Murphy and Repatriation Commission

[2004] AATA 703

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 703

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2004/16

VETERANS'      APPEALS      DIVISION

Re:                 PETER GEORGE MURPHY

Applicant

And:                REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Brigadier C. Ermert, Member

Dr P. Fricker, Member

Date:             1 July 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B. H. Pascoe

Senior Member

VETERANS’ AFFAIRS – claim for post traumatic stress disorder – experiences in Vietnam – whether suffers from claimed condition – standard of proof – threshold issues

Veterans’ Entitlements Act 1986 s 120(1), s 120(3) and s 120A

REASONS FOR DECISION

1 July 2004  Mr B.H. Pascoe, Senior Member
  Brigadier C. Ermert, Member

Dr P. Fricker, Member

1. This is an application to review a decision of the respondent of 16 October 2001 which accepted claims for sensorineural hearing loss of the right ear, bilateral tinnitus, tinea, solar keratosis and impotence as being war‑caused but refused claims for post traumatic stress disorder (“PTSD”)/anxiety and alcohol dependence.  Disability pension was assessed at 30% of the General Rate with effect from 8 March 2001.  On review of this decision by the Veterans’ Review Board (“VRB”), the refusal of claim for PTSD/anxiety and alcohol dependence was affirmed but the VRB increased the rate of pension to 40% of the General Rate.

2. At the hearing, the applicant was represented by Mr B. Winship, a solicitor, and the respondent by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. Evidence was given by the applicant, Mr P. Murphy, and by Dr L. Walton, a consultant psychiatrist. In addition to the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), the following documents were tendered by the parties:

   Statement of Mr Murphy  Exhibit A1

   Clinical notes of Dr T. Watford, General Practitioner  Exhibit R1

   Transcript of VRB Hearing of 28 November 2002  Exhibit R2

   Report of WriteWay Research Services dated 31 October 2003     Exhibit R3

   Report of Dr L. Walton, dated 5 May 2004  Exhibit R4

Mr Murphy withdrew his claim for anxiety and alcohol dependence and the hearing proceeded in relation to the claim for PTSD only.

1. Mr Murphy was born on 24 November 1946.  He served in the Australian Army (“the army”) from 12 July 1967 to 11 July 1969 and had eligible and operational service in Vietnam from 17 November 1968 to 11 June 1969.  He said that after initial training at Puckapunyal, he was transferred to Bonegilla where, after training as a truck driver, he undertook intensive training in air despatch and qualified as a parachutist.

2. The statement of Mr Murphy set out the alleged stressors involved in his service in Vietnam as follows:-

   During my transfer from Australia and subsequent tour of duty in Vietnam, I suffered major variances of anxiety and a reasonable perception of danger, right from the very start:

   -I flew from Australia via Malaysia in a Hercules aircraft and although having flown many hours in them and in fact parachuted from them a number of times, I was very scared landing in a war zone on day one.

   -Albeit that Vung Tau was considered a “safe haven”, there was always a sense of insecurity due to the laxity thereof.

   -One event that really put the breeze up me was the prodding of graves with steel rods to try and locate an arms cache – it scared us all that not only might we “spear” a corpse, but that we might hit something that might explode.

   -86 Transport in Vung Tau were continually calling on our services to ride “shotgun” on their road convoys to Nui Dat.  We were dressed only in our boots and shorts with a flak jacket, helmet and SLR and required to stand upright in the truck turret with our entire upper bodies open to gunfire – very traumatic.

   -On my first venture to Nui Dat and despite having had no training with a night scope, etc I was required to do wire picquet and was scared to death that VC were coming through the wire.

   -Simular duty at fire support bases occurred regularly.

   -Posting for temporary duty in Saigon was totally outrageous as I was billetted in a hotel in the heart of the city with no other Australians and no real security – flimsy doors, streets full of Vietnamese, no guards, threats of food filled with ground glass, children carrying weapons, etc.

