Noble and Repatriation Commission
[2004] AATA 954
•14 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 954
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/200
VETERANS' APPEALS DIVISION
Re: PAUL DAMON NOBLE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 14 September 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - post traumatic stress disorder - anxiety disorder - depressive disorder - whether war-caused
Safety, Rehabilitation and Compensation Act 1988
Veterans' Entitlements Act 1986 ss 9, 119(1)(h), 120(1), 120(3), 120(4), 120A(3)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
ReWitten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 75 ALD 420
REASONS FOR DECISION
14 September 2004 G.D. Friedman, Member
1. This is an application by Paul Damon Noble (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 1 May 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 27 July 2001, that post traumatic stress disorder (PTSD) suffered by the applicant was not war-caused.
2. At the hearing of this matter Mr D. De Marchi, solicitor, represented the applicant. The respondent was represented on 9 September 2003 and 18 November 2003 by Mr G. Purcell of counsel, and on 17 February 2004, 4 May 2004, 5 May 2004 and 14 July 2004 by Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), plus 24 exhibits (Exhibits A1‑A24) lodged by the applicant and 20 exhibits (Exhibits R1-R20) lodged by the respondent.
BACKGROUND
4. The applicant was born on 2 January 1950. After leaving school, he completed a plumbing apprenticeship before joining the Royal Australian Navy (the navy). He served in the navy from 24 November 1971 to 5 February 1974. His eligible war service, which is operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act), was from 1 November 1972 to 30 November 1972 on‑board HMAS Sydney on its voyages from Australia to Vietnam and back.
5. After discharge from the navy at his own request, following several episodes of sleepwalking, the applicant was selected for entry into the Victoria Police Force, but resigned before completing his training. He then worked in a number of jobs before finding employment as a private investigator for several years. He later became a process server, and currently works eight hours per week.
6. On 14 March 2000 the applicant made a claim to the Department of Veterans’ Affairs for disability pension for reactive depression, chronic anxiety and PTSD. On 27 July 2001 a delegate of the respondent treated the application as a claim for PTSD and refused the application on the grounds that the condition was not war-caused. On 27 February 2002 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
7. The applicant has no accepted war-caused disabilities but has been granted compensation under the Safety, Rehabilitation and Compensation Act 1988 for temporary aggravation of somnambulation, chronic anxiety state and reactive depression.
EVIDENCE
8. In oral evidence the applicant stated that, after three months of recruit training, he served on HMAS Anzac and then completed training as a gunner. He was assigned to HMAS Sydney which was involved in the carriage of troops and supplies to and from Vietnam. The applicant said that on the night of 23/24 November 1972 the Sydney entered Vang Tau harbour with guns manned and the crew on alert. He said that he remained on alert at one of the Bofors anti-aircraft guns all day as the ship was lightly armed and needed protection, although the gun to which he was assigned was non‑operational.
9. The applicant stated that shortly after dark the crew was ordered to close up for the night, which involved unloading the guns and removing ammunition. He said that shortly afterwards he saw and heard an approaching aircraft which he believed to be in an attack formation (the aircraft incident). He said that the noise was becoming louder as the aircraft approached, and he made a frantic call to superior officers through his headset, but his call was unanswered. The applicant explained that he was terrified because the Bofors gun was non-operational and he had no idea of the identity of the aircraft or its intentions, as he could not see anything in the dark. The applicant told the Tribunal that there was no attack and the crew resumed unloading the cargo all night. The ship sailed immediately afterwards because the conditions were unsafe for it to remain in the harbour overnight.
10. The applicant explained that, on the next voyage by HMAS Sydney to Papua New Guinea, he was unloading a vehicle using a crane, when the brake drum on the crane failed, causing the vehicle to drop and a soldier in the vehicle had to be taken to hospital (the crane incident). The applicant stated that he was distressed that he might have caused serious injury or the death of the soldier, even though the faulty brake drum was found to be the cause of the accident.
