Parsons and Repatriation Commission
[2005] AATA 1094
•4 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1094
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/965
VETERANS' APPEALS DIVISION )
Re LESLIE PARSONS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date4 November 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...........[Sgd].............
RG Kenny
Member
CATCHWORDS
VETERANS’ APPEALS – disability pension – operational service with Australian Army – diagnosis of generalised anxiety disorder and alcohol dependence – application of Statements of Principles – no reasonable hypothesis of relevant relationship to service for alcohol dependence or generalised anxiety disorder – decision affirmed.
Veterans’ Entitlements Act 1986 s 6C, 7, 9, 14, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Woodward v Repatriation Commission (2003) 37 AAR 424
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] 39 AAR 67
Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Stoddart [2003] 38 AAR 176REASONS FOR DECISION
4 November 2005 Mr RG Kenny, Member Background
1. Leslie Parsons (the applicant) served in the Australian Army from 20 March 1967 until 19 March 1970 and this included a period in South Vietnam. He now contends that he suffers from psychiatric problems which are related to events that occurred during that time. On 20 November 2002, he lodged a claim, in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), for acceptance by the Repatriation Commission (the respondent) of “generalised anxiety disorder” and “alcohol dependence” as being the relevant psychiatric conditions from which he suffers. On 1 August 2003, the respondent determined that Mr Parsons suffered from each of these conditions but determined that they were not related to his service. That decision was affirmed by the Veterans’ Review Board on 8 April 2004 and, on 21 December 2004, Mr Parsons sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Parsons attended the hearing and was represented by Mr CR Smith of Counsel. The respondent was represented by Mr J Kelly.
Mr Parson’s Service
3. When aged 21 years, Mr Parsons enlisted in the infantry and underwent basic infantry training. He served with an infantry regiment in Brisbane before he volunteered to join the catering corps. He then undertook a basic cook’s course in Sydney from January 1968 after which he served for three months in Townsville. Before going to South Vietnam, he completed a jungle training course at Canungra. In South Vietnam, he served as a cook with 17 Construction Squadron and was based at Vung Tau and at Nui Dat on various occasions.
4. It is common ground that Mr Parsons served with the Australian Army, as noted above, and that this included a period of eligible war service in the form of operational service, as provided for in sections 7 and 6C, respectively, of the Act, from 10 February 1969 until 11 February 1970.
Relationship of Conditions to Service
5. Paragraph 9(1)(b) of the Act provides that a condition will be taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or if it arose out of, or was attributable to, any eligible war service rendered by him. This is subject to certain exceptions including that provided for in subsection 9(3) of the Act which precludes a relationship to service if the claimed condition resulted from the veteran's serious default or wilful act or if it arose from a serious breach of discipline committed by the veteran or an occurrence that happened while the veteran was committing a serious breach of discipline.
6. The standard of proof applicable to the determination is set out in subsection 120(1) which reads:
“(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.”
7. The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA).
Relevant Conditions
8. The standard of proof for determining diagnostic matters is provided for in subsection 120(4) of the Act. This sets the standard of proof at reasonable satisfaction which imports the civil standard of proof so that such matters be determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
9. It is not disputed that Mr Parsons suffers from alcohol dependence. However, Mr Kelly submitted that there was material before the Tribunal which indicated that he did not suffer from generalised anxiety disorder.
10. The psychiatric evidence in this matter comprised reports from consultant psychiatrist, Dr William Kingswell, and from Mr Parsons’ treating psychiatrist, Dr Ashim Majumdar. Dr Majumdar did not give evidence at the hearing but provided reports dated 12 November 2002 and 8 January 2003. Dr Majumdar also completed various parts of Mr Parsons’ initial claim form. Dr Kingswell provided a report, dated 10 May 2005, and also gave oral evidence.
11. Dr Kingswell diagnosed alcohol dependence but said that he was not able to enter a diagnosis of generalised anxiety disorder. Mr Parsons was intoxicated on the one occasion that he saw him and Dr Kingswell said that it was not possible, in that situation, to make an assessment of symptoms for generalised anxiety disorder. Dr Kingswell conceded that Dr Majumdar may well have been in a position to make such a diagnosis because of the different circumstances in which he observed Mr Parsons. Dr Majumdar has been treating Mr Parsons since August 2002 and was able to make the diagnosis of generalised anxiety disorder. In his later report, he said that he was able to do this on the basis of the anxiety disorder scale, from his physical examination of Mr Parsons, from the clinical history provided to him by Mr Parsons and from the collateral history provided by Mr Parsons’ advocate.
