Stevens and Repatriation Commission (Veterans' entitlements)
[2017] AATA 2419
•4 December 2017
Stevens and Repatriation Commission (Veterans' entitlements) [2017] AATA 2419 (4 December 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/2250
Re:Ronald Stevens
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:4 December 2017
Place:Brisbane
The decision under review is affirmed.
.........................[SGD]...............................
Senior Member T. Tavoularis
VETERANS’ AFFAIRS – Disability Pension – whether aggravation of Post-traumatic Stress Disorder was service related, specifically war-caused – Tribunal satisfied that the Applicant suffers from Post-traumatic stress disorder (‘PTSD’) – whether reasonable hypothesis raised linking aggravation of PTSD to Applicant’s operational service – consideration of template in Statement of Principles - Tribunal not satisfied hypothesis reasonable – satisfied beyond reasonable doubt that aggravation of PTSD was not war-caused – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 13, 120, 120A
Cases
Border v Repatriation Commission (No. 2) (2010) 191 FCR 163; [2010] FCA 1430
Re Cooke and Repatriation Commission (1998) 50 ALD 907; [1998] AATA 77
Delahunty v Repatriation Commission (2004) 38 AAR 51; [2004] FCA 309
McKenna and Repatriation Commission [1999] FCA 323
Moran and Repatriation Commission [2004] AATA 294
Parr and Repatriation Commission [2003] AATA 13
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194
Stoddart v Repatriation Commission (2003) 74 ALD 366; [2003] FCA 334
Trigge and Repatriation Commission [2012] AATA 176
Voelker and Repatriation Commission [2016] AATA 427
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160Secondary Materials
Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 82 of 2014)
REASONS FOR DECISION
Senior Member T. Tavoularis
4 December 2017
INTRODUCTION
This is an application for review of the decision by the Veterans’ Review Board (“the VRB”) dated 19 February 2016. The VRB’s decision affirmed the Repatriation Commission’s (“the Respondent”) decision dated 15 January 2015, which refused a claim by Mr Ronald Frederick Stevens (“the Applicant”) for his Post-traumatic Stress Disorder (“PTSD”) to be accepted as service-related.
BACKGROUND
The Applicant is currently 66 years old. He served in the Royal Australian Navy from
18 October 1968 until 28 July 1972 (aged 17 to 20 years old).
It has been accepted that the Applicant rendered eligible operational service in Vietnam waters, whilst on board the HMAS Sydney, during the following periods:
(i) from 21 October 1970 to 12 November 1970;
(ii) from 15 February 1971 to 4 March 1971;
(iii) from 26 March 1971 to 8 April 1971; and
(iv) from 13 May 1971 to 1 June 1971.
On those four trips the HMAS Sydney delivered troops, supplies and equipment to Vung Tau harbour within the war zone of the Vietnam conflict.
Prior to those four periods of operational service, the Applicant rendered service on board HMAS Melbourne and witnessed the horrific collision of HMAS Melbourne and USS Frank E Evans on 3 June 1969 (“the Melbourne-Evans collision”). However, this incident was not within the Applicant’s period of eligible (operational) service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”).
The Applicant was serving on board the HMAS Melbourne when it collided with the destroyer USS Frank E Evans. The circumstances of that collision are indeed harrowing. Put simply, the USS Frank E Evans was cut in two as a result of sailing under the bow of HMAS Melbourne. Seventy-four of the crewman on the USS Frank E Evans were killed. This necessitated rescue operations from, amongst others, those aboard the HMAS Melbourne. The Applicant’s role in that rescue operation makes for sombre reading. His contribution to the rescue effort involved dealing with injured soldiers, wrapping bodies of the deceased and stowing them into freezers and, perhaps most dreadful of all, hosing off body parts of a USS Frank E Evans sailor who had fallen onto the flight deck of the HMAS Melbourne.[1]
[1] See Exhibit 11, Applicant’s Outline of Submissions, at [4].
The Applicant also rendered eligible defence service under the Act. However, the Applicant did not make any submissions based on his defence service.
On 24 October 2014, the Applicant lodged a ‘Claim for disability pension and/or application for increase in disability pension’ for disabilities that had not yet been accepted as service related. The Applicant specifically wanted to claim compensation in respect of Posttraumatic Stress Disorder (“PTSD”), back problems and skin problems, which he asserted were war or defence caused.[2]
[2] See Exhibit 3, “T documents”, T7, pp 48- 49.
On 15 January 2015 a delegate of the Repatriation Commission considered his claim and made a decision as follows:
“DECISION
I have accepted your claim for lumbar spondylosis, solar keratosis, osteoarthritis of the right knee and non melanotic malignant neoplasm of the skin. My decision takes effect from 24 July 2014.
I have decided that cervical spondylosis and Posttraumatic Stress Disorder are not related to service.
I also find that no medical condition is present to answer your claim for ‘Osteoarthritis left knee’. This part of your claim is therefore unsuccessful.Disability pension is increased to 50% of the General Rate with effect from 24 July 2014.”[3][3] See Exhibit 3, T13, p 97.
On 7 April 2015, the Applicant lodged an application for review with the Veterans’ Review Board (“VRB”), specifically appealing the decision not to accept his Posttraumatic Stress Disorder (“PTSD”) as service related. The Applicant noted that whilst the origin of his PTSD was as a result of the Melbourne-Evans collision, he contended that his service on HMAS Sydney in Vietnam “was the major factor in re-enforcing this trauma.”[4]
[4] See Exhibit 3, T14, p 107.
On 19 February 2016, the VRB made a decision to affirm the decision under review. Noting that the decision under review was “a Repatriation Commission decision dated 15 January 2015 which determined that posttraumatic stress disorder is not related to service.”[5] The VRB wrote to the Applicant notifying him of this decision on 6 April 2016.[6]
[5] See Exhibit 3, T2, pp B2 – B9.
