Schwan and Repatriation Commission
[2005] AATA 802
•22 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 802
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2004/136
VETERANS' APPEALS DIVISION ) Re GARRY FRANCIS SCHWAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date22 August 2005
PlaceHobart
Decision The Tribunal sets aside the decision of the Veterans’ Review Board of 7 October 2004 and, in substitution therefor, decides that the applicant presently suffers from PTSD and that that condition is a war-caused disease within the meaning of s9 of the Act with effect from and including 27 May 2004.
..............................................
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) T2004/136
VETERANS’ APPEALS DIVISION )Re : GARRY FRANCIS SCHWAN
Applicant
And : REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2005] AATA 802
Tribunal : The Hon R J Groom (Deputy President)
Date : 6 September 2005
Place : Hobart
The Tribunal amends its decision and reasons for decision published on 22 August 2005 as follows:
The date 27 May 2004 appearing on the decision page and page 12, paragraph 35 should reach 27 May 2003.
………………………….
Deputy President
CATCHWORDS
Veterans’ Affairs – disability pension - applicant rendered operational service with the Australian Army in Vietnam – whether applicant suffering post-traumatic stress disorder (PTSD)– whether a reasonable hypothesis connecting condition to operational service – whether satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s condition is war caused – decision of VRB set aside.
Veterans’ Entitlements Act 1986 – ss9,20(1)(3), 177(2)
Statement of Principles – No 3 of 1999 as amended by No 54 of 1999
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Colin Mack Cooke (1998) 1717 FCA.
Repatriation Commission v Hill (2002) 64 ALD 582
Repatriation Commission v Bendy (1989) 18 ALD 144
Stoddard v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION
22 August 2005 The Hon R J Groom (Deputy President) 1. This is an application to review a decision of the Veterans’ Review Board (“The VRB”) dated 7 October 2004. That decision affirmed a decision of the Repatriation Commission of 12 March 2004 refusing the applicant’s claim that he is suffering a service-related condition of depressive disorder. It is now claimed by the applicant that he is suffering post traumatic stress disorder (PTSD).
2. The hearing of the application was held in Hobart on 21 July 2005. The applicant was represented by Mr C Webster and the respondent by Mr M Castle. Oral evidence was given by the applicant and a psychiatrist, Dr Ian Sale. Several documents were tendered in evidence including the “T” documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, a witness statement by the applicant dated 11 July 2005 and a medical report by Dr Sale dated 10 January 2005. The “T” documents included two medical reports by Dr I P Burges Watson, psychiatrist, dated 18 July 1994 and 1 October 2003, a report by Dr E V R Ratcliff, dated 6 July 2004 and a further report by Ms Maureen Eadie, psychologist dated 20 November 2003.
3. The applicant was called up for National Service and served in the Australian Army. His eligible war service, which was also operational service, was in Vietnam from 11 April 1966 until 25 June 1966. The applicant served with 32 Small Ship Squadron in Vietnam operating army landing craft in the Mekong River and associated waters. His claim is based on this period of operational service.
4. The applicant is not prevented from pursuing a claim for PTSD before this Tribunal even though the claim before the VRB was based on a diagnosis of “depressive disorder”. The issue to be considered by the Tribunal is whether the applicant suffers from any disease which was war-caused no matter how it may have been previously diagnosed or described. (See Benjamin v Repatriation Commission (2001) 70 ALD 622).
5. As the applicant’s relevant service was operational service, the standard of proof is governed by s120 of the Veterans’ Entitlements Act 1986 (“the Act”) applied in accordance with the four stages of analysis as prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at pages 96-97.
6. The first issue to be decided by the Tribunal is whether the applicant suffers the claimed condition. This condition is to be determined to the Tribunal’s “reasonable satisfaction” which is the ordinary civil standard of proof. (See Benjamin v Repatriation Commission (supra) and Repatriation Commission v Colin Mack Cooke (23 December 1998) 1717 FCA).
