Rogers and Repatriation Commission - [2002] AATA 1292

DECISION AND REASONS FOR DECISION [2002] AATA 1292

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1025

VETERANS' APPEALS DIVISION          )
           Re      MICHAEL ROGERS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen Dr P Lynch, Member

Date13 December 2002
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely THAT: 1. Lumbar interverbral disc degeneration, ligamentous injury left ankle and bilateral sensorineural hearing loss are not war-cased injuries or diseases suffered by the Applicant; 2. The Applicant is entitled to pension for the war-caused disease of post traumatic stress disorder as and from 10 September 1999; and 3. This matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases.

(Sgd) M D ALLEN Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - post traumatic stress disorder - whether disease in fact existed - conformity with Statement of Principles - evidence required to negative applicant's evidence beyond reasonable doubt.

Veterans' Entitlement Act 1986 - s6C, ss120(1), (3) and (4), s120A

Bushell v Repatriation Commission 175 CLR 408
Byrnes v Repatriation Commission 177 CLR 564
Repatriation Commission v Deledio 83 FCR 82
Benjamin v Repatriation Commission 64 ALD 411
Benjamin v Repatriation Commission 34 AAR 270
Budworth v Repatriation Commission 63 ALD 422
O'Neil v Repatriation Commission 34 AAR 290
Repatriation Commission v Hill [2002] FCA 192

REASONS FOR DECISION

13 December 2002 Senior Member M D Allen Dr P Lynch, Member

By application made 18 July 2001 the Applicant sought review of a decision by a delegate of the Respondent, as affirmed by a Veterans' Review Board, that refused his claim for the condition described as "anxiety state".
Other conditions were referred to in that determination but the only matter litigated before this Tribunal was the Applicant's claim with respect to his psychiatric illness.
The matter came on for hearing before this Tribunal on 31 October 2002 and the following documents were taken in as exhibits and marked as follows namely:
T1 - T17 : Documents prepared for the Tribunal pursuant to section
37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1 : Applicant's Statement of Facts and Contentions

Exhibit A2 : Copy of Army form AAFG11

Exhibit A3 : Copy of a local leave pass

Exhibit A4 : Copy of a leave pass

Exhibit A5 : Statement by the Applicant dated 5 January 2002

Exhibit A6 : Report of Dr Dinnen dated 6 March 2002

Exhibit A7 : Report of Dr Dinnen dated 26 July 2002

Exhibit A8 : Extract from Diagnostic and Statistical Manual Volume IV

Exhibit R1 : Respondent's Statement of Facts and Contentions

Exhibit R2 : Copy of the Clinical Notes of Dr Lim

Exhibit R3 : Research report of Mr Ducker dated 30 November 2001

Exhibit R4 : Report of Dr Haik dated 14 March 2002

Exhibit R5 : Report of Dr Haik dated 23 September 2002

As the Applicant had operational service as that term is defined in section 6C of the Veterans' Entitlements Act 1986 ("VEA") the provisions of ss120(1) and (3) VEA mandate the standard of proof which applies to the Applicant's claim. Those subsections provide inter alia that the Respondent and hence this Tribunal shall grant the claim unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied unless, after a consideration of all of the material before it, it is satisfied that there exists a reasonable hypothesis connecting the claimed disease with the circumstances of the particular service rendered by the Applicant.
Section 120A VEA states that any hypothesis raised by the material before the Tribunal will not be a reasonable hypothesis unless it conforms with a so called Statement of Principals ("SoP") determined by the Repatriation Medical Authority pursuant to s198B VEA.
In other words although the preponderance of medical opinion before the Tribunal makes the connection between war service and a disease suffered by a Veteran, the Tribunal cannot grant the claim unless there is a strict conformity with the various provisions mandated in the SoP. The fact that the SoP may not reflect the most up to date medical opinion is irrelevant.
The manner in which the Tribunal should approach its task in matters where an appropriate SoP exists was stated by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 91 namely:
"1.       One commences with subsection (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war-service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2.        The second step under subsection (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the raised facts) and if the hypothesis can be regarded as a reasonable, assuming the raised facts to be true. In determining whether the hypothesis is reasonable, the decision-maker must identify the facts said to point to it.
3.        Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4.        If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."