[6] See Exhibit 3, T2, p B1.
On 28 April 2016, the Applicant lodged an Application for Review of Decision with this Tribunal.[7]
[7] See Exhibit 3, T1, pp A1 – A2.
ISSUES
The issues which fall under my consideration in this matter are as follows:
(a)whether a diagnosis of PTSD is present;
and if so:
(b)whether that PTSD is war-caused, having reference to the applicable Statement of Principles;[8]
and if so, then:
(c)what the appropriate rate of pension should be.
[8] See Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014.
I will consider each of these issues and the applicable law in turn.
ISSUE 1: WHETHER A DIAGNOSIS OF PTSD IS PRESENT?
The Tribunal is required, before proceeding to a consideration of whether the claimed condition is war-caused, to establish the diagnosis and date of clinical onset of the claimed medical condition, in this case whether the Applicant suffers from PTSD.[9]
[9] See Re Cooke and Repatriation Commission (1998) 50 ALD 907; McKenna and Repatriation Commission [1999] FCA 323.
Helpfully, the parties confirmed that the diagnosis of PTSD is not in dispute. They further agree that the original cause of the PTSD was the Applicant’s experience of the Melbourne-Evans collision in 1969.[10]
[10] See Exhibit 11, Applicant’s Outline of Submissions at [14], and Exhibit 12, Respondent’s Outline of Submissions at [5.2(a) & (d)].
I will briefly canvass the medical expert opinions in this regard.
Dr Quentin Mungomery’s opinion
Dr Mungomery, the Applicant’s treating doctor, has provided three reports in this matter.[11]
[11] See Exhibit 3, T5, (Report dated 13 December 2007); T6, (Report dated 3 December 2008); T17 (Report dated 28 May 2015).
In his report of 13 December 2007, Dr Mungomery opines that: “On initial assessment Mr Stevens was diagnosed as suffering from a chronic posttraumatic stress disorder which was felt to relate to his military service, primarily the collision between the ‘HMAS Melbourne’ and the ‘USS Frank E Evans’”.[12]
[12] See Exhibit 3, T5, p 23 at [48].
In a subsequent report dated 3 December 2008, Dr Mungomery noted an exacerbation of the Applicant’s depressive and PTSD symptoms due to chronic pain. He opines that:
“Unfortunately during this time Mr Stevens has also continued to have exacerbation of his depressive and post-traumatic stress disorder symptoms due to the chronic pain and impairment associated with osteoarthritis in his right knee (which has been accepted as being related to his military service) and although Mr Stevens reports some stability of this condition after having undergone an arthroscopy in September 2007 appears to be continuing on a deteriorating course and acting as a further exacerbating factor for his psychiatric conditions.”[13]
[13] See Exhibit 3, T6, p 38 at [5].
There followed a further report dated 28 May 2015 that canvassed the Applicant’s service in Vietnam waters while on board HMAS Sydney. Dr Mungomery adopts the classification system outlined in DSM IV TR.[14] On Axis I of that diagnostic methodology he makes two Clinical Disorders diagnoses: (1) Posttraumatic Stress Disorder – Chronic, and (2) Adjustment Disorder with Depressed Mood.
[14] DSM IV TR, Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition – 2000). Washington, D.C.: American Psychiatric Association: 1994:25.
His concluded opinion was elaborated as follows:
“It is my opinion Mr Stevens initially developed symptoms of an acute Posttraumatic Stress Disorder as a result of his involvement in the collision between the ‘USS Frank E Evans’ and the ‘HMAS Melbourne’ in 1969 while serving with the RAN due to having dealt with the bodies of deceased and seriously injured, witnessing the death of others, fearing for his personal safety and his reaction to these events being an overwhelming sense of helplessness and horror sufficient to consider he fulfilled Criteria A for a Posttraumatic Stress Disorder.
His PTSD symptoms would be considered to have been reinforced and aggravated by subsequent tours to Vietnam which occurred shortly after the USS Frank E Evans collision that involved undertaking operational duties in active combat or zones during which he felt that his life was threatened due to enemy forces attempting to plant mines on the hull of the ship and exposure to military personnel recollecting their own traumatic experiences involving loss of life or serious injury.
The increasing chronic and disabling pain and impairment associated with a number of service related orthopaedic conditions including lumbar spondylosis and osteoarthritis of the right knee and impact on his ability to maintain his current work efforts has also contributed to an aggravation of his PTSD symptoms and development of a secondary mood disorder consistent with an Adjustment Disorder with Depressed Mood.”[15]
[15] See Exhibit 3, T17 (Report dated 28 May 2015), pp 119 – 120 at [41] – [43].
Dr James Rodney’s Opinion
On 25 July 2016, at the request of the Respondent, Dr Rodney assessed the Applicant. Subsequently, he provided an Independent Medical Report dated 27 July 2016.[16]
[16] See Exhibit 6.
Dr Rodney used the multi-axial system outlined in the DSM-IV, in response to the Respondent’s first question requesting ‘your diagnosis of any emotional condition’.[17] On Axis I he made a single diagnosis of chronic posttraumatic stress disorder (PTSD).[18] In response to the second question ‘the date of clinical onset for any condition’, Dr Rodney opined:
“It would appear from Mr Stevens’ history that the traumatic event, the collision in June 1969 between Her Majesty’s Australian Ship (HMAS) Melbourne and an American vessel the United States Ship (USS) Frank Evans, was the major aetiology of his now chronic psychiatric illness.”[19]
[17] DSM IV TR, Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition – 2000). Washington, D.C.: American Psychiatric Association: 1994:25.
[18] See Exhibit 6, p 12 & 13.
