Ryan and Repatriation Commission
[2005] AATA 981
•6 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 981
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/719, Q2004/461
VETERANS' APPEALS DIVISION )
Re DAVID CHARLES RYAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date6 October 2005
PlaceBrisbane
Decision
The Tribunal sets aside the decisions of the Repatriation Commission dated 5 September 2001 and 5 December 2003 and substitutes a decision:
(i)that the applicant suffers from PTSD and co-morbid hypertension and alcohol abuse;
(ii)that the applicant’s conditions were war-caused within the meaning of the Act; and
(iii)that the matter is remitted to the respondent for assessment of pension.
...................[Sgd]......................
KS Levy
Member
CATCHWORDS
VETERANS’ APPEALS – Post Traumatic Stress Disorder – co-morbid hypertension – alcohol abuse – whether war-caused – threat to physical integrity – whether necessary for veteran to subjectively experience “severe stressor” – decision set aside.
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 13, 120, 120A
Repatriation Commission and Gosewinckel (2000) 59 ALD 690
Benjamin and Repatriation Commission (2003) 70 ALD 622
Fogarty and Repatriation Commission [2003] FCAFC 136
Gerzina v Repatriation Commission [2003] FMCA 490
White v Repatriation Commission [2004] FCA 633
Re Williamson and Repatriation Commission [2004] AATA 1185
Allen and Repatriation Commission [2005] AATA 526
Re McCutcheon and Repatriation Commission [2004] AATA 329
Repatriation Commission and Hancock [2003] FCA 711
Repatriation Commission and Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Tuite (1993) 39 FCR 540
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Stoddart (2003) 77 ALD 67
Re Slattery and Repatriation Commission (1998) 52 ALD 90Stoddart v Repatriation Commission [2003] FCA 334
Delahunty v Repatriation Commission (2004) 38 AAR 511
Lees v Repatriation Commission 125 FCR 331
Stoddart v Repatriation Commission (2003) 74 ALD 366REASONS FOR DECISION
6 October 2005 Dr KS Levy, Member Introduction
1. The applicant, David Ryan, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of two decisions under the Veterans’ Entitlements Act 1986 (“the Act”) –
(a)a decision of the Repatriation Commission of 5 September 2001 which determined that depressive disorder was not war-caused or defence-caused under the Act; and
(b) a decision of the Repatriation Commission of 5 December 2003 which determined that hypertension was not war-caused or defence-caused under the Act.
2. The above decisions were affirmed by the Veterans’ Review Board on 25 September 2002 and 7 May 2004 respectively.
3. The present claim is based on the applicant’s contentions that the conditions of depressive disorder and hypertension satisfy the definitions and diagnostic criteria prescribed in Statements of Principles and that they are related to the applicant’s service in Vietnam.
4. The applicant was represented by Mr A Harding of Counsel instructed by Ms R Britnell, Solicitor of Gilshenan and Luton. The respondent was represented by its advocate, Mr M Smith.
Background
5. The applicant is currently 54 years of age (and was 53 years of age at the time of the hearing). His date of birth is 31 August 1951.
6. He was born in Kyogle in New South Wales and is the fourth of five siblings. He has one brother and three sisters. Both parents have now died but the applicant comes from an intact family. He was educated to Grade 10 level, leaving school at age 16. He joined the Australian Army in 1969 aged 18 years. He served for nine years in the Regular Army from 15 April 1969 to 14 April 1978. His relevant service was in the 8th Petroleum Platoon.
7. His eligible service under the Act is as follows –
(i) eligible defence service from 7 December 1972 to 14 April 1978
(ii)operational service in South Vietnam from 12 May 1971 to 18 November 1971.
8. The applicant was promoted to Lance Corporal whilst serving in Vietnam and was promoted to Corporal prior to his discharge.
9. As a result of the applicant’s defence service, he has the following conditions accepted by the Department of Veterans’ Affairs as being service-related –
(i) Squamous cell carcinoma and severe dysplastic solar keratoses;
(ii) Sensori-neural hearing loss of the left ear with tinnitus; and
(iii) Gastro-oesophageal reflux disease.
10. The applicant moved to Queensland in 1996 and purchased a lawn mowing franchise. He was therefore self-employed and undertook all management and operational work in relation to that business. This was sold on 5 January 2005.
11. The applicant currently suffers from anxiety and depressive conditions, which he claims is related to his military service.
Issues For Determination
12. The issues for determination in this case are:
(i)Whether a diagnosis of depressive disorder, generalised anxiety disorder, or post traumatic stress disorder, and/or hypertension is appropriate for the applicant’s psychiatric condition?
(ii)Whether any accepted diagnoses of psychiatric conditions are war-caused within the meaning of section 9 of the Act?
(iii)Whether a pension is payable at the Special Rate?
Legislative Framework
13. The statutory authorities contained in the Act which are relevant to determining the applicant’s eligibility for pension in relation to these conditions are outlined below.