If no SoP exists then the reasonable hypothesis test applies in the sense explained by the High Court in Bushell v Repatriation Commission 175 CLR 408 and Byrnes v Repatriation Commission 177 CLR 564.
The Applicant was conscripted for service in the Australian Army in 1967. Prior to enlistment he had been a Jackeroo on a Queensland property having migrated to Australia from England when aged 17. The evidence is that the Applicant's home life had been unhappy as he did not feel wanted by his stepmother and his father was often away from home.
After recruit training the Applicant was posted to the 6th Battalion Royal Australian Regiment ("RAR") at Townsville. That Battalion being earmarked for service in South Vietnam. On 7 May 1969 the Applicant arrived in Saigon and was then flown to the Task Force Base at Nui Dat.
Upon his original posting to 6 RAR the Applicant's military trade was that of a rifleman. Later he managed to qualify as a driver, a task he considered safer. And it was as the personal driver for the commanding officer ("CO") 6 RAR that the Applicant arrived in South Vietnam.
At the time he was first posted to 6 RAR the Applicant's Platoon commander was a Lieutenant Hines. Lieutenant Hines impressed the Applicant favourably and there is a strong suggestion from the psychiatric evidence that the Applicant regarded Lieutenant Hines with a particular fondness and regard. This is of distinct importance in the light of later events in South Vietnam.
Although not required to drive the CO of 6 RAR at all times whilst in South Vietnam, the Applicant was a member of that Battalion's transport platoon and when not required as the CO's driver had other tasks to perform including driving other officers and senior NCOs plus duties as a rifleman.
In connection with the latter duties the Applicant had to undertake sentry and picket duties including duties at night and at Fire Support Bases. On one occasion he took part in a patrol that set up an ambush site. Although no contact with the enemy was made by that patrol the Applicant still experienced being in unfriendly territory at night, lying in a position ready to undertake offensive action if required.
Not long after the Applicant arrived at Nui Dat the task force base received three incoming mortar rounds. In Exhibit R3, the report of Mr Ducker, this event is erroneously discussed with reference to Fire Support Base "THRUST". We see no reason to doubt the Applicant 's evidence on this point although we do not regard it as a significant event. It would however, as the Applicant stated, made him realise that he was in a war zone.
A far more significant event was when the Applicant was driving the Battalion Regiment Sergeant Major ("RSM") and suddenly saw a log had been placed across the road. Immediately he became aware that the log could have been placed there either to initiate an ambush if his vehicle stoped, or to cause him to drive off the road and into an area where mines had been laid. He had to make a quick decision and drove off the road and around the log. To the Applicant this was a major thing and in an earlier statement he had said "I often think of the situation and wonder what if?"
In Exhibit R3 the statement is made that the former RSM 6 RAR has no recollection of this incident. That fact that that a person has no recollection is not proof that it did not occur. The RSM was an experienced soldier and to him it may have meant little as nothing happened but to the Applicant it was a "major thing". In any event the Applicant has given sworn evidence that the event happened and there is no real evidence to contradict him.
The event with the log across the road illustrates a situation which is captured only in the reports of Dr Dinnen. That is the continual awareness by the Applicant whilst he was in South Vietnam that he was in a hostile environment. His duties constantly took him outside the protection of the defended base at Nui Dat and while driving on roads and more particularly while driving through villages he was at all times vulnerable to attack. As the Applicant put it "every day I was confronted with the threat of potential death or injury". He added, "you knew death was there but you got on with it".
In this regard it is a well-documented aspect of the Vietnam War that apparently friendly villagers could be Viet Cong and a constant alert had to be maintained even when no overt signs of hostility were present. As Dr Dinnen said in his evidence, "One of the most familiar comments people make if they are chatting to you about what it is like to be there, is that the Vietnamese who were assisting you and helping you during the day could well be slipping into their black pyjamas at night". Land mines were also a constant treat.
On one occasion whilst driving through a village the Applicant saw three Viet Cong who had been executed by a shot to the head and left in the village as an example to other villagers. (Note: "It is known by the presiding member that it was policy of the South Vietnamese Government to leave the bodies of dead local force Viet Cong in the village to ascertain which families came to claim the bodies.")