[19] Ibid, p 13.
In response to the third question ‘whether any condition was aggravated by Mr Stevens’ defence service’,[20] Dr Rodney opined “… it is quite likely that this condition was aggravated by repetitive tours of duty in Vietnam with the Royal Australian Navy (RAN). This would appear to have aggravated and perhaps perpetuated it…”[21]
[20] I note the word ‘defence’ was used in the recapitulation of Question 3 by Dr Rodney. The Tribunal was not provided with the original briefing letter or list of questions posed to Dr Rodney. However, in this instance I assume the word ‘defence’ is a generic reference to the Applicant’s Navy service.
[21] Exhibit 6, p 13.
Conclusion
Having reference to the mutual diagnosis of PTSD by Dr Mungomery and Dr Rodney, I am content that the Applicant suffers from chronic posttraumatic stress disorder. I accept that condition emanated from the Melbourne-Evans collision and has subsequently been aggravated.
ISSUE 2: WAS THE AGGRAVATION OF THE APPLICANT’S PTSD WAR-CAUSED?
The Applicant’s contention is that: (1) he developed or was developing PTSD as a result of the Melbourne-Evans collision, and that more critically for the present matter, (2) there was an aggravation or a clinical worsening of the condition as a result of the Applicant’s experiences in Vietnam while serving on board the HMAS Sydney. He contends that his perception that the HMAS Sydney was under threat while stationed in Vung Tau harbour served to aggravate his posttraumatic stress disorder.
As previously mentioned, it is common ground that the Applicant rendered eligible ‘operational service’ in South Vietnam waters, whilst on board HMAS Sydney, during the following dates: 21 October 1970 to 12 November 1970; 15 February 1971 to 4 March 1971; 26 March 1971 to 8 April 1971; and 13 May 1971 to 1 June 1971.
Applicable Law
According to section 9 of the Act, an injury suffered by or a disease contracted by the veteran is said to be war-caused if it resulted from an occurrence that happened while the veteran was rendering ‘operational service’.
A veteran is eligible for a pension under Part II of the Act where he is incapacitated from a war-caused injury or war-caused disease.[22]
[22] See Veterans’ Entitlements Act 1986 (Cth) s 13(1).
The standard of proof to be applied to the alleged connection between the aggravation of the claimed condition and the Applicant’s operational service is that of the ‘reasonable hypothesis’.[23] The Tribunal must be satisfied beyond reasonable doubt that the injury or disease, that is said to relate to a veteran’s operational service, is not war-caused.[24]
[23] See Veterans’ Entitlements Act 1986 (Cth) s 120(3) and s 120A.
[24] See Veterans’ Entitlements Act 1986 (Cth) s 120(1).
The widely accepted steps that a decision-maker should take to apply s 120A, in light of
s 120, were described by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92-93 and 97-98, (“Deledio”) and can be summarised as follows:
(i)The decision-maker must consider the facts raised by the material before it and determine if that material points to a hypothesis connecting an injury, disease or death with the service;
(ii)Ascertain whether a relevant Statement of Principles is in force;
(iii)Where a relevant Statement of Principles (“SoP”) is in force, the decision-maker must then form an opinion as to whether the hypothesis raised is a reasonable one. This will be the case, if the hypothesis fits, or put another way, is consistent with the “template” to be found in the SoP;
(iv)It is then necessary to consider whether (under s 120(1) of the Act) the decision-maker is satisfied beyond reasonable doubt that the injury, disease or death, was not war-caused. The onus of proof or the application of any presumption is applied at this stage.
Step 1: Hypothesis connecting an injury, disease or death with the service
The hypothesis pursued by the Applicant is that his PTSD was aggravated as a result of his experiences in Vietnamese waters which he found terrifying and which caused him to be constantly fearful of his life. Notably, that his four trips to Vietnam were highly stressful.[25]
[25] See Exhibit 11, Applicant’s Outline of Submissions, at [15].
Additionally, I note that Dr Rodney recounts the asserted circumstances behind the aggravation of the Applicant’s chronic PTSD:
“From Mr Stevens’ history, it was quite clear that that traumatic incident (being the Melbourne-Evans collision) has affected his psychological status for the rest of his life. On returning to Sydney, he was appointed to Her Majesty’s Australian Ship (HMAS) Sydney which was a supply vessel for the Vietnam war. He said he had four trips to Vietnam delivering troops, equipment et cetera, although found the whole experience terrifying and was constantly fearful of his life. From his history, it suggests that due to the trauma that he experienced he constantly relived the collision over these trips to and from Vietnam. He got to the stage where he was unable to sleep below the deck because of agitation, fear and concerns about mines and explosions and the ship sinking. He said he was also very sensitised by charges that were set off around the boat to prevent mines being attached to it, and even now noises of any sort alarm and alert him.”[26]
[26] See Exhibit 6, p 4.
I am content that the Applicant has raised a hypothesis that connects the aggravation of his PTSD to his operational service on board HMAS Sydney.
Step 2: Identify relevant Statement of Principles (“SoP”) in Force
In considering whether the Applicant’s PTSD was aggravated by his operational service, it is necessary to consider the relevant Statement of Principles in force at the time of this decision. The Applicant is also entitled to rely on any past Statement of Principles that were in force at the time the Respondent originally processed and decided his claim.[27]
[27] See Repatriation Commission v Gorton (2001) 110 FCR 321 at [43]-[44] per Heerey, Emmett and Allsop JJ.
The Applicant relies on the Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014 (“the SoP”) in relation to his operational service.[28]
[28] See Exhibit 11, Applicant’s Outline of Submissions, at [12].
Step 3: Is a reasonable hypothesis raised consistent with the ‘template’ in the SoP?
