O'Dowd and Repatriation Commission
[2012] AATA 789
•13 November 2012
Division VETERANS' APPEALS DIVISION File Number
2011/0892
Re
Peter David O'Dowd
APPLICANT
And
Repatriation Commission
RESPONDENT
DIRECTION
Tribunal Egon Fice, Senior Member
Date 30 November 2012 Place Melbourne The Tribunal made a Decision under s 43 of the Administrative Appeals Tribunal Act 1975 (the Act) on 13 November 2012. In accordance with s 43AA(1) of the Act, the Tribunal directs that the text in the reasons for decision be altered in the following way:
1.Deleting the following words on the cover page at the end of the paragraph entitled ‘Decision’:
The Tribunal affirms the decision of the Veterans’ Review Board made on 18 February 2011.
Replacing them with:
1. Mr Peter O’Dowd’s Rosacea is a war-caused disease with effect from 22 July 2009.
2. The Tribunal affirms the Veterans’ Review Board decision made on 18 February 2011 regarding Post Traumatic Stress Disorder.
3. This matter is remitted to the Repatriation Commission for the purpose of re-assessment of the rate of pension to be paid to Mr O’Dowd.
...[sgd Egon Fice].....................................................................
Egon Fice, Senior Member
[2012] AATA 789
Division VETERANS' APPEALS DIVISION File Number
2011/0892
Re
Peter David O'Dowd
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 13 November 2012 Place Melbourne The Tribunal affirms the decision of the Veterans’ Review Board made on
18 February 2011.....[sgd Egon Fice]....................................................................
Egon Fice, Senior Member
VETERANS’ AFFAIRS – Disability Pension – Post traumatic stress disorder – agoraphobia – was the disease a war-caused disease – standard of proof – balance of probabilities – traumatic events – operational service – hypothesis – reasonable hypothesis – Royal Australian Navy – Vietnam – Philippines – alcohol – rosacea
Veterans' Entitlements Act 1986 (Cth) ss 120, 120(1), 120(3), 120(4), 120(5), 120(6)
Bawden v Repatriation Commission (2012) 291 ALR 457
Benjamin v Repatriation Commission (2001) 34 AAR 270
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
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 Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327Woodward and Another v Repatriation Commission (2003) 131 FCR 473
Chambers 21st Century Dictionary (1999, reprinted 2004)
Diagnostic and Statistical Manual of Mental Disorders (4th ed)
Dorland's Illustrated Medical Dictionary (27th ed)Statement of Principles concerning Post Traumatic Stress Disorder - Instrument No. 5 of 2008
REASONS FOR DECISION
Egon Fice, Senior Member
13 November 2012
Mr Peter O'Dowd enlisted in the Royal Australian Navy on 16 March 1963. He was discharged on 15 March 1975. Mr O'Dowd had operational service in Vietnam while on board HMAS Brisbane between 20 March 1969 and 13 October 1969. He also had eligible defence service (as that expression is defined in the Veterans' Entitlements Act 1986 (VE Act)) between 7 December 1972 and 15 March 1975.
On 22 October 2009 Mr O'Dowd lodged with the Department of Veterans' Affairs a claim for the disability pension. The claimed grounds were mental problems; hearing problems; tinnitus; alcohol problems; skin problems and breathing problems.
On 10 June 2010 a delegate of the Repatriation Commission informed Mr O'Dowd that the Commission accepted his claim for sensorineural hearing loss, tinnitus and solar keratosis. However, he decided that Mr O'Dowd's claimed post-traumatic stress disorder (PTSD), rosacea and asthma were not related to his service. The delegate also found that no medical condition was present to answer his claim for alcohol problems. Mr O'Dowd was granted a disability pension at 40% of the General Rate with effect from 22 July 2009.
On 17 June 2010 Mr O'Dowd lodged an application for review with the Veterans' Review Board (VRB) regarding the Repatriation Commission's refusal to accept his claimed PTSD, rosacea and asthma. He also sought review of the rate of pension which was granted.
On 18 February 2011 the VRB decided to consent to the withdrawal of his application for review regarding asthma but it affirmed the decision of the delegate regarding his claim for PTSD and rosacea. The VRB also set aside the decision assessing his disability pension at 40% of the General Rate and determined that his incapacity from all war-caused conditions be assessed at 50% of the General Rate from and including
24 November 2010. It should also be noted that the VRB in its reasons for decision referred to the veteran as Ian William O’Dowd. I assume this is an error as the cover letter enclosing a copy of the VRB decision is clearly addressed to Mr P O’Dowd. Also, the same VRB number relating to Peter David O’Dowd is consistently shown throughout the documents including on the cover letter, the decision and reasons for decision (despite the name error) and on the VRB transcript.
On 10 March 2011 Mr O'Dowd lodged with the Tribunal an application for review of the decision of the VRB disallowing his claims for PTSD and rosacea.
On 14 February 2012, in its Statement of Facts and Contentions, the Repatriation Commission accepted that Mr O'Dowd's rosacea was war-caused with effect from
22 July 2009. Therefore, the only issues which I am required to determine are:
(a)does Mr O'Dowd have PTSD; and
(b)if I find that Mr O'Dowd has PTSD, whether that condition was war-caused.
DIAGNOSIS – PTSD
The process of determining whether a disease or injury is war-caused involves an antecedent decision about the disease or injury from which the veteran claims he or she suffers. The problem with cases involving PTSD is that, as Gray J explained in Mines v Repatriation Commission (2004) 86 ALD 62 at 71:
… There may be cases in which the very question whether an injury or disease has been suffered is itself bound up with the question of connection with war service. PTSD provides an example. It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred. Of course, there might be more than one possible traumatic event, and there might be a question as to which of such events is responsible for the condition. …
Prior to outlining the process of reasoning which needs to be followed in determining whether a veteran has been correctly diagnosed with PTSD, one needs to understand the operation of s 120 of the VE Act dealing with standard of proof. Relevantly, s 120 provides:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A
(2)…
(3) In applying subsection (1) or (2) in respect of the incapacity of the person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence caused injury;
(b) that the disease was a war-caused disease or a defence caused disease; or
(c) that the death was war-caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or defence-caused injury;
(b) a disease contracted by a person is war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7)…
Because the decision regarding diagnosis is distinct from the decision about whether the disease is connected to a veteran's operational service, the standard of proof which must be applied to the diagnosis is that set out in s 120(4) of the VE Act. In other words, I am required to decide the question of diagnosis to my reasonable satisfaction (see Repatriation Commission v Hill (2002) 69 ALD 581 at 589 – 599). This has been determined to mean that the Tribunal must be reasonably satisfied before it makes any decision (see Repatriation Commission v Smith (1987) 15 FCR 327 at 334 – 335). It is intended to introduce a standard of proof required in civil litigation. That is, I am required to decide this question on the balance of probabilities.
The problem which inevitably arises in cases such as this, where a diagnosis of PTSD is in dispute, is that the veteran will refer to traumatic events which he or she claims occurred in the course of operational service. That will be the case even where the veteran has suffered other traumatic events unrelated to his operational service. Therefore, if one were to follow the reasoning of Gray J in Mines case to which I have referred above, and in particular the second question which his Honour posed, that being whether the traumatic event occurred, that very same question needs to be determined in the course of finding whether the PTSD, if found to be present, is connected to the operational service.
