Stephen McLeod and Repatriation Commission
[2013] AATA 606
[2013] AATA 606
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1264
Re
Stephen McLeod
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 28 August 2013 Place Sydney The Tribunal sets aside the decision under review and remits the matter to the Repatriation Commission for reconsideration with a direction that Mr McLeod’s Posttraumatic Stress Disorder is war-caused.
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Deputy President RP Handley
CATCHWORDS
VETERANS' AFFAIRS - disability pension – applicant saw operational service in Vietnam - whether applicant suffers from posttraumatic stress disorder - whether posttraumatic stress disorder is war-caused – Deledio test - whether applicant experienced a category 1(A) or 1(B) stressor - Tribunal not satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease - decision set aside and remitted
LEGISLATION
Veteran’s Entitlements Act 1986 ss 13, 120, 120A, 196B
CASES
Constable v Repatriation Commission [2005] FCA 928
Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight [2012] FCAFC 83White v Repatriation Commission [2004] FCA 633
SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008
Statement of Principles concerning Depressive Disorder, No. 27 of 2008 as amended by Statement of Principles concerning Depressive Disorder No 40 of 2010 SOP
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse, No 1 of 2009
REASONS FOR DECISION
Deputy President RP Handley
Date: 28 August 2013
Mr McLeod (the Applicant) has applied for review of a decision made by the Veterans’ Review Board (the VRB) affirming a decision of a delegate of the Repatriation Commission (the Respondent) to reject his claim for a disability pension in respect of Posttraumatic Stress Disorder (PTSD) with Major Depression and Alcohol Dependence on the ground that those conditions were not war-caused.
BACKGROUND
Mr McLeod was born in 1950 and is aged 62 years. He enlisted in the Royal Australian Navy at the age of 16, serving from 8 October 1966 until 16 April 1980 and working as a chef. He saw four periods of operational service in Vietnam from 20 December 1967 to 3 January 1968, 17 January 1968 to 16 February 1968, and 21 March 1968 to 26 April 1968 on HMAS Sydney, and from 14 September 1970 to 8 April 1971 on HMAS Perth. Mr McLeod also has eligible defence service from 7 December 1972 to 16 April 1980. Following his discharge from the Navy in 1980, Mr McLeod worked as an employment consultant. He ceased this work in 2005.
Mr McLeod has the following accepted injuries or diseases: chronic bronchitis (2002), bilateral sensorineural hearing loss (2002), and peptic ulcer disease (2002). On 21 October 2002, a delegate of the Repatriation Commission accepted that these three conditions were service-related and granted Mr McLeod a disability pension at 70% of the General Rate. The delegate rejected the further claimed conditions of PTSD and alcohol dependence on the ground that they were not related to service.
On 15 February 2010, Mr McLeod lodged a new claim for a disability pension in respect of ‘PTSD with Major Depression and Alcohol Dependence’. On 12 April 2010, a delegate of the Repatriation Commission rejected his claim, which was affirmed by the VRB on 14 February 2012. On 30 March 2012, the Applicant applied to the Administrative Appeals Tribunal for a review of the VRB decision.
THE RELEVANT LAW AND ISSUES
Under s 13 of the Veteran’s Entitlements Act 1986 (the Act), a veteran will be eligible for a pension where the veteran is incapacitated from a war-caused injury or disease. An injury or disease will be war-caused if the injury occurred or the disease was contracted while the veteran was rendering operational service. Mr McLeod’s service in Vietnam is operational service as defined in the Act.
Pursuant to s 120(1), where a claim for a pension in respect of incapacity relates to operational service, the Commission shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Commission shall be so satisfied if, after consideration of the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person (s 120(3)). Section 120A requires the reasonableness of the hypothesis to be assessed by reference to applicable Statements of Principle (SoP). In this matter, the applicable SoPs are the SoP concerning Posttraumatic Stress Disorder, No. 5 of 2008 (SoP No 5 PTSD), the SoP concerning Depressive Disorder, No. 27 of 2008 as amended by SoP No 40 of 2010 (SoP No 27 Depressive Disorder), and the SoP concerning Alcohol Dependence and Alcohol Abuse, No 1 of 2009 (SoP No 1 Alcohol).
Three psychiatrists have provided reports for these proceedings:
·Dr G Altman, Mr McLeod’s treating psychiatrist, who has diagnosed “severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence” as a result of Mr McLeod’s Vietnam war experience (report dated 5 February 2010);
·Dr A Dinnen, who assessed Mr McLeod for the Applicant’s solicitors, and who diagnosed “Chronic post traumatic stress disorder with associated depressive disorder and excessive alcohol use” and agreed that this was as a result of his Vietnam war experience (report dated 18 October 2012); and
·Dr S Smith, who assessed Mr McLeod for the Respondent and who diagnosed “a Major Depressive Disorder and chronic Alcohol Dependence”, but said, “It is highly doubtful that Mr McLeod suffers from Post-traumatic Stress Disorder related to his naval experience” (report dated 24 January 2013). Dr Smith said he is not convinced that Mr McLeod’s behaviour is as a result of his exposure to the events he states he has experienced.
At the hearing, Dr Dinnen gave evidence by conference telephone and Dr Smith gave evidence in person.