12. In Woodward v Repatriation Commission (2003) 37 AAR 424, the Federal Court (at 433), confirmed that the question of whether a person suffers from a particular condition is not affected by a Statement of Principles even where it contains a definition of the condition. On that basis, the matter of whether Mr Parsons suffers from generalised anxiety is to be assessed on the available medical evidence. Having regard to the report of Dr Majumdar and the concession by Dr Kingswell concerning diagnosis, I am reasonably satisfied that Mr Parsons suffers from generalised anxiety disorder. Both Dr Kingswell and Dr Majumdar were of the opinion that he suffers from alcohol dependence and I am also reasonably satisfied that this condition is present in Mr Parsons. Accordingly, a decision as to the relationship to Mr Parson’s service must be made in respect of both generalised anxiety disorder and alcohol dependence.
Principles of Causation: The Deledio Steps
13. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, set out a four step procedure for determining issues of causation in relation to operational service. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. Mr Smith contended that there were six separate events which occurred during Mr Harper’s service and that each of them was responsible for the development of anxiety disorder and of alcohol dependence. Alternatively, he submitted that each event was responsible for the development of either one of those conditions and that, once that psychiatric condition had developed, it led to the development of the other condition. The events relied on were:
(i)being involving in the stoppage of a convoy travelling between Vung Tau and Nui Dat;
(ii)observing injured personnel and a mine-damaged bulldozer;
(iii)observing casualties at Nui Dat Hospital;
(iv)the ordering of a “stand to” at Nui Dat in the middle of the night;
(v)being in the presence of and witnessing the opening of unmarked coffins on a C130 Hercules flight from Vietnam to Australia; and
(vi)carrying out an assault on a kitchen hand at Nui Dat.
I accept that each of the contentions of Mr Smith constitutes an hypothesis of a relationship to service for both generalised anxiety disorder and alcohol dependence.
14. The second of the four Deledio steps requires identification of the relevant Statements of Principles as published by the RMA. For generalised anxiety disorder, this is Instrument No 1 of 2000. For alcohol dependence, it is Instrument No 76 of 1998.
15. The third Deledio step requires a consideration of whether any of the advanced hypotheses is reasonable. This requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. For generalised anxiety disorder, in so far as relevant, these read:
“(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder;
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
16. For alcohol dependence, in so far as relevant, they read:
“(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
17. If any of the hypotheses for either of the conditions under consideration is reasonable, in the sense described in the third Deledio step, it will then be necessary to consider the fourth of those steps. This will require a finding that the claimed condition is war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
Mr Parson’s Evidence
Convoy Incident
18. In Vietnam, Mr Parsons worked on a kitchen duty roster. During his non- rostered periods, he would sometimes travel as an armed escort in the front of an army Landrover with a convoy on the Nui Dat - Vung Tau road. On one such occasion, his vehicle was towards the rear of a convoy of over 20 vehicles travelling from Vung Tau to Nui Dat when the convoy stopped and an order was given that they “jump out” of their vehicles and get off the road. Mr Parsons did this and, for about ten minutes, crouched with other soldiers on the side of the road below an embankment. He was not told of the reason for the stoppage. He neither heard nor saw any enemy activity which might have been responsible and did not subsequently learn the reason for the stop. He said that he was scared at the time for what might happen although there was nothing to indicate that there was any danger.
Bulldozer Incident
19. As part of his duties, Mr Parsons was involved in ferrying “hot box” lunches to various field units. On one such occasion and prior to his arrival, the field unit had experienced an incident when a bulldozer, in clearing operations, detonated a mine. This had caused some injuries to personnel and damage to the bulldozer. Mr Parsons saw some of the injured soldiers who had previously been the subject of medical treatment in the form of bandages to their arms. Other more seriously injured soldiers had already been evacuated. He had believed that it was a safe area and was shocked to find that such an event occurred there. He stayed with the unit for about one and a half hours and said that he had been concerned that there might still be mines in the area. He said that he had also been concerned that he might have arrived an hour earlier and been present when the mine had exploded.