7. In the course of the hearing Mr Castle for the respondent conceded that the applicant does in fact suffer from the claimed condition of PTSD (see Transcript of evidence p2). On the basis of that concession and also the medical evidence before it, the Tribunal is satisfied to the required standard that the applicant does suffer from PTSD.
8. The next issue for the Tribunal to determine is whether there is a sufficient link connecting the condition suffered by the applicant to his operational service with the Australian Army.
9. In order to establish that link the Tribunal must first be satisfied on all of the material before it that an hypothesis has been raised connecting the applicant’s condition to the relevant circumstances of his operational service.
10. The applicant confirmed in evidence that he had made a written statement dated 11 July 2005 and verified the contents of that statement. The statement is as follows:
“I, Garry Francis Schwan, of 7 Scott Road, Bridgewater in Tasmania state as follows-
I am married and aged 60 years of age (DOB. 28/03/1945).
I joined the Army in the first intake of National Service on 30 June 1965 and served until June 1967.
I served in the Army as a Royal Australian Engineer Seaman.
Before I joined the Army I worked on a Pilot Boat and Tug at the Marine Board for two years.
I served in Vietnam from 11 April 1966 to 25 June 1966. During this period I operated on small ships, ie landing craft on Mekong River. This involved carting stores and equipment up and down the river.
While we were doing this we were fired upon once. We had to take evasive action. We had to duck down on the ship.
I could not see anything and we could not see what was happening other than that we were fired on.
We were nervous of mines in the river as other ships have hit mines. We sailed past one ship every day that had hit a mine and the bottom had been blown out.
Booby traps were also laid by cable across the river.
We were nervous about mines and booby traps and we were constantly shooting at floating objects on the river. There would not be half an hour when we were not shooting at something in the river.
We carried bodies or bits of bodies in trunks back down the river. One day an American Sergeant opened a trunk and showed us that there were bodies inside. We then knew what was in the trunks.
On one occasion we did a side trip up a tributary of the Mekong to evacuate some troops. We were heading for the landing (a small jetty). There was a sign on it in Vietnamese – An Australian read it and told us that it was booby trapped. We just managed to avoid landing on the jetty.
The people we were to pick up (Americans) were not there so we thought we were in a trap. We had to reverse out. It was very hairy. We had extra soldiers on the boat with sand bags and extra weapons as it was regarded as a dangerous trip. We were later told that the American soldiers had been killed.
I was uptight about the mines and being shot at.
We were allowed shore leave after about two weeks. We were at a bar in Saigon at night (The Blue Fox). This was the unofficial headquarters of the Australians. There was a loud explosion outside. A booby trapped truck had blown up outside a bar two doors from where I was drinking. I saw about three to four bodies lying on the ground inside the bar. I thought that it could have been us and that we were lucky that it wasn’t me.
After I finished service I went back to the Marine Board and then to EZ Co for 20 years (with two breaks).
I did not have any psychiatric problems.
I had nightmares which used to wake me up but when I woke up I felt terrible but all I could remember was that I had bad dreams.
I went to see Dr Burgess-Watson in the early 1980s. I told him I had forgotten the bad events of Vietnam. He told me If I could not remember what was waking me up and could not remember about Vietnam forget about it. I was better off leaving these things locked away.
One day I heard the news about the Bali bombing. What happened in Vietnam came back to me – I then remembered about the bar and the experiences on the river. Since then I can remember my dreams. I dream about my trips on the Mekong and wake with dreams of drowning and kicking my way out of my bed on my boat. I now often dream of the bomb at the bar.
Since the Bali bombing I have been depressed; anxious; muddle headed and have had dreams. I now don’t even go out in my boat as I keep thinking that something is likely to happen in the boat. I now no longer like going out and being surrounded by strangers – I won’t go to a supermarket or dance.
