Prowse and Repatriation Commission - [2002] AATA 933

DECISION AND REASONS FOR DECISION [2002] AATA 933

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/812

VETERANS APPEALS DIVISION        )
           Re      MICHAEL PROWSE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date16 October 2002
PlaceMelbourne

Decision 1. The decision under review in so far as it concerns anxiety disorder is set aside and in substitution IT IS DECIDED the applicant suffers Post Traumatic Stress Disorder. 2. Post Traumatic Stress Disorder did not arise out of operational service; and 3. In all other respects the decision under review is affirmed.

........Sgd Mr J Handley...................
Senior Member
CATCHWORDS
Veterans' Entitlements - Veteran served in Navy - Two limited voyages to Vung Tau constitute operational service - many stressful events outside service - PTSD diagnosed - whether applicant experienced a stressor during or by reason of operational service - decision affirmed.
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Gregson & Repatriation Commission (V2001/1400)

REASONS FOR DECISION

16 October 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 14 May 2001. The VRB then decided to affirm decisions previously made by the Repatriation Commission on 24 November 2000. The Commission then decided to refuse the applicant's claim for hypertension, anxiety disorder and alcohol abuse or alcohol dependence.
The hearing of this application commenced in Mildura on 24 June 2002 and resumed in Melbourne on 16 August 2002. Mr Moore appeared on behalf of the applicant as counsel and Mr Douglass appeared on behalf of the respondent. The applicant and his wife gave evidence in Mildura. Dr Cole, Dr Byrne and Mr Carroll, an historian, gave evidence in Melbourne. A number of documents were received into evidence and will be referred to in these reasons.
The applicant sought acceptance of the conditions of hypertension, alcohol abuse or alcohol dependence and either anxiety disorder, or, Post Traumatic Stress Disorder ("PTSD") as war-caused. The respondent conceded the applicant did suffer from hypertension and the clinical onset was in 1995. It was also agreed between the parties that if alcohol dependence was found to be war caused, the applicant would satisfy factor 5(b) of the hypertension Statement of Principles ("SoP").
The issues in dispute in effect were whether the applicant did have PTSD or anxiety disorder and whether the conditions of either PTSD or anxiety disorder and alcohol abuse were war-caused.
The parties conceded the applicable SoPs and the applicant asserted the applicable factors as follows-
Hypertension - Instrument No. 31 of 2001, Factor 5(b)
Alcohol abuse or alcohol dependence - Instrument No. 76 of 1998 Factor 5(b).
Anxiety Disorder - Instrument No. 1 of 2000, Factor 5(a)(ii)
Post Traumatic Stress Disorder - Instrument No's 3 & 54 of 1999, Factor 5(a).
The Applicant
Mr Prowse is presently 56 years of age, having been born on 25 June 1945. He was born in Sydney and educated to age 15. He prematurely left secondary school and found work as a labourer immediately before enlistment in the Navy which he served between 25 July 1962 and 26 January 1968. He completed his secondary education subsequent to discharge from the Navy and achieved higher school certificate standard.
Mr Prowse relevantly was engaged in operational service whilst a member of the crew of HMAS Sydney ("Sydney") between 22 April 1966 and 18 May 1966 and on a second voyage between 6 June 1966 and 11 June 1966. On both of those voyages Sydney travelled to Vung Tau Harbour in Vietnam where it unloaded stores and equipment. There were earlier voyages onboard HMAS Sydney as part of the Far Eastern Strategic Reserve in Malaysian waters between May and June 1964, but which are not relevant to these proceedings.
Mr Prowse said that both voyages to Vung Tau Harbour involved entry into a war-zone. He said that he was aware that the voyages could be or would be dangerous. He said that it was his belief that the risks were greater than he and others were notified by superior officers. He noticed that there were extra escort ships and his vessel was placed on high operational status. He recalled that most persons onboard Sydney were anxious. He said there were no formal briefings prior to entry to Vung Tau Harbour. The only information that was obtained about the current conditions on shore were in response to questions that he asked superior officers. He said the presence of a number of escort ships caused him to believe that there was a possibility of "something at foot".
On each of the two voyages to Vung Tau Harbour, Mr Prowse said that the ship was anchored for two days. He was engaged in assisting to unload stores from the ship, which was mainly done by hand. He was also engaged in sentry duty and was armed with a rifle. He observed the presence of debris floating in the water and was also asked to be on the lookout for enemy underwater swimmers or divers.
Mr Prowse said that he was anxious because of the threat or risk of enemy activity and he felt in fear of attack. He noticed that there was a great deal of activity in the air by helicopters and planes. He also recalled explosions north west of Vung Tau Harbour toward the Mekong Delta. He also recalled explosions near the Vung Tau airfield. There were also low flying aircraft, which appeared to be releasing a mist, which he later believed to be Agent Orange.
Mr Prowse said that Sydney was poorly prepared, was under armed, was in a shocking state of readiness and not fit for human habitation. He said that there were no prior gun drills on board the ship because Sydney would not in any event have been able to defend itself. He said the ship was hot, humid, poorly ventilated, infested with rats and had a foul stench.
Whilst on board Sydney in Vung Tau Harbour, he said that allied vessels were used to take goods (from Sydney) to shore. Those vessels were at risk and he was responsible for observing activity around those vessels. He was aware that grenades were thrown into the water to frighten potential enemy swimmers and believed also that a wire or chain was dragged along the hull of the ship (known as a half necklace) to dislodge any enemy mines which had been attached. Mr Prowse said that when the wire or chain was dragged along the hull, he heard a scraping type noise which was disconcerting. He did not learn until much later that the noise was caused by this procedure.