However, in determining the question regarding the connection with operational service, the standard of proof is that set out in s 120(1) of the VE Act. In other words, in establishing whether there is a causal connection between PTSD and the operational service, I must find that to be the case unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making such a finding. While that poses no problem were I to find, on the balance of probabilities, in the course of determining a diagnosis of PTSD that a traumatic event occurred, as that would inevitably result in a finding in favour of the veteran when the standard in s 120(1) is applied, it should be apparent that were I to find on the balance of probabilities that the traumatic event did not occur, then there can be no diagnosis of PTSD and therefore no connection with the veteran's operational service. This clearly would deprive a veteran of the right to have the question of causal connection with operational service, which involves determining the question regarding whether the traumatic event occurred, determined on the higher reverse onus of proof beyond reasonable doubt standard. Gray J explained this in Bawden v Repatriation Commission (2012) 291 ALR 457 at 465 where he said:
… If the determination as to whether a particular traumatic event occurred is transferred from the process of determining causation to the process of diagnosing the veteran's condition, then a veteran who has rendered operational service will be treated no differently as to causation from a veteran who has not rendered operational service. Such a result would not be in accordance with either the terms, or the underlying purpose, of s 120 of the Veterans' Entitlements Act.
Mr K Rudge, who appeared on behalf of the Repatriation Commission, submitted that the reasoning of Gray J in Mines case is inconsistent with his Honour’s reasoning in the Bawden case. In Mines case, his Honour said, at 74:
It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities.… If the question is posed as whether a veteran has suffered PTSD as result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation.
In Bawden's case his Honour said, at 465:
The proper approach of the decision-maker therefore, is to examine a claim for PTSD (or any other condition for which the causation is said to be part of the diagnosis) without determining conclusively whether the alleged causal event occurred. The correct approach is the one taken in Budworth, examining the collection of symptoms and determining whether they constitute a disease for the purposes of entitling a veteran to a pension under the Veterans' Entitlements Act. The question of the aetiology of the disease should be left to the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans' Entitlements Act.
With respect to his Honour, what Mr Rudge submitted appears to be correct. The way in which Gray J expressed the test to determine whether a veteran had PTSD in Bawden's case is in accordance with what the Full Court of the Federal Court said in Benjamin v Repatriation Commission (2001) 34 AAR 270 and in Repatriation Commission v Budworth (2001) 116 FCR 200. No reference is made in those cases to making a finding on the balance of probabilities that the traumatic event occurred. The court in Budworth's case said, at 207:
This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).
The problems which have been encountered when dealing with PTSD cases and in particular the determination of whether or not a veteran has this mental condition seem to me to have arisen from the fact that it appears to have been assumed that the decision-maker must find a connection between the traumatic event or events claimed by the veteran and the symptoms which he or she has described. Obviously, the very expression, PTSD, calls for finding a traumatic event as the trigger. If a decision maker only examines the traumatic events described by the veteran which he or she claims occurred in the course of operational service, that may not yield an explanation for the symptoms described by the veteran because it does not take into account the fact that there may have been other traumatic events which have occurred outside the operational service of the veteran which have caused the onset of PTSD.
There are some further problems to which I should refer in finding that a diagnosis of PTSD was correctly made. The most significant of these is the fact that the psychiatrist examining the veteran must, necessarily, rely on statements about a traumatic event or events made by the veteran. The psychiatrist is in no position to verify any statements made by a veteran in the course of examination nor is the psychiatrist in a position to determine the accuracy of those statements. The problem is compounded by the fact that the diagnostic features of PTSD set out in DSM-IV are available to anyone who chooses to search the Internet. Therefore, any event which might fit the description involving death, injury or threat to the physical integrity of another person will ordinarily be given to the psychiatrist as will the reaction to such an event or events indicating that they involved intense fear, helplessness, or horror. In addition, the psychiatrist will also be given a description of symptoms which can be identified as the remaining diagnostic criteria set out in DSM-IV. It is not unusual in the course of hearing veterans' cases dealing with PTSD to find that the veteran’s description of his or her reaction to the events which they have described is precisely in the words used in Criterion A of DSM-IV even when it appears that those words are inappropriate to the event described. Frequently, in such circumstances, a diagnosis of PTSD is made.
The problem in dealing with claims for PTSD in the fashion I described above is that there appears to be mechanical application of the criteria set out in DSM-IV. This is precisely what the introduction to the DSM-IV text cautions against. Under the paragraph heading Use of Clinical Judgement, the introduction states:
It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgement and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgement may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.
I have no reason to doubt that the above caution applies equally to medically qualified practitioners.
There is another aspect of the application of the criteria in DSM-IV which appears to be largely ignored in veterans' cases. It arises out of the fact that PTSD is classified as a mental disorder. Under the paragraph headed Criteria for Clinical Significance, DSM-IV states:
The definition of mental disorder in the introduction to DSM-IV requires that there be clinically significant impairment or distress. To highlight the importance of considering this issue, the criteria sets for most disorders include a clinical significance criterion (usually worded "… causes clinically significant distress or impairment in social, occupational, or other important areas of functioning"). This criterion helps establish the threshold for the diagnosis of a disorder in those situations in which the symptomatic presentation by itself (particularly in its milder forms) is not inherently pathological and may be encountered in individuals for whom a diagnosis of "mental disorder" would be inappropriate. Assessing whether this criterion is met, especially in terms of role function, is an inherently difficult clinical judgement. Reliance on information from family members and other third parties (in addition to the individual) regarding the individual's performance is often necessary.
The problem is that rarely have I been provided with a report from a psychiatrist where the psychiatrist has obtained information from family members or other third parties. In those circumstances, the psychiatrist has, in my respectful opinion, insufficient information to make an accurate clinical assessment of the veteran's mental state and in particular, whether he or she suffers from a mental disorder.
Dr Albert L Kaplan, a psychiatrist, examined Mr O'Dowd on 4 July 2011. He provided a report dated 11 July 2011 which was admitted into evidence. According to Dr Kaplan, Mr O'Dowd's wife joined him after he provided his history and then she provided additional information. Mr O'Dowd requested she not be present while he related his service history because he had never spoken to her about his wartime experiences and felt intensely uncomfortable about doing so. Dr Kaplan also indicated he had before him a psychiatric report by Dr C Seabridge dated 22 January 2010 and a workability report by Dr J Farrow dated 27 November 2009.
Dr Kaplan said Mr O'Dowd described number of stressful experiences to which he was exposed during his service in Vietnam. In fact, there were two such events. Mr O'Dowd apparently told Dr Kaplan that one of his tasks was to use computers to allow the ship’s artillery to lock onto targets onshore. American spotter pilots would contact the ship concerned, providing target coordinates. Mr O'Dowd was responsible for setting the guns to target the position described by the coordinates provided by the spotter pilot. Mr O'Dowd told Dr Kaplan that after one such bombardment, the spotter pilot made no further contact. Mr O'Dowd assumed spotter pilot had been killed in the bombardment and that the Gunnery officer on board the vessel, HMAS Brisbane, told him that the pilot had probably been shot down and had deliberately sought fire on his location. Dr Kaplan said:
Mr O'Dowd stated that this incident brought home to him that his actions were designed to kill human beings and that he might have been responsible for killing the spotter pilot and other individuals. He found this thought deeply troubling and disturbing.