11. After the de-commissioning of HMAS Sydney he was assigned to HMAS Stuart, which sailed for Hawaii, according to the applicant. He said that one night, during naval exercises in the Pacific Ocean, he had a dream that the ship was on fire after an attack, so he wrapped a blanket around himself as protection from the fire, and was found by an officer while heading for a life raft. The applicant said that following this incident the Captain ordered him to be removed immediately from the ship to HMAS Melbourne, although he was not told at that time that he had been sleepwalking. The applicant stated that, after returning to Australia on HMAS Melbourne, he spent 4 to 5 months at a naval hospital but did not receive treatment for sleepwalking. After being informed that he was unfit for service at sea, he accepted advice to seek a discharge, which was granted.
12. The applicant said that after his discharge he developed a fear of contracting cancer, and this contributed to his failure to attend classes at the Victoria Police Training Academy. He did not pass the exams and was asked to resign. He stated that he began to experience vivid nightmares concerning fire. He explained that his poor sleeping pattern and lack of concentration led to difficulty in maintaining employment. The applicant noted that he had difficulty interacting with people, and attended a psychologist for counselling. In 2000 he was referred to a psychiatrist, who prescribed anti-depressant medication.
13. In relation to employment, the applicant told the Tribunal that he is unable to work more than eight hours per week because of ongoing anxiety, stress, a poor sleep pattern and a lack of concentration. He said that after resigning from the Victoria Police he attempted to work as a plumber but was unable to meet the required physical demands. In relation to sleepwalking and psychological or psychiatric matters, the applicant said that at no time did the navy provide any treatment. He disagreed vehemently with the reports written by Dr Byrne and Writeway Research Service, which are discussed below.
14. Under cross-examination, the applicant said that he remembers the aircraft incident vividly, but not the events that occurred immediately afterwards. He explained that he did not actually see the aircraft because of the darkness, but could make out dark shapes. He said that he could not even see HMAS Vampire which was anchored only 100 metres away. The applicant stated that he does not remember discussing the incident with other sailors. He agreed that at the VRB hearing he had stated that another sailor had sought instructions regarding the aircraft from senior officers, but in fact he was wearing the headset, so it must have been him. He acknowledged that the HMAS Sydney operated on a watch system where crew members worked 4 to 6 hours then had several hours off, but he was adamant that he and others manned the Bofors gun for 12 hours on the day of the aircraft incident. The applicant stated that, as a gunner, he knew little about the workings of the ship as a whole, and had little contact with many of the crew. He denied that he was given any meaningful instruction or guidance about Vietnam or the war.
15. The applicant agreed that he had not mentioned the aircraft incident to various medical practitioners after his discharge, but maintained that he only answered questions posed to him, and was embarrassed about some of his symptoms and thoughts. The applicant reiterated that written reports by Dr Byrne and Commodore Mulcare of Writeway Research were inaccurate.
16. The applicant stated that he believed there was a board of inquiry into the crane incident, but he was not called to give evidence, and understood that no blame had been attributed to him. He recalled that each vehicle being unloaded had a soldier in it to drive the vehicle away from the dock. He stated that nobody informed him of the condition of the injured soldier.
17. In a written report dated 5 April 2000 (T8), Dr P. Brown, consultant psychiatrist, concluded that the applicant suffers from a mixed affective disorder, with anxious (including post traumatic) and depressive features. Dr Brown said that, until presentation to him on 14 December 1995, the applicant’s symptoms
…not only included post traumatic anxieties with traumatic memories, flashbacks and nightmares, but also phobic (hypochondriacal) anxieties, principally centring on a cancer phobia.
Dr Brown concluded that the applicant suffered from a psychiatric condition which prevents him from working. Dr Brown said that the applicant requires maintenance, psychiatric treatment in the form of medication management, counselling and medical support.