The first issue for the Tribunal to determine is the disease(s) from which Mr McLeod suffers, whether PTSD, or Major Depressive Disorder and Alcohol Dependence. The Tribunal must “identify the collection of relevant symptoms” and decide whether it is satisfied that Mr Prior suffered from the claimed diseases or some other injury or disease: Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]. These are questions of fact to be determined according to the Tribunal’s reasonable satisfaction (s 120(4)).
The second issue for the Tribunal is whether the conditions suffered by Mr McLeod are war-caused. Because the Applicant contends that the claimed conditions relate to operational service, s 120(1) and s 120(3) of the Act apply subject to s 120A which requires that the reasonableness of the hypothesis be assessed by reference to applicable SoPs. The questions that the Tribunal must address in its decision are those set out by the Full Federal Court in Kaluza v Repatriation Commission [2010] FCA 1244 (Kaluza), which follows the Full Federal Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio). Four steps have been identified by the Court:
(1)The Tribunal must consider all the material before it and determine:
(a) whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and
(b) whether that hypothesis can be regarded as reasonable if the raised facts are true.
(2)If the raised facts point to a hypothesis of a connection, is there a Statement of Principles (SoP) in force in respect of the kind of disease from which the veteran suffers?
(3)As there is SoPs in force (see above), the Tribunal must determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the “template” found in the SoP? In particular, does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service?
In Repatriation Commission v Knight [2012] FCAFC 83, the Full Federal Court said there are two discrete issues at play in considering whether there is a reasonable hypothesis:
(i)does the material before the Tribunal point to the factor relied upon; and
(ii)does the material also point to that factor being related to the veteran’s operational service (s 196B(14))?
Section 196B(14) sets out the circumstances in which a “factor causing, or contributing to, an injury, disease or death is related to service rendered by a person” which relevantly include (b) where “it [the injury, disease or death] arose out of, or was attributable to, that service”, and (d) where “it was contributed to in a material degree by, or was aggravated by, that service”.
(4)If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. (Any fact finding must only be made at this final stage in the process.)
MR MCLEOD’S EVIDENCE
Mr McLeod provided a statement dated 10 August 2012 and gave evidence at the hearing. He also gave evidence at the VRB hearing on 11 November 2010 and 14 February 2012. He said he does not recall any particular incidents on his first trip to Vietnam (from 20 December 1967 to 3 January 1968). However, on his second trip he recalls there being more activity in the air and surrounding area and also that scare charges were used. He was aged 17 at the time and his experience comprised his training at HMAS Leeuwin, having joined the Navy at the age of 16 for 12 years, and his posting to HMAS Sydney including his first trip to Vietnam. (Commodore PM Mulcare RAN Rtd, who prepared a report dated 15 July 2011 for Writeway Research Services Pty Ltd at the request of the Respondent, said that Mr McLeod was posted to Sydney on 26 October 1967 as Ordinary Seaman Cook for Common Sea Training.) Mr McLeod said he had been raised in a rural dairy farming area near Dapto.
Mr McLeod described a number of stressful incidents that he experienced. On his second trip to Vietnam, he remembers there being about three of them in the kitchen (above the waterline) – “in the vegetable prep room” - when scare charges were detonated. He said no warning was given and he heard the explosion and felt a thump (statement paragraph 5):
At the time, there was an attack was underway on the hills where Napalm was being dropped and the resulting faint ‘thumps’ could be heard. Helicopters and fighter planes were flying around, all adding to the atmosphere at the time. There was also noise from the kitchen and the upper deck but when the Scare Charges were used, my thoughts were that we were under attack and that my life was in danger as the resulting noise from the explosions through the ship was different to the noise that I had become accustomed to on the ship.
Mr McLeod said he was “shit scared” and thought they were under attack and was glad that he was not in the ‘Tiller Flat’ at the time because, if they had been under attack, he would not have been able to get out. One of his duties as an Ordinary Seaman was to go into the Tiller Flat and inspect the flange surrounding the propeller shaft to ensure that it was not leaking and the ship would not be flooded as a result (statement paragraph 6):
This involved crawling on my stomach into a cramped compartment with the ships propeller spinning inches from my body, in the dark with only a torch for illumination. When the Scare Charges detonated, my immediate thoughts were what could have happened if I was inspecting the flange at that time as I would have had no chance to escape a sinking ship where I could have been. This ‘what could have been’ has been in my thoughts since that time.
Mr McLeod said he did not mention the scare charge incidents to Dr Altman during his 2002 consultation because, initially with Dr Altman, he was very nervous and did not know what was expected of him. As a result, he did not then recount all the relevant incidents in Vietnam. Mr McLeod said that at a Navy reunion with others who had similar experiences, they reminisced about “old times” and the incidents involving the scare charges were mentioned and triggered unwelcome memories including of what he felt at that time.
Mr McLeod said since the late 1960s, he has suffered from claustrophobia and cannot go into closed places like cinemas and “hates” public transport. He is also hypervigilant with loud noises. He attributes this to being in the kitchen when the scare charges exploded. He is embarrassed by the claustrophobia and avoids talking about it.
Mr McLeod recalled the napalming of the village. They were anchored “a couple of kilometres off the coast” of Vung Tau and could see a village on the shoreline. He was on the deck of the ship when jets appeared and dropped Napalm bombs on and then strafed the village, which exploded in flames. He could see people running about, who, by their size, could be distinguished as men, women or children. He remembers hearing people screaming. He “saw people pointing or aiming at the ship and thought they were shooting at us”. He was horrified and has since suffered from guilt at being associated with the death of all those people.