Mr Prowse said that when he travelled to Vietnam he was a young man who was excited by the adventure of overseas travel. He said, on reflection that he was frightened and was now scarred. He said he no longer wished to be involved in activities similar to that which he was exposed in Vietnam.
Prior to Vietnam, Mr Prowse said he had no difficulty sleeping. Subsequently, he constantly revisits the events of Vietnam and has interrupted sleep. After discharge he continued to suffer from disturbed sleep and nightmares. At the present time, he says, that he is often awake at night and at best sleeps for about 4 hours each night. He dreams frequently, mainly of Vietnam, of his vessel being attacked and being responsible for the rescue of others. Mr Prowse said that he had been a friendly outgoing person who engaged in competitive sport and would socially drink alcohol on two or three occasions per week. However, by reason of his service, he said that he increased consumption considerably to between 3 and 5 large cans of beer per day and also commenced cigarette smoking. He continued to drink heavily after discharge, until approximately 1982, when he ceased as a result of an ultimatum by his wife. Some years later however he resumed drinking and presently drinks beer, wine and spirits on a daily basis.
The applicant said that his personality has changed considerably by reason of service. He said that he does not get on with people and actively seeks to avoid persons. He believes that he is discriminated against because of his Vietnam experience and persons have been in disbelief that he did serve in Vietnam because they have said to him that he does not appear to be "crazy". Presently he says that he is abrupt, he reacts to people, he is irritated easily and he is angry. He has poor concentration and is forgetful. Mr Prowse said that he has mentally abused his family and his children for the smallest of misdemeanours. He recalled occasions where he arrived home intoxicated and his youngest child hid in a cupboard from him. When his wife has sought to protect his son she endured his anger. There were occasions where Mr Prowse was so affected by alcohol that he parked his car at a bus shelter believing it be his home garage. On another occasion a policeman took him home from a social event because he was so severely intoxicated.
Subsequent to being discharged from the Navy, Mr Prowse obtained employment with General Motors Holden in Melbourne until 1982, when he left having voluntarily accepted a redundancy package. He then purchased a caravan park in partnership with his wife in Mildura between 1982 and 1984. They both then moved to Adelaide and were engaged in a take-away food business between 1984 and 1987. Mr Prowse was unemployed between 1987 and 1990, but then obtained employment as a casual truck driver, as a factory hand and as a storeman in 1991 until he and his wife purchased a car detailing franchise which they held for about 5 years. They both returned to Mildura in 1996 having purchased a Motel, which has recently been sold.
Mr Prowse said that his behaviour and anger has on occasions caused him to be argumentative with customers whilst he owned the caravan park and whilst he owned the Motel. He said that he is not suited for employment where other persons work around him and believes that he is only suited to self-employment.
In cross-examination, Mr Prowse acknowledged that Dr Caracatsanis, a psychiatrist in Mildura, prepared a medical report at the request of the respondent. That report is dated 21 November 2000 and was received into evidence as Exhibit 6. In addition to the two voyages to Vietnam, Dr Caracatsanis obtained a history of the applicant being engaged in rescue operations after the collision of HMAS Melbourne ("Melbourne") and HMAS Voyager ("Voyager") in 1963, being a member of the crew of HMAS Gascoyne which rolled when struck by a wave in 1965, being struck by a shell when working in a gun turret on board HMAS Cerberus in October 1966, a motor vehicle accident in 1977 when a vehicle being driven by Mr Prowse drove over the side of a mountain road and descended 250 feet and having suffered a fractured leg in a field exercise in 1987.
Mr Prowse acknowledged that he did give this history to Dr Caracatsanis and that the history was accurate. He acknowledged that he also gave a similar history to Mr Trapp, a compensation delegate of the Military, Rehabilitation & Compensation Scheme on 22 February 1999. In that letter (attached to the report of Dr Caracatsanis), Mr Prowse recorded that his first incident "which created stress" was during the rescue operations following the Melbourne and Voyager collision. Mr Prowse recorded "that night was a very stressful night for all involved and the memories of that night will never leave me". With respect to the episode of being struck by a wave whilst a member of HMAS Gascoyne (which apparently occurred whilst Mr Prowse was asleep), he recorded "the noise and the shudder of the ship hitting this wave was incredible and to many young members of the crew created much anxiety". Despite the information given to Dr Caracatsanis and to Mr Trapp, Mr Prowse agreed that a history of this detail was not given to Dr Cole, a consultant medico legal psychiatrist, nor to Dr Byrne a consultant medico legal psychologist. Mr Prowse said he did not give this history because he was not asked questions which would have provoked providing this information.
On further cross-examination by Mr Douglass, Mr Prowse agreed that he was examined by a psychiatrist in the United States shortly prior to discharge where the history recorded that he was not then coping with separation from his wife and son.
With respect to the aeroplane he observed discharging a mist type substance, Mr Prowse said that he now believes it to be Agent Orange, which may have drifted on to his ship. He does not know as a fact whether it was Agent Orange and he does not know as a fact whether any of it was deposited on to his vessel. He acknowledged that it could have been an aeroplane dumping fuel however he recalls the event because "it just seemed to be odd".
Mr Prowse agreed that he did not ever see any shooting or persons being shot at. He agreed that he did not ever fire his gun nor were any weapons fired at him or his vessel. With respect to the wire or chain being dragged along the hull of the vessel, Mr Prowse said that he was not aware that it was a chain used by allied divers to patrol the hull by touch. He acknowledged that he had assumed that the scraping noise that he had earlier described was caused by the chain or the wire, but acknowledged that it could have been a chain or rope used by other vessels who had tied up against Sydney.
