Peter Grundman and Repatriation Commission
[2012] AATA 402
•29 June 2012
[2012] AATA 402
Division Veterans' Appeals Division File Number(s)
2011/2742
Re
Peter Grundman
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 29 June 2012 Place Brisbane (heard in Cairns) The decision of the Repatriation Commission is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS AFFAIRS – application for a service pension – post-traumatic stress disorder – alcohol dependence – definition of a life threatening event – experiencing a category 1A stressor – experiencing a category 1B stressor – subject/objective assessment of the circumstances – decision affirmed.
LEGISLATION
Veterans Entitlements Act 1986
SECONDARY MATERIALS
Statement of Principles No. 5 of 2008
Statement of Principles No. 1 of 2009
Diagnostic and Statistical Manual of Mental Disorders Volume IV
REASONS FOR DECISION
Senior Member Bernard J McCabe
Peter Grundman served in the Australian Army in Vietnam in 1968. He says he has developed a number of psychiatric conditions as a result of his operational service. In particular, there is medical evidence suggesting he developed post-traumatic stress disorder (PTSD) and alcohol dependence. His application for a service pension under the Veterans’ Entitlements Act 1986 was unsuccessful. The Repatriation Commission says there is no causal link between Mr Grundman’s operational service and the medical conditions in question. Mr Grundman has asked the Tribunal to revisit the matter.
There was initially some dispute over whether the applicant suffered from PTSD. The medical expert called by the Commission questioned whether any of the events occurring in 1968, were sufficiently serious to satisfy the diagnostic criteria for PTSD in DSM-IV-TR (the current edition of the Diagnostic and Statistical Manual of Mental Disorders). After Mr Grundman gave evidence at the hearing, however, it became clear he had been exposed to some other events in Papua New Guinea after he left the Army in about 1973. One incident in particular was almost certainly the sort of stressor contemplated by the diagnostic criteria for PTSD. After discussions with the parties, it was agreed I could safely accept the applicant does suffer from PTSD and alcohol dependence. The live issue before me was whether those conditions were service-related – which depended on my assessment of the applicant’s account of three incidents that occurred in Vietnam in 1968.
I am not satisfied the applicant’s psychiatric conditions are service related. I explain my reasons below.
BACKGROUND TO THE CLAIM
Mr Grundman says he came from a conservative Catholic family that did not approve of the Vietnam conflict. The applicant’s parents were non-drinkers who did not approve of alcohol. Mr Grundman’s father ran a panel-beating business in Victoria. The applicant joined that business before he was called up for national service in 1966.
The applicant undertook basic training at Puckapunyal, and then elected to get his trade certificates in the Army. He was not expecting to be sent to Vietnam but said a decision was made to post him there because of a demand for his specialist skills. He agreed he had started to drink regularly (although not heavily) while he was in the Army before he went to Vietnam.
The applicant flew to Vietnam with a range of other military personnel on a chartered Qantas flight. The problems began almost as soon as he landed. I will deal with each of the three incidents he described in his evidence separately.
The airport incident on arrival
The Qantas flight touched down at Saigon’s civil airport, which was also a military airbase. It was a busy place. The charter flight taxied to a hardstand and the passengers disembarked onto the concrete apron. Mr Grundman says he recalled leaving the aircraft in the company of perhaps three other soldiers. His memory of what happened was poor, but he surmised this small group left the plane by the rear entrance. The other soldiers on the flight apparently exited from a different door. I was told many of the other soldiers were SAS troopers, and they may have been whisked away.
Mr Grundman described a surreal scene on the apron outside the aircraft. It was noisy. There were military aircraft nearby being loaded with munitions. Curiously, there was a group of people running about in a state of panic. The applicant said there were perhaps 20 people in the group but he could remember little about them – whether they were military personnel or civilians, or locals or Americans. He did not recall what they wore or why they were there. His own small party suddenly became swept up in the group. Mr Grundman said he became aware the group was panicking because the airport was under attack. He said bullets were ricocheting off the tarmac. The group (which now included Mr Grundman) ran across the tarmac in the direction of some buildings. On the way, the applicant said he noticed one of the American airmen who had been working on a nearby aircraft fell to the ground. Mr Grundman says he was unsure whether the man had been shot or was taking cover. The group took shelter behind a container. In due course, Mr Grundman and his three colleagues were loaded onto a Caribou aircraft (in earlier material, he had said they were loaded onto helicopters) and transported via Nui Dat to Vung Tau.
There were no other witnesses who could corroborate the applicant’s account of the airport attack. The contemporaneous records do not refer to an attack on the airport on or around the day in question (although the airport was certainly attacked some time earlier at the height of the Tet Offensive).
