Patnaude and Repatriation Commission
[2008] AATA 255
•1 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0808
VETERANS' APPEALS DIVISION ) Re MICHAEL ROBERT PATNAUDE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date1 April 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – disability pension – operational service in Vietnam – severity of claim psychosocial stressors – diagnosis of claimed psychiatric disorder – alcohol dependence – credibility of the applicant – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth) s
Statements of Principles Instrument No 76 of 1998 Alcohol Dependence or Alcohol Abuse
Statements of Principles Instrument No 3 of 1999 Post‑Traumatic Stress Disorder
Statements of Principles Instrument No 54 of 1999 Post‑Traumatic Stress Disorder
Statements of Principles Instrument No 1 of 2000 Generalised Anxiety Disorder
Statements of Principles Instrument No 101 of 2007 Anxiety Disorder
Statements of Principles Instrument No 17 of 2007 Depressive DisorderStatements of Principles Instrument No 58 of 1998 Depressive Disorder
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Constable v Repatriation Commission [2005] FCA 928
Delahunty v Repatriation Commission (2004) FCA 309
Dickson v Repatriation Commission (1999) 29 AAR 235
Hardman v Repatriation Commission (2005) FCAFC 83 (13 May 2005)
Meehan v Repatriation Commission [2003] FCA 1371
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 200 ALR 332
White and Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
1 April 2008 Miss E.A. Shanahan, Member
1. Mr Patnaude lodged a claim for disability pension with the Repatriation Commission on 28 April 2006 on the basis that his alcoholism, depression and anxiety were war-caused conditions. This claim was rejected by a delegate of the Repatriation Commission on 3 May 2006, following which Mr Patnaude sought review by the Veterans' Review Board (VRB). On 16 February 2007 the VRB affirmed the primary decision. Mr Patnaude lodged an application for review of the VRB decision with the Administrative Appeals Tribunal on 16 March 2007.
2. Mr Patnaude was represented by Mr A Larkin of Counsel, instructed by Williams Winter, Solicitors and the Repatriation Commission by Mr G Purcell of Counsel, instructed by the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The parties tendered the following documents:
Applicant
Respondent
The Applicant's statement dated 9 March 2007 – Exhibit A1.
T‑documents – Exhibit R1
The report of Dr Nigel Strauss dated 15 August 2007 – Exhibit R2
The Transcript of the VRB Hearing dated 16 February 2007 – Exhibit R3
Report of Writeway Research Services dated 13 September 2007 – Exhibit R4
The applicant's service medical record – Exhibit R5
The Applicant's claim for disability pension dated – 12 February 1998 – Exhibit R6
Heidelberg Repatriation Hospital Clinical Notes (6 pages) – Exhibit R7
The Applicant's service records – Exhibit R8
Clinical notes of Dr A S Douglas (49 pages) – Exhibit R9
The Applicant's Navy psychological record – Exhibit R10
3. Mr Patnaude and Dr P Collier gave evidence before the Tribunal.
background to the application
4. Mr Patnaude enlisted in the Royal Australian Navy (the Navy) on 27 June 1970 at the age of 19. He enlisted for a period of 9 years. He was discharged on 11 July 1972 as below naval physical standards (BPNS); although discharge on the grounds of services no longer required (SNLR) had been approved on 11 May 1972. The change in the reason for discharge occurred after consultation with the naval psychiatrist (Ex R4). Mr Patnaude has on several occasions stated that he enlisted in order to avoid conscription into the Australian Army with the likelihood of being posted to Vietnam (see for example Ex A1, oral evidence at the hearing and Dr Strauss' report (Ex R2)). Mr Patnaude served as an able seaman after his recruit training and did not acquire any special skills until 18 October 1971 when he qualified in basic under-water control.
5. On 18 September 1970 Mr Patnaude was posted to HMAS Duchess (the Duchess) while still under training. The Duchess was deployed as an escort ship for the HMAS Sydney (the Sydney) in its Vietnam duties between 3 April 1971 and 8 April 1971 and again between 17 May 1971 and 1 June 1971. These periods amount to operational service by Mr Patnaude. The Duchess was actually in Vung Tau Harbour from 0635 to 1525 hours on 5 April 1971 (8 hours 50 minutes), from 0635 to 1700 or 1834 hours on 22 May 1971 (10 hours 25 minutes) and from 0730 to 1530 hours on 23 May 1971 (8 hours). The night of 22 May 1971 was spent outside the Vung Tau Harbour in the South China Sea. The Duchess and the Sydney only lay at anchor in Vung Tau Harbour during daylight hours. Sunset on 22 May 1971 was at 1930 hours (Ex R5).
6. Mr Patnaude has claimed he suffers from post‑traumatic stress disorder (PTSD), or in the alternative generalised anxiety disorder (GAD), major depressive disorder and alcohol dependence. These conditions are the basis of his claim for a disability pension; and perhaps at the intermediate or special rate although this was not raised at the hearing. The major psychosocial stressor described (as of 16 February 2007 Ex R3) by Mr Patnaude was related to sentry duty in Vung Tau Harbour where he said he was armed with a self-loading rifle (SLR) and was required to investigate flotsam close to and occasionally bumping against the hull of the Duchess. This he claimed involved shining a torch into the water to examine the flotsam. He had been told by another sailor that Vietcong divers in the harbour, endeavouring to place mines on the ships’ hulls, were known to carry spear guns and fire them at enemy ships’ crews. He believed that he was at risk of being killed by an enemy spear gun attack, particularly as he would be illuminated by the light of his torch. In his evidence before the Tribunal Mr Patnaude acknowledged that such an event never occurred.
7. On 14 January 1972 Mr Patnaude informed the Captain of the HMAS Parramatta (the Parramatta) to which he was then posted, that during his service on the Duchess he had frequently felt the desire to jump overboard. He subsequently told various psychiatrists that this desire arose in March 1971 before his operational service.
8. The Parramatta having been under refit for several months was due to return to sea on 18 January 1972. Psychiatric opinions were sought as a matter of urgency and Mr Patnaude did not return to sea. He was later diagnosed as suffering from a phobic anxiety state and possibly a pre‑existing schizophrenic condition. Mr Patnaude subsequently underwent extensive psychological testing which in summary showed:
1. Severe repression of aggressive impulses;
2. When under pressure he could distort reality to suit his inner demands;
3. Above average IQ for general services [Ex R5, p21]
9. The psychologist (Mr Van Daatselaar) reported that after much probing Mr Patnaude revealed that his brother had been very emotionally destructive, extremely aggressive and uncontrolled in his actions toward Mr Patnaude and used to bash him up without any reason or provocation. While the family lived in the United States of America he had once locked Mr Patnaude out in the freezing cold without any explanation (Ex R5, pp21–22). In his evidence before the Tribunal Mr Patnaude denied any conflict with his brother but confirmed that his brother had locked him out in the snow for two hours when they lived in Rhode Island. After an episode where Mr Patnaude stole a work boat, motored it to Rose Bay and dumped it at Rose Bay Yatch Club, hitchhiked to Perth and then when he ran out of money surrendered himself to the police and was returned to Sydney, he incurred 28 days incarceration at Holdsworthy. On 18 April 1972 Mr Van Daatselaar concluded that Mr Patnaude had duped him and Dr Rowe, the psychiatrist, and that the whole scenario had been contrived to achieve his discharge from the Navy. The psychologist concluded that Mr Patnaude was not much use to the Navy and we might as well get rid of him (Ex R10, p4).