Mr McLeod also recalled the incident when HMAS Perth was approached by a Vietnamese fishing boat on three occasions wanting to surrender. On the third occasion, those on board were allowed to surrender and brought onto the deck of Perth where they were stripped naked, subjected to body cavity searches and made to lie naked on the hot deck with their hands tied behind their backs. Given that the men had surrendered, he considered this a cruel and humiliating act by the responsible officers which caused him distress. He got his camera and took photographs. After a while, prisoners were given overalls to wear and cigarettes to smoke. His recollection is that the prisoners were subsequently transferred to a patrol boat, shot and pushed over the side. However, he was later told that this did not happen and he now accepts that this part of what he recalls is inaccurate.
Mr McLeod said he has another recollection of seven Americans being accidentally killed when Perth’s guns locked on to an armoured personnel carrier. He now accepts that the seven men involved were Koreans and the order to fire was cancelled and the seven were not, therefore, shot.
Mr McLeod said he is relying on his memory of a Vietcong junk/sampan being ordered to stop and Perth firing a shot across its bows. Then, when it did not stop, Perth fired at the junk/sampan which then exploded in a fireball, perhaps because it was carrying ammunition, and killing those on board. He was on the deck of the Perth at the time and was “horrified and ashamed and didn’t want to be there”.
Mr McLeod said of these incidents, it was the napalming of the village and the scare charges that affected him most.
When asked about his personal history, Mr McLeod said his parents divorced when he was aged one or two years old. He was his parents’ second child. His mother remarried a few years later. He did not see his biological father again before he died, which was as a result of bleeding to death in the shower following surgery. Mr McLeod commented: “C’est la vie. I didn’t know him.” His mother and stepfather had two more children. Mr McLeod said his older brother (a salvage diver) became depressed after suffering ‘the bends’. He had an embolism in his brain and later committed suicide. Mr McLeod said he was not close to his brother and had not seen him for about 10 years. He was not affected by his death.
Mr McLeod told Dr Dinnen that he had a good home life. He said in evidence that although his parents “would fight like cat and dog”, they loved each other and he was not particularly affected by this. Both his parents are now deceased.
When Mr McLeod joined the Navy in 1966, he signed up for 12 years. He said there was no option of a shorter period. In 1978, he signed up for another eight years, but in the meantime, he applied for and was accepted into the NSW Police Force. He did not take this up but obtained a discharge from the Navy in 1980.
Mr McLeod said he and first wife, who had known each other at school, married in 1971. They had two daughters. His wife complained about his drinking from early in their marriage, and his drinking and her complaints about this were a factor in the breakdown of their relationship. They divorced in 1985 after his wife had extramarital affairs. Mr McLeod continued to care for their children. He said in evidence that he and his first wife “don’t talk except when we have to”.
Mr McLeod commenced a relationship with his current wife, who has two children from a previous relationship, and they married in 1998. Mr McLeod told Dr Dinnen that they have two children together who, at the time of Dr Dinnen’s report (18 October 2012), were aged 15 and 16 and attending a local high school.
Mr McLeod said he has not worked since 2005, when he was employed as an employment consultant. Mr McLeod told Dr Altman (report dated 5 February 2010) that he stopped work because he was no longer coping. Dr Altman records the following:
He stated “I was going to kill someone. I was very uptight – (felt like) hitting people, just want to grab them by the throat and kill them. I used to stand at the desk and yell.”
Dr Smith (report dated 24 January 2013) recorded that Mr McLeod told him he was subjected to death threats arising out of his not supporting benefits for individuals who thought they were entitled to such benefits.
Dr Altman (report dated 5 February 2010) recorded that there is ongoing discord in Mr McLeod’s marriage, that he drinks approximately five beers and one bottle of wine per day, that his socialising is substantially reduced and he stays at home to a large extent, and that he has lost interest in most of his leisure activities and hobbies. Dr Dinnen (report dated 18 October 2012) said Mr McLeod told him that he drinks almost two litres of wine a night, a five litre cask lasting three nights. Dr Smith (report dated 24 January 2013) records that Mr McLeod told him that he usually drinks one and a half litres of wine a night and has been consuming excessive quantities of alcohol since joining the Navy.
MEDICAL EVIDENCE
Dr Altman
Mr McLeod’s general practitioner, Dr L Noonan, first referred Mr McLeod to Dr Altman for treatment on 29 January 2002. Mr McLeod told me that he recalls seeing Dr Altman on at least three occasions at that time. In a report dated 9 May 2002 addressed to Dr Noonan, Dr Altman diagnosed “severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence”. Dr Altman also wrote a report for the Department of Veterans’ Affairs, dated 23 July 2002, in which he stated this diagnosis. He reassessed Mr McLeod in 2010 and wrote a report dated 5 February 2010 addressed to Dr Noonan. Dr Altman confirmed his 2002 diagnosis which he said, in his opinion, was “as a result of his [Mr McLeod’s] Vietnam war experience”.
Dr Dinnen
Dr Dinnen prepared a report for the Applicant dated 18 October 2012 and gave evidence by conference telephone at the hearing. In his report, Dr Dinnen stated that his diagnosis for Mr McLeod is “Chronic post traumatic stress disorder with associated depressive disorder and excessive alcohol use”. He agreed with Dr Altman that this was as a result of Mr McLeod’s wartime experience. Dr Dinnen stated that he considered Mr McLeod’s alcohol abuse and depression as being associated with his PTSD and not warranting separate diagnosis. He said that in his view, Mr McLeod is not capable of working eight hours a week because of his chronic psychiatric condition.