Casualties at Nui Dat Hospital
20. The helicopter pad used to ferry injured personnel to Nui Dat Hospital was not visible from the kitchen where Mr Parsons carried out his duties. However, he would see the helicopters coming in from time to time. On one occasion when he was not on duty, he went for a walk and ended up at the helipad near the hospital. He said that this only occurred on one occasion and that he saw two soldiers being unloaded. One was on a stretcher and covered with a blanket with no visible injuries. The other soldier was bandaged around the head and had an arm in a sling. He was being assisted into the hospital. Mr Parsons said that it reminded him of what might happen in Vietnam and brought back feelings of guilt that he was no longer in the infantry but was serving as a cook. The incident caused him to ponder about what might have happened had he remained in the infantry. It also made him realise that Vietnam was not a place where one could relax because anything could happen at any time.
“Stand to” at Nui Dat
21. At Nui Dat, a “stand to” was ordered about midnight on an evening when Mr Parsons was asleep in his hut with other soldiers. On hearing the alarm, he and the others advanced to their designated foxholes with their weapons and waited. There was no enemy activity. They remained there for about 30 minutes when the “stand down” was ordered and, thereafter, they went back to their hut. He said it was very dark and none of them knew what had happened although someone had called out that there had been a rocket attack on a hill in the camp. He said that he felt “bewilderment” and “amazement” because they were not informed of what was happening.
Coffins on the Hercules Flight
22. In December 1969, Mr Parsons was granted special leave to return to Australia to get married. He travelled by C130 Hercules transport plane rather than by a charter flight which was the normal method of travel for returning troops. The aircraft left from Vung Tau and flew to Butterworth where it stayed overnight. It then flew to Darwin and on to Sydney. There were two other passengers on the plane with Mr Parsons as far as Butterworth but, thereafter, he was the only passenger. In the first leg of the journey, Mr Parsons became aware of four metal boxes at the rear of the plane. He thought they were tool boxes. He discovered, on arrival at Butterworth, that they were coffins containing the remains of Australian soldiers. As they had been unaware of this, he and the other passengers had used the coffins as seating.
23. Mr Parsons said that when he realised what the boxes were it had “shaken him up” and he said that he was “disgusted” that he had not been told about this. He said that he had feelings of guilt because he had undertaken work as a cook rather than as an infantryman and he said that he also felt scared because, at his age, he had not seen dead bodies or coffins previously. He said that he also felt angry because he was filled with feelings that were associated with rejection by Australian civilians of the work that was being done by Australian soldiers in Vietnam. Mr Parsons also said that this incident had caused him to develop a fear of flying.
Kitchen Hand Assault
24. Local Vietnamese people were employed to assist Australian staff with non-cooking duties in the kitchen at Nui Dat. They would undertake tasks such as cleaning and preparing vegetables. Mr Parsons said they were sometimes friendly but that, at times, they would be a nuisance because they would be requesting that he and other Australians purchase things for them from the PX store or change local money into other currency. He said that this had occurred with a particular female kitchen hand in a manner which annoyed him. He said that she had also been boasting about the fact that some of her relatives were Viet Cong and that he disliked her. On one occasion, he was cleaning his rifle when she was talking to him and waving a knife which she used in relation to her kitchen duties. He said that he had been in an argument with her the night before and he told her that she should go away. He said that he was rather stressed at the time and placed the barrel of his rifle under her chin. He said that she went away and that, subsequently, he noted that his rifle had been loaded. He said that, as a result, he was fearful that he might have killed her and he never carried a loaded gun in the kitchen after that. He also said that he can no longer, since that time, tolerate working with females. Mr Parsons did not report the incident and, in a version of events put before the Veterans’ Review Board, it was noted that the reason for this was a “fear of retribution”.
Alcohol Consumption
25. Mr Parsons said that, prior to his enlistment in the army, he consumed alcohol on rare occasions only and said that this might be once per month at a social event. He said that this continued in his early army days and that, even when in Townsville, he did not consume much alcohol. He said that, whilst he was doing the cooks’ training course in Sydney, he had met the woman that he subsequently married and, at that time, was endeavouring to save his money.
26. Mr Parsons said that, on arrival in South Vietnam, he was consuming approximately one can of beer per day but that this gradually increased to three or four per day in part because of loneliness, boredom and the general atmosphere of being in Vietnam. However, he also said that, as the various incidents described above occurred to him, he noted that his alcohol consumption was further increasing until, by the end of his tour of duty, he was drinking the equivalent of three large bottles of beer and various amounts of wine and spirits per day. He said that this continued into his post-service life and that he continues to consume alcohol at those levels.