10. Mr Patnaude's earlier claims had nominated the stressors experienced as general anxiety relating to being in a war zone; onshore fires viewed from three to four kilometres distance; the sound of jets taking off and helicopters in the air and the general public's response to Vietnam veterans after the war. It was not until 15 August 2007 that his sentry duties were raised as a stressor in the course of his assessment by Dr Strauss (Ex R2). This stressor was also mentioned to the VRB on 16 February 2007. Mr Patnaude also told Dr Strauss that he was required to throw hand grenades into the water. In his evidence before the Tribunal Mr Patnaude stated that he had never thrown a hand grenade into the water but having read the Writeway report (Ex R4), he was aware that that could be part of the duties required of sentry guards.
11. Mr Patnaude claims he commenced smoking and drinking alcohol after his first visit to Vietnam. These habits continued thereafter and his alcohol consumption increased steadily until he was drinking 24 cans of beer per day in 2005. The records from the Heidelberg Psychiatric Unit dated 1993 indicate Mr Patnaude's alcohol consumption at that time as three cans of beer daily and occasionally four cans per day (Ex R7).
12. Following his discharge from the Navy, Mr Patnaude worked at McEwans Hardware Stores for a period of six years as an assistant and at times the manager of a store. He then established his own cleaning business, working at night, and this business continued for some four years. He was unemployed from 1982 to 1985. During this time he regularly attended the Dandenong Psychiatric Centre where he was diagnosed as having a narcissistic personality disorder, a family history of psychopathology and a recurrent panic disorder with no symptoms of a major affective disorder. It was also suspected that he was addicted to benzodiazepine derivatives, in particular alprazolam. After three years of out-patient treatment he was referred back to his general practitioner for continuing management.
13. From 1986 to 1996 Mr Patnaude worked at ACI Fibreglass Makers, rising from a position as a labourer to a production supervisor on nightshift. He was asked to leave in 1996 because of his alcoholism. Thereafter, he worked from home, writing resumés for clients and ceased all work in 2002 (Ex R2).
14. Mr Patnaude was discharged from the Navy with a diagnosis of a phobic anxiety state. Between 1983 and 1986 he was treated at the Dandenong Psychiatric Centre and the diagnosis was as mentioned in paragraph 12. In 1993 the Heidelberg Repatriation Hospital's Psychiatric Outpatient Unit saw Mr Patnaude on several occasions and initially diagnosed a GAD with alcohol abuse. This diagnosis remained in force until Mr Patnaude's second admission to the Austin Health Service for detoxification in February 2007. At that time the diagnosis was revised to chronic PTSD, chronic depressive disorder and alcohol dependence.
15. In late 2005 and early 2006 Mr Patnaude had undergone a period of four week’s detoxification at the same unit with some success; although he rapidly reverted to his prior high alcohol intake. Mr Patnaude also attended the PTSD classes at Heidelberg.
16. Following his detoxification program between December 2005 and February 2006, Mr Patnaude was referred to Dr Paul Collier for ongoing psychiatric treatment. Dr Collier was of the opinion that Mr Patnaude did not suffer from GAD but in fact had chronic PTSD. The treatment was not changed given the clinical similarity of the two conditions.
17. In his evidence before the Tribunal Dr Collier agreed that the more likely diagnosis was GAD. This had been the diagnosis made by Dr Pomorin and Dr Strauss. There is no disagreement that Mr Patnaude suffers from alcohol dependence.
18. The respondent conceded that Mr Patnaude suffers from GAD, a depressive disorder and alcohol dependence but argued that none of these conditions were war‑caused. In contrast, the applicant's legal representatives argue that all of these conditions relate to Mr Patnaude's very limited operational service in Vietnam in 1971.
EVIDENCE BEFORE THE TRIBUNAL
Mr Patnaude
19. Mr Patnaude's evidence is summarised under Background. Mr Patnaude insisted that he recalled performing sentry duty at night and shining a torch into the water while in Vung Tau Harbour. He had very little memory of other events. He agreed he had never fired a shot or been shot at or lobbed a grenade into the water, despite the history he had given to Dr Strauss (Ex R2).
20. Mr Patnaude denied any convictions relating to his alcohol dependence telling the Tribunal he had been lucky. He explained his failure to tell the psychiatrists of the sentry duty stressor as being ‘in denial’.
21. Mr Patnaude agreed his estimate of the distance between the Duchess and the shore was inaccurate, given the anchorage site of these ships over many years. Mr Patnaude's claims that the ships were at all times on full alert were incorrect as he stated in his oral evidence they were at level two alert.
22. Dr Collier is Mr Patnaude's treating psychiatrist and has been so since February 2006. Mr Patnaude was referred to Dr Collier by Dr A.S. Douglas on the recommendation of the Veterans' Psychiatric Unit at Heidelberg Hospital, following Mr Patnaude's 25-day inpatient detoxification program. (19 December 2005 until 13 January 2006.)
23. Dr Collier provided a detailed report dated 17 July 2006. The Heidelberg Psychiatric Unit had made a diagnosis of GAD with panic disorder and agoraphobia.
24. Dr Collier diagnosed Mr Patnaude as having an obsessive compulsive personality and PTSD; although he noted that the intensity of the traumatic events described by Mr Patnaude was of a lesser level than those experienced by other PTSD sufferers he had treated. He believed Mr Patnaude met the diagnostic criteria (A) for PTSD. He also diagnosed alcohol dependence.
25. In his evidence before the Tribunal, Dr Collier confirmed that the traumatic events described by Mr Patnaude had been seeing four to five fires on land, hearing jet fighters taking off and landing, Chinook helicopters flying equipment from ship to shore and being aware that the Duchess's Bofors guns and machine guns were manned while in Vung Tau Harbour and the South China Sea.
26. Dr Collier told the Tribunal that there was a spectrum of anxiety disorders and, based on the 4th edition of the Diagnostic And Statistical Manual Of Mental Disorders (DSM – IV) criteria, Mr Patnaude could have either GAD or PTSD, depending on the severity of the stressors he had experienced. Whichever the diagnosis, Dr Collier placed the onset of the condition as being within weeks of Mr Patnaude's visit to Vung Tau Harbour in April of 1971. Dr Collier advised the Tribunal that he had worked at the Heidelberg Veterans' Psychiatric Unit for many years but was now in private practice.
27. Under cross‑examination, Mr Purcell informed Dr Collier that Mr Patnaude first experienced suicidal thoughts of jumping overboard in March 1971. Dr Collier considered such suicidal ideation as indicative of an affective psychiatric disorder existing prior to Mr Patnaude's operational service; and that the April 1971 experiences in Vietnam could have aggravated a pre‑existing disorder.
28. Dr Collier had not seen the Dandenong Psychiatric Centre data prior to making his report. He disagreed with the Centre's diagnosis of panic disorder but no affective psychiatric disorder. Dr Collier was unaware of the events of February 1972, as a result of which Mr Patnaude served a 28-day incarceration at Holsworthy. Dr Collier had no comment except to confirm that he had no prior knowledge of this.
