p54). It also decided that the conditions suffered by him were more appropriately diagnosed as asthma and dysthymic disorder. Pension was continued at 30% of the general rate.
3. The applicant applied to the Veterans' Review Board (VRB) to review the decision made by the Respondent insofar as it denied dysthymic disorder. He withdrew his claim for asthma (T21, p65).
4. The VRB decided on 11 May 2009 to affirm the decision of the Respondent.
5. The applicant applies to review the decision made by the VRB. He contends that the condition of PTSD should be found as war caused but if not there should be a finding that dysthymic disorder is war caused.
OPERATIONAL SERVICE
6. The applicant was a member of the Royal Australian Navy (RAN) between December 1951 and December 1957. He was 18 years of age at enlistment. He was engaged in operational service in Korean waters between 27 October 1953 and 2 June 1954. At all times he was a member of the crew of HMAS Sydney (Sydney) and was a radar operator.
7. The applicant relied on nine events during service which he contended gave rise to the diagnosis of PTSD namely:
(a)trapped in bow of ship;
(b)suicide of ship mate;
(c)death of a pilot;
(d)fear of submarine attack;
(e)collision with a Junk;
(f)visit to Incheon;
(g)fear of air attack;
(h)unexploded rocket; and
(i)injuries to aircraft handler.
These events will be examined in detail later in these reasons.
THE APPLICANT
8. The applicant was born in Taree in Northern New South Wales on 20 August 1933. He is presently 77 years of age. He was one of 11 children and was educated to the second year of high school which he left at age 16. He worked in a hardware shop for a few years in Taree and then enlisted in the RAN.
9. After his operational service in Korea concluded, the applicant returned to Australia and he married. Two days later he travelled onboard Sydney to New Zealand and thereafter engaged in service on Sydney in or around Singapore, Hong Kong, the Philippines and Papua New Guinea. The marriage ended approximately 12 months later and he subsequently divorced.
10. In 1957 the applicant was discharged from the RAN and initially obtained work as a postal officer with Australia Post and later as a labourer in a meat processing factory. He then undertook an apprenticeship through the Repatriation Department and obtained employment with a builder. He later qualified as a tradesman carpenter and joiner.
11. The applicant returned to Taree where he was employed by his brother who owned and operated a joinery. He returned to Melbourne after approximately 18 months and worked with a building company which constructed high rise buildings. The applicant was engaged in constructing timber formwork for the pouring of concrete. Later he commenced self employment as a sub contractor principally engaged in carpentry and joining. He remained in self employment as a carpenter and joiner for approximately 10 years and during that time employed between 10 and 11 persons.
12. The applicant was approaching retirement but obtained employment as a part time cleaner at a local primary school. He was also engaged in full time employment with Comdain Homes where his son was a senior supervisor.
13. In addition to his employment subsequent to discharge from service the applicant was engaged with the Masonic Lodge and became Master of the Nillumbik Lodge in Greensborough in 1980. He also engaged in musical productions as a singer. That activity commenced when he was a teenager before he enlisted. He had professional voice training. After discharge he had the opportunity to work professionally in stage musicals but preferred to remain in Melbourne. He obtained a position as an amateur singer with the Little Lyric Light Opera Company, on a part time/casual basis.
EVENTS IN SERVICE
14. The events in service which the applicant alleged gave rise to PTSD are summarised below. The summary is a compilation taken from a statement of the applicant made on 1 July 2009 (Exhibit A1), his evidence at the hearing and from the contents of a report completed by Mr John Hewett on behalf of Writeway Research Service Pty Ltd dated 18 February 2010 (Exhibit R3).
trapped in bow of ship
15. In his statement the applicant said that it was his habit when off duty to write letters to his family and friends in an empty compartment he located in the bow of Sydney. There was an occasion when he was in the compartment, which he recorded as being located below waterline, when he heard an announcement that Sydney was on a collision course with another vessel. The vessel was locked down and the compartment was sealed without opportunity for escape. He recorded that he was trapped and terrified because he believed if there was a collision and the bow filled with water he would drown. He did not ever return to the compartment and has subsequently suffered flashbacks and nightmares.
16. In evidence the applicant said that the position he occupied within the bow was accessed by descending a flight of stairs and entering it through a hatch. He agreed that subsequent to the completion of his statement he had learnt that there was a small manhole that he could have accessed (and escaped from the compartment). He said that even if he had known of its existence, he would not have used it because he would have endangered the lives of other crewmen in the event of a collision as water could have entered the compartment through the opened manhole cover.
17. The applicant said that he had been in the compartment for about 20 to 30 minutes before he heard the lock down announcement of Sydney and he estimated another 20 minutes before another announcement was made giving the all clear.
18. The applicant said that he was 20 years of age when this event occurred, he was in a war zone and flashbacks and nightmares had been present since that occasion and have become worse, especially at night.
19. The applicant was cross-examined by Mr Purcell, who appeared on behalf of the Respondent, concerning his location onboard Sydney when he was writing his letters. He was taken to the Transcript of the VRB hearing (Exhibit R1) at page 11 where he is recorded as having said that he was locked down in the bilge in the – down under the plank. He said that he would never have notified the VRB that the bilge was the location where he was locked down. He said that he knew that the bilge of a ship is the location for the collection of water, oil and poisonous vapours. He would not have gone to that place to write his letters. He agreed with Mr Purcell that he was not in the bilge when writing his letters.
20. The applicant was then taken to page 12 of the VRB Transcript where he was asked to confirm that he was sitting in the bilge writing your letters to mum or whatever. He is recorded as having given the answer Yes. The applicant then said in evidence This [person] is nuts. I would never say a thing like that (Transcript, p62).
21. The applicant was asked to clarify his position onboard Sydney when writing his letters by reference to a drawing of Sydney (Exhibit R6) and a detailed profile of Sydney (refer Attachment to the report of Writeway – Exhibit R3). The applicant indicated from the drawing at Exhibit R6 that his position was at or near a position on the ship described as storerooms. From the detailed plan of the ship (refer Writeway Report) the applicant said he would have been in the Torpedo Pistol Room. Initially he said that he was fairly confident of being in that position but later he agreed that it would not be normal for access to be given generally to members of the ship's company to the Torpedo Pistol Room and added Maybe it was the one up top, but it was definitely one of those rooms below the waterline, and it was just forward of the Seamen's Mess… (Transcript, p61).
22. The applicant agreed that his training prior to this occasion gave him knowledge of having to close down a ship to a watertight position. Additionally he said that hatches that are located below a waterline are kept closed whether the vessel is on collision course or not in order to maintain a state of watertight integrity. Nonetheless he said on this occasion the hatch to the compartment was open. He said it was approximately four feet by three feet in dimensions, was hinged and resting against a wall. He entered the compartment via a ladder through the open hatch and occupied the compartment for 20 to 30 minutes writing letters before he heard the warning. He then heard that the hatch was locked down but acknowledged the event occurred 57 years ago and it was hard to remember with precision. Nonetheless he said that he was sure that the hatch door was open when he entered the compartment.
23. The applicant also said that there was a circular manhole plate within the rectangular hatch which he described as the little escape hatch (Transcript, p63). He said the practice when ensuring watertight integrity was to first close the hatch and then screw down the circular manhole plate within it.
24. When he was referred to his earlier evidence and the comment within his statement that when he was locked down the compartment was sealed with no way of escape, the applicant said that he knew that the manhole plate could be unscrewed from within the compartment and he could escape within a few seconds. He said that to do so however would have endangered the ship. He again reaffirmed that the manhole plate was present within the hatch and said:
Well it was there. I didn't realise it because the case had never been that I had needed to get out of there in a hurry or that – you know in that circumstance. So that was the one and only time that it ever happened. (Transcript, p64)
25. When he was challenged that he did not know until after the all clear had been given that he could have escaped through the manhole plate he said if you're down there and sitting over there in the corner you – you can't see the hatch. Later he said I knew the hatch was shut but I couldn't see it. I didn't see it until I had a look afterwards (Transcript, p64).It was put to him that all he had needed to do in the circumstances was to unscrew the manhole and escape through the hatch. He agreed and said he was more concerned for my shipmates than I was for myself (Transcript, p65).
suicide of ship mate
26. In his statement the applicant recorded that a covered body, on a stretcher, was carried past him in a narrow passageway. He recorded that he was aware at the time of the identity of the person. The event upset him.
27. In evidence the applicant said that the deceased person was Leading Aircraftsman Nelson (Transcript, p19) who is believed to have suicided after he was denied compassionate leave to attend the funeral of his fiancé who had been killed in a motor car accident. The applicant said that the deceased had suicided in the aircraft battery room and the stretcher carrying the deceased passed him as he was walking along a narrow corridor on the port side of Sydney. In evidence the applicant said that he did not know at that time who the deceased person was but learnt later that it was Mr Nelson. He said he was upset when he learnt the identity of the deceased.
28. The applicant also said he attended the funeral of the deceased who was buried at Kobe in Japan at the same time as the funeral of Chief Petty Officer Hawkins who had died on shore in a hotel from the effects of leaking gas from a heater. The applicant said that Chief Petty Officer Hawkins was the chief cook of Sydney. The applicant attended the funeral as a member of the Blue Jacket Band, a naval band that played music at the funeral.
29. In cross-examination the applicant agreed that he had said in evidence in these proceedings and before the VRB that the person who had suicided was his friend and he was of the same rank.