Writeway Research Service
27. Hugh Conant, from Writeway Research Service, was engaged by the respondent to prepare a report on the various contentions raised by Mr Parsons. Mr Conant served in the Australian Army for many years and retired in 1987 with the rank of Lieutenant Colonel. In his investigations, he consulted the Vietnam data base, which covers the period of activities in that country from May 1966 to October 1971, as well as the relevant unit logs. He made reference to each of the incidents on which Mr Smith’s hypotheses were based.
28. In relation to the convoy incident, Mr Conant said it was not uncommon for attacks on convoys to occur but he said that there was no evidence of any on the day in October 1969 nominated on behalf Mr Parsons. With the bulldozer incident, Mr Conant said that his research indicated that bulldozing operations had regularly triggered enemy mines of various types. However, he said that it would have been unusual for a person working in the squadron kitchen at Nui Dat to have been involved in the delivery of “hot box meals” to squadron elements working in the field. Mr Conant confirmed that the helicopter landing pad at Nui Dat hospital would not have been visible from the kitchen area for 17 Construction Squadron where Mr Parsons worked. He also said that the Nui Dat hospital was not equipped for the conduct of anything but minor surgery. Mr Conant said that his investigations revealed no ground attack on the Nui Dat base during the period when Mr Parsons was there although he acknowledged that there had been several mortar or rocket attacks at the base during that time.
29. Mr Conant confirmed the presence of coffins on Mr Parsons’ Hercules flight. However, he said that the description by Mr Parsons of the way in which the coffins were dealt with was not consistent with what his investigations had revealed. He said that, since 1966, it had been the practice for RAAF crew to ensure that coffins were treated with dignity and no-one would have been permitted to sit on them. He also said that the coffins of deceased soldiers were hermetically sealed and filled with nitrogen for the entire journey to Australia. He said that his researches did not identify any occasions where returning bodies were placed in caskets filled with ice which would need to be drained and repacked en route to Australia.
30. Mr Conant also said that his investigations had not revealed any incident of the kind described by Mr Parsons in relation to his assault on the female Viet Cong worker. He said that it was not unusual for some tension to arise in the workplace but he said that the threatening of the woman with a weapon, whether or not it was loaded, would have been such a serious matter that it was hard to believe that it would not be reported.
Medical Evidence
31. Dr Majumdar, in his report of 3 January 2003, described Mr Parsons’ accounts of the events that occurred to him in Vietnam. In relation to the convoy incident, Dr Majumdar was advised that the convoy had been “attacked”. Mr Parsons had described his arrival at the bulldozer site after it had been damaged by the enemy mine with a few soldiers being injured and also helicopters bringing wounded soldiers into the Nui Dat hospital. In relation to the attack on Nui Dat Base, Dr Majumdar noted that Mr Parsons ran to his designated weapon pit and “stayed there until the attack stopped” and that he was unable to return fire as there was too much chance of hitting one of his own group. Dr Majumdar noted reference to sitting on the coffins in the Hercules and to the need for them to be unloaded, drained and repacked with ice. Mr Parsons had also advised him that the draining and repacking procedure was repeated each time the aircraft landed to refuel. In relation to the female worker, he said that Mr Parsons described placing a rifle under her chin and threatening to “blow her away” before he realised that the gun was loaded.
32. Dr Kingswell also went through the various incidents with Mr Parsons. He did so by reading through the reasons published by the Veterans’ Review Board. In relation to the Nui Dat Hospital, Mr Parsons said that he would avoid boredom by assisting with the casualties and was noted to have said:
“At the time you don’t think anything of it. Later you think about possibilities. If I’d stayed on in infantry it could have been me.”
33. With the attack on Nui Dat Base, Mr Parsons told Dr Kingswell that a mortar had hit the hill in the middle of the camp and some 200 metres from his hut. He told Dr Kingswell that, in the confusion, he had fallen into the weapons pit and that it was a frightening experience. In relation to the coffins, he told Dr Kingswell he had felt guilty because he was flying home with four dead soldiers who were not going to see anyone again and because he had taken the “easy way out” by becoming a cook rather than remaining in the infantry.
Submissions
34. Mr Smith submitted that the material raises a reasonable hypothesis of a relationship between both anxiety disorder and alcohol dependence with the events that occurred to Mr Parsons on service. Alternatively, he submitted that either of them was directly related through the relevant factors and that the other condition had developed shortly thereafter as a consequence of the earlier psychiatric condition. He referred to the evidence of Dr Majumdar as indicating that there was a longstanding history of both symptoms of anxiety disorder and alcohol dependence and he submitted that they were both war-caused.
