PHILLIPS and REPATRIATION COMMISSION
[2011] AATA 602
•30 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 602
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6124
VETERANS' APPEALS DIVISION ) Re NEVILLE WAYNE PHILLIPS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date30 August 2011
PlacePerth
Decision The Tribunal:
· varies the decision under review by:
- varying the diagnosis of the applicant’s psychiatric condition from post traumatic stress disorder to generalised anxiety disorder; and
- determining that the applicant has also suffered alcohol dependence but that that condition is not a war-caused injury or a war-caused disease for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth);
· in all other respects, affirms the decision under review.
..........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy (RAN) – applicant’s RAN service included operational service – applicant claimed post traumatic stress disorder (PTSD), irritable bowel syndrome (IBS) and hypertension war-caused – applicant has not suffered PTSD – applicant has suffered generalised anxiety disorder (GAD), alcohol dependence, IBS and hypertension (diseases) – Statements of Principles (SoPs) – SoPs do not uphold contention that applicant’s diseases connected with operational service – material before Tribunal does not raise reasonable hypothesis connecting applicant’s diseases with operational service – applicant’s diseases not war-caused – decision under review varied
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009.
Statement of Principles concerning alcohol dependence or alcohol abuse, Instrument No 76 of 1998
Statement of Principles concerning anxiety disorder No 101 of 2007 (as amended by Instrument No 42 of 2010 and by Instrument No 15 of 2011)
Statement of Principles concerning anxiety disorder, Instrument No 1 of 2000
Statement of Principles concerning hypertension, Instrument No 35 of 2003 (as amended by Instrument No 3 of 2004 and by Statement of Principles concerning hypertension No 11 of 2008)
Statement of Principles concerning irritable bowel syndrome No 27 of 2011
Statement of Principles concerning irritable bowel syndrome, Instrument No 103 of 1996
Benjamin v Repatriation Commission (2001) 70 ALD 622
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Hunter v Repatriation Commission (2010) 114 ALD 89
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
30 August 2011 Deputy President S D Hotop Introduction
1.Neville Wayne Philips (“the applicant”), who was born in November 1949, served in the Royal Australian Navy (“RAN”) from April 1966 to April 1980. He rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), on board HMAS Hobart in Vietnamese waters from 3 January 1970 to 25 January 1971, and “defence service”, for the purposes of Part IV of the VE Act, from 7 December 1972 to 5 April 1980.
2.On 28 June 2004 the applicant made a claim for disability pension under the VE Act in respect of various disabilities, including “war-caused stress”, “irritable bowel syndrome”, and “high blood pressure”, which he claimed were related to his operational service in Vietnam.
3.On 24 May 2005 a delegate of the Repatriation Commission (“the respondent”) decided that (inter alia) “post traumatic stress disorder, irritable bowel syndrome and hypertension are not related to service”.
4.On 31 July 2009 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 24 May 2005.
5.On 30 December 2009 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 31 July 2009.
The Evidence
6.The evidence before the Tribunal comprised:
· the “T Documents” (T1–T46, pp I–XXIX, 1–348) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· statement of the applicant, dated 22 July 2010 (Exhibit A1);
· letter from Paul David Hill to the applicant, dated 19 June 2006 (Exhibit A2);
· transcript of the applicant’s hearing before the VRB on 31 July 2009 (Exhibit R1);
· extract from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-IV-TR”) relating to “Posttraumatic Stress Disorder” (pp 463–468) (Exhibit R2);
· report of Dr Jonathon Spear, dated 23 May 2011 (filed by the respondent pursuant to a direction made by the Tribunal on 6 April 2011) (Exhibit R3); and
· the oral evidence of the applicant and of Captain John Hewett RAN Rtd.
The Applicant’s Evidence
7.The applicant’s witness statement, dated 22 July 2010, the contents of which he affirmed were true and correct, is as follows:
“ …
8. I served in the Royal Australian Navy from 5 April 1966 until 5 April 1980.
9.I completed operational service from 3 January 1970 to 25 January 1971 aboard HMAS Hobart in Vietnamese waters.
10. I joined HMAS Hobart in May 1969.
11.When I first went aboard the Hobart I was given an induction tour of part of the ship and told about the ship having been hit by a US missile.
12.It was pointed out to me where damage had been sustained.
13.I had known one of the blokes that had been killed, Ordinary Seaman Butterworth.
14.It was a chilling reminder of what may lie ahead should Hobart’s 3rd deployment go ahead.
15.It was during the same year that that (sic) HMAS Melbourne had returned to Garden Island with a damaged bow after she had cut through USS Frank E Evans.
16.I had served on HMAS Melbourne during 1967 and I am sure my messdeck at the time would have suffered severe damage during that collision.
17.My safety and that of the ship was something that was often on my mind.
18.My then girlfriend and I had planned to get engaged in December 1969 and married in December 1970, but with the change in the ship’s programme we decided to get married in February 1970 just in case something may happen.
19.My role on the HMAS Hobart was that of signal man.
20.It involved visual communications using flags and lights, challenges and replies by lights and radio, manning voice circuits and distribution of inward and outward bound signals.
21.Reports on the results of missions came through us, including how many enemy were killed in action, or wounded in action.
22.We knew what had happened and what was going to happen, being privy to about 95% of the ship’s communications.
23.Our role was important to the safety of the ship and mistakes put the ship and its crew at risk.
24.I recall one occasion, on 19 May 1970 when Hobart had taken on a gun runner.
25.We were to proceed to intercept and take under surveillance an SL-4 trawler, a suspected infiltrator.
26.We believed that it could put a sizeable hole in us.
27.We sought permission from Australian Naval Board (‘ACNB’) to engage and were told ‘only if fired upon first’. I thought that was a bloody stupid idea because we genuinely thought we were under threat, and we were ‘hyped up’.
28.The radio operator at the time was using flash signals and he couldn’t understand why he was getting acknowledgements before he was sending a message.
29.He had mistakenly sent the signals before he had intended to.
30.The pursuit was called off and we were told that we were ‘not suitable’ …. Another US Ship was assigned, and Hobart was ordered back to the gun line. I never knew whay (sic) or what happened.
31.I was often afraid for my safety because of what we were doing.
32.On occasions (approximately 21) Hobart was required to anchor to conduct fire missions in support of friendly forces at a number of locations up and down the coast, including Danang Harbour (which at that time was a ‘hot spot’), Vung Tau Harbour and area of Song Ong Dock River, and off U-Minh Forest.
33.During these occasions ‘awkward state 2’ was established which implements ‘full defence’ against swimmer attack, and many bottom searches were conducted ….
34.While at anchor in the harbour we were required to carry out ship husbandry duties on the upper deck dressed in rubber duckies, crash hats and flak jackets.
35.We were on the line, and so we were firing on something or somebody almost every day. I knew that we were killing people.
36.We were required to fire ‘harassment and indictment’ firings designed to demoralise the enemy, denying them sleep and keeping them on the move.
37.These firings usually took place during middle and morning watches (2359 – 0500 approximately). If it worked on shore, it certainly worked on ship, particularly as I slept in the forward mess under Mount 51.
38.Being on board a ship was different to the other services.
39.I guess that in the Army after you had finished your shift you could go to the wet mess and have a drink.
40.In the Navy you simply had to get on with things. You had a kip and then went back on duty.
41.You didn’t have much opportunity to sit back and reflect on what happened and how you felt.
42.Whenever I had R & R, though, I would get hammered to forget about what we had been doing and to make it go away for a while.
43.My drinking increased significantly over the time I spent in Vietnam and got to the stage that I think that I was just about an alcoholic. On the return home I was drinking beer for breakfast.
44.I recall one occasion in Hong Kong when a colleague and myself went ashore and drank solidly for 7 days straight.
45.We didn’t wash, hardly ate and spent all our money. We thought we had missed the ship.
46.On another occasion after Subic Bay we went to Bangkok and I went to about 10 brothels because they were the cheapest places to buy alcohol.
47.I recall that when we returned to Fremantle we had to wear our uniforms on shore.
48.I was treated like shit.
49.I remember going to the Carlisle Hotel with my father, and the girl behind the bar refused to serve me because I was in uniform.
50.I felt pure anger, but I also felt useless, as though the whole thing had been a waste of time.
51.I experienced a number of incidents in Vietnam that I believe have contributed to my PTSD.
Helicopter Incident
52.The incident that troubles me the most is one that I have not yet discussed with my psychiatrist, Dr Monick, because I simply didn’t want to talk about it and I don’t want to remember it.
53.I had talked about the other incidents and thought that enough was enough.
54.It frustrates me that I have to go through all of this.
55.I had chosen to talk about the things that I thought I could handle.
56.I believe that the incident occurred during the latter half of my deployment on or about 28 July 1970.
57.We had been called to provide bombardment support to prepare and clear a US landing zone near the DMZ.
58.The shore batteries could not reach the area.
59.The plan was that both our guns would be firing to clear or make safe the landing zone prior to the assault.
60.We had steamed overnight to reach the area.
61.The first gun (Mount 51) commenced firing and then suffered a malfunction.
62.Mount 52 then commenced firing but it too suffered a malfunction. The whole firing lasted about 10-13 minutes.
63.At the time all non-essential personnel were cleared off the upper deck.
64.I was on the flag deck.
65.About 12 US helicopters started landing but they did not have our support.
66.I saw at least three helicopters shot in the air by VC ground fire.
67.I don’t know how many others were hit. Some made it.
68.I saw the explosions and knew that no one could survive.
69.I felt helpless because there was nothing we could do for them.
70.I was glad that it wasn’t me.
71.I felt as though we were useless and our guns were useless.
72.I couldn’t do anything about it except drink a lot of water.
73.I felt so sorry for the people that were killed, but we just had to carry on.
74.The word from command came around that we were not to talk about the incident. The skipper held discussions about ‘security’ as we headed South.
75.Attached and marked ‘NP1’ is a copy of a statement by Allan Etherington referring to this incident, and copies of two photographs.
POW incident
76.We had been called in to provide gunfire support in the Long Hai Hills area.
77.The hills were a renowned VC stronghold.
78.I think it was the 1st time we had ever given support to the Australian Army.
79.We opened fire on positions in the hinterland, between the beach and the hills.
80.We were using shells designed to explode prior to hitting the ground so as to cause injuries.