The second incident described by Dr Kaplan was an occasion while Mr O'Dowd was on recreation leave at Subic Bay, which is in the Philippines, where he and a number of other servicemen visited the hospital at the naval air station. Apparently Mr O'Dowd told Dr Kaplan that the servicemen were taken to the men's ward and then visited the children's ward. He said he was disturbed by the silence in the children’s ward and he found this haunting. He told Dr Kaplan that he approached a young girl, who was in a wheelchair as she had both legs amputated below the knees. Her legs were wrapped in bandages. He described Mr O'Dowd's response in the following way:
He stated that he experienced a sense of helplessness and horror. He commented, "I put two and two together and realised that this is the sort of carnage we’re doing there… some bloody awful things." He stated that many of the children were seriously wounded and he commented, "I think the children were the biggest upset on me."
Apparently Mr O'Dowd told Dr Kaplan that his feelings of guilt were compounded when, after the spotter pilot incident, his comrades jokingly referred to him as "killer". Although he knew that term was being used in a jocular manner, it heightened his distress.
Dr Kaplan made no mention of a third incident to which Mr O'Dowd referred in the course of hearing this matter. This incident occurred on 16 June 1969 when HMAS Brisbane was involved in the bombardment of a troop concentration in Quang Tri province in Vietnam. The subsequent damage assessment report indicated 11 enemy personnel killed and later reports indicated that as a result of enemy troops retreating, some 56 died when they fled into minefields. This information apparently only came to light following research provided by Writeway Research Service Pty Ltd (Commodore PM Mulcare RAN Rtd) on 22 September 2011. Logically, it cannot have formed the basis upon which Dr Kaplan diagnosed PTSD. In fact, in the course of his cross-examination, when this information was put to Dr Kaplan he responded by saying that if it had only been discovered recently it may relate to distress he experienced now, but it was not the cause of his PTSD.
Dr Kaplan also recorded that prior to the events stated by Mr O'Dowd, war had been an abstract experience. After the incidents he began drinking heavily, drinking to inebriation. He could not tolerate crowds stating that he had been a happy-go-lucky individual but he had changed completely. He described himself as very short-tempered. He said prior to the incidents he was a sound sleeper and subsequently he suffered from insomnia. He would wake at night feeling hot and sweaty and would be woken by nightmares about the girl with the amputated legs.
Mr O'Dowd told Dr Kaplan that he was discharged from the Navy in March 1975 and he was then employed by IBM Computing as a computer engineer, remaining with that company for some 10 years. He then worked with another IT company for 7 years. He was then employed by Fujitsu for a further 4 years and then with a company described as EMC for some 10 to 12 years. Finally, he was employed by Netapp for 4 or 5 years. Given that Mr O'Dowd was born on 26 April 1947, this history indicates that he finally ceased work when he was aged between 65 – 66 years. In later evidence given at the hearing, it was said that Mr O'Dowd ceased working in 2009 and subsequently continued on a part-time basis until 2011. That evidence would put his age when he finally ceased work to be 64 years. Mr O'Dowd explained that he ceased his last form of employment some six weeks prior to the examination conducted by Dr Kaplan. Mr O'Dowd apparently said he had been experiencing increasing difficulty coping with crowds while commuting by train and would leave for work early to try and avoid the crowds. His employers were supportive and suggested he reduce his hours, and for some six months, he worked three days rather than a five-day week but, still unable to cope, he finally resigned. There was no evidence from Mr O'Dowd's last employer regarding his reasons for reducing his working hours and finally resigning. Nor did I have any evidence from any previous employers of Mr O'Dowd.
Dr Kaplan recorded that Mr O'Dowd experienced vivid nightmares occasionally, and during these nightmares "I feel like I put myself in that position again. I hear the commands". He also had nightmares about the visit to the military hospital.
Mr O'Dowd also stated he was prone to anxiety. He said he felt anxious in crowded places and felt intensely anxious if he needed to go to an unfamiliar place. He also felt intensely anxious if he found himself caught in a queue and experienced an urge to flee. He said, on occasions, he had abandoned groceries in a supermarket and fled. He said he felt less anxious if accompanied by his wife. He also said he was easily startled and on a high state of alert when in crowded places. He said: "all me [sic] senses are hyperactive. Once I get out into the street, I'm okay". He apparently said that on occasions when he went to restaurants, he ensured he was sitting next to the wall at the back of the restaurant. He said in those situations, his heart would race, his palms would perspire and he experienced a desire to escape. He said he did not have these experiences prior to his Vietnam experience and he was quite a relaxed sort of person.
Mr O'Dowd also described himself as tending to be irritable and short-tempered. He said he had a tendency to yell at his wife and children and felt guilty about that behaviour. He said that his social life was now "non-existent".
According to Dr Kaplan, Mrs O'Dowd stated that her husband seemed to change after the Vietnam experience and he became anxious and short-tempered. She said he was drinking too much and that became a big problem. There were times when he didn't come home and when she didn't know where he was. She said he disliked having visitors at home and became agitated in crowded places. She said he would not line up for anything. Prior to his Vietnam service he would enjoy going for long drives but since then tended to become agitated, impatient and anxious in traffic. When in heavy traffic, he felt trapped and became panicky.
Mr O'Dowd also said that he played golf and enjoyed going to AFL football matches, being able to cope there because he was out in the open. At age 50 he took up a long-held ambition to train as a pilot and apparently told Dr Kaplan he flies light aircraft once a month. He also began attending a gymnasium and found the exercise was helpful particularly regarding his bronchitis.
As far as his alcohol consumption is concerned, apparently Mr O'Dowd said that over the years he had a pattern of consuming between 10 and 15 glasses of beer two or three times a week after work with workmates. At times he would go alone to a hotel and continue to drink. He would also become inebriated at times. He said he found it relaxed him. He said he tried unsuccessfully to reduce his alcohol consumption but was unable to do so until he commenced counselling. He then ceased drinking beer although, in the past two years, he has restricted his alcohol consumption to drinking a glass of wine with dinner seven nights a week.
In his written report, Dr Kaplan said: Mr O'Dowd describes a number of symptoms which would probably qualify for a diagnosis of post-traumatic stress disorder. The bases for his conclusion may be summarised as follows:
(a)intrusive thoughts and re-experiencing of his traumatic events and distressing nightmares;
(b)attempts to avoid thoughts and memories of the traumatic events;
(c)avoidance of social activities and irritability; and
(d)hyper-vigilance and an exaggerated startle response.
Dr Kaplan also said that the traumatic events experienced by Mr O'Dowd resulted in him feeling horror when he believed he had been responsible for the death of a spotter pilot and the recognition that he had probably been responsible for the deaths of other individuals. He was of the opinion Mr O'Dowd was traumatised by the sight of the children severely injured and maimed as a result of the bombing of the orphanage. He had engaged in alcohol abuse which was related to his PTSD. His psychiatric condition has had a damaging impact on his relationship with his wife.
Dr Kaplan also opined that Mr O’Dowd’s PTSD fitted the acceptable factors in the SoP, No. 5 of 2008 concerning PTSD. With respect to Dr Kaplan, he appears to have misunderstood his role in this process. That is not an opinion for a psychiatrist providing his or her view about the mental condition of a person who has been examined. It is a question for the Tribunal to answer after consideration of all of the evidence. In any event, the factors in the SoP referred to by Dr Kaplan need to be examined in light of Federal Court decisions dealing with the way in which those factors should be applied in the context of the VE Act. It is not a medical question and it does not, in any event, go to the question of diagnosis. Furthermore, the factors referred to in the SoP do not necessarily equate with the diagnostic criteria set out in DSM-IV.
In his written report, Dr Kaplan then went methodically through the DSM-IV criteria, Criterion A – Criterion F, describing which of those were fulfilled.