Where the Applicant was engaged in operational service at the time his injury or disease occurred, or in this case, was aggravated, the decision-maker must be satisfied that a reasonable hypothesis connecting the injury or disease with the circumstances of the service has been raised.[29]
[29] See Veterans’ Entitlements Act 1986 (Cth) ss 120 and 120A, and SoP No. 82 of 2014.
As the decision-maker, I must be satisfied that there is sound medical-scientific evidence that indicates that the aggravation of the Applicant’s posttraumatic stress disorder can be related to his operational service.[30]
[30] See SoP No. 82 of 2014 at [4].
The Applicant originally relied upon factors 6(a), 6(b), 6(h) and 6(j) in the SoP as evidencing the connection between his operational service and the development of PTSD.[31] This position evolved during and subsequent to the hearing.
[31] See Exhibit 1, Applicant’s Statement of Facts and Contentions (“SFIC”), pp 3 - 4 at [12].
In the Applicant’s written closing submissions he instead solely relies upon experiencing a category 1A stressor during his ‘operational service’ pursuant to factor 6(a) in the SoP.[32]
[32] See Exhibit 11, Applicant’s Outline of Submissions at [12] and [22].
I think the Applicant’s purported reliance on factor 6(a) of the SoP is misplaced. Factor 6(a) provides as follows:
“(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder” (my emphasis)
As outlined above, there is agreement between the parties as to when the PTSD condition manifested. It was shortly after the Applicant experienced the trauma of the Melbourne-Evans collision tragedy on 3 June 1969. This was well prior to his first operational service tour to Vietnam, which was on 21 October 1970 – some 16 months later.
Therefore, I am only considering the aggravation or ‘clinical worsening’ of the Applicant’s PTSD. Relevantly, factor 6(h) provides:
“(h) experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder” (my emphasis)
The meaning of “a category 1A stressor” is defined in paragraph 9 of the Statement of Principles to mean one of the following severe traumatic events:
(a) Experiencing a life-threatening event;
(b) Being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) Being threatened with a weapon, being held captive, being kidnapped, or being tortured.
(my emphasis added)
The Applicant contends that what he experienced aboard HMAS Sydney in Vung Tau harbour falls within the scope of “experiencing a life-threatening event” or “being threatened with a weapon”.[33]
[33] See Exhibit 11, Applicant’s Outline of Submissions at [23].
The appropriate tests to be adopted in assessing the category 1A stressors described in paragraphs (a), (b) and (c) of the definition were considered by the Federal Court in Border v Repatriation Commission (No. 2) (2010) 191 FCR 163. In that case, His Honour Justice Reeves made the following observations:
“Based on these authorities, the answer to the question posed… in relation to the event described in subpara (a): ‘experiencing a life-threatening event’ is this. It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.”[34]
[my underlining and emphasis]
Elsewhere in the decision, discussing subparagraphs (b) and (c), his Honour remarked:
“Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as “experiencing a life-threatening event”, the other two subparas – (b) and (c) – focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it. Thus, they variously refer to: “a serious, physical attack”, “assault”, “rape”, “sexual molestation”, “being threatened with a weapon”, and “being held captive, being kidnapped or being tortured”. Whilst all of these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition…
It follows, in my view, that there is no subjective element involved in determining whether a veteran’s hypothesis fits within, or is consistent with, one or more of the events described in subpara (b) or (c) of the definition of “a category 1A stressor”.”[35]
[my underlining]
[34] Border v Repatriation Commission (No. 2) (2010) 191 FCR 163, 180 at [67] (Reeves J).
[35] Ibid, 175-176 at [50]-[51].
Did the Applicant experience a category 1A stressor for 6(a) or (h)?
The Applicant’s case is that even though his life may not have been actually threatened while on board the HMAS Sydney in Vung Tau harbour, he was nevertheless of the subjective belief that his life was so threatened. It is further contended on his behalf that this subjective belief was based on objective facts.
The Applicant’s perception of the events, and whether they posed a threat of death, is critical. However, the perceived threat of death must be reasonably held, that is - judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the Applicant. The event must have been capable of and did convey the threat of death.
In the Federal Court case of Delahunty v Repatriation Commission [2004] FCA 309, Justice Tamberlin canvasses the accepted tests for considering whether a veteran has experienced “a severe stressor” (as per the old SoP). In each of the cited authorities the common ground is that there must have been an ‘actual event’ that gave rise to the perceived threat, the event said to constitute the threat must then be judged objectively from the point of view of a reasonable person with the knowledge and experience of the veteran.[36]
[36] See Delahunty v Repatriation Commission [2004] FCA 309 at [22]-[23] per Tamberlin J, citing Stoddart v Repatriation Commission [2003] FCA 334 at [50] per Mansfield J; and Woodward v Repatriation Commission [2003] FCAFC 160 at [77], [139] and [141] per Black CJ, Weinberg & Selway JJ.
More to the point, the Full Federal Court in Woodward v Repatriation Commission pointed out that the ‘experience’ had to be based on an ‘event’ and a figment of the imagination, such as what might arise from paranoid ideation, would not be sufficient to meet this requirement.[37]
[37] Woodward v Repatriation Commission [2003] FCAFC 160 at [77] per Black CJ, Weinberg & Selway JJ.
I will turn now to each of the Applicant’s asserted scenarios where he contends he experienced or which contributed to his experience of a category 1A stressor.
The Melbourne-Evans Collision
In his original claim form dated 9 October 2014, the Applicant states that he:
“Was involved in HMAS Melbourne/USS Frank E Evans Accident. Member was involved in recovery of injured Personnel. Witnessed the sounds and death of personnel when the USS Evans sank. …”[38]
[38] See Exhibit 3, T7, p 48.