81.The theory was that if an enemy soldier was injured, another or more would be required to help the injured one.
82.On the ship we knew what sort of damage the shelling caused and we were aware of the number of killed and wounded from the reports that came through.
83.The reports were broadcast on loudspeakers on the ship.
84.The VC had a history of clearing their dead and wounded so that accurate reports of casualties could not be made,
85.The mission had been called completed.
86.I was watching through ‘big eyes’ binoculars.
87.I saw at least three people, possibly four, come running down to the beach.
88.One was obviously wounded and was being supported by his colleagues.
89.The injured soldier collapsed on the beach and I believe he died because the others no longer supported him and left him on the ground.
90.They threw down their rifles and raised their hands in surrender.
91.Further up the beach others were running up the hills and a spotter went after them.
92.We opened fire again until the situation was neutralised.
93.One of the soldiers on the beach picked up his rifle and ran back to the hills.
94.The other stood on the beach and waited until he was taken prisoner, which was about 20 minutes later.
95.I felt sick at the horror of what we were doing, with their rifles up against our 5 ½ inch guns, and I questioned why I was there.
96.I felt that it was unfair and that their resistance was futile, but that we were there to defend our men, even if it meant killing and maiming.
97.It didn’t matter that I wasn’t the one shooting. I knew, and we all knew, the result of what we were doing.
98.Attached and marked (sic) are copies of three photographs taken of shore fire, including a copy of a photograph taken through ‘big eyes’ binoculars.
99.Also attached and marked ‘NP3’ is a copy of a statement by Max Sulman.
180 Degree UNREP
100.It was common knowledge that when we were heading North towards the DMZ it was a regular occurrence that the ship would be ‘painted’ by enemy radar.
101.Tiger Island was some 20 miles off the coast and we all knew that there was a risk to the ship.
102.We went alongside a US ship to take on supplies and ammunition.
103.An Unrep is always risky because some of the ship’s radar is switched off and to a degree you are blind.
104.The ship is vulnerable to potential attack.
105.Usually any change in direction is done in 5 degree increments.
106.On this occasion something completely out of normal took place.
107.I had never been involved in a 180 degree turn previously and thought at the time that something must be going on.
108.We had not been given any notice of what was going to happen.
109.The hairs on the back of my neck stood up and I was alarmed and afraid.
110.I could not understand why we were not breaking away.
111.Later I spoke with Ray McGuffie who told me that we had been painted by electronic warfare, and my fear was heightened.
112.I believed that we had been on the brink of disaster and that we could have been killed.
Mine Incident
113.We had been undergoing an Unrep and were heading back into our station.
114.We were aware there had been enemy activity when we came across the wreckage of a Vietnamese Coastal Defence junk.
115.I was on watch on the flag deck.
116.Word came through from signals command that it had been sunk by a mine.
117.It was close to our patrol area.
118.I took photos of the wreckage.
119.I felt afraid that the mine had been intended for us, a possibility that can’t be discounted.
120.The incident emphasised our vulnerability.
121.I already felt we were vulnerable to mines because at night we would be surrounded by fishing boats.
122.We use to say they looked like ‘snow’ on the ship’s radar.
123.It would have been very easy for a fishing boat to slip alongside and drop a mine.
124.I was constantly worried about mines, possibly because of my father’s experience, which was always playing on my mind, but also because the VC would often float mines down the river to see if something was ‘caught’.
125.Suspicious objects were regularly reported to the bridge. Sometimes they turned out to be coconuts.
126.The sentries on the upper deck would keep a lookout and fire on anything suspicious.
127.On one occasion a cylindrical object was seen and fired on, but it didn’t explode.
128.It did, however, heighten my anxiety and my level of fear.
B52 Incident
129. We did not have to be working with B52s to know that they were in the area.
130. We could often hear them, but couldn’t see them because of their height.
131.I knew that they were used in large scale operations and that if they made a mistake then we could be victims of friendly fire, but that didn’t play on my mind.
132.On this occasion we had the coast on our port side and I heard the planes, then I saw the conflagration on the beach.
133.The beach just disappeared.
134.It was clearly visible from where I was and I thought ‘This is terrible, nothing could survive’ or something similar. Not even a cockroach could have survived.
135.I did not see any casualties, but I knew that there were enemy in the area and that anyone on that beach would have been destroyed.
136.Hobart was not involved in any way. We were in transit and that is why we saw it.
137.Everyone on board knew what we were doing there and what effect we were having when we opened fire.
138.We knew we were killing and maiming people.
139.Just because we were on a warship with 5 ½ inch guns did not mean we were invincible.
140.We were vulnerable to attack and I was afraid of what might happen.
141.My fear got worse as time went on, and I drank more and more whenever I go (sic) the chance to help me forget.
Incident in Subic Bay
142.An incident that I have raised with Dr Monick … but did not raise with the VRB occurred while we were in Subic Bay, Olangapo City.
143.It happened during one of Hobart’s maintenance visits.
144.I was in the back blocks and saw one of the many ‘security guards’ that were in the area shoot a Phillipino (sic) who had knocked some gear off.
145.The Phillipino (sic) brushed past me as he tried to get away and only got about 40 feet or so before he was shot.
146.The security guard just looked at me and smiled.
147.I just legged it.
148.The incident scared the hell out of me. I sometimes have nightmares where I see the Phillipino (sic) being shot.
149.I didn’t report it because I didn’t know who I should report it to and I didn’t know the street name.
150.A curfew was in place at the time.
151.I didn’t include it in my claim because it happened in a free port, and I didn’t think that it was relevant because it hadn’t occurred in a ‘war’ situation.
152.I have since been advised otherwise.
…” (Exhibit A1)
8.The statement of Allan Etherington, referred to in para 75 of the applicant’s witness statement, is as follows:
“ My name is Allan Etherington. I served in the HMAS Hobart on its 3rd deployment in Vietnam. I was at that time an able seamen (sic) quarter master gunner.
I wish to record my recollections of an incident midyear 1970, whilst the HMAS Hobart was on gunline operations, the date approximately 28 July 1970 or there about.
A United States helicopter group was engaged in action against an enemy gun emplacement.
I recall helicopters being hit by enemy fire. Some helicopters went down, even though the Hobart had the opportunity to engage the enemy gun emplacement, our ship did not fire upon the enemy.
My position, and at that particular time, my duty was Port TDT Operator (target designation transmitter). The TDT is situated on AA Control, high up on the ship’s super structure. This gave us a clear view of all actions that the ship was engaged in.
I specifically remember this incident, because I took photos from my position on AA Control.
…” (part of Exhibit A1)
9.The statement of Max Sulman, referred to in para 99 of the applicant’s witness statement, is as follows:
“ As the Navigating Officer of HOBART I have a pretty good recollection of how close we operated during firing missions and have heard previous reports of claims that we were very close to the shore while shooting. We were not and were some miles off for almost all of them. To have been much closer would have been unnecessary and would not have helped the accuracy of the fall of shot. Certainly off the Long Hai hills we were well out for reasons of trajectory: you will recall there was a strip of beach with quite grand villas and then the hills rose immediately behind. You may remember that was where we ‘took a prisoner’, and the movement on the beach was witnessed by the flag deck and others, but to the best of my belief that was because people were using the ‘Big Eyes’ and they were very high magnification, hence perhaps, the belief we were in close.
We did do some firing missions in Cam Ranh Bay (not sure about the spelling) on one occasion but we stayed as close to the middle and as far from the shore as was feasible. Prudence, and the captain, would have it no other way.
We did use extended range procedure during some firings off the DMZ but we most certainly did not get within 5 cables of the beach. I think the bottom was slowly shelving and we would have run out of water about there anyway, not to mention command concerns about the possibility of hostile fire.
So I can state quite definitely that we did not carry out firing missions at or within 1000 yard (sic)/5 cables of the shore.
…” (part of Exhibit A1)
10.In cross-examination the applicant gave the following evidence in respect of the various incidents referred to in his witness statement:
· “B52 incident”
-HMAS Hobart was 2–3 miles from shore;
-there was a “huge explosion” and the beach “disappeared in an inferno of flames”;
· “180 degree UNREP”
-this manoeuvre was “out of normal”;
-he had “the impression something was wrong”;
-the hairs on his neck “were up”;
-there was no firing from Tiger Island;
-there was no warning over the ship’s PA system;
-he was “concerned” about the fact that the ship was doing a 180° turn;
-this was “absolutely extraordinary”, he had never been involved in a 180° turn before that occasion, nor was he ever involved in a 180° turn after that occasion;
·“Mine incident”
- the “possibility” that the mine had been intended for HMAS Hobart “could not be discounted”;
· “POW incident”
-the ship would have been moving closer to the shore during the incident;
· “Helicopter incident”
-the target was “a couple of miles away”;
-he saw “helicopters coming under fire”;
-he did not see “a chopper hit the ground” but he did see the “smoke plume”;
-when he sees a helicopter now, he watches it because he is “anxious it might fall to the ground”;
· “Incident in Subic Bay”
-he was “about 30 feet away” when the Filipino person was shot;
-he “panicked and beat it quick smart” and went back to the ship;
-he did not tell anyone on the ship about the incident, he kept it to himself, as he had “no idea” of the street or location where the incident occurred.
The Evidence of Captain John Hewett Ran RTD
11.Captain Hewett confirmed that, following a request from the Department of Veterans’ Affairs (“DVA”), he had, on behalf of Writeway Research Service Pty Ltd, prepared two research reports in respect of claims made by the applicant relating to his RAN service on board HMAS Hobart in Vietnam in 1970.
12.Captain Hewett’s first report, dated 10 December 2004, states as follows:
“ …
Veteran’s Contentions
3. The veteran’s contentions can be summarised as:
a. While HOBART was in the vicinity of the Demilitarized Zone about 100 metres from the shore providing gunfire support to troops ashore, B52 bombers were called in to bomb the same target. The beach near the ship suddenly ‘disappeared in explosion and flames’.
b. On 27 August 1970, while HOBART was conducting an underway replenishment with USS ASHTABULA, HOBART detected enemy ‘electronic devices linked to rocket launchers’ which caused the ships to carry out a 180 degree turn to avoid an inevitable rocket attack.
c. On 17 August 1970, while operating in the vicinity of Cua Viet River, a junk was sunk by a mine with the loss of 2 lives. Mr Phillips believes the mine was intended for HOBART. The sighting of wreckage from the junk on the following day caused the ship’s command to subsequently operate with greater vigilance in the area.
d. On 16 May 1970, HOBART opened fire at point blank range on Vietnamese enemy on the shore. He witnessed closely the death and severe maiming caused by the ship’s antipersonnel shells.