   -At USA base Long Binh, American troops were slack and the base was rocketed on a number of occasions.  Some troops actually went on strike.

   -Travelling by Chinook helicopter to and from fire support bases at tree top level was particularly frightening as we were always within ground fire limits.

   -Most Chinook travel at some time or other involved the rear doors open and being harness clipped to the floor to look out of rear – hair-raising and scary.

   -With 161 Artillery Battery, Kiwi’s would come back to camp allegedly with wire loops of “ears” from VC kills.  Whether true or not, scared the pants off me.

   -Probably one of the most traumatic stages of the lot was on coming home day – we had heard a lot about RTA’s being killed on their way home and having to fly by heli from Vung Tau to Saigon was a major perception of danger.

3. In his oral evidence Mr Murphy used the word “scary” when speaking of these various incidents.  In commenting on his period at the US base at Long Binh, Mr Murphy acknowledged that he had not seen rockets land on the base but had heard them only.  He said that he was billeted with a US Sergeant and, when the alarm of a rocket attack was heard, they would “wake up, dress, go to the nearest trench and then go back to bed”.  In relation to the travelling in Chinook helicopters he was not aware of any occasion when the helicopter was actually fired at.  He said that the pilot had announced that he had “ground contact” and he assumed the possibility of attack.  He had been aware of the helicopter gunmen firing at regular intervals but had no knowledge of at what they were firing.  He understood that the gunners “fired at anything that moved or didn’t move”.  Mr Murphy was not aware of being fired at when travelling in road convoys between Vung Tau and Nui Dat.  He said that he was not aware of a joke among the New Zealanders of putting rubber imitation ears on a wire and accepted that he was not sure that real ears on wire were displayed at 161 Artillery Battery.

4. Mr Murphy said that he had great difficulty in settling down after his return from Vietnam.  He said that he disembarked in Sydney and purchased civilian clothes to avoid arriving in uniform in Melbourne as he had heard that Vietnam Veterans were being badly treated.  He felt that he had wasted two years of his life, had lost promotional opportunities and had lost friends.  He became a heavy user of alcohol and, at times, was in trouble with his employer for not turning up at work and going to the hotel.  He met his first wife in 1970 and married in 1971 but alcohol became a problem in the marriage.  He said that he was drinking regularly at lunch times and after work, although he believed that these drinking habits were not different to those of his non‑Vietnam Veterans work colleagues.  There were two children of the marriage, which was finally dissolved after many arguments in relations to money and drinking.  Mr Murphy said that his son blamed him for the break‑up of the marriage and he had not spoken with the son for some two to three years.  Mr Murphy remarried twelve years ago.

5. Mr Murphy commented that he had retained the memories of his experiences in Vietnam but assumed that this would be the same as any person with war experiences.  He said that meeting former colleagues will trigger the memories.  He has marched on Anzac Day in his local area and watched the march in Melbourne on television.  He became annoyed at seeing “foreigners” included in that march.  He has watched war films and, in later years, has keenly watched documentary films on the politics and history of Vietnam.  He said that he has had difficulty sleeping over many years, is awake generally by 5.00 am and reads books.  He has occasional dreams but described them as memories rather than disturbing nightmares.  Mr Murphy said that he does not have close friends but socialises with a lot of people.  He does not like supermarkets or department stores, although he said that this is primarily because he does not like waiting and prefers to “get in, buy and get out”.  He considered himself somewhat impatient and occasionally aggressive with people on the telephone.  He had occasional difficulties concentrating on long technical issues in his work and is not interested in further studies to improve his qualifications as an insurance loss assessor.  He thought that he “may have been different as a caring and sharing person if not for Vietnam”.