30. When challenged, the applicant agreed that the deceased person was not of the same rank but rather was a leading electrical mechanic (not an aircraftsman) and would not have been in the same Mess.
31. When he was before the VRB the applicant said he could not remember the name of the deceased (Exhibit R1, p17). However, he did identify him in these proceedings (Transcript, p19).
32. When asked why he would have forgotten the name of the deceased, if he was his friend, the applicant said:
…we didn't have any differentials between your friends. I had friends who were chief petty officers, some were – you know quite a few officers that befriended you. (Transcript, p66)
When the applicant was challenged that he learnt the identity of Mr Nelson from the report of proceedings of 6 April 1954 appended to the report from Mr Hewett on behalf of Writeway, the applicant said:
Well, I knew it when – when I – you know a lot of these people you didn't know them by their – by their surnames. You just knew them as Tom, Dick or Harry sort of thing you know. (Transcript, p67).
The applicant said, given the passage of time, he would have forgotten the name of the deceased (Transcript, p66).
33. The applicant initially said that he could not recall whether he had been given a copy of the Writeway Report but later said that he may have received it, but may not have read it. When it was put to him that he did receive information concerning the identity of Mr Nelson from the Writeway Report, the applicant said Yes, yes (Transcript, p69).
34. The applicant agreed that when asked by the VRB Members how he had felt when he learnt that the deceased person was Mr Nelson he had said:
Oh I felt – I didn't feel good. You know, I felt upset about it of course. You know, it was – you don't like losing your friends. (Exhibit R1, p19)
He also agreed that he had said that he had not forgotten Mr Nelson, that he often thinks of him and when asked whether the death of Mr Nelson affected him in his waking life he said:
Not really, no. But these things sort of – they happened more of a night time. Well, I had been a busy person and I sort of used to have things to think about (Transcript, p69 ‑ 70 and Exhibit R1, p19).
35. Mr Hewett on behalf of Writeway was not called to give evidence. In his report of 18 February 2010 he recorded (at paragraph 8) that he could find no reference in any of the Reports Of Proceedings of Sydney of the suicide death of a sailor. Mr Hewett acknowledged that he only examined the logs during the periods of operational service off the Korean Coast. He raised the possibility of the suicide having occurred outside the period of operational service.
36. The person L.E M. (Air) K.W. NELSON is referred to in paragraph 15 of the Record of Proceedings of 6 April 1954 appended as Attachment 3 to the report of Mr Hewett. The Record of Proceedings does not record that the death of LEM Nelson was by suicide. He and, Chief Petty Officer Hawken who died in the month of March 1954 were buried at the Kasugano Cemetery in Kobe in Japan, on 8 March 1954. There is nothing within paragraph 15 or in any of the other Record of Proceedings referring to the death of any person by suicide.
37. However the only Record of Proceedings appended to the report of Mr Hewett were the months of December 1953 and January, and March 1954. The applicant was engaged in operational service on board Sydney between October 1953 and June 1954. It is not inconceivable that the suicide death of a person on board Sydney could have occurred outside the period covered by the Records of Proceedings appended to the report of Mr Hewett but which were not located.
death of a pilot
38. In his statement the applicant described an event where an aircraft had landed on the deck of Sydney and had become unserviceable. The pilot of that aircraft had alighted from it and walked into the rotating propellers of a standby aircraft and was killed. The applicant said that an announcement was made over the PA of Sydney and ships’ crew were directed to keep away from the flight deck because there had been an accident. The applicant said that he approached a doorway to the flight deck, because he was curious, and from a distance of about 40 feet he saw a covered body and a large pool of blood. He did not know the identity of the pilot but when he learnt later who it was he recalled that it was an officer with whom he had been on talking terms. The applicant recorded that he was horrified when he looked at the scene.
39. In cross-examination the applicant agreed that he did not see the episode where the pilot lost his life when he walked into a propeller. He said he had been on duty in the aircraft directions room and he had a quick look and then returned to his duties (Transcript, p71).
40. Some time later, for reasons he could not explain, he returned to a position where he was able to see the flight deck and observe two or three aircraftsmen hosing blood off the flight deck (Transcript, p20).
41. The applicant also agreed that he told the VRB that the deceased person had been covered, there was a pool of blood and [t]hen they took him down and put him with our meat supply, would you believe (Exhibit R1, p20). The applicant said that was what he had believed, as opposed to what he knew (Transcript, p73). At that point he was referred to the Record of Proceedings completed in January 1954 (refer Attachment 4 of the Writeway Report) which recorded that on 15 January 1954 Sub-Lieutenant J H McClinton had suffered a compound fracture to his skull when struck by a revolving propeller, that Sydney immediately returned to harbour, Sub‑Lieutenant J H McClinton was transferred to the Royal Naval Hospital in Hong Kong and died later that day. The applicant said:
Nobody would believe that. If you had seen the amount of blood on that flight deck you would not believe that the guy could ever have got to – may be he did. He must have been just alive. (Transcript, p73).
The applicant said that it was assumed by all onboard that he was dead…
42. It was also suggested that he had no basis to believe that Sub-Lieutenant J H McClinton was placed in the meat cool room because he had been alive before he left Sydney. The applicant then said that he had not been referring to Sub-Lieutenant J H McClinton when he gave that evidence but rather he was referring to his friend who hung himself… (Transcript, p74). When the applicant was challenged about that statement, he said he must have been confused.
43. The applicant said – confirming the evidence he gave to the VRB – that he felt pretty awful when he observed the covered body of Sub-Lieutenant J H McClinton (Exhibit R1, p22). When asked by one of the VRB Members whether he could be a bit more descriptive the applicant said Oh, well, devastated, I suppose, because I knew the guy.
fear of submarine attack
44. The applicant described in his statement an occasion where he was operating radar on Sydney and a report had been received from a destroyer escort that it had picked up an unidentified submarine. The applicant said that Sydney did not have radar equipped to detect submerged objects. He said Sydney changed course full speed and returned to Kure and he was fearful of attack. The applicant gave similar evidence at the hearing.
45. The applicant was also reminded that his advocate before the VRB submitted that Sydney was chased by a submarine. The applicant did not dispute that description and said in evidence in these proceedings that a submarine was closing in on us and acknowledged that he had said to the VRB [w]e went off at full speed back up the Shimoseki Strait to Kuri… (Exhibit R1, p26).When he was asked whether the practice as a radar operator was to pick up from the radar screen unidentified contact and then report it, he said:
Well, it wasn’t followed in this instance, because I tell you what we took off like a bat out of hell out of there. (Transcript, p78)
He added:
Captain George Oldham he decided – it’s what I would have done too – we’ve got to get out of here, and because you don’t ask, you know, ”Hey who are you?” and then find a torpedo in your tummy. (Transcript, p78)
The applicant said he understood that it was the responsibility of escort vessels to deal with submarines but he added [y]es, yes, but we weren’t hanging around to find out (Transcript, p78).
46. The applicant was asked to refer to a Report of Proceedings completed for the month of December 1953 (refer Exhibit R3, Attachment 5) where an incident involving sonar contact was recorded. At paragraph five, Captain Oldham reported that sonar contact which was classified as submarine was held for 20 minutes before contact was lost. He commanded Sydney to withdraw to the south-east and both escort destroyers hunted that vessel for 24 hours. Eventually a report was received that the contact was not submarine.
47. It was suggested to the applicant that he did not have any proper basis for assuming that there were enemy submarines in the area. He responded:
…probably true, yes, but we were only just what – it was going by what these destroyers had reported that they had picked up the sonar contact, you know. So you’re just sought of going by what they say. (Transcript, p79)
48. The applicant agreed that he did not give a history to Dr Chambers, who examined him on behalf of his solicitors, or to Dr Walton who examined him on behalf of the respondent, of this event although he relied on it in his evidence to the VRB (Exhibit R1 p26-27). The applicant agreed with a proposition put to him by Mr Purcell that he did not give a history of this event because it was not significant (Transcript, p87).
COLLISION WITH A JUNK
49. On another occasion when Sydney was a few miles ashore from Hong Kong in the South China Sea the applicant had been on radar watch. In his statement, he said he was approached by Lieutenant Bennett and was told that Sydney had collided with a Junk and 20 persons on board it had been killed. The applicant said he was accused by Lieutenant Bennett of being responsible for their deaths because he had failed to detect the Junk. The applicant recorded that he felt helpless and horrified and continues to feel guilty about their deaths.
50. In evidence the applicant gave a similar account and said further that he had no way of knowing whether what he had been told by Lieutenant Bennett was true. He said metallic objects are picked up on radar but wooden objects are not. He felt responsible as the radar operator for the collision with the Junk. He said he continues to think about the incident and it never goes away (Transcript, p21).
51. The applicant acknowledged in his evidence to the VRB that he had been admonished by Lieutenant Bennett one night when he was on watch. He said Lieutenant Bennett came storming in and said words to the effect Why didn’t you report that junk?. He said Lieutenant Bennet then told him that there had been a collision with a Junk, and 20 people were on board it. The incident occurred in the South China Sea a few miles from Hong Kong. The applicant told the VRB Members that there was no doubt that the junk had been sunk. He said that he felt bloody terrible, to be quite honest because he was blamed for the incident. He said that he has nightmares about it (Exhibit R1, p27-29).