Mr Prowse acknowledged that he had contributed to a book, which recorded the experiences of young men who served in Vietnam. At page 110 of the T-documents, an extract of the book records Mr Prowse as having reported that he was "not impressed" with the departure of HMAS Sydney to Vietnam because there was "no fanfare". When asked to comment on records provided by Mr Joseph, an historian the respondent engaged, that Federal Members of Parliament and high ranking officers attended the ship in the presence of mass bands, Mr Prowse said that he could not recall these events, nor could he remember where he was on board the ship at the time these events allegedly occurred. Mr Prowse said that he was concerned by the absence of "fanfare" because the vessel was leaving for overseas service and it was "different from normal operational exercises".
Mr Prowse acknowledged that heat and humidity did make sleep difficult whilst he was in Vietnam. He acknowledged also that he did complete a leading sea mans course at Cerberus after he returned from Vietnam.
In answer to some questions from me, Mr Prowse said that he joined the naval reserve after he was discharged from the regular navy and also joined the Australian Army Reserve in 1970. He said he finished as a reservist on 25 June 2000 when he achieved the age of 55 years. Mr Prowse said that he remained a member of the Army and Navy Reserves because he was "looking to belong". He said that he was comfortable with other persons who had a similar commitment and experience to him. He said he genuinely enjoyed being a serviceman, except for the separation from his family and for the tours of Vietnam. Whilst he was a member of the Regular Army, Mr Prowse said that he was engaged for a period of 9 years and was unable to leave before the expiration of that period even if he had wanted to.
Patricia Ann Prowse
Mrs Prowse is the wife of the applicant in these proceedings. She and her husband jointly own a motel in Seventh Avenue Mildura which they purchased in 1996 and which was recently sold.
Mr Prowse said that their marriage has been difficult. She said in the early years her husband confided very little with her about his experiences in Vietnam, but more recently when he has been engaged in "fighting for his medals", he has told her more of the experiences which he endured whilst on board Sydney. She said that he had frequently told her that the HMAS Sydney was a hot, humid vessel with poor ventilation and involving crammed conditions. She also said that her husband had expressed on many occasions that he was in fear and was anxious. She said that he had also told her that there were many experiences of divers checking the hulls of the ship, that he had observed debris in the river and there was also the presence of mist blowing over his ship which had been deposited from a neighbouring aircraft. Mrs Prowse said that her husband has drunk alcohol in excessive quantities over the years. He has poor concentration and poor memory, is frequently irritable and is angry. She described him as having been withdrawn from social events and avoids watching films or documentaries involving war experiences. Mrs Prowse said that her husband does not sleep well and appears to suffer nightmares because he thrashes his arms in sleep, frequently wakes and wanders around the house checking that doors and windows are locked.
With respect to the Motel in Seventh Avenue, Mrs Prowse said that her husband was initially enthusiastic, but eventually he found that he could not cope with it and he became aggressive and argumentative with customers.
In cross-examination, Mrs Prowse agreed that her husband has had poor concentration and has withdrawn from social relationships particularly since 1996 when he suffered a small right-sided stroke.
John Robert Carroll
Mr Carroll is a former past honorary Secretary of the HMAS Sydney and Vietnam Logistic Support Veterans' Association. He served in that capacity between 1994 and July 2002. He presently holds a Doctorate in Psychology and was a former member of the Navy, having served on HMAS Sydney and HMAS Yarra. He was a member of the Naval Reserve until 1990 and also is qualified as a marine surveyor and naval architect.
Mr Carroll provided reports dated 11 October 2000, 8 June 2001 and 19 March 2002.
Mr Carroll was aware that the applicant was on board HMAS Sydney in May 1966 and June 1966, at or near Vung Tau Harbour in South Vietnam.
When asked whether the applicant would have been exposed to objective danger on board Sydney, particularly when it was tied up in harbour, Mr Carroll said that he would be speculating, because he had no first hand experience in Vietnam at that time, but he said that the ship's Standing Orders should be referred to. He said "all sorts of things could happen and that they did not is irrelevant". He said that members of the crew would have been "psyched up" because they were entering a war zone, despite the harbour being protected. He said members of the crew would have been exposed to a threat from onshore mortars, other ships and divers. He said that research conducted by him indicated that the Officers in charge of Sydney believed that they were at risk and had made comments of this type in Standing Orders that they had written.
He acknowledged that Sydney was not ever attacked, but he said that it was at threat of attack. He said the crew were prepared and the "only thing that protected Sydney was a fast current". He said "at slack water" anything could have happened – however the current permitted the ship to move and the risk of being "hit" was reduced. He said that nothing from his research indicated to him that the threat to Sydney was "unreal".
Mr Carroll said that during his voyage to Vung Tau Harbour, the United States ("US") lost three minesweepers "and many persons" and on a subsequent voyage by him, his vessel carried four extra helicopters.
Mr Carroll said that the applicant would have been on four-hour watches when the ship was on defence station alert. The greatest threat to which the applicant was exposed was when the vessel was tied up in port.
In cross-examination, Mr Carroll said that he was aware that the applicant had alleged that he may have been exposed to Agent Orange. He said that he was aware that roadways around Vung Tau Harbour were defoliated and he said that he observed "mist coming out of an aircraft". He acknowledged that he did not know whether the "mist" was fuel or water. Nonetheless, he said that he observed evidence of defoliant that had been applied to the Long Tan shipping channel.