29. The Tribunal asked Dr Collier if he was aware of the very short periods of time Mr Patnaude was in Vung Tau Harbour. Dr Collier said he was not. Mr Purcell pointed out that Dr Collier's evidence had related to Mr Patnaude's service off the coast of Vietnam and not specifically to the time spent in Vung Tau Harbour.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Medical Evidence
psychiatric assessment at the time of mr patnaude's enlistment (Ex R10)
30. The comment made under the psychology assessment was:
Has plenty of self‑confidence & seems a bit of a smoothie with something of the con man about him. V. [Very] plausible & glib in interview, but I have a hunch that he over‑claims & I don't think he'd be past trying to put one over. ‑ ‑ ‑ However despite some uneasiness felt about him – mainly because he's too much like the hedonistic young‑man‑about‑town – there is insufficient of an objective nature against him. [Report of R V Williams Ex R10, p8]
FURTHER PSYCHIATRIC ASSESSMENTS AND REPORTS
31. In January 1972 Mr Patnaude was referred urgently to a naval psychologist after he had informed the Captain of the Parramatta, due to return to sea on 18 January 1972, that he had experienced suicidal thoughts of jumping overboard since March 1971. The psychologist, Stewart Leong, described this as an almost uncontrollable urge to jump overboard. The psychologist talked at length with Mr Patnaude and described the latter as revealing very little information that would give an immediate indication of psychopathology. It was noted and recorded that his peer group relationships were unstable, that he was highly suspicious of his mates and peer group and regarded his only and best mate as incompetent. Mr Patnaude at that time also expressed a belief in UFO's and a supreme being that ran the world like an experiment. He said he experienced a feeling of being outside of himself but had no fear of death. The psychologist concluded that Mr Patnaude exhibited both neurotic and psychotic symptomotology but there was insufficient evidence at that time to reach a definitive diagnosis. The psychologist recommended that Mr Patnaude be relieved of sea duty for further interviews with a psychiatrist. This report was dated 14 January 1972 (Ex R10, p6). The report by Mr Leong was officially conveyed to the medical officer in charge of HMAS Penguin (the Penguin).
32. On 20 and 24 January 1972 Mr Patnaude was seen by Dr Rowe, a psychiatrist (T‑docs p28). He noted the history given to the psychologist and obtained a similar history himself but at the time Mr Patnaude said he feels happy at present. Dr Rowe diagnosed a phobic anxiety state and noted Mr Patnaude was mildly paranoid with an abnormal interest in the supernatural. Dr Rowe questioned an underlying pre‑schizophrenic condition and referred him to a psychologist for a full battery of psychological tests. Treatment with Amytal 15mg three times per day was commenced on 27 January 1972.
33. Mr Patnaude was seen by senior psychologist E. Van Daatselaar, it would appear, on 9 February 1972 (Ex R10, pp3–4).
34. Prior to undertaking the requested psychological testing, Mr Van Daatselaar expanded on the history provided to Dr Rowe and obtained Mr Patnaude's description of his relationship with his five year older brother as being extremely destructive. Mr Patnaude said his brother bashed him up, tyrannised him and often threw him onto the floor and punched him without reason. Once, in the United States, he locked him outside in the garden for two hours in freezing cold weather. Mr Patnaude was powerless to do much about his brother. He never fought back and always tried to be nice and friendly and to please his sibling.
35. Throughout the interview Mr Patnaude did not show any anxiety, smiled continuously but was sensitive about his protruding ears.
36. A Rorschach test was administered and revealed repression of aggressive tendencies. It was noted that some of the applicant's responses were bizarre but not sufficiently so to found a diagnosis of a psychosis. Based on this test, severe anxiety, neurosis and phobia were diagnosed.
37. The TAT record showed underlying depression. Mr Van Daatselaar recommended psychotherapy, although he anticipated Mr Patnaude would become more depressed and his general condition much worse before he started to improve. Regular sessions with a therapist were recommended.
38. Mr Patnaude had an appointment to see Mr E Van Daatselaar on 4 April 1972 but had absented himself without leave.
39. Mr Patnaude eventually saw Mr Van Daatselaar again on 17 April 1972. Mr Van Daatselaar expressed his grave suspicion that he is working his ticket and his anxiety neurosis and all the rest are part and parcel of his scheme to obtain this discharge.
40. Mr Van Daatselaar discussed these events with Dr Rowe who agreed that Mr Patnaude had pulled a swift one on us. He concluded with the comment imagine fooling a psychiatrist and two psychologists. This fellow deserves life!!! He added the comment not much use to the Navy and might as well get rid of him. Discharge SNLR (services no longer required) (Ex R10, p4).
41. Mr Patnaude’s discharge on the basis of SNLR was subsequently approved. Dr Rowe determined that it was more appropriate that Mr Patnaude be discharged on medical grounds. Mr Patnaude was discharged from the Navy as BNPS (below normal physical standard) on 11 July 1972.
DANDENONG PSYCHIATRIC CENTRE REPORT 12 JUNE 1986 (EXHIBIT R9, P47)
42. This report completed by Dr Michael Lee, Psychiatry Registrar at the Dandenong Psychiatric Centre, summarised Mr Patnaude's three-year history as an outpatient at this Centre and referred him back to his general practitioner for ongoing care. Over the three years Mr Patnaude had been seen by several different psychiatrists, psychologists and members of the specialised nursing staff having presented with recurrent panic disorder. There were no symptoms of major affective disorder, no psychotic symptoms, no obsessional problems and no phobic features. The panic attacks apparently occurred at random, with no clear precipitating event. The Psychiatric Centre reported more than the average amount of family psychopathology, noting behavioural problems with Mr Patnaude's mother, his brother and his sister's heroin addiction. Apparently, no other members of the family had undergone psychiatric assessment or diagnosis.
43. Mr Patnaude was considered to have a markedly narcissistic personality and was unable to make the link between his personality problems and the genesis of his psychiatric symptoms. An insight-oriented approach had been considered but found not possible because of difficulties with Mr Patnaude's motivation and his resistance to such treatment. It was recommended that his compliance with medication ordered be carefully supervised, as this had varied greatly in the past and was thought to represent or reflect problems with control issues rather than evidence of a panic disorder. It was recommended that his long-standing use of benzodiazepines be gradually reduced so as to avoid the withdrawal phase.
Heidelberg Repatriation Hospital Psychiatric Outpatient Report / Notes Dated 8 January 1993 Until 29 September 1993 (Ex R7)
44. Mr Patnaude was referred to the Psychiatric Outpatient Clinic via the Vietnam Veterans' Counselling Services. His presenting problem was described as a few nervous problems – on Xanax and also I drink too much. Mr Patnaude stated he drank three cans of beer daily, at a maximum four cans, and did so to help him sleep. He said he had stopped drinking for three months during 1992. The nerve problem was said to have occurred for the first time on the Parramatta in January 1972 as he had expressed an urge to jump overboard. Mr Patnaude gave a history of then being transferred to the Penguin, being seen by psychologists and psychiatrists, following which he was discharged from the Navy. Mr Patnaude described his mother as a hypochondriac and his sister as a drug addict. Mr Patnaude listed his interests as playing squash, music and gardening. He said he worked shiftwork. As a result his sleep was poor. He admitted to depression from time to time and had recently been the subject of an investigation, having been accused of accessing a co‑worker's personal file. At the time of the first consultation, on 8 January 1993, Mr Patnaude was working as a production superintendent at nights and weekends with ACI Fibreglass and was happy with his job.
45. The purpose of Mr Patnaude's referral was to treat his excessive alcohol and diazepam usage. For this purpose he kept a chart of his alcohol intake and diazepam use. Xanax was to be reduced in dosage slowly over a period of weeks. These aims appeared to have been achieved by the time of his last visit to this clinic on 29 September 1993.