18. In a written report dated 20 August 2001 (T19) Dr Brown stated that the applicant suffers from …anxiety, and depression in the context of naval service post traumatic stress. In a written report dated 5 May 2003 (Exhibit A11) Dr Brown repeated this diagnosis. He also stated:
…
· Specific traumatic stresses included: feared enemy action prompted by sound of planes flying overhead; manning of faulty Bofor
sguns aboard HMAS Sydney, while on route to Vietnam.
19. In oral evidence, Dr Brown told the Tribunal that he considered the applicant to be truthful. Under cross-examination, Dr Brown agreed that the applicant did not mention the aircraft incident to various medical practitioners until 2000, but stated that this was not surprising in the circumstances of the applicant’s medical condition. He said that there was no record of the crane incident in his clinical notes. Dr Brown told the Tribunal that in his opinion the applicant does not suffer from PTSD as defined by the DSM.
20. In a written report dated 4 June 2003 (Exhibit A12), Mr M. Burge, psychologist, noted the applicant’s symptoms in relation to his operational service, and concluded:
Therefore, in considering all the above, I am of the opinion that Paul Noble, in addition to chronic anxiety and reactive depression (developed/aggravated through his overall services in Royal Australian Navy), is suffering from PTSD due to events, stressors and psychological reactions during operational service from 1 November 1972 to 3[0] November 1972.
…His operational service produced PTSD of a moderate presentation. The PTSD in turn compounds the psychological difficulties of anxiety and depression .
21. In oral evidence Mr Burge stated that the applicant’s PTSD had been untreated for 20 years, and that the aircraft incident was a severe stressor for the applicant. He said that the applicant had tried to contain his anxieties, but that PTSD could be triggered by association, for example by seeing an aircraft. He told the Tribunal that his report and clinical notes contained no mention of the crane incident because he was asked to focus on the aircraft incident. Under cross-examination, Mr Burge agreed that factors other than the applicant’s navy service might have had an impact on PTSD.
22. In a written report dated 19 May 2003 (Exhibit R12), Dr K. Byrne, forensic psychologist, stated that on the balance of probabilities the applicant is suffering from chronic depression and anxiety. He said that the applicant suffered from some of the symptoms of PTSD as contained in the Statement of Principles (SoP), but does not meet either the objective or subjective criteria. He stated that the applicant’s difficult early childhood had left him susceptible to being anxious and depressed. Dr Byrne expressed the view that the applicant’s problems were not related to his navy service.
23. In a written supplementary report dated 26 August 2003 (Exhibit R13) Dr Byrne reviewed the reports and clinical notes of Dr Brown and Mr Burge. He concluded:
3.5All these factors now lead me to conclude that on the balance of probability it is likely that the therapy which Mr Noble had with Mr Burge has to some degree shaped or even contaminated his memory of past events. It should be very clear that I am not suggesting Mr Noble is being untruthful. As noted in my first report, once a memory has been created, the subject is entirely unable to distinguish the genuine memory from one which has been artificially created…There is considerable research to support that conclusion.
Dr Byrne added that if this part of his opinion was correct, it may go some way to explaining the discrepancy between the memories Mr Noble reported with great confidence, and the lack of historical support for the actual events he described.
24. In oral evidence Dr Byrne said that, in relation to the applicant’s written comments criticising aspects of the first report, he relied on his clinical notes when compiling the report, and that to the best of his knowledge the matters contained in the report were accurate. He told the Tribunal that after the consultations the applicant had not complained to him about any aspect of the questioning or the process he adopted.
25. Under cross-examination Dr Byrne stated that, based on the reports by the captain of the ship and by historians, he concluded that the aircraft incident did not occur, although he reiterated that he did not say that the applicant was lying. He agreed that the applicant did not mention the crane incident during the two consultations, or at most had mentioned the incident in passing. Dr Byrne said that he did not regard this incident as causing the applicant intense fear, helplessness or horror.
