Saunders and Repatriation Commission
[2000] AATA 382
•18 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1213
VETERANS' APPEALS DIVISION )
Re EUAN CAMERON SAUNDERS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Dr J. D. Campbell, Member
Date18 May 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
(Sgd.) B.G. GIBBS
Senior Member
CATCHWORDS
VETERANS' APPEALS - Entitlement - disability pension claim - post traumatic stress disorder ("PTSD") - whether diagnostic criteria for PTSD derived from DSM-IV met
Veterans' Entitlements Act 1986, ss. 6, 9, 120, 120A, 126
Statement of Principles, Instrument No. 15 of 1994 (as amended by Instrument No. 225 of 1995)
Words and Phrases
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 149 ALR 721
Re Repatriation Commission v Cooke (1998) 160 ALR 17
REASONS FOR DECISION
18 May 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Dr J. D. Campbell, Member
Introduction
Mr Euan Cameron Saunders, the applicant in these proceedings, lodged a claim on 24 May 1996 for "hearing loss plus ringing in ears"; "L thumb" and "nervous problems".
On 20 February 1997 the respondent:
accepted a claim for bilateral sensorineural hearing loss with tinnitus and injury left thumb;
refused the claim for "nervous problems", the reason for refusal being that the diagnosis could not be confirmed.
Pension was assessed at 50 per cent of the General Rate with effect from 24 February 1996.
On 4 August 1998 the Veterans' Review Board ("VRB"):
affirmed the decision of the respondent in respect of "nervous problems";
set aside the decision of the respondent to grant pension at 50 per cent of the General Rate, and substituted that decision with the decision that pension be assessed at 50 per cent of the General Rate from and including 24 February 1996, and at 60 per cent of the General Rate, to operate from and including 12 December 1996.
On 31 August 1998 Mr Saunders applied to this Tribunal for review of the decision of the VRB made on 4 August 1998.
It is that application which is the subject of these proceedings.
IssuesThe issues before the Tribunal are as follows:
Whether Mr Saunders suffers from the psychiatric condition "post-traumatic stress disorder"("PTSD") as defined in the relevant Statement of Principles ("SoP"), being a definition derived from the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV");
If Mr Saunders does suffer from PTSD as defined, whether the condition is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act");
If PTSD is war-caused, what is the degree of incapacity suffered by Mr Saunders from his war-caused disabilities, for the purposes of payment of pension at the General Rate;
If the degree of incapacity thus suffered by Mr Saunders is determined to be at least 70 per cent pursuant to the Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition ("the Guide"), whether he is eligible for payment of pension at the Special Rate pursuant to section 24 of the Act.
If Mr Saunders does not suffer from PTSD as defined, what is his degree of incapacity pursuant to the Guide for the purposes of payment of pension at the General Rate.
Material
At the hearing the Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received by the Tribunal during the hearing.
RepresentationAt the hearing Mr Saunders was represented by Mr Vincent, of Counsel. Ms Henderson, of Counsel, appeared for the respondent.
WitnessesThe following people gave evidence at the hearing:
· The applicant Mr Saunders;
· Mrs C.A. Saunders, wife of the applicant;
· Dr M.G. Baz, an Occupational Physician;
· Dr A. Hordern, a Consultant Psychiatrist;
· Dr R.D. Lewin, a Consultant Psychiatrist
Facts Not In Dispute
Certain facts relevant to this matter are not in dispute. They are:
· That Mr Saunders was born on 12 May 1939; and
· That he rendered what is termed "operational service" pursuant to the Act, as follows:
·12.10.61 – 21.10.62 Far East Strategic Reserve
·25. 4.66 - 4. 9.66 Malaya
·12. 5.68 – 30. 5.69 South Vietnam
Standard of Proof – Entitlement
Because Mr Saunders rendered operational service, the standard of proof in respect of entitlement is that which is provided in subsection 120(1) and 120(3) of the Act. Those subsections state as follows:
"120. (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.
(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."
It should also be recorded that the standard of proof to be applied in determining whether the subject of Mr Saunder's claim, namely PTSD, exists, is on the balance of probabilities (Repatriation Commission v Cooke (1998) 160 ALR 17).
