Rafferty and Repatriation Commission
[2001] AATA 440
•7 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 440
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/406
VETERANS APPEALS DIVISION )
Re Graeme John Rafferty
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr RD Fayle , Senior Member; Brigadier RDF Lloyd, Member; Dr HAD Weerasooriya, Member
Date7 May 2001
PlacePerth
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision of the Veterans Review Board of 29 November 1999 is affirmed.
...........( - sgd RD Fayle -).............
Senior Member
CATCHWORDS
Disability Pension - post traumatic stress disorder (PTSD) -generalised anxiety disorder (GAD) - significant traumatic events - operational service in Vietnam - Royal Australian Navy
REASONS FOR DECISION
22 May 2001 Mr RD Fayle , Senior Member; Brigadier RDF Lloyd, Member; Dr HAD Weerasooriya, Member
At the conclusion of the hearing of this application on 7 May 2001, the terms of the decision intended to be made and the reasons for that decision were stated orally by Mr RD Fayle, Senior Member on behalf of the Tribunal.
After delivery of the oral decision of the Tribunal, the applicant's representative requested the Tribunal to furnish to him a statement in writing of the Tribunal's reasons for its decision.
This is the decision in the matter of Graeme John Rafferty ("the applicant") and the Repatriation Commission ("the respondent"). The applicant sought a review of a decision of the Veterans' Review Board ("the VRB") made on 29 November 1999. In that decision the VRB affirmed the decision of a Delegate of the Repatriation Commission of 13 April 1999 which refused a disability pension for post traumatic stress disorder.
The Tribunal was assisted by Mr Henry Christie of counsel for the applicant and Mr Carl Ponnuthurai, an advocate with the Department of Veterans Affairs for the respondent. The applicant, his spouse and Dr Michael Woodall gave evidence for the applicant.
The applicant's service record is that he joined the Royal Australian Navy in 1964 from which he retired in 1973. His eligible service consisted firstly of operational service in two periods, the first from 25 April 1966 to 9 May 1966, and the second from 26 May 1966 to 9 June 1966, both in South Vietnam. And, secondly, defence service from 7 December 1972 to 5 January 1973.
The Tribunal summarises the evidence as follows. After joining the Royal Australian Navy and prior to going to sea in 1964 and despite having lost a brother as a result of a motor vehicle accident just a year before, his behaviour was normal for a youth of 17 yeas of age. When at sea on board the HMAS Vampire and still then aged 17, he experienced two typhoons and another incident where he nearly went overboard between HMAS Vampire and a supply ship which exposed him to potential danger.
The applicant admitted that he experienced anxiety as a result of these three incidents. He said, "These things caused me anxiety at the time but I do not recall them having any longer term effect on me and I don't believe I relive memories of these incidents." Despite this, the evidence before the Tribunal is that these incidents were sufficiently significant to be the only incidents experienced by the applicant during service that he spoke freely about to friends and family. Indeed, the evidence is that during the typhoons he thought that the ship would capsize.
Chronologically the next incidents referred to in evidence occurred in 1966 during the period between April and June when on board the HMAS Yarra. These were, firstly, during a two day anchorage in Vung Tau Harbour and, secondly, some three weeks later during a second visit whilst on escort duty into Vietnam waters, although not into Vung Tau Harbour. In regard to the first incident, the applicant claims to have experienced fear and anxiety in relation to the use of scare charges proximate to the Yarra. On one occasion he was on duty in the radio room with others including a superior rating. The ship's company had been briefed beforehand that these scare charges would be used intermittently around the ship. The other incident on this occasion was when the applicant was on duty on a small boat engaged in dropping the scare charges whilst circumnavigating close to the Yarra.
The applicant's then concern was the risk of Vietcong frogmen laying mines against the ship, the reason for dropping the scare charges. The other precautions taken by the Australian Navy against the Vietcong frogmen were the Navy's own frogmen on duty from time to time around the ship and also the Navy's own boat crews circling the ship. The applicant's evidence about this activity is that "it was absolutely terrifying. It was pitch black." The Tribunal notes that in his written statement (exhibit A1, paragraph 8), the applicant states in relation to the time that the Yarra was in Vung Tau harbour for two nights:
"We believed we were anchored in range of motor rockets and I felt that we were a sitting duck. The radio room was in the middle of the ship and I worried about being trapped. The whole experience made me feel very vulnerable and I worried about being killed."