In oral evidence, Dr Dinnen confirmed his opinion that Mr McLeod’s excessive alcohol use and depressive disorder should be considered part of his PTSD. In his opinion, the specific criteria for excessive alcohol use and the associated depressive disorder do not appear to be satisfied. Dr Dinnen said it appears Mr McLeod became aware of his psychiatric problems in about 2000 and realised in retrospect that they emanated from his Navy service. He has flashbacks, nightmares, disturbed sleep patterns and intrusive thoughts about events connected with his Vietnam service. While noting the difference in the factual background recorded by Dr Smith, Dr Dinnen said the difference between his diagnosis and Dr Smith’s is not significant.
However, Dr Dinnen disagreed with Dr Smith’s comment that delayed onset diagnosis of PTSD “is quite rare and usually occurs in individuals who have been sexually abused”. Dr Dinnen said late onset diagnosis is well recorded in the literature and he has had papers published on this. Dr Smith’s assertion that this usually only occurs in individuals who have been sexually abused is not his experience in practice. Dr Dinnen noted that while the delayed onset may be in presentation or diagnosis, the symptoms may have been apparent previously. Moreover, PTSD can fluctuate and present as having clinical significance decades later. Dr Dinnen said it is not uncommon for service people to suffer from unreported psychiatric disorders. Many have psychiatric symptoms which they keep to themselves. An effective avoidance strategy is to use alcohol to excess.
Dr Dinnen said that individuals do not necessarily react in a way that demonstrates fear or horror even though they may feel this. The relevant question is whether particular experiences were traumatic for Mr McLeod. His account indicates the emotion he experienced was strong and has lasted to the present day. Dr Dinnen noted that Mr McLeod has memories of a range of traumatic experiences, having experienced feelings of helplessness – where he could not do anything about what was happening – and horror at particular treatment. A range of traumatic events can have a cumulative effect.
Dr Smith
Dr Smith prepared three reports for the Respondent, dated 24 January 2013, 12 April 2013 and 13 May 2013, and gave evidence in person at the hearing. In his first report, Dr Smith stated “I would accept that Mr McLeod is displaying clinical evidence of chronic alcohol dependence and a Major Depressive Disorder”. However, he said “It is highly doubtful that Mr McLeod suffers Post-traumatic Stress Disorder related to his naval experience”. Dr Smith was critical of Dr Altman and Dr Dinnen for accepting Mr McLeod’s explanation with regard to the events he was exposed to. He says neither Dr Altman nor Dr Dinnen have raised family history factors of significance, instead relying on Mr McLeod’s naval experience divorced from other adverse events.
Dr Smith noted that Mr McLeod, while reporting that he was emotionally distressed by his exposure to traumatic events during his naval service, was able to continue working as a chef and, after leaving the Navy, functioning in other roles with no untoward effects until the latter part of his career. Dr Smith stated:
In all probability his excessive alcohol intake is significantly contributing to his impaired sleep patterns, troubled dreams and nightmares, irritability, aggressivity and marked social avoidance. In all probability it has intruded into his interpersonal relationships. It may well have also intruded into his capacity to engage productively with work colleagues and client.
Dr Smith said there is no clinical evidence of Mr McLeod’s condition worsening since Dr Altman’s initial diagnosis in 2002, at which time Mr McLeod was working. Dr Smith attributed the “purported clinical worsening” of Mr McLeod’s condition in 2005 to his excess alcohol intake and death threats at work.
Dr Smith did not alter his opinions in his later reports. He dated the onset of Mr McLeod’s psychiatric condition to between 2000 and 2002.
In oral evidence at the hearing, Dr Smith said his opinions remain unchanged although he acknowledged that it was Mr McLeod’s brother and not his sister who committed suicide. He said that alcohol can itself cause symptoms of a Major Depressive Disorder and there is commonly an interplay between a Major Depressive Disorder and Alcohol Dependence. While stating that it was inconsistent for a person to take photographs of a traumatic event while being overcome by fear, he acknowledged that it is common for service people to carry on with their work despite their experiences.
Dr Smith said that late onset PTSD is rare and usually associated with sexual abuse, although he acknowledged that it has happened with the Defence Force personnel.
HISTORICAL EVIDENCE
HMAS Sydney
HMAS Sydney was (of course) an aircraft carrier. The Tribunal documents contain a report dated 15 July 2011 (the Writeway Report), with attached historical documents, prepared by Commodore PM Mulcare RAN Rtd for Writeway Research Services, a letter from John Kielbicki, who served with Mr McLeod on Sydney, dated 22 June 2010, relating some of what he remembered about the use of scare charges and the bombing of the hills beyond Vung Tau Harbour, and also some other historical documents tendered at the VRB hearing.