6. In his claim of 5 June 2001 for PTSD/anxiety, Mr Murphy described his symptoms as “a constant feeling of anxiety, mood swings and depression, excessive consumption of alcohol to cope”.  He was examined on 6 July 2001 and 20 July 2001 by Dr I. Jackson, a psychiatrist, who provided a report dated 6 August 2001 (T12).  Dr Jackson took a history similar to that provided to the Tribunal of the stressful experiences of Mr Murphy in Vietnam.  He concluded that the occasional recollection of these experiences did not amount to a psychiatric illness and did not fit the criteria for PTSD.  Mr Murphy considered that he had not established a good relationship with Dr Jackson who had commenced by telling Mr Murphy of his holidays in Vietnam.

7. Mr Murphy was examined and interviewed by Dr C. Seabridge, psychiatrist, by video conference on 23 January 2003.  In the report of Dr Seabridge, dated 24 January 2003 (T19), he noted a similar history of events in Vietnam and that Mr Murphy had used the word “scary” on a regular basis.  He found no evidence of persistent re‑experiencing of detailed and consistent traumatic stressors and noted that Mr Murphy could describe the events without emotional stress or anxiety.  Dr Seabridge concluded that the diagnosis of PTSD was not substantiated.

8. At the instigation of his representative, Mr Murphy was examined by Dr K. Koller, psychiatrist in Kogarah, NSW, on 20 March 2002.  Dr Koller provided a relatively brief (3 pages) report dated the same day.  The stressors noted in his reports were:

   “We are always low level flying, there was always the potential for contact with ground forces, we were fired on”.

   “I was expected to do general duties, picket duties.  It was always a scary situation”.

   “I would put on a jacket and travel between Nui Dat and Vung Tau, it was always a situation where you could be fired on”. “We were regularly fired on, even by the friendly’s”.

   “I knew people who were killed or injured”.

   On one occasion he had to go to a cemetery and use a rod and prod the ground looking for buried arms, “it was scary prodding into the dead”.

9. Dr Koller stated that the complaints presented by Mr Murphy were sleep problems, dreams two or three times a week with some Vietnam content, regular thoughts about Vietnam, readily becoming upset, irritability, avoidance of crowds and parties, impotence and suspect concentration .  He concluded as follows:

   This man indicates chronic post traumatic stress disorder that derives from extraordinary experiences in Vietnam War.  In Vietnam he experienced and witnessed events that involved actual or threatened death or serous injury to others and self.  He was shot at.  His response involved intense fear, helplessness and horror.

   He complains of ruminations, thought intrusions about Vietnam experiences, he is distressed by situations that are or symbolise Vietnam trauma, he is angrily irritable.  He tends towards social avoidance, poor concentration.

   He attempts to assuage the symptomatology with excess alcohol and tobacco.

   He is diagnosed as alcohol dependent, with full knowledge of the ill-effects of alcohol.  He never has been able to reduce consumption.  It is a concern.

   His smoking habits are alarming.

   The PTSD, especially irritability and alcohol, cost him a marriage and a relationship with his son.

   He remains irritable in the second marriage and over the past few years he has been impotent.

   He requires psychiatric help.

In his evidence at the hearing, Mr Murphy accepted that he had not experienced being fired at on any occasion in Vietnam.  At best, he thought it possible that a helicopter in which he was travelling was fired on but he could not be sure.  He said that the only person he knew who had been killed was a civilian photographer friend but he had not been present at the time.  Dr Koller was not called to give evidence at the hearing.

1. The final psychiatrist who examined Mr Murphy was Dr L. Walton.  He saw Mr Murphy on 19 April 2004 and his report of 5 May 2004 set out a history simular to that taken by others.  The opinion given in the report was:

   … I was unable to satisfy myself that in relation to any of the events which Mr Murphy described to me, his subjective response reached intense fear, helplessness or horror.

   The veteran does not provide a history of recurrent or intrusive distressing recollections of the events nor recurrent distressing dreams of the events.  He reports no reliving experiences nor intense psychological distress following exposures to cues, except perhaps on one occasion when he was in Thailand in 1990.  The veteran does not report physiological reactivity following reminders.