I have no doubt given the details of this horrific incident that it would equate to either a category 1A or 1B stressor. However, as previously mentioned, traumatic as it was, the Melbourne-Evans collision did not occur within the Applicant’s operational service. This event therefore falls outside of my consideration for present purposes. It can only serve as background for the Applicant’s state of mind during his operational service.
In his evidence at the hearing, the Applicant confirmed he was relying on his subsequent service on board HMAS Sydney in Vietnam waters, and that his experiences in Vietnam served to reinforce his trauma. For present purposes, that the events of his operational service caused an aggravation or a ‘clinical worsening’ of his PTSD.
Enemy diver detected attaching bomb/explosive to hull of the ship
In his original claim form dated 9 October 2014, in addition to referencing the Melbourne-Evans collision, the Applicant further states:
“… HMAS Sydney – whilst in Vang (sic) Tau Harbour there was an incident where an enemy diver was trying to attach explosives to the underside of the carrier.”[39]
[39] See Exhibit 3, T7, p 48.
On 3 April 2015 the Applicant provided a further statement that was filed with his Application for review with the VRB. In that statement he briefly expands on events during his service in Vietnam waters, which he asserts meet the relevant factors in the SoP. Relevantly, on this point he says:
“I believe there is documented evidence that enemy forces were intercepted trying to attach explosive charges to our hull and this would equate to being threatened with a weapon.”[40]
[40] See Exhibit 3, T14, p 107.
The evidence in relation to this assertion does not indicate that the Applicant saw the diver affix the explosive to the hull of HMAS Sydney or was required to remove those explosives. Rather, he purports to have heard about the incident after the event. I cannot be satisfied that this meets the threshold of ‘being threatened with a weapon’ as contended by the Applicant.
The Applicant says that he was informed of the threats to the HMAS Sydney by way of morning briefings (including the time swimmers were found in the water, munitions, mines, and ‘a range of things that were designed to be used against us’). Be that as it may, it cannot constitute proof of the Applicant actually witnessing or experiencing that threat or anything approaching such threats. Simply hearing about threats of this nature after the event surely does not constitute, in and of itself, as the Applicant contends, the experiencing of a life-threatening event.
The Applicant claims there was documented evidence of this event. However, the Report of Proceedings for the HMAS Sydney contains no record of interception of or engagement with enemy divers. Similarly, there is no record of an alert or a heightened state of alert for that vessel. I therefore think the Respondent’s contention is fairly made: such a significant event would have been recorded in the ship’s Report of Proceedings or in the course of mandatory reporting requirements to the Royal Australian Navy’s headquarters in Saigon. Perhaps critically, Dr Palazzo’s evidence at the resumed hearing was that there is no record of any such enemy activity against the HMAS Sydney while it was in the harbour or in Vietnam waters.[41]
[41] See Transcript of Proceedings dated 24 March 2017 at p 77.
Dr Palazzo confirmed that during the periods the Applicant was present in Vung Tau harbour, the records did not disclose any incident involving enemy mines. He further confirmed that the records did not disclose any attacks on HMAS Sydney during the period the Applicant was present in Vung Tau harbour. He elaborated to say that there were grave concerns that HMAS Sydney might be attacked but precautions were taken to safeguard the ship. No actual attacks eventuated.
The Respondent pointed me to the case of Voelker and Repatriation Commission[42] in which Mr Voelker spoke of feeling like he was “under constant threat” while on board HMAS Sydney travelling into Vietnamese waters due to the possibility of mines or other explosive charges being placed against the ship’s hull whilst in Vung Tau Harbour. Mr Voelker also said he could see “the red from the explosion of bombs” in relation to artillery or similar munitions detonating on the land. In that matter the Tribunal found there was no material or contention pointing to the Applicant experiencing either a category 1A or 1B stressor during his operational service in Vung Tau Harbour.
[42] Voelker and Repatriation Commission [2016] AATA 427.
In Voelker the Tribunal noted that: “an official account of HMAS Sydney’s role in the war contended that “there was very little enemy main force activity around Vung Tau, which rendered it a ‘safe’ port.”[43] It was understandable that the crew would have been concerned. However, the Tribunal considered that the seemingly low possibility that a mine attack might eventuate could not be construed as “a pervasive threat to life or bodily integrity”.[44]
[43] Ibid at [38] per Deputy President Bean and Member Lt Col Ormston (Rtd).
[44] Ibid.
The Applicant’s evidence at the hearing about his recollection of being told that “they actually had apprehended enemy swimmers trying to attach mines to our hull”[45] is not supported by the report of proceedings for HMAS Sydney.[46] As opined by Dr Palazzo, if this event had taken place – it would have been subject to reporting procedures. I therefore cannot be satisfied that the claimed incident of intercepting enemy divers was an actual event experienced by the Applicant.
[45] See Transcript of Proceedings dated 23 January 2017 at p 17.
[46] See Exhibit 8.
Deployment of scare charges around the ship
In his statement dated 3 April 2015, the Applicant says:
“During my deployment I was very aware of the danger at hand and was reminded via daily orders posted that we were considered a major target by the North Viet Cong as a supply source for troops, supplies and armament.
My fear and apprehension at being sunk by enemy mines left me with a mindset that lead to sleeping on a collapsible sun lounge in open spaces of the ship rather than my allocated bunk below decks.
The constant sound of scare charges being dispatched around the perimeter of the ship added to this fight or flight state of mind that persists to this day in my reaction to loud noises.”[47]
[47] See Exhibit 3, T14, p 107.
Evidence about the passage of HMAS Sydney (and other ships) into Vung Tau Harbour has previously been considered by the Tribunal. Specifically, the Applicant’s representative directed me to cases which considered whether an apprehension of scare charges regularly detonating near the ship’s side constituted a category 1A stressor.[48] In these matters the Tribunal found in favour of the Applicant and concluded that their experience of scare charges detonating, were sufficient stressors.