(a)Criterion A1 – is where a 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. Dr Kaplan found this to have been satisfied because Mr O'Dowd was confronted with the belief that he had been responsible for the death of the spotter pilot. He said it also triggered the recognition that he had probably been responsible for other deaths. In addition, he experienced a sense of horror when he witnessed the injuries which had been sustained by the children in the bombing of an orphanage.
The problem I have with Dr Kaplan's analysis of this diagnostic criterion is that DSM-IV, in its introductory paragraph dealing with diagnostic features, describes the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threatened death or injury experienced by a family member or other close associate.
In my opinion, neither of the two events described by Mr O'Dowd to Dr Kaplan can be correctly described as an extreme traumatic stressor. Assuming that the story regarding the downed spotter pilot was correct, Mr O'Dowd did not witness that event nor did he experience it. He heard about it sometime after the event was said to have occurred. Although he claimed that he recognised the spotter pilot's voice because he had spoken with him on a number of occasions, there is no suggestion that he was a close associate.
Similarly, the visit to the Subic Bay Hospital was described by Dr Kaplan as another distressing and disturbing experience. Although Dr Kaplan referred to the children having sustained injuries as a result of bombing of an orphanage, he did not set out in his history of stress during naval service that the children's orphanage had been bombed resulting in the injuries Mr O'Dowd said he saw at the hospital. Nor did Mr O'Dowd give evidence of the bombing in the course of the hearing. Reference to the bombing of the orphanage appears to have been adopted from a report prepared by Dr Seabridge.
In his written report, Dr Seabridge, a psychiatrist who interviewed Mr O'Dowd on 20 January 2010 (sic) [2009], described Mr O'Dowd's visit to see the injured children and that he approached the young girl who had lost both legs and the stumps were wrapped in bloody bandages. When asked about this in cross-examination, Mr O'Dowd said that was incorrect and that there was no sign of blood on the bandages. Dr Seabridge described Mr O'Dowd's response as being totally overwhelmed, dissociating and unable to move for some time. There is also an apparent discrepancy in Dr Seabridge's report where he reported Mr O'Dowd and a small group of fellow sailors from the Brisbane went ashore in Vietnam to visit children in hospital and took to them books and toys. That statement was subsequently corrected by Mr O'Dowd and Vietnam deleted and Subic Bay inserted. However, a further statement made by Dr Seabridge where he said Mr O'Dowd was distressed by re-experiencing the traumatic memories of his exposure to the injured children in hospital in Saigon was not corrected. Dr Kaplan's report states he had a copy of the report prepared by Dr Seabridge at the time of preparing his report. However, he made no reference to these discrepancies.
Furthermore, this criterion refers to witnessing an event that involves death, injury or threat to the physical integrity of another person. While I accept that the diagnostic criterion itself refers to or was confronted with an event… while the introductory paragraph to that mental illness does not, and that the Federal Court has taken an expansive view when interpreting the meaning of being confronted with (see Woodward and Another v Repatriation Commission (2003) 131 FCR 473), we are not concerned at this point with the way in which the legislation and in particular the SoP should be interpreted. The question which confronted Dr Kaplan was simply a medical one, that is, the correct diagnosis of Mr O'Dowd's mental condition.
(b)Criterion A2 – as the introductory paragraph to PTSD states, the person's response to the event must involve intense fear, helplessness, or horror. Regarding the spotter pilot incident, Dr Kaplan recorded that Mr O'Dowd found the thought of having been responsible for killing the spotter pilot and other individuals deeply troubling and disturbing. He also said that Mr O'Dowd's feelings of guilt were compounded after the spotter pilot incident when his comrades jokingly referred to him as killer. Whatever the words which were actually used by Mr O'Dowd, what is recorded by Dr Kaplan as his response to that incident does not appear to satisfy the nature of the response which must be present were PTSD to be diagnosed.
As for the incident at the Subic Bay Hospital, Dr Kaplan reported that Mr O'Dowd experienced a sense of helplessness and horror. While those words are clearly found in criterion A2, it is unclear to me just how these words describe what Mr O'Dowd in fact experienced at that time. Because the children had already received medical attention, they were no longer in need of assistance or help from Mr O Dowd. My concern here is that the word has been used simply to satisfy the criterion rather than to describe the feelings Mr O'Dowd may have had at that time. Likewise, the word horror usually conveys a painful compound emotion of loathing and fear. If that is in fact what Mr O'Dowd experienced, it seems to be an inappropriate reaction in those circumstances.
(c)Criterion B – refers to the persistent re-experiencing of the traumatic event. Dr Kaplan found that Mr O'Dowd had experienced intrusive thoughts and had re-experienced his traumatic events in distressing nightmares. According to Dr Kaplan, Mr O'Dowd said that his distressing experiences during his Vietnam service remained a preoccupation. He said Mr O'Dowd described occasional intrusive thoughts about his wartime experiences. In time, they gradually subsided. Over the past 10 years or so, his memory of those events returned. He said Mr O'Dowd experienced vivid nightmares occasionally.
Despite that, Dr Kaplan only referred to the general nature of those nightmares (I feel like I put myself in that position again. I hear the commands.); and indicated that Mr O'Dowd had nightmares about the visit to the military hospital. It is not clear from these descriptions that Mr O'Dowd in fact re-experienced the traumatic events to which he referred. In fact, in cross-examination Mr O'Dowd was asked about his nightmares. He responded by saying that he would see himself at the gun plot and then the damage he was causing with people running and screaming. He said he thought he could suppress those but it became harder as he got older. He made no mention at all of experiencing nightmares of the girl he described at Subic Bay Hospital with amputated legs.
Nevertheless, Dr Kaplan in his written report said Mr O'Dowd would wake at night feeling hot and sweaty and would be woken by nightmares about the girl with the amputated legs. He also reported that Mr O'Dowd told him he had nightmares about the visit to the military hospital. When Dr Kaplan was asked in cross-examination whether this caused him any concern, he responded by saying it did not although he may have been wrong about that. Regardless, the evidence does not disclose a persistent re-experiencing of the traumatic events.
Dr Seabridge appears to have been given a different account of the concerns Mr O'Dowd expressed about his Vietnam experiences. He described Mr O'Dowd's response to seeing the children in the hospital as being totally overwhelmed, dissociating and unable to move for some time. He also said he was further distressed by the warm response to his attention. He said his distress was further heightened by being told that the children had been evacuated from the North (North Vietnam), where they had been in an orphanage, almost certainly struck by Allied bombing. None of this information is reported by Dr Kaplan except for the fact that the children were from an orphanage.
Although Dr Seabridge referred to Mr O'Dowd being distressed by re-experiencing the traumatic memories of his exposure to the injured children in the hospital, he made no mention of nightmares about that event. In fact, Dr Seabridge said Mr O'Dowd had an unusual sleeping pattern which had been in existence since childhood. He said he slept for only four or five hours per night. He then said: Associated with this he has never been aware of dreaming, so there is no evidence of trauma memories intruding into his sleep. Dr Kaplan did not refer to this statement even though it is plainly inconsistent with what he was told by Mr O'Dowd.
(d)Criterion C – is described in the introductory paragraph to this mental disorder as a persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. Dr Kaplan said in his written statement that this criterion was fulfilled because Mr O'Dowd tried to avoid thoughts and conversation about his traumatic experiences and that he experienced a feeling of detachment and estrangement from others. He also avoided people who aroused recollections of his traumatic experiences. Despite this, Dr Kaplan reported that Mr O'Dowd took up flying in a light aircraft at the age of 50. This is clearly inconsistent with his claimed intrusive and upsetting thoughts about the killing of the spotter pilot. The aircraft used by spotter pilots (Forward Air Controllers) were light aircraft built by Cessna and generally referred to as Bird Dog (O-1) and the 0-2A.