Mr Carroll said in evidence – in reference to page 9 of his report of 19 March 2002 - that US vessels had been bombed and sunk by enemy mines. He said that the applicant would have observed these vessels because they were located half way between Saigon and Vung Tau.
Edward Cole
Dr Cole is a consultant medico-legal psychiatrist, who examined the applicant on 20 September 2001 and provided a report dated 2 October 2001.
It was his opinion that the applicant suffers PTSD.
By reference to the definition of PTSD within the SoP, Dr Cole was of the opinion that the applicant did suffer a traumatic event as defined within sub-paragraph A (i) of paragraph 2 of the Instrument. He was of the opinion that the applicant exhibited a response involving intense fear, helplessness or horror, as found within paragraph A (ii) of the Instrument. He was also of the opinion that the remaining sub-paragraphs of paragraph 2 were satisfied.
Dr Cole was of the opinion that there was now no doubt that the appropriate diagnosis was PTSD. He said that the applicant had not suffered any other stressors except his experiences on board Sydney.
Dr Cole was critical of the PTSD SoP and agreed also with the criticisms Dr Kenny expressed in his report of 24 April 2001. (Dr Kenny examined the applicant at the request of the respondent. He too was also of the opinion that the applicant suffered PTSD.)
Dr Cole said – in the alternative – that if the applicant was found not to suffer PTSD, that he could properly be diagnosed as suffering generalised anxiety disorder and would satisfy Instrument No. 1 of 2000. Dr Cole said that he was satisfied that the applicant did suffer a "severe psycho-social stressor" as defined by that Instrument and also suffered a "generalised anxiety disorder" also as defined by the Instrument.
In cross-examination, Dr Cole referred to his report where at page 5 he recorded:
"In his statement he described himself as having been in constant fear while he was in Vietnam and had a sense of helplessness. I thought it significant when he told me that all the events he described added up to one big stress, as I do not think the stressor necessarily has to be acute, shortlived and extremely intense. Furthermore, I believe that the content of his symptoms clearly points to the nature of the stressors that caused them."
Dr Cole said in evidence that he regarded the accumulation of the events as important because the applicant "found himself in danger for a long period".
Dr Cole said that he did have a report from Dr Caracatsanis who examined the applicant at the request of the respondent on 21 November 2000. However, he did not have a copy of the letter the applicant wrote to a delegate of the Military Rehabilitation and Compensation Scheme of 22 February 1999, which Dr Caracatsanis held. In that letter, the applicant referred to a number of events "which have over the years created stress". The applicant summarised a number of events over four typed pages including membership of HMAS Stewart in 1963 and involvement in the rescue operation following the collision between HMAS Melbourne and HMAS Voyager; being struck by a wave when on board HMAS Gascoyne in 1965; two operational deployments to Vietnam in 1966; working on the flight deck of HMAS Sydney in Vung Tau assisting the loading and unloading of troops and equipment and being exposed to chemicals being sprayed; learning in the 1980's that he may have been previously exposed to asbestos; being struck in the head and chest by a naval shell at HMAS Cerberus in October 1966; being involved in a motor vehicle accident in 1977 on the Bogon High Plains; suffering a "fractured knee" in 1987.
Dr Cole did not have a history of any of those events and acknowledged that the diagnosis made by him was without a complete history. He said that he is prepared to obtain complete histories of persons "if people pay me". He said that his "history taking is selective in the 60 minutes I allow".
Dr Cole said that the above events whilst on board HMAS Stewart and HMAS Gascoyne could give rise to PTSD and or anxiety disorder. Additionally, he said that the applicant's reaction to the motor vehicle accident on the Bogon High Plains where the applicant recorded:
" …The fear created by the accident alone was incredible and the stress created by the need to override this while driving down the side of a mountain, then along twisting logging roads in the darkness, some of the time without lights, never able to look down for fear of reaction, has left me with a shocking legacy that remains with me to this very day..."