[48] See Trigge and Repatriation Commission [2012] AATA 176; and Moran and Repatriation Commission [2004] AATA 294.
However, I note that unlike those matters, the Applicant in this matter has not sought to rely on any specific experience of a scare charge detonating and his subsequent reaction which constituted a category 1A stressor.
For example, Mr Trigge gave comprehensive evidence about his first experience of a scare charge detonating near the ship and how he perceived that to be a life threatening event. The Tribunal accepted this was a relevant factor that caused his PTSD. He spoke of sitting at a desk in the communication cabin when he heard a “huge explosion” right beside him. His immediate feeling was that the ship had been hit by enemy fire and his reaction was to leave the cabin as soon as possible. Due to experiences during his training he feared that damage to the hull would allow water to flood the communication cabin and he would drown. He feared for his life and acted accordingly. It was not until the other seaman in the cabin told him that the source of the noise was a scare charge that his imminent fear was relieved. In that matter Mr Trigge claimed to have no previous knowledge or understanding of scare charges and had not been made aware of the practices associated with operation awkward.[49]
[49] See Trigge and Repatriation Commission [2012] AATA 176 at [8] – [9].
Further, Mr Moran perceived the scare charges as possibly being bombs exploding. This lead him to be anxious, tense and to develop an anxiety disorder. He was described as being a worrier who, as a result of being inexperienced when being confronted by the scare charges, became anxious and developed feelings of being at risk. The Tribunal accepted his evidence in relation that his experience of the scare charges was a contributor to his generalised anxiety disorder.[50]
[50] See Moran and Repatriation Commission [2004] AATA 294 at [86].
At the hearing of this matter the Applicant was asked about his experience of the use of scare charges during his service. His evidence was as follows:
Applicant’s Counsel: “Okay. Now, do you recall the use of scare charges whilst you were serving on the "Sydney"?”
Mr Stevens: “Yes, I do. Yes, it was ---“
Applicant’s Counsel: “How would you describe that experience?”
Mr Steven’s: “Well, I guess it would have been different for every person on board, but for me it was very much a reminder of the potential for our ship to be attacked, and of the thing that happened with the "Evans" of course. Yes, it put a shudder through you, to say the least.”[51]
[51] See Transcript of Proceedings dated 23 January 2017, at p 16.
Aside from this very brief reference to scare charges the Applicant does not expand further on any actual event where a scare charge was detonated and his subsequent reaction to feeling as though his life was threatened.
Dr Palazzo gave evidence of the difference between Awkward State 1 and Awkward State 2. The former predicates a response based on an imminent or completed attack. The latter was more routinely deployed as a ship’s level of readiness as it approaches and anchors in Vung Tau harbour. Dr Palazzo gave evidence in his first report that Operation Awkward consisted of:
“Armed upper deck sentries, additional lookouts, waterborne patrols and sweeps of the hull and anchor cables by the ship’s diving teams. Underwater scare charges were also deployed as a deterrent against swimmers.”[52]
[52] See Exhibit 5, Report dated 28 August 2016 at p 5.
Dr Palazzo makes specific reference to typical preparations that would have been taken by the Navy when one of its vessels was Vung Tau harbour:
“My examination of the Report of Proceedings of the Sydney’s escorts revealed additional material that further highlights preparations for entry into Vung Tau. Some of the escorts, prior to arriving in Vung Tau, exercised the Awkward 2 protocols that they would implement when they reached Vietnamese waters. ….These included sentry small arms firing drills. The ship’s divers, who would conduct bottom searches for limpet mines in Vung Tau, were also exercised. The point is that the entire crew would have been aware of the exercises and that the Captain was taking precautions as they neared Vietnam.”[53]
[53] See Exhibit 10, Report dated 11 February 2017, p 7.
During the course of the hearing, neither party led evidence about the Applicant having any knowledge or training in either Awkward State 1 or Awkward State 2. In previous cases involving similar facts to the present matter, there has been evidence adduced about training exercises involving operation Awkward State 2. I would find it extraordinary if an Australian naval vessel being sent into a combat zone during an actual conflict was manned by crew who had not received such training.
To my mind, evidence of such training or lack thereof, would bring into sharper focus an applicant’s allegation sought to be made now about the effect of detonation of scare charges almost 50 years ago.
I cannot identify any specific event in respect of a scare charge being detonated that amounted to the Applicant experiencing a life threatening event. Nor was there any evidence about how a lack of training or participation in exercises involving the deployment of Awkward State 2 caused him to misapprehend what the scare charges may have been.
LCM Bowman duties
In his statement dated 12 January 2017, given for the purpose of this proceeding, the Applicant further elaborates on his active service on HMAS Sydney in Vietnam as follows:
“During my service in RAN I was posted to HMAS Sydney and deployed to active service on a number of occasions transporting troops, supplies and armaments to Vietnam. I was apprehensive for my own safety and that of the ships company on each occasion whilst in Vung Tau Harbour. The crew were made aware of the frequency of contacts in the harbour area by way of daily orders. These included Rocket attacks, Explosive devices/Mines found in the Harbour area and apprehension of suspect craft in the region. Part of my duties as LCM Bowman transporting troops ashore was to be forward lookout for floating mines, suspicious debris and other craft on the water. On the deployment in October/November 1970, the crew were made aware of the increased number of incidents and the ships company were placed on high alert with increased deck and amphibious patrols, scare charge frequency increased and cable searches undertaken. At the time, I was acutely aware of the possibility of our ship being sunk having been a crew member of HMAS Melbourne the year before and involved in the collision with USS Frank E Evans. My anxiety was such that I took to sleeping on a collapsible bed on the upper deck spaces for fear of being caught below deck should we start sinking. The constant sound of scare charges, mortar and bombardments from allied and enemy forces alike added to my fears. We were often reminded that we were considered the most strategic target in the Vung Tau area by the VC. To attack HMAS Sydney would have been a major disruption to the allied supply line and the fact that all our counter measures were effective, does not belie the fact that we were in life threatening danger whilst in Harbour.”[54]
[54] See Exhibit 7, Statement of Applicant dated 12 January 2017.