35. Mr Kelly submitted that none of the events were, in an objective sense, sufficient to constitute a factor in either of the Statements of Principles and that, in any event, there had not been a sufficient subjective response by Mr Parsons to any of those events to satisfy the terms of the Statements of Principles. He submitted that there was no reasonable hypothesis of a relevant relationship between either of the conditions and service.
Reasonableness of Hypotheses
36. In this, the third step of the Deledio process, it is not the task of the Tribunal to make findings of fact and, for the purposes of considering the reasonableness of the hypotheses, I accept the evidence, as outlined above, given by Mr Parsons at the hearing.
Generalised Anxiety Disorder (severe psychosocial stressor)
37. In an analysis of the experiencing of a severe psychosocial stressor for the purposes of generalised anxiety disorder, an objective and subjective component must be pointed to by the evidence. There must be an occurrence of a kind which, objectively, is capable of evoking feelings of substantial distress in a person exposed to that occurrence. Additionally, the occurrence must, subjectively, have evoked such feelings in the person: see White v Repatriation Commission [2004] 39 AAR 67 at 73.
38. It was submitted by Mr Kelly that the nature of a psychosocial stressor was one that had a psychosocial element described. To that end, he referred to the decision of the Tribunal in Stonehouse and Repatriation Commission [2004] AATA 707. As I read that decision, a distinction was drawn between events which cause fear and which may qualify as a severe stressor and events which have a psychosocial dimension and which do not necessarily cause fear. Examples given in Instrument No 1 of 2000 are a major illness or injury, experiencing a loss such as divorce, separation or employment or experiencing major financial or legal problems.
39. In relation to the convoy incident, the material before me refers to no apparent reason for the stoppage of the convoy. There is no material to suggest that there was any occurrence or event which, judged objectively, would amount to a severe psychosocial stressor as defined in the Statement of Principles. Also, the material does not point to any feelings of substantial distress in Mr Parson’s case. Rather, it points to a situation which involved the automatic implementation of routine training skills by leaving the vehicle and taking cover by the side of the road for a short period.
40. A similar analysis applies to the circumstances of Mr Parsons’ arrival at the scene of the mined bulldozer and men with minor injuries. The position may have been different had the detonation of the mine occurred in Mr Parsons’ presence but the material does not point, in any objective sense, to an occurrence which would evoke feelings of substantial distress. His description of his feeling at the time was of concern that there may well be other mines in the area and does not point to substantial distress subjectively experienced. Again, no reasonable hypothesis of a relationship between anxiety disorder and this incident is raised on the material before me.
41. Mr Parsons’ observation at Nui Dat hospital was of two soldiers being escorted from a helicopter in circumstances where no wounds were visible and where he took an opportunity to speak to one of the soldiers. While this may have been, objectively, capable of evoking feelings of substantial distress, his reaction was not one which pointed to his so experiencing that emotion. Rather, he described an introspective reaction of feeling a sense of guilt that he was a cook rather than an infantry soldier. He also told Dr Kingswell that he “didn’t think anything of it” at the time.
42. In respect of the “stand to” on the Nui Dat Base, the material described by Mr Parsons was of his sense of confusion as to what was happening. He was in a military zone with some prospect of an enemy attack always present. However, he was unaware of any enemy activity and did not know whether or not an actual attack had occurred. Being “stood to” in the middle of the night in the absence of some intimation of enemy activity does not, by itself in an objective sense, point to a situation which would evoke substantial distress. Also, there is no material which points to a substantial distress reaction. He described the passage of time during the thirty minutes or so before the “stand down” was ordered as one of relative calm before they returned to their respective huts.
43. Merely being made aware that the boxes seen on the Hercules were coffins which contained human remains does not, objectively, point to an occurrence that would evoke feelings of substantial distress. Neither does the material before me, in relation to that revelation, point to a reaction comprising such feelings. Again, he described feelings of guilt and, indeed, anger but nothing to point to substantial distress being experienced by him.
44. None of the matters detailed above meet the template of the relevant factor in the Statement of Principles for generalised anxiety disorder and no reasonable hypothesis of a relationship between that condition and Mr Parsons’ service is raised by any of those incidents.