26. In a written report dated 4 February 2003 (Exhibit R7), Commodore P. Mulcare, of WriteWay Research Service stated that, at the time that HMAS Sydney was anchored in Vung Tau harbour, the principal threats to ships were attacks by enemy divers or floating mines. He said that other possible threats included mortar or rocket attack, or attack by small boats. He said that there was no air threat. Commodore Mulcare stated:
10 As a member of a gun crew, the veteran would have been briefed that there was no air threat and that the Bofors role was to engage surface targets if necessary. The veteran’s claim that the gun was loaded, but did not work, cannot be proved or disproved. But the likelihood that such a situation was maintained in Vung Tau, as a defensive measure, is extremely remote, as is the likelihood that manpower would be wasted in this manner.
11. Aircraft using Vung Tau airfield in 1972 included propeller driven aircraft. If one flew “extremely low” over the ship in the dark there is unlikely to have been much warning that it was overhead. Nor would there have been an opportunity for a Bofors gun, a visually aimed weapon, to engage an aircraft in the dark.
27. With respect to the crane incident, Commodore Mulcare stated that in February 1973 a vehicle was dropped from the fight deck of HMAS Sydney onto a barge alongside, causing damage to the vehicle and injury to a soldier.
28. In oral evidence Commodore Mulcare said that the Bofors guns were serviceable before HMAS Sydney sailed to Vung Tau in 1972, and also in February 1973. He added that there were personnel on‑board who would have been able to fix any gun that became non-operational. Under cross-examination Commodore Mulcare agreed that he could not be sure that the guns were operational at the relevant time. He conceded that he had no reason to doubt the accuracy of the statutory declaration dated 29 August 2003 by Mr R. Hattenfels (Exhibit A2), in which Mr Hattenfels stated that in April 1973 only two of the four Bofors guns on HMAS Sydney were operational due to neglect and a lack of maintenance, and that he and the applicant were among the ship’s personnel who had repaired them.
29. Medical evidence presented to the Tribunal shows that in October 1973 the applicant presented to Dr A Rowe complaining of sleepwalking on‑board HMAS Stuart. Dr Rowe diagnosed somnambulism. In December 1984 Dr C. Wijesinghe diagnosed that the applicant suffered from hypochondriasis because of relationships difficulties, illness phobias and medication problems. On 8 April 1992 Dr T. Kennedy diagnosed that the applicant suffered from personality disorder, as a consequence of the applicant’s claim to the Department of Veterans’ Affairs for somnambulism and reactive depression.
30. On 13 April 1993 Dr E. Cole diagnosed that the applicant suffered from chronic anxiety state and reactive depression following a claim to the Department of Defence. On 14 April 1994 Dr B. Batagol diagnosed that the applicant suffered from depressive disorder as well as an anxiety disorder with features of cancer phobia in respect of the claim for chronic anxiety state and depression. Dr Brown has provided various descriptions and diagnoses in his reports, namely chronic affective disorder; mixed affective disorder with anxious (including post traumatic and depressive) features, temporary aggravation of somnambulism with reactive depression. In May and August 2003 Dr Byrne diagnosed that the applicant suffered from chronic depression and anxiety.
CONSIDERATION OF THE ISSUES
31. Section 9 of the Act specifies the circumstances in which a veteran’s disease or injury is to be taken to be war‑caused. In particular s 9(1)(a) and (b) apply:
9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
32. There was no dispute between the parties that the applicant had rendered operational service, and that s 120(1) and s 120(3) of the Act apply. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). Section 120(3) is affected by s 120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s 120A depends upon whether there is in force a SoP determined under s 196B of the Act, in respect of the kind of disease contracted by the applicant. Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by that person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
33. The Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war‑caused in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
33. The following are the diagnostic criteria for PTSD as described in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV):
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.