Sources of Information
4. The following sources of information have been used to compile this report.
a. Historical Record – Neville Wayne Phillips (Attachment 1)
b. HMAS HOBART Reports of Proceedings (RoP) – April 1970 – September 1970
c. Discussions with Commodore L M Sulman RAN Rtd
d. Discussions with Lieutenant Commander P I Playford RAN Rtd
B52 Incident
5.There are no indications in HOBART’s Reports of Proceedings (which are particularly comprehensive for this 1970 deployment) that she ever fired a mission from ‘about 100 metres’ from the coast. The Naval Gunfire Support Annexes to the Reports of Proceedings for the deployment period record the times, ordnance fired, type of mission, target description, range of the target and distance off shore from which the mission was fired and damage assessment for each mission fired. The shortest distance to the coast recorded is 0.8 miles for a harassment mission on the night of 23 May. The range to target on that occasion was 10.5 miles, virtually the maximum range of the gun. This would have been the reason for the ship being so close to the coast. There were very few missions when HOBART fired from a position that was within 1.5 miles of the coast and in none of these cases was the target close to the ship.
6.Although there are many references to occurrences of interest in the Reports, there is no mention of a B52 strike anywhere in the vicinity of the ship. Commodore Sulman, who was the Navigating Officer at the time, confirms that distances to the coast during firing missions were never as close as the veteran claims and were rarely less than 2 miles. He has no recollection of B52s dropping weapons on targets anywhere near the ship. Nor does Lieutenant Commander Playford, who was Gunnery Officer in the ship, recall any B52 missions anywhere near the ship.
7.The nearest description of an occurrence in any way similar to that described by Mr Phillips is in the Report of Proceedings for July. Even in this instance there was no mention of B52 participation. HOBART was to provide preparatory fire of 102 rounds prior to a planned helicopter borne assault by troops of the US 4th Infantry Division on 28 July. HOBART fired against all the allocated targets but minor defects in the gunnery system meant that the full number of rounds could not be fired in the time allowed. The mission was fired from a position 3.2 miles from the coast. The Report of Proceedings states ‘The feeling in the ship on completion of firing at 0857 was one of acute disappointment but the observation of the aerial bombardment and helicopter assault high on the mountain ridges within a few miles from the shoreline provided a welcome relief from this disappointment’. A copy of the relevant portion of the Report of Proceedings is at Attachment 2.
Underway Replenishment Incident
8.On 27 August HOBART carried out 2 replenishments. The first was a short replenishment with USS MAUNA KEA lasting only 19 minutes. The second, which involved the transfer of fuel, stores and ammunition from USS ASTABULA lasted 2 hours and 12 minutes. During the replenishment the ships carried out a 180 degree turn to ‘avoid closing the North Vietnamese island, TIGER ISLAND’. The tone of the Report of Proceedings entry describing this indicates it was a routine, rather than urgent, manoeuvre. Because of the length of the replenishment the ships would have moved at least 25 miles from their start position and it would have been routine to ensure that ships did not approach enemy held territory unnecessarily. A copy of the relevant section of HOBART’s Report of Proceedings is at Attachment 3.
9.If the ships had been under immediate threat they would have executed Emergency Breakaway Procedures that are designed for just such situations and can be accomplished in a very short time. An Emergency Breakaway would give both ships the ability to manoeuvre independently and defend themselves in a matter of minutes. On the other hand, a turn of 180 degrees is slow. As well as taking considerable time it also moves the ships a considerable distance in a wide arc in their original direction before they start moving in the opposite direction. Turns during replenishment are practised regularly and require concentration by the command teams in both ships but they are not particularly dangerous. However, during this whole process both ships are very restricted in the actions they can take and it is not a situation any Commanding Officer would opt for if there was an imminent threat. Because of the large number of replenishments carried out during the deployment, Commodore Sulman does not specifically recall the one in question. As the Navigating Officer he would have been on the bridge for each replenishment and confirms that if the ship had been under immediate threat the last thing that would have been done is to remain attached to a replenishment ship. An Emergency Breakaway would certainly have been initiated. Lieutenant Commander Playford’s views are the same. He adds that it was not at all unusual for the ship to detect land based radar transmissions of various types and such detections did not automatically mean the ship was under threat. In fact it rarely did.
Mine Incident
10.On 17 August a junk of Coastal Group 11 based in the Cua Viet River was sunk by a mine near the river entrance and about 1000 yards from shore with the loss of 2 lives. According to HOBART’s Report of Proceedings, local authorities believed the mine was either laid in the river and was subsequently washed out to sea as a result of heavy rains in the area or it was deliberately laid close inshore to target junks or patrol boats. Although the possibility that the mine was intended for HOBART could not be discounted, it was thought unlikely. The investigation of wreckage from the junk the next day and the requirement for HOBART to maintain patrols in her patrol area to seaward of the mining position in order to be able to meet her Gunfire Support commitments over the next 2 days (firings took place between 2 and 3 miles off the coast) served to spur HOBART to greater vigilance. The relevant extract from HOBART’s Report of Proceedings is at Attachment 4.
Shoreline Bombardment Incident
11.HOBART was required to conduct several Gunfire Support missions during daylight on 16 May. Most were against structures and bunkers but one had ‘VC (Viet Cong) in the open’ as part of the target description. The Gun Damage Assessment provided by the air spotter at the end of the mission included 4 VC killed in action, 1 VC wounded in action and 1 VC prisoner of war. An extract from HOBART’s Report of Proceedings covering this incident is at Attachment 5.
12.The mission was against a target at a range of 7.5 miles with the ship firing from a distance of 7.1 miles off the coast. The target would therefore have been close to the shoreline. In fact, personnel in HOBART had sighted movement in the area of a previously fired mission and when the air spotter was informed of this he called for a further gunfire mission. The target area was therefore visible from HOBART. At 7.5 miles, even with good binoculars, it is a moot point whether anyone in HOBART could ‘witness closely’ the effects of a bombardment. Commodore Sulman recalls that when he went to the upper deck at the end of the firing mission, through binoculars the Armoured Personnel Carriers that had come to the area to take the surrendering enemy soldier into custody could just about be made out. To put this into perspective, this distance from ship to target during the mission would have made watching the results of the firing roughly the same as watching activity on City Beach from the northern breakwater at the entrance to Fremantle Harbour.
Summary
13.There is nothing in the ship’s Report of Proceedings that indicates the ship ever fired a mission from very close inshore, 0.8 miles being the closest with the target at close to maximum gun range. Likewise, there is no mention of an aerial bombardment in close proximity to the ship and neither the Gunnery Officer nor the Navigating Officer can remember any such instance.
14.The 180 degree turn during replenishment with ASHTABULA is recorded but it appears to have been a routine precaution to avoid closing an enemy held island during a prolonged replenishment rather than reaction to an imminent threat. Turns during replenishment are practised regularly. They are time consuming and require concentration on the part of both ships’ command teams but are not particularly dangerous. The expected reaction to an imminent threat during replenishment operations would be to conduct an Emergency Breakaway Procedure. This is also practised regularly.
15.The mining incident as described by the veteran is described in the Report of Proceedings. It occurred 1000 yards off shore and HOBART’s usual patrol area was further to seaward at a distance of over 2 miles. The possibility that the mine was planted with HOBART or the US minesweeper operating in the area as its targets cannot be completely discounted but thinking at the time was that it had been planted in the river to sink small local traffic and had been washed out to sea by recent torrential rains. It did raise the awareness within the ship of a potential mine threat.
15.(sic) There was a mission fired by HOBART at personnel near the beach on 16 May during which enemy were killed and wounded. The target area was visible from HOBART. The target was 7.5 miles from the ship and at that range, even with powerful binoculars, it would be difficult to discern any detail.
…”(T8)
13.Captain Hewett’s second report, dated 20 April 2005, states as follows:
“ …
Points to be Clarified
1.The reference seeks clarification and more detail on two points arising from my report dated 10 December 2004. The two points to be addressed are:
a. Would a person using ‘Big Eyes’ binoculars from a distance of about 7 nautical miles be able to see a person’s actions, and
b. Would an Ordinary Seaman Communications Operator (ORDCO) be above decks during a bombardment using ‘Big Eyes’ binoculars to witness the actions of the bombardment?
‘Big Eyes’ Binoculars
2.‘Big Eyes’ 20 x 120 binoculars were used in Guided Missile Destroyers such as HMAS HOBART by communications branch personnel, primarily to watch for and read visual signals from other ships. They were powerful binoculars that were used to allow a trained signalman to read flashing lights, flags and semaphore at longer ranges than that possible through other binoculars that were normal issue for lookouts and bridge staff. The large binoculars now being used in Royal Australian Navy ships for this purpose are more powerful than the ‘big eyes’ used in HOBART during the Vietnam War.
3.Trying to establish just what could be seen at particular ranges has been problematic. Several personnel who had cause to use and be familiar with ‘big eyes’ binoculars in Guided Missile Destroyers have varying recollections of what was possible using the binoculars, partly because it has been some time since they used the binoculars and partly because precisely what level of detail could be seen at specific ranges was not something consciously recorded.
4.The general theme from those contacted was that ‘big eyes’ were good powerful binoculars but even so it is very doubtful that they would provide a level of detail that would allow actions of people to be discerned at around 7 nautical miles (8 statute miles). Some opinions were that actions could definitely not be seen at this range. In addition to seeking opinions of retired communications officers who had been promoted from the ranks of communications sailors and who were familiar with ‘big eyes’, Chief Petty Officer Yeoman M Coleman who is a senior sailor in the Communications School at HMAS CERBERUS was asked for his opinion on what could be seen using ‘big eyes’ at that range. His view, concurred with by other senior communications sailors with ‘big eyes’ experience who he consulted, is that a flashing light could easily be read, flag hoists could probably be read by experienced operators but it was very unlikely that semaphore could be read at that range. In other words, actions by a person, even deliberate actions designed to be distinguishable as a method of communications, were not able to be discerned at 7 nautical miles.