52. In cross-examination the applicant said he felt guilty about the episode because he did not detect the junk. He acknowledged that in the Report of Proceedings of January 1954 (Exhibit R3, Attachment 4), Captain Oldham recorded at paragraph 18 that a collision occurred between Sydney and a junk at 0206 hours on 23 January 1954. It was also reported:
There were no casualties and only minor damage was caused to the Junk. A separate report has been rendered on this subject.
53. When asked whether he was reassured that no one was killed in the incident, the applicant said:
If they’d hit the junk, the junk would have gone down the side, and those guns sponsons would have torn the mast and Christ knows what else out of them. (Transcript, p81)
54. The applicant said that he would like to think that the junk wasn’t sunk. He said he would prefer to forget all about it and believe that the incident had not occurred, but said that he had been blasted by Lieutenant Bennett and the episode had remained in his memory system. He added, it’s:
…virtually pretty unbelievable that you wouldn’t do it any damage. To hit it anywhere you would split it open. They’re just made of wooden planks you know. (Transcript, p81)
He said he did not believe that the incident had not occurred because Lieutenant Bennett seemed so sure of himself (Transcript, p82).
55. Mr Purcell acknowledged that the separate report referred to at paragraph 18 in the Report of Proceedings was not supplied with the Writeway report.
visit to incheon
56. In his statement, the applicant said he visited a blackened site at Incheon Hill in Korea and had been told that it was the site that previously housed a school of 580 children. The school building had been destroyed and the applicant recorded that he imagined children having been killed during the bombing.
57. In evidence, the applicant was told that the Writeway Report completed by Mr Hewett recorded that there was no record of him having attended Incheon. The applicant then produced some photographs taken by him, one of which depicts a number of sailors in uniform (Exhibit R8, Photograph No. 1) standing under a banner which bears the words Welcome to Incheon Korea 21st Trans. Medium Port.
58. A number of other photographs were also produced by the applicant, which he said were taken at or near Incheon, one of which shows a child carrying another child who the applicant said approached him and other servicemen, begging for food. Another photograph shows some children wandering an unmade street and another shows a woman and a child wandering along a roadway. The applicant said there were persons sleeping along the sides of roadways, some under sheets of iron from buildings that had been destroyed by aircraft bombing. Another photograph depicts some servicemen talking to Korean children in front of a building bearing the words City Hall. The applicant said that building was located at Incheon.
59. The applicant asserted that the photographs that he produced at the hearing and which were taken by him confirmed that he was present at Incheon.
60. When cross-examined the applicant agreed that he and other Australian sailors who visited Incheon were welcomed, local persons were friendly towards him and there was no hostility. Nonetheless, the applicant said that he was upset having seen the damage caused to local buildings and the affect on local persons. He said:
…it doesn’t take away the damage that you were doing to people … They had no control over their lives and they just had everything going bang around them… (Transcript, p84).
fear of air attack
61. In his statement the applicant recalled an event when he was operating radar and he observed unidentified objects closing in on Sydney at high speed, he believed the objects to be North Korean aircraft and Sydney was about to be attacked. He said his vessel launched Sea Furies to intercept and pursue the aircraft, however, they eventually retreated. He recorded that he was terrified of Sydney coming under attack.
62. The applicant was not asked questions about this episode during evidence in chief.
63. In his evidence to the VRB the applicant said that he had been operating radar and detected aircraft approaching at 400 or 500 mph. He said they were MiGs and they were heading toward Sydney and:
…we went to action stations and they – they came within a couple of mile of us and we launched our Sea Furies, being fighters, and these MiGs turned around and went back. (Exhibit R1, p32)
He described to the VRB the incident as being:
…a bit scary. Like, if you’d – you’d feel you’re about to come under attack, you wouldn’t know how you were going to finish up would you? (Exhibit R1, p33)
64. When cross-examined the applicant was referred to the report of Mr Hewett who recorded at paragraph 12 that the ships log for 16 March 1954, recorded that two bogeys (unidentified aircraft) were detected at a range of 70 miles and a height of 10,000 feet. The log also records that Sydney did not alter its course or its speed and there is nothing to indicate that any other action was taken. There is no report of any other incident involving unidentified aircraft.
65. The applicant was adamant that Sydney did launch Sea Furies to pursue and intercept the incoming aircraft. He said those aircraft had come from North Korea and added I’ll bet my life on it, because it was me who – who reported it (Transcript, p94). Additionally, he said that the crew went to action stations and all hell broke loose as you can imagine (Transcript, p96).
66. When it was put to the applicant that there is no record of the vessel ever having gone to action stations because of the threat from unidentified aircraft, nor a report of launching of Sea Furyies, the applicant said [t]hat’s rather strange to me (Transcript, p96). When he was asked whether he thought there had been an attempt not to disclose events that happened in Korea, the applicant said I’ve always thought that (Transcript, p97).
unexploded rocket
67. In his statement, the applicant recorded there was an occasion where a rocket dislodged and bounced along the flight deck as a returning plane touched down. He said he was standing nearby when that occurred and was terrified that it might explode. The applicant said he sought and obtained cover behind a breakwater and was told later that another sailor manoeuvred the rocket overboard. He said he was in fear of his life and was also fearful for the lives of other persons in the vicinity.
68. The applicant was not asked questions about this episode during evidence in chief.
69. When cross-examined he said that he regarded this episode as seriously significant. He said it certainly frightened the daylights out of me (Transcript, p87). He did not know at the time that the rocket had not been armed.
70. The applicant said that he should be regarded as a model sailor, that he had not ever been disciplined during service, that he always obeyed orders and one order that he would have obeyed would have been not to enter the flight deck whilst aircraft were operating (Transcript, p92). The applicant agreed that he should not have been on the flight deck and when asked why he was there he said I must have been a naughty boy. I was only 20 (Transcript, p91).
71. Mr Hewett reported that his examination of the logbooks do not record any incident involving a loose rocket on the flight deck. However, at page 6 of his report he noted that in other research he had conducted involving incidents during the Korean war, Sea Fury aircraft did occasionally return to Sydney with rockets attached because of the failure of firing mechanisms. When an aircraft landed, an arresting wire could sometimes cause the rocket to be discharged from the Sea Fury and flight deck crew would retrieve the rocket and throw it overboard because it could not be used again.
injuries to an aircraft handler
72. In his statement, the applicant described severe leg injuries suffered by an aircraft handler who came in contact with an arrester wire after a plane landed on the flight deck of Sydney. The applicant did not observe the incident but heard about it later. He said the aircraft handler slept in an adjacent hammock, he therefore knew him and he was upset at the thought of his injuries.
73. In evidence, the applicant said that the aircraft handler misjudged the timing of the landing (Transcript, p25). He said the aircraft handler's job was to remove an arrester wire off a bottom hook of a plane after landing however, he ran out too soon, the plane did not catch the wire, it hooked the next wire but the momentum of the plane chopped his legs almost off (Transcript, p26). The applicant said the aircraft handler was taken to a MASH hospital in South Korea and underwent surgery.
74. The applicant agreed with the contents of documents appended to the Writeway report that this incident had occurred at 1320 hours and treatment was administered from 1324 hours. The report of Writeway indicates that the injuries suffered were severe compound fractures of both legs (Transcript, p85).
other incidents
75. The applicant recorded in his statement that there were other incidents, which affected him during service, but the only incident he did record was an occasion where he saw a young boy who was offering his sister in exchange for goods. In evidence, the applicant said that the persons in Photograph No 2 (Exhibit R8) depicted the boy and his sister. He described the photograph as depicting little kids, which were destitute which he thought was unbelievable (Transcript, p26).
JANICE MILLS
76. Mrs Mills is the wife of the applicant. She adopted a statement completed on 1 July 2009 received as Exhibit A2, save for deleting part of the second paragraph where she recorded that her husband had spoken to her about his stressors during Korean service virtually since the time we that we met. In evidence, she said that he had commenced to talk to her about his stressors about 12 or 15 years previously after he reunited with a former colleague who served on the Sydney.
77. Mrs Mills said that her husband has persistently spoken to her about the incident involving the Junk and said I’ve heard that story over and over and it was really, really stresses him out (Transcript, p105).
78. Since the time that they married Mrs Mills said that her husband has slept poorly, he was restless, he suffered nightmares, and on occasions has kicked her during his sleep. She said that her husband did not ever elaborate on the content of his nightmares.
79. From about 2004 or 2005 when he retired, Mrs Mills said her husband, although previously a social drinker, he commenced to drink greater quantities on a more frequent occasion. He made his own alcohol from a still and drank homemade whiskey or ouzo. She estimated that he would drink about five glasses of spirits (the glass being bigger than a typical sherry glass) on two occasions per week and on other days he would drink a lesser quantity. During hot weather, he would drink light beer.
80. From shortly after their marriage Mrs Mills said her husband was intolerant and short tempered and on occasions had assaulted her. She said he would lose control and would be apologetic subsequently. She said this abuse would occur out of the blue (Transcript, p106).
81. Although her husband had experienced nightmares and had been abusive for many years he had persistently rejected medical assistance and had said to her that there was nothing wrong. In recent years Mrs Mills said her husband had participated in the Older Veterans’ Program at the Repatriation Hospital.
82. Mrs Mills said their daughter died about 13 years ago after a long illness. She said her husband’s emotional problems occurred well before the death of their daughter (Transcript, p107). Mrs Mills recalled that her husband was then working long hours at two jobs, being a school cleaner and a carpenter. She estimated that he commenced the cleaning job in about 1996 or 1997.