…
B. The traumatic event is persistently reexperienced in one (or more) of the following ways:
1. recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. …
2. recurrent distressing dreams of the event. …
3. acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). …
4. intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
1. efforts to avoid thoughts, feelings, or conversations associated with the trauma
2. efforts to avoid activities, places, or people that arouse recollections of the trauma
3. inability to recall an important aspect of the trauma
4. markedly diminished interest or participation in significant activities
5. feeling of detachment or estrangement from others
6. restricted range of affect (e.g., unable to have loving feelings)
7. sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
1. difficulty falling or staying asleep
2. irritability or outbursts of anger
3. difficulty concentrating
4. hypervigilance
5. exaggerated startle response
E. Duration of the disturbance (symptoms B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
34. Mr De Marchi submitted that the material before the Tribunal points to a hypothesis connecting PTSD with the circumstances of the particular service rendered by the applicant, and that the hypothesis fits within the template and is reasonable. He said that the recollection of the applicant in relation to the aircraft incident was clear and plausible, and that as a consequence, the applicant had feared for his life. .
35. Mr De Marchi noted the circumstances of the aircraft incident: the aircraft had approached low over HMAS Sydney, the aircraft had no lights on, the aircraft noise became louder and louder, the applicant received no response from officers on the bridge, and the Bofors gun was non-operational. To illustrate the plausibility of such an incident, Mr De Marchi then referred to an incident in 1968 when a United States Air Force aircraft mistakenly attacked HMAS Hobart, resulting in damage and Australian casualties. He emphasised that the applicant was a young sailor who was under a potentially serious threat by his presence at Vung Tau, and was in a vulnerable position. Mr De Marchi stated that HMAS Sydney was an ageing ship, the radar was inoperative and the ship’s guns were not fully operational. He said that there was little doubt that such a situation would have been frightening for the applicant, and submitted that the reasonable hypothesis is made out to the requisite degree. Mr De Marchi referred to the diagnosis of PTSD by Mr Burge, whom he described as a psychologist experienced with Vietnam veterans.
36. Mr De Marchi submitted that the applicant’s evidence of the crane incident was consistent; in that he feared that a soldier in the vehicle had been killed or seriously injured when the brake drum on the crane failed and the vehicle fell. Mr De Marchi told the Tribunal that the applicant’s anxiety and depression prevent him from obtaining gainful employment. He stated that there was ample evidence pointing to the hypothesis connecting the applicant’s PTSD (or alternatively anxiety state and depression) to his war service, and that the applicant should be granted pension at the special rate.
37. In a written submission dated 10 August 2004 Ms McCulloch submitted that the diagnosis of PTSD has never been established on the balance of probabilities. She said that of the six psychiatrists and two psychologists consulted in this case, seven did not diagnose PTSD and that their evidence was not challenged by the applicant. Ms McCulloch noted that Mr Burge was the only practitioner to declare that the applicant meets the relevant criteria, but that his clinical notes and oral evidence do not support this diagnosis. She stated that the applicant’s evidence had failed to demonstrate that that he was exposed to a traumatic event as defined in DSM-IV in either the aircraft incident or the crane incident. She submitted that the stressors relied upon by the applicant do not meet the definition of experiencing a severe stressor in the SoP.
38. Ms McCulloch said that the applicant’s evidence was unreliable. She pointed to his differing accounts of his sleepwalking, and submitted that this showed his memory of events changed considerably for the purposes of his claims with the Department of Veterans’ Affairs and the Military Claims and Compensation Scheme. She pointed out that the applicant’s evidence to the VRB about the aircraft incident was inconsistent with accounts given by him to the Tribunal. Ms McCulloch referred the Tribunal to the evidence from Commodore Mulcare that at the time there was no air threat to ships off Vung Tau and no record of an aircraft approaching the ship. She submitted that the aircraft incident was implausible in the circumstances.
39. Ms McCulloch stated that the applicant’s recollection of the crane incident was vague and that he did not appear to be particularly affected by the incident as it did not frequently intrude into his memory.