Mr Kielbicki referred to Sydney anchoring in Vung Tau Harbour on the morning of 3 February 1968 at “the height of the Tet Offensive”. He said he was on upper deck sentry duty during the time in the Harbour and was issued with a rifle and a satchel of about 10 scare charges with instructions to patrol the decks and report any possible threat to the ship. In the event of detecting anything suspicious, they were to contact the officer of the watch who would assess the threat and direct the course of action. He would only direct that scare charges be dropped after checking with the motor cutter which was patrolling around the ship that there were no clearance divers in the water. Having done so, the officer would instruct each sentry to ignite a scare charge and throw it over the side:
The charge would generally land in the water some 10 to 15 feet from the ships [sic] side, sink, then detonate. The intention was to kill or injure enemy divers attempting to attach explosives to the hull of the ship …
Mr Kielbicki said:
During this trip there was a lot more activity both in the sky and on the harbour, than the previous trip in December 1967 and the subsequent trip in April 1968. In the harbour there were US Navy gunboats patrolling and in the skies, apart from the helicopter traffic, there were US fighter planes. During the course of my watch, about mid morning, I was looking towards the shore in the direction of Vung Tau and noticed two F-4 Phantom aircraft approaching. The next minute the planes swooped very low and commenced a bombing run. The target, as seen from the ship, appeared to be the hills to the north and behind Vung Tau. I have no idea if the planes dropped napalm or conventional bombs but I recall it was the most spectacular thing I have ever seen. I clearly heard the detonation of the bombs followed by a wall of flame travelling along the hills, following the flightpath of the planes. It was all over in the matter of a minute followed by silence and just plumes of smoke. A short time later, maybe 30 minutes, two more aircraft appeared flying towards the same area. These were not jets, but single propeller driven planes, probably A-1 Skyraiders. These planes did several strafing runs over the target area then flew off.
The interesting thing is that these incidents are not recorded in the RPO’s for HMAS Sydney February 1968 (see attached). Then again the actions ashore did not affect the operations of the ship and the use of scare charges was probably controversial, so the reports were omitted. However item 7 in the ROP’s “shifted berth to a less hostile position” would certainly indicate that a threat existed.
The attached ‘Report of Proceedings’ (ROP) for Sydney for February 1968 prepared by Captain DAH Clarke refers to Sydney anchoring in Vung Tau Harbour at 0703 on 3 February 1968 for the disembarkation of troops and the unloading of cargo. Having completed the “backloading of unserviceable vehicles Sydney weighed anchor at 1200 (-8) and shifted berth to a less hostile position south of Cap St Jacques light to complete securing for sea.” At 1427, the ship weighed anchor and departed for Singapore.
The Tribunal was also provided with an extract from Rodney Nott and Noel Payne, ‘The Vung Tau Ferry’ (HMAS Sydney) and Escort Ships (Vietnam 1965-1972), Brisbane and the Gold Coast, 1998, p 23, stating:
HMA Ships SYDNEY and STUART were at Vung Tau on 3 February 1968, thereby being present in the Harbour during the early stages of the ‘Tet Offensive’. The fireworks display during this period was sensational, and the reason for an early departure by both ships.
The Writeway Report states that “The principal threat to ships at anchor off Vung Tau was considered to be that of attack by enemy divers or floating mines.” The Report states that while none of these threats materialised during Sydney’s voyages to Vung Tau between 1965 and 1972, they were taken seriously and appropriate defensive measures were put in place when ships anchored. The Report refers to boat patrols and scare charges being thrown from the side of the ship. While scare charges thrown from a patrol boat upstream of Sydney were generally muffled and heard as a thud in compartments below the waterline, explosions near the ship were much louder and sharper in compartments below the waterline and could startle personnel in these compartments if they had not been alerted.
The Report states there is no evidence of fighting on the Vung Tau peninsular on 3 February 1968. Sydney was about 1800 yds from the nearest point of land.
HMAS Perth
HMAS Perth was a guided missile destroyer. The Report states that it is highly unlikely that a person standing on the upper deck of Perth at a distance of two miles could distinguish individual people or hear them screaming during the noise created by a napalm attack, and subsequent explosion and burning. There was no record of such an incident in Perth’s ROP although it seems it might not have been mentioned if it was not connected with Perth’s activities. Even so, the Report suggests that if it was visible to personnel on the bridge, lookouts or communication sailors, it would almost certainly be well known. (I should note that there seems to be some confusion as to whether Mr McLeod was on Sydney or Perth at the time he recalls seeing the napalming of the village.)
The Report states that Perth’s ROP refers to an incident on 1 February 1971 when a fishing boat with a crew of four and seven Viet Cong “railiers” came alongside and the seven Viet Cong asked to be taken on board to surrender. The seven Viet Cong appear to have been treated much as described by Mr McLeod: stripped and bound, examined by a medical officer, given a shower and clean overalls and then returned to the deck where they were given food, drink and cigarettes. Perth’s ROP states that, later, they were transferred to a South Vietnamese Patrol Craft (paragraph 7). Documents produced at the VRB hearing and included in the Tribunal Documents include photographs of the prisoners lying naked face down on the deck with their hands bound and, presumably, later dressed in overalls and being handed cigarettes.
The Report states that there is no record in Perth’s ROP of it firing on an armoured personnel carrier.
The Report states that Perth’s ROP mention a number of instances of Water Borne Logistic Craft (WBLC), which would include junks or sampans, being destroyed or damaged. However, none mention a shot being fired across the bows of a vessel before sinking it by gunfire. The Report expresses the opinion that “Given the target distances, the veteran would not have witnessed the destruction.”
SUBMISSIONS
Applicant
Mr Colborne, for Mr McLeod, noted that Dr Smith failed to distinguish between Mr McLeod’s biological father and his stepfather. He said Dr Smith appears to have speculated instead of taking a detailed history. Mr Colborne said there is evidence of alcohol abuse by Mr McLeod in the early 1970s not long after his marriage when his first wife began complaining about his excessive drinking.