83. Mrs Mills agreed that her husband had also suffered from uncontrollable tearfulness from time to time that had been observed by and been the subject of query by their grandchildren. She would explain to them that he had been crying because he was sad. It usually occurred when he had been talking about his Korean service. She said her husband was not depressed on most days, rather he was short tempered and irritable (Transcript, p108-109).
84. In cross-examination, Mrs Mills disagreed with some of the contents of a report completed by Dr Kernutt, a psychiatrist who examined her husband at the request of the respondent. In his report he recorded that a history had been obtained from Mr Mills that [h]e consumes several glasses of wine most nights, sharing a bottle of wine with his wife (T16, p36). Mrs Mills said that she and her husband were pensioners and they could not afford to be going out buying stuff like that (Transcript, p113).
85. Mrs Mills also disagreed with a comment within the report of Dr Kernutt, which was ascribed to her, that she observed her husband experiencing increasingly severe mood swings over the last 2-3 years, which would have coincided with his retirement (T16, p36). She agreed that he could become grumpy but said that his mood swings occurred before he retired (Transcript, p113). When she was asked to consider a comment recorded by Dr Mock, a registrar in the Older Veterans’ Program at the Repatriation Hospital (Exhibit R2, p59) dated 7 December 2007 that her husband’s mental state had deteriorated over three years since his retirement with symptoms of depression, irritability, poor sleep and reduced motivation, Mrs Mills said that her husband wasn’t depressed (Transcript, p115). She did agree with a comment by Dr Kernutt, also ascribed to her, that her husband was not happy and probably depressed and he had too much time on his hands and too much time think (T16, p36). Although she agreed broadly with that comment she again said that her husband was not depressed. She said that her husband had been working 14 hours per day and his retirement did require some adjustment. (Transcript, p116)
86. Mrs Mills said discussions she had with her husband about the collision with the Junk was a story that she had heard a million times. She understood that her husband did not detect the Junk on the radar screen and had been abused by a superior officer because Sydney ran over 20 people and killed them (Transcript, p117). She said that she believed that that incident had occurred but was not aware that evidence had been heard earlier in the hearing of an incident involving minor damage to a Junk without loss of life. Mrs Mills said that she could also recall her husband speaking to her about an occasion when a person onboard Sydney committed suicide and his body had been dragged past him and another occasion where she heard of an event of the plane and the rocket coming at him (Transcript, p117).
SCOTT CHAMBERS
87. Dr Chambers is a practising psychiatrist who examined the applicant on 28 October and 12 November 2008. He prepared a report dated 4 December 2008 (T22, p84-86) at the request of the applicant’s RSL delegate. He subsequently prepared two further reports on 27 April 2010 (Exhibit A3) and 1 October 2010 (Exhibit A4) at the request of the applicant’s solicitors.
88. In his first report, Dr Chambers recorded a history that the applicant experienced five traumatic events in service, namely, collision with a Junk where 20 persons on board were killed; observing the remains of a school which had been bombed and incinerated with over 500 children in it; being locked in the bow of the ship having being informed that the ship was on collision course with another vessel; observing the body of a person who had committed suicide; and witnessing the body of a person who had been killed by an aircraft propeller.
89. Dr Chambers understood that the applicant had been treated at the Austin Repatriation Hospital and had been diagnosed with PTSD. According to a PTSD scale used by the United States Department of Veterans’ Affairs, the resulting score confirmed the opinion held by Dr Chambers, that a diagnosis of PTSD applied to the applicant.
90. Dr Chambers was satisfied that the event where the applicant was trapped in the bow of a ship constituted the experiencing of a severe stressor because he was in fear of his life, he was trapped and he was under significant threat of attack from enemy forces (Transcript, p122). The collision with the Junk in Hong Kong harbour was not seen by the applicant but he was satisfied that the applicant had confronted the event in a psychological sense because he had been involved in an event where 20 people had died, he had been accused of their death and he felt responsible for their death. Dr Chambers regarded the applicant observing the body of the colleague who had suicided as being traumatic and confronting. He reached a similar conclusion concerning his observation of the body of a person who had been killed by an aircraft propeller.
91. The history taken by Dr Chambers was of the applicant not having seen the bodies of children who had been incinerated when their school was bombed and burnt. He thought the observations of the remains of the building by the applicant would have been stressful but he thought that the reaction was less than his reaction to the other events.
92. When Dr Chambers was informed that the applicant had given evidence of having intrusive nightmares after he returned from Korea, he was of the opinion that reactions of that type were common in persons who suffered PTSD. He said persons who have experienced a significant traumatic event have difficulty processing and making sense of it so you try and block it out, but it will often come to the surface, manifest in other ways, and in anxiety (Transcript, p124).
93. Dr Chambers was also of the opinion that PTSD can be of latent onset. In his experience, persons with PTSD may not discuss traumatic events with other persons because to do so will retraumatise them. Nonetheless, they may experience psychological symptoms and the presentation of PTSD may seem to be delayed. Dr Chambers was aware that the applicant had been engaged with the Masonic Lodge, that he had been engaged in theatrical productions and had been self employed and had consulted his local doctor in about 2004 at or about the time he retired. Nonetheless, he was of the opinion that the symptoms of the applicant had occurred many years before the presentation to seek help from his doctor (Transcript, p126 ‑ 127).
94. In his second report (Exhibit A3), Dr Chambers commented on opinions that had been expressed by Dr Kernutt and Dr Walton, both of whom had examined the applicant at the request of the respondent.
95. Dr Chambers disagreed with the opinion of Dr Kernutt that the applicant suffered from dysthymic disorder. He maintained his opinion that the applicant suffered PTSD. He did not obtain a history of the applicant suffering some of the clinical features consistent only with dysthymic disorder.
96. Dr Chambers noted that Dr Walton obtained a history of some of the events in service that he had obtained from the applicant but had not made a diagnosis of PTSD. He noted also that the level of distress described by Dr Walton was consistent with the history that he had obtained. Dr Chambers thought that the:
…features of post-traumatic stress disorder were identified in Dr Walton’s report, but the difference of the opinion I have is that he didn’t make a diagnosis of post-traumatic stress disorder. (Transcript, p128)
97. Dr Chambers perused the file of the aged veterans’ treatment program at the Repatriation Hospital and it was his opinion that the clinicians were of the opinion that the applicant suffered from PTSD.
98. Dr Mock, a registrar at the Repatriation Hospital wrote a report of 7 December 2007 (Exhibit R2, p59) and forwarded it to the applicant’s treating general practitioner. Dr Chambers was aware of it. His reaction to her comments of the applicant having symptoms of depression, lowered mood, PTSD like symptoms and alcohol abuse together with a preoccupation with war memories is consistent with a person who suffers with PTSD because they may experience a number of symptoms arising out of multiple events (Exhibit R2, p59 and Transcript, p129). Dr Chambers said in his experience, where persons suffer multiple traumatic events, depending on the severity of those events, nightmares might occur from any or all of those events.
99. Dr Chambers said that many persons who suffer from PTSD use alcohol. He agreed with a note within the clinical file of Repatriation Hospital of 29 October 2007 that alcohol was used to numb his war memories (Exhibit A5, p67). He was not of the opinion that PTSD has caused the applicant’s alcohol abuse but was of the opinion that an association did exist between alcohol abuse and PTSD.
100. In his third report of 1 October 2010, Dr Chambers stated that the clinical file of the Austin Hospital recorded persisting insomnia and irritability, which in his opinion amounted to persistent symptoms of increased arousal, which was consistent with the PTSD diagnosis. That clinical feature was consistent with the applicant having assaulted his wife and on occasions having been tearful. Dr Chambers thought that the applicant’s irritability was also consistent with persisting symptoms of increased arousal.
101. In cross-examination, Dr Chambers said that he understood that a significant number of persons drowned when the applicant’s vessel struck a Junk. He agreed that the applicant did not witness the bodies of children in a school that had been incinerated or the body of the person who had suicided and the body of the person who had been struck by an aircraft propeller as both had been covered. He also agreed that the applicant did not observe the incident where a person was killed by the aircraft propeller but he did observe blood on the flight deck.
102. Dr Chamber obtained a history that the applicant’s symptoms became more noticeable during and after 1980, and have continued since that time (T22, p85). In that context, he was asked to comment on the applicant first presenting to his general practitioner in 2007 and a comment in the report from Dr Mock of the applicant presenting with a gradual deterioration in his mental state over 3 years since his retirement (Exhibit R2, p59). He said the symptoms of the applicant predated his retirement. When pressed on this issue he agreed that the symptoms of PTSD maybe delayed and:
…whether they were delayed to his retirement or not delayed, was still consistent with a post-traumatic stress disorder, and they were fairly specific to the events that he’s described numerous times he experienced as traumatic during his wartime service. (Transcript, p137)
It was his opinion that even if symptoms were delayed, it does not mean that he could not have a post-traumatic stress disorder (Transcript, p137). Dr Chambers agreed that he did not consider the onset of symptoms at or about the time of the applicant’s retirement because those symptoms had been present for many years previously.