It should also be recorded that in determining issues relating to assessment of rate of pension, the standard of proof is that provided in subsection 120(4) of the Act. Thus the Tribunal must decide such matters to its reasonable satisfaction.
Application of Subsections 120(1) and 120(3) of the Act – MethodologyIn Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
"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 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."
In order for the material before the Tribunal to raise a reasonable hypothesis, that material must point to the hypothesis. It is not sufficient that the material raise a mere possibility. The Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in section 120(3) of the Act that "the material raise a reasonable hypothesis". The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Byrnes (supra) and said at p.730:
"This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."
Statement of Principles ("SoP")
Section 120A(1) of the Act, to which reference is made in the Note to section 120(1), provides that it applies to claims made on or after 1 June 1994. As Mr Saunder's relevant claim and the claim in respect of his death, were made after that date, section 120A is applicable. Subsection 120A(3) states as follows:
"(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."
Pursuant to subsection 196B(2) of the Act, where the Repatriation Medical Authority ("RMA") is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service, the RMA must determine a Statement of Principles ("SoP") in respect of that kind of injury, disease or death, setting out:
(a)The factors that must as a minimum exist; and
(b)Which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Subsection 196B(14) relevantly states as follows:
"(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)...
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)...
(f)in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(g)…"
Relevant SoP
The RMA has issued certain SoP's concerning PTSD, the first of which was No. 15 of 1994, dated 14 September 1994. That SoP was later amended by SoP No. 225 of 1995, dated 1 June 1995. SoP No. 3 of 1999, dated 14 January 1999 revoked the two earlier SoP's, and was itself amended by SoP No. 54 of 1999, dated 24 June 1999.
In Keeley v Repatriation Commission (2000) 56 ALD 455, Heerey J held that the SoP to be applied upon review was the SoP that was in force at the time the primary determination was made. That decision, however, has been appealed to the Full Federal Court, with the respondent in these proceedings holding to the view that the relevant SoP is that which is in force at the time the Tribunal conducts its review.
However, be that as it may, the respondent accepts that as far as these proceedings are concerned, it is of little practical significance as to which SoP is followed. Given the provisions of the various SoP's concerning PTSD, the Tribunal agrees this is so, and given the finding in Keeley it considers that, as the date of the primary determination was 20 February 1997, SoP No. 15 of 1994 as amended by SoP No. 225 of 1995, should be applied.
SoP – FactorsIn accordance with subsection 196B(2) of the Act, SoP's set out those factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised, connecting the claimed disabilities with the circumstances of a person's relevant service. In SoP No. 15 of 1994 the factors are as follows:
"1. (a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder."
The SoP further states:
"2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(c) must be related to any service rendered by a person.
3.The factors set out in paragraphs 1(b) and 1(c) apply only where:
(a)the person's post traumatic stress disorder was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the post traumatic stress disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act."
4.For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a stressor" means the following (derived from DSM-IV):(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(c)the person's response to that event involved intense fear, helplessness or horror;
"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."
War-Caused Disabilities
Mr Saunders has the following war-caused disabilities:
Bilateral Sensorineural hearing loss with tinnitus
Injury Left Thumb
Diabetes Mellitus
Evidence – Mr Saunders
Mr Saunders first joined the Australian Army in February 1961.
Following recruit and core training, which lasted for eight months, he was posted to 2 RAR as part of the Far East Strategic Reserve in Malaya, serving as an Infantryman.
The majority of his time in Malaya was spent preparing for later participation in Malaya-Thailand border patrols in respect of anti Communist operations. While he enjoyed his soldering in Malaya he did, however, come to appreciate the potential risks involved during the conduct of patrols.
As indicated earlier, Mr Saunders served in Malaya for twelve months from October 1961 to October 1962. He then returned to Australia and served with 1 RAR at Holsworthy and then later with 4 RAR at Woodside in South Australia.
In about October 1965 he was again posted to Malaya as an Infantryman, serving in that capacity until 1967. During 1966 he spent six months in Sarawak, being a period of confrontation between Malaysia and Indonesia.
Mr Saunders said that after a Company had conducted a successful patrol the clothing and webbing equipment of two dead Indonesian soldiers was laid out for all to see, including bullet holes and blood.