REPORT OF DR POMORIN, PSYCHIATRIST
46. Dr Pomorin had seen Mr Patnaude at the request of his general practitioner on 11 March 1998. Mr Patnaude had told him that he had served on ships in the Navy in the position of Underwater Control and in the Gun Bay. He recalled visits to Vietnamese waters on an escort ship for the Sydney. Mr Patnaude did not recall having experienced any traumatic event. Dr Pomorin obtained a history that Mr Patnaude had confided in the Captain of the Duchess that he had thoughts of jumping overboard if he was sent back to a war-zone. He was then referred for psychiatric treatment in 1972 and was subsequently discharged from the Navy as mentally unfit. Dr Pomorin noted a long history of anxiety, excessive worry that was difficult to control, agitation and sleep disturbance. Mr Patnaude claimed he was easily irritated and had impaired concentration and excessive fatigue.
47. Dr Pomorin diagnosed GAD in accordance with DSM–IV. He believed this condition had commenced in the early 1970s as a result of perceived stresses in the South China Sea. In addition, he diagnosed Mr Patnaude as suffering from alcohol abuse; which in turn was attributed to his service in waters in and around Vietnam (T8, p51-52).
Austin Health Reports Veterans' Psychiatry Inpatient Unit Services (Ex R9)
48. In late 2005 Mr Patnaude and his wife sought assistance from the Salvation Army for Mr Patnaude's excessive alcohol intake. Referral was arranged to the Veterans' Psychiatry Unit at Heidelberg Repatriation hospital and Mr Patnaude was admitted for the first time on 19 December 2005 (p34).
49. Mr Patnaude was diagnosed as suffering from GAD with features of panic disorder and agoraphobia, alcohol dependence, benzodiazepine dependence and dysthymia. At the time of admission Mr Patnaude gave a history of consuming 14 stubbies of full strength beer per day for at least 30 years and stated he had done so to contain his anxiety. He had been charged with drink driving five years previously and lost his licence for 11 months. His benzodiazepine use dated to the early 1980s. The Unit Discharge Summary stated that although Mr Patnaude's anxiety symptoms seemed to date from his naval service, the level of trauma he was exposed to and the other symptoms he described did not meet the criteria of PTSD. Investigation revealed abnormal liver function tests consistent with his elevated alcohol intake. During his detoxification program he experienced a generalised tonic–clonic seizure. He was commenced on Naltrexone to manage cravings for alcohol. Mr Patnaude participated in an anxiety management program and an alcohol education program. He improved consistently over a period of four weeks as an inpatient and was referred back to his general practitioner for ongoing treatment with the recommendation that he see a private psychiatrist closer to home.
50. Mr Patnaude's excessive alcohol intake commenced again in June 2006 and he was re‑admitted to the Veterans' Psychiatric Unit at Heidelberg Repatriation Hospital for a further course of detoxification for his alcohol abuse and his benzodiazepine abuse. This required an admission of some 32 days. Once more he was said to have done well and improved. A further admission occurred on 9 October 2006 for detoxification and again on 9 February until 15 February 2007. It is noted on this occasion, that is February 2007, that his diagnosis was changed from GAD to PTSD as the major affective psychiatric disorder.
report of dr collier dated 17 july 2006 (T11)
51. This report has been referred to in the evidence given by Dr Collier before the Tribunal. The stressors related by Dr Collier, as told to him by the applicant, are confirmed in his report; as are Mr Patnaude's duties while on the Duchess (being sentry duty, helmsman and general duties). Dr Collier reported that Mr Patnaude had no alcohol free days since his naval service and that Mr Patnaude's suicidal ideation i.e. jumping overboard commenced in March 1971. Dr Collier also confirmed that Mr Patnaude had a fear of conscription into the Army and this had been the basis of his enlistment in the Navy in 1970 (T‑docs, p85). Dr Collier diagnosed PTSD, a major depressive disorder and alcohol dependence.
Dr N Strauss, Psychiatrist Report Dated 15 August 2007 (Ex R2)
52. Dr Strauss saw Mr Patnaude at the request of the Department of Veterans' Affairs on 15 August 2007 and reported on the same day. He obtained a very detailed history which is not reproduced here in full. Mr Patnaude informed Dr Strauss that he had a happy childhood, a good relationship with both parents and his siblings. He denied any family history of psychiatric disease.
53. Mr Patnaude told Dr Strauss of his Vietnam experiences. He said he had visited Vietnam on two occasions and on the first spent five or six days in Vung Tau Harbour. He was very apprehensive about having to do sentry duty as he had been told that the enemy saboteurs might use spear guns against ships’ guards. During his guard duty he carried a rifle and threw grenades over the side of the ship. While his memory of throwing the grenades was very limited, Mr Patnaude claimed he had been told that that was what he did. In addition, he had noted fires on shore which caused him to think that people might be dying on land. Mr Patnaude denied that his ship had put out to sea at night and said that such statements made by others were lies. The other stressor he related was the hearing of helicopters flying overhead. Mr Patnaude admitted that he was never involved in any actual conflict, no one shot at him nor did he shoot at anyone. Throughout the visit to Vung Tau Harbour he was extremely vigilant and scared stiff.
54. On the second visit Mr Patnaude said the ship was there for longer than the first visit of five to six days and he was again on sentry duty with the same fears and concerns. Mr Patnaude claimed to have had frequent memories of these experiences and, since his treatment in the psychiatric unit at Heidelberg Hospital, his memory of these events had become more vivid. Dr Strauss noted that Mr Patnaude suffered from nightmares, memories of his time in Vietnam but no flashbacks. Mr Patnaude described panic attacks when in crowded or busy areas, broken sleep, poor concentration, loss of libido, depression and suicidal thoughts over many years but no attempts.
55. Mr Patnaude had been a very light social drinker and a non-smoker when he joined the Navy. He claimed that after his visit to Vietnam he became a smoker of up to 50 cigarettes a day and a heavy beer drinker. He used to make his own beer and supplement this with purchased full- strength beer and at one stage had been drinking up to seven slabs of beer (168 cans) a week.
56. When seen by Dr Strauss, Mr Patnaude had recently completed a PTSD course at Heidelberg Hospital and had also undergone detoxification for a second time with respect to his alcohol and benzodiazepine abuse. He had recommenced drinking at the time he saw Dr Strauss, despite being on the drug Naltrexone aimed at reducing his desire for alcohol.
57. Dr Strauss had been provided with the s 37 documents, Mr Patnaude's psychological and service records and the clinical notes of the treating general practitioner, Dr A. Douglas. He noted the comments on the Navy psychological records; particularly those relating to difficulties Mr Patnaude had with his brother and the psychiatric opinion of 1972, that Mr Patnaude had tried to manipulate his way out of the service on medical grounds.
58. Dr Strauss diagnosed GAD associated with alcohol dependence and a major depressive disorder. He attributed these conditions to Mr Patnaude's experiences in Vietnam, noting that Mr Patnaude was probably a very vulnerable young man with some personality problems rendering him more likely to develop an anxiety condition. Dr Strauss queried whether the psychosocial stressors experienced by Mr Patnaude in Vietnam constituted a severe psychosocial stressor.
59. Dr Strauss concluded that Mr Patnaude was now totally and permanently disabled and unable to ever work again. Ongoing psychiatric and psychological treatments as well as medication were required. Dr Strauss placed the clinical onset of these conditions between 1971 and 1972 following Mr Patnaude's trips to Vietnam. Dr Strauss did however add the rider that obviously if Mr Patnaude is not telling the truth then my conclusions may be doubtful but at this stage I have accepted his account of events.
CLINICAL NOTES OF DR A.S. DOUGLAS (EXHIBIT R9)
60. Dr Douglas has been Mr Patnaude's general practitioner since 1974. The vast majority of entries in his clinical notes are for minor conditions such as viral infections and migraine. On 14 August 1978 Mr Patnaude reported tension and stress arising from problems at work and was prescribed Ducene. He continued to complain of anxiety over several years and remained on Ducene. In 1986 Xanax was added to his treatment regime. On 30 October 1986, following Mr Patnaude's promotion to supervisor, his anxiety increased as he felt he could not cope with this role. The Xanax dose was increased.