”Section 6C
Operational service—post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
(2) A member of the naval, military or air forces of a Commonwealth country or of an allied country who:
(a) was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces; and
(b) has rendered continuous full-time service in an operational area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:
(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area—on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day—on that day;
and ending at the end of:
(c) if the member, or the unit of the member, ceased to be allotted for duty—the day from which the member, or the unit, ceased to be allotted for duty; or
(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area)—the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or
(e) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
(4) If, while rendering continuous full-time service in an operational area, a member of the Defence Force has:
(a)returned to Australia in accordance with the Rest and Recuperation arrangements of the naval, military or air forces; or
(b) returned to Australia on emergency or other leave granted on compassionate grounds; or
(c)returned to Australia on duty; or
(d) returned to Australia for the purpose of receiving medical or surgical treatment as directed by the medical authorities of the Defence Force;
only so much of the period of service of the member within Australia after his or her return and while the member:
(e) continued to be allotted for duty in an operational area; or
(f) continued to be a member of a unit of the Defence Force allotted for duty in an operational area;
as does not exceed 14 days is taken, for the purposes of subsection (1), to be a period when the member was rendering continuous full-time service in the operational area.
Section 7
Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
….
(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
Section 9
War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
….
(5) Paragraph (1)(c) does not apply:
(a) to an accident that occurred while the veteran was travelling on a journey from the veteran's place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran's duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b) to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran's duty; or
(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran's duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
Section 13
Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
Section 120
Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) ….
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
Section 120A
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
….
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
14. In respect of claims made on or after 1 June 1994, these are to be assessed in accordance with the Statements of Principles (SoPs) issued by the Repatriation Medical Authority under section 196B of the Act (see sections 120A and 120B of the Act). In this case, the following SoPs have been issued for the relevant conditions claimed by the applicant –
§Instrument No 3 of 1999 as amended by No 54 of 1999 – Post Traumatic Stress Disorder
§Instrument No 35 of 2003 as amended by No 3 of 2004 – Hypertension
§Instrument No 58 of 1998 – Depressive Disorder
§Instrument No 1 of 2000 – Generalised Anxiety Disorder
15. In respect of the applicant’s operational service, the standard of proof is that of a reasonable hypothesis [sections 120(1), 120(3)]. In respect of diagnosis and any eligible defence service, the standard of proof is that of reasonable satisfaction [section 120(4)].
16. The relevant legal principles in relation to the standard of proof required under the Act is set out in Repatriation Commission and Gosewinckel (2000) 59 ALD 690 at 691:
“….The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4), not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war-caused. All other matters were to be dealt with by the reasonable satisfaction standard in s 120(4)….” [Emphasis added]
17. The standard of “reasonable satisfaction” has been held to be equivalent to the civil standard of proof, or satisfying the test of the balance of probabilities (Benjamin and Repatriation Commission (2003) 70 ALD 622; Fogarty and Repatriation Commission [2003] FCAFC 136).
18. The following documents were admitted into evidence –
Exhibit 1 “T” Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 – Q2003/719
Exhibit 2“T” Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 – Q2004/461
Exhibit 3Statement by Mr Ryan dated 20 November 2003
Exhibit 4Statement by Mr Ryan dated 13 August 2004
Exhibit 5Statement by Mrs Beverley Ryan dated 20 October 2004
Exhibit 6Statement by Mr Michael Singline dated 5 August 2005
Exhibit 7Statement by Mr Robert Ney dated 10 August 2005
Exhibit 8Report of Dr Lillian Cameron dated 9 July 2004
Exhibit 9Supplementary Report of Dr Lillian Cameron dated 25 November 2004
Exhibit 10Report of Dr William Kingswell dated 10 March 2004
Exhibit 11Transcript of Veterans’ Review Board Hearing held on 25 September 2002
19. Oral evidence was provided by the applicant in person, his wife, Mrs Beverley Ryan and Dr Lillian Cameron. The only witness presenting oral evidence for the respondent was Dr William Kingswell.
Evidence
§ David Charles Ryan
20. The applicant, David Charles Ryan gave sworn evidence. He acknowledged the correctness of his statements in Exhibits 3 and 4. His examination-in-chief was mainly to the effect that his role in the Army whilst on operational service in Vietnam was refuelling helicopters. This occurred once per day or perhaps once every two days. He stated that he was always worried or frightened as he was outside the wire for 35 to 70 minutes while he was refuelling aircraft. He explained his fear was about the high octane fuel used to refuel helicopters which was highly inflammable and that he could easily have been killed if the fuel tanks had been shot at.
21. Under cross-examination the applicant admitted that he did not experience actual enemy activity. However, he was present when a soldier had a number of fingers blown off whilst maintaining a mortar. The applicant went to replace Mr Singline, whom he found around the bunkers, which was inside the base. He heard screaming and when he looked up he saw each mortar crew being 10 to 15 feet away from each other. There were a number of soldiers around the injured mortarman and paramedics arrived quickly.
22. The applicant also referred to seeing blood in helicopters when he was refuelling aircraft. He clarified that he did not witness wounded soldiers but only saw blood on the floor of the choppers after they had been out on operations. He said he saw blood most times that he refuelled helicopters.
23. It was put to the applicant that he did not mention this to Dr Danesi in 1996. The applicant said he could not remember whether that was so or not. Also, Mr Smith referred the applicant to the report by Dr Danesi which showed that he saw action on one occasion when he was in a plantation next to the air base. He was on duty all of one night and told Dr Danesi that he was scared but denied any recurrence of fear. Likewise, he was referred to Dr Cameron’s report of 2001. He told Dr Cameron at that time he was refuelling helicopters and also did patrols around the base. “He said there were no serious traumatic experiences…”. He admitted he was never attacked by the enemy and that he was never actually in battle. Hearing gunfire was not uncommon but it was not continuous fire – it was sporadic fire.