When asked how this experience affected him, Mr Saunders said;
"It's hard to explain except that if I said that prior to that we believed or we thought that any one of us was equal to ten of them and you know it was just a matter of if they turned up they were finished. But then after seeing that and seeing that what we already done to them and then the fact that it could be done to us because, as I said, bullets go both ways then you start to lose this feeling that you're so much better than other people."
It was at about this time that Mr Saunders began to question his suitability for service as an Infantryman, and upon his return to Australia in 1967 he successfully applied for transfer to the Catering Corps as a Cook.
In 1968 Mr Saunders was posted to South Vietnam ("SVN"), serving as a Cook with B Company at Nui Dat.
Although his primary duties were those of a Cook he did, however, perform night patrol duties which involved the setting up of listening posts in certain local areas of responsibility.
Mr Saunders described three events which occurred during his service in SVN and which stand out in his memory.
The first event occurred while he was at Long Binh, which was essentially a service base.
One night he was told that a large number of Viet Cong were massing and that they were going to attempt to break through his camp area. In the event it turned out to be a false alarm. However, some soldiers were injured when a machine gun post collapsed and helicopter gunships fired what he described as "harassment fire" outside the camp perimeter.
When asked what effect the incident had on him, Mr Saunders stated:
"Well first off there was the relief that it was all over and then when we sat down and thought what could have happened, what might have happened. Then you get a bit, I got a bit shaky, well I guess. I am not saying that I'm chicken but by the same token if you know that the possibility is there and you have just, for whatever reason, got out of it, you know, you think to yourself after, well yes I was lucky, real lucky. Actually you think I was lucky. The other blokes didn't think we were lucky."
The second event occurred when two soldiers in B Company were killed by land mines with several others being wounded. The two soldiers who were killed were quite well known to Mr Saunders. He assisted in "sanitising" their personal property. He found the experience very sad, particularly because the soldiers concerned had only another four to six weeks to serve in country.
The third event is best described in a written statement made by Mr Saunders:
"Third was the night there was a party and they were taking the mickey out of one bloke and he was pissed and ran out of his tent with his rifle and fired a couple of shots.
I circled round him (no hero me) and told the CSM & OC what was going on. So the CSM (Hero) walks up to him and Davo put a round close to him. As I was going back I found a bloke leaning up against a rubber tree with his rifle aimed at Davo and when I said what's doing he just told me if Davo fired another shot he was gone. It was all to much for me."When asked how the event affected him, Mr Saunders said:
"Well, I got a bit, I don't know, a bit sort of worried about this because I knew – you only have to have a bloke, when they were getting like that, living on their nerves, full of booze and imagining all these things going on, and it doesn't take much to sort of find some reason why they don't like your fried eggs or whatever, I mean little things, it didn't matter what it was, but apart from all that you know it was just the fact that people getting like that and all that live ammunition, I was glad to get out of it. I finished, I got, I went over to the – went away from there after a while. I think I had had enough Vietnam."
Mr Saunders said that when he returned to Australia from SVN in May 1969 he was unable to settle down:
"When we got back to Aust. I couldn't seem to settle down for a long time and it was only after awhile that I noticed that I couldn't seem to handle a lot of things all that well. I was drinking a bit – smoking a lot until by 1976 I was finding the Army quite a handful and I took my discharge. Since then and until '90 I had a series of jobs until I started my own business. By this time I would average 6-8 stubbies of beer a night and Friday nights I might go to the pub for awhile. I found I couldn't handle crowds, lost interest in most things, tried going to bowls but had a few problems. After being in harness for awhile I found that I couldn't make decisions (would I/could I/what if) and found that I would go home to empty house and I would be sitting on the bed crying and wandering was this all I had. I have now got out of the business but still spend a lot of time by myself and have nobody outside my family that I could call a friend."
As indicated, Mr Saunders left the Army in 1976. He then took up dairy farming with his father-in-law on a share basis, for a period of three years. He then worked as a cook on offshore construction barges and production platforms for some ten years.
He then worked in a fish and chip shop which he owned. He disliked the work which he found hard.
After about twelve months he sold the fish and chip shop and built a bakery in Stratford, Victoria. He owned the business and personally did the pastry cooking.