40. Ms McCulloch submitted that, even if the Tribunal found that the applicant suffers from PTSD, he cannot meet the relevant factor in the SoP concerning PTSD. She said that he did not experience a severe stressor prior to the clinical onset of PTSD. Ms McCulloch referred to Stoddart v Repatriation Commission (2003) 74 ALD 366 in which the Federal Court stated (at 378):
…The adjectival clause “that involved actual or threat of death or serious injury...” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not fall within the adjectival clause.
She stated that in Woodward v Repatriation Commission (2003) 75 ALD 420 the Full Federal Court concluded (at 445):
We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.
41. Ms McCulloch noted that, until he lodged his application with the Tribunal, the applicant had not relied on experiencing a severe stressor in 30 years of psychiatric treatment, and his recollection had altered substantially during the hearing of the application. She said that on the available material the Tribunal should be satisfied beyond reasonable doubt that the aircraft incident and the crane incident did not occur in the manner described by the applicant.
42. Ms McCulloch submitted that the applicant suffers from chronic depression and anxiety disorder, which are unrelated to his operational service, and that clinical onset of these conditions did not occur within two years of operational service.
43. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
44. The question of whether a condition exists is to be decided as a preliminary matter (Fogarty v Repatriation Commission, (2003) 37 AAR 363) on the balance of probabilities under s 120(4) of the Act. The SoPs are not relevant to the question of diagnosis (Benjamin v Repatriation Commission (2001) 70 ALD 622).
45. The Tribunal notes that Mr Burge has been counselling the applicant since 1989 for chronic anxiety and reactive depression, and that on 4 June 2003 Mr Burge considered that the applicant …exhibited symptoms consistent with post traumatic stress disorder. The Tribunal takes into account that, in diagnosing PTSD, Mr Burge relied on the aircraft incident, and in both his report and clinical notes he made no reference to the crane incident, although in oral evidence to the Tribunal he relied upon the crane incident as a major stressor. The first reference to the aircraft incident occurs in May 2003 in Mr Burge’s clinical notes. Mr Burge stated that he read the reports from psychiatrists, but preferred to rely on the applicant’s recollections when making his diagnosis.
46. In view of these inconsistencies and limitations on the evidence from Mr Burge, the Tribunal prefers the evidence from the medically-qualified psychiatrists and Dr Byrne, who all conclude that the applicant did not suffer from PTSD.
47. In relation to the criteria for PTSD contained in DSM-IV the Tribunal is aware that the aircraft incident and the crane incident occurred more than 30 years ago and that the applicant’s recollection could not be expected to be complete. However, the Tribunal accepts the submission from Ms McCulloch that the applicant’s evidence, based on the histories taken by the medical practitioners and given, in evidence, to the VRB and to the Tribunal, contains many inconsistencies and contradictions. For instance, there are varying accounts by the applicant of whether he could see the outline of the aircraft that allegedly flew low over the ship, and whether darkness prevented confirmation that an aircraft had approached at all.
48. The Tribunal accepts the evidence from Commodore Mulcare that at the time of the aircraft incident there was no air threat to ships at anchor off Vung Tau, and that the ships would have had navigation lights on, so there would be little likelihood of pitch dark conditions. The Tribunal also accepts Commodore Mulcare’s evidence that an aircraft flying low over a ship in darkness would not give sufficient time for the applicant to communicate with the Operations Room to seek instructions on whether the aircraft was hostile. Similarly, the Tribunal accepts that the ship’s position, as described by the applicant, was such that a low-flying aircraft would be in danger of crashing into the ship or the high ground on the peninsula beyond the ship.
49. The Tribunal accepts the respondent’s submission that the aircraft incident, if accurate, would almost certainly have been recorded in the ship’s log, and there is no report of the incident, or anything similar, in the ship’s records on the day in question. The Tribunal further notes that the applicant stated in evidence that he did not report the incident or discuss it with other naval personnel.