Mr Colborne submitted that Dr Altman and Dr Dinnen carefully address the criteria for PTSD and their evidence should be preferred to that of Dr Smith.
Mr Colborne said Mr McLeod’s case turns on whether Mr McLeod experienced a stressor and, if so, the nature of his response. Mr Colborne contended that Mr McLeod experienced three stressors before the clinical onset of PTSD: the scare charge explosions, the bombing of a village, and the firing on and resulting explosion of a junk. Mr Colborne referred to evidence about the events of 3 February 1968 in Vung Tau Harbour and Mr McLeod’s claimed experiences on that day while on HMAS Sydney. There is evidence of there being significant activity in the Harbour and surrounding coastline as part of the Tet Offensive, as described by Mr Kielbicki and in the extract from The Vung Tau Ferry (referred to above). Scare charges were used to deter enemy divers and Mr Kielbicki’s evidence supports that of Mr McLeod as to the aerial bombing of a land target behind the Harbour. Mr Colborne noted that a ship’s ROP does not record incidents that do not affect the ship. The ROP for Sydney also indicates the need to move from the Harbour “to a less hostile position” as soon as possible. Mr Colborne said the evidence suggests there was more activity than the Writeway Report suggests. Mr McLeod’s evidence is that he was “scared shitless” by the explosions caused by the scare charges and expressed horror at the bombing of the village.
With regard to Mr McLeod’s evidence as to HMAS Perth firing on a junk and its exploding, about which he expressed horror, Mr Colborne noted the references in the Writeway Report to WBLC, including junks, being fired on and destroyed. The ROP for Perth for January 1971 (paragraph 41) refers to a flare being fired when a fast moving surface contact showing no lights was detected. Shortly after the firing of the flare, the contact was identified as a South Vietnamese Patrol Craft. Mr Colborne said it is possible Mr McLeod has put together two different memories from his time on Perth.
With regard to experiencing intense fear, helplessness or horror, Mr Colborne referred to Constable v Repatriation Commission [2005] FCA 928 (Constable), where at [25], Dowsett J said, referring to the decision of Spender J in White v Repatriation Commission[2004] FCA 633:
Spender J referred to the decision of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334 affirmed on appeal in Repatriation Commission v Stoddart [2003] FCAFC 300. That case was concerned with a question which was ventilated in argument in the present case: whether a subjective perception of a threat is sufficient for the purposes of the statement of principles. Spender J also referred to Woodward v Repatriation Commission [2003] FCAFC 160 at 439-440. The passage in question certainly suggests that the words "experiencing a severe stressor" have a subjective element. However the issue seems to have been substantially the same as that considered in Stoddart. In any event none of those cases supports the proposition that an applicant must claim to have felt fear, helplessness or horror at the time of the relevant event in order that it qualify as a severe stressor. Any such claim would often be little more than an ex post facto reconstruction of complex emotions, probably experienced in unfamiliar circumstances. Further, one person may describe as a feeling of fear or horror, a sensation which another might describe as "shock" or "feeling sick in the stomach", expressions used by the present applicant. …
Respondent
Mr O’Reilly, for the Respondent, submitted that the evidence does not point to a diagnosis of alcohol abuse but, rather, to a diagnosis of alcohol dependence, as found by Dr Smith. None of the three psychiatrists diagnosed alcohol abuse. Dr Dinnen only found ‘excessive alcohol use’ in association with PTSD. Mr O’Reilly contended that Dr Smith’s diagnosis of chronic alcohol dependence and a Major Depressive Disorder should be accepted, noting his evidence that one may mask the other. Dr Smith noted that there must be a traumatic event and a response in order to diagnose PTSD. Dr Smith could not identify a response sufficient to support such a diagnosis. The Respondent contends that Dr Dinnen only assumed a response and made no specific finding as to this. The Respondent contends that there is no credible evidence of Mr McLeod experiencing intense fear, helplessness or horror, noting that Mr McLeod no longer relies on some of the events previously relied on such as the shooting of the American serviceman as he now accepts it did not occur.
Mr O’Reilly noted that there were problems in Mr McLeod’s first marriage and there is no evidence of alcohol abuse in the period 1968 to the early 1970s. He noted that Mr McLeod re-enlisted after 12 years in the Navy, albeit that he was discharged after a further two years. Thereafter, he worked until 2005. Mr O’Reilly contended that the history of Mr McLeod’s service and personal life is not unusual.
Mr O’Reilly noted that Mr McLeod’s referral to Dr Altman in 2002 occurred after a first claim in respect of PTSD had been prepared, although this first claim was not lodged. Prior to 2002, there is no evidence of Mr McLeod consulting a psychiatrist or having clearly delineated problems with his functioning. Mr O’Reilly contended that the report prepared by Dr Altman and the treatment provided to Mr McLeod were for the purpose of Mr McLeod’s claim for a disability pension. Mr O’Reilly noted that the clinical onset of PTSD is said to be around 2000, well after any operational service.
DISCUSSION
Does Mr McLeod suffer from PTSD?
Having considered Mr McLeod’s evidence and reviewed the medical reports, my view is that it is Dr Smith who has misread Mr McLeod’s family history and given this greater significance than it warrants. Dr Smith refers to Mr McLeod experiencing difficulties as a result of his parents’ troubled marriage, which is inconsistent with what Dr Dinnen records, which is that Mr McLeod had a good home life. Dr Smith made a mistake in recording that it was Mr McLeod’s sister who committed suicide, when it was his brother, to whom he said he was not close and whom he had not seen for 10 years. Mr McLeod told me that his brother became depressed after suffering the ‘bends’ (he was a salvage diver) and a brain embolism. Dr Smith also does not appear to have distinguished between Mr McLeod’s biological father, who bled to death, whom he had not seen since his father left his mother when Mr McLeod was a very young child, and his stepfather. Mr McLeod commented in relation to the death of biological father, “C’est la vie. I didn’t know him.”