The Tribunal notes that exhibit R1, a research report, indicates at para. 19 that there were no motor or rocket attacks directed at any RAN ships during the Vietnam War. However, the Tribunal accepts that the applicant may have been worried as he describes. When cross-examined and asked about the shore, town and Harbour being lit up and also the Yarra and the Sydney having security lights shining on the water, the applicant said he couldn't recall. The applicant's evidence in relation to the second visit into Vietnam waters is that they did not enter Vung Tau harbour and that nothing unusual occurred. However, on examination the applicant said that he was even more anxious on this occasion than on the first.
Upon return on the Yarra to Australia the applicant was based in Melbourne for a short time but then (in 1967) posted to HMAS Tarangau on Manus Island (PNG) for about a year. His evidence is that he was having bad dreams and also drank to excess. This posting separated the applicant from his fiance and it is apparent from the evidence that he didn't want to be there. His evidence is that whilst at HMAS Tarangau he was charged for disobeying an order and was disciplined, the discipline amounting to a reduction in pay and some extra duties. The applicant said that the reason for his behaviour at the time is that he thought his superior officer was being unfair in ordering him to complete a task beyond normal work time.
Upon return to Australia, in September 1967, he married his fiance and was posted with her to Singapore for two years (1968 – 1970). Whilst there his duties included decoding Vietcong/North Vietnamese signals which had been intercepted. The activity was highly classified and he was unable to give any detail except that he claims that the subject matter of some signals caused him to "relive my vulnerability whilst in Vietnam waters." After Singapore he returned to sea on HMAS Stuart for three years. Nothing traumatic occurred during this time and the applicant said that "we didn't drink on the ship except on special occasions but when we went ashore I would go on a binge."
He made a decision to take his discharge in January 1973. He said that one of the reasons he took discharge one year before he would have been entitled to long service leave, was fear of going back to sea and to the Far East and maybe back to Vietnam. The Tribunal simply notes that by 1973 the likelihood of going back to Vietnam was remote. Some six months after he left the Service the applicant joined the WA Police Force. He remained a policeman for 26 years until 1999. He reached the rank of Sergeant in relatively quick time and was an outstanding performer culminating in him topping the Sergeant's course.
The applicant experienced other significant traumatic events in his life following Navy service. These are:
His father, with whom he had a significant and close relationship, dying in 1975 of a heart attack at a relatively young age of 56. His father was a respected police officer of long standing. The evidence is that the applicant looked up to his father.
In 1983 another brother, also a policeman, was murdered in Kalgoorlie.
His elder son, also a policeman, committed suicide in 1992.
He first sought medical advice after an incident at the South Fremantle Football Club where he was an official. He was referred to Dr Woodall by the Club's doctor. After returning from a trip to the United States with his wife, he again consulted Dr Woodall. He had seen Dr Woodall on several occasions. Later again the Police Department sent him to another psychiatrist, Dr Hester. This arose because at the time he was too often absent from work. Subsequently he was retired from the Police Force on medical grounds. Dr Hester's report was not provided to the Tribunal.
In this matter, Dr Woodall first (T7) and subsequently (T12) diagnosed post traumatic stress disorder, PTSD, and this remained his diagnosis until his last report of 3 May 2001 (exhibit A3). The Tribunal understands that the applicant's current treatment is for PTSD. Although Dr Woodall attributed the diagnosis to PTSD on two separate occasions in 1999 (T7 & T12), in May 2001 he resiled from that diagnosis, (ex. A3) which diagnoses the applicant's condition to be general anxiety disorder, GAD.
Dr Woodall said in evidence that one of the reasons for changing the diagnosis was that initially it was a clinical diagnosis for the purpose of treatment and subsequently it had become a medico-legal matter. Dr Woodall has attributed the applicant's GAD to his brief operational service in Vietnam referred to above. The Tribunal is satisfied that the applicant has an anxiety disorder of some sort, which could explain his symptoms of irritability, restless sleep, restlessness, concentration difficulties and an unwillingness to communicate. In the opinion of the Tribunal it does not have sufficient and satisfactory evidence to support an adequate diagnosis of his condition.
In any event, the Tribunal is not satisfied whatever is the applicant's apparent anxiety condition that the evidence supports a conclusion that that condition is relevantly connected to the applicant's operational service or eligible defence service.
Decision
For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision of the Veterans' Review Board of 29 November 1999 is affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RD Fayle , Senior Member; Brigadier RDF Lloyd, Member: Dr P Staer, Member
Signed: ................(- sgd W Treasure -).....................
AssociateDate/s of Hearing 7 May 2001
Date of Decision 22 May 2001
Counsel for the Applicant Mr Henry Christie
Solicitor for the Applicant
Counsel for the Respondent Mr Carl Ponnuthurai
Solicitor for the Respondent
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