In her evidence in chief, Mrs O'Dowd was asked about her husband's alcohol habits after he had completed his military service. She responded by saying that on Remembrance Day, he would become depressed and watched war movies. In cross-examination, Mrs O'Dowd was asked about her husband's continuing interest in military matters and she said he continued to have an interest and when they went somewhere, he would check to see if there was a military museum at the place. She said he had to check it out and described it as his obsession. Mrs O'Dowd did not convey this evidence to Dr Kaplan. Dr Seabridge reported that Mr O'Dowd avoided situations and prompts which reminded him of his navy service and the traumatic situation. He had never marched on Anzac Day and rarely watched it. This is clearly inconsistent with Mrs O'Dowd's evidence.
(e)Criterion D – persistent symptoms of increased arousal. Dr Kaplan reported that Mr O'Dowd experienced increased arousal in the form of hypervigilance, irritability, sleep disturbance and exaggerated startle response. Mr O'Dowd told Dr Kaplan that he felt intensely anxious if he found himself caught in a queue and experienced the urge to flee. He described that he was easily startled and in a high state of alert when he was in crowded places. Apparently he said: I'm looking around and everyone – I'm expecting something to happen – I don't know what. He described all his senses as being hyperactive. He said it was okay once he was out on the street. He also described sometimes going to a restaurant where he ensured that he was sitting next to a wall at the back of the restaurant. He described his feelings at that time and that he experienced a desire to escape.
While the symptoms described by Mr O'Dowd seem to fit Criterion D, I have some concern regarding the fact that no explanation was given about their relationship to the events he described while on operational service. The range of symptoms described by this criterion is stated to be symptoms that simply may exist which were not present before the trauma.
Despite that, a reading of the introductory paragraph dealing with this criterion suggests that the symptoms described should have some relationship to the traumatic event or events. In fact, that is readily apparent in many of the other diagnostic criteria where there is a reference to the traumatic event. For example, it is stated that: These symptoms may include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived…. While it seems logical that a person suffering from PTSD as a result of being shot at or being involved in some other form of actual or threatened death or serious injury in the course of operational service might experience hypervigilance, where this has not occurred, as in Mr O'Dowd's case, one might logically query the cause of such symptoms. The same might be said of an exaggerated startle response. There was no explanation from Dr Kaplan regarding the connection between the traumatic events which Mr O'Dowd disclosed to him and the persistent symptoms of increased arousal he said he experienced. The same of course can also be said about irritability or outbursts of anger, although I accept these may have a broader application.
(f)Criterion E – the duration of this condition is in excess of one month. Mr O'Dowd's symptoms as stated to Dr Kaplan appear to fit this criterion.
(g)Criterion F – Mr Dowd's condition has caused clinically significant distress and has impaired his social and occupational functioning as well as his relationships within his family. According to Dr Kaplan, Mr O'Dowd told him that he had a tendency to yell at his wife and children and felt guilty about that behaviour. He also apparently told Dr Kaplan that his social life had been non-existent. He said if there were social invitations, he would find an excuse not to go because of a fear of people he didn’t know and particularly crowds. He apparently said that prior to his navy service he led an active social life and had a large circle of friends. Furthermore, Dr Kaplan reported Mr O’Dowd saying his wife encouraged him to commence counselling and that they were on the borderline of breaking up. Mrs O'Dowd was upset with his short temper and his alcohol consumption.
According to Dr Kaplan, the fact that Mr O'Dowd told him that he played golf and enjoyed going to AFL football matches was not in some way contrary to his fear of crowds because he was out in the open. While there is some logic to that regarding golf, although it is normally a game played with a group of friends, the explanation applied to football matches does appear unrealistic. Anyone who has observed or attended an AFL football match would know that there are queues, frequently long, and once inside the ground, one is amongst a very large crowd of people.
There is further important information contained in the report prepared by Dr J Farrow regarding Mr O'Dowd’s skin problems (later diagnosed as rosacea) and in particular his assessment regarding Mr O'Dowd's disfigurement and social impairment. According to the Australasian College of Dermatologists, rosacea is a common skin disorder that causes red patches, "pimples", bumps and "burst" capillaries on the face. Eventually, the redness of the face becomes constant, only changing in intensity. The areas most likely to be affected are over the nose and cheeks, but it can affect the whole face, ears and neck.
In answer to the first question on this report, which asks whether any condition caused him embarrassment in public places, Dr Farrow mentioned his skin problem. Although his handwriting is very difficult to read, the answer appears as: feels stands out and embarrassed by it during flares. In answer to the question which asks what his emotional reaction to those changes of appearance, behaviour or body movements are, Dr Farrow said:… embarrassed, forces self to attend work, though feels conspicuous when present (works in a face to face role). In answer to the question which asks whether the resulting embarrassment caused him to avoid ordinary public places all or some of the time, Dr Farrow said: avoids all optional social activities when flared up. Dr Kaplan did not refer to Dr Farrow's report even though he indicated it was provided to him for the purposes of providing his report. Quite clearly, it provides another explanation entirely for why Mr O'Dowd has claimed he avoids social occasions and crowds. It also provides another explanation for why Mr O'Dowd ceased working.
It is clear from the evidence that Mr O'Dowd had a very successful career in the Navy and that he was also very successful in his working life after he left the Navy. He achieved the rank of Petty Officer in February 1970 and Chief Petty Officer in 1973. His evidence was that he was the youngest Chief Petty Officer in the Navy at that time. He applied for and was granted the opportunity to complete his SGCE (Services General Certificate of Education) in 1970 for the reason that he was keen to become a commissioned officer in the Navy. In 1973, he was considered for the officer’s course receiving a favourable report on interview. However, after experiencing some personal family problems which related to the extensive times he had spent at sea, he finally sought discharge in March 1975. In his opening address, Mr G Chancellor, who appeared on behalf of Mr O'Dowd, said that he was earning up to $160,000 per annum in the course of his work as a computer engineer. In her evidence, Mrs O'Dowd also said that he had a very successful career both in the Navy and subsequently.
In his evidence in chief Mr O'Dowd said he stopped working full time in September 2009 because he could not cope with travelling to work by train in crowded carriages. He said he was offered work for a couple of days per week, about 24 hours per week. He said he had problems in meetings because of his concentration. He finally stopped working altogether in mid-2011.
In the course of his evidence, Mr O'Dowd did not say anything at all about the problems he expressed to Dr Farrow regarding the social impact of his rosacea. Nor did he mention this to any of the psychiatrists who have examined him. This is despite the fact that the social impact recorded by Dr Farrow accords with Mr O'Dowd's own evidence about having problems meeting with people face to face and being in crowded places. It also quite likely provides an explanation for his reluctance to stand in a queue in places like the supermarket.
Dr Gregory White, psychiatrist, provided a report dated 11 November 2011 followed by a supplementary report dated 5 April 2012. Both reports were admitted into evidence. With respect to Dr White, both of his reports are unhelpful. In his first report, Dr White recorded numerous extracts of what was told to him by Mr O'Dowd when he examined him on 3 November 2011. They are not in complete sentences but simply comprise numerous phrases. Without knowing the context in which those phrases were expressed by Mr O'Dowd, that material is of limited assistance.