I also prefer Dr Dinnen’s evidence about the delayed onset of PTSD in Defence Force personnel, and that while there may be a delayed onset in presentation or diagnosis, the symptoms may have been apparent previously. Dr Smith, by contrast, asserted that late onset usually only occurs in individuals who have been sexually abused.
I note that both Dr Altman and Dr Dinnen agree on a diagnosis of chronic PTSD with associated Major Depression and excessive alcohol use.
The first issue for the Tribunal to determine, on the balance of probabilities, is the disease(s) from which Mr McLeod suffers. The diagnostic criteria for PTSD are those set out in clause 3(b) of SoP No 5 PTSD which are derived from DSM-IV-TR.
The first criteria (A) is that the person has been exposed to a traumatic event in which, relevantly, “(ii) the person’s response involved intense fear, helplessness or horror”. I am satisfied from Mr McLeod’s evidence that he experienced intense fear and helplessness on hearing explosions from scare charges, believing the ship was under attack and that his life was in danger. He also described his fear of being trapped in the confined space of the ‘Tiller Flat’ while inspecting the propeller shaft, and not being able to get out. At this time, Mr McLeod was a 17 year old, still undergoing training, and with little experience at sea especially in a war zone. It is also plausible that Mr McLeod might feel horror at what he thought was the bombing of a village on the shore of Vung Tau Harbour. HMAS Sydney’s short time in Vung Tau Harbour on 3 February 1968 was at the height of the Tet Offensive and the evidence referred to above, in particular Mr Kielbicki’s description of what he saw while acting as a sentry on deck, indicates that there is some substance to Mr McLeod’s recollection, albeit that some of the details may not be correct. As Dowsett J recognised in Constable at [25], referred to by Mr Colborne, a person’s claimed experience may involve “an ex post facto reconstruction of complex emotions, probably experienced in unfamiliar circumstances”.
I also accept that Mr McLeod experienced horror at what he now perceives to have been HMAS Perth firing on a junk, causing it to explode. The ROP of Perth indicates that it fired on junks or other small craft on a number of occasions (in October and December 1970, and in January and February 1971) and that those craft were sunk or destroyed. There is also evidence in the ROP of a flare being fired, which led to the identification of a South Vietnamese Patrol Craft, and which Mr Colborne suggested could be what Mr McLeod now remembers as a shot being fired across the bows. Thus, while the craft destroyed may have been at some distance from Perth, there is some basis to Mr McLeod’s recollected experience although once again the details he recalls may not be accurate.
Thus, I am reasonably satisfied that criteria (A) is satisfied. Criteria (B) requires that the traumatic event is persistently re-experienced in one or more specified ways, including “(i) recurrent and intrusive distressing recollections of the event …”, and “(ii) recurrent distressing dreams of the event”. Dr Altman (report dated 5 February 2010) refers to Mr McLeod experiencing nightmares “on an approximately two weekly basis – “all about dying in an explosion’” and continuing “to experience recurrent intrusive distressing thoughts about his traumatic experiences”. Dr Dinnen refers to Mr McLeod having “nightmares of prisoners being shot or being in the propeller shaft” about twice a week, and to having intrusive thoughts about his service in Vietnam. Again, I am reasonably satisfied that Mr McLeod meets criteria (B). In his statement dated 10 August 2012, Mr McLeod said at the time he ceased work in 2005, “I was experiencing recurrent thoughts of my experiences during my service i.e. flashbacks and nightmares and lost interest in activities and in my life in general.”
Criteria (C) requires “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”, these being specific indicia such as avoidance of thoughts associated with the trauma, avoidance of places that arouse recollections of the trauma, markedly diminished interest or participation in significant activities, and a feeling of detachment or estrangement from others. Mr McLeod’s evidence of his alcohol use, his avoidance of cinemas and public transport, his avoidance of recreational activities in which he used to be involved, his staying at home and avoiding socialising, all support my reasonable satisfaction that criteria (C) is satisfied. In his statement, Mr McLeod said: “I used to enjoy motorbike riding and 4 wheel driving with friends, however now tend to go out on my own as I cannot tolerate people or big groups. I am withdrawn and feel as though I am detached from others.”
Criteria (D) requires persistent symptoms of increased arousal as indicated by two or more indicia, including in Mr McLeod’s case, his irritability, hypervigilance and exaggerated startle response. Criteria (E) requires a duration of the disturbance of more than one month, and criteria (F) that “the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning”. I am reasonably satisfied that both of these criteria are satisfied, noting that Mr McLeod has had a diagnosis of PTSD since 2002 and ongoing symptoms, and that he ceased employment in 2005 because he could no longer cope, and also noting Dr Altman’s and Dr Dinnen’s evidence that Mr McLeod would not be capable of working eight hours a week.
Thus, I am reasonably satisfied on the evidence that Mr McLeod suffers from PTSD, as diagnosed by Dr Altman and Dr Dinnen. In my view, it is reasonable to rely on their opinions that Mr McLeod’s PTSD is associated with a Major Depressive Disorder and excess alcohol use or dependence which are part and parcel of his PTSD and do not warrant separate diagnosis.