Garry Schwan
11 July 2005.”
11. The Tribunal is required to decide whether the material before it points to some hypothesis connecting the applicant’s condition to his operational service in Vietnam. This material includes not only relevant facts but also medical opinions. Proof of facts is not relevant at this point nor is it necessary to choose between competing expert medical opinions.
12. At the hearing Mr Castle did not challenge the applicant’s account of the various incidents, but rather concentrated his questions and submissions on the emotional affect on the applicant of the various incidents. Mr Castle said in his closing address:
“Basically, the sole issue before this Tribunal is whether the events that Mr Schwan witnessed during the period of his eligible service in Vietnam had the necessary effect to satisfy the requirements of the Statement of Principles of inducing feelings of intense fear, helplessness.” (See Transcript p20)
13. The Tribunal accepts Mr Schwan’s account of the various incidents as truthful and accurate.
14. Dr Ian Sale, a well qualified and experienced psychiatrist considers that the applicant is suffering from PTSD and that a cause was his service in Vietnam. In his written report Dr Sale detailed several of the service-related incidents which occurred during the applicant’s operational service in Vietnam. These included the bombing of a bar in Saigon (a bar which the applicant and other Australian personnel had previously frequented); the incident involving a booby trapped landing stage and also the incident when a trunk containing bodies or body parts was opened in the applicant’s presence. In Dr Sale’s view these incidents were a cause of the onset of the applicant’s PTSD. Dr Sale stated that for many years the applicant successfully suppressed the painful and distressing memories of the incidents in Vietnam, but that they were revived by the Bali bombing in 2002 which he said “…. would have been rather similar to the circumstances he experienced in Vietnam.” (Transcript p16). Dr Sale said following the Bali bombing in 2002 the applicant has suffered serious symptoms which were expressed by Dr Sale as follows:
“Over the past eighteen months to two years Mr Schwan has experienced sleep disturbance including sporadic nightmares and night sweating. He has also become anxious in certain situations, particularly those where there is crowding or he is enclosed (such as supermarkets).
A previously enthusiastic mariner, Mr Schwan has had difficulty going to sea, as he tends to become anxious and irritable. There had been periods when his mood had been depressed. He has been lethargic, lacked initiative, and has gained weight.”
At page 5 of his report, Dr Sale explained that the applicant’s condition satisfied several of the diagnostic criteria of PTSD in DSM IV TR (The Medical Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders.”)
15. Having regard to the whole of the material before it, including the applicant’s statement and the evidence of Dr Sale, the Tribunal is satisfied that the material points to an hypothesis connecting the applicant’s medical condition with the circumstances of his operational service in Vietnam. That hypothesis is that whilst in Vietnam the applicant experienced various stressful events as detailed in his statement of 11 July 2005. The hypothesis contends that those incidents caused him to experience intense fear and horror. As a result he suffered PTSD which remained suppressed until triggered by the Bali bombing in 2002. The hypothesis is that he has suffered PTSD since then and continues to suffer from the disorder.
16. It is not sufficient, however, to merely raise an hypothesis. The hypothesis advanced must also be “reasonable” within the meaning of s120(3) of the Act. For the hypothesis to be reasonable it must be consistent with the “template” found in any relevant Statement of Principles (“SoP”) as determined by the Repatriation Medical Authority (RMA) pursuant to s196B(2) of the Act. It is agreed by counsel for both parties that the relevant SoP in this application is No 3 of 1999 as amended by No 54 of 1999.
17. In this application the relevant factor which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the applicant’s service is:
“Experiencing a severe stressor prior to the clinical onset of Post Traumatic Stress Disorder …”. (see paragraph 5(a) of SoP No 3 of 1999).