103. Dr Chambers prepared his third report after a review of the Repatriation file. He referred to a summary of a meeting of the psychological trauma recovery service team on 29 October 2007 which provided that features of PTSD were noted because the applicant talked extensively of his guilt for not being able to stop when his ship missed a Junk of 20 people on board (Exhibit A5, p67). Dr Chambers said that the reference to the applicant’s ship having missed a Junk did not trigger any consideration of the reliability of the history he had been given by the applicant. He said that the history that he obtained, the applicant’s statement and his history to other doctors is consistent with the belief that he had obtained from the applicant that the Junk was in fact struck and persons were killed. Dr Chambers said he was unable to explain why the word missed appears in the Repatriation file. Dr Chambers also said that the reference in the summaries prepared by the psychological trauma recovery service of the applicant being almost killed by a stray bomb dropped from a plane coming into land on his ship and having seen a young pilot walk into the propeller of a plane ready to take off did not cause him to consider the reliability or accuracy of the history he had been given by the applicant. He said he formed the opinion of PTSD based on the consistency of the history of events he had taken and which he regarded as being traumatic (Transcript, p141-144).
104. Dr Chambers also observed in the Repatriation Hospital file that the psychiatry registrar on 19 September 2008 recorded that the applicant had been trapped in hold of ship when under enemy attack (Exhibit A4, p3). When it was suggested to Dr Chambers that that description was also inconsistent with the history that the applicant had given to others and had given in his evidence, he said the event nonetheless was traumatic. When it was suggested to him that the reference to the threat of attack by the enemy added another dimension to the episode, Dr Chambers remained of the opinion that irrespective of whether the applicant was under threat of attack from the enemy or whether he was locked in the hold and unable to get out, either event would be traumatic.
105. In concluding his cross-examination, Mr Purcell suggested to Dr Chambers that the PTSD definition required two primary elements namely identification of threat and the person’s response. He suggested to Dr Chambers that the only indication of the applicant’s response to any of the incidents in service as he reported were the applicant having been in fear of his life during the 20 minutes that he was trapped in the hold of the ship. Dr Chambers said that he recorded in his notes that the applicant was distressed at the time of the Junk incident because he felt that he had been blamed unfairly, he was distressed when he observed the school that had burnt down and was distressed also when he learnt of the person who had died after contact with the moving propeller. He agreed that he did not record those descriptions in his reports.
LESTER WALTON
106. Dr Walton is a consultant psychiatrist who provided a report at the request of the respondent dated 19 January 2010 and received as Exhibit R4.
107. Dr Walton was provided with a copy of the report of Dr Kernutt and was aware that he had diagnosed dysthymic disorder. Dr Walton was prepared to happily concede that diagnosis however, having assessed the applicant he did not make any diagnosis at all (Transcript, p150-151). He concluded from the history taken from the applicant that the extent and frequency of depression did not satisfy the clinical definition of dysthymic disorder. He acknowledged that the applicant did have some mild post traumatic symptoms but they were few and not very severe. Subsequent to his assessment of the applicant, Dr Walton was provided with the clinical notes of the Repatriation Hospital the contents of which did not cause him to change his opinion (Transcript, p150-151).
108. Dr Walton agreed that the applicant was co-operative, he gave an honest account of how he felt, he did suffer from depressed mood especially after he ruminated over the events in service, did have vivid intrusive thoughts about service events and did suffer depression and tearfulness but none of those symptoms were of a level or frequency that satisfied him that dysthymic disorder was an appropriate diagnosis.
109. Mr Larkin on behalf of the applicant examined Dr Walton concerning the clinical definition of PTSD.
110. Dr Walton acknowledged that the applicant had told him that he found the occasion of being locked in the bow of the ship as very frightening; he had recurring dreams about the school which had been incinerated; he displayed some signs of avoidance, diminished interest, long standing insomnia, irritability and outbursts of anger and physical assault upon his wife together with tearfulness. Dr Walton agreed that whilst those symptoms were part of the PTSD clinical criteria, he remained of the opinion that the applicant did not suffer PTSD but was more likely to be depressed.
111. It was specifically put to him that the applicant had endured a pretty dramatic and damning indictment when he was accused of being responsible for Sydney colliding with the Junk and the death of 20 persons (Transcript, p157). Dr Walton noted that the applicant had expressed concern of being falsely accused and an unreasonable expectation of him had been made by his superior officer, however, the incident was reported to him by the applicant as if he really shrugged that off … the officer was in error (Transcript, p157). He said that the response of the applicant to the event when it was being described and his subsequent reaction to it was a surprise and in his clinical judgement he was not satisfied that the response to the event by the applicant attracted the PTSD diagnosis (Transcript, p157-158).
112. He noted that the applicant had not been subjected to any disciplinary proceedings as a result of that episode and during his consultation with the applicant he noted that he did not feel conscience stricken about it (Transcript, p157).
113. He reaffirmed his opinion, based on his clinical observation of the applicant that the events described to him did not amount to being stressful events or severe stressor but acknowledged that that was a matter ultimately for the Tribunal to determine (Transcript, p157).
114. Despite the persistence of Mr Larkin, Dr Walton remained of the opinion that the symptoms of the applicant, as were expressed to him, where not of sufficient severity to attract the PTSD diagnosis. He acknowledged that being frightened did not amount to intense fear and a sense of loss. He said observing the body of the sailor who had committed suicide did not amount to a threat to one’s own integrity (Transcript, p158). Dr Walton agreed that the events to which the applicant was exposed and his responses would have to be considered but it was his clinical judgement on his assessment of the applicant that PTSD was not an appropriate diagnosis.
115. He also acknowledged that the Repatriation Hospital had diagnosed the applicant as suffering from PTSD but explained that in order to qualify for treatment under the veterans’ program a PTSD label is a pre-requisite for admission. He said that process was different to the medico legal context and did not involve any assessment of Statements of Principles. He said making a PTSD diagnosis at the Repatriation Hospital was not robust (Transcript, p158).
CONCLUSION AND REASONS FOR DECISION
116. A finding must be made on the balance of probabilities of the injury, illness or disease suffered by a Veteran before any consideration can be given to the four stages of analysis as determined in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
117. A finding of diagnosis is not to be made by reliance upon a SoP (Benjamin v Repatriation Commission (2001) 70 ALD 622 at [41]).
118. Additionally, a decision-maker is not confined by or limited to the case advanced by an applicant. The decision-maker is obliged to find the correct or preferable decision on the raised material. That process requires identification of the collection of relevant symptoms, which constitutes an illness or a disease. When that process is completed, the finding of a diagnosis will have been achieved (refer Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]; Benjamin at [47]; McKerlie v Repatriation Commission (2010) 52 AAR 535 at [40]).
119. In the present application, the case advanced on behalf of the applicant was to have PTSD found on the probabilities and for it to be connected with service. Other material raised during this review pointed to a diagnosis of either dysthymic disorder or depression.
120. PTSD must be given consideration at this stage, although in order to make such a diagnosis on the balance of probabilities and quite apart from having to identify the collection of relevant symptoms (Budworth at [19]), there must be a finding that the traumatic event or events occurred (Mines v Repatriation Commission (2004) 86 ALD 62 at [48]). That process should not be thought as violating the sequential process dictated by Deledio where ordinarily, making findings of fact before the fourth stage, would be impermissible.
121. The peculiar nature of the PTSD diagnosis, the clinical definition of which is found within DSM-IV-TR, requires in part a finding of whether a person was exposed to a traumatic event of a particular type and from which there was a consequential reaction. The clinical definition has six components (A-F). All of those parts must be satisfied. Part A, is reproduced as follows:
(A)The person has been exposed to a traumatic event in which both of the following were present:
1.the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
2.the person’s response involved intense fear, helplessness, or horror.
…
122. The words experienced, witnessed, and confronted were discussed and analysed in considerable detail in Woodward v Repatriation Commission (2003) 200 ALR 332 at [123-126]. Those words and their meanings are important because the applicant was not present at a number of the traumatic events and it could not be said that he experienced or witnessed them. Some of the traumatic events, if they occurred, involved the applicant being confronted, in the mind (Woodward at [124]).
123. The applicant gave three different locations onboard Sydney where he said that he was trapped when writing letters. Before the VRB he said that he was located in the bilge. He agreed during the hearing of this review that he was not at that location but rather was at the ships bow being a location below waterline. When he was shown a plan of the vessel he pointed to a position near the storerooms which he thought would have been the torpedo pistol room. When challenged that he was unlikely that he would be permitted access to that location he agreed that he probably was not there but rather at another place in close vicinity.
124. He acknowledged that he was aware that there was a manhole located within the hatch from which he could have escaped but he did not see it, and he was concerned for his shipmates. He thought by opening the manhole he would compromise the watertight integrity of Sydney.
125. We are satisfied that the applicant was located on some part of the ship writing letters when the hatch was locked down. We are also satisfied that he could have escaped but did not. We are also satisfied that he did hear a broadcast where the words collision course were mentioned (Exhibit R1, p12) and by opening the manhole he would have put the ship in danger. Some support for the applicant’s contention is found in the Writeway Report at paragraphs six and seven (Exhibit R3).
126. During the period of 20 to 30 minutes when the applicant was locked down he recorded that he was terrified (Exhibit A1, p2) and has subsequently suffered flashbacks and nightmares.
127. Within the meaning of Part A of the PTSD definition we are satisfied that the applicant did experience an event that involved threatened death to him or a threat to the physical integrity of him or others and his response (being terrified) did involve intense fear helplessness or horror (Part A,(1) and (2)).
128. In his statement (Exhibit A1, p2) the applicant said he knew the identity of the person who had committed suicide at the time that the body, which was covered, passed him in a corridor. In evidence during these proceedings, the applicant said he did not know at that time the identity of the deceased person but learnt it later. Before the VRB he said that he was of the same rank as the deceased and he was his friend. In this review he agreed he was not of the same rank, the deceased person belonged in a separate mess and he could not recall the name of the deceased.