   Mr Murphy does not describe a special effort to avoid thoughts, feelings or conversations associated with Vietnam.  Neither does he avoid particular activities, places or people in that regard.  There is not evidence of any inability to recall important aspects of the trauma.  This man does not display a markedly diminished interest or participation in significant activities, quite the opposite.  There are no feelings of detachment or estrangement from others nor a restricted rang of emotional expression.  He does not so much describe a sense of a foreshortened future but that he is afraid of dying prematurely.

   The veteran does report mild insomnia and irritability as well as minor problems sustaining concentration.  He did not describe hypervigilance nor an exaggerated startle response.

   The symptoms which the veteran reports certainly have been in existence for more than one month.

   I could not state that this veteran experiences clinically significant distress or any impairment of social, occupational or other important areas of functioning.

Dr Walton concluded that Mr Murphy did not meet the clinical criteria for a diagnosis of PTSD.  In his oral evidence, Dr Walton said that, while Mr Murphy may be somewhat obsessional, it was not pathological and no psychiatric diagnosis could be made.

1. The report from WriteWay Research Services generally supported the version of events in Vietnam set out in Mr Murphy’s statement.  Some of his dates were unlikely to be correct, it is likely that there were only two rocket attacks landing approximately one kilometre away from his quarters while he was at Long Binh and he was most unlikely to have been billeted alone in a hotel in Saigon.

2. The threshold question of the Tribunal in this application is whether Mr Murphy suffers from a psychiatric condition.  Where a Veteran claims to suffer from a war‑caused condition it must first be determined whether the Veteran suffers from the claimed condition and that issue must be decided to the reasonable satisfaction of the Tribunal.  Only if a positive finding is made on that issue, does the Tribunal proceed to determine whether the condition is war‑caused, adopting the standard of proof in the case of operational service as set out in s 120(1), s 120(3) and s 120A of the Veterans’ Entitlement Act 1986.  Not uncommonly, in cases such as this, an assumption is made that, if a Veteran has a reasonable chance of satisfying a factor in a relevant Statement of Principles (“SoP”) then the claim will be accepted.  The relevant SoP for PTSD, Instrument Nº 3 of 1999 as amended by Nº 54 of 1999, refers to experiencing a severe stressor in which the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury or a threat to the person’s, or another person’s, physical integrity.  It is not clear to us that the events experienced by Mr Murphy satisfy this factor.  However, for the condition to be accepted, the diagnosis of that condition as a result of those experiences must be made out to the reasonable satisfaction of the Tribunal. 

3. It is generally accepted that the diagnostic criteria set out in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (“DSM-IV”) is that on which the majority of psychiatrics assess a diagnosis.  One significant criterion is that the person’s response to the traumatic event involved intense fear, helplessness or horror.  The evidence of Mr Murphy at the hearing and the histories given to each of the four psychiatrists who examined him did not indicate such a response to the events in Vietnam.  Three of those psychiatrists were unable to diagnose any psychiatric condition.  The only report which supports Mr Murphy’s claim is that of Dr Koller.  However, his report is very short of a detailed history, is incorrect in stating that Mr Murphy “was shot at”, refers to “scary” events and summarises them as “extraordinary experiences” and stated that his response involved intense fear, helplessness and horror, without any discussion of how he was able to make that finding.  We do not accept the opinion of Dr Koller and prefer the evidence of Drs Jackson, Seabridge and Walton who were consistent in their opinions and with the evidence given to the Tribunal personally by Mr Murphy.

4. It follows that the decision under review should be affirmed on the basis of a finding that Mr Murphy does not suffer from the condition of PTSD or any other psychiatric anxiety condition.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Catherine Lake

Clerk

Date of Hearing:  11 May 2004

Date of Decision:  1 July 2004
Advocate for the applicant:          Mr B. Winship
Solicitor for the applicant:            Fairbairn Lawyers

Advocate for the respondent:       Mr K. Rudge

Solicitor for the respondent:         Department of Veterans’ Affairs