After about eighteen months to two years he ceased operating the business and stopped working.
Mr Saunders explained that one of the reasons he had taken up share farming was to help his father-in-law financially. He quite liked the work. Coincidentally the contract under which the farm was operated expired after three years, at which time he was offered employment on a construction platform.
Mr Saunders further explained that his employment on the construction platform came to an end because of the situation in Bass Strait concerning drill ships and the reduced requirement for construction platforms.
After finishing up with the bakery Mr Saunders sold the business and purchased a caravan. He later also sold his house. He "just wanted to travel" and did not want to settle in one town. He has now owned three caravans and intends to continue owning one until such time as he can no longer drive. He and his wife presently live in their caravan in a caravan park.
When asked why he ceased operating his bakery Mr Saunders said:
"I was working long hours from start off and I found that I was getting a bit down, a bit depressed. I was starting to have blues, barneys, fights whatever with my son, who was an apprentice there and a nephew. The life with the wife was just sort of hanging together and I would wake up sometimes and would be sitting on the edge of the bed crying. I went to the doctor and he said he thought that I should stop work. I thought how can I, what with? Then this bloke wanted to have a go at running his own business and could not afford to buy one and he said well, how about if I just lease it off you. So I worked out what I needed and what he was willing to pay and I got out of it. Then after two years he said he did not want to do it anymore and I would have to come back so I went straight into the estate agency and put it on the market. I was not going back to work, I would rather have closed it down."
He added that he still owns the premises and receives rent which forms part of the money he has to live on.
Mr Saunders said that he prefers to be alone and that he is critical of other people. He is extremely dependent upon his wife. He has two daughters and two sons. One daughter lives in Gladstone and the other in Cairns. One son lives on Thursday Island, and the other at Mount Beauty in Victoria. He maintained that when the children visit it is because they wish to see their mother and not him. He can handle their visits for a limited time but then prefers to be by himself.
Mr Saunders occasionally attends Commemoration Days for Vietnam veterans, but finds that they make him feel sad.
Although he consumed alcohol while on service in SVN and continued doing so after his return to Australia, he ceased drinking in 1992 when he was diagnosed with diabetes. Prior to that he found that drinking helped him sleep.
He said that he has not slept well for years. He has what he described as "stupid dreams", which for some reason cause him to wake up.
Mr Saunders is still able to drive his car but finds that he needs rest breaks to ensure he is able to maintain concentration.
Since selling the Bakery he and his wife have travelled quite extensively with their caravan, including the Northern Territory. The longest they have remained in the one place is about six months, at Moonee Beach near Coffs Harbour. He explained that his mother-in-law lived at Moonee Beach and that during their stay he did a few little maintenance jobs for his mother-in-law. Otherwise he did nothing much except sleeping for short periods and some reading.
Since commencing their travels by caravan Mr and Mrs Saunders have spent time visiting their children, for example in Darwin and Cairns.
Mr Saunders formerly played bowls but appears to have ceased playing some time prior to commencing his bakery business. He also played cricket but ceased doing so four years ago.
As indicated, when he joined the Army Mr Saunders served first as an infantryman and then as a cook following his return from Malaya in 1967. He agreed that part of the reason for seeking transfer as a cook was that it would enhance his career prospects when he eventually left the Army. He added, however, that he sought transfer because "I was a chicken".
Mr Saunders explained that towards the end of his Army service he wanted to get away from the Armoured Regiment at Puckapunyal, to which he had earlier been posted. For various reasons he was unhappy serving with the Regiment and endeavoured to obtain a posting back to the Infantry in Townsville. At this point in time he only needed to serve for a further five years to become eligible for a pension. His attempts for a transfer, however, proved to be unsuccessful. He stated that had he been successful in obtaining a transfer he may have remained serving for the additional five years.
Mrs Saunders said that when she married Mr Saunders in 1961 he was a very happy man. However, he is now a different man. He "hates people" and "locks himself away". He spends most of his time in bed sleeping or reading.
Mrs Saunders found it difficult to recall when her husband's personality changed. It was gradual. Certainly by the time he was posted to Malaya for the second time he was not as happy as usual and had started drinking "quite a lot".