5.From where the binoculars were used in a Guided Missile Destroyer the horizon was at a range of a little less than 8 nautical miles. This would mean the target area in question (which was at a range of 7.5 nautical miles) would have been visible through the binoculars, even it if were at sea level.
6.In an effort to try and provide an additional assessment of the capabilities of ‘big eyes’ binoculars I attempted to find a description of what the binoculars are capable of. The only description of these capabilities that I have been able to find is in an advertisement on the internet for the sale of ex-naval 20 x 120 ‘big eyes’ binoculars to hunting/nature groups. Since the description was aiming to sell the binoculars it should be treated with caution as it may overstate the capability of the binoculars. The claim made in the advertisement was that using the binoculars, an elk could be seen at 7 (statute) miles (ie 6.1 nautical miles) such that it appears as though it were only 1 mile (0.87 nautical miles) away using the naked eye.
7.The additional 0.9 to 1.4 nautical miles from HOBART to the target area in question may have further degraded the clarity of the image through the binoculars but I have assumed that the 7:1 description in the advertisement is accurate. In an attempt to obtain a good feel for what might be visible, I proceeded to the northern end of Lake Ginninderra in Canberra on a bright sunny and clear day and observed activity at the southern extremity of the lake. This was over water and over a distance of almost exactly one nautical mile.
8.The results of my observations were as follows:
a. Vehicular traffic could clearly be seen. It was not possible to distinguish between sedans and station wagons, although, because of their more distinctive profile vans or minibuses were readily distinguishable.
b. Personnel movement could be discerned from time to time against plain, light backgrounds. No detail could be seen and moving people were easier to see than those who did not move very much.
c. Either cyclists or motorcyclists appeared to be present from time to time. Only their speed of movement led to a conclusion that this was the case as it was not possible to discern what mode of transport they were using.
d. Against a darker and more varied background it was not possible to see whether there were people on the many balconies of the units in the hill beyond the road.
9.As a result of discussions with people familiar with ‘big eyes’ binoculars and the check I made culminating in the results listed in paragraph 8 above, I would have to conclude that it is most unlikely that a person’s actions (other than simply noting movement over the ground) could be observed at 7 nautical miles. If you accept the 7:1 premise used above, a similar check could be made by observing with the naked eye, activity on Heirisson Island from the river bank to the west of Barrack Street Jetty.
ORDCO Duties
10.Had Mr Phillips been an ORDCO at the time he was serving in HOBART, it would have been very difficult to determine precisely what tasks he would have had in the ship. However, he had been promoted to Tactical Operator some 5 months prior to joining HOBART and this provides a basis on which to assess what his tasks may have been.
11.Ships on operations off South Vietnam normally operated in Defence Watches because this provided them with sufficient personnel to fire most of the missions assigned to them and allowed the ship to react rapidly to any contingency. It was also a posture that could be sustained for long periods without unduly exhausting the ship’s company. In a Defence Watch situation it is very likely that a Tactical Operator would be used for watchkeeping duties (usually 4 hours on and 8 hours off) on the flag deck or bridge or in the main signal office. Some operators would have been manning radio nets, some would have been dealing with the visual signalling requirements of the ship and others would have been dealing with signal distribution and records.
12.If Mr Phillips was assigned to visual signalling duties and was on watch at the time of the bombardment he would have had access to ‘Big Eyes’ binoculars and since the ship was not in company he would probably not have had duties that prevented him from watching the bombardment target area.
Summary
13.From the best information available, at ranges of about 7 nautical miles using ‘big eyes’ binoculars, it is unlikely that it would be possible to have seen actions by people other than seeing movement over the ground. Against a cluttered background, especially if it were a dark background, even this could have been difficult to discern.
14.Mr Phillips may have had access to ‘big eyes’ binoculars through which he could observe the bombardment target area if he was on watch and assigned to visual signalling duties at the time of the bombardment.
...” (T10)
The Medical Evidence
Dr Kerry Monick
14.A report of Dr Monick, Psychiatrist, dated 26 April 2004, states as follows:
“ The following Vietnam veteran was referred by GP Dr Sri (sic) for psychiatric assessment of possible war related psychological problems:
Neville Phillips …
The abovenamed saw me on 10/03, 16/03, 18/03 and 21/04/04 at which time he reported long standing post war symptoms of anxiety, flashbacks, low frustration tolerance, trigger point explosiveness, concentration and memory difficulties, interpersonal problems and alcohol abuse.
Social/Work/Domestic Situation: Mr Phillips (54), is currently unemployed. He discontinued work as an operations manager at small distribution company … on 24/01/03 due to symptoms of Post Traumatic Stress Disorder and Chronic Fatigue Syndrome. His wife (50), is a home maker. His daughter (33), is married, mother and home maker. His son (27), works in warehousing distribution ….
Military Experience: Mr Phillips volunteered to join the Royal Australian Navy on 05/04/1966 and was discharged on 05/04/1980. Initially he became a junior recruit at Leewin (sic) for 12 months, transferring to Canberra for a further 6 months training in general duties in communication. In 1967 he was assigned to the HMAS Melbourne for general duties in communication. In 1968 he transferred to HMAS Cerberus for 10 months during which he was trained in visual and electrical communications and further training as a signalman. From Canberra in 10/1969 he was transferred to the destroyer HMAS Hobart from 01/1970 as a signalman. In 01/71 he joined the HMAS Kuttabul (shore depot Sydney) for 18 months. In 1972 he was assigned to destroyer HMAS Brisbane where he spent 12 months as a leading signalman. From 1973 to 1977 Mr Phillips was in charge of the communications department for the HMAS Moresby and from 1977 to 1979 he was at the shore depot HMAS Coonawarra in Darwin. Thereafter he was discharged. Mr Phillips was operational (sic) on HMAS Hobart from 03/1970 to 11/1970 in Vietnam. Patient experienced life threatening situations as follows:
1.Between 04/70 and 06/70 whilst on HMAS Hobart in the DMZ zone, patient recalls his ship being located approximately 100 metres off coast providing gunfire support to troops on the land, American B52 bomber aircraft had been called in and arrived for a large bombing run on the same target. Mr Phillips was handing over the shift to the oncoming (sic) signalman when the B52s arrived. They were so high that they were invisible to the naked eye, however could easily be heard. Suddenly the beach front directly in front of them ‘disappeared in explosion and flames’ as the B52s dropped their payload. Because of the very close vicinity of the attack and he knew that the B52s were flying up to 2 miles above, he was terrified that they would be hit, as were others on board witnessing the explosion and conflagration.
2.On 27/08/70 whilst HMAS Hobart was conducting an UNREP with USS Ashtabula (AO51) whilst moving north to Icorp/DMZ patient’s ship was subject to being pinged or painted by enemy electronic devices linked to rocket launchers. This obliged the ship to immediately engage in counter measures and in the case at point they, while connected with the other ship, were obliged to do an immediate and dangerous 180 degree turn to head south to avoid the otherwise inevitable rocket attack.
3.On 17/08/1970 whilst operating in northern Icorp (vicinity CUA VIET River) a nearby junk of Coastal Group II was sunk by a mine with loss of 2 lives, the mine estimated to have held about 100 pounds of explosives. Patient believes that the mine was intended for the Hobart and on 18/08/1970 the wreckage observed was investigated and confirmed that it was from the same junk, causing Mr Phillips’ command to operate with greater 24 hour vigilance whilst operational in the DMZ.
4.On 16/05/1970 patient’s ship opened fire at point blank range on Vietnamese enemy on shore. He witnessed closely, deaths and severe maiming caused by their antipersonnel shells.
History of Presenting Complaint: After the return of Mr Phillips to Australia he recalls taking 4 weeks leave in Sydney drinking alcohol most of the time, often to blackout daily after beginning to drink at breakfast time. He also recalls the onset of severe insomnia, whole body twitches, short fuse and explosiveness. During the ensuing years he reports that his wife was patient with his ongoing symptoms and the couple therefore avoided severe marital conflict.
With regard to other psychiatric symptoms he recalls during the 1980s he developed flashbacks, nightmares, tremors, avoidance symptoms and hypervigilance he became socially avoidant and preferred not to go out and tended to sit away from the door where possible. By the 1990s symptoms continued but he experienced more difficulties at night. He recalled waking up after a nightmare and it would be as if he ‘just stepped out of the shower’ even if it were mid-winter. He would be obliged to towel himself down and cool off before returning to bed. By 2000 he had become severely socially withdrawn and even though he belonged to several military associations he did not attend meetings and rarely mixed with naval personnel. He also recalls that by this time due to his psychiatric symptoms, he began putting things off. During the Year 2000 I established at interview with patient and his wife that he suffered from the following symptoms of Post Traumatic Stress Disorder, all of which are still present (2004):
l)Intrusive Phenomena: Intrusive distressing recollections. These occur at least twice monthly and are mainly connected with bombing raids, mine sweeping activities, the imminent threat while under electronic surveillance and also being obliged to fire anti-personnel shells on Vietnamese on the shore firearms. Flashbacks are related to the same problems and could be triggered by events in media. Nightmares occurring at least once weekly included episodes of people being shot including a Philippino whom he saw shot at Subic Bay when his ship was anchored there for maintenance. Patient suffers from panic attacks approximately once to twice monthly often triggered by incidents of violence, either memories or in the media. There is phobia of crowded places and patient avoids shopping centres. Due to his phobic symptoms while driving his wife usually drives. Autonomic nervous system symptoms of anxiety include light headedness, tinnitus, dry mouth, shortness of breath/hyperventilation, tachycardia/palpitations. There are also butterflies in the stomach, abdominal cramping, diarrhoea with bowel movements several times daily at least twice a week. There is also urinary frequency and hyperarousal symptoms.
II)Hyperarousal Symptoms: Mr Phillips goes to bed around 9.30 pm and takes approximately 40 minutes to fall asleep. He awakens several times during his 5 to 6 hours of sleep and is usually lethargic the next day. There is irritability and explosiveness particularly towards his wife. He is hypercritical, judgemental and displayed his trigger point intolerance to this psychiatrist. Concentration difficulties are very significant and there are usually 3 or 4 attempts to read the newspaper. Patient estimates his concentration attention span is about 20 minutes and whilst still working in 2000 this caused him to be obliged to work 12 hours a day or more to complete designated tasks. Hypervigilance usually prevents patient from going out and he also checks noises around the house at night as if he were participating in a military security operation. There is exaggerated startle, especially to loud noises.