61. The clinical records of Dr Douglas contain a 1989 report from the Dandenong Psychiatric Centre, with a diagnosis of Mr Patnaude's panic disorder and agoraphobia present for some 13 years. Thereafter, Dr Douglas' clinic monitored Mr Patnaude's use of Xanax and Ducene.
62. On 21 February 1992 Mr Patnaude's anxiety increased, he was sleeping poorly and ruminating over his problems following accusations of impropriety at work. He was seen by a psychologist. There remain numerous entries for repeat prescriptions over the years and on 8 February 2006 Dr Douglas arranged for Mr Patnaude to see Dr Collier on 23 February 2006.
63. The clinical notes of Dr Douglas contain a letter dated 8 September 1975 from an orthopaedic surgeon reporting that Mr Patnaude (first name not stated) had been admitted to Dandenong Hospital for the acute retention of urine associated with severe low back pain and bilateral sciatica. A myelogram had suggested a total block at the level of L5-S1 impacting on the first sacral nerve root. Urgent surgery was undertaken to perform a decompression laminectomy. However, no abnormality was found on exploration of the lumbar and sacral spines. As a result of these findings it was assumed that Mr Patnaude's urinary retention was prostatic in origin. (It may be that this report refers to his father as Mr Patnaude has always denied that he has ever had any physical illnesses or any operations.)
SERVICE-RELATED DOCUMENTATION AND WRITEWAY REPORT (EXHIBIT R8 AND R4)
64. This documentation is contained in full in the report of Captain John Hewett of Writeway Research Service Pty Ltd. Captain Hewett confirmed the dates of Mr Patnaude’s service and the nature of that service. Mr Patnaude served from 27 June 1970 until 11 June 1972. He spent approximately three months of initial training at HMAS Cerberus (Cerberus), following which he was posted to the Duchess on 18 September 1970 for Common Sea Training. On 27 September 1970 Mr Patnaude was promoted to Ordinary Seaman Radar Plot (ORDRP) denoting his anticipated future specialisation but not any qualification or expertise at that stage. Mr Patnaude left the Duchess on 28 June 1971 having been approved for specialisation in Underwater Control commencing 29 June 1971. This training was shore-based and undertaken until 25 October 1971. From 25 October 1971 to 17 January 1972 he was posted to the Parramatta which was in harbour undergoing a refit. From 17 January until 11 July 1972 when he was discharged he was based at Penguin.
65. The dates of Mr Patnaude’s operational service were confirmed. Likewise the actual times the Duchess was in the Vung Tau Harbour on its two visits in April and May 1971 are documented from the Duchess’ Ship Movement Record for 1970 and 1971 and the Reports of Proceedings of the Sydney for 1971. The records from the Duchess and the Sydney confirm that both ships left anchorage in the Vung Tau Harbour in daylight hours and put to sea in the South China Sea. On the second visit the ship spent two days in Vung Tau Harbour with the intervening night out of the harbour in the South China Sea. This change in anchorage at night had been in place since 26 November 1969. The reports of both vessels do not indicate any untoward happenings during the period they were in Vung Tau Harbour.
66. Captain Hewett included in his report extracts from the Sydney’s Orders for Sentries and the copy of order number 11-69 entitled Cargo Operation Order -security whilst at Vung Tau. These detail what sentries were to look for, that if anything suspicious was seen they were to notify the officer in charge of patrolling and that they were to load and fire their rifle if the ship was being directly menaced by an observed swimmer on instruction from an officer. Similarly scare charges and grenades were only to be used on the orders of an officer. While it could not be excluded, Captain Hewett thought it most unlikely that Mr Patnaude would have carried a weapon, given his relative inexperience in the Navy. Nowhere could Captain Hewett find any reference to a threat from spear guns being fired at ships personnel. The Duchess’ anchoring position was three miles from the airfield in Vung Tau (a map was provided). According to Captain Hewett, jetfighters did not routinely operate from Vung Tau Army Airfield as the squadrons based there used propeller‑driven fixed wing aircraft and helicopters.
67. Also included in this report was the naval psychological record which has already been addressed.
APPLICATION FOR INCREASE IN PENSION (12 February 1998, Ex R6).
68. In his application of 1998 Mr Patnaude described his duties on board the Duchess as sailor (GUN BAY), his disability as an anxiety disorder, an alcohol and cigarette dependence and the cause as being in close proximity to the enemy while in waters of Vietnam. Under employment history he listed three periods when he could not work because of anxiety attacks – 6 months in 1978, 8 months in 1984-85 and 4 months in 1996.
Veterans’ Review Board Transcript Of The Hearing On 16 February 2007 (Ex R3)
69. At the VRB hearing Mr Patnaude confirmed that he had told Dr Collier that the stressors he had suffered during his Vietnam visits had been seeing four or five fires on land, hearing jets taking off or landing and Chinook helicopters flying equipment to shore, as well as the general stress of being in a war area. Mr Patnaude confirmed that was what he had told Dr Collier but added that there was another stressor that he had not mentioned. This was the distress and alarm he experienced during sentry duty on board the Duchess at night while in Vung Tau Harbour. He said he patrolled the deck carrying a loaded rifle and stun grenades on his hip. Mr Patnaude explained his failure to report this stressor on the effect of anti-depressant drugs he had been taking while in the Heidelberg Repatriation hospital from late 2005 to early 2006.
70. The Veterans’ Review Board Members pointed out that he had not given this history to Dr Pomerin in April 1998; nor was it contained in the psychological reports of 1972. Mr Patnaude explained the failures to report this incident on the basis that in 1998 he didn’t have much chance to talk in the meeting with Dr Pomerin and in 1972 he was anxious to stay in the Navy and did not want to say anything that would jeopardise his naval career.
RELEVANT LEGISLATION
71. The relevant legislation is provided in s 120 of the Act:
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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a 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.
72. As Mr Patnaude’s application was lodged on 28 April 2006 section 120A of the Act is attracted. It provides:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2); that upholds the hypothesis.
Note:See subsection (4) about the application of this subsection.
73. The Tribunal is required to apply the relevant Statements of Principle. The parties agreed that the relevant Statements of Principle are:
·Instrument No 3 of 1999 as amended by No 54 of 1999 concerning post‑traumatic stress disorder (PTSD) and in particular Factor 5(a) - experiencing a severe stressor prior to the clinical onset of PTSD.
·Instrument No 1 of 2000 concerning generalised anxiety disorder relying on Factor 5(a)(ii):
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.
·Instrument No 17 of 2007 concerning depressive disorder or in the alternative Instrument No 58 of 1998. The Factor relied on in the 1998 Instrument was Factor 5(a);
experiencing the severe psychosocial stressors with the two years immediately before the clinical onset of depressive disorder.
·Instrument No 76 of 1998 concerning alcohol dependence of alcohol abuse relying on Factors 5(a) and/or 5(b).
74. All of the above Instruments define a severe psychosocial stressor or experiencing a severe stressor and while all are couched in similar terminology there are differences, these will be address in the Tribunal’s deliberations.