was consistent with a diagnosis of PTSD.

Dr Cole dismissed the suggestion that the applicant's membership of the Army Reserve was inconsistent with PTSD. He said that in his experience, persons with PTSD seek a supportive environment and he had been told by other veterans in similar circumstances that when veterans meet "they only talk about happy times".
Dr Cole also learnt that the applicant had collected a quantity of literature concerning PTSD. He was of the opinion that that many people with "obsessive personalities" do obtain material concerning their condition. He acknowledged that the applicant was at risk of being influenced by his own research and thought that it was "not wise to be an own advocate".
With reference to a report prepared by Dr Kenneth Byrne who examined on behalf on the respondent, Dr Cole agreed that the applicant- having suffered transient ischaemic attacks- could be an explanation of his short term memory loss and depression. He said the applicant's sleeplessness was not necessarily a symptom of a psychiatric disorder, because it could be caused by noise or heat or other distractions.
In re-examination, Dr Cole said that on the basis of the history that he had obtained, the appropriate diagnosis was PTSD.
Kenneth Byrne
Dr Byrne is a doctor of forensic psychology who examined the applicant on 13 May 2002, at the request of the respondent and provided a report dated 21 June 2002. Dr Byrne said that he consulted with the applicant for a period of four and half hours. His report comprises 33 pages.
At paragraph 5 of his report Dr Byrne refers to the applicant's knowledge of the outcome of an inquiry into the hygiene standards of Sydney, that Sydney was under escort because it was perceived as being in danger and his observation of mist being sprayed from aeroplanes which he later understood to be defoliants. Dr Byrne said that these events were "subsequently acquired knowledge" and could not contribute to the applicant "experiencing a stressor". He said the making of a diagnosis follows events which are relevant to a veteran at the time that a stressor is experienced. Dr Byrne also pointed to a comment made to him by Mr Prowse that he had observed "explosions" on land. However he had said "I didn't know what they were". When he was asked in consultation what did he think that they were, Mr Prowse is reported to have said "I didn't have time to analyse it – you had to watch what you were doing with the cargo on the ship". This reaction according to Dr Byrne was a further indication that the applicant did not experience a stressor.
Dr Byrne had taken a history of the applicant's employment subsequent to discharge and found that he was employed by General Motors Holden for 15 years and had achieved five or six promotions. He also was a supervisor of 40 persons, including having a responsibility for "multi millions of dollars of material". He noted that the applicant and his wife subsequently moved to Mildura where they operated a caravan park. They then moved to South Australia where they were engaged in self-employment for many years, until returning to Mildura where they purchased and operated a motel. Dr Byrne said that this employment history was significant because if a person suffers a psychiatric disorder it would impact on their work life. Yet the work history, as was related to him, suggested that the applicant had been successful in employment.
Dr Byrne was aware of the applicant's history of alcohol consumption, however he did not regard it as being significant because on the history that he obtained it did not interfere with his marriage or with his employment.
At paragraph 11.15 of the report, Dr Byrne obtained a history from the applicant of unhappy events where he may have felt that he needed help because of his "nervous problems". Mr Prowse is reported to have replied:
"Any time between 1968 and 1986 because of what I was going through – stress, resentment and upset because my service wasn't recognised. Even though the service was minimal in the eyes of bureaucracy, it left me with a feeling 'the bastards didn't tell me the truth' – all the things I saw as affecting my state of mind were real."

Later Mr Prowse is reported to have said "I would have been very happy that my service was recognised and better yet I wouldn't had to have put my wife and family through bloody hell trying to get this recognised". Dr Byrne recalled that when the applicant gave that history he spoke with "passion, bitterness and disappointment". He regarded that history as a significant source of the applicant's unhappiness.