129. We are satisfied that Mr Nelson did suicide and the applicant was aware of his death. The record of proceedings of 6 April 1954 appended to the Writeway Report confirmed the death of Mr Nelson but does not record death by suicide. The death of Mr Nelson caused the applicant to be confronted with information subsequent to observing the body, however, we are not satisfied on the balance of probabilities that the applicant’s response involved intense fear, helplessness or horror. The description of his reaction to learning of the death of Mr Nelson before the VRB and in this review was reasonably consistent, namely:
…I felt – I didn’t feel good. You know, I felt upset about it of course. You know, it was – you don’t like losing your friends (Exhibit R1, p19).
The applicant said that he had not forgotten about that episode, and he has dreams about it occasionally.
130. The applicant did not witness a pilot suffering injuries after he had walked into the rotating propellers’ of a standby aircraft. The applicant was either on the flight deck, or on the island or had been in the directions room when he heard an announcement that there had been an accident on the flight deck. He told Members of the VRB that because he was in the vicinity of the location where the accident had occurred, curiosity took the better of him and he observed a person who was covered over and he also observed a pool of blood (Exhibit R1, p20). He said he was observing the scene from a distance of about 40 feet. The applicant told the VRB Members that he felt pretty awful at the time and when he was asked by one of the Members whether he could be a bit more descriptive he said Oh, well, devastated, I suppose, because I knew the guy (Exhibit R1, p22). In these proceedings, the applicant said that he was horrified.
131. Before the VRB the applicant said that the body of the pilot was taken away and placed in the meat supply (Exhibit R1, p20). In cross-examination in these proceedings, the applicant said it was the body of the person who had suicided that was placed in the meat supply and he said that he must have been confused.
132. The report from Writeway confirms that a pilot had died but he was not dead when observed by the applicant. The pilot died later after admission to hospital in Hong Kong. We are satisfied that the applicant did observe the pilot and a surrounding pool of blood.
133. The event confronted by the applicant did actually involve serious injury but on balance we are not satisfied that the applicant’s response did involve intense fear, helplessness or horror. His initial reaction of feeling pretty awful and later feeling that there had been an unfortunate loss of life (Exhibit R1, p22-23) do not amount to a response consistent with the meaning to be given to the words found in Part A(2). It was only after the applicant was prompted to be more descriptive that he told Members of the VRB that he was devastated. Despite this reaction, the applicant was unable to explain why he returned to a position on or near the flight deck and observed the pool of blood being washed away.
134. Dr Chambers said in evidence that he had obtained a history from the applicant of this event but had not recorded it in his reports. When he checked his notes, he found that he had recorded that the applicant was distressed by the episode. Dr Walton reported that the applicant said that the event was a devastating experience (Exhibit R4, p2). In these proceedings, the applicant said he was horrified. It is difficult to reconcile the reported responses of the applicant to the medico legal witnesses with the responses he gave to the questions of him at the VRB and in this review. On balance we are satisfied that the applicant does not satisfy a response of the type contemplated by Part A(2).
135. The applicant recorded in his statement that a report had been received from an escort destroyer that an unidentified submarine was closing in on Sydney. He said that Sydney changed course and travelled at full speed towards Kure. The applicant recorded in his statement that he was in fear of attack. He gave similar evidence at the hearing. The applicant agreed with submissions that were put by his advocate before the VRB that Sydney was being chased by a submarine. In these proceedings the applicant said that Sydney took off like a bat out of hell and the Captain of Sydney had decided we’ve got to get out there (Transcript, p78). The applicant acknowledged that the responsibility of escort vessels was to track and locate submarines, that a report of proceedings of December 1953 completed by Captain Oldham reported contact was held for 20 minutes with the unidentified object, the object was hunted for 24 hours, that contact was eventually lost and it was determined that it was not a submarine.
136. The applicant did not give a history of that event to Dr Chambers or Dr Walton. Despite him recording in his statement that he was fearful of attack (Exhibit A1, p2), the applicant agreed in cross-examination that the medico legal witnesses did not take a history of that event as it was not regarded as being significant.
137. We are not satisfied that the applicant did experience, witness or confront an event of actual or threatened death or threat to physical integrity and there was no response by him to that episode involving intense fear, helplessness or horror.
138. The applicant recorded in his statement that when Sydney was in the South China Sea and he was on watch, Lieutenant Bennett had accused him of being responsible for a collision with a Junk upon which there were 20 persons who had been killed. In his statement, he recorded that he felt helpless and horrified and to this day I still feel guilty about their deaths (Exhibit A1, p3).
139. Before the VRB, the applicant said there was no doubt that a vessel had been sunk and he felt bloody terrible. He suffers nightmares all the time and that episode really upsets [him] terribly (Exhibit R1, p28 ‑ 29).
140. The applicant was advised during the hearing that a Report of Proceedings of January 1954 recorded that a collision did occur between Sydney and a Junk but there were no casualties and minor damage only was caused to the Junk. The applicant said that he would prefer to believe the Junk had not been sunk as if it had been hit it would have gone down and it was pretty unbelievable that you wouldn’t do it any damage (Transcript, p81).
141. It appears from the Report of Proceedings that a separate report had been completed concerning this episode but it was not supplied with the Writeway Report. The contents of it are therefore unknown. Dr Chambers said the applicant was distressed by this episode because he had been blamed unfairly (Transcript, p146).He did not say the applicant was distressed because persons onboard the Junk had been killed but he had felt guilt and responsibility for their deaths (Transcript, p140). Dr Walton took a history of that episode. He recorded that there had been a seeming loss of 20 people onboard and the applicant was not subjected to any disciplinary proceedings (Exhibit R4, p1). Mrs Mills said in evidence that her husband has mentioned this episode on many occasions.
142. It was submitted by counsel for the respondent that a summary completed by a Psychiatric Registrar at the Repatriation Hospital (Exhibit A5, p74), recorded that the applicant had memories of being the radar operator and missing a small vessel with 20 people onboard. A continuation of that entry also includes resulting in the Navy ship sailing straight over them.
143. The repatriation Hospital file records an entry on 5 December 2008 that the applicant was a radar operator in the South China Sea and had been blamed for running over 20 people. It also records DVA appeal – unsuccessful as didn’t see any dead bodies in H2O (Exhibit A5, p40). A similar entry is found on 18 February 2008:
incidents occurring, especially when the boat crashed a Junk; the loss of 20 lives, in which an officer blamed Mr Mills as he was the radar operator at the time. (Exhibit A5, p56).
A nursing summary of 29 October 2007 (Exhibit A5, p67) records he talked extensively of his guilt for not being able to stop when his ship missed a Junk of 20 people on board. An entry by the Psychiatric Registrar on 29 October 2007 (Exhibit A5, p74) however records the applicant has memories of Sydney missing a small vessel … resulting in the Navy ship sailing straight over them. The other entries refer to the applicant’s reaction to a collision with the Junk and some of the entries seem to refer to the applicant’s reaction to being held responsible for the event (Exhibit A5, p69). The entries at p67 and p74 are obviously incomplete. The applicant was blamed for missing the junk, on the radar.
144. We have found that although there seems to have been a collision with a Junk there were no Naval reports of loss of life. The applicant did not observe any bodies. He did not observe a Junk that had been sunk. His response that there was no doubt about a vessel having been sunk (Exhibit R1, p28) cannot be substantiated. In cross-examination the applicant said he believed that a Junk had been sunk and that 20 people had lost their lives (Transcript, p80).
145. In our view it is inconceivable that had Sydney collided with a Junk with a loss of 20 lives it would not have been reported in the Report of Proceedings. Perhaps the applicant was admonished because there was a collision with a Junk but without loss of life. Nothing points to the Junk being sunk. Perhaps the applicant has assumed, having regard to the relative size of Sydney as opposed to the Junk, that it would have sunk and that persons onboard it would have been thrown into the sea but there is nothing that would permit us to find as a fact that those persons – if any – had been killed.
146. There is much to suggest that the applicant reacted to being blamed for the collision, which he regarded as being unfair. However, any such reaction would not be a traumatic event where the applicant experienced, witnessed or confronted actual or threatened death or threat to the physical integrity or self of others.
147. The circumstances of this incident are distinctly different from the events recorded in Delahunty v Repatriation Commission (2004) 38 AAR 511 where the applicant did witness the sinking of a Junk or a Sampan off the coast of Korea. The Veteran was not aware of the numbers of persons onboard, whether they were civilians or North Korean enemy laying mines, or whether it was sunk by HMAS Tobruk (on which he was a member of crew). Although the Veteran did not observe bodies there was apparently no dispute that a vessel had been sunk. It followed that both objectively and subjectively the applicant was entitled to reasonably assume that persons would have been onboard it and they would have been killed.
148. The applicant said that he visited Incheon and saw the remains of a school, which had been destroyed by bombing. He did not observe bodies but assumed that because it was a school, it must had been occupied by children who consequently had been killed.
149. In his statement, he said that he imagined children having been killed during the bombing (Exhibit A1, p3).
150. Before the VRB the applicant said that he had always felt bad about it (Exhibit R1, p31). Dr Walton took a history of the applicant having recurring images of that episode in his dreams when he worked as a school cleaner. Dr Kernutt said that the experience of observing the bombed school left a lasting impact upon him but it was not until 10 years ago that memories of that event started to occupy his thinking and the trigger was linked to the Veteran commencing employment at a primary school (T16, p39).