Aside from a general apprehension for his safety because of the heightened state of alert, the Applicant still does not point to any specific sequence of events which amounts to ‘experiencing a life-threatening event’ arising from his duties as a LCM Bowman.
Similarly, the Applicant’s claimed incident of a threat from floating mines is not verified by objective evidence in respect of mines detected in Vung Tau harbour during the relevant periods that the Applicant was present.
Dr Mungomery accepted that being in a war zone may give rise to a stressor or stressors. However, he did not consider that the Applicant’s duties as a bowman and his evidence of the ship being a strategic target reached the threshold sufficient to meet the definition of a category 1A stressor.[55]
[55] See Transcript of Hearing on 23 January 2017 at pp 40-41.
During his evidence Dr Palazzo identified records of events in relation to incidents against other ships in 1970 but these did not occur during periods when the HMAS Sydney (or the Applicant) was present in Vung Tau harbour. These incidents would have been communicated to other ships (including HMAS Sydney), who would have implemented measures that protected against potential attacks. Dr Palazzo agreed that a person of the Applicant’s rank would have been given operational directives to carry out and follow in that regard but may not have known the full detail of the threat.
The difference between Operation Awkward State 1 and Awkward State 2 was highlighted during the cross-examination of Dr Palazzo. It was noted that Awkward State 1 “is to be assumed on receiving positive evidence of an imminent or completed attack. Awkward State 1 may be ordered on evidence of a probable attack.” Whereas Operation Awkward State 2 is routinely deployed as a ship’s level of readiness as it approaches Vung Tau harbour. [56]
[56] See Transcript of Proceedings dated 24 March 2017, pp 82- 83 [Note: Transcript date inaccurately described as 24/01/17].
The Tribunal has previously received evidence about the deployment of Operation Awkward State 2 by ships in Vung Tau harbour from Captain H A Josephs, (which are consistent with Dr Palazzo’s evidence on this operation). This was briefly recounted in the Tribunal’s decision in Parr and Repatriation Commission [2003] AATA 13, as follows:
“* Armed sentries were posted on the upper deck to watch for signs of any suspicious activity such as air bubbles or suspicious debris.
* Ship's boats patrolled in the vicinity of the ship towing "homemade" anti-swimmer devices constructed from grappling hooks, barbed wire and similar items.
* Ship's divers searched the anchor cable and the ship's hull from time to time.
* Scare charges were thrown overboard from the ship and/or the patrolling boat/s at irregular intervals, except when ship's divers were in the water…”[57]
[57] Parr and Repatriation Commission [2003] AATA 13 at [51].
Dr Palazzo confirmed during cross-examination that Awkward State 1 indicates a higher state of readiness. Dr Palazzo further confirmed that neither HMAS Sydney, nor any of its escorting vessels, engaged in Awkward State 1, they were always at Awkward State 2.
Dr Palazzo could not identify any record of enemy mortar fire during the period the Applicant was present in Vung Tau Harbour. Further, on two passages to South Vietnam, armed helicopters were present or participating in the HMAS Sydney’s ship to shore transfer. There was no record of the helicopters being required to engage with the enemy.
Having regard to the totality of the evidence relating to the Applicant’s duties as an LCM Bowman, I am not satisfied that a reasonable hypothesis has been raised in accordance with him experiencing a life-threatening event or being threatened with a weapon for the purpose of a category 1A stressor.
Discussions with returning army personnel
In his statement dated 3 April 2015 the Applicant says that his discussions with army personnel, who were being transported back on HMAS Sydney, caused him to re-live the traumatic memories of the Melbourne-Evans collision. His evidence was as follows:
“In regards to eyewitness to critically injured personal (sic), my memories of watching and hearing young men plunge to their death on board USS Frank E Evans came back in stark reality during conversation with Army personal (sic) we were transporting back home after their tour of duty in Viet Nam (sic). They spoke of mates killed in fire fights and maimed or killed by land mines. It was a small stretch for me to feel their anguish and despair having experienced firsthand the same emotions. The atmosphere on board during a return trip from Vung Tau with repatriated troops on board was in stark contrast to the trip up with vibrant young men, keen to serve their country. Each trip saw the same pattern and further cemented my trauma and despair….”[58]
[58] See Exhibit 3, T14, p 107.
The Applicant appears to be making a reference to the definition of “a category 1B stressor” which includes “(a) being an eyewitness to a person being killed or critically injured”.[59] As previously mentioned, I accept that what the Applicant would have seen and heard during the Melbourne-Evans collision would no doubt amount to either a category 1A or 1B stressor. The Applicant’s discussion with army personnel about their experiences at war would no doubt be sobering for him. However, I cannot be satisfied, solely on that basis, that those discussions alone gave rise to either a category 1A or 1B stressor.
[59] See SoP No. 82 of 2014 p 5.
I therefore have significant difficulty in connecting or relating a recounted discussion to the definitions of either a category 1A or 1B stressor. For the purposes of the factors in paragraph 6 and definitions in paragraph 9 of the SoP, I cannot be satisfied that a mere discussion or reminiscence, albeit distasteful, could amount to the Applicant experiencing a life threatening event (1A stressor) or being an eyewitness to persons being killed etc (1B stressor).