The Applicant's worst experience in Vietnam was when he was at Fire Support Base THRUST and heard over the company radio net that Lieutenant Hines had been killed by stepping on a land mine. He said that on hearing of Lieutenant Hines death he felt numb. He felt helpless and carried on with normal duties. In his words, "what else could you do".
Some three months after he left South Vietnam, the Applicant heard of the death of a Lieutenant Chapman who had been his platoon commander when in the Transport Platoon. Again this affected him a greatly, particularly as pre embarkation he had been to the house of Lieutenant Chapman and his wife for a pre embarkation party.
In Exhibit A5 the Applicant discussed his post Vietnam experiences. Certainly after South Vietnam he was unsettled and although he returned to Jackarooing he argued with his employer and left. A visit to his family in United Kingdom was unsuccessful as he didn't seem to fit in. There then followed a series of jobs until he found employment with Qantas as a flight steward. During this period he stated he felt unsettled and "stressed".
The Applicant's current problem manifested by itself in 1997 when he started to have arguments with his wife, predominantly regarding her objections to what she saw as his picking on their son. There had however been prior tensions in the marriage. After a cutting remark whilst at his sister-in-law's house by his wife he tried to commit suicide. Later he discussed this with a friend who referred him to the Vietnam Veterans' Counselling Service. They in turn provided him with a list of psychologists and he chose Mr Grant who he saw for about two or three years. He was also referred by his General Practitioner to Psychiatrist Dr Glass, and saw him six or seven times. Currently the Applicant still has problems but his married life has improved. He does not go to the Returned Services Leagues or other Veterans meetings but has been to reunions of 6 RAR. He considered that a large number of his current problems began to surface after the Welcome Home March in 1988.
The Applicant has also made a fleeting visit back to Phoc Tuy province in Vietnam. He regards this as having had a cathartic effect but interestingly enough Dr Dinnen states that that was a step which he would have advised against.
At the outset we must say that we regard it as unfortunate that neither party obtained a report from Dr Glass for these proceedings. There is a report from Dr Glass dated 15 January 2001 directed to the Applicant's General Practitioner at p15 of Exhibit R2. However that report is obviously after the first consultation and is extremely brief. Although Dr Glass was aware of the Applicant's service in Vietnam and tended to discount it as a factor he does not entirely dismiss it and he may well have had a different opinion after several visits and deeper exploration of the Applicant's history. We would not therefore prefer Dr Glass initial report to the opinions of Dr Dinnen.
Psychologist Mr Grant was of the opinion that the Applicant's psychiatric illness had its genesis in Vietnam. At document T4 p22 he writes regarding the Applicant's daughter:
"This is to state that in the last 12 months Peta and her family have been affected by significant stress associated with her father's depression and treatment. Peta's father is a veteran of the Vietnam conflict and the family has suffered as a result of his psychological problems pertaining to his wartime experiences."
Document T9 is a report dated 28 September 2000 to the Department of Veterans' Affairs by Dr Helme, Psychiatrist. The report by Dr Helme does not deal with the Applicant's war service in any detail. Dr Helme regarded any psychiatric illness suffered by the Applicant as having resolved. This is contrary to the opinions of Drs Dinnen, Haik and Glass. Given that conflict plus the fact that Dr Helme has not been requested to give any follow up report and the brevity of his history with respect to war service we reject his opinion.
The fundamental conflict of diagnosis in this matter is between Dr Dinnen and Dr Haik. The Tribunal has had the advantage of seeing and hearing Dr Dinnen give evidence and we are aware of his expertise in matters relating to veterans. In his reports and in his evidence he has set out with great clarity why his clinical opinion is that the Applicant suffers from a post traumatic stress disorder.
In making a finding as to what is the particular disease entity suffered by the Applicant, the Tribunal is entitled to make its decision having regard to the clinical opinions of the specialists involved.
In Benjamin v Repatriation Commission 64 ALD 411 at para 25 Whitlam J said after having referred to the judgment of Weinberg J in Repatriation Commission v Gosewinckel 59 ALD 690:
"Strictly speaking, I do not think it is necessary to consider whether a relevant Statement of Principles is in force until a determination is required under s120(1) and (3). Section 120A(4) suggests that is so because only at that stage will 'the kind of disease contracted' by the veteran have been determined. It is plain enough from the Tribunal's reasons, that in determining whether the Applicant suffered PTSD it regarded itself as bound to apply the definition in the SoP. In that respect, in my opinion, the Tribunal erred in its initial task."