As best I could make out from those extracts, Mr O'Dowd told Dr White about the spotter pilot incident and said that his sleeping pattern had changed, experiencing nightmares in which he visualised what the pilot went through. It seems the nightmares occurred every 10 days or so. There was no reference to Dr Seabridge's report or the fact that he had seen that report or the questionnaire completed by Dr Farrow dealing with social impairment. I can find no reference in Dr White's first report to the visit to the Subic Bay Hospital incident. Mr O'Dowd said that his nightmares or visualisation of what the pilot went through decreased when he came home from Vietnam and gradually started to disappear. However, he was drinking heavily which he said he started doing while in Vietnam. He apparently referred to becoming depressed and having flashbacks about the spotter pilot event.
Dr White said that on specific questioning, Mr O'Dowd described persistent traumatic memories of the traumatic event as well as other events in Vietnam. Dr White does not say what those other events were. Mr O'Dowd apparently told Dr White that he avoided conversations about Vietnam where possible and people or places that reminded him of his experiences there. He told Dr White that the only time he achieved peace was when he was flying. Dr White said Mr O'Dowd enjoyed flying since obtaining his pilot's licence. He recorded Mr O'Dowd saying he became frustrated from playing golf and he did so only occasionally. He indicated he was now abstaining from alcohol and he also described his occupational history after his Navy service.
After stating some fundamental findings on what Dr White described as a mental state examination, which included such things as Mr O'Dowd being 170 cm in height and medium build, with grey hair and beard; being kempt and alert; co-operative and pleasant; tense but no more than one would expect from such an interview; affect slightly restricted but euthymic and reactive; a forthcoming historian; PTSD themes; well oriented; no disturbance of concentration and memory during interview and no major disturbance of general judgement, insight or motivation apparent during the interview: he simply concluded that Mr O'Dowd developed PTSD after a traumatic experience while serving in Vietnam. Rather unhelpfully, Dr White provided no reasons for coming to his conclusions. Dr White did however note that until his assessment of Mr O'Dowd, he had not considered whether there might be any important correlation between his recent interest in flying and psychiatric condition and its causation. He apparently explored this with Mr O'Dowd who then acknowledged it was probably prudent for this to be explored further and him not to fly until this exploration had occurred.
Following Dr White's initial report, Mr Rudge provided to Dr White some additional material regarding Mr O'Dowd's drinking history; the fact that the spotter incident was not referred to at the VRB hearing because Dr Seabridge was of the view that his PTSD was related to the Subic Bay Hospital event; his rapid advancement through the ranks and desire to become a commissioned officer; and his family problems which began to surface in November 1973 because of his long period away from home. Dr White simply reported that the additional information did not significantly alter his opinion. He said:
Given the previous diagnosis of Post Dramatic Stress Disorder by another psychiatrist, and the clear description Mr O'Dowd gave of the "spotter" incident in Vietnam with associated Post Traumatic Stress Disorder symptoms, I did not feel it was appropriate to trawl through all of his traumatic experiences in Vietnam in detail. That kind of examination is often re-traumatising.
It is with considerable caution that I have arrived at the conclusion, on the balance of probabilities, that Mr O'Dowd does not have PTSD. I have very carefully examined the reasoning, where it is apparent, of the psychiatrists who have examined Mr O'Dowd and concluded that he has PTSD. The reasoning of Dr Kaplan is probably the most significant of the three psychiatrists and it appears to me that he has conflated the DSM-IV diagnostic criteria with the factors set out in the SoP dealing with PTSD. The purpose of examining the factors set out in the SoP is to establish whether the hypothesis raised by veteran is a reasonable one as was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98. Their purpose is not to establish a diagnosis. The process of reasoning to establish a causal connection between a veteran's operational service and a medical condition which it is claimed the veteran has proceeds after a diagnosis is established.
While I have no doubt that what might be described as an extreme traumatic event to one person may be something quite different to another, given the descriptive examples of what constitutes an extreme traumatic stressor in DSM-IV, the two events described to Dr Kaplan do not, objectively, fit the description. Furthermore, although on some occasions, Mr O'Dowd's description of his response to those events included the words used in DSM-IV, Dr Kaplan recorded his reaction to the spotter pilot incident as being deeply troubling and disturbing with possibly some guilt. In my opinion, that response is consistent with the described event. To say that it involved intense fear, helplessness or horror appears to be idiosyncratic and disconnected from the event Mr O'Dowd described. As for viewing the children at the Subic Bay Hospital, the description given by Mr O'Dowd to Dr Kaplan that he experienced horror would suggest an inappropriate response. On the other hand, Dr Seabridge described his response as overwhelmed, dissociating and unable to move. While I accept that this response appears to be consistent with the event described by Mr O'Dowd, it is also inconsistent with his evidence at the hearing that upon seeing the state of the children, he and his fellow sailors went to the PX and purchased books to bring back to read to the children. That response is also indicative that Mr O'Dowd did not feel helpless because his actions clearly indicate he thought he could help. His responses to seeing the children do not appear to satisfy Criterion A2 of DSM-IV.
Mr O'Dowd’s evidence about experiencing nightmares has also been contradictory. Dr Seabridge recorded him as saying he had never been aware of dreaming and there was no evidence of trauma memories intruding into his sleep. However, subsequently, Mr O'Dowd gave evidence of nightmares. His description of the nightmares about the spotter incident was not specific about his claimed shooting down of the spotter pilot. He simply referred to commands being issued when he was present in the gun plot. His description of the nightmares regarding the visit to the hospital was also relatively general, simply referring to the girl with the amputated legs.
Although Mr O'Dowd described avoidance of stimuli associated with the events upon which he relied for this application, the evidence also disclosed the contrary. He took up flying, which he said gave him pleasure, in a light aircraft. This is despite his claimed intrusive and upsetting thoughts about the killing of the spotter pilot, who operated from such an aircraft. Also, Mrs O'Dowd gave evidence of her husband watching war movies on Remembrance Day. She also said he had a keen interest in matters military describing that interest as an obsession. This was at odds with what Dr Seabridge reported stating that Mr O'Dowd avoided situations and prompts which reminded him of his navy service. When these anomalies were put to Dr White in the course of his evidence in chief, he said he had not known about them. He then suggested that thinking about these events in a controlled way can be described as avoidance behaviour, although I must confess, I fail to understand that. He did nevertheless agree that Mr O'Dowd told him he avoided places which reminded him of those events and he found that contradictory. Dr White was also asked about the fact that Mr O'Dowd applied for a commission indicating he intended to stay on in the Navy some years after his Vietnam experience and he agreed that this was not a typical case although he added that Mr O'Dowd may have had lots of coping mechanisms and did not wish to disclose that anything was wrong.
I have already indicated above that the behaviour described by Mr O'Dowd which Dr Kaplan reported as hypervigilance, seems disconnected from the two traumatic events he relied on.
Perhaps the most important criterion in this matter is F as it goes to the very heart of whether Mr O'Dowd has a mental disorder. As I have already pointed out, Mr O'Dowd told Dr Farrow about the effect his rosacea had on his social functioning and his occupational functioning. Not one of the psychiatrists who examined him referred to this. In addition to that, Mr Dowd told Dr Kaplan that he played golf and enjoyed going to AFL football matches. While the explanation given by Dr Kaplan was that these events took place in open areas, I cannot accept that explanation regarding AFL football matches. Crowds and long queues are typical at these events.