An albeit unhappy recollection of his service experiences arising from such discussions is, to my mind, little or no different to him experiencing such a recollection as a result of viewing either a documentary film or fictional motion picture about naval or army battles during the Vietnam war or other conflict. This surely cannot be categorised as war-caused.
Was the Applicant Living or Working in a hostile environment for factor 6(j)?
In the Applicant’s Statement of Issues he originally purported to rely upon factors 6(a), 6(b), 6(h) and 6(j) in the SoP as evidencing the connection between his PTSD being caused or aggravated by his relevant service.[60] As the hearing evolved, so did his reliance on those factors.
[60] See Exhibit 1, Applicant’s Statement of Facts and Contentions (“SFIC”), pp 3 -4 at [12].
In an attempt to be comprehensive of all his submissions I will briefly address whether the Applicant satisfies the definition of factor 6(j) which reads:
“(j) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical worsening of posttraumatic stress disorder.”
Even if I were to accept that the Applicant’s service whilst in Vung Tau harbour was to be considered a hostile or life-threatening environment, I cannot be satisfied that it was for a period of at least four weeks. The Applicant’s operational service in Vietnam was as follows:
(i)from 21 October 1970 to 12 November 1970 = 22 days;
(ii)from 15 February 1971 to 4 March 1971 = 17 days;
(iii)from 26 March 1971 to 8 April 1971 = 13 days;
(iv)from 13 May 1971 to 1 June 1971 = 19 days.
This is consistent with previous evidence which suggests that HMAS Sydney generally spent less than one day at a time in Vung Tau harbour (whilst delivering supplies and delivering/collecting troops) and only a number of days in Vietnamese waters on each trip.[61] I do not think it was the legislative intent for his periods of service to be considered cumulatively to overcome that time threshold.
[61] See Voelker and Repatriation Commission [2016] AATA 427 at [39].
Conclusion
The material before me does not point to the Applicant having experienced any of the factors set out in paragraph 6 of the SoP during his periods of operational service. Accordingly, I have concluded that the hypothesis raised by the Applicant is not a reasonable one as it does not contain any of the factors in the SoP. It follows that the Applicant’s hypothesis about the aggravation or worsening of his PTSD being war-caused, fails at step 3 of the Deledio test.
Step 4: satisfied beyond reasonable doubt that aggravation of PTSD was not war-caused.
In accordance with subsection 120(3) of the Act, if, after considering all the material before me, I do not consider that it raises a reasonable hypothesis connecting the injury or disease with the circumstances of the Applicant’s operational service, I can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that either the onset or aggravation of the Applicant’s PTSD was war-caused. As mentioned earlier, I did not consider that the hypothesis propounded by the Applicant was reasonable.
As canvassed in my elaboration of the medical evidence in Issue 1, the Applicant’s treating doctor, Dr Mungomery, made a diagnosis of chronic posttraumatic stress disorder which emanated from the Melbourne-Evans Collision.[62] This event did not occur during the Applicant’s operational service, so the onset of his PTSD was not ‘war-caused’. In his second report, Dr Mungomery noted an exacerbation of the Applicant’s depressive and PTSD symptoms due to chronic pain and impairment from his injuries. [63]
[62] See Exhibit 3, T5, p 23 at [48].
[63] See Exhibit 3, T6, p 38 at [5].
It was not until his third report that Dr Mungomery makes reference to the reinforcement or aggravation of the Applicant’s PTSD from his subsequent tours to Vietnam.[64] It appears this particular report was motivated by or is otherwise contemporaneous with the Applicant’s appeal to the VRB. As the Applicant’s treating doctor, Dr Mungomery would and could only have relied on the Applicant’s recollection of events and perceived ‘stressors’. The stressors identified by Dr Mungomery during the Applicant’s operational service (including the Applicant ‘undertaking operational duties in active combat or zones during which he felt that his life was threatened due to enemy forces attempting to plant mines on the hull of the ship and exposure to military personnel recollecting their own traumatic experiences involving loss of life or serious injury’[65]) are not verified by objective evidence nor do they satisfy any of the factors to fit the template within the SoP.
[64] See Exhibit 3, T17 (Report dated 28 May 2015), pp 113 and 120.
[65] See Exhibit 3, T17 (Report dated 28 May 2015), p 120.
Dr Mungomery in cross-examination at the hearing conceded that although all the events of the Applicant’s operational service may have cumulatively contributed to the worsening of his PTSD, he could not categorise any of the events recounted by the Applicant as a category 1A stressor, as now propounded by the Applicant.
It is notable that the Applicant completed a total of four tours of duty to Vung Tau harbour yet could not in his evidence point to any specific event or events that are capable of corroboration by independent evidence, that in turn, would fit the template in the SoP. One wonders why the Applicant continued to return to Vung Tau harbour, apparently without complaint, if the experience exposed him to certain events which are now propounded as aggravating and reinforcing his PTSD.
The Applicant was discharged from the navy on 28 July 1972, aged 20. He is now 66 years of age and there has been a significant lapse of time, some 45 years, since his discharge. It is not unreasonable to imagine that a plethora of other life events, which the Applicant does not seek to mention, could have worsened or aggravated his PTSD.
ISSUE 3: APPROPRIATE RATE OF PENSION
As I have not found that the Applicant’s PTSD, or the aggravation of his PTSD, was war-caused, I will not proceed to make a finding about the applicable rate of pension.
DECISION
I affirm the decision under review.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
.........................[SGD].....................................
Associate
Dated: 4 December 2017
Dates of hearing: 23 January 2017, 24 March 2017 Date final submissions received: 5 May 2017 Date of Directions hearing: 24 May 2017 Counsel for the Applicant: A. Harding Solicitors for the Applicant: Terrence O'Connor Solicitor Advocate for the Respondent: B. Williams
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