III)Avoidance Phenomena: Mr Phillips avoids discussing his experiences in Vietnam with others. He used to attend ANZAC Day parades but discontinued in 1999. He was previously a member of the RAN Communication Branch Association and the HMAS Hobart Association, but has not attended meetings for several years. There is a reduced interest in pleasurable activities: approximately 6 years ago, patient discontinued golf and fishing. He noticed a profound reduction in his libido approximately 4 years ago. There is detachment, especially with adults, and a restricted range of emotional affect.
Medical History: Usual childhood illnesses. Approximately 1989: Hypertension, hypercholesterolaemia diagnosed. 1999: Panic attacks diagnosed. Severe panic attack at work during which patient experienced profound disassociation and full spectrum of panic symptoms. He found himself on the floor in the fetal position, unable to plan how to get home. Saw doctor later and was diagnosed with panic attacks after treated with antidepressants after ECG was found to be normal. 2000: Benign lymph node removed from left axilla. 11/2001: Onset of severe fatigue, eventually enabling patient to only work approximately 1 week per month. Seen by Dr McCormack, physician for lower back pain, muscular back and leg pain. Later seen by Dr Singh and Chronic Fatigue Syndrome confirmed with second opinion from Monash University. More recently patient has been sent to Dr Steen for assessment of sleep apnoea and to an ENT specialist for evaluation. Results are not available today.
Medications: Cardia, magnesium oratate, Coenzyme Q10, Aurorix 150mg bd.
Alcohol: Current 1 glass red wine daily.
Cigarettes: NilAllergies: Deferred.
Family and Personal History: Patient was born in South Australia. His father (late 70s), is an RAN veteran of Maralinga and Korea, described as having hearing difficulties and being explosive but has a good relationship with patient. His mother (early 70s), previously was involved in various jobs mainly domestic, currently suffers from arthritis and osteoporosis. There is a sister (49) who is psychologically stable, married and living in the US with a US sailor. There is also a brother (45), salesman of roller doors and in a stable relationship. Mr Phillips achieved well at school academically and through sporting activities. He left at aged (sic) 15 and was first employed by BP Refinery learning how to operate tugs at Kwinana. At age 16 he became office boy for Howard Smith Industries, a shipping company and soon afterwards joined the navy.
After his military service described above, in 1980 Mr Phillips joined Pipeline Supplies, Perth as a storeman, involved in sales, warehousing and inventory control. In 1986 he was promoted to management. At that point the company was bought by Email and patient took on the role of inventory manager, operations manager and health and safety, quality control manager, eventually of Email operations within the state. In 1992 he was transferred to Adelaide to become operations manager and also took on responsibility for the Darwin office. In 1996 Mr Phillips’ boss relocated him to Perth with the task of rationalising 3 sites to become one. Eventually one of the 3 operations managers involved resigned and patient was seconded to be responsible for his job as well as his own, the situation requiring considerable diplomacy. In 1999 the company was bought by One Steel, the purchase also involving Smorgen. At this time a decision was taken to close down the site for which patient was responsible and he was obliged to take on the role of operations manager at another site. In 11/01 they were in the process of moving to the present site (Spearwood) when chronic fatigue symptoms began, gradually increasing over the following 12 months until he and his boss agreed that he should resign on 24/01/03.
Due to the fact that patient’s symptoms of chronic fatigue, after onset have the propensity to overlap with his symptoms of Post Traumatic Stress Disorder, I have carefully established that the symptoms of PTSD, described above were present in 2000 and still ongoing, prior to the onset Chronic Fatigue Syndrome. This information was corroborated by Mrs Phillips. Since the object of this report is not to confirm his medical condition of Chronic Fatigue I will not address this illness further. Please find attached documents from his other doctors regarding this situation.
Mental State Examination:
Mr Phillips presented as a neatly and casually dressed man looking his stated age. He was cooperative to interview. There was somewhat pressured speech with significant tension anxiety and anger manifested. There was no evidence of impaired reality testing but there were obsessional phenomena. Intelligence was assessed to be above average. Insight and judgement were fair.
Psychiatric Diagnosis According to DSM IV APA Criteria:
Axis I: (2000) Post Traumatic Stress Disorder with features of panic and phobia, severe. GARP 100%
Axis II: Nil
Axis III: Hypertension and hypercholesterolaemia (diagnosed late 80s)
Chronic Fatigue Syndrome, onset 2001
Rule out Irritable Bowel Syndrome.
Discussion and Recommendations: This 54 year old unemployed Vietnam veteran is referred for assessment of possible war related Post Traumatic Stress Disorder.
He was exposed to various life threatening situations whilst serving on HMAS Hobart in Vietnam. He was also involved in assignments during which his ship was ordered to fire on to kill or maim Vietnamese soldiers on the ground whose only defence was small firearms and he witnessed their deaths and severe injuries.
After his return from operational service Mr Phillips initially drank extremely heavily and suffered various intrusive and hyperarousal phenomena including insomnia, nightmares, flashbacks etc. Over the ensuing years his condition slowly deteriorated and he suffered from very significant psychiatric symptoms including pronounced social withdrawal during the 80s and 90s. In 2000, although still working, he was experiencing most severe symptoms including profound cognitive and affective difficulties. At this time he had an immobilising panic attack at work and was treated with antidepressants by his doctor.
Mr Phillips was already psychiatrically disabled before the onset of Chronic Fatigue Syndrome in 2001.
Since the aetiology of his Chronic Fatigue Syndrome has not been established to be infectious, it is proposed that pre-existing stress caused by patient suffering from PTSD in a demanding work environment was a causative factor in his CFS.
In my opinion he is severely and partially permanently disabled by his war related psychiatric traumata. He is currently on antidepressant medication. Mr Phillips is unable to work 8 hours or more per week due to his current symptoms.
…” (T4, pp 56–60)
15.A report of Dr Monick, dated 20 July 2009, states as follows:
“…
The abovenamed Vietnam veteran was seen on 15/07/09 from an update on a previous 26/04/04 assessment.
Social/Work/Domestic Situation: Mr Phillips (59) is currently unemployed and has been since 2003 due to psychiatric disability.
This report is to be read in conjunction with my 26/04/04 report. In that report, several incidents were cited which were regarded as causative factors in Mr Phillips’ Post-Traumatic Stress Disorder. This psychiatrist reviewed these incidents with Mr Phillips and he further confirms that these incidents occurred as stated.
Mr Phillips has continued to suffer from disabling psychiatric symptoms despite an increase in his anti-depressant medication. However, he reports that his fatigue symptoms have improved considerably and he now attends gym three times weekly and swims twice weekly. He still requires rest in the afternoon.
His PTSD symptoms have increased, so that there are more intense and frequent entries of memories eg Vietnamese deaths under fire from his ship, these memories occurring up to several times monthly. Flashbacks average 2 to 3 weekly and are mainly related to the pinging and coastal bombardment events. Nightmares continue to be very distressing and occur once to twice weekly. There are ongoing panic attacks approximately three monthly. Crowd phobia is still severe and patient shops early in the mornings to avoid the crowds. Physiological symptoms are still profound and are of approximately the same intensity as previously reported. Avoidance symptoms currently reported are somewhat more abiding than previously. Mr Phillips is more persistently withdrawn and at these times he obsesses and ruminates over his traumatic experiences. Also, he now has a profound sense of foreshortened future due to increasing psychiatric and physical health concerns. Hyperarousal symptoms remain severe and his wife complains of marked irritability and explosiveness, eg he loses his temper if she speaks to him while he is reading the newspaper. Mr Phillips reports that loss of concentration and memory are progressively affecting his mental functioning. If he is interrupted when reading, he reports that he cannot recall what he has read and has to start reading the article afresh.
Medications: Aurorix (moclobemide) 300mg bd, Nexium, Crestor, Aspirin.
Mental State Examination: Mr Phillips presents as a neatly and casually dressed man looking his stated age. There is tension and distress in his demeanour. He is cooperative to interview and appears to feel supported by his wife. Speech is at time hesitant. Reality testing is undisturbed but there are obsessional phenomena. Cognitive testing is moderately impaired for both short and medium term memory. Intelligence is considered to be average. Insight and judgement are satisfactory.
Psychiatric Diagnosis According to APA DSM IV TR Criteria:
Axis I: Post Traumatic Stress Disorder: with panic and phobic symptoms. 100% GARP
Axis II: Nil
Axis III: Hypertension and hypercholesterolaemia
Chronic Fatigue Syndrome, recovering
Discussion: Following a recent interview with Mr Phillips, it is evident that his PTSD symptoms have increased and that his chronic fatigue symptoms have improved. I have attached an updated GARP rating to reflect same.
While research into the aetiology of chronic fatigue syndrome is still ongoing, it is considered that psychiatric/emotional conditions can be a causative factor. In Mr Phillips’ case, I am therefore of the opinion that PTSD was responsible for bringing about the condition of chronic fatigue. Thus, it is reasonable to conclude that it was actually PTSD which was the causative factor (and chronic fatigue the aggravating factor) in his inability to continue working.
In my opinion, Mr Phillips is totally and permanently impaired by his war related psychiatric condition. He is unable to work for 8 hours or more per week in his regular or alternate employment due to his PTSD. His PTSD symptoms prevent him from looking for work and I do not recommend that he seeks work as he is totally disabled.
…” (T45, pp 287–288)
Dr Jonathon Spear
16.A report of Dr Spear, Consultant Psychiatrist, to the DVA, dated 23 May 2011, relating to his assessment of the applicant on 12 May 2011, states as follows:
“ …
HISTORY:
Originating Complaints:
Mr Phillips claimed that while on active service in Vietnam he experienced some stressful events including an occasion when the ship was providing gunfire to support the landbased troops and he had a fear of being hit by the 52 (sic) support bombers. There was another occasion where a ship was pinged by the enemy and had to take a 180° turn to prevent a potential missile attack. On another occasion a junk boat was sunk by a mine and Mr Phillips was concerned that this meant there was a plan to mine HMAS Hobart. He reported that he witnessed the effect of shelling on enemy onshore. He recalled that he was on deck in his role as communication officer and had access to binoculars. He described his emotional reaction as ‘Horror! Disbelief! There is a job to do but we’re still firing when they’re running away. Gut wrenching! You drink to forget’.