45. The situation is different, however, on the evidence of Mr Parsons concerning the manner in which he described the mode of dealing with the coffins on the Hercules to keep their contents refrigerated. Witnessing the procedures he described involving the draining and repacking of the coffins with ice could, objectively, result in substantial distress to a person and evoke associated feelings in the person. In that sense, the material does fit the template of the Statement of Principles for anxiety disorder and, accordingly, the matter must be considered under the fourth of the Delideo steps.
46. The assault by Mr Parsons on the Vietnamese kitchen hand points to the prospect of substantial distress being experienced by the victim of the assault. Indeed, subsequently becoming aware that the rifle was loaded may, objectively, point to such a prospect in the perpetrator of that conduct. Mr Parsons was fearful of what might have happened to the kitchen hand and, in that sense, it points to a meeting of the requirements of the template for a severe psychosocial stressor for the purposes of generalised anxiety disorder. Therefore, this matter must also be considered under the fourth of the Delideo steps.
Generalised Anxiety Disorder (relating to another psychiatric condition)
47. In order for an hypothesis to be reasonable on this basis, the alternative psychiatric condition, in this case, alcohol dependence, must be war-caused. This is dealt with below.
Alcohol Dependence (severe stressor)
48. The analysis involving the experiencing a severe stressor for the purposes of the Statement of Principles for alcohol dependence also requires reference to both objective and subjective considerations. In Repatriation Commission v Stoddart [2003] 38 AAR 176 (at 183), the Full Federal Court adopted the following statement from Woodward v Repatriation Commission (above):
“The definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partially subjective connotation.”
49. It is not a requirement that there be an actual threat: see Stoddart at 183 and Woodward at 448-9. However, in addition to the threat or perception thereof, the definition of experiencing a severe stressor requires the threat to have been one which might evoke intense fear, helplessness or horror.
50. The material relating to the convoy incident and the “stand to” at Nui Dat does not point to an actual threat of death or injury or to a person’s physical integrity. However, it does point to the prospect of a reasonable person perceiving that such a threat existed on those occasions. The bulldozer incident may have answered that description if Mr Parsons had been present at the time of detonation. Though there is no evidence of the nature of the injuries suffered by the wounded soldiers observed by Mr Parsons at the Nui Dat hospital, it may well be the case that there was some threat of serious injury pointed to by that evidence. The material relating to Mr Parsons’ association with the coffins in the Hercules points to a confrontation with death and the material concerning the kitchen hand similarly points to the prospect of death or serious injury. However, the reactions described by Mr Parsons to these incidents do not point to material in which the scenarios might give rise to feelings of intense fear, helplessness or horror. Rather, he described feelings of uncertainty, bewilderment, amazement and a sense of guilt at not being an infantryman. For that reason, the events described do not fit the template of the Statement of Principles. It follows that no reasonable hypothesis of a relationship between alcohol dependence and Mr Parsons’ service is raised by any of these events and these matters require no further consideration.
51. The situation is different with the raised material concerning the manner of dealing with the coffins. As with generalised anxiety disorder, the material does fit the template of the Statement of Principles and, accordingly, the matter must be considered under the fourth of the Deledio steps.
Alcohol Dependence (relating to another psychiatric condition)
52. In order for an hypothesis to be reasonable on this basis, the alternative psychiatric condition, in this case, generalised anxiety disorder, must be war-caused. This is dealt with below.
Deledio Step Four: are the conditions War-Caused?
53. For generalised anxiety disorder and alcohol dependence, reasonable hypotheses of a relevant relationship have been raised per medium of Mr Parsons’ evidence of his observation of the manner in which the coffins on the Hercules were dealt with when the aircraft landed for refuelling. For generalised anxiety disorder, such an hypothesis has also been raised per medium of the incident involving the kitchen hand. The conditions will be war-caused unless I am satisfied beyond reasonable doubt that the relationship is not established by the evidence and provided no other factor in the Act defeats such a finding.
54. Mr Parsons’ accounts of the various incidents that occurred to him have not always been given consistently and this casts doubt upon his veracity. In his evidence, Mr Parsons said that the convoy incident occurred “a few months” after his arrival in South Vietnam which was in February 1969. In material prepared for proceedings before the Veterans’ Review Board, it was noted to have occurred in October 1969. In relation to soldiers at Nui Dat hospital, his evidence was that he saw two wounded soldiers. In his evidence to the Veterans’ Review Board, he said that he assisted, from the helicopter, a soldier who was having trouble walking and observed other stretcher cases being transported by field ambulance personnel. In describing the “stand to” at Nui Dat in his claim form, Mr Parsons said that “all hell broke loose as we were under enemy attack”. He wrote that he, from his weapons pit, was “unable to return fire without hitting one of our guys”. In his evidence, he said that there had been no attack and his reference to being unable to fire was what would have been the case if it had become necessary for him to do so. Clearly, this was not the description in the claim form or that recorded by Dr Majumdar in his report of 3 January 2003. There, it was noted that Mr Parsons “could not return fire as there was too much chance of hitting one of his own group”.