On return to Australia he was always bad tempered both with her and the children. She found that he disregarded her and the children, all of which came as rather a shock to her.
Upon return from Malaya she and her husband purchased a house in Trafalgar, Victoria. Their third child was born, seven months prior to Mr Saunders being posted to SVN. With the birth of the child her husband promised her that when he returned from SVN he would leave the Army.
Mrs Saunders said that after her husband returned from SVN he would not talk about the war. He did, however, begin to have nightmares. When she questioned him about his nightmares he would say that he dreamt he was being chased, that he could not get away and that the room was "all closed in". He has experienced the nightmares for more than five years.
Mrs Saunders said that her husband has become increasingly less sociable. For example although they recently joined a bowling club he has not bothered to play. He has also given up playing golf.
Mrs Saunders said that when her husband returned from SVN on R & R he "did a lot of drinking", especially in the company of her brother.
Mrs Saunders also stated that when her husband returned finally from SVN he at first promised her he would leave the Army, but later he became "shaky and stroppy" and told her that he was going to do "what he wanted to do", and stay in the Army and that it did not matter what she wanted.
As indicated earlier, Dr Hordern is a Consultant Psychiatrist. Dr Hordern saw Mr and Mrs Saunders on 20 February 1998 and later provided a report dated 2 March 1998, for the purposes of these proceedings.
During oral evidence Dr Hordern confirmed that he had read a report rendered by Dr L.M. Marinovich, a Consultant Psychiatrist who saw Mr Saunders on 3 September 1997. He said that he agreed with the opinion expressed by Dr Marinovich. He further confirmed that he agreed with Dr Marinovich's response to a series of questions posed in a Medical Impairment Assessment dated 2 February 1999, "Emotional and Behavioural Condition".
Because of its comprehensive nature, it is convenient to here set out Dr Marinovich's report in full:
"OPINION
I consider that this man does suffer with Post-Traumatic Stress Disorder, as identified in DSMIV, 309.81. This opinion is offered on the basis that:1.He has been exposed to traumatic events in which both of the following were present:
(a)He was confronted with events which involved actual death. Two of his friends, fellow soldiers, were blown up by mines and he had the unpleasant task of sorting out their equipment to be sent back to Australia. He was, equally, confronted with other items of dress and attire that were damaged and blood stained from the death of the people who had been wearing them.
(ii) His response was one of horror, especially for the two soldiers who were due to be posted home and were killed shortly prior to that. Moreover, this highlighted for him how he could be next at any time.
(b)The traumatic event is persistently re-experienced in the following ways:
(i) He has recurrent and intrusive, distressing recollection of that clothing with bullet holes in it and soaked in blood.
(iv) Intense psychological distress on exposure to external cues that symbolise or resemble an aspect of the traumatic event. Contact with other servicemen upsets him and so he tries to avoid it.
(c)There is persistent avoidance of stimuli associated with the trauma related to the facts that:
(i) He makes effort to avoid thoughts, feelings and conversations associated with the trauma. He will not discuss it. He gave it out at psychiatric interview, though felt embarrassed at doing so.
(ii) He avoids activities, places or people that arouse recollections of the trauma, especially any military activity.
(iv) There is markedly diminished interest in participation in significant activities. He has given up all social activities, especially bowls and gold.
(v) There is a feeling of detachment or estrangement from others. He described how he cannot mix with people, cannot be bothered with them, does not want to see them and avoids them if he can.
(vi) There is a restricted range of affect. Much of the time he is irritable and short-tempered. His wife is having difficulty coping with it.
(vii) There is a sense of a foreshortened future in that he feels there is nothing to look forward to, that life is not worth living and that there is no point to anything.
(d)There are persistent symptoms of increased arousal as evidenced by the following:
(i) Sleep is disturbed by dreaming, even though he does not recollect what he dreams about.
(ii) Irritability and outburst of anger are a sizeable problem in this man's case history. He is irritable and cranky with everybody, be it his wife, people at the bowling club, the golf club, his place of work or his grandchildren.
(iii) There is difficulty in concentration. He forgets what he has read and has to re-read the page to try to retain it.
(v) There is an exaggerated startle response in that he is quick to jump at the slightest noise.