I note that these claims have not been substantiated.
Mr Phillips reported that he first started drinking alcohol at the age of 17. At that stage he was drinking only two cans of beer a day (14 standard drinks per week). He reported that during active service in Vietnam he started to increase his alcohol intake. ‘We got pissed to forget’. ‘We had nine days of no eating, just drinking’. ‘It was a fact of life. I learned to live with it’. ‘I was drinking pretty heavily’. On his return from service in Vietnam in late 1970 he was drinking six or more large bottles of beer a day (12 or more standard drinks per day – 72 standard drinks per week).
He reported that he had experienced symptoms of anxiety during active service including a dry mouth, diarrhoea, feeling uncomfortable, heart pounding, shortness of breath and sweating. He reported that on the way home he had an episode of diarrhoea and abdominal pain associated with anxiety, palpitations and a dry mouth. He reported that he was investigated for this at the Mount Hospital. He coped with these symptoms of anxiety by drinking alcohol.
He also found it difficult to cope with the reception on return. He was refused a beer when in uniform in a pub in Fremantle and the ship was ‘black banned’ in Adelaide. He had to walk through conscientious objector protestors who hounded him when the ship docked in Sydney.
He reported that he self-medicated using alcohol. In the 1990s his wife and friends told him he should do something about it and he decided to seek help as he was concerned about his health, being socially withdrawn, more irritable, anxious, having difficulty sleeping with intrusive dreams and sweating.
He reported that by the 1990s he was ‘pretty close to alcoholic’. At that stage he was having a beer for breakfast. He would then have eight beers in the pub before going home to have six stubbies. Even in the 1980s he had been drinking six beers at lunchtime and another six beers on the way home. He reported that in the 1980s and 1990s he did not have alcohol free days. On the occasional days he did stop drinking alcohol he became irritable and was unable to sleep. He noticed that he required more alcohol to become intoxicated. ‘It was costing me more to get drunk’.
In approximately 2000 on the birth of his grandchildren he made the decision to reduce his alcohol intake. Although he sometimes increases his intake he has currently reduced his alcohol intake to six cans of mid strength beer a day and he has one alcohol free day (36 standard drinks per week). He recognises that alcohol ‘is not getting me anywhere’.
From reviewing his medical notes, I note that from the 1970s he has had issues with irritability and insomnia. In the 1980s he had problems with nightmares and social phobia. He had stopped attending military parades in 1999. He had intrusive recollections of his time in Vietnam. In 1998 he lost interest in fishing and had problems with fatigue. In 1999 he had a panic attack at work.
Work Status:
Mr Phillips volunteered to join the Royal Australian Navy and enlisted on 5 April 1966. He was discharged on 5 April 1980. Between March 1970 and November 1970 he served on HMAS Hobart in Vietnam. He explained that his role was in visual communications which meant he needed to be on deck using binoculars.
On his discharge he served between 1980 and 1987 in the Reserves. His discharge rank was leading seaman.
In civilian life he worked with Pipeline Supplies. He worked initially as a storeman before being promoted to management, then as an operational manager. Eventually he retired because of chronic fatigue symptoms in 2002. He has not worked subsequently.
Current Problems:
Mr Phillips has limited social life. His family visits approximately once per month. He can be irritable, eg when waiting for his appointment today. Last week he shouted at his wife. His concentration is poor. When reading he misses his train of thought and has to reread passages. He finds that everything is an effort. He constantly has the temptation to increase his alcohol use. He takes approximately 40 minutes to get to sleep. His sleep is broken because of vivid dreams. He is a light sleeper and easily woken by loud noises. He also experiences blackouts associated with alcohol use approximately once per month.
His main current problem is anxiety, particularly when driving or when getting ready to go out (anticipatory anxiety). His symptoms of anxiety include dry mouth, diarrhoea, discomfort, pounding heart, shortness of breath and sweating. Triggers for anxiety include seeing or hearing helicopters, any violence and hearing loud noises.
Lifestyle:
Mr Phillips typically gets up at 8.30 and has breakfast then a shower. He watches the TV, does housework and then waters the garden. He goes shopping with his wife about once a week. They tend to go at a quiet time, early in the morning, to avoid the crowds. He rarely drives a car and generally leaves this to his wife although he was able to drive to the appointment today. He told me has stopped his hobbies of golf, fishing, playing darts and card games.
Current Treatment:
Mr Phillips sees his general practitioner, Dr Shigandan (sic), based at North Point Surgery, Cloverdale. He has appointments about once a month. He reports that his general practitioner is a good listener and gives advice on reducing alcohol intake and provides him with health checks.
He has been referred to a men’s health group by Veterans’ Affairs and he plans to join a Veterans’ Affairs gym program.
His current medications include Nexium 20mg daily, moclobemide 300mg daily, Crestor for hypertension and Aspirin.
Past Medical History:
Mr Phillips’ medical problems include tinnitus in the left ear, bilateral sensorineural deafness, osteoarthritis of the knees, lumbar spondylosis at L5/S1, hypertension, hypercholesterolaemia, disc prolapse of L2/3 and L4/5, irritable bowel syndrome and gastro-oesophageal reflux disease.
Family History:
Mr Phillips denied a family history of mental health issues.
Personal/Social History:
Mr Phillips was born in South Australia and reports a good relationship with his parents although his father was strict. His father was a veteran of Maralinga and Korea. His father died in 2009. His mother is currently in a nursing home with a diagnosis of dementia.
At school he made friends and got on well with most teachers. He had no issues with school refusal (sic) and no significant conduct issues. He left school aged 15. He initially worked operating tug boats and then did some office duties, before volunteering for the Royal Australian Navy.
He has been married 41 years. He and his wife have one son. A daughter died in 2006.
MENTAL STATE EXAMINATION:
Mr Phillips had a beard and balding grey hair. He had a plethoric complexion. He was holding back tears, particularly when discussing service events. He frequently sighed throughout the interview. He was co-operative and appropriate.
His speech was normal in rate, tone and volume although he was softly spoken. He had no formal thought disorder. He described his mood as uncomfortable and distressed. His affect was restricted. He described intrusive memories and thoughts of service events. He has a fear of having a motor vehicle accident and therefore he avoids driving. He denied suicidal thoughts. There was no evidence of delusions or hallucinations. He appeared of normal intelligence. He was fully orientated. His memory was intact. His concentration was normal.
He is willing to engage in treatment for his mental health problems.
Adaptation:
Mr Phillips has used avoidance, particularly of social situations and his interests and tends to procrastinate. He uses alcohol as ‘self-medication for anxiety’. He realises that this is having an adverse health effect and he is concerned about blackouts. He found swimming twice a week helpful. His main reasons for living (when he has thoughts of suicide) are his grandchildren and wife. He is now aware of how to contact emergency mental health lines if necessary. His wife is supportive. At times he copes through withdrawals sitting in the backyard alone for hours.
Attitude to Problems:
Mr Phillips stated ‘It was a waste of time us going to Vietnam. We did not achieve anything. We lost so what was the point?’ He had a sense of the futility of war. ‘The politicians wanted a war so they got one’.
Personality:
Mr Phillips appeared to have a choleric temperament and is somebody who prefers to do something first and then reflect on it. When he was younger he was ‘six foot tall and bulletproof’.
SUMMARY AND ASSESSMENT:
To address your specific questions;
1. What, in your opinion, is the appropriate diagnosis of any psychiatric condition from which Mr Phillips suffers?
My diagnosis according to DSM IV TR is as follows:
Axis I Generalised Anxiety Disorder
Alcohol Dependence, in partial remission
Axis II Choleric temperament
No personality disorder
Axis III Multiple health issues
Axis IV Service experiences
Bereavements of daughter and father
Not working
Axis V GAF 45
Although Mr Phillips has some symptoms consistent with post-traumatic stress disorder and he describes an emotional reaction consistent with post-traumatic stress disorder he does not meet the DSM IV criteria because his claims for witnessing traumatic events have not been substantiated. He does however have a significant mental health problem – Generalised Anxiety Disorder. He has coped with this by using alcohol.
2.What do you think is the cause of the condition?
Mr Phillips described the onset of heavy alcohol use with tolerance and withdrawal symptoms from 1970 when he was on active service in Vietnam. This appeared to be a way of self-medicating symptoms of anxiety including somatic anxiety symptoms such as dry mouth and diarrhoea. His heavy use of alcohol has aggravated anxiety symptoms over the years. Recently he has lost two family members and he has not worked. In addition his mother is unwell in a nursing home. These factors are probably aggravating his mental health issues.
3. When do you think was the clinical onset of the condition?
I believe the onset of the conditions would have been approximately mid 1970. Mr Phillips describes symptoms of anxiety from mid 1970 when on active service on HMAS Hobart. When he was returning from active service in the late 1970s he experienced some anxiety symptoms including nausea, abdominal pain and diarrhoea.
He reported that prior to going on active service he was only drinking two standard beers per day (14 units per week). This alcohol use increased during his active service and although it has reduced in the last few years he has drunk hazardous amounts of alcohol most of his adult life.
…” (Exhibit R3)
Other relevant medical evidence
17.A report of Dr Luca Crostella, Gastroenterologist, dated 1 June 2004, refers to the applicant’s “30 year history of abdominal pain and intermittent diarrhoea” and states that the “most likely diagnosis” is that the applicant has “diarrhoea predominant” irritable bowel syndrome (T4, p 65). Furthermore, Dr Spear’s abovementioned report of 23 May 2011 refers to the applicant’s “medical problems” as including irritable bowel syndrome.
18.In the applicant’s disability pension claim form, dated 24 June 2004, Dr Srigandan, the applicant’s general practitioner, provided a diagnosis of hypertension and stated that this condition had been “initially noted in June 1998” (T4, p 51). Furthermore, Dr Spear’s abovementioned report of 23 May 2011 refers to the applicant’s “medical problems” as including hypertension, and notes that the applicant is currently taking medication for hypertension.