75. In reaching its decision the Tribunal is required to follow the procedure established by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 where at 97 the series of steps are as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved
SUBMISSIONS BEFORE THE TRIBUNAL
The Applicant
76. Mr Larkin submitted that Mr Patnaude was young and had limited life experience when he went to Vung Tau Harbour. The general threat of being in a war zone had caused him great anxiety. The bumping of debris against the Duchess and the advice of other sailors to be on the alert for spear guns resulted in extreme anxiety, even if the risk of the latter was illusory. The most stressful event, equating to a severe psychosocial stressor, arose from Mr Patnaude’s sentry duty and the requirement for him to survey the surrounding water for divers and debris while carrying a gun and grenades in the form of scare charges. Mr Larkin contended that if the latter stressor was not of a sufficiently severe level to invoke a diagnosis of PTSD, then the applicant relied on Instrument 1 of 2000 concerning generalised anxiety disorder (GAD). Instrument 101 of 2007 regarding GAD was not applicable given that Mr Patnaude’s application to the Administrative Appeal Tribunal was made on 16 March 2007, six months before this Instrument came into effect. As to the assessment of the severity of the claimed psychosocial stressor, Mr Patnaude relied on the decision in Stoddart v Repatriation Commission (2003) 197 ALR 283 with respect to the subjective and objective considerations to be applied to the interpretation of the phrase experiencing a severe stressor. Mr Patnaude also relied on the decision in Delahunty v Repatriation Commission (2004) FCA 309 (26 March 2004) wherein Tamberlin J (at paragraph 27) considered that the existence or extent of stress will depend on each particular personality and that the definition must be approached in a manner which is not unduly restrictive.
77. Mr Larkin acknowledged that the psychiatric evidence favoured a diagnosis of GAD with onset shortly after Mr Patnaude’s two trips to Vietnam. Drs Collier and Strauss and the Heidelberg Psychiatric Unit all diagnosed alcohol dependence and this diagnosis was not in dispute.
78. The Applicant relied on Factor 5(a) of Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse. Factor 5 states:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a persons’ relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; …
Factor 5(b) may also be relevant and this states;
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; …
79. In relation to depressive disorder, the Applicant relied on Factor 6(g) of Instrument No 17 of 2007 concerning depressive disorder, which states:
having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; …
(Tribunal Note: Mr Patnaude’s depression was not addressed in detail).
80. Mr Larkin submitted that should the Tribunal accept the psychiatric reports of 1972 that record that Mr Patnaude first experienced suicidal ideation (the urge to jump overboard) in March of 1971 then, based on Dr Collier’s evidence Mr Patnaude’s Vietnam experiences aggravated a pre-existing psychiatric disorder.
RESPONDENT
81. Mr Purcell had provided written submissions as part of his Statement of Facts and Contentions. He addressed these in more detail in his oral submissions. Mr Purcell conceded the diagnoses of GAD, alcohol dependence and major depression but submitted that none of these conditions were related to Mr Patnaude’s operational service, as he had developed GAD prior to his two short visits to Vietnam. None of the conditions were war-caused within the meaning of the Act.
82. It was contended that all the psychiatric evidence pointed to a diagnosis of GAD, although Dr Collier had in February 2006 made a diagnosis of PTSD. Dr Collier had been unaware of Mr Patnaude’s claimed sentry duties, his past incarceration for drunkenness and absconding and the Dandenong Psychiatric Records of 1986 to 1989. Nor had Dr Collier been aware of the very short periods of time that Mr Patnaude actually spent in the Vung Tau Harbour. While Dr Collier still favoured a diagnosis of PTSD, he had said in his evidence that GAD was an equally appropriate diagnosis.
83. Mr Purcell stated that Instrument No 101 of 2007 must be considered by the Tribunal; it being the current SoP for GAD. As Mr Patnaude clearly did not meet the requirements of the instrument then, in accordance with the decision in Repatriation Commission v Keeley (2000) 98 FCR 108, he would rely on Instrument No 1 of 2000, wherein a severe psychosocial stressor was defined as 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.
84. Mr Purcell relied on the interpretation of the severe psychosocial stressor by Spender J in White v Repatriation Commission [2004] FCA 633 where at paragraph 30 His Honour said:
[30] In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
and at paragraph 32:
[32] In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of “severe psychosocial stressor” has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a “serious psychosocial stressor”, means that the examples given in the definition of “severe psychosocial stressor” would be not only irrelevant and devoid of utility, but positively misleading.
85. With respect to Mr Patnaude alcohol dependence, Mr Purcell contended that the alcohol history given over the years by Mr Patnaude was unreliable. The Dandenong Psychiatric Centre report covering 1986 to 1989 made no mention of alcohol abuse or dependence. The history given by Mr Patnaude in 1993 was that he drank three beers per day (Ex R7, p1) in contrast to the history given to his psychiatrists and the Tribunal that he drank one to seven slabs of beer per week supplemented with home brewed beer and had drunk to excess since his Vietnam experiences.
86. Mr Purcell argued that Mr Patnaude’s credibility was in doubt, there being many contradictions in his evidence. For example:
·denying the bullying and physical abuse at the hands of his brother despite having told a naval psychologist of these events in 1972;
·denying a family history of psychological problems, having previously described his mother as a hypochondriac, his sister as a heroin addict and his brother as having psychiatric problems (Ex R9, p47);
·a variable alcohol intake history;
·having no clear recollection of his time or his duties in Vietnam despite the nature of his claim;
·denying the Duchess was not out of harbour at night despite the Report of Proceedings of the HMAS Duchess for April and May 1971;
·only remembering the major psychosocial stressor in early 2007 after a lengthy admission to the Heidelberg Repatriation Hospital Psychiatric Unit.
87. Mr Purcell submitted that the material before the Tribunal did not point to a reasonable hypothesis as no risk factors had been raised. Thus the hypothesis did not meet the template of the SoP and failed at step three of Deledio. Should the Tribunal find otherwise, he submitted that the application failed at step four, as some of the facts necessary to support the hypothesis had been disproved beyond reasonable doubt. He relied on the decision of Jacobson J in Meehan v Repatriation Commission [2003] FCA 1371 regarding the reliability of material/evidence before a Tribunal.
TRIBUNAL’S DELIBERATIONS
88. The Tribunal finds that Mr Patnaude’s diagnoses are GAD, alcohol dependence and chronic depression. Based on expert psychiatric testimony, these conditions have been present since 1998 and continue today. Prior to the year 1998 three differing diagnosis had been made.
89. In 1972 a naval psychologist and psychiatrist diagnosed a phobic anxiety toward being at sea (Exhibit R5, p29), although the possibility of a pre-schizophrenic condition was raised by the psychiatrist. This phobic anxiety had resolved by April 1972 although Dr Rowe warned that it might recur. Between 1986 and 1989 Mr Patnaude was treated at fortnightly intervals at the Dandenong Psychiatric Centre for a recurrent panic disorder superimposed on a narcissistic personality with no evidence of a major affective disorder. In 1993 Mr Patnaude was treated at the psychiatric out-patients clinic at Heidelberg Repatriation Hospital. He was noted to be depressed and his treatment was for excess alcohol use (3 beers per day) and anti-depressant abuse. Between 2005 and 2007 he was admitted to Heidelberg Hospital on three occasions, twice for detoxification for alcohol and benzodiazepine abuse and once for a PTSD course. During his first admission to Heidelberg Hospital he was diagnosed as suffering from GAD and dysthymia in addition to substance abuse (Ex R9, p34). When re-admitted the diagnoses of PTSD was included. Dr Collier had, in February 2006, made a diagnosis of PTSD although he questioned the severity of the stressors described by Mr Patnaude. In his evidence before the Tribunal Dr Collier continued to favour a diagnosis of PTSD but opined that GAD was an equally attracted diagnosis once he became aware of material previously unknown to him.