I questioned Mr Grundman closely during the course of his evidence about what transpired that day in Saigon. He said he was sure there was shooting and insisted shots were ricocheting around the tarmac. But he agreed he does not recall hearing any shots (the airport was a very noisy place, after all) and it was unclear whether he saw any of the tell-tale signs of ricocheting bullets, whatever those signs might be. His impression that shots were fired appeared to be formed having regard to something said by the group of people rushing across the tarmac, the fact the American airman fell to the ground, and perhaps as a result of something that may have been said by the pilot, though he could not recall what that was.
The applicant also pointed out he was very ill on the day he arrived in Saigon. He was running a fever and was experiencing bad headaches. He was subsequently hospitalized for treatment.
Mr Grundman says the experience of being exposed to gunfire on the airport apron was a life-threatening event that led to the development of the psychiatric conditions.
The encounter with the White Mice
The police in South Vietnam were known as “white mice”, most obviously because of their snowy white uniforms. Apparently they looked like naval officers. But they were known to be dangerous, I was told. Mr Chalk, who appeared on behalf of the veteran, provided some evidence from the bar table which suggested the police were known to shoot individuals who did not obey instructions. Mr Grundman said he had seen a police officer in the distance soon after his arrival. It was unclear whether he knew the full extent of their reputation for aggression at the time he first came face to face with a police officer in a street, about a month after he arrived in Vietnam.
On the occasion in question, Mr Grundman was driving a six-wheel army truck with about half a dozen of his mates in the back. All of them were armed. The party had driven into the town near their base to do some shopping. As he negotiated a corner, the applicant found himself on the wrong side of the road. The truck was slowly accelerating out of the turn as he realized his error. His companion in the cab of the truck was telling the applicant to get back onto the right side of the road when he observed a man walk into the middle of the road from a nearby shop. The man was wearing sunglasses and a smile, and he was dressed in white. He produced a side-arm that he pointed directly at the applicant, who was behind the wheel of the truck. The applicant says he saw the gun first and panicked, although he subsequently registered that it was a police officer. At this point, the officer was situated about 30 metres directly in front of the approaching truck. The applicant swerved violently (or as violently as one could in the circumstances, given the vehicle was still moving at a slow speed) and the truck changed lanes and he was able to drive off. He subsequently parked the vehicle some distance away and the other soldiers went shopping.
The applicant says the experience of being confronted by a police officer who pointed his gun at the applicant was a stressful event that contributed to the development of his psychiatric conditions.
The children at the rubbish dump
The applicant decided to take a load of waste material to the rubbish dump in a tip-truck. The dump was situated outside the perimeter of the base. I was told he would ordinarily be accompanied by at least one other soldier on a journey to the dump but he hung a sign on the vehicle that indicated he was conducting a test, and he was allowed to leave the base on his own.
American soldiers guarded the rubbish dump. They were trying to prevent local children from stealing waste material. Mr Grundman says he arrived at the dump in the tip truck and reversed it into position so he could offload the material. As the tray on the truck was being raised, he looked into the rear-view mirrors on the truck and saw one of the American soldiers raise his weapon. Mr Grundman assumed the soldier was shooting at the children, although he accepted the solider might have been firing warning shots. On closer questioning, Mr Grundman says he assumed shots were fired but conceded he did not hear the report of a rifle, nor did he see the weapon recoil or anyone being hit. He says he was so startled by the image of the soldier in his rear-view mirror that he drove off from the dump without even lowering the tray on the back of the truck.
The applicant says the idea of a soldier shooting at unarmed children was so shocking that it contributed to the development of his psychiatric conditions.
IS THERE MATERIAL THAT POINTS TO THE HYPOTHESIS?
Section 120 of the Act sets out the process for assessing claims of this nature. As a first step, I must be satisfied there is material that points to the hypothesis connecting the applicant’s service with his health conditions. If any essential pieces of the evidentiary puzzle are missing, the claim will fail at this point. As it happens, I have some reservations about the adequacy of the material in this case. The applicant’s story is vague. He was a poor historian who was unable to remember many details. That is unsurprising to some extent: the events in question happened nearly 45 years ago. But his story in relation to the airport and the dump left me wondering whether key pieces of evidence were missing – most obviously, in both cases it was unclear whether shots were actually fired. But I will assume for present purposes that the applicant’s assertion of shooting in each case is enough.
THE STATEMENTS OF PRINCIPLES AND ASSESSMENT
The next step is to identify the relevant statements of principles (SoPs). There are two in this case: No 5 of 2008, which relates to PTSD, and No 1 of 2009 which relates to alcohol dependence.