151. Before the VRB and within the history of Dr Kernutt, the applicant expressed considerable anger towards the Yanks who had bombed the school despite it having had the Red Cross painted on its roof.
152. We are satisfied that the applicant did travel to Incheon despite the absence of that occasion from the respondent’s records. The photographs produced by the applicant during the hearing, satisfies us that he in fact was present.
153. Whilst the applicant probably confronted an event involving actual or threatened death or serious injury (on the assumption that children were present in the building when it was bombed and were killed or injured) the response articulated by the applicant was not of intense fear, helplessness or horror rather, it was anger directed towards those responsible for the bombing. The evidence to the VRB of the applicant having always felt bad about it was not, in our view, sufficient to achieve the requisite type of response envisaged by Part A(2) of the PTSD definition.
154. Another event in service that the applicant said contributed to his PTSD was an occasion where he was in fear of an air attack.
155. Before the VRB the applicant said that Sydney went to action stations because unidentified aircraft were detected on the radar screen and travelling at between 400 and 500 miles per hour. He said the aircraft were heading for us and came within a couple of mile of us. He said that Sea Furies were launched (Exhibit R1, p32).
156. In his statement, the applicant recorded sea furies were launched. In evidence the applicant said that crew on his vessel took action stations and launched sea furies (Transcript, p95-96).He also said that he reported the aircraft approaching. He was adamant that the crew of Sydney did go to action stations, despite the absence of any Naval records (Transcript, p96).
157. The Record of Proceedings of 16 March 1954 appended to the Writeway Report records that two unidentified aircraft were detected 70 miles from Sydney at a height of 10,000 feet. Sydney did not alter its course or speed. Crew were not ordered to action stations and there is nothing to indicate the Sea Furies were launched.
158. The inconsistency between the evidence given by the applicant to the VRB and in these proceedings and the contents of his statement, together with the absence of any event of the type described by the applicant within the Record of Proceedings, causes us to find, on the balance of probabilities that either this episode did not occur, or if it did, it was not to the extent or degree advanced by the applicant. The perceived threat, evident by the crew taking action stations and launching sea furies would have been recorded. There was no such recording. We are not satisfied that all hell broke loose, as the applicant said in evidence (Transcript, p96). We are not satisfied paragraph A(1) of the PTSD definition has been met. It is not surprising that the applicant was not examined about this episode by his counsel during the hearing. In his statement, he said he was terrified (Exhibit A1, p3). Before the VRB, he said the event was a bit scary (R1, p33). We think that response is more likely than terrified and it would not, in any event satisfy Part A(2) of the PTSD definition.
159. The applicant relied on another episode where a rocket dislodged from an aircraft upon landing. He said he was located on the flight deck behind a breakwater and another sailor had manoeuvred the rocket overboard before it exploded. In his statement the applicant said he was taking cover at the time the rocket dislodged and he had been in fear of his life and fearful for the lives of the pilot and others (Exhibit A1, p3).
160. In evidence, the applicant said that he regarded the episode as seriously significant and it certainly frightened the daylights out of me (Transcript, p87). When the applicant was challenged that he should not have been on the flight deck when an aircraft was approaching and would have known that he should not have been in the vicinity, he said I must have been a naughty boy (Transcript, p91).The Writeway report concluded that no report of that episode had been located.
161. When he was before the VRB, the applicant said that he was standing behind the island and the rocket come flying straight down towards were Ivan was standing, so Ivan moved pretty quick. He said the rocket bounced along the deck. He regarded the episode as pretty scary and when he was asked how he felt he said Oh, I was alright. It was – it turned out to be a non event virtually. He said that he had been about 10 feet away from the position on the flight deck where the rocket dislodged (Exhibit R1, p33-35).
162. There is considerable inconsistency between his description of this event and his reaction to it in his evidence to the VRB and in his evidence in these proceedings. We seriously doubt that this episode occurred. The applicant acknowledged that he should not have been on the flight deck when a plane was landing. He told the VRB that he knew that the plane was landing indeed he said that the pilot had been directed to land the plane because the rocket could not be removed in flight and it was decided to bring him in and hope for the best (Exhibit R1, p33). That the applicant would occupy a position on the flight deck when he knew that a plane had been ordered to land in order to free a rocket, which had not dislodged, borders on disbelief. This event was not the subject of any examination in chief during the hearing.
163. The remaining event of significance to the applicant was the occasion were an aircraft handler suffered severe leg injuries by contact with an arrester wire. The applicant did not observe the incident, he did not observe the injured person on the deck and he learnt of the episode about 30 minutes later.
164. In his statement, the applicant said that he was upset by the thought of his injuries (Exhibit A1, p3). In his evidence to the VRB the applicant’s response to the event was:
…it’s one of those things that, you know, you don’t like seeing your friends hurt and – but you think about it not happily, put it that way. (Exhibit R1, p38)
165. The applicant probably did confront an event (to the extent that he had heard about it later) involving serious injury to another person but his response as indicated by his evidence to the VRB and the contents of his statement do not amount to intense fear, helplessness or horror.
166. The applicant also recorded in his statement that there were other incidents that affected him during service in Korea. The applicant gave similar evidence during the hearing of this application. He relied on the contents of photographs that he produced during the hearing, especially photograph number two, which he said depicted a young child who had offered his sister in exchange for some goods.
167. Despite that memory being upsetting, it does not satisfy the type of event contemplated by paragraph A(1) nor does his response satisfy the type of response contemplated by paragraph A(2).
168. There are many references in the evidence of the applicant before the VRB, in these proceedings, in the clinical notes of the Repatriation Hospital and from the medical reports of Doctors Chambers, Kernutt and Walton of the applicant having dreams and nightmares from time to time about some of these episodes with poor sleep, some irritability and anger and resorting to alcohol from time to time for comfort.
169. Without reciting the evidence concerning those experiences the remaining clinical criteria within the PTSD definition refers to persisting consequences from traumatic events. We have found that the applicant experienced one traumatic event only and confronted four events. The applicant responded in a manner consistent with paragraph A(2) in one event only (when he was in the bow of Sydney).
170. The applicant has not established persisting re-experiencing, avoidance of stimuli associated with trauma and symptoms of increased arousal of the quantity and frequency dictated by Parts B, C and D nor of a duration or description contemplated by Parts E and F. We are also satisfied on the evidence heard that the experiences constituting the criteria of Parts B, C and D, whilst probably being of more than one month duration have not caused clinically significant distress or impairment in social, occupational, or other important areas of functioning (refer PartF).
171. On balance therefore, we are not satisfied, that the applicant suffers PTSD.
172. Having decided that the applicant does not suffer PTSD, we are obliged to consider, from the symptoms presented by the applicant, whether he suffers any other illness and if so we are required to determine what it is.
173. Review of the reports of Doctors Chambers, Kernutt, Walton and the clinical file of the Austin Hospital and Dr Karna, in addition to the evidence heard, satisfies us that any other diagnosis is confined to either depressive disorder or dysthymia.
174. Both conditions have distinct clinical criteria, each of which is found within either DSM-IV and reproduced in Instrument No 58 of 1998 or DSM-IV-TR reproduced in Instruments No 17 of 2007 and No 27 of 2008. Each of those three Instruments is entitled depressive disorder.
175. The latter two Instruments identify a number of psychiatric conditions falling within the umbrella of depressive disorder. Dysthymic disorder stands alone but depressive disorder or depression is not described by either label. Instrument No 58 of 1998, in addition to referring to dysthymic disorder also embraces the psychiatric conditions of major depressive disorder, and a condition of depression not otherwise specified which by the reproduced definition includes conditions of:
…minor depressive disorder and recurrent brief depressive disorder, … includes disorders with depressive features that do not meet the DSM-IV diagnostic criteria for other specific mood disorders. (SoP No 58 of 1998, 2(a)(iii))
176. Instruments No 27 of 2008 and No 17 of 2007 in addition to embracing dysthymic disorder include the conditions of:
(a) depressive disorder not otherwise specified,
(b) major depressive episode,
(c)mood disorder due to a general medical condition with depressive features or with major depressive like episodes,
(d) recurrent major depressive disorder; and
(e) substance-induced mood disorder with depressive features.
177. On first presentation to the Repatriation Hospital on 29 October 2007 (upon referral from Dr Karna, the applicant’s treating general practitioner) Dr Mock, a Psychiatric Registrar, recorded a diagnosis of Depression with PTSD-like symptoms and associated Alcohol Abuse (Exhibit A5, p93). Another Registrar recorded the applicant was depressed on 19 September 2008 (Exhibit A5, p44). On 12 June 2009 another Registrar recorded that the applicant was bright, mildly dysthymic and anxious affect without depressive features (Exhibit A5, p34). On 25 September 2009 another Registrar recorded that the applicant had PTSD related anxiety and depression together with alcohol abuse (Exhibit A5, p31). On 9 October 2009 a request was made by one of the Psychiatric Registrar’s for funding from DVA for the provision of medication for PTSD related anxiety and depression (Exhibit A5, p88).
178. On 1 July 2010 a discharge summary was completed by a Registrar under the supervision of Dr Bonwick a consultant psychiatrist. The report does not record a primary diagnosis but records a co-morbid diagnosis of Alcohol Abuse Disorder. In the body of the report it is recorded that the applicant was referred with depressive, and subclinical PTSD symptoms as well as drinking problems (Exhibit A5, p7).