18. Paragraph 8 of SoP No 3 of 1999 (as amened by SoP No 54 of 1999) relevantly provides as follows:
“For the purposes of the Statement of Principles:
`experiencing a sever stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
19. Mr Webster for the applicant submits that the applicant experienced several “severe stressors” within the definition in paragraph 8 of SoP No 3 of 1999 in that during operational service he “… was exposed to threat of serious injury or death, engagement with the enemy and witnessed casualties and participated and observed casualty clearance…”. (Transcript p4)
20. The applicant said in his witness statement of 11 July 2005 that when he was operating on landing craft on the Mekong River in Vietnam :
“…we were fired upon once. We had to take evasive action. We had to duck down on the ship.
I could not see anything and we could not see what was happening other than that we were fired on…”.
He also said:
“We carried bodies or bits of bodies in trunks back down the river. One day an American Sergeant opened a trunk and showed us that there were bodies inside. We then knew what was in the trunks.”
The applicant also said in his statement:
“On one occasion we did a side trip up a tributary of the Mekong to evacuate some troops. We were heading for the landing (a small jetty). There was a sign on it in Vietnamese – An Australian read it and told us that it was booby trapped. We just managed to avoid landing on the jetty.
The people we were to pick up (Americans) were not there so we thought we were in a trap. We had to reverse out. It was very hairy. We had extra soldiers on the boat with sand bags and extra weapons as it was regarded as a dangerous trip. We were later told that the American soldiers had been killed.”
He further said in his statement:
“We were allowed shore leave after about two weeks. We were at a bar in Saigon at night (The Blue Fox). This was the unofficial headquarters of the Australians. There was a loud explosion outside. A booby trapped truck had blown up outside a bar two doors from where I was drinking. I saw about three to four bodies lying on the ground inside the bar. I thought that it could have been us and that we were lucky that it wasn’t me.”
21. Mr Castle on behalf of the respondent conceded that those incidents had occurred. He said:
“There is no contest that the events took place, that Mr Schwan was there.” (Transcript p20)
22. There is some evidence of the feelings and emotions experienced by the applicant as a result of the various incidents. With respect to the incident in which the vessel that he was in received small-arms fire he said:
“I was uptight of course, but, you know, frightened all the time, always on edge …”.
(See Transcript p7)
Following the bombing of the bar in Saigon, he said he felt:
“… a fear, yes or what could happen, its always on the back of the mind, of course.”
(Transcript p9)
When the body trunk was opened the applicant said he saw “what was left of bodies”. He said:
“… he opened it and we just saw, you know, that could be us in there. Hope you don’t end up in one or something like that, you know.” (Transcript p12)
23. When it was put to Dr Sale that the emotional reaction the applicant had described was not a particularly strong one, he said:
“Well, that’s not an unusual thing in men, particularly middle-aged men that they tend to adopt a stoicism about things that happened in the past and perhaps to suppress and deny by that means.” (Transcript p16)
Dr Sale later said of the applicant’s reaction to the incident involving small-arms fire:
“”You would have imagined that there would be an emotional reaction, it would be appropriate to fear for your life, and so what he says now may not be an accurate reflection of what he felt then.” (Transcript p18)
24. The Tribunal is satisfied that a number of the minimum factors required by the relevant SOP do exist in this application. The applicant’s vessel received small arms fire from the enemy whilst he was onboard. There was clearly a threat of serious injury or death. There was engagement with the enemy. He witnessed casualties of war. Although he understated his reaction the Tribunal is satisfied he did experience intense fear and horror.
25. Mansfield J in Stoddard v Repatriation Commission [2003] FCA 334 at para 55 interpreted the phrase “experiencing a severe stressor” as follows:
“In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of 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 experienced) the risk of death of serious injury or to physical integrity”.
26. The Tribunal is satisfied that judged objectively from the point of view of a reasonable person in the position of the applicant, the incidents were capable of conveying feelings of “intense fear” and “horror” and did in fact cause the applicant to experience those feelings.
27. On the basis of all the material before it, the Tribunal is satisfied not only that there is an hypothesis connecting the applicant’s condition to his operational service in Vietnam, but also that the hypothesis is reasonable.