90. On 18 April 1972 Mr Patnaude was convicted of consuming alcohol while on duty and being absent without leave for 16 days. A penalty of 28 days detention at Holdsworthy was imposed. The Naval Review Board recommended his discharge SNLR (services no longer required) stating that Mr Patnaude was a:
… flagrant ticket worker who tried to manipulate his way out of the service on medical grounds and then turned to indiscipline. He claims he is too intelligent to be in the Navy and that everyone else is comparatively immature.
2. He is a bad influence on others and hes (sic) deleterious effect on morale. Discharge SNLR is recommended. … (Ex R4, Attachment 2) ( Ex R8, p24)
91. Mr Patnaude following heavy drinking had stolen a small boat and motored to Rosebay Yacht Club where he abandoned the craft and then hitch-hiked to Perth. When he ran out of money he gave himself up to the police and was returned to the Penguin. These activities appear to be contrary to his desire to remain in the Navy as stated on 24 January 1972 (Ex R5, p19).
101. In 1998 Dr Pomorin, psychiatrist, made a diagnosis of GAD and alcohol abuse.
92. The treating practitioner’s notes record in August 1978, recent tension arising from work. Ducene (Valium) was prescribed and continued thereafter. In 1986 having commenced work at ICI Fibreglass, Mr Patnaude reported anxiety as he can’t cope (Ex R9, p13) Xanax was added to his medication with some benefit. His symptoms flared again in 1992 after he was accused of impropriety (Ex R9, p19) at work. Mr Patnaude resigned from ICI in February 1996. His alcohol intake at that time was reported by Dr Douglas as three to four stubbies of full strength beer per day. These notes also record that Mr Patnaude had told Dr Douglas that he had been arrested at work for involvement in slander and accessing another worker’s records (Ex R9, p20, entry of 18 April 1992).
93. It is difficult in light of the medical evidence to determine an accurate date of onset of Mr Patnaude’s psychiatric disorders. The Tribunal accepts the opinions of Dr Collier and Dr Strauss that the date of onset was within two years of Mr Patnaude’s two visits to Vung Tau harbour. It is noted that both psychiatrists qualified their opinions.
THE RELEVANT STATEMENTS OF PRINCIPLE AND THE SEVERE PSYCHOSOCIAL STRESSORS RELIED UPON
94. The traumatic events (the psychosocial stressors) on which Mr Patnaude relied as causing his PTSD had been:
1.Being in a general war zone.
2.Hearing noise of jets and helicopters flying overhead.
3.Seeing fires burning on shore in Vung Tau Harbour.
95. In February 2007 at the VRB hearing, Mr Patnaude described a further, and he claimed the major, severe stressor, namely performing sentry duty on board the Duchess at night while armed with a gun and grenades and having to shine his torch into the darkened waters fearing that he would be shot with a spear gun. He also described this stressor to Dr Strauss in August of 2007. Dr Collier learnt of this stressor at the hearing before this Tribunal.
96. The relevant SoPs are those relating to PTSD, GAD, chronic depression and alcohol dependence. While the Tribunal has found the latter three to be the proper diagnosis, the PTSD SoP is considered for the sake of completeness as this was the original claimed psychiatric disorder.
POST TRAUMATIC STRESS DISORDER (PTSD)
97. The relevant SoP is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. The primary feature of this disorder that differentiates it from other anxiety disorders is the requirement for there to have been exposure to an extreme traumatic stressor prior to the development of the symptoms. (DSM-IV). The Applicant relied on Factor 5(a) of the SoP that is experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.
98. Instrument No 54 of 1999 defined experiencing a severe stressor as meaning that the applicant …witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or another person’s, physical integrity
99. While Mr Patnaude was apprehensive and fearful that certain events could occur, he clearly stated in his evidence that none of these anticipated stressful or traumatic events eventuated. The Full Court in Woodward v Repatriation Commission (2003) 200 ALR 332 followed the reasoning on Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 with respect to the objective and subjective criteria relating to a severe stressor. However, it expressed no opinion about a situation where the perception of a threat or a thought, real in the mind of an individual, is not objectively reasonable. The experience had to be based on an event, and that a figment of the imagination would not be sufficient to meet this requirement.
100. The Tribunal finds that the severe psychosocial stressors relied upon by Mr Patnaude do not meet the definition in the relevant PTSD SoP.
GENERALISED ANXIETY DISORDER (GAD)
101. The Tribunal has concluded, based on the decision in Keeley, that the appropriate SoP is Instrument No 1 of 2000 concerning GAD. The Applicant relied upon Factor 5(a)(ii) - experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. The phrase severe psychosocial stressor is defined in this instrument in similar terms to that of PTSD except for the first two phrases that state means an identifiable occurrence that evokes feelings of substantial distress in an individual. The definition then gives examples of such occurrences.
102. The Tribunal finds that there was no identifiable occurrence that might give rise to feelings of substantial distress in Mr Patnaude’s case.
ALCOHOL DEPENDENCE
103. Instrument No 76 of 1998 is the relevant SoP. The parties agreed that Mr Patnaude meets the definition of alcohol dependence. The Applicant relied on Factors 5(a) and 5(b):
5 (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; …
In the course of the hearing and in his submissions Mr Larkin addressed the possibility that Mr Patnaude had a pre-existing psychiatric disorder that was aggravated by his Vietnam experience. Thus, he said it could be argued that Factor 5(c) is attracted:
5 (c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; …
104. The definition of experiencing a severe stressor in this particular Instrument is very similar to the definition for PTSD; with the exception that the event or events experienced, witnessed or confronted are of a lesser degree and do not have to evoke intense fear, helplessness or horror but are quantified by the term might evoke intense fear, helplessness or horror.
105. Given the absence of an objective event the requirements of this SoP are not satisfied.
DEPRESSIVE DISORDER
106. Instrument No 17 of 2007 is the relevant one for this condition. The factor relied upon was:
6 (g) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; …
Those factors involving the experiencing of category 1A and 1B stressors, both of which are defined in exclusive terms, do no apply to Mr Patnaude. There is no evidence that Mr Patnaude experienced a category 2 stressor as provided for in factor 6(q) during his operational or eligible service. In accordance with the decision in Keeley, the Tribunal has also considered Instrument No 58 of 1998 concerning depressive disorder. This Instrument, in its definition of severe psychosocial stressor, requires an identifiable occurrence that evokes feelings of substantial distress. There being no identifiable occurrence, this SoP is not satisfied.
TRIBUNAL’S REASONING
107. The proper construction of s 121(1) and s 121(3) was established by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. In Bushell the High Court said, 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. …
and in Byrnes the High Court said:
The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. …
108. Following the introduction of s 120(A) and the Statements of Principles in 1994, the Full Federal Court addressed the interpretation of s 120(1) and s 120(3) in Deledio. The Court delineated the four steps to be followed by a Tribunal dealing with a claim under these sections. Step four was equated to s 120(1).