55. In particular, the inconsistencies in Mr Parsons’ evidence are revealed in his descriptions of the circumstances surrounding the coffins on the Hercules. In his evidence, he said that this incident had caused him to develop a fear of flying and he said that he no longer travels by aircraft. However, he also agreed that he was able to undertake the remainder of the flight back to Australia on the Hercules and the return journey to Vietnam as well as the final flight from Vietnam back to Australia. In his evidence, he said that the coffins were not opened but were to be taken off the plane for the purposes of having the bodies repacked in ice for the rest of the journey. In his claim form, he referred to the coffins being “opened, drained and replaced with ice”. He described the draining water as having blood in it. In his evidence to the Veterans’ Review Board, he said that one of the containers had been mishandled whilst it was being unloaded and had opened up thereby enabling him to observe the contents which appeared to be icy liquid which was red in colour. He said that he also observed liquid coming from the other containers. Not only are these accounts contradictory, they are contrary to the evidence of Mr Conant. His investigations revealed, not only that passengers would not have been permitted to sit on the coffins, but that they were hermetically sealed and filled with nitrogen for the entire journey to Australia. I accept his evidence on that matter and reject that of Mr Parsons. While I accept that Mr Parsons saw coffins on the aircraft, I am left with more than a reasonable doubt that the incident involving the opening of coffins occurred as he described it or in any way which would constitute a psychosocial stressor, in relation to generalised anxiety disorder, or a severe stressor, for alcohol dependence. This means that the conditions are not war-caused by that means in accordance with subsection 9(1) of the Act.
56. In relation to the assault on the kitchen hand, Mr Parsons said in his claim form: “I snapped and grabbed my rifle, pulled the magazine off and shoved the barrel under her chin”. In the submission to the Veterans’ Review Board, it was noted that another soldier was present at the time “in the camp kitchen”. In his evidence, Mr Parsons said the kitchen hand came “out” of the kitchen with a kitchen knife and that he was cleaning his rifle at the time. Again, there are inconsistencies here in Mr Parsons’ evidence in relation to where the incident occurred and also as to whether he was in possession of his rifle for the purposes of cleaning it or whether, after he “snapped”, he had to “grab” it before assaulting the female worker. I have noted the evidence of Mr Conant that it would be most unlikely that such an event would not be recorded. In the result, I am satisfied beyond reasonable doubt that the event did not occur in the manner described by Mr Parsons or with the subjective reactions he described. This means that generalised anxiety disorder is not war-caused by that means in accordance with subsection 9(1) of the Act.
57. Even if it were the case that subsection 9(1) were satisfied in relation to the incident involving the kitchen hand, that provision does not apply where subsection 9(3) of the Act, which is set out above, is met. At the time of his assault on the Vietnamese worker, it may be the case that Mr Parsons was feeling stressed by events or by the conduct of the kitchen-hand. However, it is also the case that his conduct was a wilful act on his part or, at the least, arose from a serious breach of discipline for him to take up a weapon against the unarmed kitchen-hand. In that situation, subsection 9(1) of the Act would have no application because of the limiting terms of subsection 9(3) of the Act.
58. In addition to recognizing that generalised anxiety disorder and alcohol dependence may be war-caused per medium of an incident as discussed above, the Statements of Principles also recognize that either of these conditions may be war-caused if it is related to another psychiatric condition. Mr Smith submitted that either condition claimed could be causally associated with service through the other. Of course, that is preconditioned on the triggering condition being service related under the Act and that is not the situation in Mr Parsons’ case.
Decision
59. The Tribunal affirms the decision under review.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: J Lauriston
. Administrative Assistant
Date/s of Hearing 12 October 2005
Date of Decision 4 November 2005
Counsel for the Applicant Mr CR Smith
Solicitor for the Applicant Smith and Associates
Fr the Respondent Mr J Kelly, Departmental Advocate
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