24. In Dr Cameron’s report of 20 June 2002, it was shown that Mr Ryan was said to have found the thumb of the soldier who was injured in the mortar accident. He stated that that was not correct – that he did not find the thumb. The report also states that he was “under fire for six hours”. However, the applicant admitted he had to “stand to” for six hours.
25. Mr Smith also raised with the applicant other issues of concern for him from the time he was in the Army. For example, his second daughter died two hours after birth which he said affected emotionally and he was very sad for some time after that. His youngest daughter was also born profoundly deaf. She also had a nervous breakdown in her teenage years and the applicant indicated that he was disturbed by this.
26. Other incidents which have caused some emotional trauma for him was the fact that he incurred a back injury in the 1980s and was on work cover for 18 months to 2 years. Also in that time he separated from his wife for approximately 12 months.
27. In addition to these family difficulties which the applicant experienced in the 1980s, he was referred to Dr Kingswell’s report (Exhibit 10) which referred to nightmares. The applicant stated this referred to dreams he had which were flashbacks to Vietnam and involved images of the soldier with the hand injury from the mortar explosion. He stated to the Tribunal that he would be woken up by the intensity of these dreams, however, he had not been awakened by flashbacks recently.
28. In re-examination, the applicant stated that he has had flashbacks since that time and that the content of these images related to his Vietnam service and the soldier who had his fingers blown off. He also explained his training in preparation for Vietnam was that he was trained to use various weapons and did a battle efficiency course. He said that he would have had six hours instruction on the weapons he had to use but felt vulnerable and just hoped that he did not get attacked.
§ Beverley Joy Ryan
29. Mrs Beverley Joy Ryan gave sworn evidence. She confirmed that her statement in Exhibit 5 was correct. Her evidence was that she met her husband before he went to South Vietnam but noticed that he was very different after he came back, although this was before they were married. He was quiet, but was moody at times and seemed to drink continuously, although he did not drink before he went to Vietnam. However, on his return she said he would “bottle everything up”. She could not discuss problems with him; he would not talk about anything; and only recently has he opened up about his mental anguish, and then only after he has had a few drinks. He said that he had never spoken about the things that concerned him while he was a soldier.
30. He has since discussed with her that he saw people in the night while he was in Vietnam and also spoke to her of the incident with the soldier who had his fingers blown off. It was only recently that he spoke of this for the first time and he was crying during this incident. Mrs Ryan thought he had tried to block out information about his service in the Army and used to object to his children watching war movies.
31. When she first went out with the applicant, she recalls him being sociable and they often played squash. Now, however, he never likes going out. She referred to their separation when their daughter was two years old, and this was due to his heavy drinking and the fact that he would not come home until 3 or 4 a.m. She told the Tribunal that she could not cope with her husband’s drinking and difficult nature, as she had a daughter who was deaf and had to take her to a speech therapist and devote additional time to her than to her other children.
32. Mrs Ryan said that her husband only opened up to the doctor about his drinking fairly recently. It takes a long time to feel comfortable with people. She attributes this to his heavy drinking which is still about two bottles of wine per day. He starts drinking usually about 4 pm and goes to bed about 10 pm. Alcohol has caused problems in their relationship but he also gets very moody. One affect of this is that she lets him watch whatever he likes on the television to prevent him being in a bad mood. She and her daughter just leave him alone in those circumstances.
33. Mrs Ryan also gave evidence of her husband’s other anxious behaviours such as being a restless sleeper. She said that he does sometimes yell out in his sleep. Also, if the telephone rings, he does not want to answer it.
§ Dr Lillian Cameron
34. Dr Lillian Cameron gave telephone evidence. She stated that she had provided four reports in relation to the applicant – 29 August 2001, 20 June 2002, 9 July 2004 and 25 November 2004. Her current view is that he suffers from post traumatic stress disorder (PTSD) but has a secondary diagnosis of dysthymia.
35. Dr Cameron explained he was not a good historian and his emotional reaction was not fluent. She felt he became more confident to speak to her of his experiences as time went on. She believes this is common with many people who have PTSD.
36. Dr Cameron now believes that he is not naturally a person who expresses his emotions freely. She said that his wife agrees that he is not able to express his feeling readily – he answers in monosyllables or in short sentences.
37. He later told her of his military experiences. She believed he was genuine and there was never a question in her mind about his truthfulness. She felt that the applicant was similar to many people who have had traumatic experiences in withholding information until a degree of trust is established. She said such people always wish to avoid re-experiencing the trauma.
38. In a report of 9 July 2004, Dr Cameron diagnosed him with dysthymia, PTSD and alcohol abuse. She said that PTSD often occurs co-morbidly with depression, general anxiety disorder and alcohol abuse.
39. Dr Cameron said that patients often tend to minimise their symptoms in this regard. She thought his wife’s account of his alcohol problem was probably more accurate, as he tends to minimise it.
40. Dr Cameron thought that the constant risk and fear of being shot contributed to his PTSD. The constant fear she said would be significant and that he seemed to feel vulnerable all of the time. The fact that he was not an infantry soldier contributed to his feeling more helpless. In discussing the “stressors”, that is, the traumatic experience to which the SoP refers, she referred to the incident of the soldier having his fingers blown off. The fact that he did not find the thumb she did not think was significant as it was on his mind a lot and was therefore a critical event for him. She believes the diagnosis of PTSD is still justified owing to the significance of this event. She said that if it were not significant, he may have shortened his story about it.