Given the inconsistencies in Mr O'Dowd's account regarding the symptoms he has experienced since his Vietnam service; his apparently idiosyncratic response to the traumatic events; and the fact that there was no clinically significant distress evident in his occupational functioning coupled with the fact that his claimed avoidance of crowds and face-to-face contact with persons can be put down to his rosacea, lead me to find, on the balance of probabilities, Mr O'Dowd does not have PTSD.
DIAGNOSIS OF AGORAPHOBIA
In his written report Dr Kaplan also diagnosed Mr O'Dowd as suffering from agoraphobia without history of panic disorder. He said Mr O'Dowd did not suffer from full-blown panic attacks; however he experienced intense anxiety and panic-like symptoms when exposed to places or situations from which escape may be difficult, such as queues and heavy traffic. He also experienced the symptoms when in crowded places, travelling on trains or when he needed to venture to unfamiliar places. Dr Kaplan said this condition was probably triggered by the traumatic events Mr O'Dowd experienced during his Vietnam service and persisted since. He said the condition has probably intensified in recent years and led to his decision to resign from his last job.
The difficulty I have with this diagnosis is that most of the symptoms described by Mr O'Dowd can be explained by his rosacea. As I have already said, Dr Kaplan did not refer to Dr Farrow's report dealing with disfigurement and social impairment. It also appears to be inconsistent with Mr O'Dowd's fondness of attending AFL football matches and playing golf. On the balance of probabilities, I find that Mr O'Dowd does not have agoraphobia.
In the event that I am wrong about the diagnosis of PTSD, I have decided that I should assume that Mr O'Dowd has PTSD and proceed with an analysis of the connection with that condition and his operational service.
CONNECTION WITH OPERATIONAL SERVICE
As was explained in Deledio's case, the process involves four steps. They are:
(a)consider all the material and determine whether it points to a hypothesis connecting the disease with the circumstances of the particular service rendered;
(b)if the material raises a hypothesis, ascertain whether there is in force a SoP concerning the disease;
(c)if there is a SoP in force, form an opinion whether the hypothesis raised is a reasonable one by reference to the "template" found in the SoP; and
(d)proceed to consider under s 120(1) of the VE Act whether I am satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.
Hypothesis
Although Mr O'Dowd relied on three discrete events which he said were traumatic and which occurred in the course of his operational service, he only discovered the third of those events well after he was diagnosed with PTSD by the three psychiatrists who examined him. I have already referred to the spotter pilot incident and the Subic Bay hospital incident. The third incident occurred on 16 June 1969 when HMAS Brisbane was called on to provide fire support to US troops in an area immediately south of the Demilitarised Zone (DMZ). The HMAS Brisbane Report of Proceedings for June 1969, which was in evidence, records two series of firings, the first resulting in a gun damage assessment (GDA) of 2 enemy killed in action (KIA) and 1 wounded in action (WIA); and the second resulting in 11 KIA with a further 56 forced to evacuate the area which resulted in their deaths and 9 prisoners taken following the bombardment. Mr O'Dowd was one of the crew members engaged in the gun plot responsible for setting target coordinates into the computer and firing the guns.
I accept that the material before me points to a hypothesis connecting Mr O'Dowd's PTSD with his operational service.
SoP in force
The relevant SoP concerning PTSD is No. 5 of 2008 which came into effect on 9 January 2008. It was in force at the time Mr O'Dowd made his application for a disability pension.
Is the hypothesis reasonable
To be regarded as reasonable, the hypothesis must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the person's service. Mr O'Dowd relies on factors 6 (a) and (b) of the SoP which refer to experiencing a category 1A stressor and a category 1B stressor before the clinical onset of PTSD.
A category 1A stressor is defined in clause 9 in the following way:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;…
A category 1B stressor is defined in clause 9 in the following way:
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eye witness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance critically injured casualties;…
In my opinion, not one of the three events referred to by Mr O'Dowd fits the description of a category 1A stressor. Not one of those events involved Mr O'Dowd experiencing a life-threatening event, being subject to a physical attack or being threatened in any way at all. Although DSM-IV refers to the persons experiencing or being confronted with extreme traumatic events, the factors in clause 6 of the SoP and the definitions of stressors in clause 9 no longer refer to being confronted with such events. Therefore, being told about the death of the spotter pilot and the death of enemy combatants as result of bombardment does not fit the description of a category 1A stressor.
The material before me about the spotter pilot and the report dealing with casualties following the bombardment of enemy positions do not fit within the definition of a category 1B stressor. Mr O'Dowd was not an eyewitness to those events.
However, it could be said that his visit to the hospital involved viewing critically injured casualties. While it might be said that in the context of the events described under this category of stressor, what is being referred to is casualties prior to their treatment at a medical facility, the inclusion of (e) seems to suggest that the event in (b) is at a different point in time.
On the other hand, the evidence before me indicates that the children were bandaged, there were no signs of blood and there was no indication of their distress. It is therefore certainly arguable that this was not a severe traumatic event because, on one view, the material probably does not go so far as to identify critical injuries. The word critical is defined in Dorland's Illustrated Medical Dictionary, 27th Edition, as: pertaining to or the nature of a crisis; in danger of death…. Chambers 21st Century Dictionary defines critical as: 6 said of a patient: so ill or seriously injured as to be at risk of dying.Nevertheless, mindful of the beneficial nature of the legislation dealing with veterans' matters, I am prepared to accept that Mr O'Dowd's visit to Subic Bay hospital satisfies this factor. Therefore, Mr O'Dowd's hypothesis, linking his visit to the Subic Bay hospital where he saw injured children, with his operational service, is a reasonable hypothesis.
Was Mr O'Dowd's PTSD war-caused
It is important to bear in mind that a hypothesis is merely a proposition made as a basis for reasoning without the presumption of its truth. Nevertheless, a hypothesis must have a sound basis. As the High Court of Australia (Mason CJ, Deane and McHugh JJ) said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 412: there is no presumption that the injury, disease or death of the veteran was war-caused: s. 120(5). The Court pointed out that the purpose of s 120(3) is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant hypothesis.
After determining whether a hypothesis raised by a veteran is reasonable, the claim must then be dealt with in accordance with s 120(1) of the VE Act. It is only then that I should embark upon a fact-finding exercise. As the High Court said in Bushell at 416:
The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination… Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120 (1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist (16).
This final step in the process of analysis was also dealt with by the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564, where the plurality said, at 570:
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved (10), either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis (11).
In his written statement which was admitted into evidence, Mr O'Dowd said that the ship's company had a period of approximately 8 days of leave during that tour when the ship was in Subic Bay in the Philippines. There is objective evidence in the form of the Report of Proceedings from HMAS Brisbane which discloses that the ship was in Subic Bay between 1 – 8 April 1969; 20 – 25 May 1969; 9 – 14 August 1969; and forecast to be in Subic Bay between 16 – 30 September 1969.
In his written statement Mr O'Dowd said that while at Subic Bay, he volunteered to visit the US naval hospital. When asked in his examination in chief why he volunteered, Mr O'Dowd simply answered that it was a good experience for him. In his cross-examination he was asked whether the visit had anything to do with the welfare committee and he said it did and that about three sailors went to the hospital. In his written statement, he said that before going to the hospital, he had been told that men had arrived at the hospital the previous day, having been medically evacuated.
Mr O'Dowd said that he visited both the men's ward and the children's ward. He said the injuries he observed were consistent with enemy confrontation and included amputations. He described how the children's ward was quiet while the ward in which the men were housed was noisier and included groaning from men in pain. In his written statement Mr O'Dowd said that the purpose of the visit was to take books and other gifts to the children whose orphanage had been bombed. In his examination in chief, he said the children were between 5 – 8 years of age and that a girl had her legs amputated. Mr O'Dowd said that he left quickly to go to the PX to get books to read to the children, going back to the hospital and staying for one and a half hours or maybe longer.