The Relevant Legislation
The VE Act
19.Section 9(1) relevantly provides:
“ for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
Section 7(1) relevantly provides:
“ …for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…
…”
The words “disease” and “injury” are defined in s 5D(1) as follows:
“ disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 120, which deals with standard of proof, relevantly provides
“(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) … 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 …;
(b)that the disease was a war‑caused disease …; or
(c)that the death was war‑caused …;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…”
Section 120A relevantly provides:
“ …
(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
…”
Dr Spear addressed the questions of “the cause” and “the clinical onset” of the applicant’s condition as follows:
“ What do you think is the cause of the condition?
Mr Phillips described the onset of heavy alcohol use with tolerance and withdrawal symptoms from 1970 when he was on active service in Vietnam. This appeared to be a way of self-medicating symptoms of anxiety including somatic anxiety symptoms such as dry mouth and diarrhoea. His heavy use of alcohol has aggravated anxiety symptoms over the years. Recently he has lost two family members and he has not worked. In addition his mother is unwell in a nursing home. These factors are probably aggravating his mental health issues.
When do you think was the clinical onset of the condition?
I believe the onset of the conditions would have been approximately mid 1970. Mr Phillips describes symptoms of anxiety from mid 1970 when on active service on HMAS Hobart. When he was returning from active service In the late 1970s he experienced some anxiety symptoms including nausea, abdominal pain and diarrhoea.
…”
58.Having considered the whole of the relevant material before it, the Tribunal is of the opinion that the material before it does not point to the “clinical onset of anxiety disorder” (within the meaning of subpara (iii) of cl 6(a) of the current SoP) having occurred within five years after the applicant’s experiencing, in 1970, any of the incidents described in paras 52–152 of his witness statement. More particularly, that material, in the Tribunal’s opinion, does not point to the applicant’s suffering from GAD (as defined in cl 3(b) of the current SoP) at any time in the period 1970-1975 or, indeed, at any time prior to the 1980s, because:
- the applicant’s RAN service medical records do not refer to his experiencing any symptoms of GAD (as defined) at any time during his service and, indeed, his discharge medical examination record, dated 9 October 1979, indicates that his “emotional stability” was assessed as “normal”;
- neither Dr Monick’s report of 26 April 2004, nor Dr Spear’s report of 23 May 2011, supports the proposition that the applicant was suffering from GAD (as defined) in the period 1970−1975.
As regards Dr Spear’s statement that he “believe(d) the onset of the conditions would have been approximately mid 1970”, the Tribunal does not understand that statement as expressing the opinion that the applicant was suffering from GAD (as defined) in “approximately mid 1970”. Rather, the Tribunal understands that statement as going no further than expressing the opinion that in “approximately mid 1970” the applicant commenced to experience some, but not all, of the symptoms of GAD (as defined). So understood, Dr Spear’s statement does not point to the “clinical onset of anxiety disorder”, within the meaning of subpara (iii) of cl 6(a) of the current SoP, having occurred in “approximately mid 1970”: see Lees v Repatriation Commission (above).
59.Accordingly, although the Tribunal is prepared to accept that the “incident in Subic Bay” points to the applicant’s “experiencing a category 1B stressor”, within the meaning of subpara (iii of cl 6 (a) of the current SoP, the Tribunal, having considered the whole of the material before it, is of the opinion that the material before it does not point to the applicant’s having experienced that “category 1B stressor within the five years before the clinical onset of anxiety disorder”, within the meaning of that subparagraph.
60.In the Tribunal’s opinion, therefore, the GAD hypothesis does not accord with subpara (iii) of cl 6(a) of the current SoP.
61.The Tribunal concludes, therefore, that the GAD hypothesis is not upheld by the current SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
Applying the current SoP, the applicant’s GAD is not a war-caused disease
62.Pursuant to s 120(1) of the VE Act, the Tribunal must determine that the applicant’s GAD is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s GAD is a war-caused disease if the Tribunal, after considering the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service.
63.The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the current SoP, determines that the applicant’s GAD is not a war-caused disease, within the meaning of s 9 of the VE Act.
64.Before parting with the current SoP, the Tribunal notes that, although it was prepared to accept that the “incident in Subic Bay” (as described in paras 142−152 of the applicant’s witness statement) points to his “experiencing a Category 1B stressor”, within the meaning of subpara (iii) of cl 6(a) of that SoP, it does not (as stated in paragraph 30 above) accept his evidence regarding that alleged incident. Furthermore, had it been necessary, for the purposes of s 120(1) of the VE Act, for the Tribunal to make a factual finding in respect of that alleged incident, the Tribunal would have concluded that it is satisfied, beyond reasonable doubt, that that alleged incident not occur.
The 2000 SoP
65.The only provision of the 2000 SoP which was relied on by the applicant in support of the GAD hypothesis is subpara (ii) of cl 5(a), together with cl 4.
66.In White v Repatriation Commission (2004) 39 AAR 67 the Federal Court of Australia (Spender J) considered the phrase “experiencing a severe psychosocial stressor” in cl 5(a)(ii) of the 2000 SoP and the definition of “severe psychosocial stressor” in cl 8 of that SoP. His Honour said (at 73):
“ … I accept the submissions on behalf of the respondent that the concept of ‘experiencing’ a ‘severe psychosocial stressor’ in the SoP embodies both objective and subjective elements.
The reference to ‘an identifiable occurrence’ is objective. The examples given in the definition are of the kinds of ‘identifiable occurrence’ that are contemplated. … In my opinion, the ordinary language of the definition makes it clear that the examples given are of the ‘identifiable occurrences’ contemplated, not of ‘substantial distress’. The examples are of ‘occurrences’, not emotions.
The reference to ‘experiencing’ a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 74 ALD 366 at [40] per Mansfield J, in relation to the phrase ‘experiencing a severe stressor’ in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 77 ALD 67; 38 AAR 176). An identifiable occurrence ‘that evokes feelings of substantial distress in an individual’ also has a subjective element: see Woodward v Repatriation Commission (2003) 75 ALD 420 at 439-440; 37 AAR 424 at 443-444 per Black CJ, Weinberg and Selway JJ, in relation to the phrase ‘experiencing a severe stressor’.
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.”
67.In the Tribunal’s opinion, none of the incidents said to have been experienced by the applicant, as described in paras 52-152 of his witness statement (Exhibit A1), involved his “experiencing a severe psychosocial stressor” within the meaning of subpara (ii) of cl 5(a) of the 2000 SoP. In the Tribunal’s opinion, none of those incidents constitutes a “severe psychosocial stressor” as defined in cl 8 of the 2000 SoP because none of those incidents falls within the examples given in that definition or is of a kind contemplated in that definition; nor, in the Tribunal’s opinion, did the applicant’s experiencing any of those incidents (as described in his witness statement) evoke in him “feelings of substantial distress” within the meaning of that definition.
68.Furthermore, the Tribunal, having considered the whole of the material before it, is, for the reasons discussed in paragraphs 52-58 above, of the opinion that the material before it does not point to the “clinical onset of anxiety disorder” (within the meaning of subpara (ii) of cl 5(a) of the 2000 SoP) having occurred within two years after the applicant’s experiencing any of the abovementioned incidents, as required by that subparagraph.
69.Accordingly, in the Tribunal’s opinion, the GAD hypothesis does not accord with subpara (ii) of cl 5 (a) of the 2000 SoP.
70.The Tribunal concludes, therefore, that the GAD hypothesis is not upheld by the 2000 SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
Applying the 2000 SoP, the applicant’s GAD is not a war-caused disease
71.The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the 2000 SoP, determines that the applicant’s GAD is not a war-caused disease, within the meaning of s 9 of the VE Act.
Is the applicant’s alcohol dependence a war-caused disease?
72.The Tribunal reiterates (mutatis mutandis) paragraphs 38 and 39 above.
Does the material before the Tribunal raise a hypothesis concerning the applicant’s alcohol dependence with the circumstances of his operational service?
73.The Tribunal, having considered the whole of the material before it, is of the opinion that the material before it does raise a hypothesis connecting the applicant’s alcohol dependence with the circumstances of his operational service. That hypothesis, in general terms, is that the applicant’s alcohol dependence has resulted from his experiencing one or more of the incidents referred to in paras 52–152 of his witness statement in the course of his operational service on board HMAS Hobart in Vietnamese waters in 1970 and from his consumption of alcohol as a way of “self-medicating” symptoms of anxiety resulting from his experiencing those incidents (“the alcohol hypothesis”).
The relevant SoPs
74.The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a SoP concerning alcohol dependence. The SoP which is presently in force is Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009. That SoP (“the current alcohol SoP”) relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about alcohol dependence and alcohol abuse and death from alcohol dependence and alcohol abuse.
(b) For the purposes of this Statement of Principles:
‘alcohol dependence’ means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) Tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2) Withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The alcohol is often taken in larger amounts or over a longer period than was intended.
(4)There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5)A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (eg continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
…
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, …
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor 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 person’s relevant service is:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
…
Inclusion of Statements of Principles
8.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Other definitions
9.For the purposes of this Statement of Principles:
‘a clinically significant psychiatric condition’ means any Axis I or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
‘a category 1A stressor’ means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
‘a category 1B stressor’ means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
…
‘an eyewitness’ means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
…
‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000;
…”
75.The relevant SoP which was in force when the Repatriation Commission made its decision in this matter on 24 May 2005 was Statement of Principles concerning alcohol dependence or alcohol abuse, Instrument No 76 of 1998 (“the 1998 alcohol SoP”). That SoP relevantly stated:
“…
Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b)For the purposes of this Statement of Principles,
‘alcohol dependence’ means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and (sic) death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, …
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.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 person’s relevant service are:
(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; or
…
Inclusion of Statements of Principles
7.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8.For the purposes of this Statement of Principles:
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
…
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
…”
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s alcohol dependence with the circumstances of his operational service?
76. Pursuant to s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s alcohol dependence with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP.
The current alcohol SoP
77.The provisions of the current alcohol SoP which were relied on by the applicant in support of the alcohol hypothesis are paras (a), (b) and (c) of cl 6, together with cl 5.