50. The Tribunal finds that the applicant’s account of the crane incident was vague and inconsistent. He had no knowledge of the date of the incident or the fate of the soldier whom he claims was injured. The applicant did not make any report of the incident and was not interviewed afterwards. He did not include the incident in his claim before the VRB. He said in cross-examination that that incident was one of the specific things that happened to him during his naval service, but that the incident did not keep coming back to him. The Tribunal notes that, during examinations by various practitioners, the crane incident was not mentioned at all in some cases and was referred to fleetingly during others.
51. For these reasons, the Tribunal accepts the submission by Ms McCulloch that there is no objective evidence to support the applicant’s claims regarding the aircraft incident and the crane incident; and that the applicant’s evidence is not persuasive that the incidents occurred as described by him. Therefore, taking this into account with the overwhelming medical evidence, the Tribunal finds that the applicant was not exposed to a traumatic event (criterion A of the diagnostic criteria in DSM-IV for PTSD) and the events were not persistently re-experienced (criterion B of the diagnostic criteria). The Tribunal finds on the balance of probabilities that a diagnosis of PTSD has not been made out, and the applicant cannot satisfy step 1 of Deledio for PTSD.
52. In considering all the material before it the Tribunal accepts Ms McCulloch’s submission that the applicant suffers from anxiety disorder and depressive disorder, so he meets the first step of Deledio for these conditions. In respect of the second step for anxiety disorder, the relevant SoP is N° 1 of 2000 and the relevant factor is:
5 …
(a)…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
…
53. In paragraph 8 “severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
54. In respect of the second step for depressive disorder, the relevant SoP is N° 58 of 1998 and the relevant factor is:
5…
(a)…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
…
In paragraph 8 “severe psychosocial stressor” is defined in essentially similar terms to the definition in the SoP for anxiety disorder.
55. In respect of the third step from Deledio, there is no definition of the term clinical onset in the SoP. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal, after considering a number of expert medical opinions as to the meaning of the term, said (at 670):
...we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
The Tribunal followed this reasoning in Re McLeod-Drydenand Repatriation Commission (1998) 53 ALD 428 at 447;
…
We consider that the term "clinical onset" means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition.
56. In ReWitten and Repatriation Commission (1998) 54 ALD 605 the Tribunal reviewed earlier decisions and adopted the definition of clinical onset as set out in Re McLeod-Dryden. At 608, the Tribunal concluded:
…A disorder may not, in fact, have been diagnosed during the relevant period…but, with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period.
57. In the matter before the Tribunal, concerning the date of clinical onset of anxiety disorder and depressive disorder, the Tribunal takes into account that Mr Burge has been counselling the applicant since 1989 for chronic anxiety and reactive depression. The Tribunal also notes the dates of diagnosis by the psychiatrists from 1993 (Dr Cole) and 1994 (Dr Batagol).
58. For these reasons the Tribunal accepts Ms McCulloch’s submission that there is no material before the Tribunal capable of establishing that the applicant experienced a severe psychological stressor within the two years immediately before the clinical onset of anxiety disorder and depressive disorder as required in the relevant SoPs. Overall, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP concerning anxiety disorder or depressive disorder, and therefore the hypothesis connecting these conditions with the applicant’s service is not consistent with the template and is deemed not to be a reasonable hypothesis.
59. The Tribunal takes into account the beneficial nature of the Act, the passage of time and any deficiency in official records (s 119(1)(h) of the Act). However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1(h) cannot be used to provide evidence of facts if none exists. In the matter before it, the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not assist the applicant such as to enable the Tribunal to find in his favour. Consequently the claim does not succeed.
DECISION
60. The Tribunal affirms the decision under review.
I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 9 September 2003, 18 November 2003,
17 February 2004, 4 May 2004,
5 May 2004 and 14 July 2004
Date of decision: 14 September 2004
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & AssociatesCounsel for respondent: Mr G. Purcell (9 September 2003 and 18 November 2003)
Advocate for respondent: Ms J. McCulloch (17 February 2004, 4 May 2004,
5 May 2004 and 14 July 2004)
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
0
6
0