179. Dr Kernutt diagnosed dysthymic disorder. Dr Walton did not make any diagnosis but in evidence said he was prepared to happily concede that dysthymic disorder may be a valid diagnosis (Transcript, p150). Dr Chambers whilst maintaining his opinion of the diagnosis being PTSD recorded that the applicant also suffered depressive symptoms (dysthymia) … secondary to PTSD (Exhibit A3, p4).
180. On our interpretation of the clinical definition of each of these conditions and by regard to the evidence heard and read, the most appropriate diagnosis, on the probabilities, is dysthymic disorder. We make that finding not by regard to the SoPs but with regard to the clinical definitions of the various conditions which fall within the label of depressive disorder which are conveniently reproduced within the SoPs. The material before us does point to a hypothesis of connection between dysthymia and the circumstances of the applicant’s service. The notes of the Repatriation Hospital and Dr Karna record a number of descriptions of the symptoms then exhibited by the applicant namely; depression or PTSD. As we have recorded earlier the totality of the evidence in these proceedings, both documented and oral satisfies us that those descriptions are more in the nature of a general label only without specific regard to clinical criteria. The most appropriate diagnosis is dysthymic disorder by regard to the clinical criteria found in the definitions within the SoP’s (reproduced from DSM-IV) and the medical evidence read and heard in these proceedings.
181. A hypothesis will be reasonable if it is consistent with the SoP template. The hypothesis will be reasonable if it contains one or more of the factors determined by the Repatriation Medical Authority to exist as a minimum and be related to the person’s service.
182. A common feature of each of the three SoPs, within the assessment period is satisfaction of one or more factors within either a period of two years (Instrument No 58 of 1998) or five years (Instrument No 17 of 2007 and No 27 of 2008) before the clinical onset of dysthymic disorder.
183. The third stage in the Deledio process (at [97]) is whether the hypothesis, if raised, will (or will not) be found to be reasonable. If the hypothesis fits or is consistent with the template of the SoP only then will the hypothesis be reasonable. Findings of fact are not to be made at this stage. We have decided that the application cannot succeed because the hypothesis as raised is not consistent with factors within either of the three SoPs applying within the assessment period.
184. We have concluded that the applications fails because a particular stressor or condition as defined within each of the SoPs within the assessment period must occur within a defined period of time before either the clinical onset or the clinical worsening of dysthymia. The stressors or conditions as defined in our view do not satisfy the SoP template.
185. The clinical onset is the occasion where a doctor will:
…say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment. (Kaluza v Repatriation Commission (Kaluza) (2010) FCA 1244 at [93]).
Jacobson J also decided (at [95]), by regard to the Tribunal decision on appeal and the discussion of the concept of clinical onset in Lees v Repatriation Commission (2002) 125 FCR 331 that all the symptoms must be displayed and treatment sought so that the practitioner can determine the date of clinical onset.
186. The clinical file of Dr Karna indicates that the first presentation to him by the applicant was on 17 October 2000. The first indication from those notes of any psychiatric type symptoms were found on 20 November 2006 where the applicant indicated that he was applying for an increase in his pension by reason of PTSD. The symptoms recorded were of flashbacks, irritability, mood lability etc. On 26 June 2007 Dr Karna recorded that he had a:
…Long discussion re stress situation. Describes mood lability, anger episodes, alcohol excess. Violent outbursts including to his wife. Describes a couple of events during the Korean War which affected him. (Exhibit R2, p12)
Arrangements were made to refer the applicant to Mr Gault, a psychologist.
187. On 7 December 2007, Dr Karna recorded that he received a telephone call from a Psychiatric Registrar at the Austin Hospital who had recommended that the applicant commence antidepressant medication. On 7 December 2007, Dr Mock reported to Dr Karna that the applicant described symptoms of depression and he concluded that there was a presentation with depression and PTSD like symptoms (Exhibit A5, p93).
188. Eight days after the first clinical entry in the notes of Dr Karna of the applicant indicating his intention to claim an increase in his DVA pension by reason of PTSD he made a claim for that condition and described his symptoms as very bad sleep pattern, moody, irritable, lack of interest in life, nightmares + flashbacks. The applicant recorded that he first became aware of signs and symptoms of the disability or aggravation of the disability in 1980 (T4, p6).
189. Having regard to the entries within the file of Dr Karna and the report of Dr Mock on first presentation to the Repatriation Hospital, we think that the clinical onset of dysthymia was on 26 June 2007. The notes point to features or symptoms and all the symptoms (were) displayed and treatment (was) sought (Kaluza at [93] and [95]).
190. We are obliged to consider whether the applicant satisfies a SoP in force at the date of review. Only if it cannot be met are we permitted to consider earlier SoPs operating within the assessment period. For reasons which follow we are not satisfied the applicant can satisfy any of the Instruments.
191. The applicant may have experienced one or more Category 1A or Category 1B stressors (as defined at paragraph 9 in each of Instruments No 17 of 2007 and Instrument No 27 of 2008 also being identical to the definitions within the PTSD Instrument described earlier) but not within five years before the clinical onset of dysthymic disorder. Additionally, we are not satisfied that the applicant experienced a severe psychosocial stressor or stressors or a clinically significant psychiatric condition within two years immediately before the clinical onset of dysthymic disorder (refer definitions at paragraphs 5 and 8 of Instrument No 58 of 1998). Insofar as the definition of severe psychosocial stressor is concerned it must be considered in the context also of s 196B(14) of the Veterans’ Entitlement Act 1986. In those circumstances, we cannot be satisfied that such a phenomena occurred within two years immediately before the clinical onset of dysthymic disorder.
192. The operational service of the applicant in Korea ended in June 1954. The clinical onset of dysthymia as we have found occurred 53 years after operational service concluded. The applicant cannot in the circumstances come within the respective time periods before the clinical onset of dysthymia (or any of the depression diagnoses, if they had applied) within any of the SoPs operating within the assessment period.
193. The Instruments of 2007 and 2008 do not contain factors concerning the clinical worsening of dysthymic disorder but there is such a provision within Instrument No 58 of 1998. If it were to apply, the applicant would be permitted to have considered whether he experienced a severe psychosocial stressor or stressors within two years before the clinical worsening of dysthymia. Clinical worsening is not determined by an increase in symptoms alone but regard must be given to clinical criteria and therefore upon a medical – scientific standard (Repatriation Commission v Milenz (2006) 93 ALD 107 at [29], [33] and [35]).
194. Any clinical worsening must occur after there has been a clinical onset. We have found that the clinical onset was in June 2007. Any worsening therefore must have occurred after that date which would in the circumstances make the connection with service even more remote.
195. If the applicant did have a clinically significant psychiatric condition within two years before the clinical worsening (refer factor 5(h) of Instrument No 58 of 1998) it is conceivable that enquiry be directed to the period of time after June 2007 when there was a clinical onset of dysthymia. In the notes (of Dr Karna), the applicant first presented after 26 June 2007 for dysthymia type symptoms; on 7 December 2007 antidepressant medication was prescribed; on 13 October 2008, he requested a referral to Dr Chambers; on 31 March 2009 medication was recommended by the practice nurse at the clinic of Dr Karna; and on 7 October 2009 medication for depression was again prescribed. The infrequency of those attendances does not satisfy the definition of clinically significant.
196. The applicant did attend the Older Veterans' Psychiatric Program at the Austin Hospital after his first admission on 7 December 2007 but we can find nothing from those notes, which would indicate that the applicant’s dysthymia worsened. Indeed, at discharge from the program on 1 July 2010 there is nothing recorded against primary diagnosis and a co-morbid diagnosis is recorded as Alcohol Abuse Disorder.
197. The applicant cannot in all these circumstances demonstrate that his hypothesis fits or is consistent with the templates of the SoPs. Even if it did, we would dismiss it at the fourth Delidio stage because we could not be satisfied, as a fact, that his dysthymia is war caused.
198. We note that the applicant has had a number of personal traumatic experiences which would appear to have been particularly upsetting to him and/or which have caused him to suffer considerable adjustment in recent years.
199. He retired from holding down two jobs in 2004. His wife has been very ill in recent years. His adult daughter died after a serious illness and the applicant and his wife have cared for her teenage daughter. The applicant has consumed considerable quantities of alcohol which has probably affected his mood and in May 2008 a sister of the applicant was hospitalised with depression which is noted in the Austin records as concerning the applicant (Exhibit A5, p55). In July 2008 a daughter-in-law of the applicant and his wife was found to be suicidal and was aggressive and police intervened to assist (Exhibit A5, p51 and 53).
200. If not already apparent, the hypothesis does not fit the SoP templates. It is not a reasonable hypothesis. We are satisfied beyond reasonable doubt that dysthymia was not war-caused.
201. Additionally, the unreliability of the applicant’s evidence of the events in service is such that we would have been satisfied beyond reasonable doubt that his dysthymia was not war-caused (Meehan v Repatriation Commission [2003] FCA 1371). The decision under review must be affirmed.
I certify that the two hundred and one [201] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member, and
Miss E A Shanahan, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 27 July, 8 and 9 November 2010
Date of Decision 20 May 2011
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Mr M Jorgensen, Williams Winter Solicitors
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Ms T Chant, Department of Veterans’ Affairs
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