On appeal Benjamin v Repatriation Commission 34 AAR 270 the Full Court said at p280:
"The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis." (Tribunal's emphasis)

In Exhibit A6 Dr Dinnen examined the criteria for PTSD as listed in the Fourth Volume of Diagnostic and Statistical Manual ("DSM IV") and opined that the Applicant conformed with sufficient of the said criteria to enable a diagnosis of PTSD to be made.
In evidence Dr Dinnen stated that his diagnosis was:
"Post traumatic stress disorder with a clinical onset about five years ago. But what we were talking about is the possibility that there may have been a sub clinical or partial post traumatic stress disorder present before that."

Crossed examined Dr Dinnen expanded on this opinion by stating:

"It is also common that pictures of sub clinical or latent post traumatic stress disorder can be found when you look for them. But to set a time for when one can identify this condition is not in accord with our understanding of the condition. It can occur at any time."

It was then put to Dr Dinnen that the Applicant's case was one which was quite rare and he replied:

"Absolutely not. Absolutely not. Absolutely not. As I say, if an individual soldiers on, I used the word of some liberation, then the condition won't present until there is a crisis which causes to be aggravated and commonly we see that the condition has been for many years but in a sub clinical or latent fashion. That is common. I have seen many, many cases through the years. I reported it in the literature. I've a paper published on it. Late onset or delayed onset of post traumatic stress disorder is one of the most intriguing aspect of the syndrome."

Dr Haik in his reports particularly Exhibit R4 does not appear to have a full understanding of what service in South Vietnam involved nor to appreciate the peculiar stresses invoked in a war with no real front line.
The Tribunal was also persuaded by the extract from the textbook of Psychiatry quoted by Dr Dinnen in Exhibit A7. The textbook is Kaplan and Sadock's Synopsis of Psychiatry (1998) 8th Ed. The particular passage occurs at p618 of the Textbook and reads:
"By definition, the stressor is the prime causative factor in the development of post traumatic stress disorder. Yet not everyone experiences the disorder after a traumatic event; although the stressor is necessary it is not sufficient to cause the disorder. Clinicians must also consider individual pre existing biological and psychosocial factors and events that happened after the trauma. For example, a member of a group who lived through a disaster can sometimes deal with trauma because others shared the experience. Survivor guilt, however, sometimes complicates the management of post traumatic stress disorder.
Recent research on the disorder has placed greater emphasis on a person's subjective response to trauma than on the severity of the stressor itself. Although post traumatic stress disorder symptoms were once thought to be directly proportional to the severity of the stressor, empirical studies have shown otherwise. As a result, the growing consensus is that the disorder has a great deal to do with the stressor's subjective meaning to a person. (Tribunal's emphasis)
Even when faced with overwhelming trauma, most people do not experience post traumatic stress disorder symptoms. Similarly, events that may appear mundane or less than catastrophic to most people may produce to post traumatic stress disorder in some. The predisposing vulnerability factors that appear to play primary roles in determining whether the disorder develops include the presence of childhood trauma; borderline, paranoid, dependent, or antisocial personality disorder traits; an inadequate support system; genetic-constitutional vulnerability to psychiatric illnesses; recent stressful life changes; perception of an external locus of control rather than an internal one; and recent excessive alcohol intake."

We are more convinced by the opinion of Dr Dinnen who has had long experience in dealing with veterans and are satisfied on the balance of probability that the Applicant does suffers from post traumatic stress disorder.
The third Deledio step requires the hypothesis connecting the Applicant 's post traumatic stress disorder with his active service to conform to a SoP. In its SoP regarding post traumatic stress disorder the Repatriation Medical Authority states:
"For the purpose of this Statement of Principles post traumatic stress disorder means a psychiatric condition meeting the following description (derived from DSM-IV)"

despite the editors of the DSM specifically cautioning in their introduction against its use in forensic settings. Furthermore the editors point out (at pxxii):

"In DSM-IV there is no assumption that each category of mental disorder is a complete discrete entity with absolute boundaries dividing it from other mental disorders or no mental disorder."

Given this statement, it seems to us, that the real question in matters such as so present should be "does the veteran have a mental disorder and if so has that mental disorder been caused or contributed to by his war service?" rather than attempting to apply the SoPs in the "cookbook fashion" disparaged by the editors of the DSM (see pxxiii).

The SoP requires that before PTSD can be related to service, the following factors must exist namely:
"(a) experiencing a severe stressor prior to the clinical onset of PTSD."
(factors (b) and (c) do not apply in this matter)

Experiencing a severe stressor is defined in relevant SoP, namely Instrument No 54 of 1999 in the following terms:
"Experiencing a sever 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 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."

It would be noted that the definition uses the word "include" which has the result in statutory interpretation that the list given above is not exhaustive.