109. In Hardman v Repatriation Commission (2005) FCAFC 83 (13 May 2005) the Full Court of the Federal Court (Black CJ, French and Gyles JJ) stated, at paragraph 32:
[32] It is accepted that the steps set out in Deledio are those logically demanded by s 120 of the Act: Hill v Repatriation Commission[2005] FCAFC 23 (Hill) at [115]. However, it is apparent that following those steps can mislead a lay tribunal as this case (and the case of Meehan cited by counsel for the appellant) illustrates. It is clear enough that s 120A was enacted to deal with the difficulty inherent in applying s 120(3) following the decisions in Bushell and Byrnes. That amendment settled the major problem in applying s 120(3). It correspondingly defined and restricted the area for judgment arising under that provision and so limited the practical operation of it. In most cases the hypothesis will be obvious as will the relation of it to the applicable SoP. There is a risk that the Tribunal’s primary role of fact finding can be diverted into convoluted hypothetical reasoning by too mechanical an application of the Deledio steps in any given case. Those steps, as such, are not found in the Act. There are many cases in which the Tribunal can proceed to fact finding with little more than a glance at s 120(3). Indeed, in many cases there would be no error of law involved in disposing of a case under s 120(1) without adverting to s 120(3) (Hill at [80] and [85]).
110. The Tribunal has considered Mr Patnaude’s claim in accordance with the four steps of Deledio, although it could be equally and adequately determined purely by consideration of s 120(1) and s120(3).
111. The hypothesis submitted by Mr Patnaude is that he had developed PTSD or in the alternative GAD, alcohol dependence and depression (dysthymic disorder) as a result of experiencing severe psychosocial stressors during his two visits to Vung Tau Harbour in South Vietnam in April and May of 1971. The most severe of these stressors was claimed to be his performance of sentry duty at night on board the Duchess. He was fearful that an enemy diver would shoot him with a spear gun. The lesser stressors can be broadly described as those arising from being in a war zone.
112. Having examined all the material before it the Tribunal finds that a hypothesis has been raised.
113. There are in existence SoPs applicable to the medical conditions claimed to have resulted from Mr Patnaude’s operational service. Steps one and two of the Deledio requirements are satisfied.
114. The third step of Deledio directs the Tribunal, without making any findings of fact, to access whether the hypothesis fits the template provided by the SoP in order for it to be considered reasonable. The Tribunal finds that the severe psychosocial stressors claimed do not fit the template of the SoP for PTSD, GAD, depression and alcohol dependence. In anticipation of any argument by Mr Patnaude that the Tribunal has made findings of fact in reaching this conclusion, the Tribunal does not reject the claim on the basis of his failure to satisfy step three of Deledio and has proceeded to the consideration of step four.
115. As previously stated, step four of Deledio equates with s 120(1) of the Act. The Tribunal is satisfied beyond reasonable doubt, having considered the facts before it, that there are no sufficient grounds for determining Mr Patnaude’s medical conditions were war‑caused. One or more of the facts necessary to support the hypothesis have been disproved beyond reasonable doubt and the truth of another fact in the material, which is inconsistent with the hypothesis, has been proved beyond reasonable doubt.
116. Mr Patnaude’s evidence was that while he was apprehensive and fearful of the duties to be performed as a sentry none of his fears where realised. He was not shot at, he did not shoot anyone, he did not use any stun grenades, and while he says he shone his torch into the water no by the enemy firing a spear gun. His fears were subjective and there was no event or objective occurrence as required by the definitions of psychosocial stressor contained in the SoP.
117. Given the contradictory statements Mr Patnaude has made in his evidence before the Tribunal and in his consultations with several psychiatrists, which Mr Patnaude explained as being due to memory defect consequent upon his psychiatric disorders and the effect of medication, the Tribunal can only doubt the reliability of his evidence. Examples of these contradictions are:
·despite the record of bullying and bashing by his brother in his naval psychological record in 1972, Mr Patnaude denied that this had ever occurred, other than being locked out in the snow for two hours while living in the United States;
·he denied any family history of psychopathology but described his mother as a hypochondriac, his sister as a heroin addict and his brother as having psychiatric problems in interviews with psychiatrists, particularly from 1986 to 1989 when being treated at the Dandenong Psychiatric Centre;
·naval psychiatric reports in 1972 record that he first had suicidal thoughts in March 1971, prior to his operational service in Vietnam commencing April 1971. He denied this in his evidence before the Tribunal;
·Mr Patnaude insisted that his major stressor had occurred on sentry duty on board the Duchess at night despite the evidence that the Duchess left the Vung Tau Harbour before nightfall on all three days that Mr Patnaude spent time in the harbour;
·Mr Patnaude told Dr Strauss he had spent five to six days in Vung Tau Harbour in April 1971, when in fact he was there for five and a half hours. He also told Dr Strauss that on the second visit in May 1971 he was in Vung Tau Harbour for longer than six days when in fact he was there only during daylight hours on the two days concerned;
·despite describing his sentry duties in some detail, Mr Patnaude admitted that he had no recollection of those duties and had obtained the official list of duties from the Department of Veterans’ Affairs documentation and had been told by others (not identified) what he would have done;
·his reports of his alcohol consumption over some 35 years has been variable in the histories he has given to various medical practitioners and his explanation for this was that he was concealing his alcohol intake;
·he denied having any drink-driving convictions to all the psychiatrists and to the Tribunal. The Heidelberg Repatriation Hospital admission of 2005 to early January 2006 has documented a conviction for drink-driving in 2001 with the loss of his licence for a period of 11 months;
·Mr Patnaude has told numerous doctors that his general health is good and that he has never undergone any operations. Dr Douglas’ notes (clinical record) record that in 1975 he underwent major exploration of his lumbar sacral spine with no pathology being found. He had been advised to wear a back brace for at least six months from the extensive exploration that had occurred;
·the major psychosocial stressor was not raised until the VRB hearing on 16 February 2007, approximately one month after he was discharged from the Psychiatric Unit at the Heidelberg Repatriation Hospital, where he had been an in-patient for four weeks undergoing detoxification for alcohol dependence. He explained his failure to tell Dr Collier of this stressor as being because he had seen Dr Collier in hospital while being weened off anti-depressants. However, Dr Collier saw Mr Patnaude for the first time on 9 February 2006 in his private consulting rooms and did not see Mr Patnaude while he was in hospital.
118. In his submissions Mr Purcell cited and quoted from the decision of Jacobson J, in Meehan v Repatriation Commission [2003] FCA 1371, particularly with reference to the reliability of the evidence. Jacobson J said at paragraphs 34 and 35;
[34] Mr Colborne, who appeared for the Applicant, submitted with some force that the Tribunal’s finding that evidence was unreliable and its finding that the cogency of Dr Dinnen’s evidence was doubtful did not satisfy the standard. …
[35] However, the submission that a finding of unreliability is insufficient runs headlong into the contrary remarks of the High Court in Bushell in the passage which I have set out at [12].
119. In Bushell the High Court at 416 in its explanation of the proper construction and application of s 120(1) said:
… 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. …
120. The stressor and other claims relied upon by Mr Meehan bears a considerable resemblance to those relied upon by Mr Patnaude. Mr Meehan had claimed to be performing sentry duty at night on board the Sydney when it was anchored in Vung Tau Harbour in 1969; seeing body bags and injured on the Sydney; hearing scare charges explode at night and performing underwater clearance around the hull of the Sydney. Mr Meehan had stated he went to Vietnam on five occasions for a total of five months whereas he, Mr Meehan, had visited twice and the time spent in Vung Tau Harbour was on each occasion five and a half hours and on both occasions only in daylight hours (exactly the same as Patnaude’s times in the Harbour). The actual number of visits and times Mr Meehan spent in Vung Tau Harbour were disproved by the official records of the Duchess.
121. For the reasons above, the Tribunal affirms the decision under review.
I certify that the one hundred and twenty-one [121] preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan, Member
Signed: Dianne Eva .....................................................................................
Clerk
Date of Hearing 11 December 2007
Date of Decision 1 April 2008
Counsel for the Applicant Mr A. Larkin
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Mr G. Purcell
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