41. Another event was the “stand to” requirement for six hours in a trench.
42. But Dr Cameron indicated that all of the events are additive – that is, the soldier with his fingers blown off, the possibility of being blown up if the petrol drums were ignited, he found a pack belonging to an enemy soldier just outside the wire one morning on a patrol, and all of these things shocked him. She said he was not properly prepared to deal with it.
43. Under cross-examination, Dr Cameron put onset as being in 1971. Dr Cameron also stated that the applicant also had co-morbid anxiety and depression.
§ Dr William Kingswell
44. Dr William Kingswell provided telephone evidence. He diagnosed Mr Ryan as having generalised anxiety disorder and alcohol abuse. He did not enter a diagnosis of depression. Dr Kingswell thought onset of the alcohol problem occurred in 1970 and that the anxiety disorder probably occurred in November 1971 after his service in Vietnam.
45. Dr Kingswell did not diagnosis PTSD as the applicant indicated a gloomy state but did not appear avoidant. He attended regular work although he was anxious in crowds. He also had increased arousal and difficulty with sleep and irritability. Dr Kingswell emphasised that one must look at the overall presentation.
46. In cross-examination, Dr Kingswell agreed with Dr Cameron that he was avoidant in not describing stressful events but he said that it depends on whether there is a stressful event to rely on. He said that if the event which he described were stressful then it is a formal avoidance.
47. The effect of stressful events depends on each individual’s vulnerability. Dr Kingswell was informed that Dr Cameron had been told by Mr Ryan that he felt vulnerable and surrounded. He agreed that that may be the case for him because of his age, the fact that he was not an infantry soldier and he felt surrounded by the enemy. In that case, he agreed it could be a stressful event.
48. In re-examination, Dr Kingswell said that Criterion A could demonstrate that the applicant had generalised anxiety disorder as such people find themselves anxious in crowds. He agreed that perhaps both conditions were part of an anxiety syndrome and PTSD was one of those.
Submissions
49. Mr Harding referred to diagnosis by Dr Danesi in 1996 where he diagnosed generalised anxiety disorder. He submitted that the applicant did not declare the stressful events then and this would indicate that the applicant was avoidant or reluctant to speak about his experiences at that time. He also referred to Dr Kingswell’s evidence where he diagnosed generalised anxiety disorder and alcohol abuse. He referred to Dr Cameron’s diagnosis of PTSD.
50. He also submitted that the events to be relied on and in some respects, they are supported by the Statements of Michael Singline and Robert Ney, both of which were not contested. The incidents added up to the level of stress upon him. Another critical incident was the soldier who had his hand damaged from a mortar explosion. He submitted it did not matter that that did not occur because of enemy fire. He said this cannot be a fiction of the applicant’s imagination as Mr Singline and Mr Ney corroborate his evidence. He also submitted that like the definition of psychosocial stressor, these events were a threat to the applicant’s physical integrity and that of others. Also, with the definition of “severe stressor”, that the events evoked feelings of distress in the applicant.
51. On behalf of the respondent, Mr Smith submitted that anxiety cannot produce a lifetime of disorder. He accepted that the alcohol abuse came within the two year time limit but for an anxiety disorder, this must also be evident within two years.
52. In relation to PTSD, the respondent referred to Criterion A and said that he must be exposed to a “traumatic event”. It must result in his having “intense” fear, helplessness or horror (see Gerzina v Repatriation Commission [2003] FMCA 490). Also, the traumatic event must be similar to a severe stressor. Mr Smith referred the Tribunal to White v Repatriation Commission [2004] FCA 633, which held that the examples listed in the SoPs are not exhaustive but threshold levels.
53. Mr Smith also referred the Tribunal to Re Williamson and Repatriation Commission [2004] AATA 1185 and referred to paragraph 64 which, it was stated, indicated that the applicant’s events would not be severe stressors. The Tribunal also considered Allen and Repatriation Commission [2005] AATA 526 (paragraph 39) and Re McCutcheon and Repatriation Commission [2004] AATA 329 (paragraphs 65-68). Mr Smith mentioned that the applicant did not mention all the facts to Dr Cameron, although they eventually came out. He submitted that it could not be satisfied that the applicant had suffered a “severe stressor”.
Consideration Of The Issues
54. The Tribunal has reached a decision in this matter after taking account of all of the oral and documentary evidence, together with the statutory and case law relevant.
Diagnosis
55. In this case, differing diagnoses have been proffered by Dr Kingswell and Dr Cameron. In these circumstances, it is the Tribunal’s role to make the most acceptable diagnosis (Benjamin and Repatriation Commission (2001) 70 ALD 622).
56. Dr Kingswell regarded the applicant’s presentation as not indicating avoidance although there were the cases of anxiety, particularly in crowds. There was also evidence accepted by Dr Kingswell that the applicant had an alcohol problem in July 1970. He noted increased arousal in a number of respects in the applicant’s life but looking at the criteria overall, he believed a diagnosis of generalised anxiety disorder and alcohol abuse was more appropriate and without a diagnosis of a depressive illness. He acknowledged, however, that the applicant’s failure to describe a stressful event could be seen as a form of avoidance in itself. He also indicated that it needs to be assessed on the basis of each individual’s vulnerability. The fact that Mr Ryan had felt vulnerable and made such a presentation to Dr Cameron, Dr Kingswell agreed, that this therefore may be the case for Mr Ryan. It was suggested that the factors of his age at the time, not being a trained infantry soldier and the fact that he felt surrounded by the enemy could describe a stressful event for the applicant.