78.As regards para (a) of cl 6 of the current alcohol SoP, the material before the Tribunal points to the applicant’s “having a clinically significant psychiatric condition” namely, GAD, “at the time of the clinical onset of alcohol dependence”. The applicant’s GAD, however, has been determined not to be related to the applicant’s operational service and not to be a war-caused disease. Accordingly, in the Tribunal’s opinion, the alcohol hypothesis does not accord with para (a) of cl 6, together with cl 5, of the current alcohol SoP
79.As regards para (b) of cl 6 of the current alcohol SoP, for reasons similar to those set out in paragraph 48 above, the Tribunal is of the opinion that the alcohol hypothesis does not accord with that paragraph.
80.As regards para (c) of cl 6 of the current alcohol SoP, for reasons similar to those discussed in paragraph 58 above, the Tribunal is of the opinion that the material before it does not point to the applicant’s having experienced a “category 1B stressor within the five years before the clinical onset of alcohol dependence”, within the meaning of that paragraph. In particular, the Tribunal does not regard Dr Spear’s report of 23 May 2011, read as a whole, as expressing the opinion that the applicant was suffering from alcohol dependence (as defined in cl 3(b) of the current alcohol SoP) in “approximately mid 1970” or in the period 1970–1975. It seems to the Tribunal, having read the detailed history set out in Dr Spear’s report, that that history indicates that, although the applicant had substantially increased his alcohol intake during his operational service in Vietnam in 1970, he did not develop alcohol dependence (as defined) until at least the 1980s. In the Tribunal’s opinion, therefore, the alcohol hypothesis does not accord with para (c) of cl 6 of the current alcohol SoP.
81.The Tribunal concludes, therefore, that the alcohol hypothesis is not upheld by the current alcohol SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
Applying the current alcohol SoP, the applicant’s alcohol dependence is not a war-caused disease
82.The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s alcohol dependence with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the current alcohol SoP, determines that the applicant’s alcohol dependence is not a war-caused disease, within the meaning of s 9 of the VE Act.
83.Alternatively, as indicated in paragraph 64 above, the Tribunal is satisfied, beyond reasonable doubt, that the “incident in Subic Bay” – the only relevant alleged incident which, in the Tribunal’s opinion, might have pointed to his having experienced a “category 1B stressor”, within the meaning of para (c) of cl 6 of the current alcohol SoP – did not occur.
The 1998 alcohol SoP
84.The provisions of the 1998 alcohol SoP which were relied on by the applicant in support of the alcohol hypothesis are paras (a) and (b) of cl 5, together with cl 4.
85.As regards para (a) of cl 5 of the 1998 alcohol SoP, for reasons similar to those set out in paragraph 79 above, the Tribunal is of the opinion that the alcohol hypothesis does not accord with para (a) of cl 5, together with cl 4, of that SoP.
86.As regards para (b) of cl 5 of the 1998 alcohol SoP, assuming (without expressing an opinion) that one or more of the incidents described in paras 52–152 of the applicant’s witness statement involved his “experiencing a severe stressor”, as defined in cl 8 of that SoP, the Tribunal is of the opinion, for the reasons set out in paragraph 81 above, that the material before it does not point to the “clinical onset of alcohol dependence”, within the meaning of para (b) of cl 5 of that SoP, having occurred within two years immediately thereafter, namely, in the period 1970–1972. In the Tribunal’s opinion, therefore, the alcohol hypothesis does not accord with para (b) of cl 5 of the 1998 alcohol SoP.
87.The Tribunal concludes, therefore, that the alcohol hypothesis is not upheld by the 1998 alcohol SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
Applying the 1998 alcohol SoP, the applicant’s alcohol dependence is not a war-caused disease
88.The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s alcohol dependence with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the 1998 alcohol SoP, determines that the applicant’s alcohol dependence is not a war-caused disease, within the meaning of s 9 of the VE Act.
Is the applicant’s irritable bowel syndrome a war-caused disease?
89.The Tribunal reiterates (mutatis mutandis) paragraphs 38 and 39 above.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s irritable bowel syndrome with the circumstances of his operational service?
90.The relevant hypothesis raised by the material before the Tribunal is that the applicant’s irritable bowel syndrome is connected with his GAD which, in turn, is connected with his operational service (“the IBS hypothesis”).
The relevant SoPs
91.The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a SoP concerning irritable bowel syndrome. The SoP which is presently in force is Statement of Principles concerning irritable bowel syndrome No 27 of 2011 (“the current IBS SoP”). That SoP relevantly states:
“ …
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that irritable bowel syndrome and death from irritable bowel syndrome can be related to relevant service rendered by veterans, …
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service is:
…
(b)having a specified psychiatric condition within the six months before the clinical onset of irritable bowel syndrome; or
…
Inclusion of Statements of Principles
8.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Other definitions
9.For the purposes of this Statement of Principles:
‘a specified psychiatric condition’ means:
(a)anxiety disorder;
(b)depressive disorder;
(c)panic disorder; or
(d)posttraumatic stress disorder;
…”
92.The relevant SoP which was in force when the Repatriation Commission made its decision in this matter on 24 May 2005 was Statement of Principles concerning irritable bowel syndrome, Instrument No 103 of 1996 (“the 1996 IBS SoP”). That SoP relevantly stated:
“ …
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that irritable bowel syndrome can be related to relevant service rendered by veterans,…
Factors that must be related to service
4.Subject to clause 6, the factors set out in the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service are:
…
(b)suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
…
Other definitions
7. For the purposes of this Statement of Principles:
‘a specified psychiatric condition’ means:
(a)a psychiatric condition with features of anxiety, including:
(i) generalised anxiety disorder, ICD code 300.02; or
(ii) panic disorder, ICD code 300.01; or
(iii) adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or
(iv) post traumatic stress disorder, ICD code 309.81; or
(b)a psychiatric condition with depressive features, including:
(i)major depressive disorder, ICD code 296.2 or 296.3; or
(ii)neurotic depression, ICD code 300.4; or
(iii)other depressive disorders, ICD code 311; or
(iv)adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28;
…”
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s irritable bowel syndrome with the circumstances of his operational service?
93.Pursuant to s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s irritable bowel syndrome with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP.
94.The only provisions of the relevant SoPs which were relied on by the applicant in support of the IBS hypothesis are:
· para (b) of cl 6, together with cl 5, of the current IBS SoP;
· para (b) of cl 5, together with cl 4, of the 1996 IBS SoP.
Those provisions are in substantially similar terms and the application of each of them leads to the same result in this case.
95.As regards each of those SoP provisions, the material before the Tribunal points to the applicant’s “having” or “suffering” a “specified psychiatric condition” (as defined in each SoP) “within the six months (immediately) before the clinical onset of irritable bowel syndrome”. That “specified psychiatric condition” in the present case, namely, GAD, has, however, been determined not to be related to the applicant’s operational service and not to be a war-caused disease. Accordingly, in the Tribunal’s opinion, the IBS hypothesis does not accord with either para (b) of cl 6, together with cl 5, of the current IBS SoP or para (b) of cl 5, together with cl 4, of the 1996 IBS SoP.
96.The Tribunal concludes, therefore, that the IBS hypothesis is not upheld by either the current IBS SoP or the 1996 IBS SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
The applicant’s irritable bowel syndrome is not a war-caused disease
97.The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s irritable bowel syndrome with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the current IBS SoP and the 1996 IBS SoP, determines that the applicant’s irritable bowel syndrome is not a war-caused disease, within the meaning of s 9 of the VE Act.
Is the applicant’s hypertension a war-caused disease?
98.The Tribunal reiterates (mutatis mutandis) paragraphs 38 and 39 above.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s hypertension with the circumstances of his operational service?
99.The relevant hypothesis raised by the material before the Tribunal is that the applicant’s hypertension is connected with his GAD which, in turn, is connected with his operational service (“the hypertension hypothesis”).
The relevant SoP
100.The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, Statement of Principles concerning hypertension, Instrument No 35 of 2003 (as amended by Instrument No 3 of 2004 and by Statement of Principles concerning hypertension No 11 of 2008) (“the hypertension SoP”). That SoP relevantly states:
“…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to relevant service rendered by veterans, …
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
…
(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension; or
…
Inclusion of Statements of Principles
7.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8.For the purposes of this Statement of Principles:
…
‘clinically significant anxiety disorder’ means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
…”
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s hypertension with the circumstances of his operational service.
101.Pursuant to s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s hypertension with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the hypertension SoP.
102.
The only provision of the hypertension SoP which was relied on by the applicant in support of the hypertension hypothesis is para (n) of cl 5, together with
cl 4.
103.As regards para (n) of cl 5 of the hypertension SoP, the material before the Tribunal points to the applicant’s “suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension”. That “clinically significant anxiety disorder” in the present case, namely, GAD, has, however, been determined not to be related to the applicant’s operational service and not to be a war-caused disease. Accordingly, in the Tribunal’s opinion, the hypertension hypothesis does not accord with para (n) of cl 5, together with cl 4, of the hypertension SoP.
104.The Tribunal concludes, therefore, that the hypertension hypothesis is not upheld by the hypertension SoP and, accordingly, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
The applicant’s hypertension is not a war-caused disease
105.The Tribunal, as previously indicated, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s hypertension with the circumstances of his operational service. That being the case, pursuant to s 120(1), (3) of the VE Act, the Tribunal, applying the hypertension SoP, determines that the applicant’s hypertension is not a war-caused disease, within the meaning of s 9 of the VE Act.
Conclusion
106.The Tribunal has determined as follows:
· the applicant has not suffered PTSD;
· the applicant has suffered GAD, alcohol dependence, irritable bowel syndrome, and hypertension but none of those diseases is a war-caused disease, within the meaning of s 9 of the VE Act.
Decision
107.For the above reasons, the Tribunal:
·varies the decision under review by:
- varying the diagnosis of the applicant’s psychiatric condition from PTSD to GAD; and
- determining that the applicant has also suffered alcohol dependence but that that condition is not a war-caused injury or a war-caused disease for the purposes of Part II of the VE Act;
·in all other respects, affirms the decision under review.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: sgd E Jordan .....................................................................................
Associate
Date of Hearing 12 January 2011
Date of last Submissions 29 July 2011
Date of Decision 30 August 2011
Representative of the Applicant Mr R Grayden
Solicitor for the Applicant Robert Grayden LegalSolicitor for the Respondent Mr C Ponnuthurai
Compensation and Review Branch Department of Veterans' Affairs
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