(e)The duration of this disturbance is now some 30 years.
(f)The disturbance causes clinically significant distress, with impairment in social and other important areas of living. It has caused problems in the workplace to the point where he retired as soon as he was able to in order to minimise that irritability.
2.This disorder has led to increased alcohol and nicotine intake. At one time, he was smoking up to 60 cigarettes a day. It is, therefore, likely that his current, chronic obstructive airways' disease is the result of that heavy smoking, even though the smoking has been discontinued for some time. Thus, in my opinion, his chronic airways' disease has to be accepted as a consequence of his post-traumatic stress disorder and the smoking that the disorder occasioned.
3.It is likely that his diabetes is also a consequence of this disorder in a similar way. People with this type of anxiety disorder often resort to eating as a source of comfort and relief. Eating leads to increased weight which, in turn, leads to diabetes. Alcohol is also a significant factor as there are many calories in alcohol contributing to weight gain and it is his obesity which is likely to be the cause of his diabetes. Thus, I contend the diabetes is also a consequence of his post-traumatic stress disorder.
4.This disorder arises directly out of his war service.
5.He is in need of psychiatric treatment. Once his disorder has been treated, I would hope to see reduction in his body weight, with improvement in his diabetes and his cholesterol level which, I am told, is also elevated."
It was Dr Hordern's opinion that while each of the events which Mr Saunders stated he experienced while serving in SVN would have been significant stressors for him, the last event, involving a threat to the physical integrity of the CSM, would have been the most significant. It was his further view that the onset of PTSD commenced fairly insidiously after the last event.
It is noted that the military and post-military history of Mr Saunders has been comprehensively recorded by Dr Hordern in his report, and that indeed the history thus recorded is essentially consistent with the evidence given by Mr Saunders and Mrs Saunders.
In his report, Dr Hordern sets out his diagnosis, as follows:
"Severe chronic Post Traumatic Stress Disorder (PTSD) resulting from a series of traumatic experiences sustained whilst on active service in Vietnam between 21.5.68 and 30.5.69 by a regular soldier in the Australian Army who was then serving in the catering corps. Coded according to the American Psychiatric Association's Diagnostic and Statistical Manual, IV Edition, this diagnosis is 309.81."
As indicated earlier, Dr Lewin is a Consultant Psychiatrist. He saw Mr Saunders on 9 June 1999 and subsequently provided two reports, one dated 10 June 1999, the other 17 February 2000.
It was Dr Lewin's evidence that in describing the incident involving an armed soldier ("Davo") threatening the safety of the CSM, Mr Saunders gave him the impression that although he may have been frightened by what he had witnessed, he did not, however, describe any recollection of being terrified or overwhelmed by the experience.
Dr Lewin stated that Mr Saunders did not give him a history of experiencing a sense of horror when confronted with the damaged and blood-stained clothing of Indonesian soldiers who had been killed while he was serving in Malaya (paragraph 30 above). Mr Saunders did, however, tell him that he had been distressed as a result of the experience.
Unlike Dr Hordern, Dr Lewin did not see Mrs Saunders. Although he saw a report by Dr Marinovich dated 17 September 1997, he did not, however, see the latter's report dated 1 March 1999.
In his report dated 10 June 1999, Dr Lewin provided his views on Mr Saunder's mental state, together with a summary diagnosis and opinion:
"MENTAL STATE EXAMINATION
Mr Euan Saunders told me that he was "pissed off" about the requirement to attend. He made several similar remarks about the Department of Veterans Affairs. He indicated that he had very little patience for the needs of his children suggesting that they only called when they wanted something. He spoke without evident distress about periods of his Military Service. Mr Saunders agreed that he was not rushed and told me that he felt quite comfortable talking about these things.
His mood state was one of irritability and disgruntlement. He did not appear depressed. He moved briskly and I observed that he was intellectually alert and keen. He did not complain of current anxiety symptoms such as panic symptoms or phobic symptoms. Morbid depressive features such as vegetative melancholic and anhedonic symptoms and suicidal preoccupation, were all absent.