Dr Byrne said that in his opinion the applicant did not suffer PTSD. He noted that the applicant did not avoid reminders of events said to give rise to that diagnosis. When asked whether he was upset or frightened by the film "Apocalypse Now", the applicant apparently said that the film was not "realistic".
Dr Byrne thought that the applicant did suffer alcohol abuse, but did not suffer either PTSD nor generalised anxiety disorder. He said that PTSD was not an appropriate diagnosis, because from the history that he obtained, the events at Vung Tau Harbour were not life threatening and did not impact on the applicant at that time. It followed, he said, that the applicant did not "experience a stressor".
In cross-examination, Dr Byrne was referred to 18.1.10 of his report where he concluded that the applicant's claim:
"is very clearly coloured by his bitterness that his service in Vietnam – and that of his fellows – was not recognised in the same way as contributions of other servicemen. . . . in essence he states that much of his stress and upset is because his service wasn't recognised. Had it been so he would have been very happy, and wouldn't have put his wife and family through "bloody hell" trying to get this recognised."

Dr Byrne said that this was a central feature of the history that he obtained from the applicant. In his opinion the applicant was focused and/or obsessed with a lack of recognition of his service.

With respect to the opinions that he expressed in his report and in evidence, Dr Byrne said that he is influenced by the history he obtains. He acknowledged that the responses to questions asked of a patient can be influenced by the question itself, the way that it is asked and the relationship between the patient and the doctor. He acknowledged that Dr Ewer at pages 187-188 of the T documents and Dr Cole had "no trouble obtaining a history of intense fear" (Dr Byrne did not obtain a history of that type) however he said that Dr Ewer only focussed on the applicant's service. Dr Byrne said that he prefers to ask open-ended questions without leading. He also obtains a history of the patient before and after the events of service alleged to give rise to injury or illness.
CONCLUSION AND REASONS FOR DECISION
On the basis of Benjamin v Repatriation Commission [2001] FCA 1879, I am satisfied - but not by reference to the Statement of Principle- that the applicant does suffer PTSD. For reasons which follow, I am not satisfied that the material raised in and by these proceedings, points to the applicant having "experienced a severe stressor" (refer Repatriation Commission v Hill [2002] FCAFC 192) by reason of his operational service.
In Repatriation Commission v Deledio (1998) ("Deledio") 49 ALD 193 the Full Federal Court comprising Beaumont, Hill and O'Connor JJ summarised four stages which a decision-maker or Tribunal must follow in order to determine whether a reasonable hypothesis has been raised connecting injury or illness with the circumstances of service.
Those four stages are recorded as follows:
"1.   The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.   If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.        If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.        The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
Stage 1 is obviously satisfied because an hypothesis has been raised between the applicant's service and either PTSD, generalised anxiety disorder or psychoactive substance abuse or dependence. The second stage as above is satisfied because there are SoPs with respect to the above injuries or illnesses.
Under Stage 3 of Deledio, an hypothesis will be reasonable if there is material which points to the hypothesis as being reasonable and the hypothesis is consistent with the "template", being, the applicable factors within the respective Instruments.
The applicant relies on factor 5(a) which provides as follows-
"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or ….".
The phenomena of "experiencing a severe stressor" (Factor 5(a)) is defined at paragraph 8 of Instrument No. 3 of 1999 (as amended by Instrument No. 54 of 1999) as follows:
"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 another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement 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."
In Re Gregson & Repatriation Commission (V2001/1400) a decision delivered simultaneously with this decision, I discussed at paragraphs 98-105 inclusive, what I understood to be the meaning of and the nature of events constituting the phenomena of "experiencing a stressor" as defined in the Statement of Principles. I also referred to DSM-IV to assist comprehending the words "experienced, witnessed" and "confronted". I rely on my conclusions then expressed (to ensure consistency) and adopt them for the purposes of these reasons for decision. Paragraphs 98-105 are reproduced as follows-
"98.     In Benjamin, the Full Federal Court of Moore, Emmett and Allsop JJ decided (at paragraph 41) that Statements of Principles were not "relevant to the question of diagnosis". In the present case, Drs Cole and Walton, being practising psychiatrists who are eminent in their field and suitably qualified to make the diagnosis, both agreed that the applicant did suffer from PTSD. An analysis of the definition of PTSD, where the diagnosis is mutually agreed between the appropriately qualified witnesses and conceded by the respondent, appears to be irrelevant. Counsel for the respondent submitted that the objective standard of Part A(i) of the definition of PTSD could not be satisfied, yet when the diagnosis is conceded, this submission also appears irrelevant. The only valid submission where diagnosis is conceded, is, in my view, that the conceded injury did not arise out of the service.