57. Dr Cameron saw the applicant over some three to four years and had made varying diagnoses over that period. She indicated that she initially thought he had dysthymia. However, as he became more comfortable with her, he was able to describe more of the events that were of concern to him. She believed that he tried to minimise his symptoms and that he felt vulnerable in the incident where another soldier had fingers blown off, and also where he had to “stand to” for six hours. She thought these events were critical events for him and that together with his age, not being an infantry soldier, regular anxiety-producing situations where he was refuelling helicopters in what were seen by him to be extremely dangerous situations, all result in what she regards as a diagnosis of post traumatic stress disorder.
58. In the circumstances, the Tribunal regards Dr Cameron’s view as preferable and that her diagnosis of PTSD as being the most acceptable diagnosis. The Tribunal also finds that the applicant also has hypertension as a result, in addition to suffering from alcohol abuse. The Tribunal acknowledges that the applicant was 19½ or 20 years of age at the time and that he felt under threat to the physical security of himself and of others. The critical events which he has described to the psychiatrist and to the Tribunal seem to be consistent with his experiencing feelings of intense fear and helplessness in response to those events.
59. It is accepted that he had ongoing fear in a situation where he was living somewhat in isolation and in a war zone. His previous personality was described as “outgoing” and for a diagnosis of PTSD, there needs to be shown a permanent change to personality. Based on the evidence, particularly of Mrs Ryan, this seems to be substantiated. Also, his avoidance of issues personally and his inability to discuss these details with others for many years, and his declining ability to integrate socially with others has demonstrated a level of disassociation consistent with the definition of the diagnosis of PTSD.
60. In the circumstances the diagnoses of PTSD, hypertension and alcohol abuse are accepted as the appropriate diagnoses for Mr Ryan.
Are These Conditions War-Caused?
§ What Kind Of Injury Has Been Suffered By Mr Ryan?
61. Before examining whether the SoPs are satisfied, the Tribunal must first establish whether two pre-conditions are met –
(i) Was Mr Ryan a veteran?
(ii)Is the kind of injury or disease claimed by the applicant consistent with a SoP which has been issued? (Repatriation Commission and Hancock [2003] FCA 711 per Selway J).
62. Mr Ryan has served on operational service in Vietnam and this was accepted by the respondent. He is therefore a “veteran”. Also, each of the conditions claimed is a disease or injury within the meaning of section 5D(1) of the Act, and therefore the claim relates to a disease or injury for which a SoP has been issued. The above pre-conditions set out in Hancock’s case have therefore been met.
Findings Of Fact
63. The Tribunal finds that:
(i)The applicant was a normal, relatively outgoing personality before being posted to South Vietnam.
(ii)The applicant experienced a number of traumatic events, particularly fear of attack while refuelling helicopters when at Fire Support Base, outside the wire.
(iii)He saw action on one occasion when in a plantation he had to “stand to” for 6 hours.
(iv)He witnessed the aftermath of a mortarman having a number of fingers blown off.
(v)There is an established pattern of minor disciplinary matters with which the applicant was charged just prior to, and in South Vietnam. This pattern was absent for the following ten years of serving in the Australian Regular Army until his discharge.
(vi)He has demonstrated a changed pattern of behaviour and justifies a diagnosis of PTSD, hypertension and alcohol abuse.
Is The SoP For PTSD Fulfilled?
64. The relevant SoP for PTSD is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. The relevant provisions of the SoP are as follows:
“Kind of injury, disease or death
2.(a) ….
(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(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; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
….
Factors
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
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
Other definitions
8. For the purposes of this Statement of Principles:
‘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’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”.
65. In relation to the term “clinical onset”, it has been held by the Full Court of the Federal Court in Lees and Repatriation Commission (2002) 125 FCR 331 at [16] that there must be sufficient proximity between the events claimed during military service and the manifestation of the disease to point to a causal link between the disease and the applicant’s service. That is, there must be a determination about the timing of the onset of the disease in relation to the stressors claimed. Unlike some other SoPs, there is no time period set between experiencing a stressor and the onset of the disease. In assessing this link, it is clear that the applicant had a relatively outgoing personality and did not drink alcohol prior to going to Vietnam. It is clear that he had a drinking problem and also his personality was quite withdrawn and seriously altered shortly after his return from his service in South Vietnam. This was the evidence of both the applicant and Mrs Ryan.
66. The Tribunal accepts that they are witnesses of truth and Mrs Ryan’s evidence has added credibility to the version of events given by the applicant to Dr Danesi and Dr Cameron. Dr Cameron has attributed clinical onset to the timing of two critical events put into evidence by the applicant. In terms of causation therefore, the Tribunal accepts that clinical onset of PTSD and alcohol abuse occurred during or within a short or reasonable time after completing his service in South Vietnam with the Australian Army.
67. The respondent indicated to the Tribunal that if it were accepted that the applicant had PTSD, then it also would accept that hypertension should be accepted. On that basis, the Tribunal determines that hypertension also has a clinical onset related to service in South Vietnam and is a consequence of the applicant’s PTSD and alcohol abuse.