In cross-examination, Mr O'Dowd was directed to his written statement where he said that the purpose of the visit was take books and other gifts to the children. It was pointed out to him that this statement was inconsistent with the evidence he had given in chief, having left the children's ward and going to the PX to buy books for the children to read. Mr O'Dowd's explanation was that he did not read his statement. Mr O'Dowd was also directed to what he apparently told Dr Seabridge about the visit to the hospital where he said that a small group of fellow sailors from the Brisbane went ashore to visit children in hospital and take them books and toys.
In his evidence in chief Mr O'Dowd was asked whether he discussed this incident with other sailors. His response was that he went back to the ship and drank to excess. However, he also said that a Mr Barry Millar, whom he described as his boss, had previously told him about a visit to a hospital ship which was berthed at Subic Bay. He said that at the time of returning from the hospital he had an argument with Mr Millar about Australia's involvement in the Vietnam War.
Mr Millar provided a statement made on 22 September 2011 which was admitted into evidence. He served on HMAS Brisbane in 1969 as a Systems Artificer Weapons second Class, which he described as a Petty Officer equivalent. He said he was in charge of gunfire system maintenance and that he was also one of two gun plot officers in charge of watches in the gun plot when the ship was on the gun line.
Mr Millar said that shortly after HMAS Brisbane arrived in Subic Bay in April 1969 he was invited to visit the hospital ship USS Repose by a USN friend whom he met in Boston in 1967. Their respective wives were friends from their school days. Mr Millar's American friend was a medical administrator on the hospital ship and he gave him a tour of the ship's medical facilities. He said that during the tour they briefly entered a ward where there were about 10 very young Vietnamese children, at least one of them an infant. They were bandaged over specific parts of their bodies including heads and some of them were standing up in cots. Mr Millar said this was unexpected and his impression was that they had been injured in the fighting which had taken place in Vietnam. He also said he was sure that he would have spoken about it when he returned to HMAS Brisbane.
Mr Millar also said he did not recall hearing of a group of sailors from HMAS Brisbane, presumably from the Welfare Committee, going to the USN hospital at Subic Bay to take books and other gifts to wounded Vietnamese children. He said he believed he would have heard about it, particularly if one of the gun plot watchkeepers/gun fire control system maintainers had been involved. In his examination in chief Mr Millar was asked whether the Welfare Committee might have arranged the visit to the Subic Bay hospital and he answered: not likely. In cross-examination he was asked if he recalled Mr O'Dowd speaking to him about the hospital visit and he said he could not recall such a conversation although he certainly saw collateral damage at the hospital ship in the course of his visit there.
It should be evident from the summary I have provided above that there are considerable difficulties in accepting Mr O'Dowd's account of the visit to the Subic Bay hospital. The first and most obvious of these is that Mr O'Dowd said he had been told that men had arrived in the hospital on the previous day. He did not mention any children. Nevertheless, he claimed that the purpose of the visit was to take books and toys to the children. This account was given in his written statement of evidence and was apparently also made to Dr Seabridge who recorded it in his report. Furthermore, the transcript of the evidence he gave before the VRB also discloses a different account of this visit. When asked who initiated the visit, he said: my petty officer had come and asked me. He was obviously asked by the senior officers on board, that they wanted each department of the ship represented, and he asked me if I would volunteer. Mr O'Dowd also said that the Petty Officer accompanied the sailors on the visit. In that account, he described about eight people going to the hospital. The Petty Officer Mr O'Dowd referred to in that evidence is most likely Mr Millar who had no recollection of any such visit despite his clear recollection of the visit to the hospital ship. Mr O'Dowd also said that he stayed at the hospital for at least an hour, maybe longer and there is no mention at all in that description of leaving the hospital to go and purchase books and returning.
Despite that, his account altered in the course of his evidence in chief when he said that it was only after seeing the children in the hospital that he left the hospital to go to the PX and then returned with books. This was despite the fact that he described himself as being horrified at the sight of the children when he first saw them. Mr O'Dowd's explanation for failing to correct what he said in his written witness statement is simply unbelievable. I have no doubt that he read that statement before he signed it. Furthermore, before his witness statement was admitted into evidence, he said, on oath, that the statement was true and correct.
There is also the strange correction made by Mr O'Dowd to Dr Seabridge's report where it is reported that the sailors went ashore in Vietnam to visit the hospital. While the word Vietnam has been crossed out and Subic Bay inserted, on the following page, the reference to the traumatic memories of exposure to injured children in a hospital in Saigon has not been altered. If Dr Seabridge only recorded the hospital visit as occurring in Vietnam without the subsequent reference to Saigon, that could easily be accounted for as an error on Dr Seabridge's behalf. However the subsequent reference to Saigon strongly suggests that was the account given to Dr Seabridge by Mr O'Dowd.
Mr Millar also said that the visit to the hospital was unlikely to have been sanctioned by the Welfare Committee. There is no mention in the Report of Proceedings for April 1969 of the Welfare Committee having arranged such a visit. Of course it is possible that it was simply overlooked, but there are many things are set out in the Report of Proceedings which have much less significance. Such as, for example, the arrival of a large quantity of eagerly awaited mail and parcels; the parcels containing books, tinned foods, sweets, toothbrushes and other items having been donated by the Patriotic Fund of Queensland and the Apex Club of North Albury.
In fact, the description given by Mr O'Dowd resembles what Mr Millar said he saw on the hospital ship. Furthermore, Mr Millar said that when he returned to HMAS Brisbane, he talked about his visit. It appears to me, for whatever reason, Mr O'Dowd has come to believe that he was involved in a visit resembling that of Mr Millar. I cannot accept his evidence on this event. I find, beyond reasonable doubt, that the event described by Mr O'Dowd regarding the visit to Subic Bay hospital did not occur. It follows that this claimed event could not be the cause of PTSD, assuming Mr O'Dowd has that mental disorder.
CONCLUSION
Mr O'Dowd claimed a disability pension, one of the grounds for which was the fact that he had PTSD arising out of operational service in Vietnam. Despite there being three psychiatrists who have diagnosed Mr O'Dowd with PTSD, it is with great caution that I have concluded that he does not have that mental disorder. In fact, I have found that Mr O'Dowd does not suffer from any mental disorder principally because the evidence does not disclose he suffers significant distress or impairment in social, occupational or other important areas of functioning as a consequence of PTSD. Furthermore, the evidence of symptoms described by Mr O'Dowd which it was claimed satisfied the diagnostic criteria in DSM-IV was at best equivocal and, on many occasions, contradictory.
Assuming I am incorrect about the diagnosis of a mental disorder, I have nevertheless examined Mr O'Dowd's claim regarding PTSD in order to determine whether there exists a causal connection between his operational service and that disorder. I have found that there is no causal connection because I cannot accept the raised facts due to the unreliability of the evidence which Mr O'Dowd claimed to support them. I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis linking Mr O'Dowd's claimed PTSD with his operational service has been disproved.
Insofar as Mr O'Dowd's claim regarding PTSD is concerned, I have found that the decision of the VRB made on 18 February 2011 was correct. I affirm that decision.
I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior Member...[sgd].....................................................................
Associate
Dated 13 November 2012
Dates of hearing 29-30 August 2012 Counsel for the Applicant Mr G Chancellor Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs
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