99.      It seems to me in circumstances where the witnesses agree as to diagnosis and the respondent concedes the diagnosis and the Tribunal ultimately finds that the material points to that diagnosis (as I will at the conclusion of this decision) that subject to a finding of connection between service and PTSD the focus needs to be on whether the material raised pointed to the applicant "experiencing a severe stressor", as defined, during his operational service (refer Full Court of the Federal Court decision of Repatriation Commission v Hill [2002] FCAFC 192 ("Hill"), a decision of Black CJ, Drummond and Kenny JJ decided 18 June 2002).
100.     The words "experienced", "witnessed" and "confronted" as they appear within the definition "experiencing a severe stressor" were discussed by the Tribunal in Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 106. At paragraph 79 of that decision, the Tribunal found-
"The word 'witnessed' suggests that the person was present at the event involving real or present (ie. actual) or threatened death. The word 'experienced' suggests that the person observed or encountered such an event and the word 'confronted' that he or she was faced with such an event."
101.     I am now satisfied that, whilst the above definitions are valid, they are unfortunately narrow. The Macquarie Dictionary defines "experience" as:
(i) a particular instance of personally encountering or undergoing something;
(ii)the process or fact of personally observing encountering or undergoing something;
(iii)knowledge or practical wisdom gained from what one has observed, encountered or undergone;
(iv)to have experience of; meet with; undergo;.
The word "witness" is defined as:
(i)to see or know by personal presence and perception;
(ii)to be present at (an occurrence) as a formal witness or otherwise;
…
(v)to be at the scene of;
…
(vi)one who being present personally sees or perceives a thing; a beholder, spectator or eyewitness.
The word "confront" is defined as
(i)to stand or come in front of; stand or meet facing; stand in the way of;
(ii)to face in hostility or defiance; oppose;
(iii)to set face to face.
102.     The Shorter Oxford Dictionary offers a more expansive definition of "experience" by referring to "(ii) to have experience of; to feel, suffer, undergo". The definitions of "witnessed" and "confronted" are similar in the Shorter Oxford Dictionary.
103.     The PTSD Instrument is said to be a derivation of DSM-IV. In a chapter of DSM-IV describing the diagnostic features of PTSD (page 424), the following is reproduced as an aid to what was understood by the authors of the Manual as events that are "experienced" and "witnessed". Whilst the following quotation refers to "traumatic events", as I have said earlier, the phenomena of "experiencing a severe stressor" as defined is almost word perfect to Part (A)(i) in the definition of PTSD at paragraph 2.
"Traumatic events that are experienced directly include but are not limited to military combat, violent personal assault (sexual assault, physical attack, robbery mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or man made disasters ….. Witnessed events include but are not limited to observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body part. Events experienced by others that are learned about include but are not limited to violent personal assault, serious accident or serious injury, experienced by family member or a close friend."
104.     The words - and the event - of "experiencing a severe stressor" mean that the event or events involving-
i)actual death; or
ii)threatened death or serious injury; or
iii)a threat to a person's physical integrity; or
iv)a threat to a physical integrity of another person
must be experienced or witnessed or confronted. Necessarily, the experience must be personal and, except for (i) above - which must necessarily be the death of someone other than an applicant - the events in (ii), (iii) and (iv) involve events that may be endured either by the applicant or another person, yet, precipitating a "severe stressor" which is personal and is "experienced". The phenomenon of 'experiencing a severe stressor' is not found within DSM-IV. It is a creature of the Statement of Principles and its relevance is its location within the paragraph 5 factors, one of which must exist as a minimum.
105.     Additionally, and in order to comprehend what is intended to be the ambit of "experiencing a severe stressor", the above chapter from DSM-IV also records the following (at p.424)-
"The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to extreme traumatic stressor involving direct personnel experience of an event that involves actual or threatened death or serious injury, or other threat to ones physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of anther person; or learning about unexpected or violent death, serious harm or threat of injury or injury experienced by family member or other close associate".

There is nothing about the applicant's operational service during the two limited occasions he attended Vung Tau Harbour which indicates that he at any time "experienced, witnessed", or was "confronted" with an event involving actual threat of death or serious injury or a threat to him or another person's physical integrity. Accordingly, the Statement of Principles is not satisfied, because the template of the Statement of Principle is not satisfied. The hypothesis connecting PTSD with the operational service is deemed not to be reasonable.
As to the hypothesis connecting generalised anxiety disorder with service, I am also not satisfied that there is material which points to it, nor am I satisfied that the "template" of that SoP is satisfied.
The applicable factor for generalised anxiety disorder was said to be Factor 5(a)(ii) namely "experiencing a severe psycho social stressor within the two years immediately before the clinical onset of anxiety disorder". The phenomena of "severe psycho social stressor" is defined at paragraph 8 of Instrument No. 1 of 2000 as:
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems"

On the material heard and read, I could not be satisfied that the applicant did suffer during or by reason of his limited voyages to Vung Tau, a "severe psychosocial stressor". It follows that the applicable factor does not exist as a minimum and this hypothesis is not reasonable.