Did The Applicant Experience A “Severe Stressor” As Specified In Paragraph 5 And As Defined In Paragraph 8 (As Amended By Instrument No 54 of 1999) (See Instrument No 3 of 1999)?
68. The applicant’s case to support that he suffered a severe stressor in Vietnam, because of the following events is specified in his statement of 20 November 2003:
(i)While stationed with 8 Petroleum Platoon in South Vietnam, the applicant witnessed a fellow soldier’s thumb being blown off by a mortar;
(ii)While stationed with 8 Petroleum Platoon in South Vietnam, the applicant witnessed on many occasions the blood on the floor of the helicopters as a result of carrying dead and wounded soldiers;
(iii)While stationed at Courtney Hill in South Vietnam (Fire Support Base), the enemy attacked within a kilometre of the Base and the applicant and his unit were ordered to “stand to” on alert for approximately 4 –6 hours in the trenches;
(iv)While working refuelling helicopters in South Vietnam, the applicant was consistently in an extremely vulnerable position in that, had the enemy attacked, the helicopter would have ignited and the applicant would have been incinerated. This was especially so when the applicant was stationed at the Fire Support Base where refuelling occurred outside the perimeter of the Base.
69. To determine the assessment of PTSD for this applicant and whether it is “war-caused”, four steps are required as set out by the Full Court of the Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82. The relevant steps are:
“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)…….
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.”
70. In dealing with Step 1 of Deledio, there must be material which can establish an hypothesis connecting the applicant’s PTSD with facts relating to his service. An hypothesis is a proposition which may seem logical, without acceptance of its truth, but it is to be regarded as a starting point for further enquiry. “A hypothesis is no more than a supposition of conjectural explanation of an ultimate fact” (Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
71. The Tribunal must have regard to the requirement to make its determination “after consideration of all of the material”. This was first referred to in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, when the High Court said a reasonable hypothesis is raised when “….the material point to some fact or facts which support the hypothesis”. The term “consideration of all of the material” was further clarified in Repatriation Commission v Webb (1998) 51 ALD 575 where it was held that the overall hypotheses requires consideration of each sequential part of the hypothesis and whether facts point to each part of the hypothesis being reasonable. If each part is reasonable, the overall hypothesis may be reasonable.
72. The Tribunal is satisfied that an hypothesis can be made connecting the applicant’s condition of PTSD with the circumstances of his service based on the applicant’s version of events and the other evidence, including medical evidence.
73. In relation to Step 2 of Deledio, a SoP has been issued by the Repatriation Medical Authority for the condition of PTSD. This is contained in Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 – Post Traumatic Stress Disorder (PTSD).
74. Step 3 of Deledio requires an assessment of whether the hypothesis raised in Step 1 is a reasonable one. The Explanatory Memorandum to the Act makes it clear that a reasonable hypothesis is not the existence of a mere possibility, but that the intention of the legislation is that a pension will be payable only where the evidence provides “….some positive inference in favour of a connection between the injury, disease or death and the veteran’s or member’s particular service” (at page 107).
75. The approach to be adopted in assessing this question was set out by the High Court in Byrnes and Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)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.” (Emphasis added)
76. In determining whether the hypothesis is reasonable, the material before the Tribunal must fit the template in the SoP for PTSD. That is, the material before the Tribunal must demonstrate the elements of PTSD as described in paragraph 2(b) and clause 5 of the SoP (Repatriation Commission v Hill [2002] FCAFC 192 at [67]). In that case, the diagnosis of post traumatic stress disorder was not in dispute and the Court there approached the assessment this way:
“The correct issue was, assuming [the applicant] suffered from PTSD as defined in cl 4 of the SoP, did the material raise or point to his “experiencing a stressor”, as defined, during his operational service?”
77. The approach set out in Hill’s case in assessing the reasonableness of the hypothesis has been followed by the Tribunal here.
78. The third step in the Deledio process requires the Tribunal to make a relatively macro-level of assessment of the applicant’s story and to determine whether it fits the template set out in the SoP. Findings of fact are not made on the basis of Step 3. At this point, however, if the applicant’s story does not fit within the template of SoP Instrument No 3 of 1999, then the hypothesis will not be reasonable (see section 120(3)). In those circumstances, the claim would be unsuccessful.
79. To be reasonable in terms of Hill’s case, a hypothesis must reveal a credible proposition and one that is not too remote or too improbable. It must be “….more that a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities” (East v Repatriation Commission (1987) 16 FCR 517 at 533. An hypothesis therefore is merely a possibility, but to be a reasonable hypothesis, it must “….be pointed to or supported, and not merely left open as a possibility by the material before the decision maker” (Repatriation Commission v Bey (1997) 79 FCR 364).
80. In a practical sense, the evidence must “point to” or “support” the hypothesis and not merely be “left open” on the evidence as a possibility (Gilbert v Repatriation Commission (1989) 86 ALR 713). It must also show more than just a temporal connection with military service (Repatriation Commission v Tuite (1993) 39 FCR 540). The High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 affirmed this approach or the “points to” test. It said this test in section 120(3) will manifest a reasonable hypothesis in circumstances where “….there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”.