SUMMARY DIAGNOSIS AND OPINION
Mr Euan Saunders is a 60 year old gentleman who lives with his wife and who is currently travelling in the warmer parts of Northern Australia. Mr Saunders served in the Australian Army for 15 years. During the last ten years approximately he worked as a Cook. During his period of active Military Service overseas, he was never involved in combat, he was never under fire, nor was he injured. He does not report any specific incident where he was terrified or where he was confronted with a critical event.
He reports the onset about ten years ago of low grade symptoms which are rather general symptoms. He did not report specific Post Traumatic Symptoms of Anxiety such as dissociative symptoms, hypervigilance or intrusive recollections. I did not diagnose Post Traumatic Stress Disorder in Mr Saunders' case because he does not meet criteria for that condition either in terms of the stressors described or in terms of his current symptoms. It is noteworthy that the first Psychiatrist who examined him, Dr Holmes, looked specifically for Post Traumatic Anxiety symptoms and they were absent. He may have a low grade depressive condition but this is of fairly recent onset. I did not diagnose any psychiatric illness which could be reasonably related to his Military Service. When I considered the statement of principles regarding Post Traumatic Stress Disorder, I concluded that Mr Saunders does not satisfy the statement of principles."
During his oral evidence Dr Lewin discussed the incident in which a soldier ("Davo") fired a shot close to the CSM. In doing so the doctor stated:
"But let's go back a bit, I harped on about meaning before, this man's a soldier, he's had basic training. Basic training involves just this sort of experience where shots are fired over people's head for instance. It's important to consider that, a child would react in a different way to that experience to this man in this situation. It's much more likely that a child would develop significant symptoms than a soldier in uniform in a particular situation like the one that we've heard about. And we've got to go to this man's actual response to those events to get some understanding here as well. Because what he did was, he thought this is a relatively dangerous situation, some other person has been foolhardy enough to tackle it directly, I'm going to clear out and go to my quarters and do the sensible thing, just get out of the way. I'm not the man for this job. And he acted in a way that appears to me on the – to be a rational response, sensible response. Yes, potentially that situation could be life-threatening but it wasn't so life-threatening and he had acted appropriately. He describes being distressed and upset but I would not consider this as a sort of stressor that would give rise to serious mental illness."
Dr Lewin also discussed the question of the extent to which Mr Saunders has become withdrawn from other people. He said that on the one hand Mr Saunders had told him about being generally quite socially withdrawn, but on the other hand Mr Saunders described to him the sort of life he had in the various caravan parks where he had stayed with his wife. Dr Lewin said that although the people whom Mr Saunders met in the caravan parks were perfect strangers, nevertheless he gained the impression from Mr Saunders that he was quite comfortable meeting these people and felt at ease.
It should be recorded that included amongst the material before the Tribunal is a report provided by a Psychiatrist, Dr J. Holmes. The report is dated 25 June 1996. Dr Holmes saw Mr Saunders on 20 June 1996 and the report was requested by the respondent in these proceedings.
In his report Dr Holmes records the history as given to him by Mr Saunders. Insofar as the history of Mr Saunder's Army service is concerned, the report states as follows:
"He was in the Army from 1961-1976, mostly as a cook. He served in Malaya in 1962 and in Borneo in 1966 for six months. In neither place did he have any major problems. He later served in Vietnam for twelve months from 1968-69. He was cooking for an infantry battalion, and also did patrol duty. He said he never had any traumatic experience, was never shot at and did not see any one killed. He did however lose some friends in Vietnam which was therefore more disturbing than his previous active service. He thought he was all right after his return from Vietnam, but his wife said he was more moody and irritable since then. Following his return he worked in Puckapunyal for twelve months and then in Queensland for three years. He said he still felt all right but drank too much, six or more beers per day. After Queensland he worked in Canberra for twelve months and then returned to Puckapunyal. He said he was not aware of any problems but was irritable and hard to please compared to before his service. He said he became less sociable and "couldn't be bothered". In later years he was dissatisfied with his Army life. He was catering for an armoured corps and regarded them as arrogant. He finally resigned from the Army because his request for transfer was refused."