The third step is to consider whether the applicant’s story as it is told meets the requirements set out in the SoPs. As it happens, both SoPs refer to the same requirement: the existence of a category 1A or 1B stressor. Those stressors are defined in similar terms in each SoP. (I note the alcohol dependence SoP also includes a temporal requirement – namely that the onset of alcohol dependence must occur within five years of the stressor. The Commission conceded – properly, in my view, given the evidence – there is no doubt the applicant in this case suffered from an alcohol dependence condition within a short time after he left Vietnam, if not before his departure.)
I will deal with each incident in turn. I will take them in reverse order, starting with the incident at the dump.
I am not satisfied the incident at the dump could properly be regarded as a category 1A stressor. There is no objective evidence that anyone’s life was actually threatened – although I accept that is not the test. I must consider the question of whether there was a life threatening event from the point of view of someone in the applicant’s position from the applicant’s background with his experience, (the so-called ‘subjective/objective’ test). Mr Chalk, for the applicant, pointed out the applicant was a young man who had not been properly trained for service in Vietnam because he was transferred there on short notice. Mr Chalk also pointed out the applicant was a reluctant soldier who had religious and other objections to service in Vietnam. Would such a person in that position have formed the view he was experiencing a life-threatening event? I do not think so. It would be an extraordinary thing if American soldiers were doing such a thing – and he did not clearly see the soldier actually do anything other than raise a weapon to the firing position in any event. Mr Grundman simply leapt to a horrible conclusion when that leap was not justified on the facts as he knew them. I am not satisfied his account of this event answers the description of a category 1A or 1B stressor.
I turn next to the “white mice” incident. There is no suggestion the applicant experienced a category 1B stressor in the course of this event. He argues instead that it was a category 1A stressor because it was a life-threatening event, or because he was threatened with a weapon. I repeat that the assessment must proceed having regard to the objective/subjective test I have already described.
The event the applicant described had the capacity to become a life threatening event if he kept driving on the wrong side of the road towards the armed police officer who was pointing a gun. But I do not think the applicant (or, more accurately, a person in the position of the applicant with his experience and background) could have been satisfied his life was in danger, or that he was being threatened with a weapon even though, on his story, the weapon was being pointed at him from 30 metres away. The applicant may have been new to Vietnam and unfamiliar with the ways of the police in that country, but Mr Grundman was driving an Army vehicle carrying armed soldiers. The applicant’s account of the police officer’s behaviour is more suggestive of swaggering and bravado rather than a genuine threat that would have been perceived as such. I am not satisfied the event answers to the description of a category 1A or 1B stressor.
I turn lastly to the first event that occurred, the ricocheting bullets at the airport. Mr Williams conceded on behalf of the respondent that if the evidence established the airport was under attack and the applicant was being shot at, there would be a category 1A stressor. As it happens, I am not satisfied the applicant’s account, taken at its highest, actually establishes an incident occurred. I accept the applicant thinks an incident occurred – he was adamant about that – but even if I accept his story at face value there is no real evidence of shooting. No one heard any shots fired or bullets ricocheting, and one presumably does not see bullets flying through the air. There was a crowd of people running about in a panicked state, but there was no direct evidence of what panicked them – the applicant’s story did not ever really descend to that sort of detail. I note the applicant said an airman either fell or threw himself to the ground, but the applicant was not sure if he had been shot or was taking evasive action, or if he was doing something else. If the applicant thought the man had been hit, the applicant might have succeeded on the basis he had seen someone killed or critically injured. The evidence does not go that far. The evidence suggests only that the tarmac was a confused and tense scene with people behaving skittishly. The applicant appears to have made assumptions. It is doubtful another person with the applicant’s background and experience – even if he had been informed prior to landing that something may have occurred at some point around the airport, and even if he was ill with a fever – would have formed the same view. I do not think I can be satisfied the events he sketched in such limited and confusing detail amounted to category 1A or 1B stressors.
I would add that if I am wrong in my conclusion that the airport event did not answer the description of a serious stressor, I am not satisfied the event occurred as the applicant described in any case. The applicant was a poor historian. His account lacked important details that one would expect him to recall notwithstanding the passage of years. I note he has given prior inconsistent statements in which he claimed to have participated in events that he now admits did not occur. His account of the airport event was inconsistent with the contemporaneous records and it was unsupported by any other witness. I am satisfied beyond reasonable doubt that I should not accept his account.
CONCLUSION
The decision of the Repatriation Commission is affirmed.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ...............................[Sgd].............................
Associate
Dated 29 June 2012
Date(s) of hearing 24 May 2012 Advocate for the Applicant Mr Chalk Advocate for the Respondent Mr Williams
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