81. In determining whether the applicant experienced a “severe stressor”, this term has been interpreted by the Full Court of the Federal Court as not requiring an actual threat judged objectively and with full knowledge of the circumstances (see Woodward v Repatriation Commission (2003) 131 FCR 473 per Black CJ, Weinberg and Selway JJ); and Repatriation Commission v Stoddart (2003) 77 ALD 67 (per Carr, Finn and Sundberg JJ).
82. In Stoddart v Repatriation Commission (2003) 74 ALD 366, Mansfield J held that in considering the meaning of the term “experiencing a severe stressor”, there does not need to be an actual threat, judged objectively with full knowledge of the circumstances. His Honour said that that expression extended to a person experiencing an event involving threat of death or serious injury, when judged objectively by a reasonable person in the position of the applicant. That judgment was quoted with approval in Woodward v Repatriation Commission (supra) and said that “experiencing” had a subjective element to the extent described by Mansfield J. In Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 108, the term “experiencing a severe stressor” was considered in that context, it was stated that:
“The word ‘experienced’ suggested that the person observed or encountered such an event and the word ‘confronted’ that he or she was faced with the event.”
83. Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 66 (at 378) in considering the definition “experiencing a severe stressor”, referred to it this way:
“….the adjectival clause ‘that involved actual or threat of death or serious injury…’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively do no in fact fall within the adjectival clause.”
84. His Honour also considered the word “threat” and held that it extended to an event which “…judged objectively from the point of view from a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experience) the risk of death or serious injury or to physical integrity”. A person’s physical integrity is intended to mean that their physical entirety or complete functioning is not diminished.
85. The requirement therefore for the Tribunal to determine whether a particular event satisfies the objective requirements of the definition of the stressor is not a simple one. Some assistance is drawn in considering the application of these principles to an event or events to be considered by the judgment of Tamberlin J in Delahunty v Repatriation Commission (2004) 38 AAR 511 who said that the long standing notion of the man on the Clapham omnibus is inadequate in cases such as this. The objective requirements are more properly considered from the standpoint of a member of the armed forces who is not idiosyncratic or unduly timorous or sensitive. This of it self does not provide a catch all formula to be applied in all circumstances. It must take account of the diversity in age and experience of persons in the armed forces and include their formal training and experience, particularly in combat or stressful situations. Certainly, the examples provided in the SoP provide some guidance as to what would amount to a severe stressor.
86. Mr Harding argued that the incidents put forward by the applicant are cumulatively stressors which explain PTSD. He argues that Dr Kingswell conceded, or at least accepted, that the applicant was avoidant and that might be sufficient to satisfy the definition in Instrument No 3 of 1999.
87. Mr Smith argued that the incidents claimed do not satisfy the requirements of “intense fear, helplessness or horror”. He referred the Tribunal to Gerzina v Repatriation Commission [2003] FMCA 490 where, at paragraph 31, the definitions of each of the words “intense”, “fear”, “helpless” and “horror” were defined. There, it was said the Oxford Dictionary defined “intense” as being, inter alia, “…and very deep: feeling ardent…feeling or susceptible to, intense emotion”. “Fear” was defined as “the emotion of pain or uneasiness caused by the sense of impending danger”. “Horror” was defined as “….a shuttering with terror and repugnance, feeling excited by something shocking or frightful…”. It was held in that case that the word “intense” qualified each of the words “fear”, “helplessness” or “horror”.
88. Mr Smith also referred to White v Repatriation Commission [2004] FCA 633 and said that the examples listed as defining a “traumatic event” were not exhaustive but threshold levels. He submitted also that there must be a threat to the physical integrity of himself or others and that the response must involve intense fear, helplessness or horror.
89. Mr Smith also submitted that the case of Williamson and Repatriation Commission [2004] AATA 1185 was relevant and referred the Tribunal to paragraph 64 of that decision and said that if the event did not evoke feelings of substantial distress, then it would not satisfy the definition of “severe stressor”. He referred to Re Allen and Repatriation Commission [2005] AATA 526 and to Re McCutcheon and Repatriation Commission [2004] AATA 329 which he submitted were authority for the contention that if the applicant did not experience, witness or confront an event which was a threat to the physical integrity of himself or others, then he would not satisfy the definition of a “traumatic event”. He submitted also the applicant at no time had such an experience.
Were The Experiences Claimed, Individually Or Collectively Sufficient To Be A “Severe Stressor”?
90. Based on the version of events submitted by the applicant, with corresponding medical assessments by psychiatric experts, and taking account of the changed psychological aspects of the applicant’s life since he has returned from service in South Vietnam, the Tribunal is satisfied that the hypothesis raised is a reasonable one.
Step 4 Of Deledio
91. The principal issue in Step 4 is whether the evidence admitted factually before the Tribunal discharges the legal standard of proof required by the Act. In answering that question, the Tribunal must decide whether in fact, the applicant experienced a severe stressor in terms of section 120. In terms of section 120(1), the Tribunal must be satisfied beyond reasonable doubt that the injury or disease was not war-caused. If it is not satisfied beyond reasonable doubt that it was not caused by operational service, then the claim must succeed. If that test is not satisfied then the applicant’s claim must fail.
92. In considering the evidence and whether it satisfies a standard of proof, the Tribunal has been mindful of the legal principles set out in Stoddart v Repatriation Commission [2003] FCA 334. Also, in considering the events submitted by the applicant, the Tribunal has considered the term “experiencing a severe stressor” as defined in the SoP in terms of the decision of Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 108 where it was said:
“The word ‘witnesses’ suggested that the person was present at the event involving real or present (i.e. 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 the event.”