Is Mr McLeod’s PTSD war-caused?
Being reasonably satisfied that Mr McLeod suffers from PTSD, the Tribunal must then address the four steps identified by the Full Federal Court in Deledio. The first step requires the Tribunal to consider all the material before it and determine (a) whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and (b) whether that hypothesis can be regarded as reasonable if the raised facts are true.
In my view, the material before the Tribunal – in particular, Mr McLeod’s and Mr Kielbicki’s evidence, some of the historical evidence and the evidence of Dr Altman and Dr Dinnen, point to the raised facts and the hypothesis that Mr McLeod’s PTSD is war-caused.
With regard to the second step, there is a relevant SoP, namely SoP No 5 PTSD.
The third step requires the Tribunal to determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the “template” found in the SoP? In particular, does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service? As stated above, in Repatriation Commission v Knight [2012] FCAFC 83, the Full Federal Court said there are two discrete issues at play in considering whether there is a reasonable hypothesis:
(i)does the material before the Tribunal point to the factor relied upon; and
(ii)does the material also point to that factor being related to the veteran’s operational service (s 196B(14))?
Clause 5 of SoP No 5 requires that at least one of the factors set out in clause 6 must be related to the service rendered by the person. The factors set out in clause 6 are those that must as a minimum exist before it can be said that a reasonable hypothesis has been raised. The factors relied on by the Applicant appear to be either (a) experiencing a category 1A stressor before the clinical onset of PTSD, or (b) experiencing a category 1B stressor before the clinical onset of PTSD. A category 1A stressor is defined in clause 9 as including, relevantly, “(a) experiencing a life-threatening event”, and a category 1B stressor is defined as including, relevantly, “(a) being an eye witness to a person being killed or critically injured”.
The Applicant relies on three incidents:
·While on Sydney, fear and helplessness caused by explosions as a result of the dropping of scare charges. In his statement dated 10 August 2012, Mr McLeod said “when the scare charges were used, my thoughts were that we were under attack and that my life was in danger”. According to Dr Altman (report dated 5 February 2010), Mr McLeod told him: “I thought we were under attack. I thought I might die.”
·The “napalming” of a village on the shore of Vung Tau Harbour and the resulting death of its inhabitants: in his statement, Mr McLeod states, “Jets appeared and dropped Napalm bombs on the village and then strafed the village. People could be seen and heard screaming running into the sea”. According to Dr Altman ( report dated 23 July 2002), Mr McLeod told him of “Napalming a village and watching and hearing the people screaming and dying. We could actually see and hear the people.”
·The explosion of a sampan/junk fired on by Perth causing the death of its passengers/crew. In his statement, Mr McLeod describes “s 5 inch shell being fired at it and it exploded in a fireball”.
I accept that the material with which I have been provided by the Applicant points to a category 1(A) or a category 1(B) stressor. In terms of clinical onset, McLeod told Dr Dinnen that he became aware of psychological problems in about 2000. He was diagnosed with PTSD by Dr Altman in 2002.
Section 196B(14) sets out the circumstances in which a “factor causing, or contributing to, an injury, disease or death is related to service rendered by a person” which relevantly include (b) where “it [the injury, disease or death] arose out of, or was attributable to, that service”, and (d) where “it was contributed to in a material degree by, or was aggravated by, that service”. In my view, the material points to Mr McLeod’s stressors being related to his service.
Thus, in my view step 3 of the Deledio steps is satisfied.
Step 4 requires that if the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. This is the stage at which any fact finding must be made. While I accept that Mr McLeod’s recollection of what occurred while he was serving on Sydney in February 1968 and on Perth in late 1970/early 1971 is not very accurate, this is not surprising given that these events took place over 40 years ago. Moreover, as has been recognised by the courts in decisions such as Constable, it is not uncommon for a person to reconstruct memories where complex emotional situations have been involved. The historical evidence indicates that there is some substance to Mr McLeod’s memories albeit that the details of what he remembers may not accord with, for example, the account recorded by a Captain in a ROP. However, as Mr Colborne pointed out, the ROP for a ship is only a record of events affecting that ship and a review of Sydney’s and Perth’s ROPs at the relevant times indicates a relatively low level of detail.
I also note that Mr McLeod was subject to death threats while working as an employment consultant. In his statement dated 10 August 2012, he acknowledged that anger issues came to the fore whenever he was threatened by a client and this resulted in him becoming depressed and using alcohol to control this. While such work-related problems may have aggravated his psychological condition, it does not undermine the Applicant’s contention which is that his PTSD is service-related such that I would be satisfied that his incapacity was not service-related beyond all reasonable doubt.
Thus, there is insufficient evidence to satisfy me beyond all reasonable doubt that Mr McLeod’s incapacity did not arise from war-caused disease. This means that Mr McLeod’s claim for a disability pension must succeed and the decision under review must be set aside.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the Commission for reconsideration with a direction that Mr McLeod’s PTSD is war-caused.
I certify that the preceding 78 (seventy eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. ................................[SGD]..............................
Associate
Dated 28 August 2013
Date(s) of hearing 5 August 2013 Date final submissions received 5 August 2013 Counsel for the Applicant C Colborne Solicitors for the Applicant KCI Lawyers Advocate for the Respondent T O'Reilly, Department of Veterans' Affairs
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