As to the hypothesis raised connecting service with alcohol abuse or alcohol dependence, the applicant relied on factor 5(b) of Instrument No. 76 of 1998. That factor which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse or dependence with service is:
" (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse"

"Experiencing a severe stressor" as defined in this instrument has the same definition as exists in the PTSD Instrument. Because I am not satisfied that the applicant did "experience a severe stressor" it follows that this factor does not exist as a minimum and a reasonable hypothesis connecting alcohol dependence or abuse with service has not been raised.

Stage 4 of the Deledio analysis need not be considered because I am not satisfied that a reasonable hypothesis has been raised connecting service with any of the above illnesses or injuries. Whilst there is controversy between the doctors as to whether the applicant suffers any condition at all, or, if he does, what it is, I cannot be satisfied that the above conditions have a connection with the operational service in Vung Tau. It may be that the applicant has rights to compensation or a pension outside the Act. However, insofar as that legislation is concerned and the requirement of the applicant to confine his present claim to his operational service in Vung Tau, I am not satisfied on the balance of probabilities that a reasonable hypothesis does exist connecting the service in Vung Tau and any subsequent injury.
The applicant himself identified events in service and as a member of the Army Reserve which he has described as stressful. In his letter of 22 February 1999 he identified the events which "created stress". He identified his involvement in the rescue operation following the collision between HMAS Melbourne and HMAS Voyager and wrote that the "memories of that night will never leave me". He also referred to his vessel being struck by "a huge wave" following the event and wrote that the "noise and the shudder of the ship hitting this wave was incredible and to many young members of the crew created much anxiety". He wrote about the episode whilst a member of HMAS Gascoyne being stressful after it was hit by a huge wave, as well as his reaction to later learning that he may have been exposed to asbestos. He said the event of being struck by a shell when at Cerberus caused him to be admitted to a hospital as a "emergency case", that he was not given counselling and he "carried a fear of being in a gun turret for the rest of my time in the navy".
As an Army Reservist, he spoke about fatigue and having to drive long distances and "the stress created by the lack of sleep the absolute need to stay awake while driving home creates incredible stress". In relation to the motor vehicle accident on the Bogon High Plains where he and a passenger were injured, he wrote:
"We were both bruised sore and suffering shock and as an SNCO I was also deeply concerned about the condition of my fellow member and what would be the outcome of investigations. I cannot relate the enormous stress suffered at this time and in the days that followed."

Additionally, Mr Prowse recorded that:

"even today I find it hard to describe what I went through during this time. The fear created by the accident alone was incredible and the stress created by the need to override this while driving down the side of a mountain then along twisting logging roads in the darkness some of the time without lights never able to look down for fear of reaction has left me with a shocking legacy that remains with me to this very day. I cannot drive a vehicle along any road where it is close to valleys or ravines without suffering fear and anxiety which is often increased by trying to hide that fear from others in the vehicle. This fact made instructing other drivers both military and civilian extremely stressful. In the early period I suffered bad dreams waking in a cold sweat. I must make it very clear indeed that at no time were we given any form of counselling or advice as to availability for compensation ongoing medical or other treatment."

Dr Cole found the applicant suffered from PTSD and related it to his experiences in Vietnam. When examined, however, it was clear that Dr Cole did not have a history of any of these events and his explanation for failing to take a history was very unsatisfactory.
Dr Caracatsanis confined his report of 21 November 2000 to the period of 41 days at Vung Tau and concluded:
"I can find no Service-related incident or factor to account for or explain the Veteran's symptoms – the time-period is simply too short, and nothing untoward seems to have happened within that time frame. I would have to conclude, therefore, that none of the impairment I calculated above is explicable on the basis of Service-related factors."
Dr Kenny found the applicant suffered from PTSD, but he too had a very limited history from the applicant and devoted a great deal of his report to his dissatisfaction with SoPs.
Dr Ewer also found the applicant suffered PTSD, but his report does not indicate having obtained a history of any of the events that the applicant himself believed has contributed to his stress, as indicated in his letter of 22 February 1999.
Having found earlier in these reasons that the applicant does suffer PTSD, I am of satisfied, although not obliged to make this finding, that the events outside operational service are responsible for this illness.
Whilst the respondent conceded that the applicant was hypertensive the applicable Instrument would only be satisfied if the above conditions were found to be war-caused.
The decision under review, in so far as it relates to anxiety disorder will be varied. Having regard to my earlier findings, the appropriate diagnosis is PTSD. In all other respects, the decision under review is affirmed.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro..............................
  Associate
Date/s of Hearing  24 June 2002 and 16 August 2002
Date of Decision  16 October 2002
Counsel for the Applicant        Mr G Moore
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Mr Douglass
Solicitor for the Respondent    Department of Veterans' Affairs