It is noted that the history thus recorded makes no mention of the three specific incidents referred to by Mr Saunders in his evidence. Indeed, the report records that Mr Saunders stated that he had never had any traumatic experience, was never shot at and did not see anyone killed. Dr Lewin regarded this as being very important clinical information. It was Dr Holmes' opinion that although Mr Saunders appeared to have become dissatisfied and intolerant during his active (Army) service, there was, however, insufficient evidence to diagnose a psychiatric disorder, apart from maybe alcohol dependence.
Whether PTSD Exists
As indicated, the first issue to be determined is whether Mr Saunders suffers from the psychiatric condition PTSD. As has been further indicated, the determination is to be made having regard for the definition of PTSD derived from DSM-IV, with the standard of proof being on the balance of probabilities.
We find that, on the balance of probabilities, Mr Saunders does not meet the diagnostic criteria for PTSD derived from DSM-IV and set out in SoP No. 225/95. We should record that in making this finding we have preferred the opinions of Dr Lewin to those of Dr Hordern and Dr Marinovich.
Dealing first with the evidence of Mr Saunders concerning his exposure to the bloodied and bullet-holed clothing of recently killed Indonesian soldiers, and his later involvement in what he described as "sanitizing" the personal property of two Australian soldiers killed by mines in SVN, we are of the view that while understandably these experiences may have been upsetting for him, they could not, however, be described as giving rise to intense fear, helplessness, or horror. Nor, of course, were they events that involved actual or threatened death or serious injury, or a threat to the physical integrity of Mr Saunders or others.
The next event referred to by Mr Saunders occurred at Long Binh in SVN, his evidence being that a large force of Viet Cong were expected to try and break through that part of the camp to which he was stationed.
As we have noted, the attempt to break through did not eventuate.
As we have recorded at paragraph 35 above, Mr Saunders spoke of his feeling of relief once the threat was over. While it may be argued that Mr Saunders tends to play down his reactions to stressful circumstances, it is our view that again it cannot be said that the event was a traumatic one which produced a response of intense fear, helplessness, or horror.
Finally, turning to the incident in which a soldier threatened his CSM by firing a shot close to the latter, it is clear that this was the most significant of the events referred to by Mr Saunders.
However, while he was exposed to what may properly be described as a traumatic event in which the physical integrity of another person was threatened, the evidence of Mr Saunders demonstrates that, rather than his response being one involving intense fear, helplessness or horror, he reacted in a careful, calm and deliberate manner.
It is our view that, even were we to find that the events to which Mr Saunders refers were traumatic events that involved the factors set out in paragraph (a) of the definition of PTSD, it could not, however, be said that the remainder of the criteria set out in paragraphs (b), (c), (d), (e) and (f) of the definition has been met to the extent required.
AssessmentAs we have said earlier, the issues before the Tribunal include assessment of rate of pension. However, because of our findings in respect of Mr Saunders' claim for PTSD, the issue of assessment becomes limited to an assessment of his degree of incapacity pursuant to the Guide for the purposes of payment of pension at the General Rate.
In addressing this issue the Tribunal received into evidence a report dated 19 July 1999, by Dr M. Burns, an Occupational Physician. Dr Burns examined Mr Saunders on 9 June 1999.
In his report Dr Burns rates Mr Saunders' war-caused disabilities as follows:
Bilateral sensorineural hearing loss : 10 points
Tinnitus : 2 points
Injury Left Thumb : 20 points
Diabetes : 5 points
This gives a total of 33 points under the Guide. Dr Burns assessed Mr Saunders' lifestyle rating at 3, thus giving a degree of incapacity of 60 per cent for purposes of payment of pension at the General Rate.
In a written submission lodged with the Tribunal Mr Vincent submitted on behalf of Mr Saunders that the ratings set out above are appropriate. The Tribunal accepts this to be so and finds accordingly. Mr Saunders' rate of pension therefore remains at 60 per cent of the General Rate.
DecisionThe decision of the Tribunal will be that the decision under review is affirmed.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Dr J. Campbell, MemberSigned:..............(C. HINRICHS)...............................................
Personal AssistantDate/s of Hearing 3/11/1999 & 10/3/2000
Date of Decision 18/5/2000
Counsel for the Applicant Mr Vincent
Solicitor for the Applicant Rockliffs
Counsel for the Respondent Ms Henderson
Solicitor for the Respondent Department of Veterans' Affairs
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