As was pointed out in Repatriation Commission v Hill [2002] FCA 192 at para 57 a hypothesis relied upon by a Veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. But as restated by the Court at para 59, proof of facts is not in issue at this stage.
As stated in the relevant SoP, namely Instrument No 3 of 1999 as amended by the Instrument No 54 1999, for a diagnosis of post traumatic stress disorder to be made a person has to have been exposed to a traumatic event in which both of the following were present namely:
"(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror."
As was pointed out by North J in O'Neil v Repatriation Commission 34 AAR 290 the reactions of an individual as to whether they felt anxious or stressed (and equally whether they felt intense fear, helplessness or horror) is something that is peculiarly personal and dependent upon subjective feelings. See also the extract from Kaplan & Sadock quoted above from the report or Dr Dinnen.
On the other hand it has been accepted since the decision at first instance in Budworth v Repatriation Commission 63 ALD 422 that the test as to whether or not the Applicant experienced witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others is an objective one.
In this matter the Applicant can point to three such incidents. One is the log across the road incident, the second is the observation of the three executed Viet Cong, and the third is hearing of the death of Lieutenant Hines.
What must be kept in mind is that the incident with the log across the road occurred in a situation where the Applicant was conscious that an ambush by hostile forces was a real possibility and one no doubt he had been warned about. That the Viet Cong laid mines on roads or tracks was well known and the Applicant would have been conscious of this fact also. He then had to make up his mind suddenly as to what course of action to take and the effect upon him is that he still ruminates upon the incident to this day.
We have no doubt that seeing the three executed Viet Cong laid out in the village for public display and warning would, as it was the first corpses he had ever seen, have had the effect upon the Applicant as required by para 2(b)(A) of the SoP so as to qualify as a traumatic event. Similar comments can apply to the log across the road incident. The definition of experiencing a severe stressor in Instrument No 54 of 1999 does not purport to impose any time limit upon the experience thus although the incident with the log was short, we find that it constituted a severe stressor in that the Applicant was confronted with an event that involved the threat of death or serious injury.
The word "atrocity" is not defined in Instrument 54 of 1999 but we are satisfied that to see bodies of three executed persons on public display is so far removed from the norms of behaviour that the Applicant would have been used to that he word atrocity is applicable. It must be kept in mind too that the Applicant suddenly came across this sight, that is to say that he had no warning of what to expect. Seeing the corpses lying out involves more than just "abusive violence" and although the sight would have been quite unremarkable to an inhabitant of 18th Century London it is, we find, sufficient to invoke a feeling of horror in any persons of the Applicant's age and cultural background.
As the editors of DSM-IV point out at p424 a traumatic event can be characterised as "unexpectedly witnessing a dead body".
The death of Lieutenant Hines can be regarded as the experiencing of a severe stressor. The Applicant when hearing of the death of Lieutenant Hines over the company radio net was confronted with an event that involved actual death and his reaction did involve helplessness or horror.
As pointed out by Dr Dinnen, Lieutenant Hines was an authority figure to the Applicant indeed somewhat like a father figure or older brother. To learn of his death was an event of emotional significance to the Applicant such that it still affects him years later and Dr Dinnen noted an emotional reaction whenever the Applicant talked about it.
As the editors of DSM-IV point out at p425 a traumatic event can be events experienced by others but learnt about and give as an example the learning of the sudden unexpected death of a close friend or family member. To learn suddenly over a field radio of the sudden and immediate death of a father figure would be encompassed by such a description.
We find that the hypothesis contended for by the Applicant conforms to the relevant SoP. In considering the 4th Delidio stage we can only say that we are not satisfied beyond reasonable doubt that the events sworn to by the Applicant did not occur. As pointed out above the fact that the RSM 6 RAR does not remember the log incident is not proof that it did not occur. Similarly no evidence has been called to rebut the Applicants account, first recorded, albeit briefly, in Dr Haiks report of 14 March 2002 to the Respondent regarding the three executed Viet Cong.
Having regard to the whole of the material before us we find that the Applicant does suffer from a post traumatic stress disorder and that the hypothesis connecting that disease with the circumstances of his operational service conforms to the relevant SoP and that the facts necessary to support the hypothesis have not been negatived beyond reasonable doubt. The decision under review is therefore set aside and the Tribunal substitutes its decision namely that the Applicant is entitled to pension for the war-caused disease of post traumatic stress disorder. This matter will be remitted to the Respondent in order that it might assess the rate of pension to be paid.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr P Lynch, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  31 October 2002
Date of Decision  13 December 2002
Advocate for the Applicant      Ms J Buss, Legal Aid Commission
Advocate for the Respondent Mr S Modder, Department of Veterans' Affairs