28. As the hypothesis is reasonable the Tribunal must consider, pursuant to s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the applicant’s conditions was not a “war-caused disease” within the meaning of s9 of the Act. The Tribunal is so satisfied, if it is satisfied beyond reasonable doubt either that one or more of the facts supporting that hypothesis does, or do, not exist or that a fact inconsistent with that hypothesis does exist. (See Deledio (supra) and Repatriation Commission v Hill (2002) 69 ALD 582 at 595).
29. Differing views were expressed in the medical reports and opinions before the Tribunal. Both Dr Sale and Dr Ratcliff are of the opinion that the applicant is suffering PTSD and that the incidents during his operational service in Vietnam were causative factors. On the other hand Dr Burges Watson in his first report of 18 July 1994 said:
“On the basis of this session with Mr Schwan and his wife I was unable to come to any firm diagnosis and in particular it was not possible to make a diagnosis of Post-Traumatic Stress Disorder. However, the apparent loss memory (psychogenic amnesia) for his period of service in South Vietnam may be significant.”
In his later report of 1 October 2003 Dr Burges Watson said:
“I have no doubt that Mr and Mrs Schwan are entirely genuine. I also believe that Mr Schwan was significantly affected by his experiences in Vietnam and there is no doubt that Mr Schwan has suppressed some of the details of these experiences. However, I do not think it is correct to say that he has “profound PTSD”. It is much more likely that he has had a depressive illness …”.
30. The respondent concedes that the applicant does suffer from PTSD even though that concession may be inconsistent with the opinion provided by Dr Burges Watson which is that he is not suffering “profound” PTSD, but some “depressive illness”. It could perhaps be inferred from the use of the adjective “profound” that Dr Burges Watson believed the applicant might be suffering a less serious form of the disorder. In so far as there is a conflict between the opinions of Dr Sale and Dr Ratcliff on the one hand and Dr Burges Watson on the other, the Tribunal prefers the opinions of Dr Sale and Dr Ratcliff. The Tribunal finds Dr Burges Watson’s opinions to be somewhat ambiguous whereas both Dr Sale and Dr Ratcliff hold firm and convincing views about the nature of the disorder and its cause.
31. Dr Sale stated in his written report of 10 January 2005 that:
“Service events have a causative role. Bali triggered appearance of difficulties. An underlying biological vulnerability to Bipolar Disorder may have played a part. There is probably a contribution from the suicide of a fellow soldier, but I would not see this as having a principal role.”
It is sufficient if an event was one of a number of causes of a disease, provided that it was a contributing cause, and not a contribution which is de minimus or so tenuous as to be immaterial. (See Repatriation Commission v Bendy (1989) 18 ALD 144). The Tribunal finds that the incidents in Vietnam were a contributing cause. That contribution was not tenuous but significant.
32. The Tribunal finds that the factors supporting the hypothesis do in fact exist and no factor exists which is inconsistent with that hypothesis.
Conclusion
33. It follows from the facts and opinions accepted by the Tribunal that the Tribunal is not satisfied beyond reasonable doubt that the applicant’s condition was not war-caused.
34. Accordingly, the Tribunal, in accordance with s120(1) of the Act determines that the applicant’s present condition of PTSD is a “war-caused disease” within the meaning of s9 of the Act.
35. The date of effect of that determination is 27 May 2004 (being 3 months prior to the lodgement of the applicant’s claim for disability) (see ss20(1) and s177(2) of the Act).
Decision
36. For the reasons stated above the Tribunal sets aside the decision of the Veterans’ Review Board of 7 October 2004 and, in substitution therefore, decides that the applicant presently suffers from PTSD and that that condition is a war-caused disease within the meaning of s9 of the Act with effect from and including 27 May 2004.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 21 July 2005
Date of Decision 22 August 2005
Counsel for the Applicant Mr C Webster
Solicitor for the Applicant Wallace Wilkinson and Webster
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans' Affairs
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