93. Applying those definitions, the Tribunal has concluded, based on all of the evidence submitted, that the four stressors submitted by the applicant undoubtedly involved in his experiencing a degree of fear based on an objective assessment. Considering these facts from the subjective viewpoint of a soldier at 19 or 20 years of age who was not trained as an infantry soldier but was in situations where he could reasonably have felt under considerable stress, then the Tribunal accepts that he has been exposed to a severe stressor, particularly when the incidents claimed are viewed in a cumulative sense. The evidence presented by the applicant and his wife have been accepted as truthful. That evidence shows a significant change in the applicant’s personality from prior to his operational service to his life subsequent to his operational service.
94. As mentioned by the Tribunal at the hearing, it is noted also in the applicant’s Record of Service that whilst he served in the Army for nine years, he was charged with a number of relatively minor offences commencing approximately eight months before he was posted to Vietnam. During the course of his service in Vietnam, he was again charged with a number of relatively minor offences after having been in South Vietnam for three to four months. It was not evident that he was ever charged again with an offence either before that period or after it, notwithstanding that he served for another six years in the Regular Army after returning from Vietnam. This temporal history seems to indicate a changed pattern of behaviour in response to changed circumstances of his life at the time leading up to and during his service in Vietnam. Consequently, it is accepted that that is corroborative of the factual evidence and the psychiatric diagnosis proffered by Dr Cameron, whose opinion has been accepted by the Tribunal.
95. On that basis, the Tribunal accepts that the applicant has satisfied the legal standard of proof required by section 120(1).
Hypertension
96. Both parties have agreed that if PTSD were accepted as war-caused, then hypertension should also be accepted as war-caused. Consequently, the Tribunal determines that as a consequence of the applicant’s PTSD, he is also suffering hypertension as a consequence of the same events linked to his operational service in Vietnam.
Alcohol Abuse
97. In relation to the applicant’s claim for alcohol dependence or alcohol abuse, SoP Instrument No 76 of 1988 is relevant. The relevant provisions are contained in paragraphs 2(b), paragraph 5 (Factors that must exist as a minimum for a reasonable hypothesis to exist) and paragraph 8 (definition of “experiencing a severe stressor”).
98. In relation to this claim, the Tribunal accepts that Step 1 of Deledio is satisfied in that the alcohol abuse is a response to the events which underpin the applicant’s PTSD. In relation to Step 2 of Deledio, SoP Instrument No 76 of 1998 has been issued by the Repatriation Medical Authority. Consequently, Step 2 is satisfied also.
99. In considering Step 3 of Deledio, the Tribunal must be satisfied that the hypothesis raised is reasonable. Taking account of the incidents submitted and accepted by the Tribunal as causing PTSD, and also that the Tribunal’s finding is that the applicant has suffered from PTSD with co-morbid alcohol abuse, the Tribunal has adopted the approach in Repatriation Commission v Hill (2002) 69 ALD 581 to determine whether a reasonable hypothesis exists. That is, the Tribunal has determined whether the material raises or points to a connection between the stressors relied upon by Mr Ryan and the factors prescribed by the SoPs.
100. Based on the evaluation of the material considered in determining PTSD, there appears to be a reasonable hypothesis, which involves more than a mere possibility that links the applicant’s condition with his operational service.
101. In relation to Step 4 of Deledio, the question is whether the applicant satisfies the legal standard of proof required by the Act. In this regard, the Tribunal has considered whether the incidents described by the applicant satisfy the four legal principles set out in Stoddart v Repatriation Commission [2003] FCA 334. These are:
(a)Principle 1: What event has the applicant experienced or been confronted with that may amount to a threat of death or serious injury to his physical integrity?
(b)Principle 2: Whether the event or events actually involved the threat of death or serious injury leading to alcohol abuse or events which were reasonably “perceived” as involving the threat of death or serious injury leading to alcohol abuse?
(c)Whether the nature of the events experienced represents an objective and assessable state of affairs?
(d)Whether the events said to constitute the threat, judged objectively from the viewpoint of a reasonable person, are capable of conveying, that is, are subjectively experienced, the risk of death or serious injury or to physical integrity?
102. In evaluating the fourth step in Deledio, this involves consideration of the facts contained in the evidence to determine whether the reasonable hypothesis can be accepted under section 120(1) beyond a reasonable doubt in terms of Byrnes v Repatriation Commission. The Tribunal has also considered “experiencing a severe stressor” in accordance with Re Slattery and Repatriation Commission (supra) as it did for the claim of PTSD.
103. On the basis of all of the evidence submitted, the Tribunal concludes that the same evidence accepted as providing the link between PTSD and operational service, is also accepted as a severe stressor which led to alcohol abuse. The Tribunal considers that that condition meets the legal standard of proof required and is inextricably linked to the applicant’s condition of PTSD.
104. On the basis of all of the evidence submitted, the Tribunal finds –
(i)that the applicant suffers from PTSD and co-morbid hypertension and alcohol abuse;
(ii)that the applicant’s conditions were war-caused within the meaning of the Act;
(iii)based on concurrence of the parties, the matter is remitted to the respondent for assessment of pension.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 15 August 2005
Date of Decision 6 October 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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